Oxley v Oxley

Application for Joinder of Cindy

1. On Thursday, 23 November 2017, my Associate, at my request, sent an email to the parties asking whether consideration had been given to the joinder of Cindy, as she was the sole owner of the Kingsford property, the deceased's interest in which was sought to be designated as notional estate.
2. Counsel for Gregory responded promptly, by email, stating that the Plaintiffs had not sought such joinder, and that, Gregory, as executor, "has a responsibility to defend the actual and alleged notional estate. As a consequence, it (sic) will be defending the interests of the owner of the property. That view has been conveyed to the owner of the property."
3. The solicitor for Gordon and Gloria responded to the email from the Court, later the same day, stating that the view of their counsel was: "[W]e will need to amend the summons to join Cindy…as the second Defendant in these proceedings. In a separate email, I will enclose the filed Notice of Motion and Affidavit. We respectfully request the Notice of Motion can be heard first thing Monday morning prior to the commencement of the hearing."
4. Late on 23 November 2017, the Plaintiffs' solicitors sought to file a notice of motion seeking an order that leave be granted to file an amended Summons joining Cindy as the second Defendant in the proceedings and an order that the costs, of, and incidental to, the notice of motion, be costs in the cause.
5. In support of the notice of motion there was filed, and read, an affidavit sworn 23 November 2017, of Mr G Kolokossian, the solicitor with the day to day carriage of the matter for the Plaintiffs, to which was annexed a copy of the proposed amended Summons, as well as an affidavit of Mr V Vartanian, a mortgage broker who had been instructed to provide "an opinion with respect to the borrowing capacity of Cindy".
6. The leave of the Court was not sought in relation to the filing, and serving, of the notice of motion, or the affidavits, although the notice of motion was made returnable at 10:00 a.m. on 27 November 2017 (the first day of the hearing). (There was no available time to deal with the notice of motion on 24 November 2017.) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rule 18.4, provides that "unless the court orders otherwise, a notice of motion must be served at least 3 days before the date fixed for the motion". However, at the hearing, there was no objection to the Court dealing with the notice of motion.
7. On the morning of the hearing, counsel for Gregory informed the Court that there was no objection made by Gregory to the joinder of Cindy as the second Defendant. Cindy was present in Court and she expressly consented to her joinder. Counsel confirmed that his solicitors then acted for Gregory and Cindy.
8. (Whilst the affidavit of Mr Kolokossian was read on the notice of motion, the Court, upon the objection of counsel for Gregory and Cindy, did not grant leave to read the affidavit, sworn 23 November 2017, of Mr Vartanian, because it had been served later than a reasonable time before the occasion for using it had arisen: UCPR rule 10.2; and because the Defendants did not have any opportunity to respond to it: T33.08 - T33.24. (The affidavit was marked "MFI1" and remains on the Court file.))
9. UCPR rule 6.24(1) provides: "(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party."
10. Accordingly, I made the following orders: "1. That Cindy Therese Oxley be joined as a second Defendant in these proceedings. 2. That leave is granted to the Plaintiffs to file an Amended Summons by 4:00 p.m. on 27 November 2017. 3. There be no order as to the Plaintiffs costs of the notice of motion filed 23 November 2017, noting that those costs are not to be borne out of the estate even if an order is made for the Plaintiffs' costs to be borne out of the estate."
11. The amended Summons was filed in the Registry, by the Plaintiffs' solicitors on 27 November 2017.
12. The joinder of Cindy as the second Defendant was necessary in all the circumstances. In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131], the plurality of the High Court accepted the submission that "where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined".
13. Handley JA had earlier remarked, in Smith v Dayman [1994] NSWCA 286, that "[a] court could not ordinarily make orders designating property as notional estate without the owners being parties to the proceedings". Both of these decisions were recently referred to by Gleeson JA (with whom Simpson JA agreed) in Yee v Yee [2017] NSWCA 305, at [196] - [198].
14. The purpose of the joinder of Cindy was to allow her an opportunity to be heard, to bind her to the outcome of the proceedings, and to minimise any risk of a multiplicity of proceedings. In the circumstances, she is a proper Defendant. Furthermore, there have been no additional costs incurred by Gregory and Cindy as a result of the late application for joinder. As counsel had asserted, Gregory had been defending her interests.

Background

1. In a claim for a family provision order, factual context is necessary. It is convenient to begin with a short statement of background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.
2. The deceased was born in August 1922. She married her husband, Gordon James Oxley Snr, in September 1946, but he predeceased her, having died in December 1987. The children of their marriage were Cecil John Oxley (known as "Johnny"), who was born in late 1941, and who died in about 1993 or 1994; Gloria, who was born in April 1947, and who is now 70 years old; Margaret Ann Oxley, who was born in July 1948, and who died in 2000; Gordon, who was born in July 1950, and who is now 67 years old; Gregory, who was born in February 1955, and who is now 63 years old; Deborah Marie Oxley, who was born in June 1958 and who died in June 1980; Mark, who was born in June 1960, and who is now 57 years old; and Cindy, who was born in October 1965 and who is now 52 years old.
3. The 2011 Will provided for a gift of "my gold watch with brown leather band and engraving…" to the deceased's granddaughter, Alycia Deborah Maree Oxley (Cindy's daughter); a gift of "all my rings and the rest of my jewellery to my daughter, Gloria…"; a gift of "my household goods and personal effects to my daughter, Cindy…"; and a gift of "the whole of the residue of my estate after payment of my just debts, funeral and testamentary expenses in equal shares to such of my children who survive me, namely, Mark … Gloria, … Gordon … Gregory and Cindy…".
4. (It can be seen from the terms of the Will that, despite the complaint made by Gloria, the deceased did recognise her, as a biological child. The deceased made a specific bequest of some personal items to Gloria and divided her residuary estate equally between her five surviving children.)
5. In the Inventory of Property attached to, and placed inside, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, value of $86,060. The estate was said to consist of money in bank ($85,760), jewellery ($300), and personal effects (of no commercial value). (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)
6. In addition, Gregory disclosed jointly held property, being real estate at Kingsford ("the Kingsford property"), a suburb of Sydney, which the deceased held as a joint tenant with Cindy. The deceased's interest therein, was disclosed as having an estimated value, then, of $500,000. It is that interest which is sought to be designated as the notional estate of the deceased.
7. (Practically, unless there is an alternative method of satisfying any family provision order, the Court would have to make an order that the Kingsford property be sold, and, then, an order designating so much of the share of the proceeds of sale as notional estate as is necessary to satisfy any order for provision and, if necessary, the costs of the proceedings.)
8. In an affidavit sworn on 16 August 2016, Gregory disclosed that whilst there had been no distributions of cash to any beneficiary after the deceased's death, he had paid funeral and associated expenses ($13,685), an electricity account ($199), and legal costs and disbursements for probate and administration ($2,429) from the estate.
9. In a subsequent affidavit, sworn on 22 November 2017, Gregory disclosed that the current amount held, on behalf of the estate, in bank, was $27,900. He stated that, since his earlier affidavit, he had paid out of the estate funds, solicitors' costs ($35,649) and counsel's fees ($6,600) in respect of these proceedings.
10. The parties agreed that the cash that would have been available for distribution (before any costs and disbursements of the proceedings were paid) was $69,446. It was accepted that had no proceedings been commenced, each of the five children of the deceased would have received $13,889, calculated as a one-fifth share of the residuary estate.
11. The parties also agreed that, at the date of hearing, the gross value of the Kingsford property was $1,100,000. They also agreed, for the purposes of calculations, that the gross value of the deceased's interest in the Kingsford property could be no more than $550,000. Finally, they accepted that if the Kingsford property were sold, the costs and expenses of sale would be about $30,000, and that those costs should be paid out of the proceeds of sale that could be designated as notional estate, leaving a net amount that could be designated as notional estate as no more than $520,000: T4.42 - T4.46.
12. Gregory stated that he did not intend to make a claim for executor's commission.
13. The only persons described as eligible persons, within the meaning of the Act, by the Plaintiffs, are the parties and Mark, all of whom are the children of the deceased. Gregory stated that Alycia is also an eligible person, but there is no evidence that she ever was, at any particular time, wholly, or partly, dependent on the deceased. (Rather, it may be that she was dependent upon her mother, Cindy, in the period that she lived in the deceased's home.)
14. Only Gloria and Gordon have made an application for an order under the Act.
15. Mark, who is not a party, and Alycia, as a beneficiary, have been served with the notice of the Plaintiff's application and of the Court's power to disregard his, and her, interests, in the manner and form prescribed by the regulations or rules of court. The Court was informed from the Bar table, by each counsel, that none of the parties had been contacted by Mark: T115.00 - T115.09.
16. Cindy has raised her financial circumstances, as the holder of property sought to be designated as notional estate, in the proceedings. Gregory stated that he would "not be raising my financial, material or other circumstances … as a competing claimant".
17. The Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to each as the beneficiaries, regardless of her, and his, financial position or needs, respectively: s 61 of the Act.
18. It was accepted that the bequests of personal property made in the deceased's Will should be distributed to the relevant beneficiary. However, as a result of the costs order that is to be made, at the request of the parties, none of the residuary beneficiaries will receive any share of the residuary estate.

Costs and Disbursements of the Proceedings

1. Usually, in calculating the value of the deceased's estate and notional estate available from which an 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 applicants, if successful, normally would be entitled to an order that his, and/or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate (and/or notional estate) of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate.
2. As Basten JA put it in Chan v Chan [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
3. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
4. In another affidavit sworn by Mr G Kolokossian, Gordon's costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings, including any work required to be done after the conclusion of the hearing, were estimated to be $65,979, inclusive of GST. In the same affidavit, Gloria's costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings, including any work required to be done after the conclusion of the hearing, were estimated to be $67,384, inclusive of GST.
5. Thus, the total of the Plaintiffs' costs and disbursements, calculated on the ordinary basis, of the proceedings, was estimated to be $133,363. Mr Kolokossian estimated the total of the Plaintiffs' costs, calculated on the indemnity basis, to be $146,880.
6. Mr S P Wilkins, in an affidavit sworn on 30 October 2017, stated that the costs and disbursements, calculated on the indemnity basis, of Gregory, as the Defendant, were estimated to be $80,839, inclusive of GST. He did not refer to the costs and disbursements that had already been paid out of the deceased's estate, but at the commencement of the hearing, it was accepted that Gregory had paid $42,249, on account of those costs and disbursements, leaving $38,590 to be paid: T4.50 - T5.13. It was agreed that there had been no costs and disbursements separately incurred by Cindy, as the second Defendant, in the proceedings.
7. If the estimate of Gregory's costs and disbursements proves to be accurate, it is clear that the cash currently held in the estate will be insufficient to pay the balance of those costs and disbursements not already paid out of the estate. Upon the estimates provided, the shortfall will be $10,690. At the commencement of the proceedings, the Court was informed, without objection, that an arrangement would be made by Gregory and Cindy as to the payment of the unpaid costs and disbursements: T6.00 - T7.14.
8. All of the costs estimates, if proved to be accurate, and not reduced because the hearing was concluded in three, rather than four, days, are horrifying, when one considers reasonableness and proportionality.
9. Somewhat surprisingly, bearing in mind the relationships between the parties, and considering that Gordon and Gloria had entered into a conditional costs agreement with their solicitors (to which I shall return), which meant that they would not have to bear any part of the burden of their own costs and disbursements if they were unsuccessful, counsel for Gregory and Cindy stated that, in those circumstances, other than requiring Gordon and Gloria to contribute the amount to which each would have been entitled to receive out of the estate of the deceased had the proceedings not been commenced, Gregory and Cindy would not seek any order that the Plaintiffs bear any other part of the costs of the proceedings. In other words, the remaining three residuary beneficiaries will be required to contribute his, and her, share of the estate to meet those costs, with the result that none will receive any part of the deceased's estate.
10. Counsel for Gordon and Gloria accepted that if each of them was unsuccessful, no order for his, and her, costs, respectively, should be made. Counsel also accepted that in the event that either or both, of Gordon and Gloria is, or are, successful, the Court has power to depart from the usual order for costs to be assessed and to make an order, under s 98(4) of the Civil Procedure Act 2005 (NSW) for a specified gross sum, instead of assessed costs. The power may be exercised when, for example, it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. The assessment of the gross sum to be awarded "must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing" and "should be based on an informed assessment of the actual costs having regard to the information before the court": Hamod v State of New South Wales [2011] NSWCA 375 at [819] - [820].
11. Counsel for Gregory and Cindy stated that they would make an application that the Plaintiffs' costs be "capped" in the event that one, or both, of the Plaintiffs was, or were, successful. It is not necessary to refer to costs capping considerations again.

Matter of Practice - Disclosure of a Conditional Costs Agreement

1. There is a point of practice, in this case, which requires articulation and restatement.
2. I wrote in Anderson v Hill [2017] NSWSC 1149 at [35] - [38], and at [40] - [41]: "As I understand it (since this was not disclosed to the Court until the Court raised a question during submissions, and even then a copy of the [conditional costs] agreement was not produced to the Court), this type of agreement is of the type referred to in Part 4.3, s 181 of the Legal Profession Uniform Law Application Act 2014 (NSW), being "a costs agreement (a conditional costs agreement) may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate" and may, so far as I know, contain an "uplift fee", which also was not referred to. A "costs agreement" simply means an agreement about the payment of legal costs. As I recently re-affirmed in Blacket v Barnett [2017] NSWSC 1032 at 258: "…the observations of Young J in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 at 197, referred to, with approval, in McGrath v Troy [2010] NSWSC 1470 at [124], per White J (as his Honour then was) and by me in The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 at [71] should also be repeated: "It cannot be emphasised too greatly that one's obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth. It is completely unacceptable for a solicitor to prepare an affidavit in which a witness gives a half truth and it is completely unacceptable for a witness … to only give the Court a half truth." It is equally unacceptable, when the deponent of the affidavit is an experienced solicitor, who regularly practices in the jurisdiction, and, who is, or ought to be, well aware that the Court requires disclosure of the costs of the parties, and, for example, whether those costs include any uplift factor. To simply state, as counsel for the Plaintiff did, when asked for an explanation, after taking instructions from the deponent of the affidavit, that "There's no explanation I can give you apart from the fact that it was just overlooked" (T55.10 - T55.11), is also unacceptable, even if accompanied, as it was in this case, by an apology to the Court. … Furthermore, I accept that "[C]onditional costs agreements also discharge an important utilitarian function in facilitating access to justice. Many potential litigants are deterred from enforcing their legal rights and entitlements due to inadequate economic resources. Conditional costs agreements allow for the re-allocation of risk among the litigant and the legal practitioner. In exchange, the legal practitioner is entitled to a modest uplift fee reflecting their assumption of a proportion of the risk by conducting the matter on a speculative basis": Frost v Miller [2015] QSC 206 at [16] (Carmody CJ). (Of course, in reaching this conclusion, the Court should not be seen as condoning the conduct of the solicitor who swore the costs affidavits, or the conduct of counsel, who, presumably, was also aware that he would not be paid any fees unless the Plaintiff was successful, and who did not advise the solicitor to amend the affidavit to include, or otherwise inform the Court of, the conditional costs agreement.)"
3. In the present case, after the conclusion of cross-examination of the available witnesses, on the second day of the hearing, the Court raised with counsel for the Plaintiffs the question whether the Plaintiffs had entered a conditional costs agreement with their solicitors.
4. The discussion between Bench and Bar on this topic, at the time it was first raised, is found at T198 - T199: "HIS HONOUR: …Mr Kolokossian has sworn the costs affidavit. In that affidavit he hasn't identified that each of the Plaintiffs has entered into a conditional costs agreement or whether they haven't. …do I assume correctly that because it hasn't been mentioned, that it's not a conditional costs agreement? And if it hasn't been mentioned, why hasn't it been mentioned? AUSTIN: Well, I'll take instructions about that but it is a conditional costs agreement. HIS HONOUR: Mr Austin, I shouldn't, at the end of the second day of hearing, have to, through inquiry, ascertain that there's a conditional costs agreement entered into. Why am I raising it with you at this stage and why hasn't it been raised by you or Mr Kolokossian before 3.25 on the second day of the hearing? AUSTIN: I can only, for the moment, speak for myself until I get instructions but I've overlooked that and I'm sorry. I apologise to the Court. HIS HONOUR: Mr Menadue, were you aware that there was a conditional costs agreement? MENADUE: I did assume there was one, your Honour. HIS HONOUR: You assumed but you didn't know? MENADUE: I wasn't aware. HIS HONOUR: I see. I take it, Mr Austin, that it's a conditional costs agreement in the usual sense? That is to say that if the plaintiffs are unsuccessful, they will not have to bear the burden of the costs to their own legal representation? AUSTIN: I'll just take instructions. HIS HONOUR: Thank you. AUSTIN: Yes, that's correct. It's costs and disbursements."
5. (It is clear from the last answer provided by Mr Austin that if the Plaintiffs are unsuccessful, they will not have to bear any part of the costs and disbursements identified by Mr Kolokossian in his final costs affidavit referred to above.)
6. In this exchange, the Plaintiffs' solicitor, Mr Kolokossian, was also said to have expressed his sincere apology to the Court for the omissions from the affidavit of costs, an apology that I accepted. The Court was also informed by counsel, from the Bar table, that the conditional costs agreement did not include an uplift factor.
7. On the next day, counsel for the Plaintiffs, without objection, sought, and was granted, leave to file an affidavit sworn by Mr Kolokossian, which included the following paragraphs: "… 6. It has always been my understanding that it was my obligation as the Plaintiff's solicitor under Practice Notice No.SC EQ 7 in particular paragraph 17.1 of the abovementioned Practice Note… 7. I am not aware of any changes made to the Practice Note referred to above. I have as recently as 28 November 2017, conducted a further review and believe the Practice Note I referred to above is current. 8. Following the Court's comments and the reference made to an August judgment of His Honour Justice Hallen, I searched and found a decision of Anderson v Hill [2017] NSWSC 1149 (30 August 2017). Having read the decision, I don't understand that the decision is critical of the solicitor on the basis of a failure to disclose the conditional costs agreement per se, but rather the failure to disclose an uplift factor. 9. I confirm my earlier Affidavit referred to above, I have identified both Plaintiffs costs on an indemnity and ordinary basis. I confirm that no payments have been made by the Plaintiffs with respect to costs and/or disbursements. I also confirm that although the Plaintiffs have entered into a conditional costs agreement with the firm, in the sense that if they are unsuccessful that they are not liable to pay the firm's costs or disbursements, their cost agreement does not include an uplift factor, and further there is no uplift factor included in the calculation of the Plaintiffs costs."
8. A copy of the conditional costs agreement entered into between Gordon and Gloria and the solicitors was not annexed to this affidavit.
9. When I read this affidavit, I raised with counsel, then, and later during the submissions, what had, in fact been stated in Anderson v Hill as set out above, and commented that a proper reading of Anderson v Hill made it clear, particularly at [41], that the comments quoted above, related not only to the failure to disclose the uplift factor, but also to the failure to disclose the existence of the conditional costs agreement.
10. Counsel for Gordon and Gloria appeared to not be prepared to accept the proposition that the Plaintiffs' legal representatives had an obligation to disclose to the Court, or, it would seem, to the legal representative of the Defendants, the fact that a conditional costs agreement had been entered into.
11. Counsel stated that he wished an opportunity to provide written submissions on the topic. I directed that the submissions be delivered to the Court by 4:00 p.m. on Friday 1 December 2017.
12. Counsel provided those submissions, which, on this topic, stated: "The plaintiffs' legal representatives apprehend the Court's concern as articulated on the morning of 29 November 2017, is that mere compliance with clause 17.1 of the Practice Note is not sufficient if there is other information relating to costs relevant to the Court's consideration of the proceedings; and that such information ought to be disclosed. The plaintiffs' legal representatives apprehend that the basis for this proposition is their overriding duty to assist the Court. In this sense the Court related that even if a conditional cost agreement did not include an uplift factor, it ought nonetheless be disclosed, together with any other unique provisions, such as for example, any provision limiting the solicitor's recovery of costs to costs capped by the Court. The plaintiffs' legal representatives accept this proposition wholeheartedly and will ensure that such information is included in the future. However, the failure of the plaintiffs' legal representatives to disclose that they had entered into a conditional cost agreement that did not include an uplift factor does not necessarily mean that they acted in bad faith, with neglect or without candour. It is submitted that there is a degree of ambiguity with cl 17.1 of the Practice Note in the sense that whilst it positively requires the solicitor to disclose costs already paid on account of costs and disbursements it does not positively require the disclosure of the fact that no costs had been paid. In circumstances that costs had already been paid, one could rightly assume that the plaintiff and solicitor had entered into an unconditional cost agreement as opposed to a conditional cost agreement (without an uplift factor); and it follows that in circumstances where there has been no disclosure that costs had been paid, one could reasonably assume that the plaintiff and the solicitor had entered into a "no win, no fee" type conditional cost agreement. Further, uplift factors are only lawful in relation to conditional costs agreements, thus in the circumstance that clause 17.1 only refers to cost agreements that provide for uplift factors, a legal practitioner could be forgiven for drawing the inference that disclosure of a conditional cost agreement which did not provide for an uplift factor was not necessary. Obviously a solicitor swearing any affidavit is under the same obligation as any witness, as the Court noted: - to tell the truth, the whole truth and nothing but the truth. However a failure to disclose a matter relating to costs, does not mean that the solicitor has not told the whole truth, if the solicitor deposes is telling the truth best of his/her knowledge, information and belief. It is respectfully submitted that to suggest otherwise, in the absence of clarity in the Practice Note, would be to exact too high a standard."
13. (There was no submission made that the conditional costs agreement might be a privileged communication. In view of cases such as Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819, at [47] (Lindgren J) and CSR Limited v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83, at [67], that submission would be unlikely to be accepted. However, that question is not raised in the present case.)
14. Before referring to the specific paragraph of Practice Note SC Eq 7 to which reference was made, I should refer to s 15 of the Civil Procedure Act 2005 (NSW) which provides: "(1) Subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies. (2) A practice note must be published in the Gazette. (3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule."
15. Practice Note SC Eq 7 has been issued pursuant to s 15.
16. It has been said that this section suggests that Practice Notes "bear the character of legislative instruments rather than merely public announcements of the internal administrative arrangements of a court": The Handbook: Thompson's Guide to Uniform Civil Procedure in NSW (2005) Edited by G Lindsay SC (now his Honour) at [1.100].
17. In Baulderstone Hornibrook v HBO & DC [2001] NSWSC 821, Bergin J (as her Honour then was), observed: "Mason P in Atkins v Abbey Group [1998] 43 NSWLR 539 said at 543 that Practice Note 39 'governed' proceedings in the Commercial Division. Practice Notes need to be read in conjunction with the rules and one must be careful not to elevate a Practice Note to a status that it does not have. A Practice Note governs or guides the way in which the proceedings are expected to be administered. Practitioners, and thus the parties, should be aware of the requirements of the Practice Note, and it is to be expected that orders and/or directions will be made consistently with the Practice Note which governs a particular list."
18. It has also been said that "As a matter of principle, a practice note is subservient to the Civil Procedure Act and cannot be inconsistent with it": Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372, Basten JA, at [14]. It co-exists with formally promulgated rules of court.
19. Brereton J, in Graphite Energy Pty Ltd & Anor v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326, at [14] (referring to Practice Note SC Eq. 11), observed: "It is not a statute, nor is it a rule of the Court. It guides, but does not govern, the disclosure process…the importance of its purpose means that it will be in a rare case that the Court will depart from its guidance."
20. I respectfully agree with the views expressed by each of the learned judges.
21. One purpose of a Practice Note is to aid consistency and orderliness in the preparation of cases. In relation to Practice Note SC Eq 7 (in its earlier form), Palmer J in Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199, at [32], wrote: "The Court has now issued a Practice Note as to the conduct of family provision cases (SC Eq 7). It applies to claims both under the Family Provision Act 1982 and under its replacement, Chapter 3 Succession Act 2006 (NSW). The Practice Note, in conjunction with other Practice Notes relating to proceedings in the Equity Division generally, is intended to further the overriding purpose of the Civil Procedure Act 2005 (NSW), which is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings: s 56(1) CPA."
22. A Practice Note is, deliberately, not designed, expressly, to answer every question which could arise in the course of the preparation of a case for hearing. It is designed to provide a compass to guide the Court, the litigants, and the legal advisers, as to the general course that will be usually be followed. The Practice Note does not have binding effect but enables flexibility. In other words, it does not tie the hands of the court.
23. Paragraph 17.1 of Practice Note SC Eq 7 provides that the plaintiff's final affidavit as to costs and disbursements should identify the costs and disbursements calculated on the indemnity basis, and those costs and disbursements calculated on the ordinary basis, and the amount, if any, already paid on account of costs and disbursements. If there is any uplift factor included in the calculation of the plaintiff's costs, or any agreement that provides for such an uplift factor, the quantum thereof and the terms of any such fee agreement should be identified in the costs affidavit.
24. Paragraph 17.2 provides that the administrator's final affidavit as to costs and disbursements should identify the costs and disbursements calculated on the indemnity basis and the amount, if any, already paid out of the estate, or otherwise, on account of costs and disbursements.
25. It can be seen from these paragraphs of Practice Note SC Eq 7, that the Court is obviously concerned with the costs and disbursements of the parties in the proceedings up to, and including, the hearing. The specific matter identified in Paragraph 17.1 is the "uplift factor", being the legal practitioner's remuneration entitlement, contingent on success, for an amount in excess of a normal fee, being a premium reflective of the risk run by the legal practitioner for the possibility of non-payment, plus compensation for not receiving payment on account.
26. There are, and have been for many years, increasing concerns, particularly in claims for a family provision order, about the level of legal costs and disbursements, particularly in an estate and/or notional estate of relatively modest value. (The gross value of the remaining estate ($27,900), and the deceased's interest in the property that may be designated as notional estate ($550,000) is, as stated above, about $577,900).
27. On another level, as stated earlier, the Court needs to have the necessary information to enable calculation of the value of the net distributable estate, and by how much the gross value of the estate, or notional estate, might be reduced if an order were made for the plaintiff's, and/or the defendant's, costs and disbursements to be paid out of the estate.
28. The context of these paragraphs, on yet another level, relates to the financial circumstances of the parties to the proceedings. It is important for the Court to know if either party has come to an agreement with his, her, or their, solicitors that is other than what might be regarded as a usual retainer. As stated, the Practice Note refers explicitly to an uplift factor. An example, otherwise, is if there is an agreement that provides that the party will not have to pay any costs and disbursements in the event that he, or she, is unsuccessful. In that event, the party's financial circumstances, if relevant (and in the case of an applicant for a family provision order, that will usually be so), will not be diminished by having to pay any part of his, or her, costs and disbursements of the proceedings.
29. Furthermore, if the defendant sought costs, in the event that the applicant was, or the applicants were, unsuccessful, the fact that he, she, or they, had no obligation to pay his, her, or their, own solicitor's costs and disbursements, could be relevant to how the burden of the defendant's costs should be borne.
30. By way of further example, if a costs agreement provided that the party would not be charged an amount in excess of an agreed figure, or would not be liable for any amount in excess of the amount recovered from the other party, because of an agreement between the solicitor and the party as to capping costs, each would be a relevant matter for the Court's consideration also.
31. (These are only some of "the unique provisions" (as described by counsel for the Plaintiffs in his submissions) that may be relevant.)
32. It follows that if there is any conditional costs agreement, the nature of that agreement, and its effect on the payment of the costs of the party, including any term relating to an uplift fee, should be disclosed in each affidavit of costs that is relied upon by either party.
33. I should make it clear that I have no reason to doubt the explanation proffered by Mr Kolokossian for his failure to include any reference to the conditional costs agreement in his final affidavit as to costs. It was not the subject of cross-examination by counsel for the Defendants. My comments, during the hearing, related to the submissions made by, and on behalf of, experienced practitioners, that seemed to not grasp the significance of the omission from a costs affidavit that was relied upon in the proceedings, and the attempt to justify that omission by relying upon a strict, literal, and, perhaps, a limited reading of Paragraph 17.1 of the Practice Note.
34. (I should also emphasise, for the benefit of the parties, that the robust debate between the Bench and the Bar regarding this issue related to a matter of practice and procedure rather than to the merits of the Plaintiffs' case.)

The Bondi Beach Property

1. In December 1982, the deceased and her husband were badly injured in a motor vehicle accident. Subsequently, the deceased received damages (about $89,000), most of which was used to pay the purchase price of a two bedroom home unit, situated at Bondi Beach ("the Bondi Beach property"), which was purchased in the name of the deceased and her husband, as joint tenants.
2. Gloria gave evidence that she had recommended to the deceased that she should contact a lawyer and should seek compensation, which the deceased did, resulting in what Gloria described as "a favourable payout". (Cindy denied this although she acknowledged that there had been discussions between the deceased and Gloria about going to a firm of solicitors where Gloria had known a secretary who was employed there.)
3. Following her husband's death, in December 1987, the deceased became the sole registered proprietor of the Bondi Beach property.
4. The deceased lived in the Bondi Beach property until about late 2010, when she sold it for about $800,000. It was from the net proceeds of sale, that the deceased purchased the Kingsford property.
5. From about 1987, until it was sold, Cindy lived there with the deceased continuously. Although there was some dispute about whether the deceased had asked Cindy to move there, in order to look after the deceased's husband, and then the deceased herself, I accept Cindy's evidence that the deceased did make that request of her. (In this regard, Kim Leane Sammut corroborated Cindy's evidence and although cross-examined on the topic, confirmed that she had heard the deceased request Cindy to move to the Bondi Beach property.)

The Kingsford Property

1. The Kingsford property was purchased on 15 March 2011 for $690,000. The Transfer appears to have been registered on 22 March 2011, and identified the deceased and Cindy as joint tenants: Ex. 2.
2. The Kingsford property had been converted from a three bedroom villa to a two bedroom villa, but the deceased and Cindy converted it back. The deceased, Cindy, and Alycia lived there for about one year after its purchase, until Alycia moved out. Since then, Cindy remained living in the Kingsford property with the deceased until her death, and she has continued to live there, alone, since then.
3. Mr Wilkins acted for the deceased on the purchase of the Kingsford property. He gave evidence of a conversation that he had with the deceased (whilst Cindy was present), in which the deceased told him that she wanted to purchase the property in Cindy's name. She said: "Cindy is [to] get the property and I don't [want] any arguments about it after I am gone." He advised the deceased against placing the property in Cindy's name, and suggested that it could be purchased in joint names, with the result that it would pass to Cindy on the deceased's death. The deceased accepted the advice.
4. Mr Wilkins was not cross-examined. I accept his evidence.
5. Before the Kingsford property was purchased, the deceased confirmed in a conversation with Cindy: "I want to put the house in both our names. I want you to have this place when I am gone."
6. A copy of the Notice of Death, dated 28 September 2015, was registered on about 8 October 2015, following which the Kingsford property was registered in Cindy's sole name: Ex. 2.

Prior Wills of the Deceased

1. The deceased made a Will on 2 December 1993 ("the 1993 Will"). At this time, the deceased was living in the Bondi Beach property.
2. In the 1993 Will, the deceased appointed the Public Trustee of New South Wales as the executor and trustee. She gave the same gold watch referred to earlier, to Alycia; gave all of her rings and the rest of her jewellery to those of her daughters, Margaret and Gloria, who survived her by one calendar month; gave a camera to Mark; divided equally, moneys (including income paid after death) in banks, building societies, credit unions, or other similar institutions, between Mark, Gloria, Margaret, Gordon and Gregory; gave her goods, household goods and personal effects, to Cindy; gave Cindy a right of residence in the Bondi Beach property for the rest of her life, or until the right of residence ended, upon certain terms and conditions; subject to her right of residence, gave Cindy a one half share in the residence if she survived the deceased by one calendar month; and the other half share, subject to Cindy's right of residence, was to be divided equally between those of Margaret, Mark, Gregory, Gordon and Gloria, who survived the deceased by one calendar month; the rest and residue, in equal shares, was given to Margaret, Mark, Gregory, Gordon, Gloria and Cindy.
3. The deceased made a Codicil to the 1993 Will, on 22 December 1997, in which she appointed Gregory to be the executor and trustee of the 1993 Will, in place of the Public Trustee of NSW, and, in other respects, confirmed the 1993 Will.
4. The deceased made a Will on 17 April 2002 ("the 2002 Will"). In that Will, relevantly, she revoked all earlier Wills and Codicils; she appointed Gregory as her executor; she gave the same gold watch referred to earlier, to Alycia; gave all of her rings and the rest of her jewellery to Gloria, gave a camera to Mark; divided equally, moneys (including income paid after death) in banks, building societies, credit unions, or other similar institutions, between Mark, Gloria, Gordon, Gregory and Cindy; gave her goods, household goods and personal effects to Cindy; gave Cindy a right of residence in the Bondi Beach property for the rest of her life, or until the right of residence ended, upon certain terms and conditions; subject to her right of residence, gave Cindy a one half share in the residence if she survived the deceased by one calendar month; and the other half share, subject to Cindy's right of residence, to be divided equally between those of Mark, Gloria, Gordon and Gregory who survived the deceased by one calendar month; and gave the rest and residue, in equal shares, to Mark, Gloria, Gordon, Gregory and Cindy.
5. The deceased made another Will on 7 April 2004 ("the 2004 Will"), in which she revoked all prior Wills and testamentary instruments; she appointed Gloria and Mark as the executors; she gave the same gold watch referred to earlier, to Alycia; gave all of her rings and the rest of her jewellery to Gloria, gave a clock to Gordon; gave a camera to Mark; gave her household goods and furniture to Cindy; directed that the Bondi Beach property be sold and the proceeds divided between those of Gloria, Mark, Gordon, Gregory and Cindy, who survived the deceased, as joint tenants. She left the residue of her estate between those five children who survived the deceased, as joint tenants.
6. A letter dated 8 March 2004, was sent by Ross A Clarke & Associates, Solicitors and Attorneys, to the deceased, which refers to the deceased having attended the office on 19 February 2004. Interestingly, the letter is addressed to the deceased, but the address stated on it was Gloria's address. The letter contains some handwritten amendments. No questions were asked of Gloria, whose counsel produced it, going to whether the amendments were on the letter when it was received, or whether those amendments were made subsequently.
7. Bearing in mind the terms of the 2002 Will, which altered the 1993 Will and the 1997 Codicil, principally to remove the reference to Margaret who had died, it is difficult to know in what respects the 2002 Will was not in accordance with the deceased's wishes. No evidence was given on this topic and the author of the letter did not provide an affidavit going to what were said to be the deceased's instructions.
8. It is hard to accept the assertion made in the letter that the deceased informed those solicitors that "Cindy gave instructions to the solicitor" and that the deceased "was asked to sign the Will without being allowed to read it". Importantly, in this regard, Mr Wilkins is one of the attesting witnesses to the 2002 Will made by the deceased and he gave evidence of having drafted the 2002 Will for the deceased. As stated, he was not cross-examined. One might have thought that if the Court was to be asked to accept, as evidence of the truth of the representations in the letter, each of the representations would have been put to Mr Wilkins.
9. (Ex. B reveals that an Office Account Receipt dated 7 April 2004 from Ross A Clarke & Associates, Solicitors and Attorneys, in the name of "E. Oxley" for $394 "on account of costs and disbursements prep of Will" had been issued. Although there was a factual issue about this, I am satisfied that the deceased paid the account.)
10. (The Invoice dated 9 March 2004, sent by Ross A Clarke & Associates, Solicitors and Attorneys, to the deceased also confirmed that the deceased made a Power of Attorney and an Enduring Guardianship authority at the same time she made the 2004 Will.)
11. The deceased made another Will on 14 September 2009 ("the 2009 Will"), which Will was in similar terms to the 2002 Will. At that time, she was still living in the Bondi Beach property.
12. It can be seen from the above summary of the contents of the Wills made before the 2011 Will, that, other than the 2004 Will, whilst the deceased had treated her children equally in relation to her residuary estate, she wished to ensure that Cindy had secure accommodation in the Bondi Beach property, for as long as she wished to reside in it.
13. The last Will of the deceased was the 2011 Will to the contents of which reference has earlier been made. By the date of this Will, the Kingsford property had been purchased in joint names to enable Cindy to own it, solely and absolutely, if she survived the deceased.

The Credibility of Witnesses

1. There were many factual issues raised in the affidavits. It is necessary to express some views on the credibility of the witnesses. I shall do so hereunder, but also shall make reference to other facts later in these reasons that have impacted the credibility of the parties. It is impossible to identify all of the factual disputes that existed on the affidavits. What follows are some of the more important features of evidence.
2. I found that Gordon, generally speaking, tried to give his oral evidence truthfully. However, on the matters of the family finances, I found him to be somewhat unknowing and, generally, very vague. In relation to amounts spent on gambling, I am of the view that he endeavoured to suggest an amount less than he and his wife, in fact, spend gambling.
3. For example, Gregory tendered Ex. 1, which comprised a copy of various bank statements relating to accounts conducted by Gordon and his wife, or by Gordon, upon which Gordon was cross-examined. Part of Ex. 1 (at page 152) was a "Schedule showing large deposits to [a] joint bank account of Gordon and Kerryne Oxley and [a] bank account of Gordon Oxley".
4. The summary showed that, between 2011 and 2015, there had been paid into the joint account, sums totalling $227,898, and that in the period between October 2012 and June 2014, there had been paid $48,500 from Gordon's superannuation, into one, or other, accounts. (In addition, Kerryne had received $15,000 from her father in 2008, which she had spent on "stuff", including "more furniture, a washing machine and dryer". She received $15,765 in April 2013, as part of her inheritance, which had been spent to "help my children out, we bought things with it": T51.19 - T51.38; and another $36,356 in May 2013, as the balance of her inheritance: T52.23 - T52.36.)
5. Gordon only provided very limited information when asked how these moneys had been spent, namely, on furniture and fittings, on painting the home in which he and his family lived, on gifts and payments to some of his children and grandchildren ("large sums"), and on gambling expenditure ("not a great deal"). He acknowledged that he and Kerryne had not saved any of the moneys that had been deposited in the accounts and that they did not have "any rainy day money saved": T62.30 - T62.49.
6. When asked about an expenditure of $5,000, he said he thought he had given it to his son, Jason, but his son had paid him back by making contributions to "the punter's club" of which Gordon was a member and "I think he used $3,000 to buy a lounge, now I think of it": T44.13 - T44.39. When he was asked about a withdrawal of $41,700 on 14 October 2011, he acknowledged that "It must have been for something big, I can't remember what it was": T50.45 - T51.14.
7. Gordon was also asked questions about the number of cohabitants in his home and he mentioned five persons, one of whom was his granddaughter, Tayler, who is about 20 years of age. He denied that he charged her any rent, for her occupation, despite the fact that she was receiving an income (by way of a single mother's pension), but admitted that she paid for her own food and that she paid some board: T38.31 - T38.33; T80.19 - T80.28.
8. Gordon asserted in his affidavit that, in 2004, the deceased had told him that she wanted her estate divided equally between her children. In his oral evidence he said that prior to that being said, she "had always said 'I'll look after all my children. I love youse (sic) all - all the same'": T72.46 - T73.5. He stated that he had not known, until these proceedings, about the Wills made by the deceased, in which the right to reside in the Bondi Beach property and one half of the proceeds of sale had been gifted to Cindy, stating that the deceased did not tell him the truth: T73.31 - T73.42.
9. I do not accept that Gordon did not know about the contents of at least some of the prior Wills. He acknowledged that he knew Gloria had found out about at least one of the earlier Wills (the 2002 Will about which she acknowledged she had known), in 2004, and that "she was shocked about the contents": T73.50 - T74.05. It is hard to believe that he would not have enquired why she "was shocked" or that she did not explain to him the reasons for her shock. Indeed, he said that Gloria had told him that the deceased had left her entire estate to Cindy, which, if said by Gloria, was clearly untrue, as none of the earlier Wills of the deceased had been in those terms. (Gordon acknowledged that he had never seen a Will made by the deceased in which that had been done: T75.05 - T75.10.)
10. Gordon was asked about benefits he provided to his children and grandchildren at T48.50 - T49.8: "Q. Are you saying you're very generous with grandchildren? A. I am. Q. Basically if they ask you for money you pretty much give it to them? A. If I've got it I will give it to them. Q. If you received any money from this court proceedings and they ask you for money you'll give it to them, won't you? A. I won't just give it to them. If I can help them I will help them."
11. Later, he confirmed the evidence that he had given large sums of money to his children and to his grandchildren: T62.30 - T62.35. He did not give evidence about how much that had been given to them.
12. Gordon was asked whether he knew that it had been the deceased who had, in 1987, asked Cindy to leave the property at Seven Hills, in which she was living, and move to Bondi Beach. He denied having any such knowledge, but it is hard to accept that denial when he accepted that it was "known within the family that it was Cindy who moved in and looked after [the deceased's husband], initially with [the deceased] and then was there to assist [the deceased] after [the deceased's husband] died: T70.26 - T70.44, T71.35 - T71.40.
13. (In this regard, I accept the evidence of Ms Sammut, a grandchild of the deceased, who had lived with Cindy in the Seven Hills property in 1986 and 1987. She confirmed that the deceased had asked Cindy to come and live at the Bondi Beach property, although the request was couched in terms of "we will help you look after the baby": T 207.32 - T207.50. Later, it was put in terms of Cindy providing the deceased with help.)
14. Gordon did admit, in cross-examination, however, that he knew Cindy had moved into the Bondi Beach property, and that she had lived with the deceased until the deceased's death 28 years later, in 2015, that she was always very caring and attentive to the deceased and that she gave the deceased the best possible care that she could give to her: T71.20 - T71.22; T71.44 - T71.50. The credit given to Cindy in Gordon's affidavits was far less generous.
15. Gordon was asked about a meeting, in 2007, following the deceased having had some bad falls at the Bondi Beach property. He had stated in an affidavit that whilst he accepted that "I did have my own family to look after…I always offered assistance with respect to my mother and often offered to have myself or my children to look after mum". He added that "if Cindy was not capable or available to look after mum, we would have made other arrangements".
16. He gave the following evidence at T76.15 - T76.35: "Q. Do you recall having a meeting with Gregory, Gloria and Cindy to discuss what to do with your mother because of her increasing frailty? A. It never happened. Q. You say you had no meeting whatsoever? A. No, never sat down and talked about my mother. Q. Are you saying you never had any discussions with Cindy or Gregory about your mother's care? A. Never. Q. But Cindy told you, didn't she, that around that time she would have to leave the bank to look after her mother? A. No. Q. You said, "I've got my own family to look after"? A. No. Q. So, as far as you were concerned Cindy was the first option for looking after your mother in old age, wasn't she? A. Yes."
17. I do not accept Gordon's evidence that a meeting did not take place.
18. I accept the evidence of Cindy and of Gregory in this regard. Without repeating all of the evidence that each gave on this topic, there was one passage, in Gregory's evidence, in questions by the Court, that I found very cogent and believable, at T188.25 - T188.50, and which leads me to the view that Gordon's denial about a meeting and what had been discussed should not be accepted: "Q. Do you remember that meeting that Mr Austin just referred you to? A. I - I do recall that meeting. Q. Who was present at the meeting? A. Gordon, Gloria, Cindy and myself. Q. What was the subject of the meeting? A. It was about mum's - the - the - the couple of falls that she had and she was deteriorating in health and we sort of had to come up with a decision to - she was going to - it looked like she was going to require fulltime care and it was just we were trying to work out between us who could look after her fulltime. Q. Was any decision made by the group? A. Well, the question was put to each of us, basically, that my sister - I think, I - I can't remember the exact words, but I believe she said, "You live with her", talking of Cindy, "You live with her"-- Q. Which sister said that? A. Gloria. Q. Gloria said, yes? A. That, "You live with her. She" - I don't want to say the wrong words, "She's your problem" or something like that and my brother, Gordon, stated that he had his own - own family to look after and I basically didn't put my hand up either. I was - I didn't want the responsibility."
19. Counsel for Gordon and Gloria, accepted that Gregory's evidence "had the ring of truth to it": T221.24 - T221.37. I agree and I have no hesitation in accepting Gregory's evidence.
20. Gordon described his parents as "alcoholics". However, during cross-examination, he admitted he did not understand what an "alcoholic" was. Then he said that his father drank alcohol "nearly every day", but was not an alcoholic. He also said that his mother was not an alcoholic, but drank excessively: T64.34 - T64.37, T65.49 - T66.11.
21. In his third affidavit (made in April 2017) he said that his father was a "functional alcoholic." During cross-examination he said he did not understand what that phrase meant: T65. 39 - T65.40.
22. I have earlier set out several passages of Gordon's evidence. Yet, in his first affidavit in reply, in responding to one of Cindy's affidavits, he stated that he had "vivid memories of mum cooking for us".
23. Finally, it was put to Gordon that in his affidavits, he had sought to blame Cindy for the estrangement between Gloria and the deceased. He accepted that this had been "a complete concoction": T77.33 - T77.41.
24. These matters, as well as having observed Gordon, Gregory and Cindy in the witness box, lead me to the view that Gordon's evidence should not be accepted when it is in conflict with the evidence of each of Gregory or Cindy.
25. I was singularly unimpressed with Gloria as a witness. It was necessary to remind her, many times, to listen to the question asked of her and to answer it. She rarely answered questions directly and was often evasive. She also indicated that her first (and her principal) affidavit contained errors because of her then mental state. She did not identify the errors although asked by her counsel before cross-examination whether there were any changes to her affidavits that she wished to make.
26. There were several matters that lead me to the view that her evidence should not be accepted, particularly when it is in conflict with the evidence of Gregory or Cindy.
27. The first question and answer in cross-examination is a prime example of the manner in which Gloria gave some of her evidence. She was asked: "You are still married to Allan James Frazier, aren't you?" Her answer was "We're not romantically linked": T83.43 - T83.44.
28. Firstly, I refer to the passage of her affidavit evidence quoted above. When cross-examined, she accepted that it was not the deceased who had "[treated] her as a human punching bag"; that the deceased had not been physically abusive; and there had only been two occasions when the deceased had struck her: T95.23 - T95.43. Later she stated that "My mother was verbal, my father was physical…My father used me as a boxing bag": T96.34 - T96.41.
29. When it was suggested that in the affidavit, Gloria had not differentiated between the conduct of the deceased, and that of her husband (Gloria's father), when she wrote about being treated "as a human punching bag", this provided the opportunity for Gloria to assert "I can't answer that honestly because I'd not long been out of hospital and was on psychiatric drugs, heavily": T95.50 - T96.03. (She had not made any such suggestion when asked about whether she wished to make any changes to her affidavits).
30. Another matter related to the evidence of the family meeting in 2007. She denied having any knowledge of the deceased having any falls at the Bondi Beach property and that she had never had "any discussions with Cindy or Gregory around that time" about the deceased's health.
31. If that evidence is true, it does not demonstrate that Gloria had a very close relationship with the deceased. If the evidence is not true, the untruthfulness significantly affects Gloria's credit.
32. On this topic generally, Gloria denied any conversations with Cindy and Gregory about how the deceased could be looked after. She denied ever making any statement like "[s]he lives with you, she's yours": T109.17 - T109.18.
33. I do not accept Gloria's evidence on this topic. Indeed, I regard the evidence as untruthful. (I have earlier referred to Gregory's evidence on the topic and to my acceptance of that evidence.)
34. In her affidavit in reply, Gloria stated that "Mum wasn't reliant on Cindy until the last five years of her life". The source of this knowledge, bearing in mind they had little contact during almost the whole of the five year period and how it was different to the deceased's reliance on Cindy previously, is unknown. Yet, it was asserted by her as a fact.
35. Gloria described the deceased as having been "illiterate". She admitted, however, that she had seen photographs, annexed to Cindy's affidavit, which depicted the deceased reading a newspaper or a magazine. She was also able to identify, a card, in the handwriting of the deceased, addressed to Cindy.
36. The next matter relates to the cause of the estrangement that existed between Gloria and the deceased from about 2010, about which there was no dispute. Counsel put to Gloria that she had told the deceased that she (the deceased) must have been raped by her (the deceased's) father. She denied this, and the following passage of Gloria's affidavit was put to her: "I said words to the effect of, 'Mum, I have been getting counselling and I have been seeing a psychologist and they have come up with the conclusion that you must have been sexually assaulted as your father was a deviant and you were left at home with him after your mum passed away.'"
37. When asked about the apparent difference in her sworn evidence, Gloria said: "If I said that - well, I must have if it's written there, your Honour."
38. (Cindy gave evidence that the deceased did not believe Gloria's assertion that she had been sexually assaulted as a child. She described it as "another story made up by Gloria. It did not happen." Cindy also gave detailed evidence relating to the conversation that took place between the deceased and Gloria which I shall not repeat: see Paragraph 5 of Cindy's affidavit sworn 5 May 2017.
39. A further matter relates to Gloria's relationship with her husband, Allan, who was not a witness in the proceedings, but who had attended the hearing on two of the three days, despite, according to Gloria's evidence having "just recently had two strokes". (This statement was made in the context of him not having made an affidavit in the proceedings.) When pressed about why he had not provided an affidavit despite the proceedings being on foot for about 18 months, she responded: "Yes but it's not Allan's, it's mine, this is to do with my life": T83.44 - T83.45.
40. In her affidavit, Gloria had stated that she and Allan had been separated from 1994. When she was pressed on the topic at T83.03 - T83.19: "Q. I think you say in your affidavit that you were separated from him in 1994? A. Yes, on and off. Q. You mean you've had an on and off relationship with him since that time? A. Certainly, yes. Q. You can say that since 1994 you have been romantically involved with him? A. No, I haven't. Q. Perhaps "romantic" is the wrong word. Emotionally involved with him? A. Not in a loving - as in emotion. Q. But isn't that what you meant when you said that you'd had a relationship with him on and off since then? A. I'd say since 1994 whatever feelings I had for Allan as a wife went out the door, we were more companions."
41. Gloria admitted in cross-examination, that after Allan received an inheritance of about $160,000 from his mother in 2002, he had bought her some presents, including a refrigerator, washing machine, two televisions and microwave oven: T92.33 - T92.49.
42. She maintained that she knew nothing about Allan's financial and material circumstances, although she acknowledged that they live under the one roof, and that they share expenses. Furthermore, details of his financial circumstances appear in one, or other, of her affidavits and she annexed a copy of some of his bank statements to her affidavit made in October 2017.
43. The copy medical records annexed to Gloria's affidavits are instructive on this topic. Most described Allan as her "husband" or "partner". A "Client Information Sheet", made in late 2001, records "Gloria's husband went missing two months ago"; later, in February 2002, records "Gloria found her husband … They are reunited and Gloria is considering moving into his mother's home on the Central Coast"; and in April 2002, records "Agreed to go to marriage counselling". A report dated 7 April 2006, from the Prince of Wales Hospital & Community Health Services, refers to their relationship seeming "turbulent" and that Gloria now "lives alone (this consultation was in the presence of [Allan]". A Patient Medical Summary made in March 2016 described her marital status as "Married". Another report dated 1 April 2016, from the Prince of Wales Hospital & Community Health Services, addressed to Mr Kolokossian, described "Gloria and her husband Allan have been known to me and our service …since June 2015" and describes him as being "Gloria's main support throughout" (since her mother's death), but that "[H]e is finding it hard to continue to support Gloria due to the ongoing stress and ordeal of this Legal Matter".
44. Gloria denied that she had feelings of animosity towards Cindy. She stated that she had never wanted the Kingsford property. It is perfectly clear in her affidavits, and in her oral evidence, that Gloria harboured deep negative feelings towards Cindy, and, it would seem, at least since about 2004, towards Gregory also. Her whole demeanour, during cross-examination, satisfied me that she holds deep-seated, and long standing, resentment towards each of them.
45. I accept that each of Gregory and Cindy appear to have felt the same way about Gloria. The difference is, however, that each of Gregory and Cindy, truthfully, admitted it: T143.26 - T143.28; T144.22 - T144.38; T176.4 - T176.13.
46. Another matter to which I should refer, relates to Gloria's evidence about the solicitor, Mr Wilkins. She identified him as the solicitor she had met with the deceased: T103.40 - T103.48. However, in an affidavit she had sworn in May 2016, she had stated: "The next night we went up to Randwick and she took me opposite the hospital to a solicitor's firm to an address which I now cannot recall, I cannot recall the solicitor's details either."
47. Despite what she had written, Gloria was adamant that she had attended the office of Mr Wilkins with the deceased. She stated when the passage was referred to her, at T105.10: "I didn't recall, because I did not think I'd need it."
48. However, Mr Wilkins, who was not cross-examined, denied that he had met Gloria with the deceased. He stated that he is a sole practitioner and says that the only time he had met the deceased was when she attended his office with Gregory or with Cindy. I accept his evidence.
49. Another matter causing me to have concerns about some of Gloria's evidence relates to the evidence surrounding how she came to find out where the deceased was living. In her affidavit in reply of 3 April 2017, Gloria stated that "Although [the deceased] and I had a small falling out, this was due to the fact that Cindy did not want me to spend time with my mother and would make it as difficult as she could for me to visit my mother". I do not accept this assertion. It was certainly not put to Cindy in cross-examination.
50. Under cross-examination, Gloria also claimed that she had seen the deceased and Cindy at a nearby shopping centre about two and one half years prior to the deceased's death: T121.4 - T121.10. Gloria claimed that on that occasion, Cindy had shielded her mother from view, and that Gloria had been unable to catch up with them before they left: T121.12 - T121.20. Following this event, Gloria claimed that she had attempted to discover where the deceased and Cindy were residing, and that she had "look[ed] for [the deceased] around that part of the suburb". She also stated that she had described the deceased to a stranger on the street, and that the stranger had recognised the description of the deceased, and that she had pointed out a home on the street that the deceased and Cindy lived on, and said "They live in there": T124.23 - T125.9.
51. Gloria denied the suggestion put by counsel for the Defendant that she had known all along, where the deceased had resided, and that the claim of approaching a stranger was fabricated: T125.21 - T125.29
52. Gloria's evidence in this regard is somewhat inconsistent with what she stated in her affidavit of 9 May 2016 - that it was not until her son, Michael, disclosed to her where the deceased was residing, some two weeks prior to her death, that she went to visit "and spent approximately four hours with her".
53. It is also inconsistent with the evidence in her affidavit of 3 April 2017 in which she claimed that she had searched, for some time, to find where the deceased was residing, and that Gordon had hinted to her "[the deceased] lives somewhere over the back of the club…She lives by the place you buy alcohol, Dan Murphy's".
54. Under cross-examination, Gloria denied that Gordon had even spoken these words to her: T122.50 - T123.7. When pressed by counsel about the inconsistency with her affidavit evidence, initially, she claimed that "There's a few things in my affidavit have been misspelt" and "Gordon never mentioned the club": T123.10 - T123.13. When confronted with the statement in her affidavit, Gloria then stated that Gordon "may have said it to me later on": T123.32, and that "if he said it, he said it later on and later on is when I tried to find Mum": T124.33.
55. When counsel pointed out the inconsistency again with her affidavit evidence, Gloria responded that "I'm 70, I can't remember every single word, it's impossible": T124.38.
56. On this topic, I also refer, generally, to T122 - T128.
57. Finally, there is Gordon's evidence about what he had been told by Gloria. As stated earlier, he gave evidence that she had told him that she had seen a will made by the deceased in which Cindy was the sole beneficiary, that is that the whole of the deceased's estate had been left to Cindy. (If the statement had not been made by Gloria, there would have been no need for Gordon to raise it.)
58. Counsel accepted that there was no evidence of any Will made by the deceased in which the whole estate had been left to Cindy: T75.08 - T75.29. Why she had conveyed a false impression about the terms of a Will made by the deceased to her brother is not explained. It is not to her credit.
59. I found Gregory to be a very good witness. He appeared measured in his responses to questions asked of him and I have earlier referred to the passage of evidence that he gave about the meeting in 2007, which evidence, at least in part, was against his own interest.
60. In his first responsive affidavit, he acknowledged that he was younger than both Gordon and Gloria and that he was not "in a position to comment on [their] allegations in so far as they relate to the period before I was born or when I was very young". He stated that he "did not experience abuse or neglect" during his childhood.
61. Gregory lived with Gloria for between 7 and 10 years during the 1980s and early 1990s. He says that he "never heard Gloria, during that time or any other time complain, about the neglect or abuse she received…during her childhood". He did, however, hear her complain about Cindy.
62. Gregory confirmed that it was the deceased who asked Cindy to move into the Bondi Beach property, the deceased having raised that matter with him. He also stated that the deceased could not have afforded all of the expenses relating to the Bondi Beach property without Cindy's contributions.
63. Gregory stated that on one occasion, in about 2000, Cindy borrowed $10,000 which was used to pay a strata levy contribution on the Bondi Beach property that the deceased was unable to afford.
64. Cindy annexed a copy of an Offer and Loan Contract dated August 2000, in her name, referring to an offer of loan of $10,000 from the Gateway Credit Union. I accept that the amount was borrowed by Cindy.
65. Cindy gave evidence of other special levies which required her to contribute funds. She annexed a copy of an email, dated 30 January 2007, relating to a strata meeting at which a special levy, estimated to be $4,975, was to be raised "to cover legal costs and expert's fees in relation to an action against St Hilliers and QBE", as well as a Trust Receipt Levy Notice dated 1 June 2009, for $771.
66. Gregory also gave evidence of the financial assistance he had provided to the deceased to assist Cindy repay the loan. A copy of a number of $50 repayments in 2007 and 2008 from Gregory directly to the creditor Credit Union are annexed to an affidavit.
67. Gregory also confirmed that the circumstances in which the deceased went to stay with Gloria on weekends in about 2004, related to concerns that a customer of the Bank at which Cindy worked might harm Cindy or the deceased.
68. Cindy made a number of affidavits and was also cross-examined. Like Gregory, I found her to be an impressive witness. She answered questions put to her directly and without hesitation. She accepted immediately that she had taken the deceased to Gloria's home for about two months so that "Gloria would look after her on those occasions": T150.49 - T151.49. I accept Cindy's evidence that the reason this had occurred was because Cindy was fearful that by remaining at home on the weekends, while she was being stalked, the deceased might be in danger. (I also accept, despite Gloria's denial, that Cindy had told Gloria the reason for doing this.)
69. I also accept Cindy's denial that whilst the deceased was staying with Gloria for those few weeks, that she had been looking for nursing home accommodation for the deceased. I tend to the view that Gloria told the deceased that Cindy was doing that, not because it was true, but in order to raise a concern about Cindy's conduct in the mind of the deceased.
70. Cindy gave evidence of sharing the Bondi Beach flat with her parents and two of her brothers; her contributions to household expenses, acknowledging that "when bills came in they were paid by whoever had money at the time"; the fact that she worked, usually part-time; and that after about 2007, she was "required to look after [the deceased] full-time" as "she had a number of falls around the house and her health was deteriorating". She described the deceased's incontinence, her mobility difficulties, her need for assistance to shower, and the fact that she was required to be at home almost all of the time.
71. Cindy gave evidence of the conversation that she had with the deceased at the time of the sale of the Bondi Beach property and the purchase of the Kingsford property, and that the deceased had repeated to her that she wanted Cindy to "have this place when I'm gone".
72. Cindy gave evidence of having made application for a carer's pension in about July 2008. A copy letter dated 14 July 2008, from Centrelink to Cindy, confirms that contact was made on 14 July 2008 "about your intention to claim a payment".
73. Where there is any conflict of evidence as to the circumstances relating to the household at the Bondi Beach property or the Kingsford property, I accept the evidence of Cindy and of Gregory. I am satisfied that Cindy's evidence about these circumstances is likely to be more accurate as she was living there. In addition, I accept her evidence of the contact that each of Gordon and Gloria had with the deceased throughout the period of time that Cindy lived with the deceased and what it was that she was required to do for the deceased particularly after 2007 until the deceased's death.
74. There is also the documentary evidence in the hand of the deceased, as well as what she told Mr Wilkins as to what she wanted to do and the reasons why she wanted Cindy to inherit the Kingsford property, which corroborates Cindy's conduct towards the deceased.
75. I also accept Cindy's evidence where it is in conflict with that of Belinda. I shall refer to Belinda's text messages on the topic of the deceased's funeral.

The Other Witnesses

1. I have mentioned the children of the deceased who have played a part in the proceedings as well as the solicitor for each of the parties. There were a number of other family, and non-family, witnesses, to whom I shall refer. I shall provide a summary of her, or his, evidence, unless I consider that the evidence should not be accepted.
2. Gordon is married to Kerryne Louise Oxley. She was a witness in the proceedings and she was cross-examined. She gave evidence of the continuing contact of Gordon and his family with the deceased.
3. In cross-examination, she admitted spending about $39 per day on cigarettes. In her affidavit, and in cross-examination, she had denied that either she, or Gordon, had "gambling problems". She stated she spent a nominal amount gambling. She described it as "if I want to waste $20 I can": T194.35 - T194.38.
4. Gordon and Kerryne have four children, namely Theresa Anne Williams, Jason Scott Oxley, Craig Gordon Oxley, each of whom swore an affidavit that was read as part of Gordon's case. None were cross-examined. Another of his children, Raymond James Oxley, swore an affidavit in Gregory's and Cindy's case. He was cross-examined. (Gordon's other child, Marnie Louise Oxley, was not a witness in the proceedings.)
5. Each of Gordon's children, whose affidavit was read as part of his case, gave evidence, principally, about Gordon's relationship with her, or him, as a father, and each disputed the suggestion, made in the Defendants' evidence, of him being a gambler. I did not find the evidence of each very relevant on the significant matters in issue between the parties.
6. Gordon's son, Raymond, who gave evidence in the Defendants' case "to defend my grandmother's wishes and honour" (T210.45 - T210.48), has been living in Queensland for the last 16 years. He referred to his observations of both of his parents being gamblers, with Gordon gambling on horses and Kerryne gambling on poker machines. He also gave evidence that whilst Gordon had brought the deceased to Queensland, several times, on other occasions when he had visited, in explaining why the deceased was not coming, Gordon is alleged to have said that she "is too much trouble. I cannot look after her."
7. Gloria gave evidence that she met Allan in 1989 and they were married in December 1989. Gloria's first child, Belinda Mahoney, swore an affidavit that was read as part of Gloria's case. She was not cross-examined. Her evidence, in part, related to observations of Gloria's relationship with Cindy, her own relationship with Cindy, and her understanding of the reasons why Cindy moved into the home of the deceased when she first did.
8. Much of Belinda's evidence is critical of Cindy. For example, she asserted that "[O]nce the sale of [the Bondi Beach] property went through, Cindy relocated my grandmother to Kingsford without my mother and her children knowing"; she complained that Gloria and her family were not invited to the deceased's 90th birthday party; she stated that "[d]uring my 51 years, I have only witnessed cruelty towards my mother by her parents"; and that "[o]ver the years, my mother and her children including myself have always been alienated by family and made to feel unwelcome due to Cindy and Gregory being so controlling".
9. A further example of Belinda's attitude towards Cindy is a reference to the home in Seven Hills, in which Cindy lived prior to her move to the Bondi Beach property in 1987. Belinda describes this property as "signed over to [Cindy] so that she had a home to live in when they moved to Bondi", an allegation that is not supported by other evidence.
10. Belinda also asserted that "Cindy decided to move to my grandparent's home with her daughter". Later, she added "in order to save money so that she would be able to afford her own accommodation". Even though she was not cross-examined, I tend to the view that Belinda would not have had a detailed knowledge of the circumstances of the move to the Bondi Beach property, or whether the deceased had asked Cindy to move in.
11. Belinda also criticised Cindy's conduct of the deceased's funeral. However, annexed to Cindy's affidavit is a copy of a text message, sent by Belinda to Cindy, in which Belinda wrote thanking Cindy for "giving our Nan the life that she had and the send-off she deserved." In the text message, Belinda stated that Cindy "was the most loving and caring person I know and that's because Nan didn't get it wrong bringing you up".
12. Importantly, the deceased made no reference to Belinda in the 2011 Will. Also, Belinda makes no mention of Gloria's relationship with the deceased having improved over time (as asserted by Gloria), or of Gloria having a falling out with the deceased in 2010, which resulted in her having had no contact with the deceased for several years thereafter.
13. I do not accept Belinda's evidence where it conflicts with the evidence of Cindy.
14. Vincent Gregory Buchan is not a family member but is said to have known Gloria for almost 20 years. He affirmed an affidavit that was read in the Plaintiffs' case. He was not cross-examined. He simply stated that from 1998, there were too many occasions to remember when the deceased and Gloria spent time together. What is stated is in general terms and does not suggest that he had a detailed knowledge of the relationship.
15. Racheal Cotterill is not a family member but is said to have known Gloria and the deceased for over 15 years. She affirmed an affidavit that was read in the Plaintiffs' case. She was not cross-examined. She commented on her observations of the relationship of Gloria and the deceased which she described as "very bonded", stating, "Gloria was always with her mum", something that Gloria, herself, does not assert. What is stated does not suggest that she had a detailed knowledge of the relationship.
16. Barry Clark is not a family member but is said to have known the deceased, Gloria and Gordon for over 20 years. He made an affidavit that was read in the Plaintiffs' case. He was not cross-examined. It appears that his knowledge of their relationship was his observation of family members together during the lifetime of the deceased's husband and for some time thereafter. He said that they "appeared to have a very close and loving relationship". What is stated does not suggest that he had a detailed knowledge of their relationship.
17. Darren Alan Macqueen is not a family member but said to have known Gloria and Cindy for many years. He affirmed an affidavit that was read in the Plaintiffs' case. He was not cross-examined. He, too, described his observations of Gloria and stated that "in all my dealings" with Gloria, the deceased "seemed to feature prominently in her life" and that "they always look[ed] to have a great relationship". What is stated does not suggest that he had a detailed knowledge of their relationship, and is, in any event, inconsistent with some of Gloria's evidence.
18. Janice Rae Muehlfenzl is not a family member but said to have known Gloria and the deceased for about 15 years. She affirmed an affidavit that was read in the Plaintiffs' case. She was not cross-examined. She described the deceased having been to Gloria's house "too many times to count" and that they would meet together at the pub. What she states does not suggest that she had a detailed knowledge of their relationship.
19. Christine Rose Walford is said to have been a friend of the deceased and Gloria for over 25 years. She affirmed an affidavit that was read in the Plaintiffs' case. She was not cross-examined. She stated that the deceased had spent many weekends at Gloria's home and that they would meet at a social club. She also said that the deceased, towards the end of her life, would "always" enquire about Gloria "when Cindy was not nearby". She stated that she heard Cindy say to the deceased "If you have anything to do with Gloria, I'll leave you and you'll end up in an old people's home". (This evidence is inconsistent with other evidence, particularly of the deceased regarding Cindy's care of the deceased.)
20. Robert Mark Wallace is a former partner of Cindy and the father of Alycia. He swore an affidavit read in Gregory's case. He was not cross-examined. He gave evidence that because he has problems with drinking and gambling, Cindy assists him with looking after his money by giving him a set allowance and paying his bills.
21. Kim Leane Sammut is a child of Margaret. She swore an affidavit read in Gregory's case. She was cross-examined. I shall refer to her evidence later.
22. Deborah Mary Duncan is a Certified Practicing Valuer. She swore an affidavit read in Gregory's case and she was not cross-examined. She provided a written valuation of a property at Daceyville, a suburb of Sydney, in which Gloria and her husband, Allan, live. (It is owned by the NSW Department of Housing and they rent it.) I shall refer to this property as "the Daceyville property". She described it as a single story residence with two bedrooms, a bathroom, a kitchen, open plan lounge and dining room and laundry, which appeared to be in reasonable condition.
23. Alycia is a beneficiary named in the last Will of the deceased, and a grandchild of the deceased. She is also Cindy's daughter. She was not a witness in the proceedings.

The Statutory Scheme

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiffs' eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine are whether each of the Plaintiffs has been left with inadequate provision for his, or her, proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate or notional estate of the deceased for those purposes. Also, it will be necessary to determine whether a notional estate order ought to be made.
2. It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order (s 59(1)(c)). Only then, may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"(s 59(2)). The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court.
3. The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of the most recent of which is Penninger v Penninger [2017] NSWSC 892 at [114] - [148].
4. For the benefit of the parties, I shall repeat the relevant principles.
5. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for each applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
6. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
7. 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 (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).
8. Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
9. Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
10. Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate or notional estate, should be the dominant consideration.
11. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
12. Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
13. In Heydon and Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths) at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
14. In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145 - 146, wrote: "The court has, up to now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
15. More recently, in Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787, Newey J, at [26], wrote: "…The word "maintenance" suggests the provision of assistance to enable a person to meet the requirements of his daily life. Someone of ample financial means will not normally need any such help. In principle, however, "maintenance" does not seem to me to be necessarily confined to support with a person's "cost of … daily living" (to quote from the Dennis case). It is capable, in my view, of referring to other forms of assistance with the requirements of daily life. If, therefore, a person is in want of a particular thing to sustain a reasonable quality of life, the provision of it could possibly represent "maintenance" regardless of his financial means. In other words, a person can potentially (albeit only very rarely) be in need of "financial provision" for his "maintenance" without being in any way short of money: his money may not be able to secure him what he requires. As a result, there appears to me to be no absolute bar on the provision of something for full consideration representing "financial provision" for a person's "maintenance"."
16. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
17. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
18. Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14] - [15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…"
19. The concept of "advancement in life" extends to a person's adult years: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114].
20. In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
21. In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
22. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Murphy J wrote at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
23. In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
24. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
25. These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
26. Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
27. Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
28. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words 'adequate' and 'proper' are always relative and that what the testator regarded as 'superior claims or preferable dispositions' is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
29. In Goodman v Windeyer, Gibbs J wrote, at 502: "…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
30. In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote: "…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
31. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." [Citations omitted.]
32. In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
33. His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
34. In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
35. However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
36. In Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178, the Victorian Court of Appeal confirmed, at [65], in relation to the Victorian legislation, which is different to the Act, that it was essential to success that an applicant establish need, but, at [38] and [66], that need is a relative concept, which: "…[is] to be assessed in light of all the circumstances having regard to the factors in s 91(4)(e)-(p). It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant's assets and income are just two facts that go into the melting pot to determine whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant."
37. (The High Court in Jones (a pseudonym) v Smith (a pseudonym) [2016] HCASL 310, stated that: "In view of the fact that the provisions of the Administration and Probate Act 1958 (Vic) which fell for consideration by the Court of Appeal of the Supreme Court of Victoria (Whelan, Ferguson and Kaye JJA) have now been amended in relation to estates of testators and testatrices dying on or after 1 January 2015, this application is not an appropriate vehicle for the grant of special leave.")
38. I should mention what Parker J has written in Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 at [94]: "I disagree with the approach adopted by counsel for the plaintiff (and, to an extent, by counsel for the defendant). In a family provision application, the Court is entitled to take the plaintiff's "needs" into account (Succession Act, s 60(2)(d)), but is not obliged to do so. I accept that an applicant's "needs" must usually be relevant, because, as the outcome in Vigolo v Bostin shows, an applicant who is already comfortably established in life will usually, if not invariably, not require anything more by way of "proper" provision. I also accept that [the plaintiff] has "needs" in this sense: he is not set up in life. But once that is established, I do not think an appeal to his "needs" is helpful in determining what level of provision "ought to be made" for his advancement."
39. Whilst I agree that s 60(2)(d), and therefore, "financial needs", is simply one of the matters to which the Court may, but does not have to, have regard, if the Court does so, as will be read, one of the purposes for which the matters in s 60(2) may be regarded is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
40. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree.
41. Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
42. In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
43. As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
44. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
45. The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
46. Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
47. It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
48. In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
49. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
50. The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
51. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
52. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
53. Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
54. The order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
55. Section 66 of the Act sets out the consequential and ancillary orders that may be made.
56. Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).
57. Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.
58. Practice Note SC Eq 7, which applies to claims for a family provision order, currently provides, in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act. Also, see Baychek v Baychek [2010] NSWSC 987, per Ball J, at [10]-[20]; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50] - [52].

Notional Estate

1. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". "Notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person".
2. It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as 'notional estate' thereby compelling the 'disponee' of a 'prescribed transaction' to provide money or property for the purpose of making financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441. (Although the terminology in the Act is different, the same principle applies under the Act.)
3. Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) SydLR 263, has commented on the notional estate provisions of the former Act: "The introduction of the notional estate provisions brought to the forefront the distinction of 'estate versus notional estate' that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that 'estate' and 'notional estate' were different. Things subject to contracts (like mutual wills) were not within the definition of 'estate'. To bring such property within the legislation required now the application of the complex procedures and definitions of 'notional estate'. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act."
4. In Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was "a complex concept" but shortly described it as "property which would have become part of the deceased's estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way and in particular circumstances, prior to his or her death".
5. Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).
6. Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).
7. Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76. "Property" includes "any valuable benefit" (s 3).
8. Section 75 of the Act provides: "(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. (2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction. (3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate."
9. Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described in s 76(2)(b), arises: "if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust…"
10. Any such circumstance is "subject to full valuable consideration not being given" (s 76(1)). Importantly, a distinction must be drawn between "valuable consideration" and "full valuable consideration": see, for example, s 76(4) of the Act.
11. Important also is the omission of the words "in money or moneys worth", which had appeared after "full valuable consideration" in the equivalent provision (s 22) of the former Act.
12. The expression "subject to full valuable consideration not being given", in my view, has the effect of imposing a requirement, wholly separate from the result, which is property becomes, by operation of the right of survivorship, held by another person or subject to a trust.
13. There did not appear to be a dispute that the non-severance, before the deceased's death, of the joint tenancy, is a matter capable of giving rise to a designation of notional property: Cetojevic v Cetojevic [2006] NSWSC 431. As such, it is necessary to consider certain other sections of the Act.
14. Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person, or subject to a trust, or as otherwise provided by the section. Sub-section (3) provides that a relevant property transaction consisting of circumstances described in s 76 (2)(b) or (e) is taken to have been entered into immediately before, and to take effect on, the person's death, or the occurrence of the other event referred to in those paragraphs.
15. Section 78 of the Act provides: "(1) The Court may make an order designating property as notional estate only: (a) for the purposes of a family provision order to be made under Part 3.2, or (b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. (2) The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant."
16. Section 80(1) provides that the Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person, if the Court is satisfied that the deceased person entered into a relevant property transaction before his, or her, death and that the transaction is a transaction to which the section applies.
17. Section 80(2) provides for the section to apply to the following relevant property transactions: 1. a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order; 2. a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction; 3. a transaction that took effect, or is to take effect on, or after, the deceased person's death.
18. (In this case, only s 80(1)(c) is relevant.)
19. It is not essential that the applicant be able to rely upon the provisions of more than one of the sub-paragraphs identified. It is sufficient if he, or she, is able to establish the matters in any of them.
20. Section 83 of the Act relevantly provides that the Court must not, merely because a relevant property transaction has been entered into, make an order under s 80, unless the Court is satisfied that the relevant property transaction, or the holding of property resulting from the relevant property transaction, directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death).
21. The effect of a notional estate order is that "a person's rights are extinguished to the extent that they are affected by a notional estate order" (s 84 of the Act).
22. The power to make a notional estate order is discretionary. Section 87, contained in "Division 3 Restrictions and protections relating to notional estate orders", circumscribes the Court's power to make a notional estate order. That section provides: "The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances."
23. In John v John [2010] NSWSC 937, Ward J (as her Honour then was), at [118] - [120], wrote: "What amounts to "reasonable expectations in relation to property" was considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as the Associate Justice then was), who said: That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff. In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the Associate Justice then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section: Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property … Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise. Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed, referring to the "more general precautionary provisions" in ss 26 and 27 of the Family Provision Act, said: Section 27(1) for example, says the Court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it." (Emphasis omitted.)
24. In reference to s 87(a) of the Act, Basten JA in Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [125], wrote: "While it remains true that the section… is silent as to whose 'reasonable expectations' must be considered, the requirement is a constraint on the making of a notional estate order. It is not sensibly construed as referring to the reasonable expectations of the applicant who wants a share of, but does not own, the property. Nor does it sensibly refer to the expectations of the deceased person, because the court must already have determined that an adjustment in the distribution effected by the will was appropriate: s 89(2). Since a notional estate order will only be made in relation to property which never was, or no longer is, part of the estate, it is unlikely to refer to the expectations of any person other than the person who is the present holder of an interest in the property."
25. Thus, Cindy is the person whose "reasonable expectations" should be considered, since she is the child of the deceased, and in the events that happened, the person who has come to hold the jointly owned property by survivorship.
26. The "substantial justice and merits" referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep). (In that case, the reference was to the equivalent provision (s 27(1)(b)) of the former Act.)
27. The position of all parties should be considered in respect of s 87(b) and (c).
28. Section 89(1), also contained in Div 3 of the Act, relevantly, provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.

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 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; McKenzie v Topp [2004] VSC 90 at [63].
3. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
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 453-4, 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 its 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."
6. Of the freedom of testamentary disposition, in Grey v Harrison, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
7. In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
8. In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
9. As Pembroke J also said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
10. White J (as his Honour then was) referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
11. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
12. In Henry v Hancock [2016] NSWSC 71, at [69], Brereton J wrote: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
13. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
14. The size of the estate is a significant consideration in determining an application for provision. However, its size does not justify the Court in rewriting the will in accordance with its own ideas of justice and fairness: Bowyer v Wood at [41]; Borebor v Keane [2013] VSC 35 at [67].
15. In relation to the claim by each of Gordon and Gloria, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
16. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [62].
17. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep).
18. In Foley v Ellis at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty".
19. The other claimants on the bounty of the deceased, who are beneficiaries, do not have to prove an entitlement to the provision made for him or her, respectively, in the deceased's Will, or otherwise justify such provision.

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. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
4. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; and in Burke v Burke [2015] NSWCA 195 at [84] - [85]. They must be remembered.

Additional Facts

1. I set out some more 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 whether to make a family provision order and the nature of any such order: s 60(1)(b) of the Act.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. As previously stated, each of Gordon and Gloria is an adult child of the deceased.
2. Gordon deposed that his childhood was "not real good", claiming that he was rarely shown affection and that the deceased "would very rarely say a nice thing to me or hug me or kiss me".
3. I have also earlier referred to the cross-examination concerning the claim made by Gordon that the deceased "was very dependent upon alcohol". Gordon had also deposed that he and his siblings were subject to parental neglect by the deceased, stating "we had very little guidance growing up and were forced to provide for ourselves on a daily basis", allegations that he maintained under cross-examination: T63.21 - T63.30, T64.13 - T64.17, T66.20 - T66.21.
4. Although Gordon deposed in his affidavit that the deceased "did not often physically abuse us", he added that "the regular emotional and turbulent life and the emotional pain I would suffer was very much abusive". During cross-examination, he agreed that the deceased had not ever "physically attacked" him when he was a child: T63.42 - T63.44.
5. Despite these complaints, Gordon professed "I always loved [the deceased] because I didn't know any different"; however, "after the age of 14 onwards, I would make a conscious effort to simply not come home".
6. Other than a period of approximately 12 months in 1970, Gordon had not lived with the deceased since he was 19 years of age: T70.1 - T70.6. During the period 1969 to 1977, he visited the deceased and his father "a couple of times a week". From 1977, when he and his wife and children moved into public housing in Doonside (where they remain today), Gordon stated he visited the deceased and his father "at least weekly". However, he and the deceased "never had sit down conversations", and "my relationship [with the deceased] continued like this up until the date of my mother's passing".
7. Gordon deposed that in the later years of the deceased's life, he had been told by the deceased and Cindy that Gloria should not be advised of where the deceased resided, and that he had abided this wish.
8. There is evidence, given by Gordon, that he did maintain contact with the deceased throughout her life. He visited her reasonably regularly and on occasions took her on trips, for example to Queensland in 2009, 2010 and 2012.
9. Gordon accepted that from the time he left home, at the age of about 19 years, he was financially independent of the deceased: T80.15 - T80.17.
10. There is evidence that the deceased suffered from a number of physical complaints, including restrictions in her mobility, following the car accident to which I have earlier referred. During cross-examination, Gordon was uncertain about the nature and degree of the injuries suffered by the deceased, and stated that to his knowledge, the deceased did not suffer any disabilities as a result, such as difficulties with walking and impairment in the use of her arm: T67.8 - T67.39. It was suggested by counsel for the Defendants, that Gordon's answers in this regard were indicative of a more limited contact with the deceased than he asserted: T67.46 - T67.47. I agree.
11. Like Gordon, Gloria deposed that the deceased and her father "were alcoholics". Gloria also made similar allegations of neglect by the deceased and her father, who she asserts were often out drinking.
12. Gloria stated that whilst growing up, she was responsible for care of her siblings and for performing domestic duties, in the absence of the deceased. Gloria also alleged that she was "the first person to be abused or blamed if anything went wrong. It didn't matter what went wrong, I was often physically abused". However, I have earlier referred to the cross examination of Gloria in which she denied that the deceased had been physically abusive towards her (except on two occasions).
13. Gloria left home in 1961. Between 1989 and 2010, she stated that she "had a 'normal' relationship with [the deceased] up until 2010". She stated that up until that time, she spoke to the deceased every second day and that the deceased would visit on the weekend.
14. There is no dispute that for a period of several months, in 2004, the deceased was taken to Gloria's home, and that Gloria looked after the deceased on the weekends during that period of time: T152.40 - T152.43. Although the precise circumstances that led to this occurring was the subject of dispute, nonetheless, I accept that for the weekends that the deceased was with her, Gloria made some contribution to the deceased's welfare by looking after her: T152.47 - T153.1.
15. In her affidavit of 9 May 2016, Gloria stated that it was in about 2010, that she spoke with the deceased and disclosed that she had been sexually abused by the deceased's father. The deceased is said to have replied with "Well why didn't you tell somebody, I don't believe this". Gloria then responded, as has been earlier referred to, by asserting that the deceased must also have been the victim of sexual abuse by the deceased's father. Gloria stated that following this exchange, the deceased had sworn at her and had left. Following this incident, Gloria stated that the deceased "cut off all ties with me".
16. At the hearing, counsel for the Defendants put to Gloria that the deceased was about 88 years of age at the time, and would have been greatly upset by such comments. Although she denied this, initially, upon further questioning, Gloria conceded that the deceased was, in fact, "very upset" and "had started crying": T110.46 - T111.3. In her affidavit of 20 January 2017, although Gloria had described the deceased as "very upset" by her comments, and also made the claim that the deceased "swore [at] and abused" her, she omitted any reference to the deceased crying as a result.
17. Cindy gave evidence of Gloria having thrown a cigarette lighter at the deceased during the argument. When cross-examined on this, Gloria denied it. Cindy was not cross-examined on her evidence on this topic.
18. (I bear in mind that the deceased's reaction to what Gloria had told her may not have been the reaction that Gloria had expected, or wished for, from her mother. Gloria appears to have had counselling in 2007 and 2008 covering a number of matters including having been sexually abused by her grandfather.)
19. Regardless of the exact circumstances under which contact between the deceased and Gloria resumed, Gloria states that following this, she visited the deceased approximately three or four times a week. Cindy stated that Gloria visited the deceased three of four times in the last month or so prior to her death.
20. Prior to her death, Gloria states "I genuinely believed my relationship with my mother was reconciled". She went on to state "I loved my mother dearly and had a traumatic youth and continue to suffer to this day because of the neglect. Notwithstanding this, I continued to love my mother until the day she died".
21. I am of the view that Gloria did not make any real attempt to reconcile with the deceased following their disagreement in 2010, until close to the end of her life. In part, this may have been because she did not know where the deceased was living. It is to be remembered that the deceased had requested Gordon to not inform Gloria of her home address.
22. I am satisfied that, overall, Gloria's relationship with the deceased was not a particularly close relationship although they did regularly see each other and socialise. It was for only a few years prior to her death that they did not have any contact.
23. (Gloria does give evidence that "[A]s my mother got older and had her last child, Cindy… my mother's overall temperament and behaviour was starting to change… I would say that she was a mother to Cindy as compared to the neglect that I received when I was younger.")
24. It was not suggested that Gloria was financially dependent upon the deceased during adulthood.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
2. The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at [478]-[479]: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
3. Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
4. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to either of her children, once they became adults, imposed upon her by statute or common law.
5. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
6. It should also be remembered that "[a]lthough the relationship of parent and child is important and carries with it a[n]… obligation reflected in the … Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives": Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition.
7. To the extent that Gordon and Gloria rely upon the conduct of the deceased whilst they were younger, it must be remembered that the Act is not one that provides reparations for wrongful conduct by the deceased. Nor is it legislation to deal with the righting of moral wrongs of the relationship between the deceased and an applicant (Robinson v Tame (Court of Appeal, 9 December 1994, unreported); Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496 at [80]).
8. As I wrote in Williamson v Williamson [2011] NSWSC 228, at [124] - [127]: "A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased as his, or her, parent having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113 at [30]. As I said in Savic and Ors v Kim [2010] NSWSC 1401 at [82]: "It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation." Also, it is not the function of the court to provide a legacy, by way of damages, for abuse. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant's mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for the Plaintiff should be measured: Cameron v Cameron [2009] SASC 27. Equally, the Act is not legislation which permits provision to reward past services: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, at 137. This does not mean that the deceased's conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant's need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith & Tingate [2010] VSC 466 at [57]."
9. The size of the deceased's estate is also relevant to determining the extent of the obligation or responsibility. In this case, as has been stated, the actual estate will be non-existent after the payment of the Defendants' costs, thereby requiring any provision that is to be made for either Gordon or Gloria to come from the proceeds of sale of the Kingsford property, which to the extent necessary, will need to be designated as notional estate.
10. In leaving her estate in the way that she did, the deceased clearly considered the obligation that she had to each of her children and treated all of those surviving children in the same way. She also considered the primary obligation that she owed to Cindy in that she did not sever the joint tenancy of the Kingsford property with the consequence that it passed to Cindy by survivorship.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. As stated, the actual estate is tiny, comprising only $27,900 at the date of the hearing: T3.20 - T3.27. Once the costs are paid, there will be no actual estate.
2. The deceased's estate would be insufficient for the making of any family provision order, or any order as to costs.
3. The value of the property that may be designated as notional estate, even without considering the costs of the proceedings, on any objective view, is not large. Yet, the size of the estate is but one factor that may be taken into account in determining whether to make a family provision order and the nature of any such order.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. Gordon resides in public housing, paying rent of about $680 per fortnight. He appears to have done so since about 1977. There is no evidence that his accommodation needs are not being met by the accommodation in which he lives. The house in which he lives is "shaped like a brick and it's a three bedroom [house], its got a small laundry, a bathroom with a toilet inside, a small kitchen, maybe a kitchenette and a lounge room and a small verandah out the front. There's no backyard but a big frontage, a decent frontage": T79.10 - T79.17.
2. Gordon has been married to his wife Kerryne since 1969. In his affidavit, sworn 5 May 2016, Gordon stated his assets total $5,235, consisting of cash at bank ($1,235) and a motor vehicle ($4,000). His joint assets with his wife were said to be cast at bank ($443) and home contents (estimated at $15,000).
3. In his affidavit sworn 10 October 2017, Gordon updated his assets. Then, the assets comprised superannuation ($256) and cash at bank ($177). Although he did not list the motor vehicle he had referred to in his earlier affidavit as an asset, at the hearing, reference was made to him still owning this: T50.18 - T50.20.
4. In cross-examination, Gordon was asked about a number of superannuation payments from his superannuation fund HESTA, which in July 2012, had a balance of $50,836: Ex1/143. However, Gordon stated that his superannuation balance was, at the date of hearing, closer to $1,200, having withdrawn and expended the difference: T54.14 - T54.33.
5. In his first affidavit, Gordon deposed that he receives income in the form of an aged pension of $657 per fortnight. His wife received Centrelink benefits totalling $746 per fortnight. Their combined fortnightly income was $1,403. Their fortnightly expenses were said to be $2,098 leaving a shortfall of $695 per fortnight. Their only liability was said to be the repayment of $25 per week towards a credit card debt of approximately $1,600, which is included in their weekly expenditure.
6. In his updating affidavit, Gordon stated that he received income of $1,254 per fortnight, comprised of an aged pension of $518, and part-time employment, as a bus driver/handy man, of $735. His wife was said to receive Centrelink, and other government benefits, that total $1,148 per fortnight, giving them a combined income of $2,402 per fortnight.
7. Their combined fortnightly expenses were said to be $2,412 (or $1,206 per week), leaving an estimated shortfall of about $10 per fortnight. It is to be noted, however, that the estimated expenditure included an amount of about $100 per fortnight on gambling, $300 per fortnight on cigarettes and tobacco, and also takes into account the repayment of a number of liabilities including an outstanding tax debt of ($1,800), a personal loan ($1,000), and a credit card ($1,150). (In an earlier affidavit, his fortnightly expenditure on cigarettes was $420.)
8. In answers to questions from the Bench, Gordon said that he estimated that he spent about $50 per week, whilst his wife spent about $20 per week on gambling and about $220 per week on cigarettes: T80.33 - T81.10.
9. In cross-examination, Gordon agreed that once these outstanding debts were repaid, which he projected would be completed by November 2018, the fortnightly expenditure would be reduced by $116: T39.21 - T39.41.
10. Gordon deposed that as his youngest daughter, Marnie, had her first child at the age of 17 years, he has continued to support both her and his granddaughter, Tayler (who is now 19 years of age), stating that "[g]rowing up my wife and I provided for her financially and emotionally".
11. Gordon also claimed that he and his wife have "the care and maintenance" of Reece, Marnie's second child. With regards to Reece and Tayler, Gordon stated "I look after them like they are my children". Reece, Tayler, and Tayler's son, Xavier, all live with Gordon and Kerryne, and Gordon stated that, to some degree, he financially supported all three, stating "I am like their father and look after them in all aspects of their life". The family expenditure includes $140 per fortnight for child care for one great grandchild (Xavier).
12. Although Tayler is in receipt of a single parent payment from Centrelink, she does not pay board: T38.31 - T38.32.
13. Gordon also gave evidence that he gave his son, Craig, $25,000, "because he was in debt and needed my help". In return, "he has promised to pay for funerals for my wife and I".
14. Gordon was cross-examined extensively about the extent to which a number of cash withdrawals, detailed in Ex. 1, had been expended upon gambling. He agreed with counsel for the Defendants' suggestion that he had given large sums of money to his children and grandchildren, and that some of this money had also been spent on gambling: T62.30 - T62.38. I am satisfied that his and Kerryne's current financial circumstances are partly attributable to their expenditure on their children and grandchildren and partly on their gambling habits. These matters have had a significant impact on his financial capacity to retain capital.
15. Gordon deposed his "needs" as "money for a rainy day" (amount undisclosed), funds for a holiday, a new car (estimated between $15,000 and $22,000) and new furniture that is "durable and child friendly". He also stated he required a hearing aid, although he did not quantify the cost. At the hearing, his counsel submitted that an appropriate amount for provision would be "not less than $50,000": T214.39.
16. He stated that Cindy "has already received the benefit of a 50% share of [the Kingsford property] that she has not actually contributed to the purchase of" and that "she… has had the benefit of residing with my mother for the majority of her life rent free".
17. Gloria also resides in public housing, paying rent of about $307 per week (of which Gloria is said to pay $157 and Allan pays $150): Ex. A. There is no evidence that her accommodation needs are not being met by the accommodation in which she lives.
18. I have earlier referred to Gloria's assertion that although she and Allan live together and share expenses, they are "no longer in a romantic relationship". Bearing in mind the earlier conclusions I have come to concerning her credit as a witness, I am satisfied for the purpose of assessing Gloria's financial and material circumstances that it is relevant to also take into account the financial circumstances of Allan as they are living in the one home and sharing expenses.
19. In her May 2016 affidavit, Gloria deposed that her personal assets comprised household furniture ($3,000) and cash at bank ($6,246). At the hearing, she clarified that the cash savings had been reduced to $6,070, having recently bought Christmas gifts for her grandchildren and great-grandchildren: T84:15 - T84.19.
20. Allan's assets were said to include personal effects ($2,000) and cash at bank ($5.00). She deposed to no liabilities.
21. Gloria's income, at the time of her first affidavit, was said to comprise a Disability Support Pension of $620 per fortnight (after allowing for deductions for rent). In her affidavit of 11 October 2017, her income was disclosed, in bank statements annexed, to have increased to $651 per fortnight.
22. Under cross-examination, she clarified that she is in receipt of an Aged Pension, rather than a Disability Support Pension: T85.13 - T85.20; and that taking into account her rental supplement from Centrelink, her total income was actually $960.83 per fortnight: T87.16 - T87.21.
23. Allan receives an Aged Pension and a Carer's Pension from Centrelink, with a combined income totalling $1,084 per fortnight, which at the time of the hearing, had increased to $1,107.
24. Their joint weekly expenditure was said to be $887. Although in her updated affidavit Gloria deposed that their weekly expenditure "has changed slightly", no details of this were provided. Their combined income is sufficient to meet their estimated expenses.
25. Gloria set out her "needs" as being funds "for a rainy day…to live comfortably for contingencies". She stated that she requires provision out of the estate of the deceased so that she can obtain private health care (including private psychiatric assistance), purchase a sleep apnoea machine, and undergo surgery. She stated she also requires funds to take a holiday "in order to assist with my mental health". She would also like to be able to employ the services of a cleaner to assist with domestic duties that she claims that neither she, nor Allan, can complete.
26. Although none of these "needs" were quantified, her counsel in written submissions stated that "In essence her claim is for a 'buffer' to meet the contingencies of her life". At the hearing, counsel stated that appropriate provision for Gloria would be "something in the vicinity of not less than $30,000": T35.44 -T35.45.
27. Cindy gave evidence of her financial resources. She is now the sole registered proprietor of the Kingsford property. She has $11,800 in bank accounts; bank shares with a value of about $78,000; superannuation of $124,000 and a car ($15,000).
28. She is currently employed in administration at the Prince of Wales Hospital in a permanent position. She earns a net weekly salary of $854. She also received a laundry allowance of $242 over the last year. She has regular weekly expenses of $834 (which amount includes $10 per week to maintain the grave of each of her parents).
29. Counsel for Gordon and Gloria submitted that Cindy's income was higher than she had stated ($908) and that her expenses were lower ($596). He accepted, however, that there had been cash withdrawals averaging about $98 per week. Whilst he put these matters to Cindy, he did not suggest to her that she had additional savings that had not been disclosed or that she had attempted to mislead the Court about her financial circumstances.
30. Furthermore, Cindy had described her expenses as "regular expenses". It was clear that they did not, necessarily, include "one-off" expenses that sometimes arise.
31. Cindy stated that if she was required to sell the Kingsford property and purchase another property, she will have to pay stamp duty (on a purchase price of $700,000) of $27,000 and legal costs of $3,500.
32. She suffers from a number of medical conditions, including menorrhagia (with an increased risk of cervical cancer), eczema, peripheral edema, which is a condition that causes swelling from excess fluid in her ankles and legs, obesity, and depression and anxiety.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

1. I have already referred to the financial circumstances of the persons with whom each of Gordon and Gloria is cohabitating.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. Gordon deposed that he suffers from high blood pressure, asthma, asbestosis, and pain as a consequence of varicose veins in his left testicle. He uses an inhaler. He says that he requires a hearing aid but says that he is not aware of its cost.
2. The 'Patient Health Summary' from his General Practitioner, printed on 5 October 2017, annexed to his most recent affidavit, listed his 'Past History" as Asbestosis, Asthma, Calculus ureter (kidney stones), Labyrinthitis (inner ear disorder), left varicocoele (an enlargement of the veins within the scrotum), hypertension, left sialadenitis (bacterial infection of a salivary gland), osteoporosis with fracture and hearing impaired.
3. Gloria deposed that she suffered from a number of medical conditions: Rheumatoid arthritis, sleep apnoea and post-traumatic stress disorder.
4. The undated "Patient Medical Summary" that was annexed to her most recent affidavit, said to be from her General Practitioner, listed her "Current Problems" as plantar fasciitis (right), Derkham's disease (rare condition characterized by generalized obesity and fatty tumors in the adipose tissue), renal calculus (kidney stones), ovarian cyst, depression, diverticular disease, hypercholesterolaemia (elevated amounts of cholesterol in the blood), gastritis, calcaneal spur, sleep apnoea, cataracts (bilateral), rotator cuff tear (right), lumbar intervertebral disc disorder with radiculopathy, cervical disc disorder with radiculopathy, and Splenectomy.
5. In her affidavit of 11 October 2017, Gloria stated that she requires a "Right Shoulder Replacement", following which she estimated she will require a "significant level of personal care and assistance for a period of 6 months noting the surgery will be undertaken to my dominant arm". Although she annexed medical evidence which detailed a CT Lumbar Periradicular Injection she had undergone in June 2014, a CT guided Right Perineural injection in April 2016, and a right shoulder injection in December 2016, there was no direct evidence going to the need for surgery.

(g) the age of the applicant when the application is being considered

1. Gordon is aged 67 years. Gloria is aged 70 years.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. There is no suggestion that either Gordon or Gloria made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate or of the Kensington property of the deceased.
2. Gloria deposed in her affidavit sworn 9 May 2016, that following the motor vehicle accident in which the deceased had been involved, she had encouraged the deceased to seek compensation for the injuries she had sustained. Gloria recounted that as a result, the deceased received a "favourable compensation sum" that was used to purchase the Bondi Beach property.
3. Gloria went on to assert "If we didn't have that conversation and I didn't advise her accordingly, [the deceased] would have continued living in Seven Hills in a housing commission home never owning any assets".

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. There is no evidence of any provision made for either Gordon, or Gloria, during the deceased's lifetime. But for these proceedings, each would have received a one fifth share of the moneys in bank, after the payment of debts, funeral and testamentary expenses.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. I have set out evidence of the prior testamentary intentions of the deceased. But for the 2004 Will, her testamentary intentions remained consistent. She wished to ensure that Cindy had secure accommodation throughout her lifetime.

(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

1. Neither Gordon, nor Gloria, was being maintained wholly, or partly, by the deceased in the years before the deceased's death.

(l) whether any other person is liable to support the applicant

1. Apart from the Commonwealth government's responsibility to continue to provide each with an aged pension, and his, and her, spouse's responsibility, respectively, to do so to the best of her, and his, ability, there is no person who is liable to support Gordon or Gloria. In addition, each appears to be living in secure accommodation.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. There are no matters, going to character and conduct, of each of Gordon and Gloria, to which reference has not already been made.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. Neither Gordon, nor Gloria, disputed that Cindy greatly assisted the deceased during the later years of her life. Gordon, for example acknowledged that the deceased needed assistance, "especially towards the later years just before she died and this was provided by Cindy".
2. It is clear that of the deceased's children, Cindy was the person who, as the deceased herself recognised, assisted her the most from at least 1987. Merely because the deceased did not require constant care and attention at that time, does not mean that the child who lives with the parent does not provide for the parent's welfare by simply being there.
3. The deceased described Cindy to Sandra Whitfield, a volunteer biographer with the Sacred Heart Hospice who had interviewed the deceased shortly before she died, as having "always stuck with me through thick and thin. She's looked after me, kept with me, and lived with me. Anything I want that she knows I should have, she'll get. If she thinks I don't feel well, she'll take me straight away to the hospital…".
4. In a birthday card, addressed to Cindy, and given to her a couple of years before death, the deceased wrote: "…thanking you for all the kindness you have gave me all the years".
5. Dr Ursula Christopher, who had known her for 15 years, in a letter dated 27 September 2005, described her as an "outstanding … daughter to her mother".
6. Upon moving to the Kingsford property, Cindy even made it clear, in a note addressed to the deceased, that "You will never be put in a nursing home … So stop worrying and enjoy the rest of your life". She made good her promise as the deceased was not put into a nursing home. (Both Gordon and Gloria acknowledged that the deceased had often told her children that she did not want to be put into a nursing home.)
7. Cindy lived with the deceased for 48, of her 52, years. There is no doubt that she had an extremely close relationship with the deceased and that for many years, it was she who provided the deceased with companionship and emotional and other support. Her contribution to the welfare of the deceased cannot be underestimated and it is a very important matter to which regard must be had in considering Cindy's competing claim on the bounty of the deceased.
8. These are also matters that are to be considered on the question whether to make a notional estate order. They go to, amongst other things, "the substantial justice and merits involved in making or refusing to make the order": s 87(1)(b) of the Act.
9. Gordon and Gloria submit that Cindy received a significant financial benefit in having lived with the deceased for so many years. Under cross-examination, Gordon conceded, that as both his father, and the deceased, were pensioners, without any other source of income, they would not have had the resources to support Cindy financially: T72.31 - T72.38. Gloria also admitted that she was unaware of the particular financial arrangements that existed between Cindy and the deceased: T101.6 - T101.31.
10. Although it is true that Cindy would have received some financial benefits from living in the home of the deceased, I accept, despite the denial of Gordon and Gloria, that it was the deceased, initially, who had requested Cindy to come to live with her; thereafter, they appeared to be financially inter-dependent, with each contributing towards the costs of the household and other expenses: T157.41, T159.12 - T159.15; and that, from at least 2007, until the deceased's death about 8 years later, it was Cindy who bore the principal, if not the sole, responsibility for looking after the deceased to the extent that she required looking after, as each of the deceased's other children expressly abrogated his and her responsibility for doing so.

(o) any relevant Aboriginal or Torres Strait Islander customary law

1. Gloria deposes in her affidavit of May 2016 that "I am of Aboriginal descent however I am not aware as to whether or not any customary law applies in the consideration of this application".
2. In addition, at the hearing, Gloria made reference to her and her husband residing in "Aboriginal Housing": T86.21 - T86.22, T90.6.
3. Neither party, by counsel, made any submissions on the relevance, if any, of Aboriginal customary law. In the circumstances, I do not consider that Aboriginal customary law is of significance in this case.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

1. The deceased had made a number of Wills in which accommodation was provided to Cindy. Cindy also was aware, from the time of its purchase, that she and the deceased owned the Kingsford property as joint tenants. No doubt, she (and the deceased) reasonably expected that Cindy would inherit the Kingsford property by survivorship.
2. I have earlier referred to issues of credit.

DETERMINATION

1. I have borne in mind what was written by Basten JA in Chan v Chan at [22]: "A significant set of factors in many cases is that identified as 'the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…'. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
2. Thus, in determining what is adequate for the proper maintenance, education or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.
3. Thus, as stated the Court does not focus exclusively, or primarily, on an applicant's financial needs. Those needs, as well as the financial needs of any other person with a claim on the testamentary bounty of the deceased, are important, but not the sole considerations.
4. It seems clear that the deceased considered that she owed the greatest obligation and responsibility to Cindy, particularly in relation to accommodation, over and above that which she owed to her other children. That obligation rested upon the recognition that she and Cindy had lived together for almost all of Cindy's life, and that Cindy, of all the children, had cared for her and provided for her welfare. The deceased wished to ensure that the Kingsford property would pass to Cindy upon her death. This is hardly surprising.
5. The statements the deceased made to Mr Wilkins, to others, and to Cindy herself, to which I have earlier referred, evidence this intention. Had the deceased taken the step of having the Kingsford property in Cindy's name at the time of the purchase, a step, not unnaturally, advised against by Mr Wilkins, there would have been virtually no actual, and no notional, estate out of which to make any family provision order for either Plaintiff.
6. Both Plaintiffs approached this case on the basis that the deceased ought to have treated all of her children equally in the disposition of her estate. Indeed, this was the approach taken by the deceased, herself, in the distribution of her residuary estate. However, to approach the disposition of the Kingsford property in this same way would overlook the very strong obligation and responsibility that the deceased recognised that she owed to Cindy.
7. In assessing whether the provision made for each of Gordon or Gloria was inadequate for what, in all the circumstances, was the proper level of maintenance or advancement in life, appropriate for him and her respectively, I have had regard, amongst other things, to the totality of the relationship between each of them and the deceased, including, by way of some explanation, the allegations of parental misconduct asserted by each of them; the nature, extent and character of the estate, and notional estate, and the other demands upon it; the financial needs of each of Gordon, and of Gloria, and of Cindy; the claim of Cindy, as the surviving joint tenant, and otherwise, which claim the deceased regarded as superior to the claim of any of her other children; that generous provision was made for Cindy during the deceased's lifetime, including that Cindy shared the deceased's accommodation rent free, and that she was registered, as a joint tenant with the deceased, on the title of the Kingsford property without having made any financial contribution to the purchase price; and that Cindy's competing claim is to be found in her contributions to the deceased, both financially, and in other ways, for a significant period of the deceased's life, particularly after 2007, when the other children of the deceased, including Gordon and Gloria, abrogated the responsibility for her day to day care to Cindy.
8. There can be no doubt that for many years, Cindy performed a significant caring role for the deceased. It was that care that enabled Cindy to grant the wish of the deceased to not be placed in a nursing home. The deceased was taken to the hospital a few days before her death.
9. I have also borne in mind that Cindy did receive a carer's pension whilst she was unemployed and whilst she looked after the deceased.
10. (In stating that I have considered the allegations of parental misconduct made by each of Gordon and Gloria, I have borne in mind the competing evidence of Gregory and Cindy. I have also borne in mind that there can be only limited contradiction of Gordon's and Gloria's evidence as to his, and her, relationship, and dealings, with the deceased.)
11. Furthermore, even if Gloria's view that the provision made for her is so small as to leave a justifiable sense of exclusion from participation in the family estate, that does not require an order to be made under the Act. There is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] NSWCA 269 at [73] (Basten JA).
12. In my view, the deceased took considerable care in determining how her property should be distributed. As to her actual estate, the deceased chose to make specific bequests to individuals, including to Gloria ("my rings and the rest of my jewellery") and to Cindy ("my household goods and personal effects"). The deceased also recognised that she should, so far as there was residue, after payment of debts, funeral and testamentary expenses, treat her surviving children equally, and she did so by leaving the residuary estate to them in equal shares.
13. At the time of the purchase of the Kingsford property, the deceased's instructions to Mr Wilkins were clear, unambiguous, logical, and unsurprising. She was in a better position to determine how the property, to which neither Gordon, nor Gloria, had made any financial, or significant other contribution, should be held when purchased, and the effect, on the nature and value of her estate if, for example, she purchased it in the name of Cindy, or if it was purchased as a joint tenant with Cindy. To conclude otherwise, would elevate the financial need of Gordon, and of Gloria, respectively, over what the deceased regarded as her primary obligation to Cindy, which whilst not determinative, must be borne in mind.
14. Furthermore, in considering, and following, the advice of Mr Wilkins, the deceased appears to have been capable of giving due consideration to questions of distribution of her property in her lifetime, and upon her death.
15. The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which she was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127].
16. As has recently been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
17. In all the circumstances, I am not satisfied that the provision made for either Gordon, and for Gloria, is inadequate for his, and her, proper maintenance and advancement in life, respectively. It follows that it is not necessary to determine whether to make any order for provision for either out of the estate or notional estate of the deceased, having regard to the facts known to the Court at the time the order is made. It is also unnecessary to consider whether to make a notional estate order.
18. Whilst it is true that failing to sever the joint tenancy did involve an omission to exercise a right that, at some time after the purchase was entered into, could have been exercised by the deceased, so as to result in a benefit to the estate of the deceased, by increasing its value, it is also necessary for the Court to consider the importance of not interfering with reasonable expectations in relation to the Kingsford property, the substantial justice and merits involved in making or refusing to make a notional estate order, and any other relevant matters in the circumstances.
19. Had it been necessary to consider what provision "ought to be made" for each of Gordon and Gloria, as a matter of discretion, having regard to all of the matters identified in s 60(2) and other matters referred to above, I would have made no further provision for him and her respectively. In that case, also, it is unnecessary to consider whether to make a notional estate order.
20. Accordingly, the Court: 1. Orders that the Amended Summons be dismissed. 2. Makes no order as to the costs of either of the Plaintiffs, noting that there is a conditional costs agreement made with his, and her, solicitors, so that neither will have any obligation to pay any costs and disbursements of the proceedings. 3. Orders that the first Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased. 4. Makes no order as to the costs of the second Defendant. 5. Notes that to the extent that there is insufficient in the estate to pay the first Defendant's costs and disbursements, the Defendants will resolve, between themselves, how the balance of any unpaid costs and disbursements should be borne. 6. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

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 February 2018