Penninger v Penninger

Supreme Court of NSW|2017-05-18|Before: Hallen J

Background

In a claim for a family provision order, factual context is necessary. It is next convenient to begin with a statement of background facts, since these provide that context. For the most part, the facts stated immediately below, are not controversial. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.
The deceased married Jean (John) Baptiste Georgio Ricardo Penninger (identified as Giovanni Giorgio Ricardo Batista Penninger in John's affidavit sworn 13 April 2017), in or about May 1949. He predeceased the deceased, having died in August 1983. The deceased did not remarry, or enter into a de facto relationship, at any time thereafter.
There were only the three children of the marriage to whom reference has already been made.

The Failure to Administer the Estate

The deceased died 7 years ago. Probate of the deceased's Will has not been granted and the assets of the estate have not been collected or distributed. It is clear that the conduct of the executors named in the deceased's Will has fallen short of the conduct required of executors.
During cross-examination, John stated that when he had attempted to obtain Probate, he had been prevented from doing so by Walter's refusal to sign the necessary documents to enable this: T46.49 - T47.4. John also claimed that he had not been told by his then solicitor, that he could have applied for a grant of Probate in his own right: T47.13 - T47.16.
Other than the fact that there has been no grant of Probate to him alone (for which he must take responsibility), there has been no justification for the conduct of the executors. Whilst Mr Hallett, relatively recently, has renounced Probate, and Walter is outside the jurisdiction, John has failed to provide any evidence to justify not having done anything to properly administer the deceased's estate, or to satisfactorily explain what has prevented him from seeking Probate, with leave to Walter to join in if he so desires, and from, otherwise, carrying out his duties as an executor.
It appears to me, that he has been content, until very recently, to allow the status quo to remain, which has enabled him to enjoy the occupation, and use, of the deceased's interest in the Merriwa property.

The Statutory Scheme

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have done so in many other cases, but for the benefit of the parties, I shall do so again.
Usually, in cases such as the present, the Court must determine (not necessarily in the order set out below) whether: 1. The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act; 2. The time for the making of the Plaintiff's application should be extended; 3. The provision made for the maintenance, education and advancement in life of the applicant by the deceased's Will is adequate and proper in all the circumstances; 4. If the provision is inadequate, what provision, if any, ought to be made out of the estate of the deceased 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.
These matters are not entirely distinct, but are related and overlap. For example, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application.
The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of ss 57(1) and 59(1)(a). It is only an "eligible person" who may apply to the Court for a family provision order. Relevantly, in this case, Alba relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that she is a child of the deceased.
As stated earlier, Alba made her application almost 6 years after the death of the deceased. The Act, relevantly provides, in s 58(2) , the period within which the application must be made: "An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown."
In Moore v Randall [2012] NSWSC 184 at [39], White J (as his Honour then was) wrote that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period."
In Verzar v Verzar [2014] NSWCA 45 at [24], in the Court of Appeal, Meagher JA wrote that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
Clearly, permitting the Court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380 at [98].
The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.
In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 at [23]-[24], Pembroke J put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows: "The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]."
To refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant. As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, at [31]: "The appellants' submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: 'If it is improbable that the substantive application will succeed it seems idle to grant the extension.' This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success 'may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ....'." Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].
Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)… The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)… Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."
As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, "the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate": Harrison v Harrison [2011] VSC 459 at [292].
Also relevant to the present case, is what was said in Mansfield v Mansfield [2003] WASC 214 at [65]: "The authorities also show, as in Young v Kestel, that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act."
Likewise, an applicant who is under a reasonable misapprehension as to the extent of his, or her, interest under the deceased's Will, provides a sufficient reason explaining the delay in commencing proceedings: In re Marland (decd) [1957] VR 338.
Although in another context, the High Court said in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475: "… it is a mistake to attempt to reduce the expression 'sufficient cause' to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal Defendant has or may have suffered because of that failure."
As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…"
If eligibility is established, and the time for making the application is extended, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the Court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act.
It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
"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".
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 which is Hinderry v Hinderry [2016] NSWSC 780.
Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff 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: Hunter v Hunter (1987) 8 NSWLR 573 at 575.
Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227.
"Need", of course, is also 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 (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides: "(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 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 purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
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.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
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.
There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19; McKenzie v Topp [2004] VSC 90 at [63].
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 rework 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."
Of the freedom of testamentary disposition, in Grey v Harrison [1997] 2 VR 359, 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."
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."
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."
As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 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."
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), 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
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."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].
In relation to the Plaintiff's claim, being a claim for provision by an adult child, the following principles 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 at [71]; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after his or her 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. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams at [86]. 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
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] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62].
In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty". The only other claimants on the bounty of the deceased in the present case are John and Walter.
Neither John, nor Walter, even though not applicants for provision, have to prove an entitlement to the provision made for him in the deceased's Will, or otherwise justify such provision.

The Plaintiff's evidence relating to an extension of time

I shall refer to the evidence on this topic in respect of two time periods. The first time period covers the period between the date of the deceased's death until January 2016. The second period covers the period thereafter until the commencement of the proceedings.
I shall quote Alba's evidence regarding the first time period verbatim: "10. I attended and spoke at my mother's funeral in Merriwa. Walter had flown in from Fiji where he was living on his yacht. 11. At my mother's funeral an employee of the Nursing Home where my mother had resided prior to her death spoke to me about my mother's nursing home bond. I do not recall this person's name. I said: "See my brother John about that. He arranged her affairs." 12. I attended the wake. After the wake and before I left Merriwa, I went to the house my mother had occupied on the farm to collect photographs. 13. After the wake I returned to my home in Caringbah. A month or so after the funeral, I sent the defendant an email inquiring "what is happening with the Estate". I did not receive a reply to my email. 14. I had expected to receive correspondence in due course from the defendant about my entitlement in my mother's estate. I believed that my mother's interests in the defendant's business and farm could take some time considerable time to sort out. 15. I did not consult a Solicitor in regard to the Estate or my entitlement in the estate. I did not turn my mind to bringing proceedings because I trusted my brother. 16. I was not aware that a time limit applied to an application for further provision from an estate."
The only response by John, to Alba's affidavit evidence, is: "16. In reply to paragraph 10, our sibling Walter, did not attend our mum's funeral. 17. In reply to paragraph 12, where Alba admits taking photographs from my mum's home. These photographs were taken without any notice to the estate or consent of me, the executor. I also understand from speaking to my wife that mum had, "left a letter explaining the reason for the gift to Alba in her will". I could not find this letter in mum's house. 18. In reply to paragraph 13, I do not recall Alba sending me an email about the estate."
Alba was cross-examined about her evidence. She confirmed that she had sent the email following the deceased's death and that she had not received a response to it. She accepted that she had not telephoned John thereafter. She could not remember whether she had sent Walter an email about the estate. She stated that she had not spoken to any friends about bringing a claim against the estate (T22.1 - T22.27).
The Court also asked Alba some questions: "Q. From your affidavit evidence and what you have said this morning in answer to some questions from Mr Stevens, it appears that you attended your mother's funeral? A. Yes. Q. And at or about that time, did you make any enquiry of either of your brothers whether your mother had left a will? A. No. Q. Didn't ask any questions? A. No. Q. About a will? A. No, your Honour. Q. Why is that? A. I don't know. Q. Were you completely uninterested in whether or not she left a will? A. I wasn't interested, I just was dealing with my mother's death. I sat with her when she passed. Q. I see. And after you got over the death of your mother, at any time prior to 25 November 2015 did you make any enquiries of your brothers or either of them about whether she had a will? A. I sent my brother an email about a month after the funeral, my brother John. Q. Yes. A. But didn't get a response. Q. And having received no response, you didn't do anything? A. Look, I can't really remember. I might have followed up with a phone call, but nobody answered but I really can't recall that. That's something I would have done, but I can't recall having done that. Q. And time passes and still nothing happens? A. Mm. Q. Did you not want to enquire about A. Well, I knew Q. anything? A. I knew about the business and the farm and the fact that, you know, the business and the farm was a very involved issue and I just trusted that my brother would contact me when he finished, when he was ready and that he had done the probate on it, or I trusted he would do the right thing. Q. How did you know, for example, that he was the executor of the estate? A. I didn't, until he rang me. Q. Well, I'm just wondering, you said you trusted that he would ring you when he got probate? A. Well, I guess I assumed because he ran everything on the farm, that he was the executor."
On 10 January 2016, Alba received a telephone call from John and they had a conversation which included the following: John: "We are settling Mum's Estate and you are a Beneficiary. I need an address to send you a letter."
Alba goes on to state - "I gave the defendant my address. We finished the telephone call with pleasant conversation."
On 15 January 2016, Alba received a letter from Ms K Oldman of Denman Legal, (who was John's former solicitor) which, relevantly, provided: "I hold the original last Will of your late mother. You are named as a beneficiary of the estate."
(I should mention that the letter was dated 25 November 2015 but it seems to have been accepted that Alba did not receive it until 15 January 2016.)
There was a form enclosed but a copy of that document was not included in the evidence. Alba gave evidence, however, that she thought it had referred to her being a beneficiary and that it asked for her bank account details. She was asked whether it said anything about if intending to bring a claim she should do it within a particular period. She was unable to recall whether it did, but did not believe so: T25.25 - T25.45.
In an email dated 18 January 2016 from John's former solicitor, the following appears: "Attached are copies of: 1. Your late mother's Will dated 1 August 1997 2. Your late mother's death certificate. 3. A copy of the certificate of title for the land I will post a copy of these documents to you. The assets in the estate are: A. A 2/3 interest in the property at Depot Rd Merriwa, Folio identifier 10/750942 (total value about $537,000). IE a 2/3 interest is worth about $358,000. B. A Water Licence for that property: WAL18618 (minimal value) C. An account with Community Mutual with a balance of about $5,500."
Importantly, there is no reference in the email, to the debt secured by the Mortgage on the Merriwa property, or the amount that would be payable.
In a letter dated 25 January 2016, solicitors retained by Alba (Jessep & Storm, Mr P Jessep) wrote to John's former solicitors (Denman Legal): "We note that the deceased died on 8 July 2010. We also note that the Will appoints John Penninger Walter Penninger and solicitor, Michael Percy Hallett as Executors. Are they all still executors? There are specific legacies which appear to have abated. We note that although the residue of the Estate is left to her daughter, Alba Penniger, the deceased has not left anything significant to her daughter. We advise that we will be seeking leave from the Court to commence proceedings under the Chapter 3 of the Succession Act 2006, pleading that the deceased did not make adequate provision for her daughter. We also request that no asset of the Estate be distributed until the matter is heard by the Court. Would you please confirm your agreement with that proposition. We will serve the Estate with our Application as soon as possible and look forward to your response."
By letter dated 27 January 2016, Ms Oldman responded: "We are now seeking instructions from the Mr John Penninger, one of the Executors. We have been unable to contact or locate Mr Walter Penninger, and we understand that your client also has no knowledge of the current whereabouts of Mr Walter Penninger. Enclosed is a copy of a Renunciation of Probate signed by Mr Michael Hallett. We will contact you again as soon as we receive instructions."
It goes without saying that in January 2016, the proceedings, if commenced immediately, would still have required an order extending the time for the making of Alba's application. The Plaintiff's application, even then, was over four years out of time.
By letter dated 5 April 2016, Mr Jessep asked for specific information about the nature and value of the deceased's estate.
By letter dated 11 April 2016, Ms Denman responded: "We advise that we are no longer acting for the Executors of the Estate. Please contact the Executors directly about these matters."
There is no evidence of Alba, or her solicitors, having contacted John, or Walter, directly, after receipt of this letter.
It should be mentioned that a copy of the correspondence to which I have referred was annexed to Alba's affidavit sworn on 18 July 2016. However, each of the annexures was said to be an annexure "referred to in the affidavit…sworn at Caringbah this 18th day of April 2016". As stated, the Summons was not filed until 25 July 2016.
Alba accepted that she had received a copy of her draft affidavit from her solicitors in April 2016 (T23.43 - T23.45). There was no explanation why the annexure note bore a reference to an affidavit that would have been sworn 3 months earlier. When asked in cross-examination whether she had sworn an affidavit in April 2016, Alba said she could not remember.
Alba was cross-examined about events concerning meeting with her solicitor. She accepted that she went to see the solicitor about the deceased's estate, that he had discussed with her bringing a claim in respect of the estate, and that the solicitor mentioned the claim was out of time and that it needed to be put on promptly: T22.33 - T22.44.
John's counsel asked the Court to infer that there had been such an affidavit. He also submitted that there had been no explanation for the failure to commence the proceedings between January 2016 and July 2016.
Alba says that she cannot remember making any enquiry about the deceased's estate, or her entitlement to any share of that estate, in the years following the deceased's death in 2010 other than the one email to which she did not receive a response. However, there is no basis for rejecting her evidence that she did not do so. It was accepted by John's counsel that he had no evidence to contradict Alba's evidence on this topic.
One can well understand not making any enquiries about a Will immediately after the deceased's death. To do nothing for over four years thereafter, is less understandable, and, in the circumstances of this case, bearing in mind the apparent relationship of the parties, as demonstrated in the conduct of the proceedings, even less explicable.
There is no basis, however, for rejecting Alba's evidence that she did not know of her rights to make a claim, or that she did not see a solicitor about her rights until January 2016. Yet, whilst that may explain the delay in the period between the date of death and mid-January 2016, it does not explain the delay between that time and 18 July 2016, when the proceedings were commenced.
However, the explanation for the delay is not the only matter that must be considered. All of the evidence must be considered to determine whether there is sufficient cause for extending the time for the making of the plaintiff's application.

The Defendant's Evidence

John gave a significant amount of evidence to the contributions made by him to "the family businesses operated under the company, Mirzain Pty Limited…" both before, and after, the death of the deceased.
He stated that "the effects of an order for provision for my sister in these proceedings will mean that I am forced to sell the Merriwa property and liquidate the family business that I have work[ed] in since 1970's… If I am forced to sell the Merriwa property, and liquidate the businesses, I will be left without secure accommodation, and I will be left without a job."
The Court raised the accuracy of the last statements at T45 - T46: "Q. And may I just inquire, when was the last time you spoke to Walter? A. November last year. We didn't speak at that stage, but that was the last time he communicated with me via email. Q. I see. That was an email correspondence? A. Yes. Q. And does he appreciate that he has an interest in the estate property? A. Yes, he, he I believe he does, but I'm puzzled by his lack of contact. Q. I see. And you appreciate that as an executor of the estate, the property is going to have to be sold to satisfy the terms of the will? A. In which particular part? My brother's share? Q. Yes. A. Yes, I'm aware that we've got to come to some sort of an arrangement between the two of us. … Q. And have you had any discussions with Walter about what is going to happen? A. As I said, the last communication I had was by email. Prior to that I'd had several conversations, several email communications with him. Q. So you haven't yet come to an arrangement? A. No, we we haven't come to that, but my presumption is that we would be able to come to some arrangement."
This prompted some further cross-examination by counsel for the Plaintiff: "Q. You have expressed a hope to come to an arrangement with Walter about the property? A. (Witness nods). Q. But your tax returns which form part of the annexures to your affidavit of 17 May, indicate that your taxable income is an amount less than $100,000. Do you anticipate being able to borrow to satisfy Walter's interest in the estate? A. I'm not sure. You know, the way that I've currently met my legal fees has been a very difficult process, but I've found the funds from Mirzain. I'm not sure what arrangement my brother and I can come to satisfactorily, but I also note that he's not made any claim on the estate or me for the whole period that we have been working on the property. Q. But you understand that Walter doesn't have to claim? A. No, no, I'm not saying I'm saying he has shown by his lack of interest that potentially, you know, he will, you know, come to some arrangement. Q. Just because he hasn't pressed for entitlement, you really can't presume A. I'm just talking about to date, right and you're right, I can't presume that we won't, he won't make a claim. That's his prerogative, that's his right. He may choose to do that. Q. But he doesn't have to claim. He has a right under the will? A. Yeah, yeah and as we go through the processes of executing the will, we will settle his outstanding part of the estate, you know."
In his written submissions, counsel for John pointed to the delay between 25 January 2016 and the date of commencing the proceedings six months later, stating there is no explanation for the delay and that "the failure to make a prompt application after retaining solicitors to act ought to be fatal to the extension of time". He also asserted that "the Plaintiff's case is weak".
Counsel for John stated, in his oral submissions: "We don't assert any prejudice, your Honour. We don't assert that there is any unconscionability on at least behalf of the plaintiff. What we say is that there is an obligation on the plaintiff for an applicant who brings a family provision claim to bring a claim promptly."

Additional Facts

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 [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

The Plaintiff is a child of the deceased. She attests to having had a good relationship with the deceased throughout her life. She is the youngest of the three children of the deceased.
The Plaintiff moved out of the family home when she was 17 years of age. She left school to enter the workforce against her parent's wishes, and was asked to leave. Despite this, the Plaintiff kept in regular contact with the deceased by telephone.
When the Plaintiff was 18 years old, she married her first husband (Andrew). Neither the deceased nor the Plaintiff's father attended the wedding.
When her first child was born in 1977, the deceased travelled to Bathurst, where the Plaintiff was then living, in order to meet her grand-child.
In 1978, the deceased and the Plaintiff's father bought the property in Merriwa. An offer was then made to Andrew to run the farm, in exchange for which the deceased and the Plaintiff's father offered to "build a house for [us] on the property." The Plaintiff states the deceased said to her at the time "This is your only opportunity to get back into the family."
The Plaintiff and Andrew accepted the offer, resigned from their respective employment, and moved to Merriwa. Whilst the house was being built, they lived in rented accommodation in Merriwa which was paid for by the family business.
In 1979, after the Plaintiff's second child was born, and prior to moving into the house that had since been built, Andrew was dismissed from his employment in the family business, due to allegations by the Plaintiff's father that Andrew had been unfaithful to the Plaintiff. The Plaintiff declined an offer by her father to move into the property, with the children, but without Andrew. Instead, she and Andrew moved to other rented premises.
In about 1980, Alba separated from Andrew. At the end of 1980, she moved to Bathurst with her children. For many years thereafter, she seemed to have lived a somewhat peripatetic lifestyle, moving to various places that enabled her to be employed.
In 1995, Alba stated that she bought a car and that she "began visiting my mother regularly including on special occasions". She says that after 2006, when the deceased was moved into the nursing home she would visit her there.
John does not dispute Alba's version of her relationship with the deceased.

(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

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.
The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 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."
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.
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 any of her children, once they became adults, imposed upon her by statute or common law.
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."
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. However, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] NSWCA 269 at [73].
The size of the deceased's estate is also relevant to determining the extent of the obligation or responsibility.

(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

I have earlier dealt with these matters. The value of the net distributable estate, even without considering the costs of the proceedings, is on any view, very small.

(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

Alba is in receipt of a Newstart Allowance from Centrelink, and her income is said to be $290 per week. She supplements her income with part-time work as an Advance Child Care Worker, which at the time she swore her first affidavit was said to be about 11 hours per week, earning an additional $320 per week, but was revised in her affidavit sworn 18 May 2017, to only an additional 3 hours per fortnight. Her income meets her expenditure, which expenditure is estimated to be $1,385 per month. She also gave evidence that when she cares for her 6 year old grandson during the school holidays, her daughter will pay her up to $120 per week.
Alba has assets of $25,297 which includes cash in bank accounts ($110), superannuation ($3,187), personal effects ($10,000), and a car ($12,000). In July 2016, her debts included a credit card debt of $1,000 and a personal loan of $5,000. Her updated evidence on the topic of her liabilities was rejected.
Alba resides in Housing NSW rental accommodation, and she has been a public housing tenant since the 1990s. At the hearing she gave evidence that she is presently residing for extended periods of time with her son, in Port Macquarie, although she continues to pay the rent on her housing in Sydney. She explained that she does so whilst she is awaiting a transfer of her public housing to the Port Macquarie area, which, she expects, will occur within the next 6 months (T26.33 - T26.39). She pays subsidised rent of $58 per week (T27.2).

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

Alba is single and usually lives alone. However, at the hearing she gave evidence, in cross-examination, that she resides with her son in Port Macquarie on a full-time basis for 6 weeks at a time, and then returns home to Sydney (for an undisclosed period of time), in order to comply with the requirements of Housing NSW in retaining her public housing accommodation. She does not pay any rent or board to her son, or contribute to the costs of the meals she shares with his family, during the periods she lives with him (T28.6 - T28.12). However, she states that she receives no further financial assistance from her children, and did not disclose the financial circumstances of her son in her evidence.

(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

Alba stated that she has been unable to continue in full-time employment since 2012, after suffering a fall on the train whilst travelling home from work in 2006, and undergoing a shoulder operation in 2009. She states she underwent a Disability WorkCover medical assessment in December 2013, which found she had a 16% Whole Person Impairment with capacity to work 8 to 12 hours per week. However, no further evidence of an updated assessment of her capacity to work was not provided (updating medical evidence was excluded).
I accept that Alba has a limited earning capacity.

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

Alba is 61 years old.

(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

Alba gave evidence that, as a teenager, she, occasionally, worked in the family business without being renumerated.
She also referred to the contribution made by her then husband in running the family farm. She conceded that, during this time, the business paid for the rent on their house.
John asserted that Alba "did not contribute funds to the family business in any meaningful way that I am aware".

(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

Alba gave evidence that from time to time, the deceased provided her with financial assistance, by giving her some money. In particular, in the mid 1980's, when her marriage to Andrew ended, and he did not provide her with child support, the deceased also provided assistance with groceries and gifts of clothing. The deceased also provided assistance with child-care whilst Alba worked in the evenings in the 1980's. The deceased also gave financial assistance to Alba in order to purchase a second hand car to allow her to drive to work.
In cross examination, Alba stated that the deceased gave her small amounts of money (usually $20), whilst she was a single parent, up until her second marriage in 2003 (T20.10 - T20.24). However, otherwise, Alba appears to have been financially independent of the deceased for at least the last 15 years of the deceased's life.

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

John gave evidence in his affidavit sworn 13 April 2017 that the deceased had told his wife, Margaret, that she had "left a letter explaining the reason for the gift to Alba in her will." He also stated that following the death of the deceased, this letter could not be found amongst the deceased's possessions.
Alba was not cross-examined about whether she had ever seen such a letter.
Thus, other than the Will itself, there is no evidence of the testamentary intentions of the deceased.

(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

I have dealt with the periods during which some money was given to Alba by the deceased. Alba was clearly not being maintained by the deceased in the 7 or 8 years prior to the deceased's death.

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

Apart from the Commonwealth government's responsibility to continue to provide her with the Newstart Allowance, and housing provided by the NSW Government, there is no other person who is liable to support Alba.

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

I have earlier dealt with Alba's conduct.

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

John gave evidence of his competing financial claim, asserting that any order for additional provision for the Plaintiff would necessarily require the sale of the Merriwa property (T62.17), with the consequence that he would be left without employment or accommodation. Alba, who did not accept this assertion, was unable to offer any cogent reason why this would not be the case (T31.10- T31.43).
However, I have earlier referred to the terms of the deceased's Will and that it will be necessary for John and Walter to come to some arrangement regarding the Merriwa property if it is to be retained by John. Clearly, no such arrangement has yet been made.
John's assets are his one-third interest in the farm (estimated to be $179,166) which is subject to a share of the debt secured by the Mortgage to Margaret. He also has shares in Mirzain Pty Ltd which he estimates to be "between nominal to $100,000." He has personal effects to the value of $4,000. He has a nominal amount of money in his bank account (said to be $190) and no savings or superannuation.
He stated that he had drawn down on his superannuation (said to have been $33,000) to pay off some debts owed by Mirzain.
John only draws from the business what he requires to live on, which in the last financial year was about $16,764. His income just meets his expenses of about $315 per week. His only liability is the share of the mortgage debt to Margaret secured on the Merriwa property.
John deposed that over the last 10 years, the family business has taken a down turn in profit or return as a result of loss of market share, a reduction in volume production and management decisions that have not yielded results. He stated that turnover has reduced from a high of $2.4 million per annum in the early 2000's, to $250,000 per annum.
John also gave evidence that if he is forced to sell the Merriwa property and liquidate the business, this will not generate much net return, as the businesses have significant long term debts to staff and other creditors. As a result, he stated he will not be left with much to show for his 40 years of labour on the Merriwa property and in the family business.
Although John and Margaret remain married to each other, they no longer consider themselves to be in a marriage relationship, and Margaret resides in a property in Lilli Pilli, in which she is said to own a one-half share. John stays with Margaret about twice a week (although they do not share a bedroom), as they share parenting responsibilities for two foster boys they are raising. John contributes about $100 per month to assist with expenses relating to the foster children. He deposed that he and Margaret have separate finances and no combined assets. There has not been, however, a property settlement between them.
John gave evidence that he was diagnosed with prostate cancer about 4 years ago, for which he underwent treatment. He states that recent test results indicate he is likely to need to undergo further treatment within the next 2 years.
As has been earlier dealt with, following the death of the deceased, no application for a grant of probate was made. John has remained in control and occupation of the Merriwa property and operates his business from there. The company, Mirzain Pty Ltd, was incorporated by the deceased and John in 1986. He gave evidence that Mirzain notionally pays rent to him.
John has worked the Merriwa property and businesses since the 1970s and has lived on the property since 1993. The Merriwa property was purchased as tenants in common in equal shares between the deceased, John, and the deceased's late husband.
Reference has earlier been made to what is said to be Mirzain's contribution to the Merriwa property, which includes setting up and installing a three phase power supply to the farming property, the purchase of two kit homes, and the installation of an irrigation system.
John deposed that he, the deceased and his father, rarely received any dividends from the family business, and that most of the profits went back into developing or expanding the business.
John had a close relationship with the deceased as her son, and also as her business partner since the 1970s. This is evidenced by the terms of the deceased's Will and the provision made for John during the lifetime of the deceased.

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

This factor is not applicable.

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

There is no other matter that I consider relevant.

DETERMINATION

Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, Alba, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
Because the proceedings were not commenced within the time prescribed by the Act, the Plaintiff sought an order that the time in which to commence the proceedings be extended up to, and including, the date of the filing of her Summons.
The onus is on the Plaintiff to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by John and/or Walter.
I shall return to this after dealing with the next question; that is, whether the provision made for the Plaintiff by the deceased, in leaving her the residue of the estate, bespeaks inadequacy. As previously stated, a precondition to a family provision order being made is that the Court must be satisfied that the deceased has not made "adequate provision for the proper maintenance ... or advancement in life of the person in whose favour the order is to be made".
The size of the actual estate is very small. Because of its nature, the provision of residue to Alba means that she will not receive anything.
The fact that the Plaintiff does not actually receive any provision made for her under the Will of the deceased, of itself, does not bespeak inadequacy. In determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the Plaintiff's overall financial position, the totality of her relationship with the deceased, 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.
Claims for a family provision order present particular difficulties where the actual estate is small and where there is a significant competing claim upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.
One cannot consider the terms of the deceased's Will on its own. One must consider many other facts. As Basten JA wrote in Chan v Chan at [22], the Court must remember: "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."
John and Walter are the only other persons who have any relevant claim on the deceased's bounty. Only John has raised his financial and material circumstances and his competing claim upon the bounty of the deceased. The Court must not ignore his claim as a beneficiary, being the principal chosen object of the deceased's testamentary bounty. I am satisfied that his competing claim is founded upon his significant contributions to the deceased, and to the estate property, during the deceased's lifetime. These matters are relevant on the issue whether the provision made for Alba is inadequate.
This is a case of an applicant adult child who has lived quite independently of her parent, the deceased, for many years, but who is nonetheless, in straitened circumstances.
It is to be noted, also, that the Plaintiff has, for some time, whilst receiving an income by way of pension, supplemented by casual work, been living within her means. The Court is entitled to take into account pension benefits as part of the resources of the Plaintiff, and to consider that they will continue to be received in whole or in part. In addition, the Plaintiff has the continuing financial resource of housing accommodation provided to her by Housing NSW.
However, I must also consider the fact that John has remained living on the Merriwa property and appears to have treated it as his own since the death of the deceased. This is a substantial benefit that he has received since the death of the deceased.
Consistent with prevailing community standards, I am satisfied for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of Alba has not been made by the Will of the deceased.
I then turn to the provision, if any, that ought to be made for Alba. Because of the size of the estate, and the competing claim of John, any provision for her, must be extremely modest.
I do not accept the submission of counsel that Alba should receive a lump sum of $50,000. The estate is simply not large enough to enable that amount to be regarded as "adequate and proper" in all the circumstances. It also does not give due regard to the deceased's testamentary intentions as expressed in the Will and to the significant competing claim of John.
In my view, a lump sum of $17,500 should be made for Alba out of the deceased's estate. This lump sum will enable her to pay off her debts and leave an extremely modest capital sum for the exigencies of life.
Whilst it is true that Alba has not provided an explanation for not having commenced proceedings immediately upon, or even shortly after, seeing a solicitor, by that stage, the time for making the application had well and truly expired. Furthermore, in ending the retainer of his prior solicitors, without appointing someone to act for him, or otherwise acting for himself, John did not assist in enabling all of the information necessary to enable Alba to consider whether to make a claim during this period, to be made available.
John's conduct, as an executor, in doing nothing to administer the estate until about 6 years after the death of the deceased, does not assist him in the Court's consideration of Alba's delay in commencing proceedings. In addition, in that period, he did not act even-handedly between beneficiaries. To the contrary, it seems to me that he has treated the deceased's estate, from the date of death, as his own, to do with as he pleases, despite the fact that it was not his property in law or given to him, alone, under the terms of the deceased's Will.
Having found that Alba has a reasonable claim, and should receive some provision, as a matter of justice, I am of the view that sufficient cause has been shown for the making of her application. Thus, the time for the making of her application should be extended to the date of the filing of the Summons.
Thus, the Court: 1. Orders, pursuant to s 91 Succession Act 2006 (NSW), that administration in respect of the estate of the deceased, Nella Maria Penninger, be granted to the Plaintiff, for the purposes only of permitting her application for a family provision order to be dealt with. 2. Orders, sufficient cause having been shown, that the time for the making of the Plaintiff's application be extended until 25 July 2016, the date of the filing of the Summons. 3. Orders, having found that the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, in lieu of the provision made for her in the Will of the deceased, that the Plaintiff receive a lump sum of $17,500 out of the estate of the deceased. 4. Orders that no interest is to be paid on the lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. 5. Orders that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased. 6. Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merriwa property until paid in full. 7. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made herein. 8. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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: 06 July 2017

Family Provision Act 1982(NSW)

ee and Guardian [2012] NSWSC 275 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Diver v Neal [2009] NSWCA 54 Estate of the late Anthony Marras [2014] NSWSC 915 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Gleeson v Gleeson [2002] NSWSC 418 Goodsell v Wellington [2011] NSWSC 1232 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Harrison v Harrison [2011] VSC 459 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Hinderry v Hinderry [2016] NSWSC 780 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 In re Marland (decd) [1957] VR 338 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Mansfield v Mansfield [2003] WASC 214 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566 Moore v Randall [2012] NSWSC 184 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Salmon, Deceased [1981] Ch 167 Salmon v Osmond [2015] NSWCA 42 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Sophron v The Nominal Defendant (1957) 96 CLR 469 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stollery v Stollery [2016] NSWSC 54 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), 17 May 1996, unrep) Underwood v Gaudron [2015] NSWCA 269 Wheat v Wisbey [2013] NSWSC 537 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Ms Alba Silvia Maria Penninger (Plaintiff) Mr Jean (also known as John) Penninger (Defendant) Representation: Counsel: Ms M Pringle (Plaintiff) Mr A F Stevens (Defendant)

Procedural Matters

There were a number of procedural matters that were raised during the hearing.
John is not the sole executor named in the Will made on 1 August 1997 by the deceased. The other two named executors are Walter, and a solicitor, Mr M P Hallett. Neither Walter, nor Mr Hallett, has played any part in the proceedings.
On 9 March 2015, Mr Hallett, who is now retired, executed a form of renunciation of Probate, a copy of which forms part of Alba's evidence. John and Walter, despite the passage of 7 years from the date of death of the deceased, have not sought Probate of the deceased's Will. It will be necessary to return to this aspect of the matter later in these reasons.
Alba disregarded Uniform Civil Procedure Rules ("UCPR") rule 7.11(1) in commencing the proceedings. That rule requires, in proceedings relating to an estate, that all executors of the Will of the deceased, or all administrators of the estate, must be parties.
John was named as the sole Defendant in the Summons and has represented the deceased's estate since the commencement of the proceedings. He is a beneficiary, with Walter, of the only remaining property forming part of the estate of the deceased. It appears that, since the deceased's death, John has remained in control of the deceased's real property to which I shall refer. He resides on, and operates his business from, that property.
There is no evidence that suggests that Walter is interested in obtaining Probate of the deceased's Will or in having the estate distributed in accordance with its terms. He appears to have been uninterested in participating in the proceedings either as a party or as a witness.
Both Alba and John referred in her, and his, affidavit, respectively, to Walter having worked as a solicitor. Each also gave evidence that, to her, and his, knowledge, Walter lives on a yacht in Fiji.
In the circumstances of the present case, the Court should exercise its power to dispense with UCPR, rule 7.11(1), pursuant to s 14 of the Civil Procedure Act 2005 (NSW). It seems clear that the only person interested in defending Alba's proceedings is John. It is his interest in the estate that may bear in whole, or in part, the burden of any provision made in favour of Alba.
Without opposition from Alba, at the commencement of the hearing, I made an order that UCPR rule 7.11(1) be dispensed with.
Also, at the commencement of the proceedings, the Court raised with the parties, the need for an order to be made appointing John a representative of the deceased's estate for the purposes of the proceedings, pursuant to UCPR rule 7.10(2)(b). Needless to say, John's consent to be appointed was immediately forthcoming and, without opposition from Alba, I also made that order.

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