Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto

Supreme Court of NSW|2019-08-22|Before: Hallen J, Santow J, Kirby P

Introduction to the Proceedings

HIS HONOUR: This judgment concerns the estate of Rosario Cosoleto ("the deceased"), who died on 18 September 2017, and the various claims for a family provision order sought out of his estate and notional estate.
For hearing, in the Family Provision Running List, commencing on Monday, 19 August 2019, were two different actions, being proceedings 2018/170958 and proceedings 2018/248634. In the first of the proceedings, the sole Plaintiff, Maria Pilotto, is a person with whom the deceased had been living in a de facto relationship, at different times, until 2016. There is no dispute that her relationship with the deceased did not continue, as such, thereafter.
In the second of the proceedings, the Plaintiffs are Milvia Papi, a person with whom the deceased had been living in a de facto relationship, in the early 1970's, and her and the deceased's daughter, Luella Papi, a now adult child of the deceased. (Their second child, Tania, did not commence any proceedings, and played no role, as a party, or a witness, in the proceedings that were commenced by her mother and sister.)
On 22 February 2019, both proceedings were set down, for hearing, in the August Family Provision Running List, with a combined estimated duration of three days.
The Defendant named in each of the proceedings is Carmine Cosoleto, the executor named in the deceased's last Will. He is the nephew of the deceased and is not a beneficiary named in that Will.
Hereafter, I shall refer to the parties by her, or his, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.
On 14 August 2019, that is three working days before the commencement of the hearing, Ms Rachel Carey, a senior Associate at Premier Compensation Lawyers, sent an email to the Court, at 2:21 p.m., which stated: "Please find attached our Summons. We would be grateful if you could have the matter listed tomorrow or Friday noting the urgency."

Correspondence with the Court

I have found it necessary to mention this matter, as it seems to me that the email correspondence addressed to the Court without the apparent consent, approval, or, indeed, knowledge, of opposing parties, and/or without it being sent simultaneously to the legal representatives of other parties, is reaching epidemic proportions.
In the first email to the Court, Ms Carey did not state that she had sought the consent, or approval, of Carmine's solicitors to send the email, or that she had sent a copy of her email, addressed to the Court, to the legal representative of any other party. Nor did the email sent to the Court otherwise identify any other legal representative to whom the email had been sent. (It may be, in relation to the solicitors appearing for the other Plaintiffs, she did not know their identity.)
On 16 August 2019, when the copy affidavits and submissions were sent to the Court, again, it did not appear, from the email, that Ms Carey had sent a copy of the email sent to the Court to the legal representative of each of the other parties. By this date, of course, she would have been well aware of the identity of those legal representatives.
In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) (No 2) [2013] NSWSC 1971, Kunc J, wrote at [21]-[22]: "There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this: (1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing); (2) ex parte matters; (3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and (4) exceptional circumstances. There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties."
In Stanizzo v Badarne & Ors [2014] NSWSC 689, Robb J, after referring to what Kunc J had written in Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) (No 2), noted, at [75]-[80]: "…However, it may be of some use for me to advert to a number of practical considerations, which underscore the need for scrupulous attention to be given to the manner in which communications are sent directly to a judge's chambers. As Kunc J noted, it is a ubiquitous practice for the medium of the email to be used. That means that, in the absence of the email containing positive statements that identify the persons to whom the email has been sent, other than the judge's associate, the determination of that issue requires that the email addresses in the 'cc' and 'bcc' parts of the email heading be deciphered. That process may requires guesswork, as often email addresses are obscure as to the identity of the addressee. Further, it cannot always be assumed that the associate will have the court's file in chambers. If the file is not readily available, the associate will have difficulty working out the identities of the parties to whom a particular email must be sent, if all necessary recipients are to receive a copy. Even if the court's file is available, it can be a difficult exercise, in advance of appearances being announced for the parties at the commencement of the hearing, for the associate to work out with confidence who the relevant parties are, and who the legal representatives are. If a party who contemplates sending an email communication directly to a judge's associate is not meticulous in stating in an obvious way who is entitled to receive copies of the email, and who has received those copies, it may not be possible for the associate to determine whether a proper approach has been adopted, having regard only to what appears on the face of the email. Furthermore, it is not expected of a judge's associate that the associate will always be in a position to make a proper judgment as to whether or not it is appropriate for a particular communication, or attachment to a communication, to be brought to the attention of the judge. Associates have a right to the guidance of their judge. That has the result that, when communications are forwarded to an associate, there will always be a likelihood that the communication will be brought to the attention of the judge. Unless the judge adopts a procedure of refusing out of hand to receive and review all communications received in chambers from parties, which is not a practical or desirable course, there will always be a likelihood that the judge will receive and review a document that actually, or apparently, may compromise the impartiality of the judge. Judges are human and are no more able to divine the contents of documents without reading them, than are other people. The risk always is that, in an attempt to determine the significance of a document, the judge may not be able to avoid reading parts of the document that should not be read. The act of a legal practitioner in communicating directly with a judge's chambers must not be viewed as some casual, post-modern opportunity to provide useful information, but is a step that must be taken with great care, lest the impartiality of the judge be carelessly compromised. Legal practitioners should discuss the proposal to communicate with the judge's chambers in advance with the representatives of all active parties. The consent to the proposal from all parties should be obtained. Copies of the communication should be sent to all concerned, at the same time as it is sent to the associate. If consent is not forthcoming, the suitability of the time-honoured approach of arranging with the associate for the matter to be re-listed should be considered. If urgency precludes that approach, any communication to the judge's chambers should explain the problem, without disclosing any information for which unanimous consent for disclosure to the judge has not been obtained, and appropriate directions sought from the judge. Ultimately this is an ethical issue that depends upon legal practitioners taking the greatest of care to comply with their obligations. It is always possible that exceptional situations will arise, that will require a novel course to be adopted. That should not give rise to problems, provided that legal practitioners consider in a conscientious way how they should proceed."
Of course, as was written above, there are occasions when a party's unilateral communication with the trial Judge's Chambers in relation to procedural, administrative, or practical, matters, is not improper. However, "a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason": John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221, at 227; [2011] FCAFC 34, at [22].
At the commencement of the hearing, when I raised this matter, Mr Morahan, after obtaining instructions from Ms Carey, without objection, informed me that the email correspondence from his instructing solicitors to which reference was made, had, in fact, been sent to the other legal representatives. Of course, I accept the statement made, from the Bar table, by counsel on instructions from his instructing solicitor. (I also make clear that I do not suggest that the email correspondence was sent by Ms Carey "with a view to influencing the conduct or outcome of the case": John Holland Rail Pty Ltd v Comcare, at 225, at [12].)
I have raised the matter for the benefit of the legal profession generally, with the intention of highlighting the fact that any correspondence addressed to the Court should make clear, in the email, whether approval has been sought, and obtained, from other parties prior to the email being sent, and also to whom the correspondence, sent to the Court, has also been sent. This will avoid any appearance of an ex parte communication with the Court.

Order that the proceedings be dealt with together

As often occurs where there are different applicants, in separate proceedings, who make a claim for an order for provision out of the same estate, Maria, Luella and Milvia, well before the commencement of the hearing, agreed that both of the proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material. No notice of motion to that effect was filed, but, in the circumstances, that was unnecessary. (The proceedings could not be consolidated, without leave, because different solicitors act for the different Plaintiffs.)
I have already dealt with the circumstances in which Giuliano's matter came to be dealt with.
At the commencement of the hearing, Maria's counsel, once again, submitted that if some of the evidence of Giuliano was admitted, Maria may be prejudiced because she would be unable to deal with it. When asked for the precise detail of that evidence, the response of counsel was rather vague. I suggested that, perhaps, the way forward was to deal with this aspect when the evidence was read. Then, if I were satisfied that there was prejudice, I would consider the best way to deal with the evidence: Tcpt, 19 August 2019, p 2(49) - p 4(11).
(As I was informed that there had been a healing of the rift that had existed between Saro and Giuliano, I even considered, then, whether one way to proceed, in that event, might be to deal with the other two matters, and vacate the hearing of Giuliano's matter, which could be dealt with separately, if it were not resolved. Then, an order could be made appointing Saro to represent the estate, thereby saving the further costs being incurred by Carmine as the executor.)
In the events that happened, the issues raised by counsel for Maria evaporated during the course of the hearing. I was, and remain, satisfied that all proceedings could be, and in fact, were, dealt with together, and that there were really no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were, or that had been, relevant to all claims, were determined, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the same issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the estate has also been put to less expense in defending only one set of hearings, rather than two; the just, cheap and quick hearing of all of the matters in dispute were facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, was achieved.
For those reasons, it was "desirable" to make an order that the proceedings be heard together: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 28.5. The matters proceeded on this basis. The proceedings were heard consecutively, with the evidence in one being evidence in the other.
It is also convenient to deal with all the proceedings together in these reasons for judgment.

The Hearing

The proceedings, by Maria, were commenced by Summons filed on 31 May 2018. She sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), as well as consequential orders. She served two affidavits in chief made by her in support of her claim, an affidavit by each of her two children, Sophia Schinella and Anna Schinella, a solicitor's costs affidavit, and one affidavit in reply. Each of those affidavits was read in the proceedings. She and Sophia were cross-examined.
The proceedings, by Luella and Milvia, were commenced by Summons filed on 13 August 2018, in which each sought similar relief to that sought by Maria. Luella served two affidavits in chief made by her in support of her claim, and one affidavit in reply. Milvia also served two affidavits in chief made by her in support of her claim, and one affidavit in reply. A solicitor's costs affidavit in respect of each of Milvia and Luella was filed. Each of those affidavits was read in the proceedings. Each of Luella and Milvia was cross-examined.
As was earlier written, the proceedings by Giuliano were commenced by Summons filed on 14 August 2019, in which he sought similar relief to that sought by the other Plaintiffs. In addition, he sought an order that "Leave be granted to file matter out of time", which I have taken to mean an order, pursuant to s 58(2) of the Act, that the time for the making of his application be extended until 14 August 2019, the date of the filing of the Summons.
Giuliano served one affidavit in chief, an affidavit read on the application made prior to the hearing by Ms Carey, and the solicitor's costs affidavit. Each of those affidavits was read in the proceedings. Only Giuliano was cross-examined.
During oral submissions, the consent of the parties was forthcoming to Giuliano's application being made out of time, with the result that the Court did not have to "otherwise order on sufficient cause being shown" for his application to succeed: s 58(2) of the Act: Tcpt, 21 August 2019, p 253(25) - p 254(1); Tcpt, 22 August 2019, p 272(49) - p 274(25).
Carmine, in relation to all of the proceedings, relied upon a number of affidavits. He, also, was cross-examined, albeit briefly.
The oral submissions were almost completed by the end of the third day and continued into the fourth day.
I had informed the parties that, as I was about to depart on long leave, and as I did not think it would be possible to deliver written reasons before my departure, I would make orders following the conclusion of the submissions, and then, after my return, deliver written reasons. The course suggested was not opposed by any of the parties (by their counsel) and none of them invited me to delay the making of the orders: Tcpt, 22 August 2019, p 298(13-38).
It seemed clear, from the submissions, that the relevant legal principles were not in issue, and that it was the application of the facts, in each case, to those principles that required the Court's consideration. In addition, as the submissions progressed, it appeared that the real issue, in relation to each of the proceedings, was the quantum of the provision to be made for each applicant.
After the submissions were concluded, on the fourth day, I adjourned for a short time, and upon my return, I made the orders that appear at the conclusion of this judgment. Before doing so, I discussed the form of orders with the legal representatives and provided the draft of the final form of orders to each of them. These are the reasons for making the orders that were then made.

Some uncontroversial formal matters

Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Luella is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person").
In the case of Maria, and Milvia, each asserted that she is an eligible person under s 57(1)(e) of the Act, being a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member.
Giuliano also relied upon s 57(1)(e), submitting that he was, at any particular time, wholly or partly dependent on the deceased, and that he is a grandchild of the deceased. There was no dispute that he is a grandchild of the deceased. (In the circumstances, pursuant to s 57(1)(e) of the Act, Giuliano did not have to establish that he was, at that particular time, or at any other time, a member of the household of which the deceased was a member.)
There appeared to be no dispute about the eligibility of each of Maria, Milvia and Luella: Tcpt, 19 August 2019, p 14(32) - p 15(16); Tcpt, 22 August 2019, p 274(27-33), p 297(3-5).
Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consenting to the application being made out of time.
There was no dispute that only Giuliano's application was not made within the time prescribed by the Act. The parties consented to his application being made out of time. It was, therefore, unnecessary for him to show "sufficient cause" for his application being made out of time.
Section 59 of the Act, relevantly, provides that in the case of a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, the eligible person will have to establish that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and that at the time when the Court is considering the application, 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 person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. It will be necessary to return to this topic later in these reasons.
If eligibility, and so far as is relevant to the claim by each of Maria, Milvia and Giuliano, factors warranting the making of the application, are established, 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.
In this case, during submissions, it became clear that there was really no dispute that each of Maria, Milvia and Giuliano, had established factors warranting the making of her, and his, application, respectively.
As will be read, I am satisfied, also, that there are factors warranting the making of each of her and his, application.
As the deceased had dealt with all of his estate in his Will, to which reference will be made, the parties agreed that there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased: Tcpt, 19 August 2019, p 18(1-10).
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). There was no property that may be designated as notional estate of the deceased. In any event, all parties agreed that there would be no need to designate such property as notional estate, as there are assets of sufficient value in the estate of the deceased for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, in each case: s 88(b) of the Act: Tcpt, 19 August 2019, p 18(12-24).

Background Facts

The following narrative is not in dispute except where stated. To the extent that any of them are controversial, the facts stated should be regarded as the findings of the Court.
The deceased was born in Castellace, Italy, in November 1942. When he came to Australia to live is not known. He died, in Sydney, on 18 September 2017, at almost 75 years of age.
Milvia was born in Pontito, Italy, in July 1949. She is now aged 70 years. She moved to Australia in 1961. She had a relationship, spanning approximately three years, with the deceased between about 1973 and 1976, during which two children were conceived. Luella was born in May 1975, and her younger sister, Tania, was born in August 1976. Milvia left the deceased when Luella was eight months old. At that time, Milvia was pregnant with Tania.
Milvia gave evidence about the reasons why she left the deceased. These included threats of violence and her very serious concerns about some of his unlawful activities which had resulted in "being searched by the Federal Police, slashing mattresses … looking for any drugs, and even getting my passport when I didn't know nothing": Tcpt, 19 August 2019, p 66(6-8).
When Milvia and Luella left the deceased, they moved to Tasmania, where they lived until about 1988/1989. Then, at the request of the deceased, Milvia and the two children returned to live in Sydney. They lived in accommodation provided to them by the deceased, though Milvia stated in her affidavit made 10 August 2018, at [50], that after approximately three months, the deceased "stopped paying our rent". After about 12 months in Sydney, they returned to live in Tasmania.
Milvia had little, if anything, to do with the deceased after she returned to live in Tasmania. Luella did not see the deceased again until about 1993 or 1994. Thereafter, until 2006, at Luella's instigation, she saw the deceased on about 7 different occasions, for no more than one week at a time. The last occasion that she saw, or spoke to, the deceased, was in 2006. She accepted that they had no contact for about 11 years prior to the deceased's death.
Maria was born in January 1943. She is now aged 76 years. She was married to Giuseppe Schinella in 1961. There were three children of the marriage, all of whom are now adults.
Maria met the deceased in 1976. She states that she commenced a de facto relationship with him shortly thereafter. They lived together, initially, at Airport West, in Melbourne. Saro also lived with them at that time. Then in 1977, they moved to Canley Heights NSW, and then in 1984, to a home in Mount Pritchard. In 2002, the deceased sold the Mount Pritchard property and in May 2002, purchased a property at Kemps Creek ("the Kemps Creek property"). Maria lived there for only a short period and then moved to her mother's property, at Fairfield West, where she lived for about 5 years, although she and the deceased continued to see each other on occasions during this period.
There is a dispute of fact relating to whether, in about 2006, Maria obtained an apprehended violence order against the deceased. Luella gave evidence, which I accept, that at about that time, on her last visit to the deceased, she attended Liverpool Court, with him, in relation to such an order which was being sought by Maria. (I shall refer to Maria's evidence on her contact with the deceased between 2002 and 2008, some of which I am unable to accept.)
In April 2008, the deceased suffered a brain aneurysm. He spent about 4 weeks in hospital where he was also required to undergo dialysis. Following his discharge from hospital, the deceased and Maria moved into rented accommodation at Green Valley. Saro came to live there with them for about one year. Meantime, Maria's daughter, Sophia, lived with her family at the deceased's Kemps Creek property.
Maria and the deceased lived together for the next few years, but, as stated earlier, it is accepted by all parties that they ceased living together in 2016.
In 2016, the deceased said that he wanted to move back to the Kemps Creek property. He did so, and he and Maria "ceased talking for a while". There is some evidence, in the form of a police incident report, dated 28 January 2016 (Ex. MP3), that in January 2016, police and ambulance officers attended to Maria during a "mental health incident" at which the deceased was present, during which she was said to have expressed suicidal ideation. It was reported that Maria had expressed fear that the deceased's son (not named in the document, but presumably, referring to Saro) was being released from prison "the next day" and would be living with them and she "was worried".
As I indicated to the parties on the third day of the hearing, I did not, and have not, drawn the conclusion that what Maria was reported to have said in the report, in fact, was causing her anxiety: Tcpt, 20 August 2019, p 231(30-33).
Subsequently, the deceased contacted Maria and came to visit her on a few occasions at a property at Cabramatta which she was renting. There is no suggestion that they resumed any form of loving, or romantic, relationship.
It is clear that there was no form of property adjustment order made in favour of Maria at any time prior to the deceased's death. In this regard, Maria, in answer to a question from the Bench, acknowledged this: Tcpt, 20 August 2019, p 121(26-36).
Giuliano was born in June 1996. He is currently 23 years of age. He says that he lived with the deceased and his mother, Carmele Labbozetta, until the age of 4 years, at the home of his maternal grandparents. In fact, he still resides, with her, at their home now. (Giuliano's evidence is that he currently "splits" his time between residing with his mother at his maternal grandparent's home, and "the farm", referring to the deceased's property at Kemps Creek: Affidavit, Giuliano Cosoleto, 16 August 2019 at par 74).
Giuliano's parents' marriage ended in about 2001. He says that he "started to split my time between" the Kemps Creek property and his maternal grandparent's home. He went to a local school at Kemps Creek. He gives evidence that Saro spent some time in jail, and during these periods, in particular, the deceased "did everything for me … as a father figure".
The deceased was extremely strict with Giuliano, saying that he did not want Giuliano to end up in jail. Giuliano would return to the home of his mother and her parents following disputes with the deceased. As counsel for Carmine put it, "the deceased shouldered some of the paternal burden for Giuliano, particularly in Saro's absences. Giuliano's relationship with his grandfather can also be characterised as "on again/off again". He went wherever the path of least resistance led him, or as he put it, "wherever he could find the most freedom. Sometimes that was with his grandfather, sometimes that was with his maternal family": Tcpt, 22 August 2019, p 292(13-19).
It will be necessary to refer, in more detail, to the nature of the relationship between each of the applicants and the deceased later in these reasons. There is some dispute about the nature of the relationship that existed between Maria and the deceased and between Giuliano and the deceased, which will require particular consideration.
Saro worked for the deceased from the age of 14 years (when he left school), that is from 1985 to 2011. When he would ask the deceased for payment, he was told "You know our customs and I keep telling you not to worry as everything will be yours one day." All he received from his father was between $40 and $120 per week. (Between 1990 and 2017, Saro also spent different periods of time in jail.)

The deceased's testamentary intentions

The deceased made a Will on 19 October 2011, in which he appointed Carmine as his executor. In this Will, he gave a pecuniary legacy of $180,000 to Maria and left the whole of the residue of the estate to Saro.
It is clear from this, and other, evidence, that the deceased's long held testamentary intention was that Saro was to inherit the bulk of the estate.
The deceased made his last Will on 31 March 2016. This Court granted Probate in common form of that Will to Carmine, the executor appointed thereunder, on 13 December 2017.
As stated, Saro is the sole beneficiary named in that Will. The deceased did not specifically appoint any named substitute beneficiaries, if Saro did not survive him, but Clause 7(b) of the Will stated that in the event that he did not, and if Saro left children living at the date of death of the deceased, "then such children having attained the age of 21 years shall take by substitution, and if more than one, equally as tenants in common, the share in my estate which their parent would otherwise have taken". (It follows that had Saro predeceased the deceased, Giuliano, as his only child, upon attaining the age of 21, would be the sole beneficiary of the deceased's estate.)
There was no provision made for Milvia, Luella, Maria, or Giuliano, in the deceased's last Will.

The Estate of the deceased

In the Inventory of Property attached to, and placed inside, the Probate document, the property owned solely by the deceased was disclosed as the Kemps Creek property ($3,000,000), money in bank ($2,753) and a car ($12,000). The total gross value of the estate was $3,014,753. (I have omitted, and shall continue to omit, any reference to cents. This will explain any seeming mathematical errors.)
At the commencement of the hearing, the parties agreed that the gross value of the deceased's estate, at the date of hearing, was $2,704,737: Tcpt, 19 August 2019, p 6(47) - p 8(7). The estate consisted of the Kemps Creek property ($2,700,000) and the proceeds of sale of the car ($4,737). (The rental income from the Kemps Creek property has been used to pay expenses. No party suggested that there was any other property that would increase the value of the estate.)
The parties also agreed that there were a number of liabilities that were required to be paid out of the estate, the largest being the costs of, and associated with, the remediation of the Kemps Creek property ($495,902), the repayment of a debt which had been incurred in order to pay funeral and testamentary expenses and other creditors ($34,253), administration costs of obtaining Probate ($12,395), and the legal costs in acting, and continuing to act, in relation to a number of different issues for the estate ($95,414): Tcpt, 19 August 2019, p 8(17-22).
In addition, a claim for executor's commission was foreshadowed by Carmine ($60,000). Counsel for Maria submitted that this estimate should not be accepted. The Court may allow, out of the assets of any deceased person, to his, or her, executor, administrator, or trustee for the time being, in passing the accounts relating to the estate of the deceased person, such commission or percentage for the executor's, administrator's or trustee's pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct: s 86(1) Probate and Administration Act 1898 (NSW).
There is much to be done by Carmine before commission is payable. I suggested that the amount claimed was to be used as an estimate, without in any way accepting that the Court, ultimately, would order that amount of commission. (No agreement was reached on the amount of commission that could be payable to Carmine, so I have simply used the amount claimed as an estimate.)
The parties also agreed that the costs and expenses of the sale of the Kemps Creek property were likely to be $61,500 (made up of agent's commission ($57,000) and legal costs of sale ($4,500): Tcpt, 19 August 2019, p 8(48) - p 9(3).
It follows that the value of the deceased's estate, before deduction of any costs, is estimated to be $1,945,273. Thus, it is an estate of moderately large value before any costs of the three proceedings are deducted. Naturally, the estate will be reduced by the costs of the proceedings ordered to be paid out of the estate.

The Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3 of the Act, in relation to the estate and notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order.
Ms P Yacoub, solicitor, estimated that Maria's costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $124,033. She estimated Maria's costs and disbursements, calculated on the indemnity basis, to be $158,306, all of which remains unpaid.
Mr P Briffa, solicitor, estimated that Luella's costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $51,575. He estimated her costs and disbursements, calculated on the indemnity basis, to be $63,450, all of which remains unpaid.
Mr Briffa estimated that Milvia's costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $47,825. He estimated her costs and disbursements, calculated on the indemnity basis, to be $58,450, all of which remains unpaid.
He also disclosed that in relation to each of Luella and Milvia, his firm was acting pursuant to a conditional costs agreement without any uplift fee. He stated that each Plaintiff has not paid "any upfront money for professional legal fees or disbursements, and if the plaintiff does not obtain any further provision the plaintiff is not liable to pay this firms' [sic] costs or disbursements".
On the third day of the hearing, counsel for Giuliano sought, and was granted, leave to file in Court, an affidavit of costs and disbursements, sworn by Ms Carey on 21 August 2019. Ms Carey estimated that Giuliano's costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $51,600. She estimated his costs and disbursements, calculated on the indemnity basis, to be $61,600, all of which remains unpaid.
Carmine's costs and disbursements, calculated on the indemnity basis, in Maria's case, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing were estimated to be $45,627, whilst the costs in relation to Luella's and Milvia's case were estimated to be $24,576. The common disbursements in relation to both proceedings were estimated to be $51,876. The total of Carmine's costs and disbursements of both proceedings, calculated on the indemnity basis, were therefore, $122,080.
On the second day of the hearing, counsel for Carmine sought leave to file in Court an affidavit of costs and disbursements, sworn by Mr Costa on 20 August 2019. He estimated that Carmine's additional costs and disbursements, calculated on the indemnity basis, for the proceedings commenced by Giuliano, would total $20,000. How this amount was calculated was not disclosed.
The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that their costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]-[24].
Furthermore, s 60 of the Civil Procedure Act, which applies equally to a claim for a family provision order, refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
In Forsyth v Sinclair (No 2), it was said by the Court of Appeal (Neave and Redlich JJA and Habersberger AJA) at [27]: "We consider that it is a matter of concern that in many family provision cases the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made to resolve the dispute before the costs get out of proportion. However, it takes two to settle a dispute and unless sensible offers of settlement are made in a form which can be referred to subsequently, it is very difficult for the Court to allocate responsibility for the dispute not settling. All that can be done is to conclude that where costs have been incurred unreasonably, as here, they must be borne personally." (Omitting citation)
More recently, Ward CJ in Eq has delivered reasons for judgment in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, in which she wrote, at [172]-[174]: "…There is an understandable concern that costs incurred in proceedings of this kind not be disproportionate to the nature of the proceedings and the size of the estate (see for example the recognition by Basten JA in Page v Page [2017] NSWCA 141 at [20], in the context of the family provision jurisdiction, of the need not to encourage litigation where costs often reach a high proportion of the value of the estate; and his Honour's concern expressed in Harris v Harris [2018] NSWCA 334 … (at [18]) that what his Honour regarded as the Court's 'willingness to entertain comparatively expensive litigation of this sort" might well have encouraged the pursuit of such claims). It is no secret that the Family Provision List judge pays close attention to the control of costs, particularly in small estates, for that reason. The present is yet again a case where, regrettably, the costs (which, I have to say, are eye-watering in amount compared to the size of the estate (even if notional estate is taken into account) will inevitably have a significant impact on the outcome of the proceedings. I say this without criticism of Counsel appearing at the hearing (who readily acknowledged the problem posed by the level of costs in this case and broadly accepted the inevitability of cost-capping at the end of the day); and, without knowing what transpired in the attempts to resolve the case between the parties, it would be inappropriate to level criticism at one or other of the parties as to the position now facing all of the parties in terms of costs. Nevertheless, there are certainly aspects of the proceedings which did not assist in the containment of costs (most notably, the failure to serve the prescribed form of notice of the proceedings on Julie as an interested party)."
During the course of the hearing, on several occasions, the Court made clear to all of the parties that it should not be assumed that all of the estimated costs and disbursements would be paid out of the estate of the deceased. It was also suggested that, perhaps, the parties should try to reach agreement on the costs and disbursements of each, in the event that each of the applicants was successful.
Having raised the concern as to the quantum of the estimated costs and also the delay that would be occasioned to the completion of the administration, and the distribution, of the net estate, the solicitors for the parties, apparently, having had lengthy discussions, were able to agree upon a specified gross sum (inclusive of GST and calculated on the ordinary basis) instead of assessed costs. Again, they are to be commended for doing so, as it was clearly in the interests of all of the parties to do so,
In the case of Luella, the sum for her costs and disbursements was agreed to be $45,000; in the case of Milvia, the sum agreed was $35,000; in the case of Maria, the sum agreed was $85,000; in the case of Giuliano, the sum was $41,600; and Carmine's costs, calculated on the indemnity basis, and inclusive of GST, of all of the proceedings was $144,080: Tcpt, 22 August 2019, p 268(21) - p 269(42).
It follows, in light of the agreement of the parties that if a family provision order, in each proceeding, is to be made with an order for costs and disbursements to be paid out of the estate, the total of the agreed costs and disbursements, will be $350,680. This was confirmed on the final day of the hearing: Tcpt, 22 August 2019, p 270(11-12).
As will be read, the orders that were made at the conclusion of the hearing included the agreed amount for the costs of each of the parties. I am satisfied that it was appropriate to make an order under s 98(4)(c) of the Civil Procedure Act in respect of each claim. In this regard, I remembered the considerations relevant to the exercise of the discretion, which include the complexity of proceedings in relation to their cost; the degree of any disproportion between the issues litigated and the costs claimed; the relative responsibility of the parties for the costs incurred; and the capacity of the unsuccessful party to satisfy any costs liability (see Hamod v New South Wales [2011] NSWCA 375 at [813]-[820]; Ritchie's Uniform Civil Procedure NSW, at [98.60]).
Then, using the estimated gross value of the estate ($1,945,273) and deducting the total of the costs and disbursements ($350,680), the net value of the estate out of which any orders for provision may be made, will be $1,594,593. It is, therefore, an estate of (estimated) moderate value out of which an order, or orders, for provision can be made.

Eligible Persons

There was no dispute that the only eligible persons are Luella, Maria and Milvia. There was, initially, a dispute about the eligibility of Giuliano, but ultimately, the parties agreed that he, too, is an eligible person.
Saro, is also an eligible person. As the only beneficiary named in the Will of the deceased, he has given evidence of the bases of his claim on the bounty of the deceased. He has raised his financial circumstances as a competing financial beneficiary. He was cross-examined. The Act specifically provides that his interests, as a beneficiary, cannot be disregarded, even though he has not made a claim: s 61. He is entitled to rely upon the terms of the Will and his competing claim as a chosen object of the deceased's testamentary bounty.
The Court is able to disregard the interests of Tania, as an eligible person, as there is evidence that notice of the applications, and of the Court's power to disregard her interests, was served on her person, in the manner and form prescribed by the regulations or rules of court: s 61 of the Act. (It may be unsurprising that she did not make a claim as there was virtually no evidence about her relationship with the deceased.)

The nature of the provision to be made

During oral submissions, the parties also accepted that in the event any applicant for provision is successful, the Court should make an order that resulted in a lump sum for her, or him, calculated as a percentage of the net value of the estate following the sale of the Kemps Creek property: Tcpt, 22 August 2019, p 270(44-50). In this way, all parties will benefit if the Kemps Creek property is sold for a price greater than has been estimated, and each will be detrimentally affected if it sold for less than the estimate.
I have remembered that McDougall J, in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs". Whilst this is undoubtedly true, it seems to me that, in some cases, to make a lump sum order will not be the most appropriate way of determining what is "proper" in all the circumstances of the case, particularly in a case where the principal asset is real estate, the value of which is estimated, and which estimate, ultimately, may prove inaccurate.
It cannot be forgotten that the actual value of the estate out of which an order may be made is a relevant consideration in determining the adequacy and propriety of the provision.
Furthermore, s 65(1) of the Act does not inhibit the Court as to the form of orders that can be made and s 65(2), which specifies the ways in which provision may be made, includes, in s 65(2)(f), "in any other manner the Court thinks fit", thereby leaving unconstrained the Court's power as to the nature of the order for provision that may be made. I have made a similar order in a number of decisions including Zagame v Zagame [2014] NSWSC 1302 and Charlwood v Charlwood [2017] NSWSC 1033, as has Rein J in Michael John Askew v John Paul Askew [2015] NSWSC 192.
As stated, the estate essentially consists of the Kemps Creek property which must be sold. The estimates of the liabilities to be deducted have been identified (although they may change), the parties accept that there may be further liabilities, reasonably incurred, which are not yet known, and, as stated above, now, the costs of the proceedings, where ordered, are clear. I am satisfied that the percentage method of determining the lump sum provision to be made in favour of each applicant, is an appropriate way to proceed.
That the parties all agreed to this course of determining the quantum of the provision made for each of the applicants is also important.

The Witnesses

Each of the applicants for provision was cross-examined, as was Carmine (albeit briefly), Maria's daughter, Sophia, and also Saro. Maria's other daughter, Anna Schinella, whose affidavit was read, was not cross-examined. None of the solicitors, whose affidavit of costs was read, including Ms Carey, whose affidavit had been read in Giuliano's case, was cross-examined.
I did not find that any of the witnesses who was cross-examined to be intentionally untruthful. I tend to the view, however, that each of Maria and Giuliano did, at times, exaggerate her, and his, relationship, respectively, vis-à-vis the deceased.
I was particularly impressed with the evidence given by Luella, Milvia, and Saro. Each was completely frank with the Court. None had any difficulty making appropriate concessions, some against her, and his, own interests respectively. I found each to be a reliable witness.
Saro, in particular, struck me as a witness of truth. I accept his evidence where it conflicts with the evidence of Maria. In this regard, his frankness, in circumstances where he is the only beneficiary named in the Will of the deceased, and where, undoubtedly, his share of the estate will have to bear the burden of the provision made in favour of any applicant, and the burden of costs, was refreshingly candid. Bearing in mind some of his criminal history, I commend him for the manner in which he gave his evidence.
There were several aspects of Maria's evidence that prompted some legitimate criticism from counsel for Carmine. He submitted, in my view, correctly, that, initially, Maria had maintained that she had been a person with whom the deceased was living in a de facto relationship for over 40 years, a position that was admittedly wrong. It is true that she and the deceased had some form of a relationship for that period of time, but it could not be categorised, as Maria had asserted, as a de facto relationship for the whole of that period.
For example, Luella, on each of the seven occasions that she visited the deceased, between about 1994 and 2006, only saw Maria once, and that was at the Court hearing to which reference was, and will next be, made. There was also the evidence of Saro, that between about 2002 and 2008, Maria lived at the home of her parents and that she only visited the Kemps Creek property, where the deceased was living, on a limited number of occasions.
Secondly, in her affidavit, Maria denied that there had been an occasion when the deceased and Luella were present, in Court, as a result of Maria seeking an apprehended violence order against the deceased. However, she admitted, in cross-examination, that there had been such an occasion, limiting her denial to the location of the Court (saying it was at Fairfield, not at Liverpool): Tcpt, 20 August 2019, p 93(14-18).
Thirdly, Maria had denied that the deceased had stated to Saro that he would inherit all of the deceased's estate, another matter she admitted in cross-examination, when the denial previously made was challenged: Tcpt, 20 August 2019, p 115(17) - p 116(14).
In relation to Giuliano, I thought that he exaggerated the periods of time that he spent with the deceased, in particular, after 2008. In this regard, I tend to accept Maria's evidence, who, after all was living with the deceased between 2008 and 2016 in Green Valley, that Giuliano only came over rarely in that period.
In relation to Carmine, I also thought he was a witness whose evidence I should accept. There was one matter, however, where it appears that what his solicitor had written, in respect of Giuliano, was wrong. In a letter from Carmine's solicitor to Giuliano's solicitor dated 14 August 2019 (which letter is Annexure "F" in the affidavit of R Carey, 14 August 2019), Mr Costa wrote: "In that same conference at our office on 22 November 2017, the Executor instructed us that he had a short discussion with your client and informed him to obtain advice in relation to any claim he may wish to bring forward."
Under cross-examination, Carmine indicated that he had "never" had a conversation with Giuliano in respect of "anything of this nature": Tcpt, 21 August 2019, p 217(1-32).
However, ultimately, nothing turns on this error as, ultimately, the parties consented to the extension of time for the making of Giuliano's application: Tcpt, 21 August 2019, p 253(25) - p 254(1); Tcpt, 22 August 2019, p 272(49) - p 274(25).

Claim for a Family Provision Order - the Statutory Scheme

I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases. In view of the fact that ultimately, in each case, the real issue was the quantum of provision to be made, it is not necessary to restate the principles to which I have referred many times, other than in respect of the real issue in each proceeding. Naturally, I have borne those principles in mind. (It is not necessary to deal with the extension of time in the case brought by Giuliano as all parties consented to the Court making the necessary order.)
As stated, s 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the court is satisfied as to three matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; 2. If she, or he, is an eligible person by reason only of s 57(1)(e), having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application; and 3. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased.

Eligibility

In New South Wales, the Act provides a multi-category based eligibility system. There are six categories of persons by, or on whose behalf, an application may be made. The language of the relevant sub-sections is expressive of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.
As stated, there can be no doubt that Luella, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
In relation to each of the other three applicants, it was accepted that each was a person within the meaning of that term in s 57(1)(e) of the Act. The Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member. However, for some period, the applicant and the deceased must have been members of the same household.
The Act contains no definition of the words "dependent on".
In Tobin v Ezekiel (2012) 83 NSWLR 757 at 786; [2012] NSWCA 285, at [109], Meagher JA wrote that dependency "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and at [110], that it "may exist, irrespective of whether the dependent person is financially or physically able to support him- or herself".
As has recently been repeated in Spata v Tumino (2018) 95 NSWLR 706, at 719-720; [2018] NSWCA 17, at [68]: "It has long been held that the word 'dependent' is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact: Page v Page [2017] NSWCA 141 at [7], per Sackville AJA (with whom Leeming JA agreed on this point). Although Sackville AJA noted that the construction of s 57(1) was not in issue in that case, he cited Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (per Hope JA with whom Clarke and Sheller JJA agreed) and Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5 at 204 (per Barwick CJ) and 210 (Mason J, Stephen J agreeing), as authority for the proposition. To these cases may be added the decision of Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekiel at [109]-[111]…"
In Mekhail v Hana; Mekail v Hana [2019] NSWCA 197, at [180], Leeming JA (with whom Basten JA and Emmett AJA agreed) wrote that "dependency is not to be given any restrictive meaning".
In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for her, or his, maintenance and support.
I am satisfied that each of Maria, Milvia and Giuliano is an eligible person under s 57(1)(e) of the Act.
However, as stated in Spata v Tumino, by Payne JA, at 720/[72], "[A] finding of being 'wholly or partly dependent' does not itself give rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step".
Sackville AJA, in Spata v Tumino, at 732/[139], also affirmed that: "A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order."
Even though eligibility was not disputed, I note, in relation to Milvia, the period of membership of the household, and her partial dependency upon the deceased, was for about 2 or 3 years between about 1973 and 1976.
In relation to Maria, the period of a relationship was between 1976 and about 2002 (although I am satisfied that there were periods of time, during these years when they were not members of the same household and perhaps, during the same periods, she was not wholly, or partly, dependent upon the deceased), and between about 2008 and 2016 when the deceased was unwell, and they lived together at Green Valley. During this period, she was dependent upon the deceased.
In relation to Giuliano, as stated, there was no dispute that he is a grandchild of the deceased. He was partly dependent upon the deceased from about 2001 until the death of the deceased. During some of that time, Saro was in prison and as stated by Giuliano, the deceased was the principal male influence in his life. Whilst I consider that, after 2008, the deceased played less of a role in Giuliano's life, I am satisfied that during the period of Saro's incarceration, particularly in the period after 2011, Giuliano was, at least, partly dependent upon the deceased.
During submissions, it was accepted that each of the applicants is an eligible person.

Factors warranting the making of the application

Again, there was no dispute that each of Milvia, Maria, and Giuliano had established factors warranting the making of her, and his, application respectively. (I shall deal with the "financial position and need" of each applicant later, although I have taken it into account in reaching my conclusion that there are factors warranting the making of the application of each.) Luella, of course, as a child of the deceased, does not have to establish such factors.
In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]: "…Within the first category (s 57(1)(a) - (c)) are persons generally 'regarded as natural objects of testamentary recognition', such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support. Those falling within the second category (s 57(1)(d) - (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are 'potentially appropriate objects of testamentary recognition, depending upon their circumstances'. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question." (Footnotes omitted)
The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
In Sassoon v Rose [2013] NSWCA 220 at [15], an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed) noted: "In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those 'factors' are ones which, when added to the facts which render the applicant an 'eligible person' (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
In Lodin v Lodin [2017] NSWCA 327, Sackville AJA (with whom Basten and White JJA agreed), at [126]-[129], set out the following propositions: 1. Care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting the making of an application for family provision order from the estate of the deceased; 2. What an applicant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward; others may not be; and 3. A significant matter is likely to be the nature of the relationship between the applicant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a social, domestic or moral obligation on the deceased to make testamentary provision for the applicant.
In relation to Milvia, I am satisfied that the following matters are such factors: 1. Milvia had employment as a supervisor at the Wrest Point Hotel Casino when she met the deceased. She gave up that position to move to Melbourne to live with him. She fell pregnant shortly afterwards and ceased her employment. Milvia never regained the level of employment she had prior to meeting the deceased. 2. Whilst in a relationship with the deceased, and when they were members of the same household, the deceased and Milvia shared accommodation and finances, whilst Milvia took on the role of primary caregiver to Luella and also Saro. After Tania was born, she was the sole caregiver to her for most of her childhood. 3. Milvia experienced significant financial pressures as a single mother of two children, in respect of whom the deceased, as their father, made no financial contribution (except for an extremely short period between 1988 and 1989). Milvia was required to live with her mother and father. She was given a single bedroom that she shared with Luella and Tania for 12 years. She was required to fend for herself leaving the deceased free to pursue his own activities, including the purchase and sale of real property. 4. The deceased did not, in any material way, provide for Luella or Tania after his separation from Milvia. Milvia remained the primary caregiver of Tania and Luella. 5. Milvia continues to partly financially support Luella, including in relation to Luella's health needs. 6. I shall deal with Milvia's financial and other needs later in these reasons.
In relation to Maria, I am satisfied that the following matters are such factors: 1. She had a relationship with the deceased between about 1976 and 2016. Sometimes, during that period it was close and loving and at other times less so. The relationship, whatever it was, spanned over half of Maria's adult life. 2. When he suffered a brain aneurysm in 2008, it was Maria who looked after the deceased and continued to do so for about 8 years. There is no suggestion that any assistance was provided to her by Saro, Luella, or Giuliano. 3. The deceased's 2011 Will made some provision for Maria ($180,000). In my view, as a beneficiary named in the 2011 Will, the deceased expressly acknowledged that she was an object of testamentary bounty. For about 5 years thereafter, she continued to live with the deceased and look after him and, as such, she did not lose her status as a natural object of testamentary bounty. 4. I shall deal with Maria's financial and other needs later in these reasons.
The factors warranting Giuliano's claim are: 1. The deceased played a significant role in Giuliano's life as a paternal figure. Whilst Saro was incarcerated, it was the deceased who provided the moral compass for Giuliano. The deceased also provided financially for Giuliano. 2. I shall deal with Giuliano's financial and other needs later in these reasons.

Adequacy of Provision

Relevantly, 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. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
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."
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
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.
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.
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."
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."
Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572; [1957] HCA 82, 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."
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."
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."
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 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."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." (Citations omitted.)
White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, wrote, 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)."
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her, or his, own resources will always be highly relevant, and quite often decisive, as 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 at 227; Bkassini v Sarkis [2017] NSWSC 1487, per Robb J, at [296]-[297].
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]."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also 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.
No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree.
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'."
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."
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.
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.
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 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.
In Chapple v Wilcox (2014) 87 NSWLR 646; [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)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
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.
The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127].
As has recently been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."

Some Additional Principles

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.
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, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
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" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
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."
In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to 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."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
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."
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.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court 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) 11 ASTLR 96; [2013] VSC 35, at [67].
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 P, 26 April 1985, unrep).
In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse: "… strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".

Claim by an adult child

I have, in many cases, referred to some general principles in relation to a claim by adult child of the deceased. I repeat the principles that I have set out: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, 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 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. 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; [1979] HCA 2 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] and at [65]-[67]; 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].
Saro is not an applicant for provision. He does not have to prove an entitlement to the provision made in the deceased's Will for him, or otherwise justify such provision. Nor does he have to explain the decision by the deceased to make the provision that he did in his Will.

Claim by a grandchild

I have, in many cases, referred to some general principles in relation to a claim by a grandchild. The following general principles are, in my view, relevant and should be remembered: 1. As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. 2. Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. 3. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. 4. A pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. 5. The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. 6. It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.
I set out a very similar statement of the principles in Bowditch v NSW Trustee and Guardian at [113], in relation to a claim by a grandchild. The principles referred to, in relation to a grandchild, were cited, with approval, in Chapple v Wilcox; and also in Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4, at [40]-[41].

Estrangement - Luella and Milvia

On the topic of estrangement between parent and child, in Underwood v Gaudron [2014] NSWSC 1055, I set out the relevant principles at [230]-[233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.
That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, by Holt AsJ in Nicholas v Tubb [2016] TASSC 53, at [21], with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190].
Relevantly to the case of Milvia and Luella, the following passages of what I wrote in Underwood v Gaudron, at [230]-[232], remain apt: "On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: 'The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.' Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. … (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (e) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. (f) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (g) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term "estrangement", which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties….'"
Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27]. In this case, there appears to have been no acrimony, but simply estrangement between Milvia and the deceased and between Luella and the deceased.
Counsel accepted that in each case, the amplitude of the provision to be made for each would be restrained: Tcpt, 21 August 2019, p 245(16-21); Tcpt, 22 August 2019, p 297(3-10). In the case of Milvia, the period of the estrangement was far longer than that of Luella, with the deceased.

Qualifications on "Principles"

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."
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.
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. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
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]."
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]; Yee v Yee [2017] NSWCA 305, at [172]; and, recently, Steinmetz v Shannon [2019] NSWCA 114, per White JA, at [37]. They must be remembered.
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]: "As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox: [19] …the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance Similarly, Barrett JA explained: [67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply "the feeling and judgment of fair and reasonable members of the community" in cases of the present kind. Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
In addition, the formulation of principles, whilst not intended to "constitute a fetter upon the discretion not intended by the legislature", may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

Additional Facts

I next set out some 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

As stated, Luella is the daughter of the deceased. She did not have anything to do with the deceased after Milvia's relationship with the deceased ended in about 1974. She, with Milvia, moved to Tasmania. Then, at the request of the deceased, Milvia, Luella and Tania, in 1988/1989, moved to Sydney, where they lived in accommodation paid for, for some of that time, by the deceased. As a result of disputes with the deceased, the family returned to live in Tasmania, where they have continued to live.
Between about 1989 and 1994, Luella had no contact with the deceased. Then until about 2006, at her own instigation, she visited the deceased about 7 times in Sydney. On each occasion she stayed for about one week at a time.
There followed a period of estrangement between Luella and the deceased until his death.
It is fair to say that the evidence makes clear that Luella and the deceased did not have a close relationship.
It is equally clear that there was a complete abnegation, by the deceased, of his parental responsibility to her, particularly during her childhood. Apart for a short period, in 1988/1989, it appears to have continued in later life.
Milvia and the deceased had a relationship for "2 or 3 years" in the early 1970's and they lived together during that time. They had two children together.
From the time of their separation until the deceased's death, Milvia's contact with the deceased was limited. As stated, earlier, she moved, with Luella and Tania, to Sydney, so they could establish a relationship with the deceased. They stayed in Sydney for a period of around twelve months.
Following her return to Tasmania in 1989, she had virtually no contact with the deceased. In her affidavit made 10 April 2018 at par 55, Milvia states she called the deceased "10 or 11 years ago" to ask for financial assistance for Luella. In her affidavit made 24 January 2019, she referred to a visit to Sydney in 1992, with Tania, during which time they stayed with the deceased for around 10 days.
Maria is the former de facto partner of the deceased. They were in a form of relationship between 1976 and 2016. They separated in early 2016. I have dealt with her relationship with the deceased earlier in these reasons.
Giuliano and the deceased had a relatively close familial relationship. Counsel submitted that "[the deceased] provided accommodation, paid for all his expenses, arranged for him to go to school in Kemps Creek and provided him with all the things which parents normally provide primary school and teenage boys with".
I am satisfied that the relationship of Giuliano and the deceased was relatively close for most of Giuliano's young life. It was a little more distant in the last few years of the deceased's life.
I have referred to some of the evidence about Saro. It should also be mentioned that Milvia gave evidence (in her principal affidavit made 10 August 2018, at par 23) that the deceased "was cruel to his son. He often took his anger out on Saro for no reason."

(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

In respect of Luella, by her counsel, in writing, it was submitted that the "deceased ought to have made provision for [Luella] and in failing to do so he did not adequately or sufficiently consider his moral duty to provide for her" - presumably, as a child of the deceased.
It was not expressly stated, in Milvia's evidence, the nature and extent of any obligations or responsibilities owed to her by the deceased. As is obvious, her claim arises from her status as a former de facto partner of the deceased.
By submissions in writing, counsel for Giuliano submitted that Giuliano "was at a particular time wholly or partly dependent on the Deceased and is a grandchild of the Deceased".
In written submissions, counsel contended that "the plaintiff [Giuliano] acted as a de facto son intending to the deceased's personal needs in the latter part of the deceased's life", and that the "plaintiff was dependent upon the deceased and was a member of the deceased's household for what could be seen as a very large part of the plaintiff's life; that is, from the age of four until the death of the deceased". (I do not accept that Giuliano acted as a de facto son, but it is clear that for much of his life, his relationship with the deceased was reasonably close.)

(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 already noted that the value of the deceased's estate, before deduction of any costs, is estimated to be $1,945,273. It is an estate of moderate size. It is almost $1.6 million after the deduction of the agreed costs.

(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

In her affidavit made 10 August 2018, Luella summarised her financial circumstances. She described her assets as consisting of furniture, white goods and personal effects (estimated $5,000); a Royal Albert dinner plate set (estimated $500); and a 1998 Ford EL Falcon ($500) totalling $6,000. She summarised her liabilities as follows: debts to various companies such as cash converters, Money and RACT Insurance (estimated $10,000) and a NILS Car Loan ($1,500) totalling $11,500.
Luella does not work, and she receives a disability pension of $1,788 per month (as at 10 August 2018). In an updating affidavit of 2 July 2019, Luella indicated she had a balance of negative about $3.00 in each of her two bank accounts (as at 1 July 2019).
Luella does not have any superannuation. By each of Milvia and Luella's evidence, Luella receives some financial assistance form Milvia; for example, Milvia is said to contribute $20 to $30 per fortnight towards Luella's electricity bills. Luella lives with her son.
In her principal affidavit, made 10 August 2018, Luella stated that her "needs" were as follows, totalling $805,383: private health insurance (ranging from $111,928 to $185,461); "significant dental work" as a result of teeth grinding due to her anxiety (no precise monetary figure was provided); $29,990 for a motor vehicle; $45,000 for the "upkeep" of the motor vehicle; an estimated $410,000 to purchase a property in Tasmania, in which to reside; between $50,000 and $75,000 for a "contingency fund" (in her affidavit, averaged to $62,500); $100,000 to "top up" her superannuation; and $10,000 to repay her debts.
In her written submissions, Luella's counsel submitted that Luella's "needs" were "that her debts be paid; [to receive] a small amount to purchase an economical car; to receive financial assistance for her health issues and a contingency fund for the future".
On the fourth day of the hearing, counsel for Luella quantified those needs as between $150,000 to $200,000: Tcpt, 22 August 2019, p 275(16-20).
Milvia is 70 years of age. She has very limited future earning capacity, albeit she is currently employed as a hospitality worker. In her affidavits made 10 April 2018, and 2 July 2019, Milvia summarises her financial circumstances. She is said to have the following assets: motor vehicle ($9,600); furniture and personal effects ($20,000); and balance of bank account (as at 1 July 2019, $409), totalling $30,009. She has no liabilities. She has no superannuation, and does not own a home.
According to her affidavit made 10 April 2018, she works part-time earning $584 per month and is in receipt of an aged pension of $1,652 per month, and a pension supplement of $134 (in total, income of $2,371 per month).
She gave evidence, in April 2018, that her expenses, per month, total $2,190 per month. This amount consists of a repayment of a pension advance, rent, electricity, internet, telephone, food, car and petrol expenses, repayments for furniture, medical expenses, and assisting Luella with car repayments. She did not disclose how the shortfall of expenses over income is met.
In her affidavit made 2 July 2019, at par 7, Milvia also submitted that she financially assists Luella, for example by contributing $20 to $30 per fortnight to Luella's electricity bills, and purchasing cigarettes and incidental items when Luella spends her pension. (She notes, however, that Luella repays her for "most" of those items.)
There was some evidence that Luella's adult daughter resides with Milvia, because the university which she attends is closer to Milvia's residence (as at August 2018, the date of Milvia's principal affidavit). The daughter's financial circumstances were not provided, or referred to, during the course of the hearing.
In her principal affidavit made 10 August 2018, Milvia stated her "needs", totalling $754,441, included private health insurance ($106,941); a home in Tasmania in which she could reside ($497,500); and a fund for contingencies ($150,000).
On the fourth day of the hearing, counsel for Milvia quantified those needs as between $50,000 to $60,000: Tcpt, 22 August 2019, p 275(22-24).
Maria is 76 years of age. She has very limited, or no, future earning capacity. By writing, counsel for Maria submitted her financial circumstances as follows: she has a very limited income provided by an aged pension, presently $1,063 per fortnight ($531 per week); her monthly expenses, at $2,470, well exceed her pension; she does not own a home; she rents modestly at a weekly cost of $360; she has little by way of assets, with a savings balance as at 21 June 2019 of approximately $31,000 and is owed a further $15,000 by her daughter, Sophia; she has no superannuation; and she has ongoing medical bills and no private health cover.
In her principal affidavit made 10 May 2018, Maria listed her "needs" as follows: funds to purchase a property in the Fairfield area in which to reside; funds to furnish the property; funds to pay for her medical needs including cataract surgery, botox injections, and dentures; funds to purchase a new motor vehicle ($21,990 to $29,990); and funds to "supplement [her] savings". No precise amount was specified.
On the fourth day of the hearing, counsel for Maria submitted that a lump sum of $500,000, by way of provision, was sought in relation to Maria: Tcpt, 22 August 2019, p 275(26-27).
Giuliano is 23 years of age. He is not formally employed. In his affidavit made 16 August 2019, at par 76, he stated that he earns around $200 per week completing odd jobs for family members as a labourer. He has recently lost his casual job packing freezers. He stated his financial circumstances are, otherwise, as follows: bank account ($1,383, being his tax refund); and a 1996 Honda Civic (value not stated). He indicated he has no superannuation. His monthly expenses total $2,400 (consisting of groceries, phone, fuel, clothing, internet and "miscellaneous"). He did not state how the shortfall is met.
Guiliano resides for some of the time at his maternal grandparent's home, and also at the Kemps Creek property (which he called "the farm"). He does not pay rent at either of the properties at which he is said to reside.
In his principal affidavit made 16 August 2019, Giuliano's claimed needs were as follows: funds for a deposit for a property; funds to furnish the property; funds to complete a three-year TAFE mechanic course ($15,470); a tutor to assist with his studies (not expressly given a monetary value, but stated to be "$40-60.00 per hour"); funds for a tool set to study and work as an apprentice; funds to purchase a motor vehicle ($27,900 to $50,000); and "funds to maintain me whilst I study and also to assist me in planning for the contingencies of life". In his affidavit, no precise amount was given.
In written submissions for Giuliano, counsel submitted that, in relation to Giuliano, "[he] has virtually no savings, no assets [and] an old car. A modest award to him would allow him to get some sort of a start in life and give him a small amount of security against the contingencies of life."
On the fourth day of the hearing, counsel quantified the claim as between $150,000 and $200,000: Tcpt, 22 August 2019, p 275(27-28).
Saro did not, precisely, outline his financial resources and needs, by way of a monetary amounts. In his affidavit made 31 August 2018, he wrote, at pars 23 to 25, that he had a number of medical conditions, that his "ability to work is very limited", that he has "a criminal record, limited formal education and no drivers licence" and that he "is currently unemployed". Further, he indicated "if this property is sold I will have nowhere to live. I recognise that the property may need to be sold. I need money to purchase a home and try to find a business to support myself".
In written submissions, counsel for Saro, also, did not expressly outline Saro's financial needs and resources, but did indicate that "Saro has significant medical conditions including liver hemochromatosis, problems with his thyroid, high cholesterol, early stage sclerosis of the liver and various mental health issues including depression". It was submitted that "between 1990 and 2011, Saro spent 20 months in prison. Between 2011 and 2017, Saro spent another 5 years in prison." It was submitted that Saro has had "a difficult life".
It is clear from Saro's evidence, that he is a competing financial claimant on the bounty of the deceased.

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

As has been written, Luella resides with her son, whose financial circumstances were not disclosed in the evidence.
Luella's daughter, a university student, may be residing with Milvia. Her financial circumstances are not known.
Maria is not cohabiting with any other person.
In his affidavit made 16 August 2010, Giuliano stated that he "split[s]" his time between his maternal grandparents' home, at which residence his mother also lives, and residing at "the farm" (the deceased's property). The financial circumstances of his mother were not disclosed.

(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

Luella is said to suffer from some mental health issues. This is said to affect her earning capacity.
In her principal affidavit made 10 August 2018, Milvia indicated some historical, and current, health issues. When she was in her 40s, she had breast cancer. She has had five heart attacks over the span of ten years, with the last heart attack occurring in around 2014 or 2015. She has carpal tunnel syndrome, and also has osteoarthritis. She takes medication daily to thin her blood to reduce her risk of having a further heart attack, and medication to treat her carpal tunnel syndrome.
In her principal affidavit made 10 May 2018, and in her updating affidavit made 26 June 2019, Maria indicated she has several health issues, including a dystonic head tremor, high blood pressure, vertigo and cataracts, and wrote "as I get older I am finding I need more and more medical treatment".
Giuliano indicated that he has learning difficulties. No evidence to support this assertion was given.
As has been referred to earlier in these reasons, Saro has significant medical conditions.

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

The age of each of the applicants has been set out earlier in these reasons.

(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

There is no evidence that Luella contributed to the estate of the deceased. No doubt, that during the time she had contact with him, she made some contribution to his welfare.
In raising Tania and Luella alone and without financial assistance from the deceased (for the majority of their childhood, and into adulthood), taken with the failure of the deceased to pay child support, Milvia, at least indirectly, contributed to an increase in the value of the deceased's estate.
Counsel for Maria submitted that Maria contributed to the value of the deceased's welfare and estate in the following ways: "The plaintiff cared for the deceased and his home for many years, saving his estate significant amounts by way of a reduced need for home maintenance costs, nursing assistance and similar. She cared for the deceased's then infant son Ross (including single-handedly while the deceased was imprisoned) and looked after his businesses".
In his affidavit made 16 August 2019, Giuliano asserted that, during the lifetime of the deceased, he would assist with chores around the deceased's property such as cleaning the house and feeding the dog, and assisting the deceased with medications.
Whilst this evidence was not the subject of any real challenge, it does not seem to have been a significant contribution made by him to the deceased.

(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

There is no evidence that the deceased financially contributed, in any material way, to Luella, in his lifetime, except for the brief period in Luella's childhood during which time she resided with the deceased and perhaps for the short period when she resided in Sydney at the request of the deceased.
During the deceased's lifetime, as has been stated, the deceased paid for Milvia's and Luella's rent for a period of three months when she lived in Sydney in the late 1980's. As is obvious, no provision was made for either in the deceased's Will.
As has been stated, the deceased made provision for Maria in an earlier Will. However, that Will was revoked by his last Will.
In his affidavit made 16 August 2019, Giuliano asserted the deceased bought him gifts such as "motor cycles, playstations, laptops and other gifts" (par 35). He stated the deceased "continued to give me money on a weekly basis. If I needed something it was my grandfather who paid" (par 46). The deceased paid for Giuliano to sit his driving test, purchased a Peugeot motor vehicle for Giuliano (which the deceased subsequently sold), and later assisted Giuliano to pay for a Mercedes (Giuliano, at par 58, estimates the deceased contributed $6,000 towards the cost of the Mercedes, which totalled $10,000).
Giuliano also gave evidence that the deceased "paid for my upkeep and provided money each day for school" (par 49).

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

This has been dealt with earlier in these reasons.

(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

Neither of Luella or Milvia was being maintained by the deceased other than as stated above.
Maria asserted she was being maintained by the deceased prior to his death, during the course of their relationship. This has been discussed earlier in these reasons.
Giuliano gave evidence that he was being maintained, in part, by the deceased. This has been discussed earlier in these reasons.

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

In respect of each applicant, there is no person is liable to support her or him.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person, and (n) the conduct of any other person before and after the date of the death of the deceased person

Each applicant's character and conduct during the deceased's lifetime, and after the deceased's death, has been discussed earlier in these reasons.
There is no other relevant person to whom reference should be made in respect of their character and conduct towards and in relation to the deceased.
(It is not necessary to discuss the character and conduct of Saro as he is the sole chosen object of the deceased's bounty.)

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

This 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

Having established eligibility, factors warranting the making of the application, and that the proceedings were commenced within time, or in the case of Giuliano, that the parties consent to the time for the making of his application being extended, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of each of the applicants, has not been made by the Will of the deceased.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
There was no provision in the deceased's Will made for each of the applicants. However, this does not, automatically, mean that she, or he, will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased's Will.
Judged by quantum, and looked at through the prism of the financial circumstances and the needs of each of the applicants, I am satisfied that adequate provision for her, and his, proper maintenance, education or advancement in life, respectively, has not been made by the Will of the deceased. 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.
The Court is required to make an assessment of the financial position of each applicant, the size and nature of the deceased's estate, the relationship between each and the deceased, the competing claim of the others, and of Saro, as the only other person who has a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].
Having considered the matters I am required to consider, each applicant has satisfied the Court that she and he, respectively, has been left without adequate provision for her, and his, proper maintenance, education and advancement in life. I am also satisfied that an order for provision for each applicant should be made. None of the applicants is in a strong financial position and each needs a capital sum for exigencies of life for her, or his, proper maintenance and advancement in life, respectively.
Some estates are simply not large enough to make an order for provision. In this case, the value of the estate is reasonably large, and is sufficient to make provision for the persons to whom the deceased owed some form of testamentary duty. Nevertheless, in Smith v Johnson, the Court of Appeal held that it was a miscarriage of the judge's discretion to order provision which exceeded an applicant's needs.
I have made an assessment of the financial position, the nature of the deceased's estate, the relationship between each applicant and the deceased, the competing claims, as against each other and Saro, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them.
The more difficult question then arises, namely what provision "ought to be made for her, or his, maintenance, education or advancement in life", having regard to the facts known to the Court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
Having considered the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgement that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that a capital sum for exigencies of life should be made.
In coming to the conclusion on the quantum of the provision to be made for him, the deceased's entitlement to testamentary freedom is, of course, important and I have given significant weight to this in reaching my conclusions.
Importantly, it is also clear that what is regarded as "proper" will depend, amongst other things, upon the nature and duration of the applicant's relationship with the deceased.
In this regard, the primary obligation, it seems to me, was owed by the deceased to Maria. Although their relationship terminated a number of years before the deceased's death, it had existed, on and off for over 40 years, at least 8 years of which, before its end, had been spent by her, caring for the deceased.
I bear in mind, also, importantly, that during this period, in 2011, the deceased himself, determined that some provision ought to be made for Maria in a lump sum of $180,000.
In all the circumstances, I have come to the conclusion that Maria should receive a lump sum that equates with 20 per cent of the net residue of the estate of the deceased. That lump sum will provide for Maria's medical and other expenses and make her life somewhat easier as she ages.
The obligation next owed by the deceased, it seems to me, was owed by him to Luella, as his child. Although their relationship ended a number of years before the deceased's death, it had existed, until about 2007. She had from 1989 until 2007 endeavoured to keep in contact, and maintain a relationship, with him. Prior to that time, the deceased effectively, had made no provision for her.
Yet, the period of estrangement after 2007 until the deceased's death, about 10 years later, does restrain the amplitude of provision to be made for her. In my view, she should receive a lump sum that equates to 10 per cent of the net residue of the estate of the deceased.
The obligation next owed by the deceased, it seems to me, was owed by him to Giuliano as his grandchild. There can be little doubt that their relationship was reasonably close and was maintained, albeit less so, during the period after 2008. In my view, he should receive a lump sum that equates to 7 per cent of the net residue of the estate of the deceased.
The applicant to whom the deceased owed the least, but some, obligation, nevertheless, was Milvia. Although their relationship ended many years before his death, and even though they had no contact from about the early 1990's, the deceased had made no provision for her during his lifetime. It was she who had to bear the significant burden of looking after their two children without any financial, or other, support, for most of their lives. In my view, she should receive a lump sum that equates to 3 per cent of the net residue of the estate of the deceased.
As will be read, the total provision made for the applicants is 40 per cent of the net residue of the estate of the deceased. That still leaves 60 per cent of the net residue for Saro, the chosen object of the deceased's bounty.
In the case brought by Maria, the Court: 1. Notes the associated proceedings 2018/248634 and 2019/252712. 2. Orders, having found the Plaintiff is an eligible person, that there are factors warranting the making of her application, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that she receive a lump sum that equates to 20 per cent of the net residue of the estate of the deceased. 3. Orders that no interest is to be paid on the lump sum, if it is paid within 7 days of the settlement of the sale of the property situated at XXX Kemps Creek ("the Kemps Creek property"); otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum. 4. Orders, that the burden of the provision made in favour of the Plaintiff, be borne out of the share of the deceased's estate passing to Ross Carmino, the sole beneficiary named in the Will of the deceased. 5. Orders that the Plaintiff's costs, calculated on the ordinary basis, assessed and agreed at $85,000 (inclusive of GST), be paid out of the estate of the deceased. 6. Orders that the Defendant's costs, calculated on the indemnity basis, assessed and agreed at $144,080, of these, and the associated proceedings, be paid out of the estate of the deceased. 7. Orders that the costs of the parties are to be paid within 7 days of the settlement of the sale of the Kemps Creek property. 8. Notes the agreement of the parties that the net residue of the estate will be calculated as the gross proceeds of sale of the Kemps Creek property less the liabilities of the estate agreed upon by the parties in these proceedings (subject to amendment as to quantum), any executor's commission as agreed by the parties or ordered by the Court, any further liabilities properly and reasonably incurred by the estate, the costs and expenses associated with the sale of the Kemps Creek property, and the costs of these and the associated proceedings. 9. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).
In the case brought by Luella and Milvia, the Court: 1. Notes the associated proceedings 2018/170958 and 2019/252712. 2. Orders, having found the first 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, that she receive a lump sum that equates to 10 per cent of the net residue of the estate of the deceased. 3. Orders, having found the second Plaintiff is an eligible person, that there are factors warranting the making of her application, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that she receive a lump sum that equates to 3 per cent of the net residue of the estate of the deceased. 4. Orders that no interest is to be paid on the lump sum, respectively, if it is paid within 7 days of the settlement of the sale of the property situated at XXX Kemps Creek ("the Kemps Creek property"); otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum. 5. Orders, that the burden of the provision made in favour of each Plaintiff, be borne out of the share of the deceased's estate passing to Ross Carmino, the sole beneficiary named in the Will of the deceased. 6. Orders that the first Plaintiff's costs, calculated on the ordinary basis, assessed and agreed at $45,000 (inclusive of GST), be paid out of the estate of the deceased. 7. Orders that the second Plaintiff's costs, calculated on the ordinary basis, assessed and agreed at $35,000 (inclusive of GST), be paid out of the estate of the deceased. 8. Orders that the Defendant's costs, calculated on the indemnity basis, assessed and agreed at $144,080, of these, and the associated proceedings, be paid out of the estate of the deceased. 9. Orders that the costs of the parties are to be paid within 7 days of the settlement of the sale of the Kemps Creek property. 10. Notes the agreement of the parties that the net residue of the estate will be calculated as the gross proceeds of sale of the Kemps Creek property less the liabilities of the estate agreed upon by the parties in these proceedings (subject to amendment as to quantum), any executor's commission as agreed by the parties or ordered by the Court, any further liabilities properly and reasonably incurred by the estate, the costs and expenses associated with the sale of the Kemps Creek property, and the costs of these and the associated proceedings. 11. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).
In the case brought by Giuliano, the Court: 1. Notes the associated proceedings 2018/170958 and 2018/248634. 2. Orders, the parties having consented, that the time for the making of the Plaintiff's application be extended to 14 August 2019, the date of the filing of the Summons. 3. Orders, having found the Plaintiff is an eligible person, that there are factors warranting the making of his application, and that adequate provision for his proper maintenance or advancement in life has not been made for him in the Will of the deceased, that he receive a lump sum that equates to 7 per cent of the net residue of the estate of the deceased. 4. Orders that no interest is to be paid on the lump sum, if it is paid within 7 days of the settlement of the sale of the property situated at XXX Kemps Creek ("the Kemps Creek property"); otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum. 5. Orders, that the burden of the provision made in favour of the Plaintiff, be borne out of the share of the deceased's estate passing to Ross Carmino, the sole beneficiary named in the Will of the deceased. 6. Orders that the Plaintiff's costs, calculated on the ordinary basis, assessed and agreed at $41,600 (inclusive of GST), be paid out of the estate of the deceased. 7. Orders that the Defendant's costs, calculated on the indemnity basis, of these and the associated proceedings, assessed and agreed at $144,080 (inclusive of GST), be paid out of the estate of the deceased. 8. Orders that the costs of the parties are to be paid within 7 days of the settlement of the sale of the Kemps Creek property. 9. Notes the agreement of the parties that the net residue of the estate will be calculated as the gross proceeds of sale of the Kemps Creek property less the liabilities of the estate agreed upon by the parties in these proceedings (subject to amendment as to quantum), any executor's commission as agreed by the parties or ordered by the Court, any further liabilities properly and reasonably incurred by the estate, the costs and expenses associated with the sale of the Kemps Creek property, and the costs of these and the associated proceedings. 10. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

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: 24 October 2019

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