Philpott v Pantos

The Costs and Disbursements of the Proceedings

1. Usually, in calculating the value of the deceased's estate and notional estate finally available for distribution, the costs of the proceedings should be considered, with circumspection. A Plaintiff, if successful, normally, will be entitled to an order that her, or his, costs, calculated on the ordinary basis, be paid, whilst the Defendants, as the persons appointed to represent the estate and notional estate, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his, or her, costs, calculated on the indemnity basis, be paid out of the estate or notional estate.
2. In an affidavit sworn on 27 April 2018, by Mr A Dunne, Nicky's solicitor, her costs and disbursements, calculated on the ordinary basis, of the proceedings to the conclusion of a two day hearing, exclusive of GST, were estimated to be $40,423. At the hearing, counsel for the Plaintiff informed the Court, without objection, that, inclusive of GST, these costs were estimated to be $44,465: T2.41 - T2.50.
3. The evidence revealed also that Nicky has paid some of the disbursements (in total $10,998). This leaves $33,467 left to be paid by her of the costs calculated on the ordinary basis.
4. (The costs and disbursements, calculated on the indemnity basis, inclusive of GST, were estimated to be $58,077: T2.15 - T2.26. She has $47,079 to pay of these estimated costs and disbursements.)
5. In an affidavit sworn on 20 April 2018, Ms S Lewis estimated the Defendants' costs and disbursements, calculated on the indemnity basis, of the proceedings to the conclusion of a two day hearing, inclusive of GST, were $45,732. The Defendants have paid $17,732, out of the deceased's estate, on account of the costs and disbursements, leaving a balance of $28,000 to be paid.
6. Due to the efforts of the legal representatives, the hearing was able to be concluded within one day. Consequently, the costs and disbursements of each of the parties were reduced. For the Plaintiff, counsel informed the Court that the costs and disbursements would be reduced by $6,000 (calculated on the ordinary basis and inclusive of GST): T65.13 - T65.35. For the Defendants, the amount by which the costs and disbursements were reduced was $6,400 (calculated on the indemnity basis and inclusive of GST): T65.10 - T65.11.
7. If orders were made that the estimated costs of all parties were to be paid out of the deceased's estate, their total costs and disbursements, excluding the Defendants' costs already paid from the estate, would be $60,065. The estate available for distribution, therefore, would be $288,416. Again, it is clear that the value of the estate out of which an order for provision may be made is small.
8. As will be read, however, Nicky will not recover her costs of the proceedings out of the estate and will be required to pay some of the Defendants' costs of the proceedings.

The Statutory Declaration made by the deceased

1. A significant issue in the case related to the contents of a Statutory Declaration, made by the deceased, and declared in the presence of Ms C Hammond, Justice of the Peace in New South Wales. The Statutory Declaration was created following the deceased attending the offices of Michael Lewis & Associates on 19 February 2016, with an interpreter, in order to explain her testamentary intentions. However, it was not executed until 14 September 2016.
2. Much of the evidence turned on the contents of this Statutory Declaration, which went to the reasons why Nicky was not included in the deceased's Will, and referred to Nicky acquiring a half interest in the Ashcroft property.
3. Nicky gave evidence, by affidavit sworn 7 November 2017, stating that she had inherited her father's half interest in the Ashcroft held as a tenant in common. She also gave evidence that from May 2007 to 2015 the deceased had lived in the Ashcroft property and that she did not "seek to sell [her] interest in the property" and "did not ask the deceased to pay [her] any rent". All of these matters, undoubtedly, were true, but they did not tell the whole story.
4. In the Statutory Declaration, the deceased wrote about how she discovered Nicky had received the half interest in the Ashcroft property, which although lengthy, is necessary to repeat: "George and I never made any arrangements after we separated to divide our assets and George remained in the marital home. I always thought that the marital home was still mine as I had contributed to its purchase. I never thought to talk to a solicitor about the breakdown of our marriage. In around the year 2004 my daughter Nikki came to me with a document that she said I had to sign. Nikki did not explain what the document was to me and so I originally refused to sign it. Nikki then said to me words to the effect: "If you don't sign the document you will be in big trouble with Dad" I was still afraid of George and I felt that if I didn't sign the document that George would come to my flat in Roselands and hit me or hurt me until I signed it. So I gave in and signed the document. I never again thought about that document being signed until I realised that Nikki owned half of my former marital home. A search of the title to the property has now revealed that what I signed was a transfer that made George and I tenants in common. George and I did complete a Will at some stage after we were married as we had three children and a house. I don't remember the details exactly but I recall all three children were mentioned in the will. I had no idea that George may have made another will. After we made the first Will we never spoke about it again. I was under the assumption that I would receive the house if something happened to George and he would get the house if something happened to me. … When George died I had no idea that Nikki owned a one half share of the marital home. Nikki said to me words to the effect: Nikki: 'Mum dad left me the house.' Me: 'No house is mine'. Nikki: 'Yes mum the house is yours.' I didn't think to question Nikki any further about this conversation as I considered the martial home mine. I recall Nikki's name being on council rates at some time after George's death but I thought that it had something to do with that document that Nikki had me sign back in around 2004. When I decided to sell the marital home I went to a Real Estate agent he told me Nikki will need to sign the sales agreement and the contract. This was the first time I realised Nikki was a one half owner of the former martial home. … It wasn't until after the house was sold that I began to question whether it was right that Nikki was now a one half owner of the martial home. I began to feel the fact that Nikki was a one half owner in the house was not right and I had a talk to my children Con and Maria and on the 13 November 2015 I attended my solicitor's office, Michael Lewis & Associates to receive advice on the matter."
5. The deceased then discussed how she had perceived Nicky's conduct. (Although this evidence was admitted, it was limited to evidence going to the deceased's state of mind regarding Nicky's conduct). The deceased declared: "I feel that Nikki has completely and deliberately deceived me about being an owner of the house and if I had known when George died I would have made an attempt to do something about it. Since I discovered Nikki has deceived me I have been losing many nights sleep and I am very distressed that my daughter betrayed me in this manner."
6. The deceased also declared: "I have a loving and supporting relationship with my son Con and my daughter Maria. I do not currently speak to Nikki. I feel that my daughter Nikki being left one half share of the former marital house was very unfair to me. I believe Con and Maria not being left anything under George's Last Will and Testament is an unfair circumstance. I have therefore decided not to leave Nikki any provision under my Last Will and Testament dated 19 July 2016 due to her deceptive and bad behaviour towards me. I do not want her to inherit or benefit from my estate. I respectfully ask the Supreme Court of New South Wales to accord to my said Last Will and Testament. And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1900."
7. In cross examination, Nicky confirmed that under George's Will, she had inherited his share of the Ashcroft property. She also admitted that she was aware of the terms of his Will prior to his death: T20.03 - T20.09. Nicky then admitted that she was aware, originally, that the deceased and George had held the Ashcroft property as joint tenants, and that an instrument was executed that severed the joint tenancy in around April 2004: T20.21 - T20.29.
8. Counsel for the Defendants tendered a copy of the relevant Transfer. When shown the document, Nicky admitted that it was her name printed thereon as a witness, and that it was predominantly in her handwriting. It was put to Nicky that it was also her handwriting in a section of the document titled "Transferee", however, she did not recognise the handwriting as hers, but noted, "It's similar, but when you look at the address, it's not in block letters and I normally write in block letters": T22.24 - T22.25.
9. Counsel for the Defendants then put to Nicky that she had "arranged for [her mother] to sign this document", which Nicky agreed she had done: T23.14 - T23.16. However, in response to a question that suggested Nicky "filled out the document and initiated the steps to have it registered", Nicky denied this allegation: T23.18 - T23.20. She gave evidence that it was George who had initiated the steps of having the Transfer severing the joint tenancy registered.
10. Finally, Nicky conceded that she knew "if [George] were to predecease [her] mother, [she] would obtain a significant interest as a result of what was in his will": T23.36 - T23.38.
11. That Nicky did not give evidence, in any of her affidavits, of the circumstances of the deceased signing the document relating to the severance of the joint tenancy and that, apparently, she had not disclosed to the deceased the effect of signing the document that led to the severance of the joint tenancy is a relevant matter and explains some of the views expressed by the deceased in the Statutory Declaration.
12. I also consider, as important, that Nicky did not dispute that she had stated to the deceased "if you don't sign the document you will be in big trouble with Dad". This also, may explain some of the views expressed by the deceased in the Statutory Declaration.
13. The contents of the Statutory Declaration, particularly, the part thereof that identified that Nicky had inherited George's interest in the Ashcroft property, forms part of the deceased's judgment, as a "capable testator" in deciding who should benefit from her estate: Sgro v Thompson [2017] NSWCA 326, at [83], [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127].
14. For the most part, I have given little weight to the emotive language used by the deceased in the Statutory Declaration and considered, as much more important, the undisputed fact that Nicky inherited George's one half interest in the Ashcroft property.

The Statutory Scheme

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the family provision proceedings. As the Plaintiff's eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine is whether adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased: s 59(1) of the Act. Once that power is enlivened, the Court may make "such order for provision ... 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)).
2. There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
3. The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.
4. Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
5. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
6. 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) wrote 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].
7. 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. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson, per Payne JA (agreeing with White JA) at [6].
8. 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 her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222, at [22]: "… [I]t 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."
9. 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."
10. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
11. 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."
12. 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."
13. 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."
14. 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…)."
15. 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.
16. 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."
17. 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."
18. 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."
19. 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."
20. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502: "…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
21. 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."
22. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 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.]
23. 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."
24. His Honour added, in Slack v Rogan; Palffy v Rogan 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)."
25. In Sgro v Thompson, White JA, at [86], stated: "[T]he 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."
26. 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]."
27. 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.
28. 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'."
29. 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."
30. 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.
31. 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.
32. 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.
33. 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."
34. 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. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, "may" does not mean "must".
35. 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)."
36. 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. 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.
37. 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.
38. 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).
39. 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.
40. 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.
41. The Court's 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).
42. Section 66 of the Act sets out the consequential and ancillary orders that may be made.
43. 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).

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. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
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. In Sgro v Thompson, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan, at [127], namely, that: "…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 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."
10. His Honour added, at [86]: "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."
11. Of course, 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 all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
13. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].
14. In relation to the claim by the Plaintiff, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
15. 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].
16. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep). Nor is it the role of the Court to provide reparations to the Plaintiff in respect of what might be regarded as poor parental behaviour by means of a monetary order: Williamson v Williamson [2011] NSWSC 228 at [124]-[127].
17. The other claimants on the bounty of the deceased, Con and Maria, who are the only beneficiaries of the deceased's estate, 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. In this case, however, both have provided evidence demonstrating of his and her contribution to the deceased's welfare.

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 wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
4. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18] - [20], and by Barrett JA, at [66] - [67]; in Burke v Burke [2015] NSWCA 195, at [84] - [85]; and Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.

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 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

1. Nicky is a child of the deceased. She gave evidence that until shortly before the death of the deceased, she "had a good relationship with her". She also gave evidence that she visited the deceased regularly, and that her children would stay with the deceased during school holidays.
2. In about August 2015, after the deceased was released from hospital following her diagnosis of leukaemia, Nicky and Con "equally assisted with Mum's care and transported her to and from Gosford hospital for her GP appointments, her chemotherapy and her blood tests". During this period, the deceased stayed at the homes of Nicky and of Con (both located at the Central Coast of New South Wales). However, from early November 2015, the deceased resided with Con permanently.
3. On the other hand, the deceased, in her Statutory Declaration, declared that she does not "currently speak to Nikki". I accept Con's evidence given in an affidavit sworn 29 January 2018, that after the deceased received legal advice regarding Nicky's interest in the Ashcroft property, the deceased would "avoid telephone calls from Nicky" and that "Nicky only visited my Mum at my home on two occasions".
4. Con also gave evidence of Nicky and the deceased having had telephone conversations in which the deceased said words to the effect of "why have you done this to me Nicky, you said you would look after me but you haven't. Con and Mary (Maria) look after me and you do nothing". He said, and I accept, that following the telephone calls with Nicky, the deceased would be extremely upset and had made statements similar to "I can't believe my daughter has treated me like this. I can't sleep I'm so upset about it".
5. Similarly, Maria gave evidence in an affidavit sworn 15 March 2018 that she observed the Plaintiff and the deceased's relationship breakdown in about November 2015. She stated that the deceased became distressed when talking about Nicky and that she had said words to the effect of "I can't believe Nicky has treated me the way she has. I want to die".
6. I accept the account given by Con and Maria in respect of the Plaintiff's relationship with the deceased in the final part of her life, which, apart from anything else, was not challenged. Indeed, the Plaintiff conceded that her relationship with the deceased had deteriorated before the deceased's death.

(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 any 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. The boundaries of the obligation or responsibility are not amenable to rigid definition. Importantly, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] NSWCA 269, at [73].
7. 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

1. 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, 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

1. Nicky works as a receptionist and earns $800 per week after tax.
2. In her affidavit affirmed 23 March 2018, she disclosed assets, including cash in bank ($16,387), a jointly owned property with her husband in Woy Woy (the total value of the property comprising between $750,000 to $800,000), an investment property jointly owned with her husband in Wauchope (the total value of the property comprising $390,000), two "old cars" ($8,000) and superannuation ($98,000).
3. In Nicky's updating affidavit sworn 27 April 2018, she disclosed that her total cash in bank had been reduced ($8,557) and that her superannuation had increased slightly ($98,500).
4. Nicky disclosed liabilities comprising credit card debts ($2,271), a fixed interest mortgage on the Wauchope property ($312,619) and a variable interest mortgage secured on the Wauchope property ($57,642). (I shall come to Nicky's net financial position later in these reasons, as I must also consider her husband's financial position.)
5. Con is unemployed. In cross-examination, he accepted that he receives a pension (the amount of which was not disclosed): T50.12 - T50.14. His wife, Karen, works as a housekeeper and supports the family from her income.
6. In his affidavit sworn 15 March 2018, Con deposed that he and his wife have assets comprising property in Hamlyn Terrace ($680,000), two motor vehicles ($32,000), and cash in a joint bank account ($52). He also disclosed cash in bank in his personal Commonwealth Bank Account ($158) and Karen's Commonwealth Bank Account ($822), as well as superannuation in Karen's name ($100,655).
7. He disclosed liabilities, comprising a joint mortgage debt secured over the Hamlyn Terrace property ($256,393) and a credit card debt ($1,325). Karen also has a credit card debt ($1,594).
8. In his updating affidavit sworn 30 April 2018, Con stated that he withdrew his superannuation ($136,240) due to his "ill health" and "inability to work". He has used this money to pay off credit card debts ($8,000), to repay money owed to his son ($8,500), to purchase furniture ($13,500), to pay veterinary expenses ($1,000) and, finally, to pay for monthly living expenses charged to his credit cards ($35,000). The balance ($70,240) has been kept in a home loan redraw account to offset mortgage interest, and is also being used to fund living expenses: T50.16 - T50.21.
9. Consequently, he and his wife, assuming they have completely paid off their credit card debt, are in the position of having assets with a net value of approximately $627,534.
10. Con and his wife have weekly expenses consisting $1,277. These include mortgage repayments ($375), groceries ($250), utilities ($48), water and council rates ($60), telephone bills ($65), insurances ($59), clothing and footwear ($30), school fees and uniforms ($110), a "medical fund" ($100), and medical expenses ($130).
11. Maria works as a payroll supervisor and earns approximately $100,000 per year (inclusive of superannuation). Her husband, Chris, formerly worked as a handyman, but is currently unemployed due to "a serious knee problem".
12. Maria and Chris have assets comprising property in Bonnet Bay ($950,000), two motor vehicles ($7,000), cash in a joint bank account ($8,000), cash in Maria's Commonwealth Bank Account ($200), Maria's superannuation ($275,000), and Chris's superannuation ($295,000).
13. Maria and her husband have liabilities comprising a mortgage debt secured over the Bonnet Bay property ($300,000), a bank overdraft in an ANZ Business Account ($50,000), personal credit card debts ($19,000), and credit card debt connected with their business account ($2,500).
14. Consequently, Maria and her husband are in the position of having assets with a net value of approximately $1,163,700.
15. Maria and Chris have weekly expenses of $1,650. These include the cost of groceries ($350), petrol ($160), utilities ($100), mortgage repayments ($450), telephone and internet bills ($70), clothing ($30), car insurance, registration and repairs ($95), rates ($40), insurance ($135), medical expenses ($20), prescriptions ($20), veterinary bills ($10) and school fees and uniforms ($40).

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

1. Nicky lives with her husband. He earns $1,600 per week. In addition to his share in the jointly owned Woy Woy and Wauchope properties, he is said to have additional assets comprising superannuation ($208,500) and cash in bank ($28,000). Nicky disclosed, in cross-examination, that her husband also owns NRMA shares in the value of approximately $7,207: T36.08 - T36.12.
2. Consequently, Nicky and her husband are in the position of having assets with a net value of approximately between $1,126,232 and $1,176,232.
3. Nicky gave evidence that the Wauchope property had been acquired within two weeks of commencing proceedings, and that, before its purchase, she and her husband had no debt: T30.11 - T30.23. She also accepted that she and her husband receive rent amounting to $1,480 per month, which had not been disclosed in her affidavit evidence, but was "given in all the paper work": T30.32 - T31.03.
4. It was put to Nicky, who agreed, that the amount received in rent from the Wauchope property almost equates to the repayments of the mortgage debt, the difference being about $80 per month: T31.45 - T32.11. It follows that the ownership of the Wauchope property creates a very small drain on their income.
5. Nicky and her husband currently support their three sons who, in 2017, were disclosed as aged 19, 17 and 15 respectively. Her eldest son attends university, whilst the younger two children are still in school. Each lives at home.

(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. The Plaintiff is in reasonably good health.
2. Con suffers from a range of health issues. A letter, written by Dr C Heron, confirmed that he has been diagnosed with both Ramsay Hunt syndrome (shingles) and Bell's palsy, which had resulted in his admission to Sutherland Hospital in January 2017. His admission was "protracted due to [his] general weakness, vertigo and balance issues". He was subsequently re-admitted to Wyong Hospital after "collapsing at home due to continuing weakness". His illness has resulted in a "protracted period of inability to work due to his very slow recovery", which has made his return to work "not viable". Due to the family conflict in regards to this litigation, Con has had an "exacerbation of depression". The letter specified numerous medical specialists Con sees in relation to his medical conditions.
3. Con also gave evidence he has been unable to drive since December 2016. He disclosed that he currently takes various medications, including Fluoxetine, Lyrica, Stemetil, Endone, Targin, Celecoxib, Progout and Epipen. He is "not confident of obtaining full time employment in the future".
4. Maria gave evidence that she has high blood pressure and is currently being treated by her doctor for depression. A letter, written by Dr V Pala, confirmed that Maria has a history of depression, hypertension, hyperlipidaemia (an abnormal increase in the levels of fats (lipids), including cholesterol, in the blood) and of sleep disturbance. She takes various medications.

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

1. Nicky is 51 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

1. I have already discussed Nicky's contribution in caring for, and housing, the deceased following her diagnosis with leukaemia. The care provided to the deceased was of several months duration.
2. Nicky also gave evidence that whilst she was a co-owner of the Ashcroft property with the deceased, she did not seek to sell the property, and did not request the deceased to pay her rent.
3. Of course, in cross-examination, the Plaintiff admitted that she had arranged for her mother to sign the document which allowed the joint tenancy in the Ashcroft property to be severed, and, without this document, her mother would have been entitled to the whole of the property upon George's death: T23.03 - T23.16.
4. I have previously mentioned that there was no evidence that Nicky had described the effect of the Transfer to the deceased and that she had stated that the deceased would have a problem with George if she did not sign the document.
5. The Plaintiff also agreed that she knew that if her father predeceased her mother, she would obtain a "significant interest as a result of what was in his [W]ill": T23.36 - T23.38.
6. I consider all of this conduct relevant, as it resulted in a smaller estate for the deceased. Yet, it is to be remembered that the Ashcroft property had been owned by George and the deceased as joint tenants and it was open to one, or both, of them, to sever the joint tenancy if that is what he, and/or she, desired to do.

(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 that there was any provision made for Nicky by the deceased during her lifetime and, as stated, she does not receive any share of the deceased's estate under the deceased's Will.

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

1. I have earlier discussed the Statutory Declaration, in combination with the Will, as evidence of the deceased's testamentary intentions. It was her desire to provide for Con and Maria because they did not inherit anything under George's Will, which the deceased considered an "unfair circumstance".
2. I also consider it relevant that the deceased and the Plaintiff's relationship had deteriorated in the final years of the deceased's life which may have restrained the amplitude of any provision made for her by the deceased.
3. In cross-examination, it was put to Con that he had, in fact, inherited a property in Greece from George, but the response was that he knew "nothing at all" about this property, and that he "never received any money from that property": T46.16 - 46.35. No evidence was provided by Nicky of any property in Greece, or, if there was such property, the nature or value of it.
4. It bears mentioning that in Nicky's affidavit in chief at [28], she gave evidence that the deceased said to her, on more than one occasion, words to the effect of "I'm not going to do to you what your father did. I've got three kids and I'm going to leave a third share of the house to them equally".
5. Even if these statements were made by the deceased, it is likely they were made in the context of the deceased believing that the whole of the Ashcroft property was hers to dispose of. It is highly unlikely that the deceased would have intended Nicky to receive almost two thirds of the Ashcroft property (the 50 per cent she received from George and one-third of the 50 per cent that the deceased owned), with each of her other children sharing equally the balance of one third.

(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. There is no evidence that the Plaintiff was being maintained by the deceased in the years prior to the deceased's death. It seems more likely than not that she had been financially independent of the deceased for many years prior to the deceased's death.

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

1. I consider that the Nicky's husband has the primary legal duty to support her.

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

1. I have discussed, already, Nicky's conduct in presenting a document to the deceased, with the intention of her signing that document to enable the severance of the joint tenancy of the Ashcroft property.

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

1. As the chosen objects of the deceased's bounty, it is not necessary for Con or Maria to establish that each shared a close relationship with the deceased, however, both gave evidence of his and her relationship with the deceased.
2. Although, initially, the deceased had stayed with both Nicky and Con, from November 2015, she resided with Con and his family "on a permanent basis". It was Con who, principally, provided the deceased's care by housing her, and transporting her "to and from Gosford hospital for her GP appointments, chemotherapy and her blood tests".
3. Con also gave evidence that looking after the deceased involved: 1. Providing her with her daily meals; 2. Washing, ironing and cleaning her clothes; 3. Organising and handling her medication, including her chemotherapy medication; 4. Accompanying her on the frequent admissions to the hospital; and, 1. Providing company and encouragement to her.
4. Maria gave evidence that the deceased was involved in both her and her children's lives. The deceased would often help Maria with the care of her children, including when they were unwell. She also assisted Maria with the housework, on a regular basis, for many years. Maria would frequently drive the deceased, who did not have a driver's licence, to see her friends or to medical appointments. Additionally, the deceased accompanied Maria on her family holidays to domestic destinations, including Melbourne and the Gold Coast.
5. Con gave evidence that when the deceased had leukaemia, Maria assisted with her care when she was able.
6. I accept Con's evidence that he and the deceased shared a "special", "close and loving relationship". I also accept Maria's evidence that she had a "very close relationship with [her] mother … throughout both [her] childhood and adult life".
7. Finally, I should record that it was Maria's husband, Chris, who carried out considerable repairs to the Ashcroft property, between March and November 2007, so that the deceased could return to live there following George's death. (The deceased had moved from the Ashcroft property in about 1988, when she separated from George.) The repairs on the Ashcroft property were said to be necessary to make the property "comfortable and liveable again".
8. Chris gave evidence, by way of affidavit, upon which he was not cross-examined, that the Ashcroft property was "in an extremely run down state and that it needed significant attention and repair". He outlined the types of work he had done, including removing all existing furniture, carpets and fittings; removing the existing kitchen, as well as supplying and installing the new kitchen cabinets, extractor fan, sink and tap; retiling the kitchen; installing a new shower, bath, toilet, vanity and mirror; replacing various ceiling lights; and, also, general works, such as painting.
9. Maria gave evidence that she had assumed that "everything that was being done to the property was for my mother's benefit and my sister never informed me otherwise". Con and Chris gave consistent evidence.
10. In cross-examination, Nicky acknowledged that Chris had carried out substantial repairs: T25.37 - T25.43. She also agreed that the repairs were carried out upon a belief that the works were for the deceased's benefit, as "she was living in it": T25.45 - T25.47. She also accepted that she did not tell Chris that she owned half the property. She asserted, however, that the deceased "told me that she had advised my sister that half the house was mine": T26.32 - T27.08.
11. Whilst the repairs were being completed, the deceased lived, predominantly, with Maria, but also stayed with Con from time to time.
12. Chris was assisted, from time to time, by Con, who was said to have worked on the property every Saturday for approximately nine months. He was also assisted, occasionally, by Nicky's husband.
13. Con also made contributions to the deceased's Ashcroft property, including purchasing a new vanity and taps for the bathroom, purchasing paint for the house and purchasing floorboards for the lounge room and hall.

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

1. 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

1. There is no other matter that I consider relevant.

Determination

1. Having established eligibility, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased.
2. As I have written in other cases, one of which is Morier v Liem [2016] NSWSC 582, at [247], the fact that no provision is made in the deceased's Will for the applicant does not, of itself, bespeak inadequacy. A person may fail to satisfy the description of being "left without adequate provision" even though no provision is made for her in the deceased's Will.
3. But, as stated, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires a consideration of all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. The Act stipulates no automatic entitlement to provision for an eligible person.
4. Importantly, in considering the question, it is erroneous to treat the Court's consideration as confined only to an assessment of Nicky's material needs. Rather, the Court is required to have regard to not only her financial position, but also to the size and nature of the estate, the totality of the relationship between her and the deceased, and the relationship between the deceased and others, particularly, the Defendants, with claims upon her bounty. To consider her financial needs only, would elevate Nicky's financial needs over what the deceased regarded as her obligations to Con and Maria.
5. In any event, when one considers the financial circumstances of Nicky (and her husband), it is clear, as submitted, in writing, by counsel for the Defendants, that she "is not facing imminent retirement or the contingencies associated with old age. She and her husband are both in secure employment, are in reasonably good health, and together they have a reasonable income. They holiday consistently, have accumulated superannuation, in the order of $306,000 (as a provision for their retirement), and receive income through the rental of their investment property that is almost equal to the mortgage repayments thereon.
6. In addition, I have quoted what White J wrote in Slack v Rogan; Palffy v Rogan, at [127]. The passage is important in the present case and should not be forgotten. The deceased gave serious consideration to the persons who should receive provision out of her small estate. It is hardly surprising, in all the circumstances, that she considered that Con and Maria, should share her estate equally and that no provision should be made for Nicky.
7. (There was a submission made in counsel's written submissions that "[A]dequate evidence has not been adduced … of the circumstances surrounding the procuring of the Will or the deceased's statutory declaration" and that "[I]nstructions are said … to have been obtained from the deceased in respect of the statutory declaration in February 2016, but the statutory declaration was not executed until September of that year. No explanation has been provided by the defendants for this lengthy delay".
8. These are not submissions that really bear upon the determination of the case since there were no prior proceedings relating to challenging the validity of the deceased's Will, and the substance of the facts presented in the Statutory Declaration, ultimately, as found, is not really in issue.
9. The consideration of all of the matters that the Court is required to consider leads me to conclude that there was no failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life for Nicky. In my view, in all the circumstances of this case, it would not be expected that the deceased should have made greater provision than she did (which was in fact no provision at all) for Nicky.
10. It is impossible to accept Nicky's submission, in circumstances where Con and Maria share, effectively, a small estate, comprising what is the deceased's share of the proceeds of sale of the Ashcroft property, being one half of the net proceeds of sale of that property, and where Nicky, alone, has received the remaining share of the proceeds of sale, albeit not from the deceased, that adequate and proper provision has not been made for her by the deceased.
11. It follows that the Court does not have jurisdiction to make an order for provision out of the estate of the deceased for her and the proceedings had to be dismissed.
12. However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of Nicky, having regard to the facts known to the Court at the time the order is made.
13. As a matter of discretion, having regard to the matters identified in s 60(2) referred to above, as well as other matters to which I have referred, I would not make an order for provision for Nicky out of the deceased's estate. She received 50 per cent of the Ashcroft property as a result of the severance of the joint tenancy and George's Will, whereas Con and Maria received no share of George's estate. Nor did they seek provision out of that estate, leaving Nicky to receive a substantial inheritance. It is also clear that the deceased had due regard to Con and Maria's superior claims or preferable dispositions as demonstrated by her Will and by the Statutory Declaration.
14. For all of these reasons also, the Summons was dismissed.

The Defendants' Offer of Compromise

1. Although the parties had requested that the Court not deal with the issue of costs as part of the reasons, after the order dismissing the proceedings was announced, counsel for the Defendants tendered a letter dated 27 February 2018, to which was annexed a copy of an Offer of Compromise: Ex. 6. The terms of the offer made were that Nicky should receive a lump sum out of the deceased's estate of $22,000, and her costs, calculated on the ordinary basis, of the proceedings. As the Offer of Compromise did not provide otherwise, and as it did provide for the payment of money, it was taken to provide for the payment of that lump sum within 28 days after acceptance of the offer: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 20.26(8).
2. Counsel for Nicky did not dispute that the offer made was an "offer of compromise" within the meaning of the UCPR, or that the offer made was one that could truly be called a genuine compromise. Nor did he dispute that the Offer of Compromise specified the period of time within which the offer was open for acceptance: UCPR rule 20.26(2)(f). As the offer was made two months or more before the date set down for commencement of the trial, the closing date for acceptance of the offer was to be no less than 28 days after the date on which the offer was made: UCPR rule 20.26(5).
3. In this case, the period allowed for the acceptance of the offer in the Offer of Compromise was 28 days.
4. Nor was there any submission made that it was reasonable, at the time the offer was made, for Nicky to not accept the offer, primarily because she did not have the benefit of the evidence to be relied upon by the Defendants or because she was unable to assess the strengths of the Defendants' case.
5. There was no evidence of any counter-offer made by, or on behalf of, Nicky.
6. UCPR rule 42.15A relevantly provides: "42.15A Where offer not accepted and judgment no less favourable to defendant (1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer. (2) Unless the court orders otherwise: (a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii)..."
7. The effect of the rule, in this case, is that the Plaintiff must bear the Defendant's costs of the proceedings for the family provision order, unless the Court otherwise orders. The Court can only order otherwise if there is a discretionary decision to depart from what the UCPR provide.
8. In Chapple v Wilcox, at [27], Basten JA stated: "Whether or not an unsuccessful applicant should be allowed to litigate without expense to the estate will depend on a variety of circumstances. There is always a discretion in the Court when making an order pursuant to s 98 of the Civil Procedure Act 2005 (NSW). The discretion conferred on the Court by that provision is subject to the rules of court (s 98(1)) and thus to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that costs will follow the event unless it appears to the Court that some other order should be made. That rule is not disapplied in relation to family provision orders. Nor should applicants for such orders have any expectation that, as a general rule, the discretion will be applied so as to exempt them from liability for costs incurred by an estate in the case of an unsuccessful application. In some cases applicants will already be beneficiaries of the estate and may thus have some incentive to ensure that the costs of litigation are kept within tight bounds. However, that is not always the case. Where an applicant is entirely unsuccessful, an order that he or she should pay the costs of the estate may well be the appropriate order."
9. Kunc J in Bates v Cooke (No 2) [2014] NSWSC 1322 (which was cited, with approval, by White J in AB v Curry & Anor (No 2) [2015] NSWSC 1209 at [4], and by the Supreme Court of Victoria in Briggs v Mantz (No 2) [2014] VSC 487 at [33]-[35], and Smith v Whittaker [2016] VSC 287 at [36]) wrote at [33]: "Taking into account the language of r 42.15A, a party seeking to persuade the Court to order otherwise must identify some feature or features of one or more of the proceedings, the claim, the offer (including, for example, when it was made) and the order or judgment obtained by the successful party which provide a rational basis for the Court to displace what the rule specifies is the costs order to which 'the defendant is entitled'."
10. (An appeal from the substantive judgment of Kunc J was dismissed in Bates v Cooke (2015) 14 ASTLR 22; [2015] NSWCA 278. Nothing was written by the Court of Appeal about the costs judgment.)
11. In Meres v Meres (No 2) [2017] NSWSC 523 at [43]-[44], I wrote: "From the authorities, it appears the question for determination regarding the effect of what is said to be an Offer of Compromise involves a two-stage process. The first stage is to enquire whether the offer made is an 'Offer of Compromise' at all, within the meaning of the UCPR. This will depend, in part, on whether it satisfies the formal requirements laid down by UCPR rule 20.26. It also depends, in part, on whether the offer made is one that can truly be called a 'compromise'. If the court concludes that the offer which is made is an 'Offer of Compromise' within the meaning of the Rules, and that the offer made is one that can truly be called a compromise, then UCPR rule 42.15A(2) operates to establish a 'default' position, relevantly that, if the defendant obtains a judgment no less favourable than that which the defendant had offered to accept, then indemnity costs would follow. It is then that the second stage of the process arises, in that the court can 'otherwise order'. The court will 'otherwise order' if it is persuaded that is appropriate, in the interests of justice, that the 'default' position ought not apply: Manly Council v Bryne (No 2) [2004] NSWCA 227, per Campbell JA, at [10]; Evans v Braddock (No 2) [2015] NSWSC 518, at [52]."
12. In this case, I am more than satisfied that the rule should apply and that there are no matters that would lead the Court to make a different order. Nicky was given every opportunity to resolve the proceedings, including having a judicial settlement conference, some months before the hearing in which the estimated costs of the proceedings were disclosed. Furthermore, particularly in small estates, as this one is, the Court should make clear that obstinacy and unreasonableness will result in an adverse order for costs: Dobb v Hacket (1993) 10 WAR 532 at 540.
13. Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the Defendant's costs of the proceedings and be disallowed her, or his, own costs.
14. I am satisfied that the overall justice of the case requires that the Defendants should receive an order against Nicky for their costs in respect of the claim, assessed on the indemnity basis, in accordance with UCPR rule 42.15A. Since the offer was made before the first day of the trial, the costs, calculated on the indemnity basis, should be calculated from the beginning of the day following the day on which the offer was made (i.e. 28 February 2018). Since the proceedings have been dismissed, the Defendants are also entitled to an order against the Plaintiff for their costs, to be assessed on the ordinary basis, in respect of the claim up to the time from which the Defendants became entitled to his costs calculated on the indemnity basis.
15. As the Defendants share, equally, the estate, there is no need to make an order for their unrecovered costs to be paid out of the deceased's estate.
16. Accordingly, the Court ordered that: 1. the Plaintiff's Summons be dismissed. 2. the Plaintiff pay the Defendants' costs, calculated on the indemnity basis, from 28 February 2018, and their costs, calculated on the ordinary basis, prior to that date. 3. the exhibits be returned.

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: 18 June 2018