Morier v Liem

Evidence regarding Paternity of the Plaintiff

1. As stated earlier, the deceased married Ethel in 1954 and remained married to her until June 1997. It follows that the Plaintiff was born during their marriage.
2. The Birth Certificate of the Plaintiff, registered under the Births Deaths and Marriages Registration Act 1995 (NSW), a copy of which was in evidence, revealed that the deceased was named as the father of the Plaintiff and that Gloria, who was born before the Plaintiff, is also shown as a child of the deceased and Ethel. (The Informant identified on the Birth Certificate was Ethel.)
3. The Decree Nisi of the dissolution of the marriage of the deceased and Ethel states "The court by order declared that it was satisfied that there are no children of the marriage who have not attained the age of 18 years".
4. There is no suggestion, by the Defendant, or otherwise in the evidence, that the Plaintiff treated the deceased otherwise than as her father. Throughout her life, and in her affidavits, she referred to the deceased as "my father" or "Dad". It is not suggested that he gave her any reason to believe that he was not her father.
5. Indeed, the Plaintiff gave evidence, which I accept, that the deceased had never said anything to her to suggest that she was not his child. For example, when she married in September 1974, it was the deceased who walked the Plaintiff down the aisle. In March 2012, the deceased and the Defendant attended the marriage of the Plaintiff's daughter, Jodie, in Brisbane.
6. There was regular contact between the Plaintiff and the deceased, before and after his marriage to the Defendant, at least until August 2014. The reason for the subsequent lack of contact, in the six months or so before the deceased's death, is the subject of dispute. This is not to say, however, that the Plaintiff did not attempt to maintain contact with the deceased during that period.
7. The Defendant gave evidence, in an affidavit sworn on 25 September 2015, that the deceased "informed me on or about 13 January 2013 that he had no children". She added that she had heard the deceased say the same thing to a priest, and to "staff at Wyong Hospital and Royal Prince Alfred Hospital in June 2014".
8. Mr Cheetham gave evidence that "sometime in 2013" (stating in cross-examination, for the first time, that it was in January 2013), that the deceased "stated to me that he raised the two girls...but found out sometime later after the girls were born that the girls were not his natural daughters. He did mention that it was sometime in the 1950's when he found this out that he was not their natural father. After he found out, he agreed to continue to raise them as if they were his own daughters…". There is no evidence of any statement revealing how the deceased "found this out".
9. Even after the statements said to have been made to Mr Cheetham, the deceased continued his relationship with the Plaintiff as his child. There is no suggestion that he treated her any differently, after he "found this out".
10. It is to be inferred from the evidence that the deceased maintained, in different ways, to the world at large that the Plaintiff was his child. There can be no doubt that, during his marriage to Ethel and until 2014, he acted, spoke, and dealt with the Plaintiff, and third parties, upon the basis that the Plaintiff was a child of his marriage to Ethel.
11. It was not suggested to the Defendant that the deceased had not made the statements to her, or the others, to whom she had referred. Similarly, it was not suggested to Mr Cheetham in cross-examination that the conversation with the deceased had not occurred. Having heard, and seen, each of the Plaintiff and Mr Cheetham in the witness box, I am satisfied that the deceased did have the conversations in the terms that each alleged.
12. Even if the deceased held the belief the Plaintiff was not his child, the Court must still be satisfied, in determining whether she is an eligible person, that she is not.
13. The evidence from the deceased and from Mr Cheetham was not objected to by counsel for the Plaintiff: Re Pennington (decd) (No 2) [1978] VR 617 at 624; Re O'Neil (dec'd) [1972] VR 327; s 73 of the Evidence Act 1995 (NSW).
14. Neither party sought an order for parentage testing prior to the hearing.

The Statutory Scheme - The Act

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have collected the principles that are generally applicable in a number of other cases. Where necessary, I have added more recent authority. In addition, I acknowledge that there is "a level of abstraction" in stating these principles, because, as I have noted in other cases, they are useful in illuminating the path that the Court takes in a claim for a family provision order.
2. Also, as I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "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 of the Court, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.
3. 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 bases for a family provision order have been established. Furthermore, the nature of any provision ordered to be made should be justified, not by reference to precedent, but by reference to the principles relevant to the facts of the specific case.
4. As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380 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]."
5. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646 at [18]-[20] (Basten JA), and at [66]-[67] (Barrett JA). They must be remembered.
6. Finally, in view of the importance of this case to the parties, one of whom is self-represented, it is equally important that they are able to follow the reasoning and for each of them to be satisfied that I have considered the evidence and the submissions in the application. I have endeavoured to state the relevant principles briefly but in a way that the Defendant, as an unrepresented litigant, should understand.

Introduction

1. In cases such as the present, the Court determines whether: 1. The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act. 2. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (In this case, the operation of the intestacy rules is irrelevant.) 3. Any property should be designated as notional estate. 4. Any provision ought to be made out of the estate or notional estate for the Plaintiff.

Eligibility

1. The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.
2. There is no definition of "child" in the Act, other than in s 57(2), which states to whom a reference to "a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death". The sub-section is not applicable.
3. There was no dispute, in this case, that the burden of proving paternity lies with the Plaintiff.
4. There was, until statute intervened, a long-standing common law presumption of legitimacy of a child during a marriage. The presumption was a presumption of fact which could be rebutted by evidence which showed that legitimacy was impossible or unlikely: Cocks v Juncken [1947] HCA 16; (1947) 74 CLR 277.
5. Section 9(1) of the Status of Children Act 1996 (NSW) provides that a child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her husband.
6. Section 11(1) of the Status of Children Act provides that a person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register.
7. Section 13(1) of the Births, Deaths and Marriages Registration Act provides that if a child is born in the State, the birth must be registered under the Act. As there was no evidence contradicting the correctness of the entry identifying the deceased as the Plaintiff's father on the Plaintiff's birth certificate, the Court must presume that it was properly issued: Births, Deaths and Marriages Registration Act, s 10(2).
8. Section 49(2) of the Births, Deaths and Marriages Registration Act provides that a certificate certifying particulars contained in an entry is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry.
9. Each of the presumptions to which I have referred is rebuttable by proof on the balance of probabilities.
10. In NSW Trustee & Guardian v Hull [2011] NSWSC 1106 at [133], I described the issue of parentage as "a serious and important issue". (An application to extend time for filing a Notice of Appeal was dismissed upon the basis that the appeal had no reasonable prospects of success: Hull v Smith [2012] NSWCA 183.)
11. As in that case, the present case is one which requires careful consideration of s 140(2)(c) of the Evidence Act 1995 (NSW). Section 140 provides: "Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."
12. Section 140(2)(c) is generally regarded as giving effect to the principles stated by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. His Honour rejected, at 361, the suggestion that the common law developed a third standard of persuasion, other than proof on the balance of probabilities and proof beyond reasonable doubt. His Honour went on to say (at 362) that in a civil case: "... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
13. A quite useful statement on the issue of paternity is to be found in the decision of Waite LJ in Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, who said: "(1) the question raised by the issue of paternity is a serious one - more serious in the scale of gravity than, for example, proof of debt or minor negligence; (2) the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue; (3) the weighing process involved in (2) must not however be over-elaborate. The court should not attempt, in a precise, almost mathematical, way to determine precisely what degree of probability is appropriate to the gravity of the case. There is still ample scope for the influence of common sense and the insight gained from first impression."
14. Thus, the Court should not approach the determination of the question on an analysis of the evidence any different from that which would be undertaken in any ordinary civil proceeding, that is to say on the balance of probabilities.
15. The Defendant did not provide any forensic evidence to rebut any of the presumptions. Nor did she put forward any evidence to rebut the basal facts relied upon by the Plaintiff. (I acknowledge that the Plaintiff's statements regarding paternity are not decisive, but they do provide some evidence which is not inconsistent with the presumption of paternity.)
16. The only matter identified by the Defendant, which goes to the issue of paternity, is the deceased's oral statement made to the Plaintiff, to Mr Cheetham, and to others, sometime in 2013, perhaps January, and some months thereafter, respectively. The factual basis for the deceased's statement was not specified.
17. Both paternity and maternity is a matter of status. In this case, the status of paternity is not in conflict with the factual reality of what occurred after the birth of the Plaintiff. In my view, the deceased's statements, alone, going to his belief, are insufficient to disturb the presumptions to which I have referred, or the other facts going to the relationship of the Plaintiff and the deceased, all of which point to the Plaintiff being the child of the deceased.
18. Having regard to all of the evidence, I am satisfied that there is insufficient evidence inconsistent with any presumption of paternity. Accordingly, for the purposes of these proceedings, the Plaintiff is a child of the deceased and an eligible person within s 57(1)(c) of the Act.
19. I should mention that even if I were wrong in coming to this conclusion, I am satisfied that the Plaintiff is an eligible person within s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and a person who was, at that particular time or at any other time, a member of the household of which the deceased was a member. Accordingly, the Plaintiff is also an eligible person within the meaning of that term in s 57(1)(e) of the Act.
20. I am also satisfied, by reference to s 59(1)(b) of the Act, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the Plaintiff's application. I have identified some of the factors in the factual findings about the relationship of the Plaintiff and the deceased referred to above.

Inadequacy of Provision

1. It is only if eligibility is established, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the Will of the deceased. 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".
2. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
3. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
4. Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J, citing Emmett JA, has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297 at [40].
5. Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
6. In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
7. In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 505, Murphy J wrote: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
8. In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 541, Holland J discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms: "If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that… [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need."
9. In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
10. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 at [10], as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and [77] (per Buss JA) (which seems to invite more subjective criteria).
11. These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
12. Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
13. 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."
14. In Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
15. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
16. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied…"
17. In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
18. If the Court is not satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made by the Will of the deceased, for the applicant, then the Court is precluded from making a family provision order. In determining the question, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at [571]-[572]; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210; Vigolo v Bostin at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 at [70]; Verzar v Verzar [2014] NSWCA 45 at [39].
19. The determination of the question whether the disposition of the deceased's estate was not such as to make adequate provision for the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from his or her own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).
20. Thus, whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
21. "Need" has also been used in the context of a value judgment or conclusion, namely, that the applicant is "in need" of maintenance, education or advancement in life, because inadequate provision has been made for his or her proper maintenance, etc.: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 (Bryson J).
22. Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, 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 the applicant's proper maintenance education or advancement in life: see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at [227] (Gaudron J). Compare Gorton v Parks at [6]-[11] (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at 38, 47 (Ormiston J).
23. "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'."
24. In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
25. 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. The whole of the context must be examined. Thus, "need" may be assessed by considering the applicant's financial position, lifestyle and general expectations in life and health: Stewart v Stewart [2015] QSC 238 at [11] (Applegarth J).
26. In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person and that adequate provision for her proper maintenance, education or advancement in life has not been made), then the Court determines whether it should make an order.
27. Then, under s 59(2) and s 60(1)(b) of the Act the court determines what provision, if any, ought be made for the applicant out of the deceased's estate or notional estate. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at [211], affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
28. Section 60(2) of the Act, at least in part, is new. It provides: "(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
29. It can be seen that s 60(2) enumerates 15 specific matters, in addition to any other matter the Court considers relevant, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] at [123] as "a valuable prompt" to which the Court may have regard 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] NSWCA 4; 85 NSWLR 619 at [51] (Beazley P, Meagher JA agreeing). White J wrote in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 at [121], that s 60 "lists a wide range of matters" that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
30. In Chapple v Wilcox, Basten JA, at [7], 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)."
31. 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.
32. 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.
33. 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).
34. 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.
35. 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.
36. 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).
37. Any family provision order under the Act takes effect, unless the Court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).
38. Section 66 of the Act sets out the consequential and ancillary orders that may be made.
39. 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.

Notional Estate

1. Section 63(5) of the Act, relevantly, provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act.
2. Section 73(1) states that Part 3.2 of the Act applies to property designated as part of the notional estate of a deceased in the same way as it applies to property that is part of the estate of a deceased.
3. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". "Notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person".
4. In Galt v Compagnon (NSWSC, 24 February, 1998, unrep) at [21], Einstein J said that notional estate was "a complex concept" but succinctly described it as "property which would have become part of the deceased's estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way, and in particular circumstances, prior to his, or her, death".
5. Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76. "Property" includes "any valuable benefit".
6. Section 75 of the Act provides: "(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. (2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction. (3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate."
7. Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described in s 76(2)(b), arises: "if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust…"
8. Any such circumstance is "subject to full valuable consideration not being given". Importantly, a distinction must be drawn between "valuable consideration" and "full valuable consideration": see, for example, s 76(4) of the Act.
9. Important, also, is the omission of the words "in money or moneys worth" after "full valuable consideration" which had appeared in s 22 of the former Act. Furthermore, the phrase "is not given" rather than "is not received" is also significant.
10. The expression "subject to full valuable consideration not being given", in my view, has the effect of imposing a requirement, wholly separate from the result, which is property becomes, by operation of the right of survivorship, held by another person or subject to a trust.
11. There did not appear to be a dispute that the non-severance, before his death, of the joint tenancy, is a matter capable of giving rise to a designation of notional property: Cetojevic v Cetojevic [2006] NSWSC 431. As such, it is necessary to consider certain other sections of the Act.
12. Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person, or subject to a trust, or as otherwise provided by the section. Sub-section (3) provides that a relevant property transaction consisting of circumstances described in s 76 (2) (b) or (e) is taken to have been entered into immediately before, and to take effect on, the person's death, or the occurrence of the other event referred to in those paragraphs.
13. Section 78 of the Act provides: "Notional estate order may be made only if family provision order or certain costs orders to be made (1) The Court may make an order designating property as notional estate only: (a) for the purposes of a family provision order to be made under Part 3.2, or (b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. (2) The Court must not make an order under subsection (1) (b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant."
14. Section 79 of the Act, relevantly, deals with the designation of property where the estate of the deceased has been distributed. The section provides: "Notional estate order may be made where property of estate distributed The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust."
15. Section 80(1) provides that the Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person, if the Court is satisfied that the deceased person entered into a relevant property transaction before his, or her, death and that the transaction is a transaction to which the section applies.
16. Section 80(2) provides for the section to apply to the following relevant property transactions: "(a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order; (b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction; (c) a transaction that took effect or is to take effect on, or after, the deceased person's death."
17. It is not essential that the applicant be able to rely upon the provisions of more than one of the sub-paragraphs identified. It is sufficient if he or she is able to establish the matters in any one of them.
18. Section 83 of the Act relevantly provides that the Court must not, merely because a relevant property transaction has been entered into, make an order under s 80, unless the Court is satisfied that the relevant property transaction, or the holding of property resulting from the relevant property transaction, directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death).
19. The effect of a notional estate order is that a person's rights are extinguished to the extent that they are affected by a notional estate order (s 84).
20. Section 85 provides: "More than one notional estate order may be made The Court may make one or more notional estate orders in connection with the same proceedings for a family provision order, or any subsequent proceedings relating to the estate of the same deceased person."
21. The Court's power to make a notional estate order is also circumscribed by other sections. Section 87 provides: "The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances."
22. In reference to s 87(a), Basten JA in Phillips v James, at [125], wrote: "While it remains true that the section… is silent as to whose 'reasonable expectations' must be considered, the requirement is a constraint on the making of a notional estate order. It is not sensibly construed as referring to the reasonable expectations of the applicant who wants a share of, but does not own, the property. Nor does it sensibly refer to the expectations of the deceased person, because the court must already have determined that an adjustment in the distribution effected by the will was appropriate: s 89(2). Since a notional estate order will only be made in relation to property which never was, or no longer is, part of the estate, it is unlikely to refer to the expectations of any person other than the person who is the present holder of an interest in the property."
23. Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).
24. Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).
25. Section 89(1) of the Act, relevantly, provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.
26. Section 93(1) of the Act relevantly provides: "Protection of legal representative who distributes after giving notice (1) The legal representative of the estate of a deceased person may distribute the property in the estate if: (a) the property is distributed at least 6 months after the deceased person's death, and (b) the legal representative has given notice in the form approved under section 17 of the Civil Procedure Act 2005 that the legal representative intends to distribute the property in the estate after the expiration of a specified time, and (c) the time specified in the notice is not less than 30 days after the notice is given, and (d) the time specified in the notice has expired, and (e) at the time of distribution, the legal representative does not have notice of any application or intended application for a family provision order affecting the estate of the deceased person."
27. There is no evidence that the Defendant complied with the section in distributing the cash in bank to herself. The real estate at The Entrance was transmitted into the name of the Defendant in March 2015, about 5 or 6 weeks after the deceased's death.
28. In any event, the words of Young CJ in Eq (as his Honour then was) in Carstrom v Boesen [2004] NSWSC 1109 at [12], should be remembered in the circumstances of this case: "The Court has often said to executors that they must distribute estates early, but there does need to be considerable discretion when there is a likelihood of a claim being made under the Family Provision Act. It would seem to me to be wise practice, in circumstances such as the present, to indicate to possible claimers by letter - especially when they do not live in the area covered by the newspaper in which the ad is being placed - that they should either, within the next X days, notify that they will be making a claim or, alternatively, there will be a distribution."

Other Applicable Legal Principles - Substantive Application

1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
2. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
3. The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation. "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": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at [19] (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].
4. Of that freedom, in Grey v Harrison, 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."
5. 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."
6. White J referred to these principles in Slack v Rogan; Palffy v Rogan, 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."
7. In Goodsell v Wellington [2011] NSWSC 1232 at [108] I 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."
8. 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."
9. 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.
10. In Chapple v Wilcox, Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased.
11. 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."
12. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
13. The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 966. The use of the word "proper" requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).
14. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he or she has lived frugally, or that he or she has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45 at [62]; Butcher v Craig [2009] WASC 164.
15. 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 120 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].
16. Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, that the deceased's intention in the Will be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45] (White J).
17. As stated in the above passage, the size of the estate and notional estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."
18. In relation to the Plaintiff's claim, being a claim by an adult child, the following principles are 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, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801 at [57]; 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 child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia at [58]. 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at [148]; Goodman v Windeyer at [498], [505]. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased at [411]; Kleinig v Neal (No 2), at [537]; Mayfield v Lloyd-Williams at [86]. 5. 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). 6. 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 at [17]. 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at [149].
19. A very similar statement of the 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); at [65]-[67] (Barrett JA), and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles) in Smith v Johnson [2015] NSWCA 297 at [62].
20. In Foley v Ellis at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
21. The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased's Will or otherwise justify such provision. Nor does she have to explain the decision by the deceased to transfer the real estate at The Entrance into joint names, with the result that she would receive the property by survivorship.
22. The following principles are relevant to the competing claim of the spouse of the deceased. (a) As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his or her spouse, to the extent to which his or her assets permit him or her to do so, is to ensure that she or he is secure in the matrimonial home, to ensure that she or he has an income sufficient to permit her or him to live in the style to which she or he is accustomed, and to provide her or him with a fund to enable her or him to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her or his mind from any reasonable fear of any insufficiency as she or he grows older and her or his health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain herself or himself independently, and autonomously, may also bear upon the notion of what is proper provision. However, what I have said above is not of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144]. (b) The three elements identified in (a) above are not necessarily mutually independent. The Court is not to approach the assessment of what is proper for a competing claimant by attempting precisely to replicate the way of life that the deceased and his or her spouse planned to have had he or she survived. (c) There is binding authority which gives greater weight to the claims of a party who has entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]. In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 at [24] , Gleeson CJ wrote: "The structure of marriage and the family is intended to sustain responsibility and obligation." However, in Bladwell v Davis [2004] NSWCA 170 at [19], Bryson JA stated: "In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409 -411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." Ipp JA added, at [2]: "I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [80] - [82]. (d) Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (NSWSC, 7 March 1991, unreported). (e) Ward J (as her Honour then was), referred to many of these authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added: "Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19)."

Additional Facts

1. I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship
2. The following comment has been made by Campbell JA in regard to the Court's consideration of the totality of the relationship between the applicant and the deceased in Hampson v Hampson [2010] NSWCA 359, at [80]: "80 The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
3. In this case, the Plaintiff married in September 1974. Until then, she had lived with the deceased, Ethel and Gloria, in the family home at Campsie. Even after her marriage, she moved with her husband into a home situated across the road with her husband. She continued to have a close relationship with the deceased.
4. About 18 months after her marriage, the Plaintiff moved to Yagoona, where each of her three children was born. She and the deceased (and Ethel) would visit each other regularly.
5. In 1981, the Plaintiff moved, with her family, to Queensland, and she has lived there since then. However, despite their geographical separation, and then the dissolution of the deceased's marriage to Ethel, I am satisfied that she and the deceased remained in reasonably close contact.
6. For some time after the deceased's relationship with the Defendant commenced, there was continuing contact, but it seems that there was a change in their relationship. However, despite this, the Plaintiff's relationship with the deceased continued.
7. It is accepted that the Plaintiff did not have any contact with the deceased from August 2014. However, she says that this was as a result of the Defendant's conduct in not permitting her to speak with, or otherwise maintain a relationship with, him.
8. The Defendant gave evidence that there were occasions when she did not permit the Plaintiff to speak with the deceased, but said that on each of these occasions, it was at the request of the deceased.
9. It is not possible to resolve this conflict, and nor do I need to do so. I do not find that there was any breakdown of the Plaintiff's relationship with the deceased. It seems clear from the evidence, overall, that she endeavoured to maintain her relationship with the deceased until his death.
10. I am satisfied that the Plaintiff, throughout her life, had a reasonably close and loving relationship with the deceased. I am satisfied that until his death, the deceased cared for the Plaintiff and that she cared for him.
11. To the extent that it is relevant, I mention that there is some dispute about the relationship of the deceased and the Defendant. However, it cannot be forgotten that their relationship spanned 16 or 17 years. Overall, I am satisfied that her relationship with the deceased was a close and loving one, and that she did all that she could to assist the deceased. The fact that the deceased appointed the Defendant as his sole executrix and sole beneficiary in two different Wills made several years apart, provides some additional evidence of their relationship.
12. (Although there is quite a lot of evidence about the relationship of the Plaintiff and the Defendant, it is not necessary to rehearse that evidence.) (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
13. There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
14. The responsibility of the deceased was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd, at 478-479: "Their Lordships agree that 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."
15. This factor requires a balancing of potentially competing obligations as between the applicant and the beneficiary.
16. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff as a child, once she became an adult, imposed upon him by statute or common law. Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, continues to be recognised. In Flathaug v Weaver [2003] NZFLR 730 at 32, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
17. Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812 at 81. The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no "presumptive testamentary entitlement of an [adult] offspring": Underwood v Gaudron at [73] (Basten JA).
18. The size of the deceased's estate is also relevant to the extent of the obligation or responsibility.
19. I have earlier identified the obligation owed by the deceased to his spouse. In this case, bearing in mind the length of their relationship and the age of the Defendant, I am of the view that it is a more significant obligation or responsibility than that owed to the Plaintiff. (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
20. I have earlier dealt with these matters. The net value of the actual estate is tiny, whilst the value of property that may be designated as notional estate is not large. (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
21. The use of the term "financial resources" adds something to income and property.
22. The Plaintiff resides in her 3 bedroom unencumbered home in The Range, Queensland. She had estimated its value (but her estimate was objected to and rejected, although it was included in the Defendant's affidavit). She said that the value of her property had decreased because the mining boom in that area was over.
23. The Plaintiff said that it is in a state of disrepair following a cyclone in February 2015. It is clear, however, that the Plaintiff was insured, because she stated that she is "having trouble with getting my insurance to cover the costs of the repairs". There were no photographs tendered that depicted the home and its current condition.
24. The Plaintiff has very little by way of savings (about $355). She says that she has credit card debts ($5,656) and that she owes $14,200 to Ethel (now, presumably, to her estate) and $8,500 to Jodie.
25. Jodie, who swore an affidavit and attended the hearing, did not give any evidence of the debt owed to her or to Ethel's estate. Importantly, she did not state that she was seeking repayment from the Plaintiff, her mother, of either debt. (This is not to say that she will not seek repayment or that the Plaintiff will not repay her.)
26. The Plaintiff receives a Centrelink Disability Support Pension, which she thought was $870 per fortnight at the date of the hearing: T21.45 - T22.06. She also gave evidence that her expenditure was limited by her income.
27. The Plaintiff asserts that she is unemployed. It is likely that she has a limited earning capacity.
28. The Defendant holds no assets or property in Indonesia. Her only assets appear to be what she received by survivorship and under the deceased's Will. She receives a Pension, which, as at November 2015, was $860 per fortnight. The current amount that is paid is not disclosed. In addition, she stated that she then received income from a term deposit, of $4,165 per annum (about $160 per fortnight), making a total annual income of $26,530.
29. The Defendant, at her age, does not have any earning capacity. She has osteoarthritis of the left knee and a history of adult onset asthma. (She sought to provide estimates of costs and expenses that she may have, but that evidence was objected to and rejected.)
30. The Defendant gave evidence that the deceased had a legal liability to support her, which he had done, throughout their marriage. Indeed, she did not receive the age pension until 3 months after the death of the deceased. During their marriage, she did not have any independent income. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person
31. There is no evidence that the Plaintiff is currently cohabiting with any person. Indeed, she states that she is single and that she lives alone. (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
32. The Plaintiff says that she suffers from a number of health conditions including fibrous dysplasia (an uncommon bone disorder in which scar-like (fibrous) tissue develops in place of normal bone), osteoporosis, Aspergillus thoracotomy, and chronic back pain. She says that she is on the public waiting list for a knee replacement. (g) the age of the applicant when the application is being considered
33. The Plaintiff is currently aged 60 years. (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
34. The Plaintiff does not give any evidence of any contribution to the acquisition, conservation and improvement of the deceased's estate. She does give some evidence of the contributions that she says she made to the welfare of the deceased. (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
35. The Plaintiff acknowledges receipt of a gift of $1,000 during the lifetime of the deceased. The Defendant says the deceased informed her in about 2003, that an additional $1,000 was also given to her by the deceased. Whether the provision was $1,000 or $2,000 probably does not matter very much in view of the amounts. In any event, there is really no way to determine whose evidence is correct. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
36. I have earlier stated the terms of the deceased's last Will. There is evidence of an earlier Will made by the deceased on 28 November 2011. In that Will, the deceased appointed the Defendant the sole executrix and sole beneficiary. In the event that the Defendant was unwilling or was unable to act, and if she did not survive the deceased, the deceased's niece, Susan Handley (who is a witness in the proceedings) was the substitute executrix and sole beneficiary. The Plaintiff was not referred to in the 2011 Will of the deceased.
37. The Plaintiff gave evidence of having a conversation with the deceased "in or about 2010", in which he said "I have just done a Will leaving everything to be equally divided between you and Johanna". Ms Handley acknowledged that the deceased did not give her a copy of the Will that she said he referred to having made and seemed to accept that she did not know whether, in fact, there was one. No original Will dated 2010, or any copy, has been produced.
38. Ms Suzanne Handley gave evidence of a conversation with the deceased in July 2014 in which the topic of a Will was again discussed. She says that the deceased told her that he had "just written out a new will and you are the executor. My estate will be divided equally between Heather and Johanna."
39. Ms Handley went on to state that when she was visiting the deceased in August 2014, the Defendant showed her a copy of the Will "that Uncle Bill signed in July 2014" and that she read it. She said that its stated intention was "My estate is to be divided equally between Heather and Johanna". She says that she and the Defendant had a conversation about the Will.
40. Ms Handley also gave evidence that another conversation occurred in January 2015, in which the deceased repeated that she was still the executor and that everything was to be divided between the Plaintiff and the Defendant. She also said that she asked the Defendant for a copy of the Will and that she replied "No I am keeping it. I have locked it in the garage safe."
41. The Defendant denied each of the conversations involving her. She also denied the existence of any such Will said to have been made in July 2014.
42. On this topic, I confess that I find the evidence of the Defendant more compelling. I refer to Ms Handley's evidence (with minor typographical corrections made): "Q. Ms Handley, I put it to you that there was no will in 2014 leaving the asset half to the defendant and half to Ms Morier and that is just a complete fabrication in order to assist the plaintiff in her claim on the estate, is that correct? A. There was a will. Why would Uncle Bill ring me and tell me that he has just been to a solicitor and he has made up a new will and discussed it briefly over the phone to me about the contents of that will and I asked him, "Are you sure that this is what you want?" and he said, "Yes"? This is factual. He rang me. Q. Do you find a will that he referred to? A. No. Q. It is your imagination only. There is no will-- HIS HONOUR Q. I think the question was did you find a will? A. No, no, there was no will but I do believe there was a will."
43. Because of my concern regarding this evidence, by reference to what had been said by Ms Handley in her affidavit, and in fairness to her, I asked following questions and received the answers below: "Q. Mrs Handley, can you just help me with something, please? A. Absolutely. Q. Mrs Hall put to you that there was no will and my note of what you responded was that you do believe that there was a will? A. Yes, I do. Q. Is that the answer that you gave? A. I do believe that there was a will. Uncle Bill rang me and had that conversation. Q. What I am a bit troubled about-- A. That will was - that conversation had re-emerged when I went down the second time to visit him and we were at the kitchen table and that was brought up about the contents of the will and so maybe he didn't quite understand or maybe there was some other reason why he wouldn't give me a copy of that will. Q. What troubles me about your evidence, Mrs Handley, is this: That you have actually said that at some subsequent time you actually saw this will, a copy of the will? A. That's correct. That's in the second time I came down. Q. You didn't say that a moment ago? A. We were talking about the first time I was down there. There were two times that I visited them regarding the will being brought up. Q. I'm having a bit of difficulty understanding. You said you did believe that there was a will? A. Yes. Q. One might have thought that you believed it because you actually saw it? A. Well, I did-- Q. You didn't say that-- A. Yes, I'm sorry. Q. --to Mrs Hall. … WITNESS: That second time that the will was brought out she also brought out her marriage certificate and various other papers and yeah, we were discussing all these different things and, yeah, it was quite a negative sort of environment."
44. I did not find Ms Handley's evidence on this topic at all convincing. Surprisingly, bearing in mind the significance of the existence of such a Will and the conversations said to have occurred, counsel for the Plaintiff did not put to the Defendant, in cross-examination, that there was such a Will, or that it had been shown to Ms Handley in the Defendant's presence. In fact, he asked her no questions about the alleged conversations, or the Defendant's denial of the existence of any such Will.
45. The Defendant asked the Plaintiff some questions about whether her solicitors had caused a subpoena to be issued to solicitors to produce any Will made by the deceased. She responded that she thought that they had but that no Will had been produced because "you had already picked it up": T20.00 - T20.17.
46. Although Mr Cheetham was asked questions about having visited the deceased's solicitor a short time after the death of the deceased, he was not asked any questions about having collected any Will made by the deceased in 2014 (other than the last Will of the deceased). He was only asked about picking up the deceased's "personal papers": T32.07 - T32.20. Nor was he asked any questions about his knowledge of the existence of any such Will.
47. One might have thought, if a subpoena had been issued, that there would be produced some documents that revealed the existence of such a Will made by the deceased, that it was no longer held, and that it had been collected by an identified person. No copy subpoena was tendered and no documents were produced.
48. In all the circumstances, I am not satisfied that there was a Will made by the deceased in which the Plaintiff was named as a beneficiary. (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
49. The Plaintiff was not being maintained, wholly or partly, by the deceased other than historically as a child. There is no suggestion that she was maintained by him at any time after her marriage in 1974. In fact, it would appear that she was financially independent of the deceased for about 40 years prior to his death. (l) whether any other person is liable to support the applicant
50. There is no person liable to support the Plaintiff. (She does, however, receive a pension, which is likely to continue to be paid to her.) (m) the character and conduct of the applicant before and after the date of the death of the deceased person
51. An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.
52. In Collicoat v McMillan, at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
53. I am satisfied that there is no relevant conduct of the Plaintiff before, or after, the death of the deceased. (n) the conduct of any other person before and after the date of the death of the deceased person
54. I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is the sole chosen object of the deceased's bounty. She is also the widow of the deceased. Her contribution to the welfare of the deceased, particularly during his declining years, cannot be forgotten. (o) any relevant Aboriginal or Torres Strait Islander customary law
55. This factor is not applicable. (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
56. The only other matter that I consider relevant is the age of the Defendant and the fact that she does not appear to have a familial support network in Australia. Nor does she appear to have any significant assets other than those that she has received by survivorship following the deceased's death.

Determination

1. Claims for a family provision order present particular difficulties where the actual and/or notional estate is modest and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.
2. Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. I have concluded that I am satisfied 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.
3. There is no dispute that the proceedings were commenced within the time prescribed by the Act.
4. The Plaintiff submitted that she is now 60 years of age; she has significant health problems and a need for provision; she has no private health cover, no superannuation and has little by way of savings. She is dependent on a disability support pension and has substantial debts (to her daughter). No provision was made for her under the Will of the deceased.
5. In his oral submissions, counsel for the Plaintiff said: "The Plaintiff was left nothing in the deceased's last will. So it is axiomatic that such provision as was made for her was inadequate."
6. In the Plaintiff's written submissions, counsel wrote: "Where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia [58]. … An estate of a value in excess of $800,000 is more than enough to provide for the plaintiff and enable her to lift herself out of her circumstances and still leave sufficient to comfortably accommodate the residual needs of Johanna as his widow."
7. The Defendant submitted that the deceased had no obligation to maintain the Plaintiff prior to his death. She pointed to the fact that the Plaintiff had been financially independent of the deceased for many years prior to his death, whereas she had been dependent upon him throughout their marriage. She also pointed out to the importance of freedom of testation, a matter which she stated was a prime motivating factor in the defence of the Plaintiff's proceedings. She submitted that the deceased's conduct in transmitting to her, as his wife, an interest as joint tenant in the real estate at The Entrance was also relevant as demonstrating his desire to make provision only for the Defendant.
8. However, it is to be noted that, whilst their marriage was not of short duration, this is not a case of a lifetime marriage, with the shared raising of children, and with a substantial contribution from the wife to the assets of both parties. Both came into the marriage later in life.
9. The fact that no bequest is made in the deceased's Will for the Plaintiff does not, of itself, bespeak inadequacy. But that is not all that the Court is required to consider. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant, and the claim of each on the bounty of the deceased, and the size of the estate and notional estate, are very relevant factors in determining the answer to the question whether it is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff.
10. The consideration of all of these matters leads me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of the Plaintiff. It follows that the Court has jurisdiction to make an order for provision out of the estate of the deceased for the Plaintiff.
11. I turn next to consider the nature and quantum of any provision that should be made. In my view, having regard to all of the matters that I am required to consider, including amongst other things, the size and nature of the deceased's actual estate and property that is available to be designated as notional estate, the totality of the relationship between the Plaintiff and the deceased, the relationship between the deceased and the Defendant, who has a very strong legitimate claim upon his bounty, I am of the view that the Plaintiff should receive a legacy of $25,000.
12. Whilst this amount will not enable her to discharge all of her debts and provide an additional large sum for exigencies, I note that her substantial creditor appears to be her daughter, Jodie. It will be for them to determine whether the amounts owed to Jodie are repaid. After payment of the credit card debt, she will have a modest sum to provide for exigencies.
13. On the question of whether to designate property as notional estate, I am satisfied that the deceased's actual estate is insufficient for the making of the family provision order, and the costs orders, that should be made: s 83(1)(a), s 88(b) and s 89.
14. Then, turning to the property to be so designated, even though the whole of the deceased's estate has been distributed, the Defendant submitted that "it would be reasonable to expect that a spouse of 15 years…would take over the ownership of the matrimonial house upon the death of the deceased". I respectfully agree. That conclusion is also supported by the fact that the Plaintiff has her own home which is unencumbered. There is no reason why the Defendant, as the widow of the deceased, should be placed in the circumstance where she is insecure in the accommodation in which she had lived throughout her marriage and where she continues to live. The substantial justice and merits involved lead to the Court refusing to make the order.
15. I would not be prepared to make any order designating the deceased's share in The Entrance property, which is now owned solely by the Defendant, as notional estate.
16. I turn next to whether any part of the amount held by the Defendant in bank, or on term deposit (about $174,500 in total) should be designated as notional estate in order to meet what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both: s 89(2) of the Act.
17. There is no evidence that the Defendant contributed in any way to the building up of the amount in the bank account. Indeed, the evidence is to the contrary. Nor is there any evidence about when the bank account was placed in the joint names of the deceased and the Defendant.
18. In my view, a consideration of the substantial justice and merits of the case, taken with what might be considered to be the reasonable expectation of the Defendant does not prevent a notional estate order being made for the lump sum and costs. In doing so, the Defendant will still have a reasonable sum left to provide for exigencies of life and an additional small income. When the time comes for her to move from The Entrance property, she will have the capital from the net proceeds of sale.
19. Bearing in mind what I have said above, regarding the Plaintiff's costs, calculated on the ordinary basis ($35,000), this means that it would be necessary to designate, as notional estate, an amount of $60,000. This is less than one half of the amount held in the joint bank account at the date of death as disclosed in the Inventory of Property.
20. To designate that amount as notional estate and order the payment of that amount from the notional estate would still leave the Defendant with security of accommodation and about $114,000, by way of capital, which she could use for exigencies of life and to provide an additional modest income to supplement the age pension that she receives.
21. I shall give the Defendant an opportunity to identify the appropriate bank account necessary to be designated as notional estate from which the burden of the order for provision and costs made by the Court will be borne. It may be necessary for her to identify the bank account that contains sufficient funds to enable the amount to be paid so that the amount may be designated as notional estate. The parties should be given an opportunity to make submissions with respect to the final orders. I shall deal with the precise form of orders as to the designation of property as notional estate after the parties have had an opportunity to consider these reasons.
22. No interest is to be paid on the lump sum of $60,000 (subject to any argument on the amount for costs), if it is paid within 28 days of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW) on unpaid legacies, is to be paid from that date until the date of payment.
23. For the assistance of the parties, the nature of the orders should include: 1. Being satisfied that the Plaintiff is an eligible person and that adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased, an order for provision of a lump sum in favour of the Plaintiff in the sum of $25,000. 2. A gross costs order for the Plaintiff's costs, of $35,000, to be paid out of the notional estate of the deceased (unless the Defendant submits to the contrary). 3. An order that the term deposit, or money in a bank account xxx xxx xxx standing to the credit of the Defendant, totalling [$60,000], be designated as notional estate of the deceased ("the notional estate"). 4. An order that interest shall accrue on that lump sum (at the rate for which s 84A of the Probate and Administration Act 1898 NSW provides) calculated from 28 days after the making of these orders and to the extent that the lump sum and costs are not earlier paid. 5. An order that the obligations for payment of a lump sum, and costs, for which these orders provide, be a charge on the notional estate of the deceased. 6. An order granting liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order and costs order made in favour of the Plaintiff. 7. An order that exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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: 10 May 2016