Plummer & Anor v Montgomery

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Matthews v Wear [2011] NSWSC 1145 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Page v Hull-Moody [2020] NSWSC 411 Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141 Petrohilos v Hunter (1995) 25 NSWLR Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Purnell v Tindale [2020] NSWSC 746 R v Cook; Ex parte C (1985) 156 CLR 249; [1985] HCA 47 Re Fulop (1987) 8 NSWLR 679 Re Marsella; Marsella v Wareham [2018] VSC 312 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Spata v Tumino [2018] NSWCA 17 Sreckovic v Sreckovic [2018] NSWSC 1597 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sun v Chapman [2022] NSWCA 132 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Yee v Yee [2017] NSWCA 305 Category: Principal judgment Parties: Sharon Dorothea Plummer (first Plaintiff) Michelle Helen Hunt (second Plaintiff) Lisa Marion Montgomery (first Defendant) Stephen Joseph Simpson Montgomery (second Defendant) Representation: Counsel: B Gillies (Plaintiffs) G A Rich (Defendants)

Solicitors: Nevin Lenne Gross (Plaintiffs) Malcolm McDonald & Co, Solicitors (Defendants) File Number(s): 2022/35392 Publication restriction: Nil

Introduction

1. Norma Mary Helen Plummer (the deceased) died on 3 June 2021. At the date of her death, she was almost 89 years old, having been born in September 1932. These reasons concern two claims made on her estate.
2. By one Summons filed on 7 February 2022, Sharon Dorothea Plummer, and Michelle Helen Hunt, each seeks a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) ("the Act") out of the deceased's estate and notional estate. In her affidavit in support of the Summons, each Plaintiff deposed, respectively, that she was an eligible applicant for provision, on the basis that she "was, at any particular time, wholly or partly dependent on the deceased person, and is a grandchild of the deceased": s 57(1)(e) of the Act. They both sought an order for their costs of the proceedings.
3. By the time the Court was provided with their written outline of submissions, dated 23 January 2023, it had been realised by each of the Plaintiffs that the description "is a grandchild of the deceased" was incorrect, since, in fact, each was a child of the person to whom the deceased had been married until his death. In other words, each was a person who would have been regarded as a stepchild of the deceased.
4. Despite this error, each Plaintiff was able to continue to maintain reliance on s 57(1)(e) of the Act, which sub-section also identifies, as a category of eligibility, a person who "was, at any particular time, wholly or partly dependent on the deceased person, 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".
5. The Defendants named in the proceedings are Lisa Marion Montgomery and Stephen Joseph Simpson Montgomery, each of whom is a biological child of the deceased, and an executor and trustee named in her Will made on 23 April 2019. This Court granted Probate of that Will to both on 30 November 2021.
6. Hereafter, I shall refer to the parties, and other family members, after introduction, by her, or his, first name. I do so for clarity, and convenience, ease of reading, and without intending to convey undue familiarity or disrespect. I shall, on occasions, compendiously, where easier, refer to the parties as "the Plaintiffs" or "the Defendants".
7. At the hearing, Mr B Gillies of counsel, instructed by Ms H Collins of Nevin Lenne Gross, Solicitors, of Wangaratta, Victoria, appeared for Sharon and Michelle. Mr G A Rich of counsel, instructed by Mr M McDonald of Malcolm McDonald & Co, appeared for Lisa and Stephen.

Formal matters in the application

1. The Plaintiffs made the application for the family provision order by Summons filed within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).
2. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, in this case, it is not suggested that either seeks provision for education. The Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
3. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. I have already referred to the category of eligibility upon which each now relies. The language of the relevant sub-section is expressive of the person's status, as well as her, or his, relationship to the deceased.
4. There is also no age limit prescribed by the Act in the case of a claim by any eligible person. Of course, by the time the deceased died, both were, and had been, for many years, adults, and were not, then, dependent upon her. As will be read, each had very little to do with the deceased for some years prior to her death.
5. At the commencement of the hearing, there was a dispute about each of the elements that must be satisfied for each of the Plaintiffs to succeed in her claim for provision out of the estate of the deceased. However, during oral submissions, counsel for Lisa and Stephen, accepted, in my view, properly, that there was sufficient evidence to enable the Court to conclude that each of Sharon and Michelle is an eligible person within the meaning of that term in s 57(1)(e) the Act. That concession does not prevent a dissertation of the facts, as counsel submitted that those facts, including the nature of the relationship between each, with the deceased, is relevant to all the other issues in the case.
6. As will be read, each of Lisa, Stephen, and Emmy Susan Montgomery, a grandchild of the deceased (a daughter of Lisa) is a beneficiary named in the deceased's Will. Whilst Lisa and Stephen are eligible persons, Emmy is not.
7. The deceased married David Montgomery, the father of Lisa and Stephen, on a date not disclosed in the evidence and they were divorced in about 1972. Counsel informed the Court that it was not known whether David remained alive, or was now dead, as the children had been estranged from him for many years.

The deceased's testamentary intentions

1. Section 60(2)(j) of the Act, permits "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person" to be considered by the Court. Of course, that sub-section provides just one of a number of matters to which the Court may have regard for the purpose of determining (a) whether the person in whose favour the order is sought to be made is an eligible person, and (b) whether to make a family provision order and the nature of any such order.
2. It was asserted by Sharon and Michelle that the deceased had made a Will prior to her last Will. On the first day of the hearing, a copy of a Will, which was made on 10 May 2016 ("the 2016 Will") was tendered and was marked Ex. E.
3. If the 2016 Will was adverted to by Sharon and Michelle in the hope that its contents would reflect, at the time of its making, the recognition by the deceased, of a degree of testamentary duty owed by her towards each of them (Sreckovic v Sreckovic [2018] NSWSC 1597 at [55]), the hope of each was dashed. Neither was named as a beneficiary, or otherwise referred to. Only Stephen (as to 50 per cent of residue), Lisa (as to 25 per cent of residue) and Emmy (as to 25 per cent of residue) was, relevantly, named as a beneficiary. The deceased provided no explanation for omitting each of Sharon and Michelle from her testamentary bounty.
4. In her duly executed last Will, the subject of the grant of Probate, the deceased left her estate, after the payment of debts, funeral and testamentary expenses, to be divided in equal shares as tenants in common between "my son Stephen…", "my daughter, Lisa…" and "my granddaughter, Emmy Susan Montgomery…". Again, no provision was made for either Sharon or Michelle, and each was not referred to.
5. However, the deceased left a document, also dated 23 April 2019, which was headed "TESTAMENTARY DOCUMENT TO BE INCORPORATED IN THE WILL…". The evidence was not objected to and no limitation on its use was sought. Although it is lengthy, I set out the whole of the signed written statement, verbatim: "5 I DIRECT that in the event of a challenge being brought against my will, that my Executor hands this document to a Judge of the Supreme Court of New South Wales as it supports my instructions [as] regards the distribution of my estate. I, NORMA MARY HELEN PLUMMER of 105 Olivet Street, Glenbrook in the State of New South Wales DECLARE that it is my wish that the following named people are not to benefit in any way from my estate: - SHARON PLUMMER MICHELLE HUNT GAIL FORREST 6 The abovenamed persons are children from the first marriage of my late husband John Lewis Plummer to Janet Burfield. The reasons for my wishes are as follows: - (a) My late husband John Lewis Plummer in 2005 entered a period of diminishing health. (b) Due to the progressive deterioration John Lewis Plummer gave instructions to our solicitor giving Power of Attorney and Enduring Guardianship to me, his wife, Norma Mary Helen Plummer. (c) During episodes requiring hospitalisation his daughters Sharon, Michelle and Gail displayed intolerable behaviour towards me and hospital protocol. (d) They attended my solicitors [sic] office Fegebank Legal and saw Len Titow requesting that our legal documents be changed into their names. Mr Titow advised that all three daughters were involved. (e) I was able to care for my late husband until 2011. He then required care at Buckland Nursing Home, High Dependency Ward. His daughters, constant complaints and interference caused me great anxiety in such a delicate situation. (f) At the time of his death our family home being registered as joint tenants reverted to me. He had an amount of $578.00 in his National Australia Bank Account. I advised his daughters of the financial situation and took his eldest daughter to the bank to confirm this. (g) I was later advised by the eldest daughter Gail Forrest that she, Michelle Hunt and Sharon Plummer had given instructions to Slater and Gordon to go for my home. (h) The mental stress and anxiety caused to me by my late husband's daughters, their constant malicious behaviour at such traumatic times are my reasons for my wishes to be upheld. 7 I DECLARE in respect of any challenge being made to my will that it is my sincere wish that:- (a) No portion of my estate is to be used to fund a challenge against my Will; (b) That it is my sincere wish that my beneficiaries as nominated receives their bequest as stipulated in my last will and testament and not a depleted portion thereof. 8 I REQUEST that should the Court be asked to deliberate on a challenge to my Will by Gail Forrest, Michelle Hunt or Sharon Plummer, that the Court will decide to uphold my wishes and not grant them the right to challenge my will or allow the cost of such challenge to be funded out of my estate. 9 I BELIEVE my decision is just and reasonable when all matters are considered."

The nature and value of the deceased's estate

1. On 14 December 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the Schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
2. I have taken what follows from the Agreed Schedule, dated 19 January 2023, provided to the Court, which, at the commencement of the hearing, was marked, without objection, Ex JS1, and from discussions with counsel during the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. The deceased's estate, at the date of death, comprised real property located at Glenbrook, NSW ("the Glenbrook property") ($1,200,000), monies in the bank ($11,300) and a car ($2,000). The gross estimated value of the deceased's estate, then, was $1,213,300.
4. The deceased's estate, at the date of the Joint Schedule, comprised the net proceeds of sale of the Glenbrook property (after the payment of agent's commission legal costs and "usual outgoings on sale"), being $1,163,834, and monies in the bank ($6,638). From this sum, the distributions referred to earlier were made ($32,540) and $6,402 (part of the estate's administration costs) was paid, leaving a distributable estate (without any deduction for unpaid administration costs and the costs of the proceedings) of $1,131,530. If the unpaid administration costs are paid, the value of the estate, subject to any order for costs to be paid out of the estate, out of which orders for provision will be made, will be $1,125,140.

Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or 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.
2. 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, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.
3. The Plaintiffs' costs, calculated on the indemnity basis, up to the conclusion of the hearing, were estimated to be $88,835 and, calculated on the ordinary basis, to be $81,000 (in each case, exclusive of GST, and based upon a hearing of three days duration). Disbursements of $2,333 have been paid by them. (If they were to succeed, and if a costs order in their favour were made, they may receive back some of the amount paid.)
4. The Defendants' costs, calculated on the indemnity basis, were estimated to be $109,341 (inclusive of GST and based upon a hearing of three days duration).
5. Because the hearing was concluded in two, rather than three, days, the Court was informed by counsel, from the Bar table, that the Plaintiffs' costs would be calculated on the ordinary basis, to be $80,000 (inclusive of GST) and that the Defendants' costs, calculated on the indemnity basis, were estimated to be $100,000 (inclusive of GST).
6. Using the costs estimates as a guide, and assuming the usual order for costs is made, the total amount of the costs of the proceedings will be $180,000. It follows that the estate out of which any order for provision could be made is estimated to be $945,140.

The background circumstances

1. There were three children of the marriage of the deceased and David, being Susan, who was born in October 1953; Lisa, who was born in May 1956 and who is currently 66 years of age; and Stephen, who was born in November 1959 and who is currently 63 years of age. (Susan predeceased the deceased, having died in about 2004, without issue.)
2. John (also known as Jack) Lewis Plummer and Janet Burfield were married in about 1959. There were three children of the marriage, being Gail Maree Forrest, who was born in August 1958, and who is now 64 years old; Michelle, who was born in March 1961, and who is now 61 years old; and Sharon, who was born in August 1967, and who is now 65 years old.
3. By Transfer dated 1 October 1971, the deceased purchased, in her sole name, a property situated at Blacktown ("the Locke Street property") for $23,000 (Ex. B).
4. Jack and Janet separated in about 1973. The separation and the divorce between them were said to be "not amicable": Affidavit, Gail Forrest, 31 May 2022 at par 5. Although the precise details are not known, there were contested family law proceedings between them.
5. Following his separation from Janet, Jack moved in with the deceased. They were married to each other in 1978 and remained married until his death, 38 years later, in April 2016.
6. I shall return to the evidence given by Sharon, Michelle, and Gail about having contact with Jack and the deceased following the separation of their parents. Whilst the evidence of the regularity of their visits, was in dispute, I am satisfied that Sharon and Michelle visited Jack, by consensual arrangements made between their parents, and from about 1977, until about the time she reached the age when she could make her own decision, would visit usually, although not always, on alternate weekends and during part of the school holidays.
7. There was some dispute over the date that Jack and the deceased moved from the Locke Street property to the house situated at Orchard Hills, a suburb of western Sydney. Counsel for the Plaintiffs submitted that this occurred in 1989, though this date did not appear in any affidavit evidence. Later during oral submissions, counsel then referred to a Transfer dated 19 February 1987 relating to the sale of the Locke Street property. Lisa also gave evidence that the move occurred in 1987: Affidavit, Lisa Marion Montgomery, 10 March 2022 at par 5. Stephen agreed, providing, more specifically, a date of February 1987 for the sale of the Locke Street property, noting that they moved to the Orchard Hills property two months afterwards: Affidavit, Stephen Joseph Simpson Montgomery, 22 April 2022 at par 7. I am satisfied that the deceased and Jack moved in 1987.

The Witnesses

1. In addition to each of the parties, each of whom was cross-examined, there were three witnesses required to attend for cross-examination. Two deponents, whose affidavits were read, were not cross-examined. I shall deal with the evidence of these witnesses and my impression of those who were cross-examined.
2. Overall, I formed the impression that each of Sharon and Michelle was a witness whose evidence was impacted by her own self-interest and a feeling of entitlement caused by the failure to receive any provision out of the estate of her father. It is clear that the deceased's view of her relationship with each of the Plaintiffs was very different to the view seemingly held by each of them. Much of the evidence relied upon was based on her own evidence and/or the evidence of her siblings.
3. I found Lisa, whilst a little defensive at times, to be a witness who was endeavouring to give truthful evidence to the best of her recollection. There can be no doubt that she has a significant competing moral claim on the bounty of the deceased, a matter which was unchallenged. I found Stephen to be the most forthright witness, whose evidence I accept without hesitation.
4. The first witness to be cross-examined was Sharon.
5. Sharon swore four affidavits in the proceedings: the first, sworn on 3 February 2022, comprising 39 paragraphs, spanning 10 pages; the second, which was in reply, sworn on 23 March 2022, comprising 20 paragraphs, spanning 4 pages; the third, sworn on 31 May 2022, comprising 3 paragraphs, spanning 3 pages; and the fourth, sworn on 7 December 2022, comprising 21 paragraphs, spanning 4 pages. She said that she had read her affidavits carefully and had satisfied herself that the statements made were true and correct.
6. Sharon, like each of Michelle and Gail, was a witness who I thought was rather hesitant in giving her evidence, it seemed for fear of saying something that would not assist her case. She, too, was, at times, a little defensive. At other times, I found her evidence to be untrue.
7. By way of example, when cross-examined about her statement that she was a person "who is a grandchild of the deceased person…", it being put that the statement was not true, her first response was "I don't recollect it said 'grandchild'. I read it as I am not the grandchild."

LIABILITIES Mortgage - CBA - home loan $13,000 Car loan $ 9,000 Credit card debt $ 27,000 Business loan - secured on home $ 95,000 Other liabilities - credit card for son's orthodontic treatment $ 2,000 TOTAL $146,000

1. Sharon also gave evidence of her medical needs. She indicated that she has anxiety, shingles, and neuralgia, and that she is taking hormone replacement therapy. Additionally, Byron is currently undergoing cancer treatment and requires regular review, while her son has a heart condition caused by long COVID and is living with Sharon due to fatigue and depression: Affidavit, Sharon Dorothea Plummer, 7 December 2022 at pars 19-21. A copy of a letter from Sharon's treating doctor was exhibited in support of this evidence: Affidavit, Helen Maria Collins, 23 January 2023 at par 3.
2. Sharon stated that, in both 2021 and 2022, she did not earn over the tax-free threshold and did not need to submit a tax return. Her business is currently operating at a loss, due to COVID-related closures and flood-related road closures, and she does not draw any wages from the business. She receives a parenting benefit of $440 per fortnight from Centrelink for her son, which will end in June 2023. She indicated that she is not eligible for any disaster relief payments.
3. Byron, with whom Sharon is cohabiting, is the only other person liable to provide financial support to Sharon. He has $10,000 in superannuation and holds the Mount Beauty property jointly with Sharon.
4. Sharon was not asked any questions about her evidence of financial circumstances and needs.
5. Michelle swore 4 affidavits in the proceedings: the first, sworn on 4 February 2022, comprising 34 paragraphs, spanning 9 pages; the second, which was in reply, sworn on 18 March 2022, comprising 12 paragraphs, spanning 4 pages; the third, sworn on 30 May 2022, comprising 3 paragraphs, spanning 2 pages; and the fourth, sworn on 7 December 2022, comprising 17 paragraphs, spanning 4 pages.
6. Michelle stated that between the ages of 12 and 16, she had also stayed with Jack and the deceased on every second weekend and half of the school holidays, after her parents separated. She believed this was in accordance with family law orders but agreed in cross-examination that it was an assumption on her part, as the orders had not been made until 1977: Tcpt, 31 January 2023, p 54. She maintained however, that she "was taken as a child, picked up by my father from the home I lived in and taken to his house for visitation".
7. Her initial denial of her evidence that the visits had started in 1971 was wrong. It clearly was wrong because other evidence reveals that Jack and Janet did not separate until 1973. She later accepted that the "dates [were] out" and that "It's hard to recall the specific years." (No such difficulty had been expressed in her affidavits.)

The Submissions

1. Counsel for the Plaintiffs submitted that Sharon and Michelle met the eligibility threshold pursuant to s 57(1)(e)(ii). It was not in dispute that Sharon and Michelle was each a member of the household of which the deceased was a member. As stated, it was also accepted that as minors, each was likely to have been partly dependent on Jack and the deceased for accommodation, food, clothing, and emotional support, when staying with them.
2. Counsel pointed to the comments of Hope AJA, Sheller and Clark JJA in Petrohilos v Hunter (1995) 25 NSWLR at 34-347 to argue that 'provision by the mother to her children living with her of the services essential for their wellbeing… [makes] them partly dependent upon her.'
3. In support of making an order for family provision, counsel emphasised the fact that Sharon and Michelle received no benefit from their father's estate, as it had passed by survivorship to the deceased. He noted that Jack made a significant contribution to the deceased's estate by paying half of the purchase price of the principal asset, the Glenbrook property. He further pointed to Jack's Will, which, by way of substitutionary gift, shared his estate equally among his three children and two stepchildren in the case that the deceased predeceased him, as evidence of his obligations to all parties.
4. He went on to submit that the deceased was 'their step-parent with whom they had a close relationship,' and any estrangement between the deceased and Sharon and Michelle was only the result of the natural separation between a parent and an adult child, particularly as both of them moved interstate.
5. During oral submissions, he conceded that after 2015 there was no real contact with the deceased. However, he maintained that the deceased was involved in their lives for a significant period of 30 years, highlighting the assistance the deceased gave to Sharon during Sharon's pregnancy.
6. Counsel framed the allegations of misconduct expressed in the deceased's testamentary document as a 'festering' due to no contact, rather than genuinely problematic issues in the relationship, pointing out the fact that the complaints were not raised in the deceased's penultimate will, which had been made after Jack's death. (Neither Sharon nor Michelle were beneficiaries under the penultimate will.)

Meaning of stepchild

1. As the deceased did not adopt Sharon, or Michelle, neither falls within s 57(1)(c) of the Act, namely "a child of the deceased person". The Act does not include a stepchild as an eligible person by virtue of the relationship alone. Indeed, there is no definition of "stepchild" in the Act. Whilst a child of the deceased person is specifically included as an eligible person, a stepchild does not fall within the ordinary meaning of the term "child".
2. (Other Australian States and Territories have a distinct category that gives a stepchild standing to bring a family provision claim: Succession Act 1981 (Qld) ss 40, 40A, 41(1); Family Provision Act 1969 (ACT) ss 7(1)(d), 7(2); Family Provision Act 1970 (NT) ss 7(1)(d), 7(2)(b); Inheritance (Family Provision) Act 1972 (SA) s 6(g); Family Provision Act 1972 (WA) s 4(1), 7(1)(ea)-(eb); and Administration and Probate Act 1958 (Vic) ss 90 and 91(4)(c). However, for example, in Victoria, there are limitations, the stepchild being under the age of 18 years; or (ii) a full-time student aged between 18 years and 25 years; or (iii) with a disability.)
3. The dictionary meaning of "step" is a prefix indicating connection between members of a family by the remarriage of a parent: The Macquarie Dictionary (4th Ed., 2005).
4. In R v Cook; Ex parte C (1985) 156 CLR 249 at 262; [1985] HCA 47, Deane J, in dissent, explained: "…If, however, the natural parent of … [a] child marries someone other than the child's other natural parent and the child is an infant who ordinarily resides in their matrimonial home, the child has a close and direct connexion with that marriage. It is not only that he or she lives in the matrimonial home as a child of one party to the marriage. It is that, as a matter of well-established social custom in this and other countries of the common law world, the child acquires a special familial relationship with the other party to the marriage by reason of the marriage itself. That special relationship is acknowledged, as a matter of ordinary language, by the terms 'stepfather' or 'stepmother' and 'stepson' or 'stepdaughter'. The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent".
5. His Honour added at 263: "The nature of the relationship between step-parent and stepchild has been considered in numerous cases in common law jurisdictions. The relationship has been correctly described as a 'quasi parental' one ... It arises regardless of whether the child was an ex-nuptial child or was the child of a previous marriage… The direct connexion between the relationship of stepparent and stepchild and the marriage from which it arises has often been stressed. … If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between stepparent and stepchild will continue. … It has been said that the word 'stepchild' should, in a particular statutory context, be interpreted as 'referring to the acquisition of a new relationship by a child when its parent remarries' and 'that the child acquires this new relationship towards the person the parent remarries'."

Eligibility

1. It was admitted, on the second day of the hearing, that each of Sharon and Michelle is an eligible person within the meaning of that term in s 57(1)(e) of the Act. For this reason, it is unnecessary to say anything more about eligibility.
2. Then, because eligibility is no longer in dispute, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b) of the Act).
3. In Graziani v Graziani (Supreme Court (NSW), 20 February 1987, unrep), Cohen J, in dealing with an application by stepchildren under the former Act, wrote, at [8] - [10]: "There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application .... ... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Determination

1. As stated, there was, by the conclusion of the hearing, no dispute concerning the eligibility of each of Sharon and Michelle. Nothing more needs to be said about this element as I am satisfied that it was established.
2. There are authorities that consider the significance of recognition in a will for the purposes of s 59(1)(b) of the Act: Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 at [31] (Basten JA, Allsop P and Ipp JA agreeing); Estate Pascale [2016] NSWSC 443 at [29] (Lindsay J); Dannawi v Dannaway [2019] NSWSC 1287 at [103] (Slattery J); Purnell v Tindale [2020] NSWSC 746 at [260] (Henry J) constitute a factor warranting the making of the application. This does not apply to the facts in this case.
3. A matter relied upon was the provision made for his children and the deceased's children in Jack's Will in the event that the deceased did not survive him. It was suggested that this demonstrated that some discussion about this was likely to have taken place between the deceased and Jack. However, I consider this to be mere speculation as there is no evidence of any Will made by the deceased in which a similar provision was made for Sharon or Michelle. At no time did the deceased appear to regard either as an object of testamentary bounty. Nor was there any evidence of a representation made by her that she would do so.
4. Yet, the deceased appears to have considered that she needed to explain why she had not made any provision and, for this reason left the written statement that she did. This might suggest that she considered them to be persons who might have a claim upon her estate. But, as submitted by counsel for the Defendants, another explanation may have been her concern that each of Jack's children would consider making a claim as they had done in respect of their father, and she wished to provide her subjective view why no provision should be made.
5. Reliance was placed on the fact that part of the deceased's estate came to her as a result of surviving Jack, with the consequence that no provision could be made for either of Sharon or Michelle by their father. One could find, therefore, that there are factors warranting the making of the application. In this regard, neither Sharon nor Michelle suggests that she made any direct financial contribution to the acquisition of the estate of the deceased. Each suggests, perhaps indirectly, that Jack did so, and therefore, because she did not make a claim for a family provision order following his death, she contributed to the acquisition of the deceased's estate. Whilst each had left it to Gail to seek advice, I am satisfied that Gail communicated that fact to the deceased. This caused the deceased some anxiety. Yet, none of Jack's children proceeded to make a claim under the Act in relation to his estate, or notional estate, with the result that the deceased received the whole of Jack's estate and property that could have been designated as notional estate.

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