Nielsen v Kongspark - [2019] NSWSC 1821 - NSWSC 2019 case summary — Zoe

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Nielsen v Kongspark

[2019] NSWSC 1821

Supreme Court of NSW|2019-11-19|Before: Hallen J, Bryson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-11-19

Before

Hallen J, Bryson J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

abert-McKay [2010] NSWSC 859 Carey v Robson (No 2) [2009] NSWSC 1199 Cetojevic v Cetojevic [2006] NSWSC 431 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646 Charnock v Handley [2011] NSWSC 1408 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 Curnow v Curnow [2014] NSWSC 896 Davison v Staley (Supreme Court of New South Wales, Bryson J, 21 August 1986, unrep) de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Durham v Durham & Ors (2011) 80 NSWLR 335; [2011] NSWCA 62 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kay v Archbold [2008] NSWSC 254 Kearns v Ellis (NSW Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) Keep v Bourke [2012] NSWCA 64 Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 Kohari v Snow [2013] NSWSC 452 Lemon v Mead [2017] WASCA 215 Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McGrath v Eves [2005] NSWSC 1006 Moore v Randall [2012] NSWSC 184 Palagiano v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Poletti v Jones [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Dennis (Deceased) [1981] 2 All ER 140 Re Salmon, Deceased [1981] Ch 167 at 175 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473 Shannon & Anor v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Dayman [1994] NSWCA 286 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Soens v Rathborne [2018] NSWSC 302 Steinmetz v Shannon [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stone v Stone [2016] NSWSC 605 Strang v Steiner [2019] NSWCA 143 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Vaughan v Curran [2019] NSWSC 1562 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Wheat v Wisbey [2013] NSWSC 537 White v Barron (1980) 144 CLR 431 Williamson v Williamson [2011] NSWSC 228 Yee v Yee [2017] NSWCA 305 Texts Cited: Heydon and Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths) New South Wales Government Gazette, No 38, 20 February 2009 New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision (May 2005) R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 10 R Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263 Category: Principal judgment Parties: Ole Nielsen (Plaintiff) John Kongspark (Defendant) Representation: Counsel: Ms S Clemmett (Plaintiff) Mr A F Stevens (Defendant)

[3]

Introduction

HIS HONOUR: The Court is concerned, yet again, with a family dispute between siblings regarding, in this case, the disposition of the estate and notional estate, initially, of both of their deceased parents. The case provides another example of the high level of emotion that is generated in relation to the distribution of the property of a deceased parent or parents. The raw level of emotion, particularly in the case of the Plaintiff, was palpable during the course of the proceedings and even during submissions.
Like almost all of the family provision cases that are now being heard involving mature adult children seeking provision, or additional provision, out of the estate of a parent, the major issues revolve, principally, around the character and conduct of the applicant, his or her relationship with the deceased, the deceased's views of the relationship, and the relationship of the deceased with one, or more, of the beneficiaries named in the last Will of the deceased.
Despite various opportunities given to the parties to resolve the proceedings, they did not do so, and instead conducted the proceedings, the hearing of which lasted 2 days, at a combined estimated cost (calculated on the indemnity basis) of about $150,000.
The Plaintiff, Ole Harding Nielsen, and the Defendant, John Harding Kongspark, are the only, now adult, children of Knud Harding Kongspark ("the father") and Alice Evelyn Kongspark ("the mother").
(The Plaintiff's birth name was Ole Harding Nielsen but his parents changed their surname to "Kongspark". By Statutory Declaration dated 24 January 1997, the Plaintiff changed his surname back to "Nielsen" and he has been known by that surname since then.)
The father died, intestate, on 29 June 2009. As will be read, his actual estate, under the operation of the rules of intestacy, passed to the mother. (I shall refer to his interest, as a joint tenant, in certain real estate, which passed by survivorship to the mother and the Defendant, later in these reasons.)
The mother died on 14 September 2017. She left a duly executed Will, dated 28 February 2012, in which she left the whole of her estate to the Defendant absolutely. (I shall refer to her interest, as a joint tenant, in the real estate, which passed by survivorship to the Defendant later in these reasons.)

[4]

The Claim

The Plaintiff, by Summons filed on 9 October 2018, made a claim for a family provision order out of the estate and/or notional estate of each of the father and the mother, pursuant to the Succession Act 2006 (NSW) ("the Act").
Following the short adjournment on the first day of the hearing of the proceedings, counsel for the Plaintiff, Ms S Clemmett, stated that the Plaintiff did not wish to maintain his claim in respect of the father's estate. Naturally, other than seeking costs thrown away, counsel for the Defendant, Mr A F Stevens, stated that there was no objection to this part of the Plaintiff's claim not proceeding. Thus, it will only be necessary, hereafter, to refer to the estate and notional estate of the mother, although some facts in relation to the estate and notional estate of the father will need to be included in these reasons.
The Family Provision Act 1982 (NSW) ("the former Act") was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). However, under clause 11(2) of Schedule 1 of the Act, the provisions of the former Act "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part." That clause commenced on 1 March 2009: s 2(1) Succession Amendment (Family Provision) Act 2008 and New South Wales Government Gazette, No 38, 20 February 2009 at 1036. (In this case, there is no dispute that both the father and the mother died after 1 March 2009.)
A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.
In the present case, a further issue is whether the Plaintiff's application in respect of the mother's estate should be permitted to be made since it was not commenced within the time permitted by the Act (12 months from the date of the death): s 58(2) of the Act. An application to extend the time for the making of the claim has been made by the Plaintiff.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). A notional estate order is an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person" (s 3 of the Act). 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 of the Act.
It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as 'notional estate' thereby compelling the 'disponee' of a 'prescribed transaction' to provide money, or property, for the purpose of making financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441.
The parties agreed that if the Plaintiff is successful, there would be a need to be property designated as notional estate of the mother, as there are no assets, of sufficient value, in the actual estate of the mother, to satisfy the making of the family provision order, and any order as to costs, that the Court is of the opinion should be made: s 88(b) of the Act.
The concession referred to did not extend to agreeing that the Court should make a notional estate order. Indeed, for reasons to which I shall come, whether any notional estate order should be made was a matter of significant contest in the proceedings.

[5]

Some formal matters

There has not been a grant of administration in respect of the testate estate of the mother.
It is unnecessary to consider the father's estate as the whole of his estate has been distributed. It is, however, necessary to consider whether any grant of administration is necessary in respect of the estate of the mother.
In Wheat v Wisbey [2013] NSWSC 537, I discussed whether it was necessary for there to be a grant of administration in an estate, before an application for a family provision order can be dealt with. I also concluded that a grant of administration is not required at the time an application for a family provision order is made. I referred to s 58(1) of the Act which specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
I shall not repeat all that I wrote in Wheat v Wisbey. I referred to s 91 of the Act, and to the "rare" case in which there is only property that may be designated as notional estate. This is one such case. I concluded, at [57]-[59], that: "In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted: (a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91. (b) In any other case, where there is no such real or personal estate, if: (i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings; (ii) a family provision order and a costs order is made in favour of the applicant; (iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or 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 out of the notional estate of the deceased person; (iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision order; and (v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b), then, it may not be 'proper' to make a s 91 grant. In stating my view, there is much to be said for the view expressed by Young J in Re Estate Harriett Cassel [2000] NSWSC 294, although in that case, he was speaking of the former Act: '[8] The grant under s 41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act. [9] Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Pt 8 r16, or some other rule under Pt 8. [10] All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate.'"
I have repeated these views in a number of cases, including Curnow v Curnow [2014] NSWSC 896, and, most recently, in Soens v Rathborne [2018] NSWSC 302.
In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131], the plurality of the High Court accepted the submission that "where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined".
In Smith v Dayman [1994] NSWCA 286, Handley JA had earlier remarked that "[a] court could not, ordinarily, make orders designating property as notional estate without the owners being parties to the proceedings". Both of these decisions were recently referred to by Gleeson JA (with whom Simpson JA agreed) in Yee v Yee [2017] NSWCA 305, at [196]-[198].
The Defendant is now entitled to be registered as the sole proprietor of real estate, situated at Wyee Point, a far southern suburb of the City of Lake Macquarie, in New South Wales ("the Wyee Point property"), the interest, as a joint tenant, of the mother, at the date of her death, which is sought to be designated as notional estate. The failure to sever an interest as a joint tenant may be a "relevant property transaction": s 76(2)(b) of the Act. There was really no dispute about this.
The Defendant appeared by counsel at the hearing and has otherwise participated in the proceedings since its commencement. In the circumstances of this case, there is no need for an order under s 91 of the Act as the Defendant is a party/Defendant and if an order designating property as notional estate is made, he will be required to satisfy that order. If a problem arises in him doing so, the court can make consequential and ancillary orders for the purpose of giving effect to the family provision order: s 66(1) of the Act.
As stated, the Plaintiff commenced the proceedings 1 year and 3 weeks after the mother's death, in other words three weeks after the expiration of the time prescribed by the Act. He found out about the death of the mother a few days after the expiration of the period prescribed by the Act and the proceedings were commenced very promptly thereafter. It is not suggested that the Plaintiff had found out earlier than the time he had revealed in his evidence.
The Plaintiff seeks an order that the time for the making of his application be extended to the date of the filing of his Summons, pursuant to s 58(2) of the Act. As the consent of the Defendant was not given, the Plaintiff will have to satisfy the Court that there is "sufficient cause" for the application being made out of time.
Section 57 of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. There is no dispute that the Plaintiff, as a child of the mother, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
The only other person who is an eligible person, within the meaning of that term in the Act, is the Defendant. The Act, in s 61, provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of, whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate) but who has not made an application. Even though the Defendant has not commenced proceedings under the Act, he has given evidence of the bases of his claim on the bounty of the deceased, as the only beneficiary named in the mother's Will, and otherwise. He has raised his financial circumstances. As is now clear from its terms, the section is not directed towards enabling the court to disregard the claims of those to whom a deceased may have had an obligation which obligation had been adequately discharged by the provision made for that person in the deceased's will.
The Defendant has also raised matters going to whether a notional estate order should be made. He was cross-examined.

[6]

Background Facts

It is impossible to reach clear findings of facts in all of the areas of dispute. Nor is it necessary to trawl through all of the detail of the affidavits filed. It is difficult, if not impossible, to reconcile the contradictory expressions of fact and opinion which the affidavits reveal. I have endeavoured to recite findings of fact, some of which are not contested, and some of which I find on the balance of probabilities. Other facts are identified as being in issue between the parties.
The father was born in Copenhagen, Denmark, in September 1920. He died in 2009, at the age of 87 years. The Plaintiff was not informed of the father's death until early 2012, in circumstances to which I shall come.
The mother was born in Copenhagen, Denmark, in April 1922. She died in 2017, at the age of 94 years. It was accepted that the Plaintiff was not informed of the mother's death until about mid-September 2018, in circumstances to which I shall come: Tcpt, 18 November 2019, p 2(10-23). The father and the mother were married in about 1945. There were two children of the marriage, being the Defendant, who was born in Copenhagen, in August 1947, and the Plaintiff, who was also born there, in June 1951.
The family came to Australia in September 1956.
In July 1958, the father and the mother purchased, as joint tenants, a property situated at Carina Road, Turramurra ("the Turramurra property"). The father built the home on this property in which the family lived for some years.
Each of the Plaintiff and the Defendant, as soon as he found work whilst he was living with his parents, paid board, respectively, to them. (Although the Plaintiff asserted that the Defendant did not do so, I do not accept his evidence on this topic.)
In 1967, the Plaintiff moved out of the Turramurra property. He moved back there in 1969 for a short period of time.
In about 1969, the Plaintiff met Georgena Hamilton Simpson, with whom he was in a de facto relationship, subsequently, for about 40 years. Their relationship is said to have ended in about October 2013, although, at the time of the hearing, they remain living under the one roof, with one of their children, in a home said to be owned by two of their other children.
Ms Simpson was a witness in the proceedings. She, too, was cross-examined. I shall return to some of her evidence later in these reasons.
The Plaintiff and Ms Simpson have three children, namely Adam Kongspark, who was born in February 1973, Michelle Kongspark, who was born in July 1984, and Andrew Nielsen, who was born in June 1985. Only Andrew was to be a witness in the proceedings. He lives with the Plaintiff and Ms Simpson in a 4 bedroom home that he and his sister, Michelle, are said to own, in Mowbray, Tasmania. The three members of the household share equally the living expenses of the household: Tcpt, 18 November 2019, p 35(29-43).
Andrew's affidavit, which had been served shortly before the hearing, was not read, as he was not available for cross-examination. However, as a person with whom the Plaintiff was co-habiting, there was tendered some documentary evidence, to which I shall refer, going to his financial circumstances.
In 1995, the father and the Defendant purchased, as joint tenants, a property at Blue Haven, a suburb on the Central Coast of New South Wales ("the Blue Haven property"). The purchase price was $162,250. The Blue Haven property was unencumbered following its purchase. The Defendant said that he paid about $80,000 towards the purchase price of the Blue Haven property, with the father paying the balance thereof together with the stamp duty and the legal costs of purchase. I shall return to this assertion as whether he did so was an issue in the proceedings.
The Defendant stated that at the time of the purchase of the Blue Haven property, the solicitor acting for his parents and him, one Mr Higgins, explained to the three purchasers, the effect of purchasing the property as joint tenants. The evidence was not objected to and the Defendant was not cross-examined on the conversation to which he had referred.
Initially, the Blue Haven property was used as a weekender, which the father, the mother and the Defendant, visited. They moved into the Blue Haven property, on a full-time basis, in about September 2000.
In about September 2000, the father and the mother sold the Turramurra property for $480,000.
In August 2001, the father, the mother, and the Defendant, purchased the Wyee Point property, as joint tenants. The purchase price was $480,000. The Defendant says that the purchase price was paid as to one half, by his parents, and as to the other half, by him. I shall return to this assertion as whether he did so was an issue in the proceedings.
In 2002, the father and the Defendant sold the Blue Haven property for $280,000. The Defendant said that his one half share of the net proceeds of sale was paid to the father to reimburse him for his contribution to the purchase of the Wyee Point property, the title to which had been registered in the name of the father, the mother, and the Defendant.
The Defendant has not lodged, with the NSW Land Registry, a notice of death and transmission application in respect of either the father's interest, or the mother's interest, respectively, in the Wyee Point property: Tcpt, 18 November 2019, p 2(48) - p 3(4). There was no dispute that he is now entitled to be registered as the sole proprietor of that property: Tcpt, 18 November 2019, p 3(10-24).
The Defendant stated, in his affidavit made 14 March 2019, at par 15, that "I have lived with my parents for all of my life except when I went to Cessnock to do my pilot training with NASA when I spent 1 - 2 years living at the academy".

[7]

The nature and value of the father's estate and notional estate

The parties, in accordance with directions made, provided a Schedule of Property ("the Joint Schedule"), which was marked as Ex. JS1, from which the following values have been taken. In what follows, I have omitted the reference to cents.
It is necessary, first, to say something about the father's estate and notional estate, even though the Plaintiff's claim for provision out of that estate and notional estate did not proceed.
As there was no application for a grant of administration of the father's estate, there was no Inventory of Property, contemporaneous, or near contemporaneous, with the father's death, that was filed, which Inventory of Property disclosed the nature and value of the father's assets and liabilities at that time.
The Defendant, however, disclosed that the father's actual estate, at the time of his death, consisted of cash ($10,000), a car ($15,000), a second car ($2,000), and furniture and personal effects ($5,000). There were funeral expenses of about $5,500. It follows that the distributable actual estate of the father was about $26,500.
Section 61B of the Probate and Administration Act 1898 (NSW), which section has since been repealed, applied at the date of the father's death in 2009 because Chapter 4 of the Act did not come into operation until 1 March 2010. By s 61B(3), since the value of the estate (excluding any household chattels) did not exceed the prescribed amount, the whole estate was held in trust for the mother and, subsequently, was distributed to her. The value of the father's estate was, thus, negligible.
The father's interest in the Wyee Point property passed, by survivorship, to the mother and to the Defendant. After the father's death, the mother and the Defendant were entitled to be registered as joint tenants. However, title to the Wyee Point property remained, and even now, remains, registered in the three names as joint tenants.
There is no evidence of the value of the Wyee property at the time of the father's death in 2009, and the Defendant did not disclose in his first affidavit, the father's interest, as joint tenant, in the Wyee property, as property that could be designated as the father's notional estate. However, counsel for the Defendant, in his written outline of submissions, accepted that the father's interest in the Wyee Point property passed to the mother and to the Defendant by survivorship and that the father's interest in the Wyee Point property at the date of his death, was, notionally, a one third interest.
In the Joint Schedule (Ex. JS1), no mention was made of the father's interest in the Wyee Point property at the date of his death either. However, the parties agreed that, after payment of the liabilities (including $550 for the Notice of Death forms), the estimated gross value of the Wyee Point property that could have been designated as notional estate was $337,283. (Of this amount, the value of the one third interest in the Wyee Point property was estimated to be $333,333.)
It might be said, therefore, that the mother and the Defendant, as a result of the father's death, each received an interest in property with a value of $166,666.

[8]

The nature and value of the mother's estate and notional estate

Similarly, there was no application for a grant of Probate of the mother's Will. Thus, there was no Inventory of Property contemporaneous, or near contemporaneous, with the mother's death, that was filed, which disclosed the nature and value of the mother's assets and liabilities at that time.
In his first affidavit, the Defendant disclosed that the mother's actual estate consisted of cash ($889), a car ($5,000) and furniture and personal effects ($5,000). There were funeral expenses of $7,383, which the Defendant has paid out of his own funds. It follows that the value of the actual distributable estate of the mother was about $3,500. It, too, was of negligible value.
Under the terms of the mother's Will, the whole of her estate passed to the Defendant. The whole of the actual estate appears to have been distributed to the Defendant although he has paid some expenses associated with her estate.
The mother's interest in the Wyee Point property passed, by survivorship, to the Defendant. He acknowledged that the mother's interest, as joint tenant, in the Wyee Point property, could be "considered notional estate". Counsel for the Defendant, in his written outline of submissions, accepted that her notional interest in the Wyee Point property, at the date of her death, was a one half interest. At the date of her death, the estimated total value of the Wyee Point property was $912,000. The parties agreed that, at the date of her death, the gross one half value of the mother's notional interest in the Wyee Point property was $456,000.
The parties also agreed that, at the date of hearing, the total value of the Wyee Point property was $1,000,000. They agreed, then, that the gross one half notional interest of the mother, in the Wyee Point property, was $500,000, and as the assets had been distributed to the Defendant, the value of the car ($5,000), and the furniture and personal effects ($5,000) should be added to that estimated value. The parties then deducted the mother's funeral expenses ($7,933), leaving property that could be designated as notional estate with a gross value of $502,066. This amount is the maximum value of the property that could be designated as notional estate (without taking into account any costs of the proceedings), although the Court must not designate, as notional estate, property that exceeds that 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.
It was not in dispute that if an order for provision, or for costs, were made, then it would be necessary for the Defendant to sell the Wyee Point property. The estimated costs and expenses of sale of the mother's interest in the property were estimated to be $16,250.
It follows that, after deducting the relevant share of the costs and expenses of the sale of the Wyee Point property, the maximum value of the property that could be designated as notional estate of the mother out of which an order for provision could be made, is $485,816. This estimate does not take into account any costs and disbursements of the proceedings.
Unsurprisingly, the Defendant stated that he does not seek any commission, or percentage, for his pains and trouble, as is just and reasonable, out of the estate of the mother, pursuant to s 86 Probate and Administration Act.

[9]

The Costs of the proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3 of the Act, in relation to the estate and notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate or notional estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate and/or notional estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate and/or notional estate. The size of the deceased's estate and notional estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate or notional estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order.
Ms L Gidley, the solicitor on the record for the Plaintiff, estimated the Plaintiff's costs and disbursements, calculated on the indemnity basis, which will be incurred by the Plaintiff to the completion of the hearing (based on an estimated of a two day hearing) inclusive of GST are $72,069. Those costs and disbursements, calculated on the ordinary basis, were estimated to be $54,957. The Plaintiff has not paid any of his legal costs and disbursements.
(Of the total of the indemnity costs, the amount of $30,966 is the estimated costs and disbursements payable to Ms Gidley's firm, which has acted for the Plaintiff from 11 September 2019. The balance is made up of costs and disbursements payable to two firms of solicitors who previously acted for the Plaintiff, namely Turnbull Hill Lawyers ($24,183), which firm acted for the Plaintiff from 21 September 2018 until 8 February 2019, and Charter Law Legal ($15,540 and $1,379 for the assessment of their costs), which acted for the Plaintiff between 13 March 2019 and 11 April 2019.)
On 1 October 2019, Charter Law Legal obtained a judgment for $17,203 against the Plaintiff for the outstanding legal fees. The Plaintiff was served with a Bankruptcy Notice on 22 October 2019 requiring payment of the judgment debt within 21 days after service on him of the Bankruptcy Notice.
Ms Gidley stated that none of the solicitors who had acted for the Plaintiff had, or has, entered into a conditional costs agreement with the Plaintiff. (Section 181 of the Legal Profession Uniform Law (NSW) deals with "conditional costs agreements" and states that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Section 182 provides that a conditional costs agreement may provide for the payment of an uplift fee.)
Counsel for the Defendant, in his written Outline of Submissions, stated that "[c]osts will need to be dealt by way of a separate hearing. If the Plaintiff is successful, given the size of the estate, consideration will need to be given to a gross sum cost order in respect of the Plaintiff's costs."
There can be no doubt that the Court has power to depart from the usual order for costs to be assessed to make an order, under s 98(4) of the Civil Procedure Act 2005 (NSW) for a specified gross sum, instead of assessed costs. The power may be exercised when, for example, it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment.
The Court also has power to cap the Plaintiff's costs of the proceedings: see par 24 of Practice Note SC Eq 7 and s 98(4) of the Civil Procedure Act.
Mr W H Allan, the Defendant's solicitor, estimated the Defendant's costs and disbursements, calculated on the indemnity basis, of the proceedings, to be $80,000. (Those costs and disbursements calculated on the ordinary basis were $66,000.) Mr Allan stated that the Defendant has not entered into a conditional costs agreement with the firm of solicitors acting for him.
The Defendant, personally, has paid $3,877 of the costs and disbursements.
Mr Allan also made the following disclosure in his affidavit sworn on 15 November 2019: "4. In the event that the defendant is not required to sell his home as a result of the outcome of these proceedings, I am prepared and have agreed with the defendant that any professional costs he owes to my firm will be paid: a. firstly, from any personal assets he has; and b. secondly, by way of a payment plan over time. 5. I will not take any steps to require the defendant to sell his home or obtain any finance over the home to pay the professional legal costs but rather I will allow him to pay off the profession [sic] costs over time. 6. I have explained to the defendant he will be required to immediately pay, irrespective of the outcome of his case, counsel fees and disbursements that have been incurred on estimated to be $23,000 inclusive of GST."
During oral submissions, counsel submitted that apart from the possibility of the Defendant seeking a gross sum costs order, the Court could not determine how costs should be borne, as there are, or may be, documents that could be relevant to this question. Regrettably, whatever the result of the proceedings, unless the parties are able to agree, it will be necessary to set the matter down for a costs argument following the delivery of these reasons for judgment.

[11]

The Witnesses

The Plaintiff, Ms Simpson, and the Defendant were the only witnesses who were cross-examined. It is necessary to say something about the credibility of each.
I was not impressed with the evidence of the Plaintiff, who made clear his intense dislike of the Defendant, and who was prepared, gratuitously, and with little hesitation, to make a number of derogatory remarks, and otherwise cast aspersions about him, such as him being "a …greedy old man sitting over there. He can't even look me in the eye": Tcpt, 18 November 2019, p 44(11-19); "my brother … is a nut and he's got barbed wire everywhere": Tcpt, 18 November 2019, p 47(42-46); "…he starts going on like some maniac like he does": Tcpt, 18 November 2019, p 48(7-11).
Importantly, the Plaintiff asserted that it was all "totally" the Defendant's fault that he had not had any contact with the mother for many years prior to her death. Indeed, the Plaintiff stated that he had no responsibility at all for the lack of contact between him and her: Tcpt, 18 November 2019, p 48(13-18). The result, so it was asserted, was the Plaintiff's attribution of the lack of contact with the mother, to be entirely due to the Defendant's manipulation of her.
The Plaintiff's evidence provides a reliable window into the state of mind of the Plaintiff and reveals that he was not prepared to face, let alone to take, at least some of the responsibility for the mother's expressed attitude that she wished to have nothing to do with him. Whilst I think his belief is subjectively genuine, and entrenched, I do not accept it as according with reality.
The Plaintiff was also referred to the statement in the Guardianship Tribunal's Reasons for Decision, to the effect that the mother believed that the Plaintiff had treated her, her husband, and the Defendant, "badly". Whilst he did not expressly deny the assertion, which I accept was made by the mother to the Guardianship Tribunal, his responses were "Well what can I do. People can say what they like"; that he had "[n]ever done anything wrong by my mother"; and that "I have a clear conscience": Tcpt, 18 November 2019, p 54(16-36).
The Plaintiff stringently maintained his position, later acknowledging having seen a copy of the letter dated 1 June 2012, from the Defendant's solicitor, to his solicitor, which stated that the mother "was quite adamant in instructing us she wished to have absolutely no contact" with him. I have no reason to doubt the instructions recorded in the letter came from the mother. However, when asked about the statement of the mother's wish, he said "we don't know what state of mind she had": Tcpt, 18 November 2019, p 53(37-39). One might think, that the passage quoted made her state of mind clear.
It did not seem to occur to the Plaintiff, or if it did, he was not prepared to accept, that his previous conduct towards other members of his family may have provided the basis for the mother expressing the views that she did. It is hard to have any confidence in the Plaintiff's protestations about his prior behaviour and his attribution of blame only to the Defendant.
The Plaintiff expressed his views very definitely, and unequivocally. His lack of insight, in my opinion, colours the reliability of some of his evidence, particularly about his relationship with the mother. Even during submissions, he expressed, audibly, his exasperation at the Court raising some matters about his conduct with his counsel, who, I might say, engaged with the Court in a professional and courteous manner, clearly understanding the purpose of the discussion and the need to respond to the concerns of the Court.
There was also other evidence which makes it clear that the Plaintiff clearly harboured deep resentment towards the Defendant because of feelings that the father and the mother had shown the Defendant favouritism, during the parents' lifetimes, and even after the death of each.
I do not accept, as an adequate reason for the Plaintiff's failure to contact the mother, that he did not want to see, or speak with, the Defendant. He seemed to have no difficulty with the Defendant within the confines of the Court and it was the Plaintiff who aimed the barbs at the Defendant to which I have referred.
I also formed the view that the Plaintiff was extremely emotional about the terms of the mother's Will and sought, by these proceedings, to be "recognised" as a child of both of his parents: Tcpt, 18 November 2019, p 48(29-36).
Whilst in New Zealand, it has been said that "[A] child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased" (see Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289, at [52]), the Act, in New South Wales, does not expressly refer to such a consideration.
However, by requiring the applicant to prove that he, or she, is an eligible person, in this case a child of the deceased person, there is the recognition of the relationship. It may also recognise the relationship, as will be read, in s 60(2)(a), (b), (h), and (m), to which sub-sections I shall refer later in these reasons.
Furthermore, the word "support" referred to in the similar New Zealand legislation (the Family Protection Act 1955 (NZ)), does not find its way into the Act. To include "recognition", on its own, in the Court's consideration, as the basis for provision, does not take into account the respective needs and contributions of other competing claimants, and could exclude claims by a person with a greater claim on the bounty of the deceased.
In this case, also, the relationship of the Plaintiff and the mother is said to have become non-existent by the time she died. The lack of contact between the Plaintiff and the mother during the years before her death is a matter to be taken into account.
The Plaintiff also said that he would like an order for provision by way of a lump sum out of the notional estate of the mother, to enable provision to be made for his own children: Tcpt, 18 November 2019, p 33(23-34). This ground suggests that provision is not being sought, entirely, for his own maintenance or advancement in life, but rather, at least in part, for the benefit of his children. Whilst "actual and potential burdens on the financial resources of an applicant … including those for which there was only a moral and not a legal responsibility, could be material circumstances in considering an applicant's claim": Kleinig v Neal (No 2) [1981] 2 NSWLR 532, in circumstances where only one of the children continues to live with the Plaintiff, and where there is no evidence that the other children require assistance, it is difficult to see the relevance of the basis of the Plaintiff's claim on this ground.
Other written evidence, served as recently as October 2019, stated that the Plaintiff wished to purchase accommodation for himself "so that I am no longer a burden upon my children". His evidence on this topic included that such accommodation would cost between about $349,000 and $395,000. He also claimed he needed a fund to purchase electrical appliances ($10,000 to $15,000), an amount to discharge his liabilities, which, in total were said to amount to $49,006 (which are for the legal costs and disbursements incurred in these proceedings), and the costs of having dental work done (the amount claimed was not read, an objection to the evidence having been made).
On the topic of debts, the Plaintiff gave evidence that Ms Simpson had lent him $5,000, which amount he had not repaid, in order to enable him to pay for a container to ship his goods to Denmark, when, in about 2013 or 2014, he had the intention to move there. However, that alleged debt had not been included in the "liabilities" of $49,006 referred to above.
Provision of the amounts claimed as "needs", by order of the court, would result in all of the value of the property that might be designated as notional estate of the mother being paid to him, leaving nothing for the Defendant out of the deceased's interest in that property. This also seems to demonstrate the Plaintiff's own unjustified, and unrealistic, sense of entitlement to a share of the mother's estate.
The Plaintiff disputed that he had received a copy of the Guardianship Tribunal Reasons for Decision dated 12 March 2012. Indeed, he denied he had seen a copy of the reasons (Tcpt, 18 November 2019, p 40(39-43)), despite the fact that a copy had been annexed to his first affidavit. When this was pointed out to him, he said that he had probably not read the affidavit before he signed it: Tcpt, 18 November 2019, p 41(14-17). Subsequently, in answer to questions from the Bench, he seemed to accept that he did receive a copy saying "we must have": Tcpt, 18 November 2019, p 49(41-48).
His evidence, on this topic, was not persuasive, and I do not accept that he did not receive a copy of the Guardianship Tribunal Reasons for Decision. To the contrary, I am satisfied that he did. In this way, he must have read about the mother's state of mind.
The Plaintiff acknowledged that one of the reasons he had made the application for the appointment of a financial manager was because he did not know what plans the Defendant had about their parents' estate. This, in my view, was not a legitimate reason for making the application for a financial manager, particularly when he had no knowledge of the mental state of the mother at the time the application was made. The making of the application, on that basis, in my view, demonstrated a lack of consideration of the effect upon the mother that the receipt of such an application might have.
Another aspect of the Plaintiff's evidence that goes to his conduct towards the mother relates to requesting the Police to attend at the Wyee Point property at different times, after the Guardianship Tribunal proceedings, knowing that the Tribunal had been satisfied that she did not lack capacity.
The attendances of the Police were, as the Defendant wrote, extremely distressing to the mother. Again, the Plaintiff did not seem to have considered the effect of doing what he did.
Naturally, the Plaintiff maintained that the steps he took demonstrated a concern for the welfare of the mother and this conduct should be taken into account, in a positive, rather than in a negative, way, in determining his proceedings. There might have been some merit in this submission, but there was no satisfactory explanation for him not having attempted to visit the mother at any time after he returned to live in New South Wales (if necessary at the time of the Police attendances which he had orchestrated). Once again, he blamed the conduct of the Defendant, but he did not provide any evidence to substantiate the assertion.
I have taken into account the attempts said to have been taken in order to resurrect his relationship with the mother. However, in doing so, I also take into account the effect of what he did to an elderly person who, so far as can be seen, was not a person who required a guardian, or a financial manager, and who appeared to be content to rely upon the Defendant.
Following from the last paragraph, there is another aspect of the Plaintiff's evidence that does not assist him on this topic. It is clear that Ms Simpson played a significant role in the steps taken, with third parties, as referred to above.
No evidence was given by Ms Simpson of how otherwise she had "tried to assist [the Plaintiff] with a reconciliation with his parents and that all mechanisms that you have tried [were] unsuccessful". There is no evidence of any steps taken by her to attempt to repair the fractured relationship that existed between the mother and the Plaintiff by any communication directly with the mother.
Turning then to Ms Simpson, I was also not overly impressed with some of her evidence in the witness box. She too, in my view, held a degree of animosity towards the Defendant and endeavoured to justify the application of the Plaintiff and his conduct towards the deceased.
Importantly, whilst she acknowledged her obligation to give truthful evidence, there was one aspect of the facts, that was mentioned during the cross-examination of the Plaintiff (at Tcpt, 18 November 2019, p 32(43) - p 33(21)), that had been omitted, completely, from her affidavit, namely that she, herself, had previously commenced proceedings for a family provision order in 2013, in this Court, in which proceedings she sought greater provision than that made for her by the Will of her mother, Wilhelmina Hamilton Simpson. Those proceedings had been resolved by orders of the Court made on 4 July 2013, at a court-annexed mediation. Pursuant to those orders, Ms Simpson had received a greater share of her mother's estate: Ex. JS2. The share (25 per cent of the residuary estate) that she received, after the payment of costs, equated to $234,000: Tcpt, 18 November 2019, p 59(3-4).
She also gave oral evidence, not previously disclosed, that she had used part of the amount received to purchase the property, in the names of her two children, in which the Plaintiff, she, and Andrew, have lived since early 2014. The amount that she said she had contributed was $120,000: Tcpt, 18 November 2019, p 68(33-36). She did not disclose what she had done with the balance.
Ms Simpson sought to explain the omission by stating that she had not been asked about these matters by the Plaintiff's legal representatives. I do not accept her evidence in circumstances where she had stated in her affidavit (as had the Plaintiff): "I currently live in a house owned by my son, Andrew, and my daughter, Michelle."
The clear impression sought to be created by her evidence was that she did not have any interest in the house that was owned by two of her children.
This impression sought to have been created is made even more likely as Ms Simpson appears to have been given some advice about the effect of having contributed, in this way, to the purchase price of the house, in circumstances where she had not intended to make a gift of the amount to Andrew and Michelle. She referred to "a trust situation": Tcpt, 18 November 2019, p 60(8-16), but then tried to suggest that she was talking about her "trusting that everybody is going to be nice to each other".
I do not accept her evidence about this topic. In my view, what she had earlier referred to, and about what she was likely to have been given advice, was the concept of a resulting trust, and a beneficial interest that she might have in the house in which she and the Plaintiff lived. That is the "trust situation" to which I consider she was referring.
Some caution is also required in relation to the Defendant's evidence. My concern regarding his evidence relates to the assertion that he contributed equally to the purchase price of the Blue Haven property and to the purchase price of the Wyee Point property.
His evidence in cross-examination was somewhat different to his written evidence. In his affidavit made 14 March 2019, he averred: "35. In or about 1995 my father and I bought a property at [XXX] Blue Haven as Joint Tenants, for around $162,000. My father put in half of the money and I contributed half of the money from my savings I had accumulated from my various jobs. We each paid about $80,000 and my father took care of paying the lawyers and stamp duty. We never had a mortgage over this property. … 42. on the 3rd of August 2001 my parents and I purchased a property at [XXX] Wyee Point NSW as Joint Tenants for $480,000. The money to purchase Larapinta was contributed equally with half from my parents and half from myself. I used the proceeds from my share of the sale of Blue Haven which was sold in 2002 and received $263,000 I ended up with around $125,000 I had accumulated over the years from working. I paid about $245,000 towards the purchase and my parents paid the balance including stamp duty and legal costs."
However, in cross-examination, he stated at Tcpt, 19 November 2019, p 92(39) - p 93(45): "Q. Then the Blue Haven property was sold for $263,000? A. That's correct. Q. The transfer was stamped on 18 July 2002. A. That's right. Q. So the Blue Haven property didn't sell until the year after you'd bought the Larapinta Drive property, did it? A. That's correct. Q. So you couldn't have used funds from Blue Haven to buy the Larapinta Drive property? A. No, but see, again, my father covered me for that until the funds were available. Q. You didn't say that in your affidavit though did you? A. Well I should have, but that's because that's on, on further reflection, that's the way it was. You don't always remember everything, but I put down things as truly and as honestly as I could, but that's what happened. Obviously I couldn't pay for it so he, he covered me for that, for that amount of money, and later on when the property was sold then, then he was paid that money back. Q. But in your affidavit, all you say is that you used the proceeds of sale from Blue Haven-- A. Yeah. Q. --to buy the Larapinta Drive property? A. Well that's, that's basically what it is, yes. Q. Your parents' property at Turramurra sold for $480,000 as well? A. That's right. Q. About a year before the purchase of the Larapinta Drive property, didn't it? A. That's right, yeah. Q. It's correct, isn't it, that your parents in fact used the money from the sale of the Turramurra property to buy the Larapinta Drive property? A. Well of course they would have used, they would have used some of the money for it, yes of course. Q. That was the source of the funds for that purchase wasn't it? A. No, I paid half of it. Q. But you didn't have half at the time? A. No, but yeah okay, if you want to look at it that way, they, they probably paid, paid most of the money in the beginning until I could pay them back for that amount I was paying in as half. Q. Is it the case that in these proceedings you've tried to talk up the amount you've contributed to the purchases of the properties-- A. No, no, not at all. Q. --because you think it would put you in a better position-- A. No, not at all. Q. --for these proceedings? A. No.
Having read all of the evidence, I do not think that the Defendant paid one half of the purchase price of each property, although I do not accept the Plaintiff's submission, that the Defendant had not contributed at all. I tend to the view that he probably contributed his share of the costs of the purchase of the Wyee Point property by repaying the father from his share the proceeds of the Blue Haven property. He may have also made some contribution to the purchase price of the Blue Haven property, but how much is difficult to determine.
Whatever the true position, there can be little doubt, that the Defendant made a far greater financial contribution than did the Plaintiff, to the purchase of either property.

[12]

The relationship of the parties with each of his parents

The relationship of each of the parties with the deceased is, of course, an important consideration in the determination of the claims made by the Plaintiff. As will be read, the Act specifically provides for consideration of "the character and conduct of the applicant" and "the conduct of any other person". (Although the reference to conduct does not expressly refer to the conduct of the deceased, "that must be a relevant factor in assessing the relationship of the deceased and any other person": Poletti v Jones [2015] NSWCA 107, per Basten JA, at [25].)
The Plaintiff's outline of written submissions includes, at [8]: "The plaintiff's evidence is to the effect that he was largely estranged from his parents from about 1999. (The circumstances surrounding, and reasons for, that estrangement are considered further below)."
The Plaintiff acknowledged that the last time he saw the mother, in person, was in 1993, but he maintained that he had been in contact with both the father and the mother, by telephone, up until 2004, with the mother, and sometime between 2000 and 2004 with the father. The Plaintiff did not communicate, directly, with either of them after early 2004, and he did not see either in the years following until his, and her, death, respectively.
The Plaintiff endeavoured to explain the reasons for the lack of direct contact. In 1994, the Plaintiff, Ms Simpson and their three children, moved to England where they lived for about 2 years. In June 1997, the Plaintiff, Ms Simpson and their three children, moved to Auckland, New Zealand, where they lived until January 2000. They then returned to Sydney. In January 2001, he, Ms Simpson and their three children, moved to Queensland. In 2003, the Plaintiff, Ms Simpson, and their three children, moved to Kilcare, on the Central Coast of New South Wales. One year later, they moved to Umina, also on the Central Coast. In 2005, they moved to Castle Hill.
In July 2004, the Plaintiff and Ms Simpson referred the father and the mother to the Hunter Region Aged Care Assessment Team. In a letter dated 16 August 2004, addressed to the Plaintiff and Ms Simpson, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure "I"): "Mr and Mrs Kongspark was (sic) referred to the Aged Care Assessment Team by yourself on the 9th July 2004 and were contacted by mobile phone by Kim Broadhurst on the 26th July and 16th August 2004. The request was for assessment to assist with family reconciliation. As you are aware Mr and Mrs Kongspark refused any ACAT home visit on the 26th July. You were verbally informed of that outcome and very distressed, reasonably, by their refusal. It was agreed on that day that ACAT would try to phone Mr Kongspark again with one further offer of counselling. Attempts have been made to make that call and the phone number has not been answered. Today a further attempt was made and Mr John Kongspark answered the phone. He refused to accept any ACAT visit or support that could be offered to his parents. On our last conversation I was very concerned for you Georgina [sic] - your level of distress was great. I understand that you have only tried to assist your husband with a reconciliation with his parents and that all mechanisms that you have tried unsuccessful, including our service."
There is no evidence explaining how Ms Broadhurst, who is referred to in the letter quoted above, was able to contact the father and the mother "by mobile phone". I infer that a mobile telephone number must have been given to her by either the Plaintiff or by Ms Simpson. This inference leads to the conclusion that the Plaintiff must have been aware of a mobile telephone number which could be used to contact either or both of the parents.
In December 2011, the Plaintiff made an application to the Guardianship Tribunal for a guardianship order and a financial management order for the mother. The application was dismissed on 2 March 2012. In the Reasons for Decision of the Guardianship Tribunal, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure "J"): "Background Mrs Kongspark is 88 years old and lives with her son, Mr John Kongspark in Wyee Point. She is a widow and has another son, Mr Ole Kongspark who is the applicant in these matters. In his application received by the Tribunal on 29 December 2011 Mr Ole Kongspark sought a guardianship order for Mrs Kongspark because he is prevented from having access to her. In a report to the Tribunal dated 23 February 2012, the Tribunal officer states that on 22 February 2012 Mr Kongspark stated that his application was also an application for a financial management order because he does not now know what plans Mr John Kongspark has about their parents' estate. A hearing was therefore listed in respect of a financial management application. The Hearing At the end of these Reasons for Decision are lists of parties to the application and witnesses who attended the hearing. Before it makes a decision the Tribunal must try to bring the parties to a settlement if this is possible and appropriate. Mr Ole Kongspark did not speak directly to the Tribunal and therefore it was not possible to attempt to bring the parties to settlement. … When the Tribunal telephoned Mr Ole Kongspark to commence the hearing a person identifying herself as Mr Ole Konspark's wife, Georgina [sic], said that Mr Ole Kongsgpark was seriously affected by hypertension and did not wish to participate in the hearing. The Tribunal asked to confirm with Mr Ole Kongspark whether he was applying to withdraw the applications but the person to whom Mrs Kongspark spoke, whom the Tribunal assumed to be Mr Ole Kongspark, was heard to say that he did not wish to speak to the Tribunal. The Tribunal also heard words to the effect that he wished to withdraw the applications, but as it had not been able to discuss a withdrawal application with Mr Kongspark the Tribunal decided to proceed with hearing the applications. … In his application Mr Ole Kongspark did not indicate that Mrs Kongspark had any of the listed disabilities and commented 'unknown' in response to the question of what disabilities or other health related factors affect the person's decision making capacity. Mr Ole Kongspark declined to speak to the Tribunal and his partner, Ms Georgina [sic] Kongspark, who spoke briefly to the Tribunal, did not provide any evidence regarding any disability. In a Health Professional's Report dated 9 February 2012 Dr Pravesh Shah states that he has known Mrs Kongspark for five years and sees her every four to six weeks. He states that Mrs Kongspark does not have a disability. Mrs Kongspark told the Tribunaal that she sees Dr Shah every 6 weeks and that he prescribes tables for her 'blood pressure'. She said that she has been living with her son Mr John Kongspark for 10 years and that she is very happy there. She said that Mr John Kongspark takes her on outings including clothes shopping and to the cemetery after buying flowers to place on her husband's grave. She said that she and her husband moved to reside with her son because her husband thought they would be better off there. Mrs Kongspark agreed that she is alienated from her son Mr Ole Kongspark whom she believes has treated her and her husband and Mr John Kongspark badly. … The application completed by Mr Ole Kongspark is silent on the matter of financial management and he provided no evidence at the hearing in relation to the application for financial management. The reported comments of Mr Ole Kongspark in the Report to the Tribunal dated 23 February 20112 [sic] do not refer to whether or not Mrs Kongspark is able to manage her affairs. In his Health Professional Report dated 9 February 2012 Dr Shah states that Mrs Kongspark does not have a disability and is not affected with respect to her financial management. On the basis of the evidence before it, the Tribunal was not satisfied that Mrs Alice Kongspark is incapable of managing her financial affairs. Therefore the Tribunal ordered that the application for financial management should be dismissed, and did not proceed to address the other issues set out above in relation to the application for a financial management order."
There is no reason to believe that the Reasons for Decision inaccurately described the events that occurred at the hearing, or the evidence provided to the Guardianship Tribunal referred to in the Reasons. Certainly, the Plaintiff did not suggest any inaccuracies in those Reasons.
The Plaintiff retained solicitors in May 2012. In a letter, dated 18 May 2012, from Thomas Booler & Co, to the Defendant, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure "K"): "We act for your brother Mr Ole Nielsen. We understand that your father Knud Harding Kongspark died on 29 June 2009. Unfortunately our client had to find this out through the Guardianship Tribunal because you did not communicate your father's death to him or any other member of the family. We also understand that you live with your mother Mrs Alice Kongspark. You have consistently refused our client the right to visit his mother or communicate with her at all, and similarly with his father during his lifetime, resort to verbal abuse when contacted. Our client is concerned about your behaviour and your intentions and wishes to ascertain the following: In relation to Alice: 1. Her current state of health; 2. Where she is currently living. In relation to Knud: 1. Please provide us with a copy of his death certificate; 2. Please provide us with a copy of his will; 3. We are aware that probate has not been applied for. Please advise why not and why a Notice of Death has not been registered in relation to the property at XXX, Wyee Point. 4. Please provide us with an inventory of property of the deceased. In relation to both Alice and Knud: 1. Please provide us with a copy of the authority you rely on to conduct your mother's and previously your father's affairs, be it Enduring Power of Attorney or other; 2. If Power of Attorney, please produce a copy of accounts and records of how you have handled Alice and Knud's affairs; 3. Please advise the consideration provided by you that resulted in your joint tenancy with your father for the property at XXX Blue Haven; and 4. Please advise the consideration provided by you that resulted in your joint tenancy with your parents over the property at XXX, Wyee Point. In light of your aggressive behaviour towards our client, his family and members of Hunter Health when approached in relation to either of your parents our client, as an interested party, has no choice but to believe that you have carried out your responsibilities as Power of Attorney with the interests of the donor(s) at heart and that you have benefited from the donors contrary to the fiduciary duties of a Power of Attorney."
Bearing in mind the lack of contact between the Plaintiff and the mother over many years, it is difficult to know the factual bases for the allegation that the Defendant had not "carried out your responsibilities as Power of Attorney with the interests of the donor(s) at heart" and that he had "benefited from the donors contrary to the fiduciary duties of a Power of Attorney". Nor are there any specific details provided in the letter of the Defendant's "aggressive behaviour towards our client, his family and members of Hunter Health when approached in relation to either of your parents".
In a letter dated 1 June 2012, from Mr Shane Boesen, solicitor, to Thomas Booler & Co, the following appears (Affidavit, Ole Nielsen, 23 November 2018, Annexure "L"): "We write to advise we act for John Kongspark. Mr Kongspark has provided us with a copy of your letter of May 18, 2012 addressed to him. It may well be you have not received detailed instructions from your client as there was a Guardianship Tribunal application by your client in respect of his mother Alice Kongspark in March this year. The application was for guardianship and financial management. We enclose a full copy of the Tribunal's reasons for decision. We note in your letter you request details of Mrs Kongspark's current state of health and where she is currently living. With respect your client is well aware of both these matters given he would have viewed all of the documentation lodged with the Guardianship Tribunal including a full Health Professional's Report by Doctor Pravesh Shah and especially so given your comment in paragraph two of your letter. We advise we took instructions from Mrs Alice Kongspark when your client lodged the applications in the Guardianship Tribunal. Mrs Kongspark was quite adamant in instructing us she wished to have absolutely no contact with your client. This is confirmed in the Tribunal's report. We realise this may be distressing to your client however with respect your client needs to 'get on with his life and move on'. His mother wishes to have no contact with him. [text cut off]…relation to the estate of the late Knud Harding Kongspark we advise Mr Kongspark died intestate. Any assets of his estate were transmitted to his surviving spouse."
The Plaintiff deposed that he then "did not pursue the matter further." However, that is not quite accurate, as, apparently, he, and/or Ms Simpson, wrote a letter, dated 29 October 2012, to the Guardianship Tribunal (a copy of which is not in evidence), which prompted a letter dated 30 October 2012, from the Guardianship Tribunal, in the following terms (Affidavit, Ole Nielsen, 23 November 2018, Annexure "M"): "Dear Mr & Mrs Kongspark, I refer to your letter to the Guardianship Tribunal which was received on 29 October 2012. In relation to your request, the Tribunal is unable to contact Mrs Alice Kongspark on your behalf. The Guardianship Tribunal is a legal tribunal which considers applications made to it in relation to people with disabilities. I hope this information is of assistance to you."
Again, it is difficult to know the reasons why the Plaintiff did not attempt to telephone the mother, or otherwise attempt to be in touch with her directly.
It is very difficult to make findings that attribute responsibility entirely to the Plaintiff, or to the mother, for the breakdown in their relationship principally because the direct evidence is so limited. No precise conduct appears to have been identified by the deceased to Mr Boesen, or for that matter, to the Guardianship Tribunal.
I am unable to attribute the cause of the breakdown of the relationship of the Plaintiff and the mother to the Defendant. I am not persuaded by the Plaintiff's evidence, which is vague and non-specific, that the Defendant's role in the breakdown was as significant as the Plaintiff endeavoured to portray.
Ultimately, however, whatever its causes, I find that this was not a short-term relationship breakdown, or a case where an otherwise long and loving relationship between a son and his parent had been ruptured shortly prior to death. It was not a temporary, but a longstanding, breakdown of relationship. For many years, there was a severance of ties between the Plaintiff and the mother. Its occurrence, and its deep-seated nature, has been established.
Also, this is not a case, unlike some, in which an applicant for provision, prior to the estrangement, has made personal, or financial, sacrifices in caring for his, or her parent, or in contributing to the parent's estate. On the contrary, it was the Defendant and the mother who had lived together for almost all but a short period of the Defendant's life. There is no evidence to suggest that the Defendant's relationship with each of his parents was other than a close and loving one. The mother described herself as "happy" that she lived with the Defendant.
Of course, I have borne in mind that the Court must exercise caution in determining whether to accept the statements attributed to the deceased, and that, if accepted, the Court must carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that: "[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically."

[17]

Extension of time for the making of the application

I shall now turn to the question whether the Court should allow a further period under the Act for making the Plaintiff's family provision application.
As earlier stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".)
Without the consent of the parties, it is if, but only if, "sufficient cause" is shown, that the court has a discretion, having regard to all of the circumstances of the case, to extend the time for the making of an application.
Clearly, permitting the court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380, at [98]. (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.)
In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [23]-[24], Pembroke J put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows: "The decision of the court to extend time is a discretionary decision. Other than 'sufficient cause being shown', there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of 'unconscionable conduct' referred to above was 'directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security'. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]."
In Moore v Randall [2012] NSWSC 184, at [39], White J (as his Honour then was) wrote that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period."
In Stone v Stone [2016] NSWSC 605 at [36], Brereton J (as his Honour then was) made the following observations about the operation of s 58(2) of the Act: "The effect of the section is to confer on the Court a discretion to extend time, having regard to all the circumstances of the case, but only if sufficient cause is shown for the application not having been made within the 12-month period. This limitation period is not merely procedural nor a mere formality, but is substantive. An applicant for such an extension must demonstrate that there was sufficient cause for not having made the application within the 12-month period. So much is mandatory. This requires some explanation for the failure to make the application during that period. Once sufficient cause is shown for not having made the application within that period, the discretion to extend time (by making an 'otherwise order') is enlivened. It is not a jurisdictional prerequisite that sufficient cause be shown for any further delay after the expiry of the 12-month period; however, any such further delay and the reasons for it are plainly part of 'all the circumstances of the case' to which the Court must have regard in exercising the discretion. Other discretionary considerations include whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which an executor or a beneficiary has acted to their detriment); and the strength of the applicant's case for relief under the Succession Act. A mere change of mind on the part of an eligible person, who has decided not to make a claim - even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim - is ordinarily not sufficient cause for granting an extension of time."
However, a slightly different view seems to have been expressed in Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45, at [24], in the Court of Appeal, in which Meagher JA wrote that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
With great respect, I agree that the meaning of "sufficient cause" is "sufficient, in all the circumstances, to justify the granting of an extension of time.
Unlike the legislation in some other States, in New South Wales, the application for provision under the Act and an application for an extension of time within which to make an application are not discrete and separate applications. Thus, to refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant.
As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 at [31]: "The appellants' submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: 'If it is improbable that the substantive application will succeed it seems idle to grant the extension.' This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success 'may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ...'."
Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].
Meagher JA also noted in Verzar v Verzar [2014], at [33]-[35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2). … The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996). … Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."
Gillard J in Valbe v Irlicht [2001] VSC 53, had written, at [31]: "In my opinion the strength of the case is an important and relevant factor to take into account. The period of delay and the reason for it, whilst important, are not factors which carry much weight in the absence of prejudice and in the face of a strong claim. Justice is the paramount consideration and to deny a person an extension of time in the face of a strong claim could amount to an injustice."
I repeated part of this statement in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…"
In Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, Basten JA, at [89], stated that the factor of prejudice: "… added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to 'otherwise order' pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim."
In my view, in considering "sufficient cause", the court must consider not only the period prescribed by the Act for the making of the application, but also the period after the twelve months had expired but before the Summons was filed. The lapse of time, should, ordinarily, entitle executors and beneficiaries to assume that there will be no challenge to the Will: Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14, per Steytler P (with whom Pullin and Buss JJA agreed) at [38].
Yet, there is no disciplinary element to s 58(2). The power should be exercised for its proper purpose, taking account of the context in which it arises, namely, in making adequate provision for the proper maintenance, education and advancement in life of an applicant from the estate or notional estate of a deceased, in the light of all of the circumstances of the particular case.
In this case, it is to be remembered that the Plaintiff's solicitors filed the Summons within two weeks of the Plaintiff having found out about the mother's death. That was only three weeks after the end of the period prescribed by the Act for the making of the application.
In respect of the estate and notional estate of the mother, because I am satisfied, on a preliminary consideration, that the Plaintiff may have a claim, albeit far from a strong claim, for a family provision order, I do not propose to dismiss his application without a full consideration of the circumstances of the claim: see Underwood v Gaudron, per Basten JA, at [89]. It is, thus, necessary to consider the adequacy and propriety of the lack of provision for the Plaintiff. (This does not mean that, ultimately, after the consideration of all the circumstances, the court will exercise the power to extend time.)

[18]

The adequacy and propriety of the lack of provision for the Plaintiff

If the Court extends the time for the making of the application, the next question for the Court to determine is whether the Plaintiff has been left with inadequate provision for his proper maintenance or advancement in life in relation to the estate of the mother.
The answer to this question "constitutes a finding of fact, albeit one that is, in light of the subjective character of the matter to be decided, evaluative. Nevertheless, making the finding involves a binary choice - either adequate provision has been made, or it has not. A finding on the issue does not therefore involve an exercise of discretion": Strang v Steiner [2019] NSWCA 143, per Macfarlan JA, at [76]; per White JA at [131].
It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order: s 59(1)(c). 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": s 59(2). The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court. Accordingly, it is clear that the court has a discretion whether to make an order and as to the amount of any order that is made.
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. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
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."
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 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], citing Manuel v Lane [2013] NSWCA 61 at [9].
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.
Whether the disposition of the deceased's estate and notional estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of 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 her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575; Lemon v Mead [2017] WASCA 215 at [70].
This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, out of the estate or notional estate, should be the only, or even the dominant, consideration.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145-146, wrote: "The court has, up to now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
More recently, in Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787, Newey J, at [26], wrote: "…The word 'maintenance' suggests the provision of assistance to enable a person to meet the requirements of his daily life. Someone of ample financial means will not normally need any such help. In principle, however, "maintenance" does not seem to me to be necessarily confined to support with a person's 'cost of … daily living' (to quote from the Dennis case). It is capable, in my view, of referring to other forms of assistance with the requirements of daily life. If, therefore, a person is in want of a particular thing to sustain a reasonable quality of life, the provision of it could possibly represent 'maintenance' regardless of his financial means. In other words, a person can potentially (albeit only very rarely) be in need of 'financial provision' for his 'maintenance' without being in any way short of money: his money may not be able to secure him what he requires. As a result, there appears to me to be no absolute bar on the provision of something for full consideration representing 'financial provision' for a person's 'maintenance'."
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14]-[15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…"
The concept of "advancement in life" extends to a person's adult years: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114].
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote: "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]
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Murphy J wrote at 505: "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."
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 … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
In my view, advancement in life may be seen as provision that will improve, and enhance, the material situation of the applicant.
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 Aust J Leg Hist 5, 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) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
The 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."
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."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502: "…the 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."
In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote: "…the 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."
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." [Citations omitted.]
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 "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
White J wrote, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree.
Section 60(2)(d), and therefore, "financial needs", is simply one of the matters to which the Court may, but does not have to, have regard, if the Court does so, as will be read, one of the purposes for which the matters in s 60(2) may be regarded is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
In considering the financial resources and needs of the applicant for provision the observations of Basten JA (made with the concurrence of Simpson and Payne JJA) in Chan v Chan, at [22], should be borne in mind: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant...". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs require[s] determination of the size of the estate and the claims of others on the beneficence of the testator" (footnote omitted).
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. 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 (the former 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] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, 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, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made 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.
Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each 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 are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order 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.
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will: s 72(1)(a) of the Act.
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.

[19]

Estrangement

In this case, the Defendant submits that the Plaintiff was estranged from the mother for many years prior to her death.
On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [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."
It is necessary to set out some other general principles which should be remembered: 1. The word "estrangement" does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. 2. The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88]-[94]; Foley v Ellis at [102]. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: "... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." 1. There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. 2. The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. 3. As was recognized by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574-575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." 1. Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in "normal" parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. 2. The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].
In Andrew v Andrew, Basten JA endorsed what I had written about estrangement, much of which is set out above, as follows: "As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience."
His Honour added, at [49], [53] and [57]: "The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant."
Since the Court of Appeal's judgment, there appears to have developed, in cases under the Act, a view within the profession that the decision of the majority in Andrew v Andrew effectively changed the law in relation to the court's approach to determining cases in circumstances where there has been an estrangement. I note, for example, in Burke v Burke [2014] NSWSC 1015, that Rein J identified, at [35], a submission made on behalf of the Plaintiff to the effect that: "it would be only the most egregious conduct of a child of the deceased (such as murder) that would deprive even an adult child of a right to have his or her needs taken into account by a Court and to have an appropriate provision made in his or her favour where it is established that he or she is impecunious or of very limited financial means".
As Rein J did in that case, I reject such a view if it exists. There are simply too many cases of high authority (to some of which I have previously referred) that identify the importance of freedom of testation and the entitlement of a testator or testatrix, in certain circumstances, to make no provision for his, or her, child. Furthermore, as previously stated, the court is "given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all": Pontifical Society for the Propagation of the Faith v Scales, at 19.

[20]

Notional Estate

In this case, as is self-evident, the notional estate provisions of the Act must be considered and these are dealt with in Part 3.3 of the Act.
Rosalind Croucher, in "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263, has commented on the notional estate provisions of the former Act: "The introduction of the notional estate provisions brought to the forefront the distinction of 'estate versus notional estate' that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that 'estate' and 'notional estate' were different. Things subject to contracts (like mutual wills) were not within the definition of 'estate'. To bring such property within the legislation required now the application of the complex procedures and definitions of 'notional estate'. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act."
The New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision, (May 2005) at 37, states "notional estate orders" are described as "orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased's death (either with or without the intention of defeating applications for family provision)".
In Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was "a complex concept" but shortly 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".
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.
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).
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": s 3.
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."
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…"
Any such circumstance is "subject to full valuable consideration not being given": s 76(1). Importantly, a distinction must be drawn between "valuable consideration" and "full valuable consideration": see, for example, s 76(4) of the Act.
Important also is the omission of the words "in money or moneys worth", which had appeared after "full valuable consideration" in the equivalent provision (s 22) of the former Act.
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.
There does not appear to be a dispute that the non-severance, before the deceased's 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.
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.
Section 78 of the Act provides: "(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."
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.
Section 80(2) provides for the section to apply to the following relevant property transactions: 1. 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; 2. 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; 3. a transaction that took effect, or is to take effect on, or after, the deceased person's death.
In this case, only s 80(1)(c) is relevant.
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 of them.
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).
The power to make a notional estate order is discretionary. Section 87, contained in "Division 3 Restrictions and protections relating to notional estate orders", circumscribes the Court's power to make a notional estate order. That section 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."
In John v John [2010] NSWSC 937, Ward J (as her Honour then was), at [118]-[120], wrote: "What amounts to "reasonable expectations in relation to property" was considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as the Associate Justice then was), who said: That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff. In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the Associate Justice then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section: Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property … Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise. Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed, referring to the "more general precautionary provisions" in ss 26 and 27 of the Family Provision Act, said: Section 27(1) for example, says the Court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it." (Emphasis omitted.)
In reference to s 87(a) of the Act, Basten JA in Phillips v James wrote, at [125]: "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."
Thus, the Defendant is the person whose "reasonable expectations" should be considered, since he is an adult child of the mother, and in the events that happened, the person who has come to hold the jointly owned property by survivorship.
The "substantial justice and merits" referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep). (In that case, the reference was to the equivalent provision (s 27(1)(b)) of the former Act.)
The position of both parties should be considered in respect of s 87(b) and s 87(c).
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.
Because, in respect of the mother's estate, the Plaintiff's claim was not made within the time prescribed by the Act, reference must also be made to s 90 of the Act, which provides: "(1) This section applies to proceedings where: (a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or (b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order. (2) The Court must not make a notional estate order in the proceedings unless: (a) it is satisfied that: (i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and (ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order."
The meaning of s 90 has been discussed, recently, in Vaughan v Curran [2019] NSWSC 1562, in which Emmett AJ wrote, at [40]-[43]: "There is nothing in the language of s 90 to indicate the character of special circumstances that would justify the making of an order. Section 90 has an origin in s 28 of the Family Provision Act 1982 (NSW) (the Provision Act). In dealing with that provision, it has been suggested that a similar approach should be taken to the phrase "special circumstances" as has been taken to the phrase "special reasons" in s 101(5) of the Adoption Act 2000 (NSW). The Court's discretion in relation to such a phrase can be characterised as "very large and necessarily so" but must have as its basis some circumstance that can reasonably be regarded as special reasons for taking the particular circumstances out of the usual. On the other hand, the hurdle provided by s 90 is different from the hurdle provided by s 58 of the Succession Act. By reason of s 58, the plaintiffs were required to show sufficient cause for the Court to order that their applications for family provision orders may be made later than 12 months after the date of the death the Deceased. For the reasons indicated above, I was satisfied that sufficient cause had been shown. Nevertheless, it was still necessary for me to be satisfied that there are special circumstances to justify the making of the notional estate orders, since there would otherwise be no utility in making family provision orders. Section 90 contemplates two possibilities. The first, under s 90(2)(a), is that the Court is satisfied that the property to be designated as notional property was, relevantly, the subject of a distribution from the estate of the deceased person, the person who holds the property holds it as a result of the distribution as trustee only and the property is not vested in interest in any beneficiary under the trust. That is to say, an order may be made if no person has acquired a vested interest in the property distributed. The use of the word "other" in s 90(2)(b) indicates that the circumstance specified ins 90(2)(a) is treated by s 90 as a special circumstance. That is to say, the fact that no person has acquired a vested interest in the distributed property is a special circumstance. Section 90(2)(b) then deals with the second possibility. Thus, other special circumstances may exist, for the purpose of s 90. That is to say, notwithstanding that there has been a change in beneficial ownership in property of a deceased person, the property might still be the subject of a notional estate order, by reason of the facts surrounding the property in question and the identity of the person or persons to whom the property has been distributed."
In Charnock v Handley [2011] NSWSC 1408, at [88]-[90], I dealt with the meaning of the term "special circumstances" in s 90 in some detail: "The meaning of 'other special circumstances' in s 28(5) of the former Act, which was, in its terms, similar to s 90(2)(b) of the Act, has been considered in a number of cases (see, for example, Lewis v Lewis [2001] NSWSC 321; Zirkler v McKinnon [2002] NSWSC 285; Blyth v Spencer; Spencer v Neville [2005] NSWSC 653; Cetojevic v Cetojevic ; Campbell v Chabert-McKay; John v John; Alexander v Jansson [2010] NSWCA 176. ('Incapacity' of the applicant was referred to in the former Act but that reference does not appear in s 90.) The following summary regarding s 90(2)(b) may be gleaned from the authorities which dealt with s 28(5) of the former Act: (a) The sub-section in the Act gives no direct indication of the nature of special circumstances; the term is incapable of precise, or exhaustive, definition; s 28(5) of the former Act gave some indication of the types of circumstances that may count as special circumstances, namely circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff; those matters may amount to special circumstances under s 90. (b) The term prescribes a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. (c) The qualifying adjective, 'special', looks to circumstances that are unusual, uncommon or exceptional; the Oxford Dictionary defines 'special' as meaning 'of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree'; the Macquarie Dictionary states the meaning: 'of a distinct or particular character or purpose'; 'being a particular one'; 'particular, individual or certain'; 'different from what is ordinary or visual'; 'extraordinary, exceptional'. (d) A circumstance may be 'special' by reason of degree, as well as of kind; circumstances need not be unique to be special, but they will be unusual; it is legitimate to have regard to a combination of factors in reaching the conclusion that they are special. (e) More should be demonstrated to prove 'special circumstances' than to justify an extension of time; the latter requires 'sufficient cause' to be shown; however, to establish such special circumstances does not require the Court to exclude circumstances considered under s 58(2). (f) In a case where an extension is sought, the sub-section superimposes a further requirement, or extra hurdle, over and above the matters that a Court will consider under s 87. (g) Whether circumstances answer the description must depend upon the context in which they occur; it is the context that allows one to say that the circumstances in one case are markedly different from those in the usual run of cases. Their existence is also, in a sense, evaluative in character. White J in Campbell v Chabert-McKay, in relation to s 28(5) of the former Act, dealt with the term 'other special circumstances'. His Honour held: '85 In Cetojevic v Cetojevic [2006] NSWSC 431 Campbell J (as his Honour then was) assumed without deciding (at [79]) that more is required to establish "other special circumstances" under s 28(5)(d) than is required to obtain an extension of time under s 16. 86 I accept that more is required to establish "other special circumstances" under s 28(5)(d) than would be required to obtain an extension of time. But I do not agree that to establish such other special circumstances the court is to exclude circumstances considered under s 16. Mr Willmott stressed that the plaintiff needed to establish not just special circumstances, but other special circumstances to justify the making of an order designating property as notional estate. 87 In my view "other special circumstances" are not special circumstances other than those considered under s 16 or s 8. Section 16 requires the court to have regard to all the circumstances of the case in deciding whether to extend time. This must include any special circumstances. Similarly, if an application is made for additional provision under s 8, the court is required by s 9(3)(d) to consider any circumstance it considers relevant. 88 The scheme of s 28(5) is that the circumstance described in s 28(5)(c) is to be regarded as a special circumstance. When s 28(5)(d) refers to "other special circumstances" it is referring to special circumstances other than that referred to in s 28(5)(c). Thus, in s 28(5)(d), the incapacity of an applicant is described as a special circumstance. But incapacity would have to be relevant to the exercise of discretion under s 16 whether to grant an extension of time. 89 For these reasons, I do not accept that matters relevant to the decision to extend time under s 16 are excluded from consideration under s 28(5)(d).'"
In Stone v Stone, Brereton J, noted, at [72], that: "Factors that have contributed to findings of special circumstances have included incapacity as a result of infancy, the fact that it was no fault of the applicant that application was not made within time, the strength on the merits of an applicant's claim, the absence of prejudice (such as the fact that there has been no significant dealing with the notional estate in the meantime), and the belated falsification, after time for bringing an application for provision had expired, of a reasonable expectation that if fulfilled would have made an application unnecessary." (Omitting citations)
If the Court has made, or proposes to make, a family provision order designating certain property as notional estate, s 92 of the Act enables the Court, on application by a person who offers other property in substitution ("the replacement property"), to vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or to make a notional estate order designating the replacement property as notional estate instead of the property proposed to be designated as notional estate by such an order, as appropriate. However, such an order may only be made if the court is satisfied that the replacement property can properly be substituted.

[21]

Some Additional Principles

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.
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: "[A]ccording to the feeling and judgement of the fair and reasonable man in the community, the spokesman of which is and must be the court itself."
In Andrew v Andrew, Allsop P, at [16], and Barrett JA, at [97], cited with approval Mahoney JA's description of the court's task in Kearns v Ellis (NSW Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) as being to make a determination. Basten JA observed that whilst community standards are important, they are not fixed. His Honour acknowledged that community standards cannot be identified with precision, and therefore the application of an appropriate standard to particular circumstances may also give rise to a range of legitimate outcomes.
However, in Steinmetz v Shannon [2019] NSWCA 114, at [432, White JA, after referring to Kearns v Ellis, wrote at [43]-[46]: "It is the Court's perception of what fair and reasonable members of the community would expect a testator to provide for the applicant, not something that is to be proved as a standard against which the Court's judgment is to be made, that is relevant. But unlike the reasonable man on the Clapham omnibus or the Bondi tram, or the reasonable and fair-minded lay observer asked to consider the impartiality of a judge, there is no utility in invoking a community standard or expectation against which the adequacy of provision is to be judged. I agree with Brereton JA that if one is forced to use concepts of "moral duty" or "community standards", the former is preferable. The indication of either expresses a conclusion about the judge's own evaluative assessment as to whether the provision made for the applicant was adequate for his or her proper maintenance and advancement in life (and, where relevant, education). The advice of a solicitor that judges generally expect that a certain type of provision will be made for a spouse, adult child, or grandchild may carry more weight with a client than advice that judges have said that the community generally expects such provision to be made. A client could properly consider that he or she is in as good a position as a judge to assess what the community would expect. Community expectations or community standards are not one of the specifically identified matters in s 60(2) of the Succession Act that the Court might consider in determining whether to make a family provision order and the nature of any such order. Section 60(2)(p) has a catch-all that the Court may consider any other matter, additional to those listed in s 60(2)(a)-(o), which it considers to be relevant. But whereas the legislature picked up the notion of moral obligation in s 60(2)(b) ("the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant" etc), it evidently did not consider that community standards or community expectations were a fact to be established that might be considered to be relevant in how the evaluative decision under s 59 should be made."
Brereton JA wrote at [109]: "Some of the passages to which I refer use the traditional concept of "moral duty", rather than the more fashionable one of "community standards". For my part, I prefer the former, which - despite its disapproval in Singer v Berghouse (No 2) [21] - was rehabilitated in Vigolo v Bostin, [22] and is recognised in the statute. [23] However, I doubt that the difference matters much; what the community expects a testator to do by way of provision for claimants on his or her bounty, and what the testator is morally obliged to do in that respect, are probably the same thing."
(It should be mentioned that an application for special leave to appeal from the decision of the Court of Appeal was considered by the High Court to enjoy insufficient prospects of success to warrant the grant of special leave. Accordingly, special leave to appeal was refused: Shannon & Anor v Steinmetz [2019] HCASL 332.)
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The size of the estate and/or notional estate is a consideration in determining an application for provision. However, its size does not justify the Court in rewriting the will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].
In relation to the claim by the Plaintiff, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, 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": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; 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) 14 ASTLR 175; [2015] NSWCA 297 at [62]. Also see, Steinmetz v Shannon, per Brereton JA, at [106]-[108].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep). Nor is it the role of the Court to provide reparations to the Plaintiff in respect of what might be regarded as poor parental behaviour by means of a monetary order: Williamson v Williamson [2011] NSWSC 228 at [124]-[127].
In Foley v Ellis at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty".
The other claimant on the bounty of the deceased, who is the sole beneficiary, and in this case, the survivor of jointly held property, does not have to prove an entitlement to the provision made for him in the deceased's Will, or otherwise justify provision that he has received. In this case, however, the Defendant has provided a deal of evidence demonstrating his contribution not only to the building up of the father's estate and of the mother's estate, and also to her welfare.

[22]

Qualifications on "Principles"

As long ago as 1980, in White v Barron at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stressed in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant or to distract attention from the language of the Act.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85] and Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]: "As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox: [19] …the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance Similarly, Barrett JA explained: [67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply "the feeling and judgment of fair and reasonable members of the community" in cases of the present kind. Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
In addition, the formulation of principles, whilst not intended to "constitute a fetter upon the discretion not intended by the legislature", may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

[27]

(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

As has been stated earlier in these reasons, the Plaintiff lives in accommodation owned by two of his children (Michelle and Andrew). I have dealt with the interest of Ms Simpson. There is no suggestion that this family arrangement is likely to come to an end.
The Plaintiff's assets include a 2000 Porsche Boxter, cash and personal effects. His asset position is nominal. The only liabilities of the Plaintiff are costs of, and related to, these proceedings: Affidavit, Ole Nielsen, 23 November 2018 at par 104; Affidavit, Ole Nielsen, 22 October 2019, at pars 5-8, 11 and 13.
His liability for costs was created as a result of commencing the proceedings.
As has been discussed earlier in these reasons, the Plaintiff receives a Centrelink aged pension of about $1,852 per month ($926 per fortnight). His income exceeds his expenditure, which is said to total $1,480 per month ($740 per fortnight). He is able to live within his means. He has about $372 per month ($186 per fortnight) in surplus cash for discretionary spending, above the items listed in his affidavits. He is secure in his accommodation and his income.
The size and nature of the estate and nature and quality of the relationship between the Plaintiff and his parents dictates that this is not a case in which the mother had an obligation to provide an unencumbered home for the Plaintiff.
The Defendant lived with his parents the entirety of his life (excluding 1-2 years). He is a joint tenant owner of the Wyee Point property. The mother's interest in the property passes to him by right of survivorship. He is also the sole beneficiary to the deceased's Will.
Excluding the Wyee Point property, the Defendant has assets with a total value of about $118,271. His property includes cars, a boat, a tractor, bank accounts and shares. He has no liabilities, apart from the costs of these proceedings.
The Defendant's income is the age pension of about $2,027 per month ($933 per fortnight). This income exceeds his expenditure. He is able to live within his means and has a surplus amount at the end of the month. There is no need for him to sell the Wyee Point property, unless an order for provision and/or costs in favour of the Plaintiff is made.

[40]

Determination

What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
Claims for a family provision order present particular difficulties in proceedings where the estate is not large. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claim. The case becomes even more difficult where it is said that there is only property that can be designated as notional estate out of which an order for provision and costs may be made.
There being no dispute about the eligibility of the Plaintiff, I must determine whether sufficient cause is shown for the application not having been made within 12 months of the date of death.
In my judgement, the Plaintiff has provided a proper explanation for the application not having been so made. The reason was that he did not know of the mother's death. Once he found out, arrangements were made for the filing of the Summons. The Summons was then filed promptly.
In the short period of three weeks, I cannot find that any prejudice was suffered by the Defendant. Nor can I find that there was any unconscionable conduct by either party. The Defendant could have informed the Plaintiff of the death of the mother, but, in the circumstances, it is understandable that he did not do so.
Subject to the answers to the other questions posed being favourable to the Plaintiff, in all the circumstances, I am satisfied that "sufficient cause" has been shown for the making of an order extending the time for the making of the Plaintiff's application until the date of the filing of the Summons. However, for reasons to which I shall come, there is no point in making any order extending the time for the making of the application.
Since the preconditions for the making of an order designating property as notional estate is that it is for the purposes of a family provision order, or 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 I must next consider whether, at the date of hearing, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.
No provision was made for the Plaintiff in the Will of the deceased and there is no scope for the operation of the intestacy rules. However, the fact that the Plaintiff does not receive any provision does not, on its own, establish that the jurisdictional hurdle is established. Having considered the matters I am required to consider, the Plaintiff has failed to establish that the mother's Will did not make adequate provision for his proper maintenance or advancement in life. The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
There is no doubt that his financial position is extremely modest, with no assets of any value to speak of, and a small surplus of income over expenditure. But his most significant debt relates to the costs that have been incurred in these proceedings. It is difficult to conclude that the Court should make a family provision order out of the estate of the deceased in order to ensure the payment of the costs of the proceedings. One asks rhetorically why a wise and just testatrix, or the application of contemporary community standards, would reasonably require that her Will should be altered in favour of an adult child who she excluded from her testamentary disposition, in order to provide for, amongst other things, the costs consequences of his decision to bring proceedings to effectively challenge that Will?
However, the question of costs of the proceedings cannot be determined yet because of the indication that there may be documents relevant to the determination of that issue. It must be accepted however, that some proportion of his own costs will have to be borne by the Plaintiff, whatever costs order is made.
I have considered the mother's obligation to provide a capital sum, otherwise, for the Plaintiff's advancement in life. But in considering all of the circumstances, I do not consider that the mother had any obligation in that regard. The Plaintiff's relationship with her, for many years before her death, was virtually non-existent. There did not exist between them the love, companionship, and support, present in what may be described as "normal" parent/child relationships during those years, is a relevant consideration. Yet, I do remember, as Basten JA recognised in Andrew v Andrew, at [39], that "indifference, irritation or even outright hostility are also "natural" characteristics of some family relationships". I have not yielded to the temptation to condemn, categorically, the behaviour of Plaintiff. It is clear, also, that he was financially independent of the mother throughout his adult life.
However, the Plaintiff's conduct in taking the steps that he took, allegedly for the purpose of re-establishing contact with the mother, appear to have caused her greater anxiety and unhappiness. She was the subject of guardianship and financial management proceedings when the Plaintiff had no basis for making the assertion that she needed a guardian or a financial manager. Whilst she gave evidence in the guardianship proceedings, he did not, choosing not to participate when called upon to do so. It was also necessary for her to instruct lawyers in respect of the matter.
Subsequently, the Plaintiff made written allegations, by his solicitor, to which allegations the mother, by her solicitor, was required to respond in writing. Then, even after being informed, in writing, that the mother did not wish to have anything to do with him, he involved the Police. He had police attend at the Wyee Point property on a number of different occasions. Again, he did not attend with the police, but, simply left it to the mother, and the Defendant, to deal with the police officers on each occasion. Again, on each occasion, the attendance of the police would have been likely to cause the mother anxiety.
Also, there was no evidence, then available to the Plaintiff, to justify the involvement of the Police and certainly there is no evidence of any steps taken by the Police involving the mother from which it may be inferred that the Plaintiff's so-called concerns were warranted or justified. These are matters in respect of which the Plaintiff bears sole responsibility.
The simple step of writing to the mother to explain his position and to seek to arrange a way, or at least try to arrange a way, of reconnecting with her, does not appear to have occurred to him, or if it did, he did not avail himself of that course.
The relationship of the mother and the Defendant was very different. He had a much greater claim, than did the Plaintiff, on her bounty. They had lived together for, virtually, the whole of the Defendant's life and what the mother said about his role in her life could not be seriously challenged. Their financial circumstances, and their lives, generally, were intertwined. This is a case where there is also clear evidence to suggest that their relationship was extremely close and loving.
The deceased's statements about the Plaintiff also must be considered even if they are not given determinative weight. They provide some evidence of the reasons why she made her Will in which she provided solely for the Defendant. Furthermore, her freedom of testamentary disposition is a relevant and important consideration.
The Court's discretion is not to be exercised for the purpose of making what may appear to be a fair distribution of the mother's estate amongst her children. It is not part of the Court's function to achieve some kind of equity between the children of the deceased. It has also been written many times, that the purpose of the jurisdiction under the Act is not the correction of the hurt feelings, or the sense of having been wronged. The jurisdiction is designed to provide for an eligible person where inadequate provision is made for his, or her, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, per Kirby P, at 29.
In my view, this is not a case where the community would expect the mother to have made provision for the Plaintiff in all the circumstances. That conclusion does not alter even when the Plaintiff's financial resources and needs are taken into account and even when the Court takes into account the degree to which the Plaintiff may not be capable, by reasonable means, of providing adequately for his own proper maintenance and advancement in life.
Accordingly, I am not satisfied that the Plaintiff has established that adequate provision for the Plaintiff's maintenance and advancement in life has not been made by the Will of the mother.
But even if I were wrong, and the mother did have an obligation or responsibility to make provision for the Plaintiff, she had a much greater obligation or responsibility to make provision for the Defendant. Certainly, as the sole beneficiary named in her last Will, the mother recognised her obligation, or responsibility, to the Defendant.
In all the circumstances, even if I were wrong in considering that the Plaintiff fails at the jurisdictional threshold, I would not, as a matter of discretion, make any provision for him.
Even if I were wrong, again, there is another reason why the Plaintiff's claim fails. I am not satisfied that a notional estate order should be made in all the circumstances of the case. It would not be just to do so. The Wyee Point property was purchased for, and by, the father, the mother and the Defendant many years before the death of each of the father and the mother. I am satisfied that, even if the Defendant did not provide half of the purchase price, he did make a significant financial contribution to its acquisition by paying his share of the proceeds of sale of the Blue Haven property to the father. He also contributed to its maintenance.
Furthermore, the Wyee Point property has been the home of the Defendant from the time of its purchase and has remained his home after the death of both the mother and the father. He has lived there for about 15 years and wishes to continue to do so.
It is likely, bearing in mind the advice that was given by the solicitor as to the nature of a joint tenancy, to the father, the mother and the Defendant, that each would have had a reasonable expectation that the survivor would take the other's interest by survivorship. Bearing in mind the relationship that each had with the Plaintiff, it would not have been unreasonable for each to expect that he would have no claim on the Wyee Point property.
The Defendant's reasonable expectation was also based on economic and moral considerations having regard to the lifelong financial, and other, arrangements, between each of his parents and him.
On the other hand, the Plaintiff could not have reasonably held an expectation that he would receive a share of the Wyee Point property. Not only had he made no contribution to its acquisition, conservation, or improvement, he had never visited the mother there. Indeed, he could not have had any reasonable expectation that he would inherit any part of the Wyee Point property.
Also, bearing in mind all of the circumstances of this case, the substantial merits of the Defendant's case, favour refusing to make a notional estate order in respect of the mother's joint interest in the Wyee Point property.
Of course, I have also considered the substantial justice and merits in respect of the Plaintiff. As I have said, he made no financial, or other, contribution to the acquisition, maintenance, or improvement, of the Wyee Point property. In addition, his relationship with the mother, for many years before her death, was hardly close.
Finally, for completeness, I should refer to s 90(2)(b) of the Act. The Plaintiff has not satisfied me that there are any special circumstances that justify the making of the notional estate order. For this reason, too, his claim fails.
In all the circumstances, the Court is not satisfied that the mother did not make adequate provision for the Plaintiff's proper maintenance, education or advancement in life. No order for provision is to be made. Even if it were otherwise, the Court, in any event, would decline to make an order designating the deceased's interest in the Wyee Point property, or any part thereof, as notional estate of the mother. Thus, there is no estate, or notional estate, out of which an order for provision could be made.
It follows that even if the Court had been satisfied that the provision for the Plaintiff was not adequate such that an order for provision should be made, the ultimate decision in these proceedings would be no different since all of the facts militate against the making of a notional estate order.
It is, therefore, unnecessary to make an order extending the time for the making of the Plaintiff's application.
In the circumstances, the Court orders that the Summons be dismissed.
The Court will hear the parties on the question of costs if that question is not able to be agreed, on a date mutually convenient to the legal representatives of the parties and to the Court which date will be arranged at the time these reasons are published.
I should mention one other matter. On 4 December 2019, after the conclusion of the hearing, there was received in my Chambers an Express Post envelope which, on its reverse side, identified the Plaintiff as the sender. My Associate opened the envelope and informed me that it was a letter from the Plaintiff to the Court. As it appeared that a copy of the letter had not been sent to the Defendant's legal representative, and as no leave had been sought, or granted, to provide the Court with any other evidence or document, I did not read the letter and requested my Associate to place it in an envelope marked "Not Read by the trial Judge".
Later on 4 December 2019, my Associate, at my request, sent an email to the legal representatives of each of the parties, in the following terms: "This morning, there was received in his Honour's Chambers, an Express Post envelope, apparently from the Plaintiff. His Honour has not read the document contained in the Express Post envelope as there was no leave granted to either party to forward to the Court any documents after the conclusion of the hearing and whilst judgment was reserved. If the Plaintiff wishes his Honour to read the contents of the Express Post envelope, a formal application should be made. Otherwise, his Honour does not intend to read the document and has asked me to place the Express Post envelope, and its contents, in another envelope marked 'Not read by the Trial Judge', which I have done."
No formal application has been made since the email from my Associate.

Nielsen v Kongspark

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Judgment (41 paragraphs)

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