North v Daniel

Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Liprini v Liprini [2008] NSWSC 423 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 O'Brien v McCormick [2005] NSWSC 619 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Salmon v Osmond (2015) 14 ASTLR 442; [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 [2014] NSWSC 473 Sanson v Sanson [2021] NSWSC 417 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Sreckovic and Sreckovic [2018] NSWSC 1597 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker [1996] NSWSC 188 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Texts Cited: R Atherton in "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: Jeffrey William North (Plaintiff) Julie-Anne Daniel (first Defendant) Jennifer Elizabeth Hunter (second Defendant) Graeme Terence Mahn (third Defendant) Representation: Counsel: M K Meek SC (Plaintiff) No appearance (first Defendant) L J Ellison SC (second and third Defendants)

Solicitors: de Groots Will and Estates Lawyers (Plaintiff) No appearance (first Defendant) Heckenberg Lawyers (second and third Defendants) File Number(s): 2019/371145 Publication restriction: Nil

Introduction

1. These proceedings concern the estate of William John Leslie North (the deceased) and the claim brought by one of his, now adult, children, Jeffrey William North, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act) and for his costs of the proceedings. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. (An order restraining the Defendants from distributing the estate without his consent, which had been sought, is no longer pressed by the Plaintiff.)
2. The deceased died on 27 November 2018, aged 95 years, leaving a Will dated 28 April 2017.
3. Julie-Anne Daniel and Jennifer Elizabeth Hunter are the only other children of the deceased, and the older, and younger sister, respectively, of the Plaintiff. They are the first and second Defendants in these proceedings. The deceased's wife, and the mother of the three children, Alfreda Georgina North, predeceased the deceased, having died in April 2009.
4. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.
5. The third Defendant named in the Summons is Graeme Terence Mahn, described in the deceased's Will as "my friend". He and Julie-Anne did not play any significant role in the proceedings.

The Proceedings

1. Jeffrey's claim was commenced by Summons filed on 25 November 2019. It was not possible to determine these proceedings until contested Probate proceedings, which had been commenced by Julie-Anne, were determined. Indeed, the two different proceedings were set down for hearing consecutively, before me, for 5 days. However, the Probate proceedings and Julie-Anne's claim for a family provision order were resolved shortly prior to the hearing.
2. On 21 May 2021, this Court, in the Probate proceedings, made an order, subject to compliance with the Probate rules of Court, that Probate in solemn form of a Will made by the deceased on 28 April 2017 (the 2017 Will) be granted to Jennifer and Graeme, two of the three executors named in that Will. The Court noted that Julie-Anne had renounced Probate of that Will. In those proceedings, orders were also made in respect of the part of the proceedings that had been brought for a family provision order by Julie-Anne. I shall refer to the family provision order made in Julie-Anne's proceedings later in these reasons.
3. The Senior Deputy Registrar in Probate, on 24 May 2021, made some requisitions, which, apparently, had not been answered at the date of the hearing. For this reason, the Probate document had not been issued by the Probate Registry.
4. The parties agreed that the hearing would be concluded within three days and it was completed within that time. At the hearing, Mr M Meek SC appeared for Jeffrey and Mr L J Ellison SC appeared for Jennifer and Graeme. I am grateful to the legal representatives for the manner in which the hearing was conducted.
5. At the hearing of these proceedings, each of the parties sought the leave of the Court to read affidavits filed, and served, in the Probate proceedings. Only parts of some of the affidavits were sought to be read.
6. Uniform Civil Procedure Rules 2005 (NSW) r 31.9, relevantly, provides that in any proceedings, an affidavit filed in other proceedings may not be used as evidence, saving all just exceptions, and unless the Court orders otherwise. That leave may not be granted under sub rule (1) except to allow the affidavit filed in the other proceedings to be used in relation to the proof of particular facts.
7. Although the "particular facts", in relation to the proof of which it might be relied on in this case, were not specifically identified, as the affidavits had been filed and served in the Probate proceedings, there was no objection to the grant of leave. Senior counsel each agreed that the parts of those affidavits to be read could have been included in fresh affidavits filed in these proceedings. Neither asserted any prejudice.

Preliminary matter

1. Before proceeding to set out the factual background, it is necessary to refer to a somewhat urgent application, brought as a result of Jeffrey filing a notice of motion, on 21 May 2021, seeking an order that "the Plaintiff may give his evidence at the hearing commencing on 1 June 2021 by audio-visual link". (The reason for mentioning this application is that the COVID 19 restrictions, which exist at the time of the writing of these reasons, were not in existence at the time the application was made.)
2. The Court was able to deal with the notice of motion on 27 May 2021. At that time, senior counsel for Jeffrey orally sought to amend the notice of motion, without opposition, to add a reference to the witness, Natasha Suskova, giving her evidence remotely also.
3. I then made the following order: "Grants leave to the Plaintiff to amend the notice of motion so that Paragraph 1 seeks an order that the Plaintiff and Natasha Suskova give his and her, evidence, respectively, at the hearing commencing 1 June 2021 by audio-visual link."
4. It is regrettable that the notice of motion was filed less than two weeks before the hearing, when the medical reports upon which reliance was placed, were dated 18 March 2021 and 25 March 2021. I note, however, that Jeffrey's solicitors had written to each of the legal representatives acting for the other parties making that request in a letter dated 6 April 2021. It had also been raised at the pre-trial directions hearing held on 7 April 2021. Presumably, the notice of motion was not filed earlier in the hope that it would not be necessary to bring the application formally and that an order, with consent of the parties, could be made in Chambers by the Court.
5. In summary, the basis of the Plaintiff's application was that Jeffrey suffers from extreme anxiety and Post-Traumatic Stress Disorder and that for him "to travel to a different city and be isolated from his support system to attend a court hearing that may go on for several days and which will be incredibly stressful and triggering … would be very detrimental and dangerous for his well-being and safety. This would also interrupt the continuation of his treatment and support at a very high-risk time for him".
6. The passage quoted is found in the report written by Laurie Brotherstone, a Psychologist, who also concluded that "it would be very detrimental to Mr North's mental wellbeing to have to attend" Court in person.

Some undisputed formal matters

1. There were some uncontested formal matters to which I should refer.
2. Jeffrey commenced the proceedings within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
3. Section 57(1) 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. As a child of the deceased, Jeffrey is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act).
4. However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (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 …".
5. As the deceased dealt with all of his estate in his last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
6. 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 Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
7. Although in the Summons the Plaintiff sought an "order pursuant to ss 78, 79, 80, 81, 82 and 85 of the said Act designating as notional estate such property as the evidence may disclose", at the hearing, neither party submitted that there was any property that was able to be designated as notional estate. In the circumstances, Jeffrey did not seek an order that any property of the deceased be designated as notional estate.

Some background facts

1. It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
2. The deceased was born in December 1922 and died in November 2018 aged 95 years. He married Alfreda in February 1951 and remained married to her until her death in 2009.
3. Julie-Anne was born in January 1955 and is 66 years of age. Jeffrey was born in September 1956 and is 64 years of age. Jennifer was born in May 1967 and is 54 years of age.
4. The deceased lived in various places in New South Wales and Queensland, including Albury, Brisbane, Collaroy and Killarney Heights. The deceased was a sales manager. Alfreda did not work outside the home.
5. Jeffrey left school in 1972, having obtained his School Certificate. After he left school, he commenced a carpentry apprenticeship and then served as an infantry soldier in the Australian Army. In 1980, he commenced working with North Sydney Council. He suffered a work-related injury in December 1997 and a work related motor vehicle accident in July 1998. He left his employment in September 1999 and has not worked in paid employment since then.
6. In 2003, Jeffrey moved to live in Surfers Paradise.
7. Natasha met the deceased and Alfreda in early 1996.
8. In February 2017, Jennifer separated from her then husband, Bradley Hunter. In August 2018, she and her daughter, Charli, moved into the deceased's Killarney Heights property with the deceased. The matrimonial home, in which she had lived with Bradley, was sold for $1,200,000 and Jennifer received, by way of adjustment of property, the lump sum of $476,000 after legal costs were deducted.
9. The Killarney Heights property is a single storey, four bedroom two bathrooms dwelling with a double garage and workshop. It was built in the mid-1970s.

The deceased's last Will

1. Following Alfreda's death, the deceased made a number of testamentary documents in 2009, 2014, 2015, 2016 and 2017. His last Will was the 2017 Will that was the subject of the grant of Probate in solemn form.
2. Under the 2017 Will, Jeffrey received a pecuniary legacy of $50,000, a one third share of the deceased's car, and one half of residue. Jennifer received a devise of the deceased's property at Killarney Heights and its contents, a one third share of the deceased's car, and one half of residue. A pecuniary legacy of $10,000 was left to Richard Daniel, Kerrie-Anne Cullimore, Pippi Cullimore, Lily Cullimore and Charli Hunter, each of whom is a grandchild of the deceased. Julie-Anne received the balance of cash moneys held by the deceased at the date of his death, after payment of the pecuniary legacies, and a one third share of the deceased's car, but no share of residue.

The estate of the deceased

1. On 7 April 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is, or may be required, to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to any party, whether those costs have been paid out of the estate of the deceased.
2. I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. Although the nature of the deceased's estate at the date of the Schedule was agreed, the value of the estate was not. Therefore, I have included the values attributed by each of the parties where there has been no agreement.
4. The deceased's estate at the date of the Schedule comprised the real estate at Killarney Heights (estimated to be $2,600,000 by Jeffrey and $2,200,000 by the Defendants), cash in bank accounts ($26,267 and $240,000), cash in the Defendants' solicitors' trust account ($17,290), shares in companies ($177,205 and $10,356), debentures (of nominal value), managed investments ($154), and cash (estimated by Jeffrey to be $60,000 and $40,000 by the Defendants). Household effects were said to be of nominal value.
5. In addition, Jeffrey asserted that Jennifer owed the estate rent for her occupation of the Killarney Heights property ($157,600), which was denied by her. This amount was based on an estimate that rent for a house of a similar size, in the Northern Beaches area, would be around $1,295 to $1,300 per week: Affidavit, Jeffrey William North, 24 July 2020, Annexure H.
6. Thus, the gross value of the estate, at the date of at the date of the Schedule was estimated to be $3,288,872 by Jeffrey and $2,711,272 by the Defendants.
7. It can be seen that the major difference between the parties is as to the value of the Killarney Heights property (the difference being $400,000), the rent said to be payable by Jennifer (said by the Plaintiff to be $157,600) and the cash (the difference being $20,000), making a total of $577,600.

The Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or 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.
2. Usually, in calculating the value of the deceased's 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, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
3. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan [2016] NSWCA 222 at [54]; (2016) 15 ASTLR 317 at 330 [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."
4. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]: "... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
5. I have repeated many times in the context of a claim for a family provision order, that parties should not 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: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 at [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

Prior Wills of the deceased

1. In the deceased's Will made on 27 May 2009, Jeffrey received an equal share of the deceased's estate with Julie-Anne and Jennifer. In the deceased's Will made on 23 January 2014, he received a pecuniary legacy of $100,000. In two of the deceased's Wills made in November 2014, he received a pecuniary legacy of $50,000. In the deceased's Will executed on 22 January 2015, he received a pecuniary legacy of $50,000. In the deceased's Will executed on 12 January 2016, Jeffrey received a pecuniary legacy of $50,000 and a one-third share of residue.
2. In each of the deceased's Wills made in January 2016, January 2015, and November 2014 (twice), Jennifer received a devise of the Killarney Heights property.
3. It is clear from the above, that the deceased's long held testamentary intentions included that the Killarney Heights property would be devised to Jennifer and that Jeffrey should receive, principally, a pecuniary legacy only, and in some Wills, a share of residue.
4. Section 60(2)(j) of the Act permits the Court to have regard to the testamentary intentions of the deceased, including any statements made by the deceased. As I noted in Sreckovic and Sreckovic [2018] NSWSC 1597 at [55], an earlier Will of the deceased may also reflect the recognition by the deceased, at the time of the prior Will, of a degree of testamentary duty owed by her, or him, towards the applicant. I shall say more about the relevance of the testamentary intentions of the deceased later in these reasons.

Jeffrey's relationship with Natasha

1. There was a disputed issue of fact concerning the nature of the relationship between Jeffrey and Natasha. Jeffrey asserted that he was not in a relationship with anyone and that he has no children. He described Natasha as a long term friend, who has provided him with supportive care and assistance, and mutual friendship, since about 1998.
2. In cross-examination Jeffrey stated that if he was ill he would occasionally stay overnight in the spare room at Natasha's house and that she would take care of him: Tcpt, 1 June 2021, p 52(18-19). Natasha would also sometimes stay overnight at Jeffrey's home: Tcpt, 1 June 2021, p 52(21-22).
3. Jeffrey stated that, occasionally, he cares for Natasha as well "when she's between boyfriends or when she needs some counselling" but there is no agreement for the care he provides her: Tcpt, 1 June 2021, p 52(39-45).
4. Senior counsel for Jennifer and Graeme submitted that Jeffrey had been in a relationship with Natasha for more than 20 years.
5. Although Jeffrey was asked some questions on the topic, Natasha was not cross-examined. Natasha, in her affidavit of 24 July 2020, described her relationship with Jeffrey as a "friendship".
6. It is probably not necessary to resolve this dispute, as it appears clear, on the evidence that was read, that Jeffrey and Natasha do not live together. It is only if an applicant is cohabiting with another person, that the financial circumstances of the other person is a matter that the Court may consider: s 60(2)(e) of the Act.

The Statutory Scheme

1. The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, and even though there was really no dispute about them, I shall repeat the relevant principles.
2. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. 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.
3. Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the Court "thinks ought to be made" for the identified purposes: s 59(2).
4. The majority (Mason CJ, Deane and McHugh JJ) in Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40, referred to these as "twin tasks" and stated that they involved similar considerations, because in each, the Court must assess what is the "proper" level of maintenance and advancement in life and what is "adequate" provision.
5. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse at 210; White v Barron (1980) 144 CLR 431 at 434-435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14.
6. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34]; (2009) 2 ASTLR 89 at 97 (Basten JA, Allsop P and Ipp JA agreeing), 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".
7. As has been observed, the words "adequate" and "proper" are relative. Regard may be had, among other things, to the matters set forth in s 60(2), 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 circumstances and needs of other applicants, beneficiaries and potential beneficiaries.

Some Additional Principles

1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the current Act. Other judges, and I, have repeated them in many cases under the Act.
2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
5. In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a will according to the Court's own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." (emphasis in original)
6. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. 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. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."

Claim by an adult child

1. I have in many cases referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). 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] (Wheeler J, albeit in dissent in the result). 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 at [74]-[90] (Martin CJ). 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 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.

Qualifications on "Principles"

1. 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."
2. As I have stated 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.
3. The formulation of principles to guide the exercise of the discretion, hopefully, avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.
4. Yet, 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 wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
5. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], by Barrett JA at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and by White JA in Steinmetz v Shannon at [37]. They must be remembered.

Additional Relevant Facts

1. As part of the context in which Jeffrey's case must be decided, next, I set out some additional facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.
2. Jeffrey lived continuously with the deceased until 1985 (except for the period when he was in the Army between 1975 and 1978): Tcpt, 1 June 2021, p 39. He is said to have paid the deceased $50 per week in board: Tcpt, 1 June 2020, p 40(10-13).
3. From about 1972, Jeffrey began making repairs and improvements to the Killarney Heights property. This included replacing various roof plumbing, repairing the automatic garage door, tiling, and excavation, amongst other tasks. This often involved paying for the materials himself. The work was completed whilst he was living with the deceased in the Killarney Heights property and also after he began living in Mt Colah. A schedule for this work was marked JN-4 and annexed to Jeffrey's affidavit of 20 March 2020.
4. In 1985, Jeffrey moved to Mt Colah. The deceased loaned Jeffrey $10,000, at 10% interest, to assist with the construction of the house. Jeffrey stated this was repaid to the deceased within 5 years: Tcpt, 1 June 2021, p 76(37-38). The deceased also assisted Jeffrey with the physical construction of the property.
5. The deceased wrote, in a statement dated 1 July 2017, that while assisting with the construction of the house, Jeffrey directed "arrogance, insults, abuse, etc [sic] towards me": Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Ex JEH-1/58.
6. Jeffrey denied having ever abused the deceased. He stated that over the 12 months it had taken to build the Mt Colah property, he and the deceased only ever had one argument, which was regarding a safety incident on the construction site.
7. In 2003, Jeffrey moved up to Surfers Paradise. After moving to Queensland, Jeffrey would stay in touch with the deceased with weekly phone calls and visits to Sydney at Christmas each year.

Alleged Mutual Wills

1. Despite not being a party to the Probate proceeding, and despite having consented to the orders that were made in the Probate proceeding, Jeffrey maintained, during cross-examination, that the deceased was subject to the undue influence of Jennifer when he changed his Will: Tcpt, 1 June 2021 p 37(31-32). He also continued to maintain that the deceased and Alfreda had made mutual Wills: Tcpt, 1 June 2021, p 38(37-40).
2. In cross examination Jeffrey said (Tcpt, 1 June 2021, p 51(31-38)): "My parents described their wills or will in various forms. Sometimes they said 'our will', sometimes they said, 'our mutual will agreement', sometimes they said 'we've got a mutual will', but at all times they said, 'It cannot be revoked. It doesn't matter who dies, it cannot be revoked.' And that's what they told me. They used the term 'mutual will agreement' on a number of occasions and that's the terms they used, 'our will', 'our mutual will', they've used 'joint mutual will', they've used a number of terms. But, it was always couldn't be revoked".
3. Jeffrey believed that it was always the intention of both the deceased and Alfreda that the three children would share the estate equally.
4. From about 1970 onwards, Jeffrey said that there were various conversations with his parents regarding the family home. He recalled the deceased saying "After Mum and I depart, we would like you to sell your house and move into our home, you would have to pay out the girls share".
5. On another occasion, he recalled the deceased said "Mum and I want to keep our house in the family, after we have departed, we want you to own our home, because you will need care when you get older, it will be ideal for you to live close to the girls for support."
6. In November 1976, the deceased and Alfreda told Jeffrey they made mutual wills so all three children would receive an equal share of the estate.
7. In 1989, Alfreda allegedly said to Jeffrey "[the deceased and I] have made a new Will that cannot be changed even after one of us passes away so that either of us can remain in the family home." Jeffrey then had discussion with Julie-Anne and Jennifer who both stated they understood that the Wills gave them all an equal share in the estate and could not be changed.
8. In August 2008, Jeffrey and Alfreda had a number of telephone conversations in which Jeffrey expressed concerns that Jennifer might try for an early inheritance once Alfreda passed away due to the deceased's erratic behaviour. Alfreda replied "don't worry about this, you know about our Will that cannot be changed even after one of us dies, your father knows this and recently I spoke to him about this and everything is still the same, it is the same will agreement that we have always had for the last 20 years, it cannot be changed without my consent and we will not be changing our will": Affidavit, Jeffrey William North, 20 March 2020 at par 42.

The Plaintiff's Physical and Mental Condition

1. Due to a workplace motor vehicle accident, Jeffrey suffered injuries to his neck, back, leg and wrist which are currently stable but easily aggravated. In addition, Jeffrey stated he has severe and chronic post-traumatic stress disorder (PTSD) and major depression.
2. A letter from Dr Alan Mackenzie, of the Chevron Renaissance Medical Centre, Surfers Paradise, not the subject of objection, confirmed Jeffrey's diagnosis of long standing PTSD and depression. The letter also stated that Jeffrey was being monitored for his prostate symptoms and certified that he is "permanently unable to work and his condition will not improve in this regard": Affidavit, Jeffrey William North, 20 March 2020, Annexure JN-9.
3. Jeffrey currently takes Lexapro, Amitriptyline, Imovane and Diazepam to keep him stable. (Some of these are medications used to treat depression and anxiety.)
4. Jeffrey was recently diagnosed with diabetes and has a chronic disease management program in place to monitor his condition. He sees a clinical nutritionist on a 6 weekly basis for assistance. This costs $150 per visit and her prescriptions are around $200 per month.
5. In his affidavit sworn 24 July 2020, Jeffrey denied being a loner. He stated he had many friends, participated in team sports and was involved in many clubs but since suffering his injuries he has become isolated. Yet, in cross-examination, Jeffrey stated that he has "a social problem dealing with people. I don't have a lot of friends or social people (as said) so, I would go out on my own, and I did so on many occasions": Tcpt, 1 June 2021, p 62(08-10). He noted that he struggles to engage with strangers and the community as "I have triggering episodes with certain people at certain situations. I'm highly medicated now. I'm able to, to proceed in this matter here. But I don't want to be on all this medication all the time, and I have difficulties fitting in": Tcpt, 1 February 2021, p 63(47-50).
6. Jeffrey stated he would like to be able to fit into the community but he hasn't "been able to have enough money to be able to get a, a [sic] good life like my father has stated in all his wills, and that's what I would be aiming to get back into the community somehow if I got better": Tcpt, 1 June 2021, p 64(03-07).
7. He stated that "Because of my medical condition, which prevents me from living in close proximity to other persons, it is essential that I repair and maintain my home in order to continue to maintain my mental health": Affidavit, Jeffrey William, North, 30 April 2021 at par 26

Jeffrey's Financial Circumstances

1. Jeffrey denied that he is "enjoying a good life". He stated that whilst the deceased was alive he did not want to burden the deceased with his own personal problems or ask him for money.
2. In 1997, whilst employed with North Sydney Council, Jeffrey suffered a work related psychological injury. In 1998, Jeffrey was involved in a motor vehicle accident during the course of his employment. Arising out of these injuries, Jeffrey has been unable to complete any paid work since. As stated above, Annexure JN-9 of Jeffrey's affidavit of 20 March 2020, confirms Jeffrey's permanent inability to work.
3. The deceased was aware that Jeffrey had been unable to work for the last 20 years.
4. In 2002, Jeffrey received a payment of $48,000 as a settlement for injuries sustained in the workplace motor vehicle accident.
5. In about May 2008, Jeffrey was placed on a Disability Support Pension. In 2013, he was transitioned onto WorkCover weekly payments which he was receiving at the time of the hearing. At the time of Jeffrey's updating affidavit, these payments were $53,248 per annum before tax and $44,408 per annum after tax. He expects the WorkCover payments to cease in March 2023. He will then be moved onto an aged pension of around $24,000 per annum.
6. Jeffrey stated that once the WorkCover payments stop, there is a chance that his additional health benefits and medical expenses will no longer be covered and he will be unable to maintain the level of care he needs: Tcpt, 1 June 2021, p 46(45-49). This depends upon the exercise of the discretion of his worker's compensation insurance provider.
7. At the commencement of these proceedings, Jeffrey had $155,000 in savings. This was made up from a reparation payment from his army service and a withdrawal of his superannuation.
8. Jeffrey has spent an additional $5,000 to $10,000 of his savings on costs 'incidental' to this litigation. When asked what those costs included Jeffrey stated that he "bought a lot of... lotto tickets", "engaged in a bit of alcohol consumption that I don't usually engage in", "required remedial massages", "required organic food… because my stress levels have damaged my immune system" and he's "addicted to chocolate, so I've had a lot of blocks of chocolate": Tcpt, 1 June 2021, p 60(11-21).

1. A summary of Jeffrey's yearly expenditure, excluding credit card payments, as of 30 April 2021 is set out below: Description Amount Council rates $ 3,850 Water rates $ 1,863 Electricity ` $ 1,468 Mortgage Fees x 2 (per annum) $ 192 Groceries and organic fresh food $12,000 Home Telephone/Internet $ 1,080 Mobile $ 1,272 Computer, printer and software $ 500 Building and contents insurance $ 2,680 Household cleaning and other supplies $ 1,500 Property repairs and maintenance $ 2,000 Private Health Insurance $ 7,848 Motor vehicle transport and running costs $ 7,000 Motorboat/trailers running costs $ 500 Clothing and footwear $ 1,000 Personal care items $ 500 Public transport fares/car parking fees $ 200 Medical, dental and optical (excluding health insurance premiums) $ 2,000 Chemist/pharmaceuticals/vitamins, natural and nutritional therapies $ 4,600 Gifts/Holidays/Entertainment/Hobbies/Foxtel $ 5,000 Other miscellaneous expenses $ 1,500 Total $58,553

1. Bearing in mind his income, which he estimated at $44,408 after tax, how he meets the shortfall was unexplained.
2. A full catalogue of Jeffrey's needs is found below (quotes for these items can be found in Jeffrey's affidavit sworn 30 April 2021): Expense Cost Capital sum to be used to make up the shortfall of income over expenses, provide superannuation for comfortable retirement, a nest egg and a fund for the vicissitudes of life $E 700,000 To pay debt owed relating to the 2007 private care agreement $ 435,000 Necessary repairs and maintenance $ 680,000 Replacement of old furniture and appliances $ 42,347 Replacement of air conditioning system $ 18,085 Solar electricity system $ 14,488 Replacement blinds and curtains $ 14,560 Security system $ 7,142 Replace security screens $ 14,900 Therapeutic swim/spa pool $ 22,690 Replace boat and trailer $ 74,710 Future replacement of motor vehicle (in 5 years) $ 25,000 New proposed private care agreement commencing 2021 ($28,000 per year x 20 years) $ 416,000 Dentist $750 per year x 20 years $ 15,000 Clinical nutritionist ($3600 per year x 20 years) $ 72,000 General Practitioner (after Medicare refund) $ 18,000 ($900 per year x 20 years) CPAP machine and maintenance (20 years) $ 14,967 Eye specialist treatment (after Medicare refund) $220 per consult, both eyes surgery and contingency future surgery $ 220 $ 2,000 Orthopaedic Specialist treatment per consult (after Medicare rebate) $ 4,080 Surgery and contingency for future surgeries and rehabilitation $ 5,631 Urologist treatment (after Medicare refund) Oncology specialist treatment $ 8,000 Contingency for future surgery $8,000 plus rehabilitation Health insurance premium $7,847.99 per year x 20 years $ 156,959 Total expenses over 20 years $2,761,779

1. The "needs" that Jeffrey included in his affidavits far exceed the entirety of the net value of the deceased's estate. However, at the hearing, Jeffrey confirmed that he is not seeking provision of the entirety of the estate: Tcpt, 1 June 2021, p 78(31-34).
2. A building inspection report shows that Jeffrey's Surfers Paradise property has problems requiring extensive work including: asbestos, "severe corrosion damage with downpipes missing" in the guttering, structural cracking and movement, "unsafe" excessive movement in the master bedroom requiring immediate attention, amongst other things: Affidavit, Jeffrey William North, 30 April 2021, Annexure Q. A building estimate, obtained by Jeffrey, shows the cost of repairs to be between $550,000 and $680,000: Affidavit, Jeffrey William North, 30 April 2021, Annexure R.
3. In cross-examination, senior counsel for Jeffrey confirmed that Jeffrey was not seeking an amount to cover the entirety of the work set out in the building report: Tcpt, 2 June 2021, p 108(41-42). He also noted that the work was not beautification work but substantial structural repairs: Tcpt, 2 June 2021, p 108(42-44).
4. In addition to the property repairs, Jeffrey stated that for his medical condition he requires a "reliable and constant cooling and heating system within his home" in order to create a "comfortable home environment".
5. Due to his anxiety condition, Jeffrey also stated he needed security in his home, particularly a new smart home security system, to assist with remote welfare checks. This system would involve a camera in Jeffrey's home that would allow Natasha to look in at any time to check on his welfare. In cross-examination he stated that he thought "a security system where I felt secure in my house would reduce my anxiety": Tcpt, 1 June 2021, p 66(01-03).
6. As Jeffrey's current general practitioner is approaching retirement, he now attends another general practitioner, whose costs exceed any Medicare rebate by $75. Jeffrey estimates that as her fees increase over time, he will need at least $900 per year, over the next 20 years.
7. Jeffrey was provided with a mental health well-being plan on 2 June 2020 by EML Mutual (a claims management provider for workers compensation). Jeffrey stated that to participate in these recommendations and to "work towards achieving optimal health and advancing my life" he needs a heated swim/spa pool as it will "be beneficial for the exercise required for diabetic management" and "assist in improving my mental health by stress relief by having year-round use of a heated therapeutic swim/spa pool". This seems extravagant as the mental health well-being plan is fairly basic, makes no mention of a spa and was made with the underlying goal of reintegrating Jeffrey into the community where possible, rather than to encourage isolation.

1. Between 2010 and 2014, Jennifer received $60,000 from the deceased, by way of three separate amounts - $5,000, then $45,000 and later $10,000. Jennifer stated that the deceased told her this money was on the condition that if he needed aged care living in the future, the money would go towards the deposit and if he did not, she could keep the money and the interest.
2. Jennifer's only jointly held asset is $269 held in a credit union account with her former husband.
3. As at 4 May 2021, Jennifer's monthly gross income is $7,222 and her net monthly income is $5,458. She is in stable employment but did mention her hours had been reduced by 20% as a result of COVID-19.
4. Jennifer receives approximately $200 per month from her daughter, Charli, by way of contribution to household expenses.
5. Jennifer's monthly expenses (excluding any reference to cents), as at 4 May 2021, are as follows: Fixed Expenses Amount ($) Council rates $ 175 Water rates $ 85 Electricity $ 100 Petrol $ 400 Telephone bills $ 168 Internet $ 177 Accountant $ 20 Credit card fees $ 6 Household insurance $ 70 Car insurance $ 140 Medical insurance $ 404 Variable Expenses Household (groceries, food and other items) $1,400 Medications/Pharmaceuticals $ 50 Medical treatment (doctors/dentist/ chiropractor/optometrist) $ 150 House maintenance $ 200 Pool maintenance $ 50 Bus Fares/Public Transport $ 50 Car maintenance (registration/slips/ roadside service) $ 485 Other travel expenses (i.e. tolls) $ 10 Garden/Lawn $ 60 Clothes/shoes $ 100 Healthcare/Fitness $ 150 Hairdressing/grooming $ 100 Pet Care $ 50 Charities/donations $ 5 Entertainment $ 250 Gifts/Holidays/Miscellaneous $ 500 TOTAL $5,355

1. Jennifer received $476,000, after legal bills were paid, from the proceeds of sale of the Cromer home. She has not sold or purchased any other real estate.
2. At the time of the property settlement, Jennifer did not make any enquiries into any other property her former husband held, or whether she should make a claim for any superannuation, as she felt "confident that he doesn't own anything else": Tcpt, 1 June 2021, p 94(01-16).
3. Jennifer stated that she needs to be secure in her own home. Since August 2018, she has lived at the Killarney Heights property, but she does not own it. Charli also resides with her and intends to continue to do so for the foreseeable future.
4. Jennifer's friends, social networks, place of employment, and community organisations (as well as Charli's place of employment) are all located around the suburbs of Northern Sydney. As such, Jennifer stated that she has no intention or desire to leave the area.
5. If required to sell the Killarney Heights property as a result of these proceedings, Jennifer will need to find alternate accommodation. If this occurs, Jennifer stated that she would require a three-bedroom home, in good repair and condition, in the suburbs of Northern Sydney. According to a report obtained from Raine & Horne, current market prices for homes in the suburbs around the Forestville area range from $1,840,000-$1,890,000: Affidavit, Jennifer Elizabeth Hunter, 4 May 2021, Annexure B.
6. Jennifer estimated that the stamp duty to buy a house in this price range would be approximately $89,505 and the legal costs would be approximately $1,650 (inclusive of GST and disbursements): Affidavit, Jennifer Elizabeth Hunter, 4 May 2021, Annexure C.
7. Jennifer conceded she might find a 2-3 bedroom unit in the area she wants for less than $1.5 million. However, she stated in cross-examination that she could not live in an apartment as she has a very "yappy dog" who does not like being in confined spaces and she does not want to deal with body corporates or strata levies: Tcpt, 1 June 2021, p 95(06-12), p 96(21-33), p 96(40-44).
8. Jennifer estimated that the costs of a removalist would be approximately $840: Affidavit, Jennifer Elizabeth Hunter, 4 May 2021, Annexure D.
9. Allowing a small buffer for contingencies, Jennifer estimated that the overall costs to buy, and relocate, to suitable alternative accommodation in the suburbs of Northern Sydney to be in the range of $1,850,000-$1,890,000.

Submissions

1. During oral submissions, senior counsel for Jeffrey submitted that a provision of $600,000 should be made out of the deceased's estate. This estimate of what was adequate and proper comprised of about $450,000 to make repairs to Jeffrey's home and $150,000 as a "buffer for contingencies": Tcpt, 2 June 2021, p 106(36-40). He submitted that Jeffrey had a clear need to maintain and repair his home and that photographs attached to the repair report showed that it is in an extremely rundown condition and greatly in need of repair. He also submitted that whilst Jennifer did not own her own home, she has substantial savings and superannuation and comfortable secure employment. At her age, she could expect to continue to earn a reasonable income for the next 12 to 15 years.
2. In response, senior counsel for the second and third Defendants submitted that the Summons should be dismissed: Tcpt, 1 June 2021, p 97(44-48). He submitted that to make provision for Jeffrey would create an "illogical situation", where Jeffrey owns a home but Jennifer, the chosen object of the deceased's bounty, would not. The sale of the Killarney Heights property would leave Jennifer without a home, and based upon the claims of Jeffrey, without any prospect of obtaining one.
3. Senior counsel for the second and third Defendants also submitted that Jeffrey's economic and financial circumstances had barely changed in the last 20 years. He continued to receive workers compensation benefits and be able to live in his home with assistance from Natasha. He added that whilst Jeffrey had taken out two mortgages, they have not been drawn down. Thus, it was submitted, that whatever the requirement to carry out repairs to Jeffrey's home, the repairs were not so urgent as requiring them to have been carried out in the preceding 13 years (or at all).

Determination

1. As stated, there is no dispute that Jeffrey is an eligible person. He commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of Jeffrey has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, his material situation.
2. 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.
3. When the Court approaches the question which s 59(2) of the Act requires to be answered, it should place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testator: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 20 (Dixon CJ).
4. The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.
5. Whilst I have borne in mind that the relationship of the deceased and Jeffrey was not as close as the deceased's relationship with Jennifer, it is to be remembered that Jeffrey for many years has been living in Queensland, and despite living there he did maintain contact with the deceased. He also has no dependants and no financial inter-relationship with Natasha (other than the costs of the care she has provided, and is to provide.)
6. I have also considered the relationship of the deceased and Jeffrey prior to him leaving New South Wales and the assistance that he provided to the deceased in building the home earlier referred to.
7. As I must, I also have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable will-maker and the fact that the scheme existed for a number of years in different Wills. As stated above, the deceased's decisions, reflected in his last Will, should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, those decisions are based on the perspective of the deceased (which in this case, in part, may have been based on inaccurate information as to Jeffrey's financial circumstances).

Amendments 16 December 2021 - corrected judgment medium neutral citation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2021