O'Brien v Luscombe

The Issues

1. It is not contested that Lynette is an eligible person to receive provision from Stan's estate under the Act, as the step-child he brought up in his household from the age of 5.
2. Lynette's application is well out of time. The prescribed period under the Act for making this application was 18 months after Stan's death. That period expired on 21 April 2007. The present application was commenced early in 2015, almost eight years after the expiration of this statutory period. Lynette now seeks an order under the Act, s 16(2) that the time for the bringing of the application be extended.
3. Stan's estate was fully distributed in January 2006. So, Lynette also seeks an order designating some of the distributed property (including what was Stan's two-third share in the Merrylands property) as notional estate under the Act, s 24, as she must if she is now to recover anything under an order for provision.
4. The proceedings were heard on 23 September 2015. Mr J-P. Redmond of counsel appeared for Mrs O'Brien. Mr R.N. O'Neill of counsel appeared for Mrs Luscombe.
5. The principal issues for decision are: (1) whether irrespective of the delay in bringing her application, Lynette would be entitled to an order for provision out of the estate; (2) whether time for bringing the application should be extended; and (3) whether notional estate should be designated.
6. A more detailed account of Lynette's part in the Norton family gives background to her claim. This narrative represents the Court's findings.

Lynette and the Norton Family - 1960 to 2005

1. After Betty and Stan married in 1958, Betty and Lynette moved into Stan's family home in Croydon for about four months, while the Merrylands property was being built.
2. At Christmas 1958 Lynette, Betty and Stan all moved together into the Merrylands property. Lynette was enrolled at Merrylands Public School.
3. Belinda was born in 1961 when Lynette was eight. Belinda was also raised at the Merrylands property.
4. Betty did not enjoy good health. She was bedridden from time to time during Lynette's and Belinda's upbringing. As a consequence of her mother's poor health, I accept that Lynette took on responsibility at a young age for much of the caring for her sister and for the cooking and the house work.
5. The evidence suggests that Stan was at times physically and verbally abusive to all the other members of the household, Betty, Lynette and Belinda. Stan seems also to have had problems with alcohol and gambling. The explanation for his behaviour is uncertain. But Belinda thought he probably suffered from what she referred to as post-traumatic stress disorder after service in the armed forces. Stan had served in the Navy during World War II and was later employed by the Royal Australian Navy Dockyard Police.
6. In about 1968 Lynette left Merrylands High School. She was then aged fourteen. She was employed as a receptionist at a local hardware store. She undertook this work to help support the family.
7. At the age of fifteen, she left the family home for a brief period with her then boyfriend. Whilst living away from home she secured full time employment at Grace Brothers department store in Chatswood. But this living arrangement did not last very long. She returned home to the Merrylands property.
8. Soon after her seventeenth birthday Lynette married her boyfriend. Once again she moved out of the family home. The marriage lasted about 18 months before the pair eventually separated in October 1971.
9. Stan and Betty seem to have been quite entrepreneurial. From the late 1970s they successfully managed their own small business, a cool room manufacturing business.
10. In August 1972 Lynette had a daughter, Jane. The father was another man with whom Lynette was then living in a relationship. She moved to Adelaide with him for a period until the relationship ended. When she returned to Sydney she lived in shared accommodation but not at the Merrylands property. About this time Lynette met her second husband, Russell John Glover. She was married to Russell for about 10 years. Lynette and Russell lived for a period on a property near Mathoura, New South Wales. Their marriage ended about 1983.
11. During Lynette's second marriage, Betty and Stan purchased a small holiday cottage in Berry, New South Wales (the Berry property). Lynette said, and I accept, that Stan and her mother often said words to her words to the effect "This house [the Berry property] was to be my inheritance". She also said and I accept that she "understood that the house at Merrylands was to be my sister, Belinda's inheritance." This also accorded with Belinda's understanding.
12. On 29 May 1982 Belinda married Stephen Luscombe. They have two sons: Adam and Mark. The two sisters were quite close at this time. Lynette was Belinda's matron of honour. Stephen Luscombe gave evidence in his wife Belinda's case.
13. After her marriage Belinda moved out of the Merrylands property for about 12 months. But subsequently she returned home and has lived at the Merrylands property with her husband ever since. While Betty and Stan were alive, Lynette and Stephen lived upstairs in a two bedroom fully self-contained part of the house.
14. Belinda's evidence, which I accept on this subject, is that the construction of this self-contained unit within the Merrylands property was Stan's idea. Construction commenced in 1983, financed by a personal loan of $55,000.00 that Stan took out. But Belinda and Stephen agreed to make all the loan repayments. Both Belinda and Stephen were employed in Stan and Betty's business at the time. The loan repayments were deducted from their wages.
15. Belinda and Stephen paid no rent at the property. But I accept that they did pay the electricity outgoings and half the water rates and the council rates.
16. After the break-up of her second marriage Lynette lived for a period in Nambucca Heads, New South Wales. Lynette met Michael Colin O'Brien in 1985. Soon she and Michael moved with her daughter to a property in Barmah, on the Murray River in Victoria.
17. Belinda married Michael in 1988. The sisters seem still to have been close. At the wedding Belinda was Lynette's matron of honour. Belinda's two sons attended the wedding. Lynette's husband Michael O'Brien gave evidence in these proceedings in Lynette's case.
18. But the recession of the late 1980s-early 1990s adversely affected Stan and Betty's small business. In or around 1990 they decided to expand the business. They purchased a larger factory and mortgaged both the Berry and Merrylands properties to fund the purchase. But the expanded venture failed. In 1992 the Berry property was sold to avoid insolvency and the loss of the Merrylands property.
19. Betty explained to Lynette the financial consequences of selling the Berry property. By letter dated 24 March 1992 from Betty (but signed "Mum & Dad") and addressed to "Lyn & Michael", Betty said the following: "[D]id I tell you before we lost the factory and Berry … so far we have not heard from the estate agent to say if they have a buyer yet, we are asking $115,000, if we get that its to go on the Wanda St house mortgage, so I hope we get it and soon, its sad to loose (sic) Berry but better it than our house here, as there would be six of us without a home."
20. The "six of us" said in this letter to be living at the Merrylands property at that time, were Stan, Betty, Belinda, Stephen and their two sons.
21. Of course, the sale of the Berry property meant that Lynette's inheritance expectations would need to be adjusted. Lynette claimed in her affidavit evidence: "Nothing was formally discussed regarding what the arrangement would be regarding my inheritances since the Berry house had been sold. However my mother would say on occasions, words to the effect that: 'Lyn, you will now inherit half of the Merrylands house'."
22. In cross-examination it was suggested to Belinda that she knew of conversations to this effect between her mother and Lynette. Belinda said: "All I knew was they were supposed to give her the Berry property but when that was sold I was told there would be money left to her, not the property at Merrylands."
23. I accept Belinda's repeated denials of being aware that her father had told Lynette during his lifetime that she (Lynette) would receive half of the Merrylands property on his death. I accept her on this as a witness of truth. But her version is quite probable. Had she been aware of this passing between Stan and Lynette it is difficult to accept that nothing would have been said about it between the sisters for so long.
24. By 1992, Belinda and Michael had fully repaid the $55,000.00 loan to Stan and Betty. Stan then transferred a one-third interest in the Merrylands property to Belinda. A copy of the certificate of title of the Merrylands property issued on 18 November 1992 records the then registered proprietors of the land as: "Stanley Harold Norton & Betty Norton as joint tenants in 2/3 share & Belinda Gai Luscombe in 1/3 share as tenants in common."
25. Lynette said she did not become aware of this transfer of a one-third interest in the Merrylands property until July 2014, when she obtained a copy of Stan's will. I accept her evidence as to this. The transfer of the one-third share in the Merrylands property was a private arrangement between Stan and Betty on the one side and Belinda on the other, consequent upon the discharge of Belinda's loan obligations. It was suggested to Belinda in cross-examination that the one third share was transferred to Belinda because Stan and Betty wanted to keep the Merrylands property free of creditors. But I accept Belinda's version that the transfer was consequent upon payment out of the personal loan.
26. In August 1992 Lynette and Michael stayed at the Merrylands property in order to attend Lynette's uncle's funeral. Michael's affidavit evidence is that during discussions at the time of the funeral about Lynette's uncle, Stan said to him words to the following effect: "Since Lyn's cousin Ross is an only child, he will inherit his parents entire estate on his mother's passing unlike Lyn and Belinda who will have to share the Merrylands property."
27. This part of Michael's evidence was not tested in his cross-examination. It is not clear to whom this statement was said to have been made other than perhaps to Michael himself. The August 1992 visit related to Lynette's uncle's funeral was not specifically identified in any of Lynette's affidavits, beyond her general statement that: "I was present during most of the discussions mentioned in the witness statements/affidavits provided by my husband … where it is said by my mother and/or father that this was their wish."
28. In 1994 Betty and Stan visited Lynette and Michael at their property in Barmah. This was the last time that Lynette saw her mother Betty.
29. Betty died in June 1996. Lynette did not ask to see a copy of her mother's will. After Betty's funeral, a wake was held at the Merrylands property. Lynette, Michael, Belinda, Stephen and Stan were all present at the wake. Lynette's affidavit evidence is that at this time she raised with Stan the subject of her future inheritance and that he said to her words to the effect: "[T]here could be problems as at that point, the property at Merrylands was still on the one title but he would be looking into it."
30. I accept this evidence. And Stan's response seems to have been a recognition on his part that Lynette should get an inheritance, despite the sale of the Berry property. But Stan's statement means little more than that Stan saw this as a problem he still had to solve.
31. Michael's oral evidence was that he could not "quite recollect exactly" what was said in this conversation after Betty's funeral. But he said of Stan's comments that Stan was "just alluding to the fact that … it could be a complicated matter in regards to an inheritance". Consistently with the Court's above conclusion about Stan's statement, Michael said in evidence that he did not think that "it quite got that far" as Stan saying that he wanted to give any part of the Merrylands property to anyone. Rather Michael said that the "whole gist" of the conversation was the "continuity of the house and continuity of the family property going to, you know, stay in existence happily". This is just the non-specific type of conversation that could be expected after a funeral.
32. After Betty's funeral, Lynette next saw her step-father, Stan, in 2000, when she came to Sydney to visit her aunt, who had been admitted to hospital in Manly. This was the last time that Lynette saw Stan before he passed away in 2005. She did not travel to Sydney to see him in this period. But she did stay in touch with him by letter and telephone. She also maintained regular contact with Belinda after the funeral, principally through letters and emails as well as occasional telephone calls. These communications continued up until they fell out in December 2013, a matter which will be dealt with below.
33. Stan suffered from heart problems in the later years of his life. Despite these health issues Stan was clear that he did not wish to be placed into a nursing home. I accept that Belinda, Stephen and one of their sons cared for Stan until he died on 21 October 2005. It should be inferred that Stan appreciated the efforts that Belinda and Stephen, and their son, had committed to his care in the last few years of his life. Stan's last will was made in April 2014, some 18 months before his death, at a time when I infer he appreciated the benefit of the care that Belinda and Stephen and their son had been giving him in these last years of his life.
34. Lynette made claims in her evidence of disrepair and poor hygiene at the Merrylands property during this period. Belinda disputes these claims. These issues were not further explored in Belinda's cross-examination. It is not necessary to make findings about them.

Stan's Estate

1. As outlined Belinda took a grant of probate on 28 November 2005 as executrix of her father's estate. Stan's will admitted to probate relevantly provided: "2. I APPOINT my daughter BELINDA GAI LUSCOMBE to be my Executor and Trustee ("my Executor"), but if she should pre-decease me then I appoint my daughter LYNETTE BETTY O'BRIEN to be my Executor in her stead. 3. I GIVE $5,000.00 to my daughter LYNETTE BETTY O'BRIEN and $3,000.00 to SYLVIA CHRISTINE PARACHI (nee Norton) of Derby in the United Kingdom. 4. I give the whole of the residue of my estate to my daughter BELINDA GAI LUSCOMBE, but should she pre-decease me leaving a child or children who survive me and attain the age of eighteen (18) years, then that child or those children will take the residue of my estate which their mother would otherwise have taken, and if more than one, as tenants in common in equal shares."
2. The Inventory of Property attached to the grant of probate set out the following property owned solely by Stan at the time of the grant: No. Description Estimated or Known Value 1 REAL ESTATE (a) 2/3 share in Merrylands property 2 BANK ACCOUNTS (a) Commonwealth Bank Term Deposit (b) Interest accrued on above account (c) Commonwealth Bank Pensioner Security Account (d) Interest accrued on above account 3 MOTOR VEHICLES (a) Ford Festive 1997 (b) Ford ED Wagon 1994 TOTAL: $242,922.03

1. The estate also received the additional sums of $2,200.00 from Merrylands RSL and $61.55 from HCF health insurance. The motor vehicles referred to in the Inventory of Property were in a state of disrepair. Their combined final actual value at time of their trade-in was only $1,500.00.
2. On 5 January 2006 Stan's two-thirds share in the Merrylands property was transferred to Belinda under the will as part of his residuary estate. The Certificate of Title of the Merrylands property issued on 5 January 2006 records the sole registered proprietor of the land as Belinda.
3. As the earlier narrative shows, on 10 January 2006 cheques in the sum of $5,000.00 and $3,000.00 respectively were sent to Lynette and Sylvia in satisfaction of the bequests under the will. This was the only distribution Lynette received from Stan's estate.
4. On 11 January 2006 Coleman & Greig prepared a Final Distribution Statement for the estate. After making deductions for costs and disbursements in the amount of $3,220.95, the final amount available for distribution was recorded as $38,685.58. The statement recorded the following final distributions as having been made: "Lynette Betty O'Brien - bequest $5,000.00 Sylvia Christine Parachi - bequest $3,000.00 Belinda Gai Luscombe - residue of estate $30,685.58 $38,685.58"
5. I accept Belinda's evidence that there is no longer any estate remaining for distribution. As at 27 August 2015, Belinda has borne personally liabilities in the sum of $19,558.44 on account of the estate's legal fees associated with these proceedings.

Events after Stan's death

1. Lynette and Belinda remained on good terms following Stan's funeral. They regularly communicated with each other including occasionally by email. Lynette described their relationship at the time as "good" but "delicate". Lynette has not visited the Merrylands property since her father's death.
2. In 2009, some four years after Stan's death, Belinda took out a personal loan to fund renovations on the Merrylands property. Repairs were made to the kitchen. Lynette and Belinda exchanged communications about the progress of these repairs. In these various communications Lynette did not raise and Belinda did not acknowledge that Lynette might have any financial interest in the future sale of the Merrylands property. I accept as Belinda explains that these were communications of matters of mutual sisterly interest, "At the time she [Lynette] was renovating her own property and was telling me she had bought things to put in her own place so we were discussing what we were doing and what they were doing".
3. But late in 2013 Belinda posted on Facebook photographs of the new kitchen installed in the Merrylands property. Belinda posted a comment to accompany these photos. The post said words to the effect: "Belinda: Isn't it wonderful that the House is turning 55 years old [this] Christmas Eve and the same family still lives in it."
4. Lynette claims, and I accept, that Belinda's post also included words to the effect: "and we're having a big party. I bet you wish you could be here Lyn". The following exchange then occurred on Facebook: "Lynette: Does it mean that you are finally going to sell the house and give me my share? Belinda: You already got your share along with Sylvia. Lynette: That pittance amount. That's not what I was told I was getting."
5. Belinda then "blocked and deleted" Lynette as a "friend" on Facebook. Relations between them immediately soured. Following the disagreement Lynette sought legal advice and made inquiries about Stan's will. The precise trigger for Lynette to make for the first time in late 2013 her statements about her expectations in relation to the Merrylands property, was not explored in evidence and remains something of a mystery.
6. Lynette's affidavit evidence was that she was not aware, given how much time had passed since Stan's death, that she could contest the will or that there was any legal recourse available to her. However, in 2014 she sought information and advice from solicitors, Messrs Slater & Gordon. After obtaining a copy of Stan's will, she instructed her present solicitors, Moama Law, to commence these proceedings.
7. Lynette's and Belinda's current medical and financial positions are relevant to the consideration of Lynette's family provision claim and are considered below. I accept the evidence of each of them on these issues.

Lynette's Current Circumstances and Financial Position

1. Lynette currently resides at a five acre property in Barmah, Victoria, which she owns jointly with her husband Michael. Lynette and Michael are estranged and have been separated since 1 July 2013. But they still live under the one roof at the Barmah property and share some living expenses. Neither has yet taken steps to formalise a divorce.
2. They also jointly own and have managed for many years a small local business through a company, Gondwana Canoe Hire Pty Ltd. Each of Lynette and Michael holds one of two ordinary fully paid shares in this company. Total turnover for the business in the year ending 2013 was $8,290.08. That year the company paid director's fees totalling $983.00, divided between Lynette and Michael.
3. Lynette describes herself as a pensioner/part-time tourist operator. Her monthly expenditure equals her gross monthly income of $1,750.00 and comprises of the following: "Mortgage repayment $100.00 Rates charges and outgoings $62.50 Services $78.50 Food and household supplies $800.00 Medical expenses, insurance and miscellaneous $709.00 Total $1,750.00"
4. The only asset that Lynette records as property solely owned by her is a motor vehicle with an estimated value of $3,000.00.
5. Lynette mostly holds assets joined with Michael . Her assets are listed below: No. Description Estimated or Known Value 1 Barmah property E$95,000.00 2 Contents (chattels and furniture) E$10,000.00 3 Gondwana Canoe Hire Pty Ltd (equal shareholding) E$10,000.00 4 Company Bank Account with Bendigo Bank $750.00 5 Joint Bank Account with Mr O'Brien with Bendigo Bank $1,614.00 Total $117,364.00

1. Lynette has jointly mortgaged the Barmah property with Michael to Bendigo Bank in an amount of $8,000.00.
2. Lynette is not in good health. She suffers from a number of medical issues including: fibromyalgia; anxiety/depression (diagnosed in 2000); gastro-oesophageal reflux disease (diagnosed in 2001); osteoarthritis (diagnosed in 2001); inflammatory bowel disease (diagnosed in 2006); hypertension (diagnosed in 2008); autoimmune hepatitis (diagnosed in 2009); fatty liver disease (diagnosed in 2009); and retinal haemorrhage in the left eye (diagnosed in 2014).
3. Lynette identifies that her immediate financial need is for an allowance so she can relocate from her present residence in Barmah to a retirement village or nursing home in either Echuca or Moama. She says that such a move will give her better access to medical and pharmaceutical supplies and nearby shopping.

Belinda's Current Circumstances and Financial Position

1. Belinda continues to reside at the Merrylands property with her husband Stephen. Belinda and Stephen's two sons now live independently, away from the family home. She is not presently employed outside the home and describes her occupation as that of a "housewife". In the 1980s and 1990s she worked for wages but she has not done so for a long while, and certainly not since her father's death. She does not earn any income and has no superannuation. Her husband Stephen works as a truck driver and receives a monthly income of approximately $3,322.72. Belinda's affidavit evidence is that their joint monthly expenditure is approximately $3,648.82.
2. The only asset Belinda holds in her own name is the Merrylands property. As at 8 April 2015, it has an estimated market value of $750,000.
3. Belinda jointly holds assets with her husband to a total value of $4,030.00.
4. Jointly with her husband, Belinda has current liabilities of $89,437.29. These liabilities are almost wholly accounted for by a mortgage to St George Bank over the Merrylands property in the sum of $78,860.00. Belinda's evidence is that this loan was taken out to pay for legal fees in these proceedings.
5. Belinda also gives affidavit evidence of various repair and maintenance expenses she has incurred at the Merrylands property since 2006. These expenses were incurred almost entirely before Belinda first had notice in late 2013 of Lynette's expectation of an interest in the Merrylands property. These expenses were as follows: Replacement kitchen $15,000.00 Replace and install stove $1,331.00 Replace and install hot water service $500.00 Repairs to front tap and meter connections $585.20 Repairs to sewage pipes and replacements $329.50 Drainage service and leak in wall $1,000.00 Repair and reseal shower floor $550.00 Repaint kitchen and dining room $320.00 Repairs to rumpus room walls $60.00 Replace guttering to rumpus room $150.00 Replacement of downstairs toilet $650.00 Total $20,475.70
6. Belinda also suffers from a number of medical conditions. These include: pituitary microadenoma, limited scleroderma (otherwise known as CREST syndrome) and asthma.

Credibility of Witnesses

1. Lynette was a reasonably direct witness who answered questions without embellishment. She adhered to her story. The Court mostly accepts much of her evidence, except on the facts relating to the important question of whether she expected that Belinda was going to sell the Merrylands property and distribute part of it to her. Lynette could not give a very coherent account of why she had not asked her sister about the future sale of the Merrylands property, so she could realise her share.
2. Lynette's husband Michael was an honest witness but his memory was quite poor. He could not verify ever having urged his wife to ask the defendant about her inheritance.
3. Belinda was a credible and wholly reliable witness. I accept that she quite genuinely did not know that her sister claimed any interest in the Merrylands property before late 2013. Upon testing she convincingly adhered to that account. I accept she was genuinely surprised when her sister raised the issue of selling the house on Facebook in 2013.
4. Stephen was a credible witness but added little of substance in oral evidence to what his wife had said.

Discussion as to the Delay Issue

1. The plaintiff's explanation for the delay in bringing these proceedings was that she remained under the impression, as she said she had always been promised, that she would receive a half share of her late parent's estate. According to the plaintiff, the moment this expectation was shattered during the Facebook exchange in Christmas 2013.
2. It is a strange exchange. It deserves closer analysis. I accept that it took place in the way Lynette claims. The Facebook entries are not in evidence. Belinda does not really dispute the text of the exchange. After Belinda said, "I bet you wish you could be here Lyn", Lynette replied. She did so because, as she explains, "I thought this was a weird comment". Her written reply was in the words "what is so special about 55 years? Does it mean that you are finally going to sell up and give me my share?" The first time that Lynette said that she appreciated that Belinda did not share her expectation about the future sale of the property was when she received the reply from Belinda, "You already got your share, along with Sylvia".
3. Lynette expresses that she was shocked at this reply. But looked at objectively Belinda's statement is hardly surprising, given that as executrix she knew long ago of the estate's full administration and knew that Lynette had not raised the issue of a greater share in the estate with Belinda at any time in the eight years between her father's death in October 2005 and this exchange in late 2013. No discussion either before or after their father's death had taken place about the issue of Lynette's entitlement. Lynette had never asked her for a copy of the will to verify what she [Lynette] was to receive. Lynette says that she understood that Belinda well recognised her entitlement. But if this were true it would make Lynette's raising of this subject not at all difficult. I do not accept that Lynette did believe that Belinda recognised Lynette's entitlement.
4. Lynette never actually asked Belinda, after their father's death "When are you going to sell the house?" Yet Lynette appreciated the only practical way that she could realise a share of the house was if it were sold. But Lynette unconvincingly denied it ever having occurred to her to ask her sister, "Well how am I going to get my half share? When is it going to happen?" She was uncomfortably vague in her response to whether she asked this of her sister. First she said that she did not recall, and then shifted to, "Perhaps I did". I do not accept that she ever made such a statement to her sister Belinda. And her failure to do so is consistent with a lack of any belief on her part that she had such an entitlement under Stan's will.
5. It is difficult to accept Lynette's professed reluctance to raise the sale of the Merrylands property with her sister. I accept that Belinda told Lynette that the cash which their father had left in the estate was money to do renovations on the house. But Lynette then seems to have inferred in 2013 from having been told this that: (1) the house would be sold after capital improvements had been done; and (2) that after the sale, part of the proceeds of the sale would be distributed to her.
6. But this assumption of sale and distribution was not warranted based on Belinda's statements. Nor did Belinda encourage it. Why Lynette never even tested her claimed assumption with Belinda is mysterious. Lynette committed to having a good relationship with Belinda at the time of their father's death. That quality of their relationship appeared to have continued until almost Christmas 2013. But the relationship had its sensitive areas. Lynette's evidence can be accepted that, "It was a delicate relationship…as well, in the sense that…I didn't want to upset her and give her any reason to suggest that …I was pushing her…or being inconsiderate of her circumstances and her health…". It can be accepted that Lynette did not want to appear to be pushy, greedy or inconsiderate in relation to her sister. And I accept that Lynette generally bore such considerations of delicacy in mind when dealing with Belinda.
7. But there is more than one way of raising in a delicate relationship the difficult subject of honouring an obligation, especially where the person hoping to raise the issue of the obligation believes that the other person recognises the obligation. For example the Court asked Lynette whether something could have been said like, "Look I don't want to put any pressure on you, but I am just wanting to generally know what you think - what your plans are - so that I can understand myself when the share in the house might come to me".
8. Lynette's answer to this was puzzling. She said she thought that "Well when she gets around to doing the renovations then, well, we can sort of maybe talk about it then". Lynette explained that she had a roof over her head at that point of time and that Belinda had health problems and her children were still with her. It can be accepted that Lynette did not face particular pressure to force the issue. But it is difficult to accept that there was not a single moment in eight years in which Lynette could not have diplomatically approached Belinda and without applying immediate pressure on her asked her what her long term plans were for the realisation of Lynette's claimed interest in the property. If there were no immediate pressure on Lynette to seek a sale by Belinda, then there was all the more reason for Lynette to broach the matter generously allowing Belinda all the time that she liked. This would have been the fairest way of warning Belinda that she did need to make long term plans to sell the house.
9. Lynette's explanation for not raising at all the subject of sale with her sister, was that, "I felt that she was aware of my expectations". But it is difficult to give any rational basis to Lynette's assumption that Belinda "was aware" of Lynette's expectations. Lynette had not discussed her expectations with Belinda. She had never asked for a copy of Stan's will from her sister. She had never discussed the contents of Stan's will with her sister. She had never discussed with her sister what her father had said to her, Lynette about her inheritance and the Merrylands property. Nor did Lynette know whether or not her father had told Belinda what he had told her, Lynette. Indeed Lynette may have not even had to ask Belinda about the will. Lynette could possibly have approached the solicitor who had corresponded with her about her bequest to see if she could find out more about the will, as she ultimately did in 2014.
10. Lynette added a further explanation: that she did not want to upset or put pressure on her sister and that she was prepared to wait until "the children leave home", only Belinda and her husband were at the Merrylands property and "they might want to downsize". It is odd that Lynette was not sufficiently inquisitive even to ask Belinda when these events might come to pass.
11. Lynette's other reason for not raising the issue is because "that was general knowledge, that my sister knew that". But when confronted with the proposition that if it was "general knowledge" then there should not be any difficulty in raising it, she gave the unpersuasive answer, "it just didn't seem to be necessary to raise it".
12. But there was a necessity to raise the matter. If the matter was not raised, there was a tangible risk that Belinda would conduct herself on the basis that the Merrylands property was hers and free from claims. Lynette could never be sure that she was not mistaken without checking with Belinda.
13. Lynette would not recognise in her oral evidence that there was even a risk that she might be wrong or that there could be a misunderstanding about Belinda recognising her entitlement to a share in the Merrylands property. She said, "I just assumed she was aware that - we were being treated as equals and we were going to get a half share. That's how we were brought up…that was always implied". But the firmer Lynette's conviction of Belinda's awareness, the more difficult it is for her to account for not raising the matter with Belinda. If, as Lynette said, "It had always been known in the family that that was the arrangement" and that she did not think there "would have been a misunderstanding", then the matter could readily have been raised without placing pressure on Belinda.
14. Lynette seemed to be a reasonably astute person. She was able to run a small business, which implies skills involving some degree of future planning and financial responsibility. At the time of trial she was aged 62. At the time of the Facebook exchange she would have been 60. It is difficult to accept that she did not foresee well before this that her future retirement was something for which she should plan. Such considerations would ordinarily prompt a person in Lynette's position, who believed she had an entitlement to a share in the Merrylands property, to raise with her sister a matter of such importance for her future financial security.
15. Another reason for Lynette to make enquiries of Belinda even earlier was Coleman & Greig's January 2006 letter. She says that she did not interpret the letter as saying that she was only going to get $5,000 under the will. The letter said, "The executor is in a position to make a final distribution to the beneficiaries and accordingly I enclose a trust cheque in your favour in the sum of $5,000". The more natural construction of the words in the letter is that it represented the "final" distribution of Lynette's interest in the estate. But Lynette says that she did not understand that this meant that she was only going to get $5,000. She says she thought that it meant that from then on Belinda would be in a position to do the renovations, and sell the house, so that Lynette's share could be distributed to her. I do not accept that was her genuine assumption arising from the letter. But even if she did interpret the letter this way it follows that she must have known from as early as January 2006 that there was no further obstacle to the executrix distributing her share. If that were so there was all the more reason for Lynette to make some enquiry about what might delay the distribution of her share. She explains her failure to enquire on the basis that the house renovations were proceeding. But she did not even enquire of her sister whether the renovations that were being done were a prelude to selling the house. Her case is that she assumed, without enquiring, that the renovations were preliminary to the sale. Even on her own version of what she believed her conduct is not very prudent.
16. Lynette's evidence to explain her delay in bringing her claim was not very satisfactory. It is difficult to reconcile any belief on Lynette's part that she was entitled to a half share in the estate with her conduct between January 2006 and about Christmas 2013. The history is far more consistent with Lynette developing an opinion, for the first time, at the time of her conflict with her sister about Christmas 2013 that she had some entitlement to a share in the estate's residue.
17. Conversations between Lynette and her husband, Michael, provide a point of potential corroboration for Lynette that she held, before December 2013, the view that she was entitled under Stan's will to a share in the Merrylands property. But even these give her little assistance. Michael was vague as to whether Lynette had ever said to him that she expected the Merrylands property to be sold in order for her to receive a share at some stage after Stan's death. All he could say was, "I think so". He had little conviction that he suggested to Lynette that perhaps she should talk to Belinda about when her share might be realised. This is a course he might have been expected to take. But he says, less than convincingly that it was not "in my place to be telling her".
18. But Lynette's evidence on this was also not clear that she had ever had a conversation with her husband about it.
19. I do not accept that Michael had discussions with Lynette over the long term in which she confirmed to him a belief that she was entitled to a share in the Merrylands property. But such discussions may have taken place after late 2013 when relations between the sisters fractured.
20. The Court will now deal with the three issues raised.

(1) Would Lynette have Succeeded Irrespective of Delay?

1. As a step child of the deceased, Lynette is not a child under the Act, s 6(1) "eligible person" (b) but Belinda accepted that Lynette had been a member of Stan's household since the age of 5 until the age of 17, had a close connection with the deceased and was an "eligible person" under the Act's definition of "eligible person", sub-paragraph (d). Before an order can be made out of the estate of a deceased person for an "eligible person" within sub-paragraph (d), it is necessary for the applicant to show there are factors warranting the making of the application: the Act, s 9(1). That there were factors warranting this case was not in contest.
2. The question now relates to whether, had it been brought within time, an order for provision would have been made in Lynette's favour. The test of whether provision should be made in any case was set out in the Act, s 9(2): "(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that: (a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, … is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person."
3. There are many judicial statements summarising the operation of this test, that is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test: "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
4. Whether the two-step test operated with the same full vigour in the current legislation has been discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case.
5. Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". These authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 ("Drury") at [153], [154], [155], [158] and [160]. Although Drury considers cases under the successor legislation it also provides an appropriate summary of the applicable law in these proceedings. Drury relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of 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." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use 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.""
6. The principles the Court should take into account in respect of adult children were comprehensively summarised by Hallen J in Hogan v Hogan [2013] NSWSC 1405 at [130] and I need not repeat them.
7. Was the provision for Lynette inadequate for her proper maintenance, education and advancement in life? In my view, whether looked at now or at any time when the application may have reasonably been brought in time, the provision made by the deceased for Lynette was not adequate for her proper maintenance, education and advancement in life. Five thousand dollars is far less than will be required for her to be placed into a suitable aged care home in Echuca or Moama area. Evidence tendered by consent after the hearing showed that to purchase a private aged care facility would cost her between $195,000 and $245,000. If she entered into a government subsidised aged care facility she would still have to pay a daily fee. The range of those daily fees is not clear on the evidence and will no doubt depend on her precise circumstances at the time. But the reality is that Lynette has very few assets, she has substantial medical challenges and is need of capital.
8. But whether looked within a few years after Stan's death or even now, Belinda's own clear needs for stability and security would heavily displace Lynette's claim. A substantial award in Lynette's favour would mean that Belinda would have to mortgage the Merrylands property or even sell it. And Belinda's claim on the testamentary bounty of the deceased is strongly supported by the fact that she spent so long in the same household as the deceased, the fact that she and her family gave intense support to Stan in the last few years of his life and the fact that she is Stan's biological daughter.
9. Doing the best the Court can on the available materials, in my view had these proceedings been brought within approximately three years of Stan's death a legacy of about $50,000 for Lynette may have been appropriate. Now a legacy of at most $100,000 might be appropriate. This is an amount which would allow some provision for Lynette but without placing too much financial burden on Belinda. Although Belinda says she could not now even raise this amount.
10. But such considerations are ultimately theoretical because in my view the time for bringing this application should not be extended.

(2) Should time be extended?

1. In my view time for the bringing of this application should not be extended.
2. The relevant principles in relation to extending time under the Act, s 16(2) and (3) are clear. Section 16(2) provides: ""(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow."
3. Section 16(3)(b) provides: ""(3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) sufficient cause is shown for the application not having been made within that period."
4. The authorities suggest that matters relevant to the exercise of the discretion to extend time include the existence and strength of the case for relief, the explanation given for failure to commence proceedings in time and any prejudice caused by the late commencement of the proceedings and any unconscionable conduct by the other side: Lewis v Lewis [2001] NSWSC 321. Justice is the paramount consideration: Butler v Morris [2012] NSWSC 748. The length of the delay can be of particular relevance: Verzar v Verzar [2014] NSWCA 45.
5. Here the length of delay was substantial, nine years after the death of the deceased and about eight years after the expiration of the statutory period. The length of this delay requires sound explanation.
6. Lynette's state of mind during this period has already been extensively analysed in these reasons above. In my view Lynette could not have been under any misapprehension that the estate was being finalised in early 2006. I do not accept her evidence that she was giving her sister Belinda time to sell the Merrylands property in her own time and did not wish to pressure her before that. The facts in my view are far more consistent with Lynette being motivated to bring a claim in late 2013 after some difference arose with her sister. Whether that difference was before the Facebook exchange or in the Facebook exchange itself is unclear but does not matter. There was no conduct on Belinda's part that induced Lynette to delay in bringing proceedings. Indeed the delay is principally to be explained by Lynette's unreasonable and imprudent failures to make enquiries of her sister or other persons about the contents of Stan's will for an excessive period.
7. Finally there is prejudice to Belinda if the claim is brought now. She says, and I accept, that she would not be able obtain any further finance to satisfy a further legacy. It may readily be inferred that position has arisen because she has expended all the cash that came to her through the estate on house renovations, she has invested further money in the house over the years since Stan's death and she has had to borrow to defend herself in these proceedings. That precise combination of circumstances has arisen to her prejudice because of Lynette's substantial delay in bringing this claim.

(3) Notional Estate

1. Were time to be extended the Court has held that it would be satisfied that an order for provision ought be made. But as the estate has been distributed the Court would be required to consider under the Act, s 24(2) making "an order designating as notional estate of the deceased person such property as it may specify", which may be the property distributed. But such an order should not be made unless the Court has considered the matters set out in s 27(1) and the restrictions set out in the Act, s 28.
2. It is not strictly necessary to decide this question because of the conclusions the Court has reached in relation to extending time. But were the Court required to do so, in my view the same considerations that lead to the conclusion that an extension of time should not be granted also indicate that the Merrylands property should not be designated as notional estate. Belinda has no other property to designate as notional estate.
3. To designate the Merrylands property as notional estate would interfere with "reasonable expectations in relation to property": the Act, s 27(1)(a). Moreover, "the substantial justice and merits involved in making or refusing to make the order" indicate that the order should be refused: the Act, s 28(1)(b).
4. Belinda has developed reasonable expectations in relation to the Merrylands property before Lynette notified and brought her claim. She has husbanded her spare funds into the Merrylands property in such a way that the "substantial justice and merits" of the case suggest that her careful planning for her future should not now be disturbed.
5. It is not necessary for the Court to hypothetically enter upon the considerations raised by the Act, s 28(1)(d). But I would observe that Lynette's claim here, compared to the medical and financial position of her sister Belinda, is not a claim of such extreme need that it would necessarily qualify as "special circumstances" within the Act, s 28(1)(d) allowing the designation of notional estate where time has been extended: see Lewis v Lewis [2001] NSWSC 321.

Conclusions and Orders

1. The Court will not extend time under Family Provision Act, s 16 for the bringing of this application outside the prescribed period. It therefore fails. Costs would ordinarily follow the event. But if a special costs order were required, my Associate should be contacted within 7 days. The orders of the Court will be: 1. The plaintiff's claim is dismissed; 2. Order the plaintiff to pay the defendant's costs of the proceedings.

Amendments 15 October 2015 - [41] "ad" amended to "and" 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: 15 October 2015