Re Estate Grant, deceased [2018] NSWSC 1031

Supreme Court of NSW|2018-04-04|Before: Lindsay J

Introduction

The focus for attention here is upon whether (and, if so, upon what terms) the Court should grant to Katerina an extension of time within which to exercise a statutory right to elect to acquire property from the deceased's estate. The Court is not called upon to make a determination about the mechanics of any such election, if made.
Nevertheless, the Court's determination about an extension of time must be located in the context of the provisions governing the existence, and exercise, of a statutory right of election.
Semble, those provisions have yet to be the subject of judicial consideration since their enactment in Chapter 4, Part 2, Division 2 (sections 114-121) of the Succession Act. They represent a development of provisions formerly found in the Wills Probate and Administration Act (centred upon section 61D) which gave a spouse a right to acquire a shared family home. Hoobin v Hoobin [2004] NSWSC 705 provides an illustration of those provisions in operation.
In recommending an extension of a surviving spouse's right to elect to acquire any part of an intestate's estate (not merely a shared home) the NSW Law Reform Commission, in deference to the National Committee for Uniform Succession Laws, took the view that there was no reason against the broader right "so long as [the surviving spouse] can provide satisfaction for [the value of the property acquired]" : NSW Law Reform Commission, Report 116 (Uniform Succession Laws: Intestacy, April 2007), paragraph 5.21. Cf, paragraphs 5.64 and 5.77.

The Parameters of Questions in Dispute

The right of election upon which Katerina seeks to rely is found in section 115(1). After some hesitation, the case was conducted on the basis that section 115(2) does not apply in these proceedings and, accordingly, Katerina does not require a grant by the Court of "authorisation" to acquire the deceased's interest in the McMahon's Point property. Counsel accept (as do I) that neither paragraph of section 115(2) applies to the facts of this case merely because the property to be acquired is the deceased's interest, in a stand-alone residence, as a tenant in common with Katerina as his spouse.
It is accepted by all parties that the fact that Katerina is a personal representative of the deceased (or even if she were held to hold estate property as a trustee) does not disentitle her from enjoyment of a statutory right of election: sections 115(6) and 116(2).
It is also accepted that, because Katerina is one of the personal representatives of the deceased, it is not necessary that she be given formal notice of her right of election: section 16(2).
Although a complaint was made, early in the hearing of the proceedings, that Katerina had not identified with particularity the property of the deceased which she sought to have an election to acquire, during the course of the hearing all parties accepted that her case is directed towards, and confined to, a prospective acquisition of the deceased's interest in the McMahon's Point property: Cf, section 118(1).
Given that all parties acquiesced in a submission that the Court should make a finding about the value of the McMahon's Point property based upon an estimate of value found in the inventory of property attached to the grant of administration made to Katerina and Jack on 15 July 2016, the Court is justified in proceeding on the basis that section 119(5) applies. On any view of individual entitlements, all persons entitled to a share in the deceased's estate (including Max as the expectant beneficiary of a family provision order) may be taken to have waived any requirement that the deceased's administrators obtain a formal valuation of the McMahon's Point property.

Sufficient Cause for an Extension of Time?

Given that Katerina did not give notice of any election (as required by section 118) within the time limited by section 117(1)(b) , and that administration of the deceased's estate has not been completed (so as to engage the second limb of section 117(3)), the focus for attention falls on whether (within the meaning of section 117(2)) " there is sufficient cause" for granting to Katerina an extension of time for the making of an election.
On the facts of the current proceedings, the second limb of the formal note to section 117(2) points in the direction of a grant of extension of time even though (as section 35(2)(c) of the Interpretation Act 1987 NSW confirms) the note is not part of the Succession Act. Sections 34(1), 34(2)(a) and 35(5) of the Interpretation Act 1987 confirm that consideration may be given to the note upon consideration of the meaning of the expression "sufficient cause".
In the context of the Succession Act, that expression can be taken to have a meaning consistent with the meaning generally attributed to the same expression in section 58(2), which governs an extension of time within which to make an application for a family provision order.
In the context of section 58(2), meaning is attributed to the expression "sufficient cause", not by a substitute definition, but by an enumeration of factors generally regarded as relevant to exercise of a discretionary power. Relevant factors are generally said to be: (a) the sufficiency of any explanation of delay; (b) whether there is any prejudice to beneficiaries; (c) whether there has been any unconscionable conduct by the applicant for an extension of time or beneficiaries; and (d) the strength of the applicant's case: Warren v McKnight (1996) 40 NSWLR 390 at 394E; Dare v Furness (1998) 44 NSWLR 493 at 500C; JJK de Groot and BW Nickel, Family Provision in Australia (Lexis Nexis Butterworths, Australia, 5th ed, 2017), paragraph [5.12].
I am content to apply a similar approach to section 117, subject to the qualification that (be it in relation to a family provision application under chapter 3 or in relation to a right of election under chapter 4) the approach of the Court must be tailored to the nature of the right sought to be exercised outside the constraint of a specified time.
In the present proceedings, there has been no formal explanation of Katerina's delay in exercising her right of election beyond a reference to the chronology of unfolding, competing claims to the deceased's estate, and a reference to the pendency of unresolved disputes about the validity of the deceased's will and about entitlements to family provision relief. In the context of the proceedings as a whole, there is here a sufficient explanation of delay.
The crux of opposition to Katerina's application really focuses upon prejudice to beneficiaries (the deceased's twin sons, if not also Max) arising from an increase in value of the McMahon's Point property since the date of the deceased's death - the date by reference to which section 119(1) defines the price for which Katerina might elect to acquire the property.
This is not fatal to Katerina's application for an extension of time because, as all parties agree, section 86 of the Civil Procedure Act 2005 empowers the Court to grant an extension of time on terms and conditions which might allow the respective rights of the parties to be adjusted so as to address any prejudice arising from delay. Section 86 is conceptually consistent with sections 115(3) and 115(4).
It is not suggested against Katerina, or any other party, that there has been unconscionable conduct bearing upon whether or not Katerina should be granted an extension of time within which to make an election.
In circumstances in which there is no dispute as to her status as the deceased's sole "spouse", and she has no need of a grant of authorisation under section 115, Katerina has a strong case for a grant of an extension of time under section 117(2).
Subject to consideration of the terms and conditions (if any) upon which a grant of an extension of time should be made, and consideration of the length of time within which any election must be made, I am minded to grant an extension of time within which Katerina can elect to acquire the deceased's beneficial interest in the McMahon's Point property.

Terms and Conditions attending Grant of an Extension of Time

As to "terms and conditions", there is a means (not unfair to any party) of overcoming claims of prejudice made by the deceased's sons against an extension of time.
In Hoobin v Hoobin, White J determined family provision claims contingent upon a widow's future exercise, or not, of a right to elect to acquire a family home upon administration of an intestate estate. He did so by conditioning prospective orders on whether, or not, the widow was prepared to undertake to the Court that she would not make an election under section 61D of the Wills Probate and Administration Act ( the predecessor of the Succession Act, section 115 et seq). See also Hoobin v Hoobin (No. 2) [2004] NSWSC 953.
In the current proceedings, as a condition of a grant to her of the extension of time she seeks under section 117(2) of the Succession Act, Katerina should be required to give to the Court an undertaking that: 1. any election to acquire property from the deceased's estate will be limited to an election to acquire the deceased's interest in the McMahon's Point property; and 2. upon completion of any purchase of that property from the deceased's estate pursuant to an election made under section 118 of the Succession Act, she will bring to account in favour of the estate an allowance (by payment or otherwise) equal to the difference between the market value of the property at the date of the deceased's death (namely, a fraction of $3,835,310 proportionate to the deceased's 94.8% beneficial share of the McMahon's Point property as a whole) and the agreed, current market value of the property (namely, 94.8% of $5.625 million).

The Duration of an Extension of Time

As to the duration of any extension of time granted to Katerina, several points should be made: 1. first, unlike a grant of extension of time under section 58 of the Succession Act (the duration of which is ordinarily defined by reference to a summons filed seeking both an extension of time to make an application for a family provision order and such an order), an extension of time under section 117 of the Act has no clear, implicit duration. 2. secondly, given the nature of the right sought to be exercised by Katerina (a right of election), any extension of time should be for a period sufficient to allow her a reasonable opportunity to consider whether, or not, an election should be made to purchase the deceased's property. 3. thirdly, given the condition upon which a grant of an extension of time is to be made, and the need for Katerina to consider her position in light of any family provision order made in favour of Max, any extension of time should be for a period which extends beyond the time limited for any appeal from the Court's orders. 4. fourthly, given that the McMahon's Point property is subject to a mortgage in favour of the ANZ Bank, Katerina will need to consider (in light of section 119(2)) the terms upon which liability for the mortgage is to be dealt with. 5. fifthly, it needs to be recognised that Katerina's right to elect to acquire property from the deceased's estate (section 115(1)) is accompanied by a corresponding right (recognised in section 118(5)) to revoke an election to acquire property. 6. sixthly, there may be other factors not presently within the Court's knowledge that need to be taken into account by Katerina in making an election to acquire, or not to acquire, property of the deceased pursuant to a right conferred by the Succession Act.
Taking these factors into account, and reserving to all affected parties an opportunity to be heard before final orders are made, I incline to the view that (subject to further orders of the Court in the event that interlocutory orders are necessary to accommodate an appeal) an extension of time should be granted for a period of three months after the date upon which the Court's orders are made.

Formal Findings and Parameters of Dispute

As earlier noted: 1. Max's application for a family provision order was made within time: Succession Act, section 58(2). 2. it is common ground that: 1. Max has standing to apply for family provision relief because he is an "eligible person" within the meaning of section 57(1)(e): Succession Act, section 59(1)(a). 2. there are factors which warrant the making of a family provision order in favour of Max as a stepson of the deceased who was raised by the deceased as his own child: Succession Act, section 59(1)(b). 3. as a young man without substantial assets, but a disappointed expectation of a one-third share in the deceased's estate, Max has been left without adequate provision for his proper maintenance, education and advancement in life: Succession Act, section 59(1)(c). 4. upon an application of section 58(2) of the Succession Act, the Court should make some form of family provision order in favour of Max. 1. all parties agree that the superannuation fund, of which the deceased was a member, held by a corporate trustee (presently controlled by Katerina and Jack as administrators of the deceased's estate) is available for designation as notional estate of the deceased if the Court determines that such an order is appropriate in all the circumstances.
The core questions in dispute on Max's family provision application are: First, what measure of relief should be granted to Max; secondly, who should bear the burden of the relief granted to him?

The Deceased's Superannuation Entitlements

An incidental feature of this disputation is a contest about who is, or should be held to be, entitled to the "death benefit" payable (under rule 13 of rules which form part of the deed governing the deceased's superannuation entitlements, Exhibit P10) in respect of the death of the deceased as a "member" of the superannuation fund.
It is common ground that there is no evidence that the deceased left a binding death benefit nomination (under rule 13(a)) the effect of which, if one existed, would be (under rule 13.4(a)) to require the trustee to pay the deceased's death benefit in accordance with his direction.
Nor is there any evidence of a non-binding nomination (under rule 13.3(b)) which might be taken into account in decision making about the identity of the person, or persons, to whom the deceased's death benefit should be paid.
So far as is material, rule 13.4(b) provides that "the Trustee alone shall have the power to decide which of the Member's Dependents (if any) and/or legal personal representative shall be paid the death benefit and the proportion payable to each such person.".
Rule 1.20 provides the definition of "Dependant ": "'Dependant' means, at the time of the member's death or other relevant time: a. the Spouse and any child of a Member; b. any other person who, in the opinion of the Trustee, was wholly or partially dependent on the Member in any way recognised by or under [the Commonwealth legislation governing the superannuation fund] for the purposes of ascertaining dependency; and c. any person with whom the Member has an Interdependency Relationship [a concept defined by that legislation]".
Max and his stepbrothers Jack and Lewis contend that, upon the proper construction of rule 13.4(b), read with rule 1.20, the Trustee has a discretion to distribute the deceased's death benefit, in such proportions as it thinks fit, to the administrators of the deceased's estate, Katerina, Jack and/or Lewis.
Katerina contends that the Court should treat the whole of the deceased's superannuation entitlement as being payable to her because, in the context of the Commonwealth's legislation and determinations of the Australian Taxation Office, the only person who can properly be characterised as a "dependant" of the deceased without attracting adverse taxation consequences is Katerina as the deceased's spouse.
Max and his stepbrothers respond to that contention by submitting that: (a) although it may be accepted that payments made from the deceased's superannuation fund may be taxed at different rates in the hands of different beneficiaries, it is not possible on the present state of the evidence for the Court, fairly, to make a finding as to who might or might not be a "dependent" or "non-dependant" for the purpose of the Income Tax Assessment Act 1997 Cth; (b) in any event, the Income Tax Assessment Act 1997 specifically contemplates death benefits being paid to both a "non-dependant" and a "dependent" (as defined in the Act); (c) to the extent that a distribution of a death benefit is made to a "non-dependant", any tax is payable by the recipient of the payment, not by the superannuation fund or the estate of the deceased; (d) the possible tax consequences of a decision made by the Trustee about payment of the deceased's death benefit do not control the construction of the deed (or rules) governing the fund; (f) the fund is available to be designated as notional estate; and (g) there is no restriction on the Court's power to designate the fund as notional estate and to order that provision be made from the fund to an eligible person, regardless of whether that person is (or is not) a discretionary object of the fund.
I accept, and act upon, the submissions of Max and his stepbrothers. Whatever may be the taxation consequences of a decision made by the Trustee under rule 13.4(b) about payment of the deceased's death benefit, the potential payees are Katerina, Jack and Lewis. They fall within the definition of "dependant" in rule 1.20. As a stepson of the deceased by his first marriage, Max does not. In any event, the death benefit payable upon the death of the deceased is, as the parties have agreed, available for designation as notional estate of the deceased.

Designation of Superannuation Entitlements as Notional Estate

The agreement of the parties that the deceased's superannuation entitlement is available for designation as notional estate may relieve the Court of an obligation to articulate full reasons for the making of a designation order; but it does not relieve the Court of an obligation to be satisfied that the statutory preconditions for the making of a designation order have been satisfied.
Taken step-by-step, the path necessary to be taken before the Court can make an order for the designation of property as notional estate, followed by a family provision order (and, if appropriate, an order for the payment of costs) charged against notional estate, is a tortuous one. In the circumstances of the present proceedings, that leads one through the following provisions of the Succession Act: sections 63(5), 73(2), 74, 75(1), 76(1), 76(2)(e), 77(1), 78, 80(1), 80(2)(c), 80(3)(a), 83, 84, 86, 87, 88(c) and 89.
A point at which some hesitancy is required upon an application of these provisions, is embodied in sections 87, 88 and 89, particularly in section 88(c).
Section 87 provides that the Court must not make a notional estate order unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved in making or refusing to make the order; and (c) any other matter it considers relevant to the circumstances.
Section 89(2) provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made by a family provision order or, if the Court makes an order that costs be paid from notional estate under section 99 of the Succession Act, to allow costs to be paid as ordered, or both.
With those counsels of caution, section 88 is in the following terms (with emphasis added): "88. ESTATE MUST NOT BE SUFFICIENT FOR PROVISION OR ORDER AS TO COSTS The Court must not make a notional estate order unless it is satisfied that: (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances".
Section 88(a) does not apply because the deceased left an ample estate.
Section 88(b) does not apply because the amplitude of the deceased's estate is such that it could not be held to be "insufficient" for the making of orders reasonably in contemplation in these proceedings.
The first limb of section 88(c) has no application to the facts of the case. There are no persons other than Max relevantly entitled to apply for family provision orders. No application was made by Lisa or Siegfried within the time limited by section 58(2) of the Succession Act. Jack and Lewis discontinued their applications, and disclaimed any intention to advance an application. Having succeeded in establishing that the deceased died intestate, Katerina can be taken also to have disclaimed her application. Only Max remains as an applicant for a family provision order.
To make an order for designation of the deceased's superannuation entitlements as notional estate, the Court must be satisfied (as section 88(c) of the Succession Act requires) that "there are special circumstances".
The parties' agreement that a designation order can be made goes some way to establishing "special circumstances"; but, by itself, it is not enough. I am, however, prepared to find "special circumstances" based not only on that agreement, but also upon: (a) the desirability of not charging the McMahon's Point property unnecessarily with the burden of a family provision order in circumstances in which Katerina was encouraged by the deceased to believe that she could continue to live there, and she may exercise her right of election to purchase that property; and (b) recognition that management of the corporate trustee of the superannuation fund by the administrators of the deceased's estate is deadlocked so as to preclude any orderly decision being made about payment of the deceased's superannuation entitlements; (c) the fact that designation of those entitlements as notional estate will not only provide property against which a family provision order and costs can be charged but also serve an incidental purpose of facilitating the due administration of the deceased's estate by breaking the administrators' deadlock.
For these reasons, subject to allowing the parties an opportunity to be heard as to the form of orders to be made, I propose to order that any and all benefits payable by the Trustee consequent upon the death of the deceased be designated as notional estate of the deceased so far as may be necessary for the purpose of a family provision order to be made in favour of Max, and for the purpose of any order that costs of the family provision proceedings before the Court be paid out of the deceased's notional estate.

Quantification of Max's Family Provision Relief

Upon a consideration of what measure of family provision relief should be made for Max, the task for the Court is not one (as suggested on his behalf) of simply noting that he was treated equally with his stepbrothers under the deceased's will, noting that they will receive substantial benefits as beneficiaries of the deceased's intestate estate, and framing orders designed to grant to him relief approximately equal to their entitlements on intestacy.
Revoked by marriage, the deceased's will of January 2014 provides at best an uncertain guide to quantification of family provision relief measured against the competing entitlements of Katerina, Jack and Lewis at the present day.
Candidly quantified by his counsel, Max's claim for family provision relief is, essentially, that he be granted the whole of the deceased's superannuation entitlements.
Considerations of expediency (based upon a supposition that Max, Jack and Lewis should receive approximately the same measure of benefit from the deceased's estate) may point in that direction. However, it is not open to the Court to proceed so summarily to an outcome.
Nevertheless, the competing cases advanced by Max and Katerina may not be so far apart. Putting a figure on Max's claim, his counsel proposed the sum of $750,000 "or more". In his submissions, Katerina's counsel suggested that Max might possibly receive $600,000.
In approaching the question for which section 59(2) of the Succession Act provides, the Court must endeavour to place itself in the position of the deceased, and to consider what he ought to have done in all the circumstances of the case, in light of facts now known, treating him as wise and just, rather than fond and foolish (In Re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSW LR 656) and, generally, consulting the criteria set out in section 60(2) of the Act so far as they may be material.
Section 59(2) of the Succession Act implicitly relates back to the concept of "adequate provision for proper maintenance, education and advancement in life" found in section 59(1)(c) of the Act. Section 59(2) provides as follows: "The Court may 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."
Although this provision refers only to the "estate" of a deceased person, section 63(5) of the Succession Act provides that a family provision order can be made in relation to property that is not part of an estate if it is designated as notional estate, and section 73(2) provides that Part 3.2 of the Act (which includes sections 57-60) applies to property designated as part of the notional estate of a deceased person in the same way as it applies to property that is part of his or her estate.
The concepts of "adequate" and "proper" found in section 59(1)(c) of the Succession Act, and implicitly relevant to section 59(2), are relative to the facts of the particular case: Scales Case (1962) 17 CLR 9 at 19.
Upon an assessment of what, in a particular case, is "adequate" provision for the "proper maintenance, education or advancement in life" of an applicant for family provision relief, the Court needs to have regard to competing claims upon the bounty of the deceased and their relative urgency, the standard of living the deceased's family enjoyed in his or her lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the deceased's ability to meet such claims having regard to the size of his or her were resources: McCosker v McCosker (1957) 97 CLR 566 at 571-572.
It is not necessary to traverse expressly each of the section 60(2) factors so far as they bear upon Max's claim for relief. He had a close and loving relationship with the deceased: section 60(2)(a). As a young 30 year-old, he has but limited financial resources: sections 60(2)(d) and (g). He has struggled with stress, anxiety and depression (in part, complicated by a marijuana addiction he claims now to have overcome) since the breakdown of the deceased's first marriage: section 60(2)(f). In common with his brothers, he received support from the deceased during the deceased's lifetime (section 60(2)(i)), including payment of tertiary education expenses and provision of a car. Independently of the deceased's will there is evidence, in the form of Katerina's testimony, that the deceased intended that Max should benefit from his estate: section 60(2)(j).
For the past 10 years Max has worked (albeit as a casual employee) for the one employer, doing the best he can, as and when he can, to pursue university studies in the hope of advancing a career in environmental work. He is not without initiative.
On present estimates, but subject to whatever costs orders are made, each of Jack and Lewis will receive approximately $990,000 from the deceased's intestate estate. Katerina will receive about $2.4 million (subject to costs); but, if she is to continue to live in the McMahon's Point property as her family home, she will have to service a bank debt of approximately $900,000 and make arrangements for Jack and Lewis to be paid their due. Her ability to do this depends on her own self reliance as a businesswoman, and (despite some health concerns) continuing good health.
A case put against Katerina is that the Court should take into account the relatively short duration of her de facto relationship with the deceased; the even shorter duration of her marriage to him; the substantial value of her business, part of which was built up with support of the deceased; her own substantial assets; and a reasonable expectation that her business will continue to provide her with a substantial income. There is an element of truth in each of these factors; but they cannot, and should not, be taken into account on an implicit assumption that Katerina bears an onus to justify benefits received from the deceased's estate.
Max bears the onus of proof in establishing his claim for family provision relief, without imposition of any onus on Katerina.
In all the circumstances, I find that a family provision order should be made in favour of Max, in the sum of $750,000, payable out of the notional estate of the deceased; that is, out of the deceased's superannuation entitlement, designated as notional estate.

PROPOSED ORDERS

Subject to allowing the parties an opportunity to be heard about the form of orders to be made (incorporating adjustments, if any, presently in contemplation by the parties), and as to costs generally, I propose to make orders to the effect here set out.
In the proceedings numbered 2017/00141397, I propose to order that the statement of claim (filed by the deceased's brother, Michael John Grant) be dismissed.
In the proceedings numbered 2016/00369836, I propose to make the following orders: 1. ORDER that the claim of the plaintiff (Katerina Grant) to relief under Chapter 3 of the Succession Act 2006 NSW, be dismissed. 2. Upon condition that the plaintiff gives to the Court an undertaking that: 1. any election to acquire property from the deceased's estate will be limited to an election to acquire the deceased's interest in the McMahon's Point property; and 2. upon completion of any purchase of that interest from the deceased's estate pursuant to an election made under Chapter 4, Part 2, Division 2 of the Succession Act, she will bring to account in favour of the estate (by payment or otherwise) an allowance of $2,632,500, 1. ORDER, pursuant to section 117 of the Succession Act, that the time within which the plaintiff may elect (pursuant to section 115(1) of the Act) to acquire property from the estate of the deceased be extended up to and including the date three months after the date upon which the Court's orders are made.
In the proceedings numbered 2016/00371991, I propose to make the following orders: 1. ORDER that the entitlement of the deceased as a member of the David Grant Special Events Superannuation Fund be designated as notional estate of the deceased, so far as may be necessary to allow for a family provision order to be made in favour of the plaintiff (Maximillian Innes Grant) in the terms set forth in order 2 of these orders [and orders for the costs of these proceedings]. 2. ORDER that the plaintiff receive a legacy in the sum of $750,000 out of the notional estate of the deceased.
The parties' estimates of the costs of these proceedings, total $500,000, no small amount.
In inviting the parties to make submissions about costs, I draw to attention the fact (as I presently perceive it to be) that the complexity of the current litigation focused upon the deceased's first family's contention that the deceased's will was revoked by marriage, an issue in respect of which (conformably with section 98 of the Civil Procedure Act 2005 NSW and rule 42.1 of the Uniform Civil Procedure Rules 2005 NSW) costs might be expected to follow the event.
I also draw to attention that sections 78 and 99 of the Succession Act, govern the circumstances in which an order can be made for costs of family provision proceedings to be paid out of the notional estate of a deceased person. Prima facie, Max and Katerina (if not other parties) might be able reasonably to have some part of their costs paid out of the deceased's superannuation entitlement as property designated as notional estate.

ADDENDUM (16 July 2018)

On 5 July 2018 I delivered reasons for judgment published as Re Estate Grant, deceased [2018] NSWSC 1031.
On 12 July 2018 the parties presented submissions as to the form of orders, and costs orders, to be made to give effect to those reasons.
There was no real dispute about the form of the substantive orders to be made. A few drafting suggestions were advanced, but nothing of profound significance.
Controversy was confined to proposed orders for costs. This is not altogether surprising given the interrelated nature of the three sets of proceedings before the Court, and the nature of the contest they embodied. Viewed strategically, the proceedings together were, in substance, a contest between the deceased's first family (on the one hand) and (on the other) his widow, Katerina. The deceased's brother, Michael, and the deceased's three sons (Michael's nephews) played their respective roles apparently conscious of the implications of each tactical decision made in conduct of the proceedings.
These supplementary reasons for judgment (published as an addendum to the principal reasons) explain briefly the rationale for my determination of costs questions.
In dealing with those questions, I am conscious that the three sets of proceedings before the Court were not commenced in the order in which I here deal with them. However, in logical sequence, and perhaps in how the proceedings necessarily came to be viewed by the parties at a final hearing, the probate proceedings should be dealt with first; followed by Katerina's application for an extension of time to make an election to acquire property from the deceased's intestate estate; followed, finally, by Max's family provision application.
In point of fact, Katerina's proceedings were commenced first (on 9 December 2016), and Max's family provision application was commenced shortly thereafter (on 12 December 2016). At the time Max's proceedings were commenced, he was only one of three plaintiffs; his brothers, Jack and Lewis were his co-plaintiffs. On 4 July 2017 Jack and Lewis abandoned their claims for family provision relief and were named as defendants, rather than plaintiffs. Michael's application for a grant of probate was made by a statement of claim filed on 11 May 2017; it took the form of an application for revocation of letters of administration granted to Katerina and Jack on 15 July 2016.
Commencement of the probate proceedings, and the subsequent discontinuance of the family provision applications of Jack and Lewis, post date a private mediation which the Court (on 6 March 2017) ordered be held on 28 April 2017.
An apparently belated decision to propound the deceased's will might, as senior counsel for Katerina submitted, be explained by the first family's hope of taking advantage of statements made by Katerina in her affidavits, if not during the course of the proceedings generally, about conversations between herself and the deceased concerning his testamentary arrangements. I step back from speculation, concentrating on observed facts about the nature and course of the proceedings.
Objectively, the course of the proceedings (evidenced in part by the dates upon which substantive affidavits were sworn or affirmed) may have a bearing upon how, in the absence of agreement, a costs assessor might apportion costs between three sets of proceedings heard together. Come the hearing, the proceedings might be taken to have occupied equal time in presentation. By that time, they were very much interwoven.
On the first family's side of the proceedings, each of the natural persons party to the proceedings, other than Michael, had a personal, commercial interest in the outcome of the proceedings. The proceedings were ostensibly conducted by Michael for the benefit of the deceased's three sons: Max, Jack and Lewis.
I have not been informed whether, or not, Michael protected his own interests vis a vis his nephews, before embarking on a litigious path, by securing from them an indemnity against his exposure to costs liabilities. It was open to him to have done so. It was not incumbent upon him to apply for probate. He could have renounced probate, leaving it to one or more of his nephews to propound the deceased's will if minded to do so. The deceased's sons (the beneficiaries under the will) were no less aware of the existence and terms of the will than was Michael. His intervention masked a strategic shift in the boys' contest with Katerina.
In the probate proceedings (case number 2017/00141397): 1. In my opinion, there should be no departure from the general rule that costs follow the event. The proceedings were essentially adversarial in character. With all three sets of proceedings heard together, all interested parties to the adversarial contest were represented before the Court. Accepting that there is a public interest element in probate proceedings that may warrant a departure from the general rule (Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562 at [5]), the fact remains that all affected persons were before the Court and well able to take responsibility for their conduct of the proceedings in a case in which there was no challenge to the validity of the deceased's will otherwise than by reference to the marriage revocation rule for which the Succession Act 2006 NSW, section 12 provides: 2. There was no challenge to the essential validity of the deceased's will. The broad outline of the factual matrix of the adversarial contest was known to all participants in the proceedings. There was little foundation for an attribution of blame for the proceedings to the deceased, and little need of exposure of facts by forensic investigations. I am unattracted by the proposition that Michael should be relieved of the burden of the general rule (that costs follow the event) by reference to "exceptions", based on Mitchell v Gard (1863) 3 Sw & Tr 275 at 277; 164 ER 1280 at 1281, explained in Gray v Hart; Estate of Harris (No. 2). 3. Michael's exposure to an order for indemnity costs is a function of Katerina's service of an offer of compromise which was marginally better for him than the eventual outcome. The element of compromise, such as existed, related to the question of costs. That fact alone is not a reason for not giving effect to an offer of compromise in probate proceedings - although, I acknowledge, the nature of probate proceedings, with a public interest element in full view, often militates against too literal an application of court rules relating to offers of compromise. In this case, Michael persisted in the conduct of adversarial proceedings from which he was given an opportunity to withdraw on terms better than those likely to be available if (as I hold) the proceedings were essentially adversarial in character. 4. Jack was a necessary party to the probate proceedings because, with Katerina, he was the recipient of a grant of administration which Michael sought to have revoked. In formal terms, he played no active role in the conduct of the probate proceedings, although forensically supportive of Michael's case and, as a beneficiary named in the deceased's will, a beneficiary of Michael's application for a revocation order. There is a consensus that there be no order as to his costs. 5. If and to the extent that Katerina cannot recover her costs from Michael, she should be able to look to the estate of the deceased for their payment (because she defended the proceedings, not only as a person interested in the outcome, but as an administrator of the deceased's estate) and, in that event, the burden of any resort to the estate for costs should be borne by Jack and Lewis (Katerina's co-beneficiaries), in whose interests (together with the interests of Max) Michael unsuccessfully pursued the proceedings; not by Katerina, who was put to expense in defending them.
In Katerina's proceedings (case number 2016/00369836): 1. Katerina was successful in obtaining an order for an extension of time within which to acquire property from the deceased's intestate estate, but at the cost of an undertaking on her part to bring into account the current value of the property to be acquired. That undertaking enures for the benefit of Jack and Lewis in the administration of the deceased's estate, if not also for Max in formulation of the family provision relief granted to him. 2. There are two factors that might tell against making an order for Katerina's costs to be paid out of the deceased's estate. The first is that her application for an extension of time was, on one view, an application for the grant of an indulgence consequent upon her own delay. The second is that the success she enjoyed was accompanied by dismissal of her application for family provision relief. In their litigious setting, neither provides a sufficient reason for denying Katerina the benefit of an order for costs. Her application for an extension of time was an incident of administration of the estate. It was opposed. At the final hearing she readily submitted to a requirement that a grant of an extension of time be conditional upon bringing current value to account. Dismissal of her family provision application was a formal consequence of her success in the probate proceedings. 3. As a co-administrator of the deceased's estate, Jack was a necessary party to the proceedings. It is appropriate, given the respective roles of Katerina and Jack, that he be awarded costs on the indemnity basis and she be awarded them on the ordinary basis. 4. Grantrust Pty Ltd was a formal party to the proceedings. Its role as trustee of the David Grant Special Events Superannuation Fund was implicit throughout the proceedings. However only at the proceeding's conclusion was it joined as a party. It is appropriate that no orders as to costs be made in respect of it. No contrary submission has been made.
In Max's family provision proceedings (case number 2016/00371991): 1. As a successful plaintiff for family provision relief, Max could reasonably expect the benefit of the usual form of order, that his costs be paid out of the estate or notional estate of the deceased on the ordinary basis. 2. As Max's contradictor, and an administrator of the deceased's estate, Katerina could reasonably expect to receive the benefit of the usual order for an administrator, that her costs be paid out of the estate or notional estate of the deceased on the indemnity basis. 3. Much the same might be said for Jack, subject to the observation that, at the commencement of the proceedings he was a plaintiff rather than a defendant. Only upon becoming a defendant did his role as an administrator emerge. In fact, he remained sympathetic to Max's cause, leaving opposition to Max's claim to Katerina. Nevertheless, he was a necessary party to the proceedings and the necessity of his joinder as a defendant should be accommodated with the usual costs order made in favour of an administrator. That said, upon an assessment of his costs, his costs referable to these proceedings might not be significantly greater than costs appropriate to a submitting appearance. That is a question I am content to leave to a costs assessor, if a formal assessment be required. 4. Lewis migrated from the plaintiffs' side of the record to that of the defendants with Jack. However, although it was not inappropriate for him (as a beneficiary) to be made a defendant, he was not a necessary party to the proceedings; and, given his alignment with Max's interests, he played no real role as a contradictor to Max's claim. In those circumstances, it is appropriate that there be no orders made as to his costs. 5. Grantrust Pty Ltd, again, was but a formal party joined at the end of the proceedings. It is appropriate that there be no order as to its costs in these proceedings for that reason, as was the case in Katerina's proceedings.
There was no opposition to the costs of both sets of family provision proceedings (namely, those of Max and Katerina) being paid out of the notional estate of the deceased, so far as notional estate is available for that purpose. The common expectation of all parties is that, after payment of the provision made for Max out of the notional estate and some of the costs of the proceedings, the deceased's superannuation entitlement will be exhausted.
Implicit in an order that Max's provision be made out of the notional estate of the deceased, coupled with orders for the payment of costs out of the notional estate or estate of the deceased, is a direction that the provision for Max out of notional estate take precedence over the payment of costs out of notional estate, leaving any shortfall in costs to be paid out of the deceased's estate.
Accordingly, I make the following orders and notations in final disposition of the proceedings before the Court:

(A) The Probate proceedings (Case No. 2017/00141397) 1. ORDER that the statement of claim be dismissed. 2. ORDER that the plaintiff (Michael John Grant) pay the costs of the first defendant (Katerina Grant): 1. up to and including 12 September 2017, on the ordinary basis; and 2. thereafter, on the indemnity basis. 1. NOTE that no orders are made as to the costs of the second defendant (Jack Spencer Grant). 2. ORDER that, to the extent that the first defendant's costs are not recovered from the plaintiff, they be paid out of the estate of the deceased, and be borne by the interests of the second defendant and Lewis McNeill Grant as beneficiaries of the estate. 3. RESERVE to all parties liberty to apply for consequential relief in the working out of these orders or those made in the proceedings respectively numbered 2016/00369836 and 2016/00371991.

(B) Katerina's proceedings (Case No. 2016/00369836) 1. ORDER that the claim of the plaintiff (Katerina Grant) to relief under chapter 3 of the Succession Act 2006 NSW, be dismissed. 2. NOTE that the plaintiff gives to the Court an undertaking that: 1. any election to acquire property from the deceased's estate will be limited to an election to acquire the deceased's interest in the property known as 12 Queens Avenue, McMahon's Point in the State of New South Wales; and 2. upon completion of any purchase of that interest from the deceased's estate pursuant to an election made under Chapter 4, Part 2, Division 2 of the Succession Act 2006, she will bring to account in favour of the estate (by payment or otherwise) an allowance of $2,632,500. 1. Upon that undertaking, ORDER, pursuant to section 117 of the Succession Act, that the time within which the plaintiff may elect (pursuant to section 115(1) of the Act) to acquire property from the estate of the deceased be extended up to and including three months after the date upon which these orders are made. 2. RESERVE to the parties liberty to apply for directions in administration of the estate of the deceased in the event that the plaintiff does not elect to acquire the property known as 12 Queens Avenue, McMahon's Point. 3. NOTE the order made today, in the proceedings numbered 2016/00371991, for designation of property as notional estate of the deceased. 4. ORDER that the plaintiff's costs, calculated on the ordinary basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased. 5. ORDER that the costs of the first defendant (Jack Spencer Grant), calculated on the indemnity basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased. 6. NOTE that no orders are made as to the costs of the second defendant (Grantrust Pty Ltd). 7. NOTE that it is agreed between the parties that: 1. the estate of the deceased is liable to the David Grant Special Events Superannuation Fund for 50% of the mortgage repayments made by the Fund in respect of the property known as 12 Queens Avenue, McMahon's Point; and 2. the plaintiff is liable to the David Grant Special Events Superannuation Fund for the remaining 50% of the mortgage repayments made by the Fund in respect of the property known as 12 Queens Avenue, McMahon's Point. 1. RESERVE to the parties liberty to apply for orders for the taking of accounts (for the purpose of determining the amounts which the estate of the deceased and the plaintiff respectively are liable to pay to the David Grant Special Events Superannuation Fund in respect of the mortgage over the property known as 12 Queens Avenue, McMahon's Point) and for consequential relief. 2. RESERVE to all parties liberty to apply for consequential relief in the working out of these orders or those made in the proceedings respectively numbered 2016/00371991 and 2017/00141397.

(C) Max's Family Provision proceedings (Case No. 2016/00371991) 1. ORDER that the entitlement of the deceased as a member of the David Grant Special Events Superannuation Fund be designated as notional estate of the deceased, so far as may be necessary to allow for a family provision order to be made in favour of the plaintiff (Maximillian Innes Grant) in the terms set forth in order 2 of these orders and for orders made for the costs of these proceedings and the related proceedings numbered 2016/00369836. 2. ORDER that provision be made for the plaintiff, out of the notional estate of the deceased, by way of a lump sum of $750,000 as the first charge on the notional estate. 3. ORDER that the costs of the plaintiff, calculated on the ordinary basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased. 4. ORDER that the costs of the first defendant (Katerina Grant), calculated on the indemnity basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased. 5. ORDER that the costs of the second defendant (Jack Spencer Grant) from 4 July 2017, calculated on the indemnity basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased. 6. NOTE that no orders are made as to the costs of the third and fourth defendants (respectively, Lewis McNeill Grant and Grantrust Pty Ltd). 7. RESERVE to all parties liberty to apply for consequential relief in the working out of these orders or thosemade in the proceedings respectively numbered 2016/00369836 and 2017/00141397.

The notations made in paragraphs 9 and 10 of the orders made in Katerina's proceedings are made in those proceedings, rather than (as counsel for the first family suggested) the probate proceedings, because Grantrust Pty Ltd is a party to the former, not the latter. If there is to be an order for accounts, all affected parties should be in the mix.
As a general precaution, liberty to apply for consequential relief in the working out of orders made in any or all of the proceedings is reserved. That is appropriate given the interconnectedness of the proceedings and the fact that, by an earlier order of the Court made with the consent of the parties, the proceedings were heard and determined together.

Amendments 06 July 2018 - Cover Sheet, Armstrongs Solicitors amended to Armstrong Legal 16 July 2018 - Addendum (16 July 2018) 08 August 2018 - Paragraph 170 amended to read s115(6) and s116(2). 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: 08 August 2018

In Re Allen [1922] NZLR 218 In the Will of Page [1969] 1 NSWR 471; (1969) 90 WN (NSW) (Pt 1) 6 Layer v Burns Philp Trustee Co Ltd(1986) 6 NSWLR 60 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker (1957) 97 CLR 566 Mitchell v Gard (1863) 3 Sw & Tr 275 Permanent Trustee Co Limited v Milton (1995) 39 NSWLR 330 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re Barker I [1995] 2 VR 439 Re Estate of O'Brien (Dec'd) (2011) 4 IR 687; Re Estate Wilson, deceased (2017) 93 NSWLR 119 Re Fulop (1987) 8 NSWLR 679 Schneider v Sydney Jewish Museum Inc. [2008] NSWSC 1331 Singh v Singh [2008] NSWSC 715 Steel v Ifrah [2013] VSC 199; 38 VR 186 Warren v McKnight (1996) 40 NSWLR 390 Texts Cited: NSW Law Reform Commission in Report 47 (1986) - Community Law Reform Program: Wills-Execution and Revocation , paragraphs 9.20-9.21 MS Willmott SC and CP Birtles, "Testamentary Dispositions - Wills and Codicils" (2016) 43 Australian Bar Review 62 at 82-83 Law Reform Commission Report 47, 9.20 De Groot and BW Nickel, Family Provision in Australia (Lexis Nexis Butterworths, Australia, 5th ed, 2017), paragraph [5.12] NSW Law Reform Commission, Report 116 (Uniform Succession Laws: Intestacy, April 2007), paragraph 5.21. Cf, paragraphs 5.64 and 5.77 Category: Principal judgment Parties: Proceedings 2016/00369836 Plaintiff: Katerina Grant (nee Pitsikas) First Defendant: Jack Spencer Grant Second Defendant: Grantrust Pty Ltd ACN 065 306 756

A Will made in contemplation of a particular marriage : Succession Act, section 12(3)

Section 12 of the Succession Act is and was at all material times in the following terms (with emphasis added): "12. Effect of marriage on a will (1) A will is revoked by the marriage of a testator. (2) Despite subsection (1), the following are not revoked by the marriage of the testator: (a) a disposition to the person to whom the testator is married at the time of his or her death, (b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death, (c) a will made in the exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised. (3) A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned. (4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator."
Section 12 is in substantially the same terms as its predecessor (the Wills, Probate and Administration Act 1898 NSW, section 15) at the time of its repeal.
Section 12 of the Succession Act (and section 15 of the Wills, Probate and Administration Act 1898) reflect three stages of development of Anglo-Australian law.
First, section 15 initially provided that "[every] will made by any person shall be revoked by his [or her] marriage…". This provision (now found in section 12(1) of the Succession Act) can be traced back to the English Wills Act 1837 (1 Victoria chapter 26, section 18), expressly adopted in NSW, in 1840, by (1839) 3 Victoria No. 5. By adoption of the English legislation, the NSW Parliament ostensibly abolished an earlier "doctrine of implied revocation of wills by change of circumstances" developed in England (and, semble, assumed to have been received as law in NSW) under the general law, substituting the narrower rule of revocation of a will by marriage.
A convenient, if not authoritative, exposition of the old "doctrine" can be found in the NSW Law Reform Commission Report (Report 47 (1986) - Community Law Reform Program: Wills - Execution and Revocation) which recommended amendments to section 15 of the Wills Probate and Administration Act (which, in due course, became section 12 of the Succession Act). Omitting footnotes, paragraphs 9.2 and 9.3 of the Commission's Report were in the following terms: "[9.2] By the seventeenth century, under the general and ecclesiastical law of England, marriage in certain circumstances had the effect of revoking a will. A woman's will was revoked by her marriage, because the law stated that on marriage she lost her capacity to make a new will or to change an earlier will. However a man's will was not revoked merely on marriage, because his wife, not being [the husband's] heir at common law, could not benefit by the revocation of his will. In the case of men, wills were only revoked by subsequent marriage coupled with the birth of children of that marriage. It was considered that the birth of a child caused such a change in a man's domestic circumstances that it was presumed by the law that he intended to revoke his prior will. The rule was evolved in order to protect his heir, not his wife. If a man married and then made a new will, the subsequent birth of children did not revoke that will, as it was assumed that it was made in contemplation of there being children to the marriage. When a man's will or marriage settlement provided for future children, the will was not revoked by the subsequent marriage and birth of children. These rules relating to revocation were initially confined to personal property, but finally in 1771 it was held that they also applied to real property. [9.3] For a considerable period the ecclesiastical courts held that the rules relating to the revocation by marriage of wills of males only constituted a presumption that could be rebutted on proof of a contrary intention. However, the common law and equity courts took the view that the presumption was absolute and irrebuttable. Finally, it was established in Marston v Roe (1838) 7 Ad & El 14 at 58; 112 ER 742 at 758 that the presumption could not be rebutted by contrary evidence. Tindal CJ pointed out: '[it is] a principle of law, of which the foundation [is] a tacit condition annexed to the will itself when made, that it should not take effect if there should be a total change in the situation of the testator's family'."
The old "doctrine" was replaced by what we now recognise as the marriage revocation rule (Succession Act, section 12(1)), itself modified by exceptions. The old "doctrine" could not survive changes in thinking about property law, the law of inheritance generally, the status of women and divorce. Nevertheless, notice should be taken of the fact that the law focused attention on the actual, or presumed, intention of a person vis á vis claims on testamentary bounty associated with obligations of "family".
A second stage of development of the law came to NSW in 1930, when section 15 was amended to introduce an exception to the general marriage revocation rule by including a new subsection 15(2). With emphasis added, it provided that a will "… which is expressed to be made in contemplation of marriage, shall not be revoked by the solemnisation of the marriage contemplated": Conveyancing (Amendment) Act 1930 NSW, section 43(a). This legislation in substance adopted a reform effected by the English Law of Property Act 1925 (15 George V chapter 20), section 177.
The third stage of development of NSW law came in 1989. A new subsection 15(3) was introduced. It provided (with emphasis added) that "[a] will made… in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated: Wills, Probate and Administration (Amendment) Act, 1989 NSW. By the same amending Act, a new section 15(4) was introduced to preserve "a will … expressed to be made in contemplation of marriage generally".
These reforms implemented recommendations made by the NSW Law Reform Commission's Report 47 at paragraphs 9.20-9.21.
The 1989 Act also introduced into the Wills, Probate and Administration Act section15A (the precursor to section 13 of the Succession Act) directed towards revocation by divorce of provision made in a will for a (subsequently divorced) spouse. This reform of the law was recommended by the Law Reform Commission in Report 47, paragraphs 10.16 et seq.
The two types of legislative reform came into operation as a twin package. Two events common in modern society - marriage and divorce - are likely uniquely to bear upon claims upon the bounty of a will-maker. By their very nature, they each require a re-think of testamentary arrangements, failing which succession to property may of necessity have to be governed by general rules of intestacy, or be left to an exercise of discretionary family provision jurisdiction.
When the Succession Act commenced operation on 1 March 2008, it enacted as chapter 2 of the Act provisions (including section 12) relating to the making, alteration, revocation and revival of wills. Those provisions replaced provisions earlier found in the Wills, Probate and Administration Act, renamed the Probate and Administration Act 1898 NSW.
In approaching section 12 of the Succession Act, the parties agree (and I accept) that: 1. the references to "marriage" in the Succession Act, section 12, are references to a marriage registered, or recognised, under the Marriage Act 1961 Cth. 2. a party who alleges that a will was made in contemplation of marriage bears the legal onus of proof on that issue: Steel v Ifrah (2013) 38 VR 186 at [1] and [21]. 3. the expression "in contemplation of" found in subsections 12(3) and 12(4) has the same meaning notwithstanding that each involves a different object of contemplation: Cf, Hoobin v Hoobin [2004] NSWSC 705 at [52]. 4. a testator's silence about a contemplated marriage when giving instructions to a solicitor for a will, and when executing the will, is not determinative of whether the will was or was not made in contemplation of the marriage: Steel v Ifrah (2013) 38 VR 186 at [22]. 5. in the absence of any direct statement by a testator about what was, or was not, in his or her contemplation when making his or her will, the Court must consider the combined or cumulative effect of the whole of the evidence; the overall effect of evidentiary detail is not necessarily the same as the sum total of individual details: Steel v Ifrah (2013) 38 VR 186 at [21].
A "marriage" which is "in contemplation" for the purpose of section 12(3) is a "marriage" which, but for section 12(3), would result in a will being revoked by operation of section 12(1). Section 12(3) refers to a marriage which, at the time a will is made, is a future prospect.
That said, there is force in the following observations made by Dixon J in Steel v Ifrah [2013] VSC 199; 38 VR 186 at [12], here adapted editorially to a NSW setting and with emphasis added: "Marriage is an event that it is commonly understood to naturally affect a testator's intentions about the distribution of his or her estate after death. Undoubtedly, the changing mores of Australian society concerning marriage, divorce, children, blended families and the holding and distribution of wealth and assets motivated the reform, in 1997, of the marriage revocation rule [in line with the provisions now found in sections 12(3)-(4) of the NSW Succession Act]. Where once it might have been expected that a marriage would result in an intention not to distribute to the beneficiaries that had been selected prior to a marriage in order to favour the new husband or wife and the children of the union, the legislature considers it unsafe for the law to now make that assumption. An expectation of a second marriage, or a marriage following a union that resulted in children, may result in an intention to protect the entitlement of the children of that former union, rather than an intention to recognise the claims of or through a new marriage partner. What is important is that there be contemplation of a marriage when determining how, and to whom, one's estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that may apply when it comes into effect that is the mischief".
A return must be made, later in this judgment, to Dixon J's concluding comment about "what is important".
In the present proceedings Max and those who support his cause contend that the deceased's will was not revoked by his second marriage because, at the time he made the will, the deceased had that marriage in mind when, with a backward glance towards his first family, he settled the terms upon which he intended to make testamentary provision for them.
The parties' debate about how section 12(3) of the Succession Act must operate in the factual setting of these proceedings focused attention on differently nuanced expositions of comparable legislation by White J in Hoobin v Hoobin [2004] NSWSC 705 at [34]-[53] and Dixon J in Steel v Ifrah (2013) 38 VR 186, each acknowledging earlier observations of Mahoney JA in Layer v Burns Philp Trustee Co Ltd(1986) 6 NSWLR 60 at 67.
As White J observed in Hoobin v Hoobin [2004] NSWSC 705 at [39] and [44]-[46], Layer v Burns Philp Trustee Co Ltd is authority for the propositions that: (a) to contemplate something does not necessarily import an intention to bring it about; (b) the deceased need not have intended nor understood that his or her contemplation of a particular marriage would preserve his or her will from revocation if that marriage took place; and (c) there is no requirement that a will be made because the deceased proposed a particular marriage, no causal connection being required between the making of the will and the proposal to marry.
As his Honour also observed, the Court of Appeal did not decide what state of mind is sufficient to amount to "contemplation of marriage". That was a topic to which he was required to direct attention.
Sections 15(2) -15(3) of the Wills, Probate and Administration Act were the subject of White J's judgment. However, as those provisions are substantially the same as section 12(3) of the Succession Act, and Parliament did not intend a change in the law governing this topic by enacting the Succession Act, his Honour's observations have direct application in the current proceedings. There is a difference in form between section 15(3) of the Wills, Probate and Administration Act and section 12(3) of the Succession Act insofar as the former refers to contemplation of "a marriage" whereas the latter refers to contemplation of "a particular marriage"; but there is no difference of substance in that terminology. In each statute, the contrast is between contemplation of a particular marriage and (by allusion to a next following subsection) contemplation of "marriage generally".
The essence of White J's reasoning appears in paragraphs [42] and [53] of his judgment, when he made the following observations (with emphasis added): "[42] As a matter of grammar, there is a difference between making a will having contemplated marriage and making a will in contemplation of a marriage. 'In' expresses a relation between the act of making the will and the state of mind of contemplating a particular marriage. This suggests that there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage. The testator must have the marriage in mind when he makes his will, although he need not make the will because he proposes to marry…. [53] In my view the phrase in sections 15(2) and (3) of [the Wills, Probate and Administration Act] 'in contemplation of a marriage' means intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at.…"
In addressing section 13(3)(a) of the Wills Act 1997 Vic (the Victorian equivalent of section 12(3) of the NSW Succession Act), Dixon J reviewed Hoobin v Hoobin [2004] NSWSC 705; noticed that Hoobin v Hoobin was cited with approval in Berry v Bell [2012] WASC 197; and adopted observations made by O'Neill J, in the High Court of Ireland, in Re Estate of O'Brien (Dec'd) [2011] IEHC 327; (2011) 4 IR 687 at [37] .
On the way to adoption of the Irish observations, Dixon J made the following observations of his own (with emphasis added): "[7] It is the requisite state of mind that has to be established [in determining the meaning of 'made in contemplation of a marriage].… All that is required is thoughtful observation or consideration of a prospect, or an expectation, of a marriage. Although an expectation of a possibility of marriage in abstract will not suffice, the precise content of the expression 'a marriage' does not arise for consideration in this case. It is also clear from the statutory language used… that the state of mind is simply contemplation of marriage. It does not extend to contemplation of the relation between a marriage and the validity of a will or contemplation of the continuing validity of a will after a marriage has been solemnised…. [9] There is no suggestion… that the words 'made in' should be read narrowly. A will could be said to be 'made' when it is executed and commences to have legal effect, and in many instances throughout the Wills Act, the word 'made" appears to refer to that moment in time. 'Made' is the past tense and past participle of 'make'. A will is produced by making it, referring to the process by which something is made to be as it is. The execution of the will by a testator is the final step in the process of making a will, the step that creates a legally effective instrument. The word 'made' in the relevant statutory context refers to the entire process of making a will. Contemplation of a marriage when deciding on the terms of the will, that is, the manner of distribution of one's estate on death, produces a will that is made in contemplation of marriage, even if there is no basis to conclude that the marriage was consciously in mind at the time of execution of the will. Equally, a will is made in contemplation of a marriage where the marriage was consciously in mind at the time of execution of the will, but there is no basis to conclude that the marriage was consciously in mind at earlier times in the process. Further, it is not consistent with statutory purpose to encrust the concept of 'made in' with limitations on the process of will making by concentrating on any specific event in that process. [10] The broader context in which the marriage revocation rule operates relevantly explains why that is so. The process of making a will commences with contemplation, whether arising from the advice of another or from self-reflection, of the need to make, or adjust, a statement of the intended distribution of one's estate on death. What the [Wills] Act requires is that there be contemplation of a marriage during that process, but not necessarily a continuously conscious contemplation, or a contemplation that is evident at the time of execution of the will. If that were required, the legislature could have so stated. The statute requires a lesser connection or relation between the prospect of expectation of marriage and the making of the will by not using the verb form, 'when contemplating', and by not identifying the point in the process of making a will when that contemplation must occur. So much is I think clear from the statutory language and contexts. Possibly, the verb form, had it been used, might have suggested a relation between making and contemplating that needed to be closer in time to execution or be continuous in the process. [11] A testator may determine how, and to whom, his or her estate is to be distributed before consulting with and instructing a solicitor to draw up the necessary instrument. A testator may first formulate his or her instructions, or change them, after receiving advice from the solicitor. These are the moments in the process of making a will that most relevantly relate to the purpose of having regard to contemplation of a marriage. The time of execution may be less significant because it may be regarded by the testator as a formality. In each case, when, in the process of will making, the testator should have in mind the prospect or expectation of a marriage will depend on the circumstances. The statutory language does not constrain the Court's consideration of the whole process of will making. [12] … what is important is that there be contemplation of a marriage when determining how, and to whom, one's estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that it may apply when it comes into effect that is the mischief. [13] It must appear probable that the testator gave thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making the will. A mere consciousness of a possibility of marriage in the future will not suffice but all that need be contemplated is a marriage, which must involve a particular person. The testator need not have any particular intention or contemplation about the future validity of the will, or the relation between the marriage and the validity of the will."
With that background, Dixon J (at [18]) expressly adopted the following observations of O'Neill J in Re Estate of O'Brien (Dec'd) (2011) 4 IR 687 at [37] (here editorially adapted, with emphasis added), which he described as an analysis both apposite to the terms of the Victorian legislation and persuasive: "It is sufficient, in my view [O'Neill J observed], if the evidence establishes that when the will was made, the testator actually had or must have had in contemplation a marriage to a particular person. To require an intention that the will continues to have effect after the marriage in question exceeds what the language of the section expresses and would, in effect, involve an addition to the section. [The Irish legislation, section 85(1) of the Succession Act 1965] does not expressly say that 'contemplation' in the context of [the legislation] means an intention that the will would continue to have effect after marriage. Nor can it be said that such a construction of [the legislation] is warranted as a necessary or obvious implication from the language used in [the legislation]. It is noteworthy that the language used in [the legislation] does not mention the word 'intention' at all, let alone any specific intention. [The legislation] adopts the much broader concept of 'contemplation' which persuades me that the legislative intent was that a testator would merely bear in mind or have regard to a particular forth coming marriage."
There is a tension between Dixon J's adoption of these observations and what he wrote in paragraphs [12]-[13] of his judgment, extracted above. His own exegesis of the concept of a will "made in contemplation of marriage" is closer to White J's than to that of O'Neill J.
To the extent that there is any difference of approach between White J's exposition of the law and that of Dixon J by reason of Dixon J's adoption of O'Neill J's observations, White J's formulation of the law is to be preferred.
His Honour's analysis was undertaken in the context of NSW legislation substantially the same as now operates. The questions with which he grappled were similar to those at the core of the current proceedings: Was a will made in contemplation of marriage? In the administration of an intestate estate, what flowed from a spouse's statutory right to elect to acquire a family home? What, if any, family provision relief should be granted? How do the various elements of probate law, estate administration and family provision jurisdiction fit together in administration of a contested estate?
Section 15 of the Wills Probate and Administration Act was in substantially the same terms as section 12 of the Succession Act now is. The statutory rules of intestacy changed between one Act and the other, but not in respects presently material. The Family Provision Act 1982 NSW was not materially different from what is now found in chapter 3 of the Succession Act.
This is important because section 12 of the Succession Act must be construed, and allowed to operate, as part of a broader legislative regime governing the law of succession.
O'Neill J's observations were made for the purpose of distinguishing Irish law from English law in a legal system which differs from that found in NSW.
In a concluding part of paragraph [37] of Re Estate of O'Brien (Dec'd) not quoted in Steel v Ifrah (2013) 38 VR 168 at [18] O'Neill J wrote the following: "In this context, of course, it must not be forgotten that the Succession Act 1965 introduced a number of important safeguards for spouses, specifically section 111, which gives a spouse a legal right to one half of the estate if there are no children, and one-third if there are children. This statutory right, to a very large extent, replaces and achieves the policy objective underpinning the revocation of a will by a subsequent marriage, as enacted in section 18 of the [English] Wills Act 1837, namely, to protect the position of dependent spouses in the event of the death of the other spouse having made a will prior to marriage which fails to make adequate provision for the dependent spouse."
Section 85(1) of the Irish Succession Act 1965 provided that: "[a] will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not".
This terminology is not materially different from that found in sections 12(1) and 12(3) of the NSW Succession Act, but the context in which the Irish and NSW provisions fall to be construed is different.
In giving to the expression "a will made in contemplation of that marriage" a broad construction, O'Neill J was mindful that the Irish legislation reserved a fixed portion of a testator's estate for a spouse whatever the outcome of an application of the marriage revocation rule. It is not necessary to dwell on other provisions of the Irish Succession Act which allowed a spouse's "legal right" under section 111 to be renounced or qualified in various ways. It is sufficient to notice that section 112 of the Act provided that that legal right "shall have priority over devises, bequests and shares on intestacy."
If (as I find) section 12 of the NSW Succession Act is to be construed in the context of the Act as a whole, these marked differences between the Irish legislative regime and that for which the NSW Act provides deprive O'Neill J's observations of persuasive value they might otherwise have had.
In the NSW context, care needs to be taken not to downplay too much the concept of "intention" upon an analysis of exceptions to the rule that a will is revoked by marriage. The concept of "intention" lies at the heart of disposition of property by will, and it is no less important to an assessment, generally, of whether a will, once made, is revoked by an act of a will-maker. Whether, and to what extent, execution of a testamentary instrument or other conduct of a will-maker revokes an earlier testamentary instrument generally depends on the intention of the will-maker as ascertained from the later instrument, or conduct, and all surrounding circumstances: In the Will of Page [1969] 1 NSWR 471 at 474-475 and 477; (1969) 90 WN (NSW) (Pt 1) 6 at 10-11 and 14; Re Barker [1995] 2 VR 439 at 445-448; Singh v Singh [2008] NSWSC 715 at [31]-[35]; Schneider v Sydney Jewish Museum Inc. [2008] NSWSC 1331 at [106]-[110]; Fawcett v Crompton [2010] NSWSC 219 at [23]-[26]. Coherence in exposition, and development, of the law compels an appreciation of the role played by "intention" in testamentary dispositions.
The NSW Law Reform Commission Report (Report 47), which introduced the reforms which subsequently found expression in section 12(3) of the Succession Act, implicitly cautions against downplaying the language of "intention" in this area of the law, bearing in mind the law's general policy concern to give effect to the actual intentions of a will-maker where clearly evidenced.
The recommendations made (in paragraph 9.21 of the Report) for what subsequently became sections 12(3) and 12(4) of the Succession Act were in the following terms (with emphasis added) : "(a) Section 15 of the Wills, Probate and Administration Act, 1898 should be amended so as to provide that a will made in contemplation of a marriage, whether or not that contemplation is expressed in the will, shall not be revoked by the solemnisation of the marriage contemplated. This would allow extrinsic evidence to be given of the testator's intention to exclude the general rule [that a will is revoked by marriage]. Such a provision would entrench… recent judicial developments… and extend them in that the will itself need contain no indication of the relevant intention. We consider that to allow extrinsic evidence only for the purpose of 'construing' some provision in the will is unduly restrictive and encourages fine and unreal distinctions. This comparatively liberal approach to extrinsic evidence is in line with the views elsewhere expressed in this report…, and indicates that we consider that a modern court is quite able to deal with disputed issues of fact of this nature in the comparatively few cases that will arise. To require evidence of the necessary intention invariably to be found in the will would, in our view, operate on occasions to defeat the actual and provable intentions of certain testators.… (b) Section 15 should also provide that a will expressed to be made in general contemplation of marriage shall not be revoked by the solemnisation of a marriage. This would mean that a testator who is shown to have turned his or her mind sufficiently to the matter to have intended that the will should survive a particular marriage or marriage generally and express this intention in the will should not have that intention defeated by the general rule. The present exception is confined to an expressed contemplation of a particular marriage. The main thrust of many of the proposals contained in this Report has been to effectuate the actual intentions of testators where they are clearly evidenced. The Family Provision Act 1982 [now replaced by chapter 3 of the Succession Act] should be the vehicle whereby such intentions are liable to be set aside, not a rule as to automatic revocation which is so framed as to allow some types of proved intention to be effectuated and other types to be frustrated. We have however, in this particular recommendation, continued the old requirement that the contemplation should be expressed in the will itself. The reason is that it might otherwise be possible to negate the general rule in virtually all cases, particularly where younger single testators are involved, simply by showing that, in a vague sense, the testator contemplated that he or she might get married some time."
In making these recommendations, the Law Reform Commission bowed to community pressure to retain the general rule (now found in the Succession Act, section 12(1)) that a will is revoked by marriage. Its recommendation to retain the rule was justified (in paragraph 9.20 of Report 47) by reference to the following reasons (with emphasis added): "Marriage represents a fundamental change in a person's life and the new personal and financial responsibilities acquired on marriage are likely to render inappropriate all or some of the provisions contained in an earlier will. It is therefore likely that upon marriage a testator would wish to revoke an earlier will, if he or she thought about the matter. If the will is not revoked automatically, those close relatives who would take on intestacy need to make a claim under the Family Provision Act, 1982 [now, the Succession Act, chapter 3]. To many non-lawyers litigation is a fearful prospect. To all, it is fraught with uncertainty. It should be remembered that the entire burden of costs of litigation under the Family Provision Act, 1982 is usually borne by the estate. Most estates of married persons are comparatively small and consist of little more than the matrimonial home. Whilst some beneficiaries under wills revoked by marriage will be unable to bring claims under the Act (notably charities), most who would have specific need which ought to have been satisfied by a testator and which is not met by the rules of intestate distribution will be eligible claimants. The existing rule [that a will is revoked by marriage by operation of law] is the norm in Australia and is fairly widely known. If it were repealed (in one state alone) there would be likely to be testators who believe their wills were revoked on marriage, whereas the repeal of the rule would leave the wills intact. No doubt time and an extensive programme of public education could alleviate this, but we would presume that there would continue to be several testators who would order their affairs on the basis of the continuation of the old rules."
This treatment of the topic demonstrates that policy considerations underlying the Succession Act, section 12, focus not only on a need to give effect to a testator's "intentions" - where they can be proved - but also on the presumed intentions of a will-maker who might not have thought about the testamentary implications of a marriage, and the idea that there are some people whose "specific need… ought" to have been satisfied by a testator.
Care needs to be taken not to elevate analyses of a legislative text into a "gloss" deployed as a substitute for the text itself. One must always begin, and end, with the text. This is particularly important where legislation is required to be applied to a broad, dynamic range of social relationships.
Even if the concept of "marriage" deployed in this particular legislation is assumed to provide a stable, constant point of reference, diversity of human experience is likely to find an outlet in the expression "made in contemplation of". That there are many pathways to a formal marriage in contemporary Australian society is confirmed, for example, by the legal incidents now attending a "de facto relationship" (defined by the Interpretation Act 1987, section 21C) and the breadth of the concept of "family" implicit in the definition of "eligibility" to apply for family provision relief. The days have passed - if they ever truly existed - when, in social terms, there was a single bright line dividing all "pre" and "post" marriage relationships.
In his treatment of the earlier judgments of the NSW Court of Appeal in Layer v Burns Philip Trustee Co Ltd and of White J in Hoobin v Hoobin, Dixon J was conscious of a broad correspondence between his views and those expressed in the earlier judgments.
Having described his own views in terms of "what is important" (in paragraph [12] of Steel v Ifrah) - with an emphasis (in paragraph [13]) on a need for a testator to give "thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making [a] will" - Dixon J introduced his references to interstate judgments by recording (in paragraph [14]): "Broadly speaking, the authorities in respect of the marriage revocation rule, which has often been expressed in different language to that now used in [the Victorian legislation], support this conclusion".
Analyses of the operation of the legislation in particular cases need to be understood in the context of each particular case.
In Layer v Burns Philp Trustee Co Ltd (a case which preceded the 1989 amendments to the Wills Probate and Administration Act) the Court of Appeal found that a testamentary gift, in favour of a de facto wife described as "my wife" and by reference to the testator's surname, in a will made shortly before, on the same day, the two were married was a gift in the will expressed to have been made in contemplation of marriage.
In Hoobin v Hoobin White J found that a testator did not make a will in contemplation of marriage because, at the time he made the will, he was not looking beyond an impending hospitalisation from which he did not expect to emerge alive. It is important to note, also, that despite discussion of marriage in a de facto relationship, at the time he made a will wholly in favour of his "de facto spouse", so described, the deceased had no current expectation of marriage and, with the benefit of legal advice, he disclaimed an opportunity to make his will explicitly in contemplation of marriage.
In Steel v Ifrah Dixon J found that a will was made in contemplation of marriage in the context of a testatrix, having accepted a proposal of marriage, co-operating with her fiancé in each making a will to protect entitlements of their respective children from earlier relationships; and the testatrix subsequently giving instructions for a new will, after marriage, in terms materially similar to her pre-marriage will.
In Re O'Brien (Dec'd) O'Neill J found that a will was made in contemplation of marriage by a testator who, although expressly advised at the time of its execution that his impending marriage would revoke it, refused to accept that advice and, following his marriage, made statements (including statements to his wife) to the effect that he adhered to the terms of his will notwithstanding that it was made before his marriage was solemnised.
An application of the concept of "a will made in contemplation of marriage" is fact-sensitive.
The facts of the current case can be dealt with within the treatment of the law found in Hoobin v Hoobin and (shorn of observations in In Re O'Brien (Dec'd)) Steel v Ifrah, but with a different nuance. White J's language ("there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage" and "having a marriage in mind as a contingency to be provided for or as an end to be aimed at") comes to mind. So too does Dixon J's requirement that there be something more than "a mere consciousness of a possibility of marriage in the future": a "thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making [a] will".
In the present case attention must be focused on whether, in the "process" of making his will (to defer to Dixon J on this point), the deceased ever had in mind a prospective marriage to Katerina or, incidentally to such a marriage, any claim on his bounty that she, or children they might have together, might reasonably have.
Care needs to be taken not to be too prescriptive about the attributes of a "marriage" located in the contemplation of parties. Nevertheless, something of the flavour of a "marriage" in a contemporary Australian setting can be discerned in the following observations of the High Court of Australia in Commonwealth v Australian Capital Territory (The Same Sex Marriage Case) (2013) 250 CLR 441 at [33]-[34]: "[33] … 'marriage' is to be understood in section 51(xxi) of the [Australian] Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. [34] The formal requirements to establish the union, and thus the legally recognised status of marriage, may be very simple (for example, no more than the exchange of certain promises before witnesses). The rights and obligations which stem from that status will commonly include rights and obligations about maintenance and support, succession to and ownership of property (both as between the parties to the marriage and between the parties and others) and, if there are children of the union, rights and obligations in relation to them."
As the source of power for the Commonwealth Parliament's enactment of the Marriage Act 1961, section 51(xxi) of the Constitution points the way to an understanding of the word "marriage" in the Succession Act, section 12. Whatever might be the Commonwealth's definition of "marriage" from time to time, the concept looks to "rights and obligations which stem from" a "legally recognised status of marriage".
So understood, a question for consideration in the present proceedings is whether, at a material time, the deceased ever had in mind taking on a "legally recognised status of marriage", with the rights and obligations which stem from such a status, vis á vis Katerina.
In the present proceedings the position is not materially different if the concept of "marriage" is also viewed through the prism of social (as distinct from legal) rights and obligations bearing, principally, upon the deceased's "contemplation of marriage". An idea inherent in the concept of marriage as a social institution is that, by embracing a marriage commitment, partners voluntarily take upon themselves a duty to care for, and to protect, one another. In life as lived, such a duty might be honoured in the breach; but, save possibly in a "marriage of convenience" (not a common phenomenon), it is likely to attend contemplation of any prospective marriage.
Nothing in the evidence suggests that, when they discussed "marriage" the deceased and Katerina had in mind a "marriage of convenience" or anything other than a duly solemnised marriage (registered under the Marriage Act 1961) conferring upon them the status of a legal marriage, attracting all the rights and obligations of such a status under Australian law. Equally, nothing in the evidence suggests that they were unhappy to be, or to remain indefinitely, in a de facto relationship, a chief characteristic of which was mutual freedom from the formal status, or commitments, of a registered marriage.
Section 12 of the Succession Act accommodates considerations of this nature in an endeavour (in common with probate law generally, general intestacy rules and a discretionary family provision jurisdiction) to facilitate testamentary arrangements which pay due regard to well-founded claims on the bounty of a person who contemplates death, however near or far death may be.
Recognition of the importance of due consideration of well-founded claims on the bounty of a person contemplating death appears in various guises in the law of succession.
An example of this is the classic test for testamentary capacity found in Banks v Goodfellow (1870) LR 5 QB 549 at 565 (with emphasis added): "It is essential to the exercise of [the power to dispose of property by will] that a testator shall understand the nature of the act [of making a will] and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been".
A modern reformulation of this test, and an exposition of it, can be found in a paper by MS Willmott SC and CP Birtles, "Testamentary Dispositions - Wills and Codicils" (2016) 43 Australian Bar Review 62 at 82-83: "Mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of that instrument: see Gibbons v Wright (1954) 91 CLR 423 at 438. Where the instrument is a will, the statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 is still treated as the locus classicus test for determining testamentary capacity. In short, four matters must be satisfied to make a will. (1) it must be shown that the testator was able first, to understand the nature of the act of executing a will and the effect of that instrument; (2) second, to call to mind the property it was in his power to dispose of by the will; (3) third, to call to mind the persons who may have claims upon his testamentary bounty; and (4) fourth, to weigh the relative claims of those persons. In other words, the testator must be able to remember, so that he or she can call to mind the property at his or her disposal and those who may have claims upon him or her, to reflect so that he or she can consult with himself on the relative weight of their claims, and to reason so that he or she can judge, having regard to his assets, how far, if at all, he or she should give effect to them. But it is important to recognise that it is not necessary for a testator to do any of these things, for all that is required is that he or she should be able to do them and, if he can, his or her will will be held valid no matter how unreasonable or capricious it may be: see King v Hudson [2009] NSWSC 1013 at [51]."
Thus, Banks v Goodfellow can be restated in terms of an ability "to remember, to reflect and to reason" with respect, inter alia, to claims on testamentary bounty.
Another example of the importance of due consideration of well-founded claims on testamentary bounty is found in legislation conferring on the Court family provision jurisdiction. Here, as in Banks v Goodfellow, one not uncommonly encounters the word "ought" (as presently found in section 59(2) of the Succession Act), expressly or impliedly in close proximity to a claim on a testator's bounty. Consideration of what is "adequate" provision for the "proper" maintenance, education and advancement in life of a claimant for family provision relief requires, inter alia, consideration of "the nature, extent and character of [an] estate and other demands upon it, and also what the testator regarded as superior claims or preferable dispositions": Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20. Section 60(2) of the Succession Act is to similar effect.
Recognition of a need to accommodate well-founded claims on the bounty of a deceased person can also be found, implicitly, in general, statutory intestacy rules: not only in particular rules that might from time to time operate, but also in the fact that those rules are amended from time to time to accommodate social imperatives as family relationships change: Re Estate Wilson, deceased (2017) 93 NSWLR 119 at [97]-[98].
It is not enough, for a will to have been "made in contemplation of a particular marriage" within the meaning of section 12(3) of the Succession Act, that the will-maker was, when the will was made, merely conscious of a possibility of a future marriage, or that he or she had been conscious of the possibility. To get beyond "a mere consciousness of a possibility" of a future marriage a will-maker, at some time in the process of making his or her will, must have brought to mind not only the possibility of a formal act of marriage but also claims on his or her bounty associated with the marriage. The expression "contemplation of a particular marriage" refers to contemplation of "the rights and obligations which stem from" a "legally recognised status of marriage", not merely a casual contemplation of the bare formalities of a marriage ceremony.
To have been "made in contemplation of a particular marriage" a will must be expressed to have been so made or it must have been made by a will-maker otherwise proven to have been at that time conscious of claims on his or her bounty arising from the marriage in question.
It is not necessary in these proceedings to do more than notice O'Neill J's obiter (in Re Estate of O'Brien (Dec'd) (2011) 4 IR 687 at [34]-[35]) to the effect that an express statement in a will that the will was made in contemplation of a marriage may not be decisive evidence of the fact. In these proceedings it is sufficient to hold that a will "made in contemplation of a particular marriage" must have been made by a mind seriously engaged with the possibility of that marriage, weighing competing claims on the will-maker's testamentary bounty.
Absent such an engagement, a will will be revoked by a future marriage, by operation of law, leaving the will-maker's estate to be administered on an intestacy, subject to invocation of the family provision jurisdiction.
If, in the process of making a will, the will-maker has seriously engaged with the possibility of a future marriage - consistently with what the law ordinarily expects in the making of a will - then there is no need, consistent with testamentary freedom, for the operation of a policy rule that a will is revoked by marriage.
On the other hand, if such an engagement is absent, there is a policy foundation for the rule, residing as it does in the context of legislation governing a distribution on intestacy and claims for family provision relief. In such a case, the law endeavours to facilitate an orderly succession to property, taking into account claims on testamentary bounty that a deceased person ought to have taken into account but apparently did not.
The necessity for this, in understanding the purpose and operation of section 12 of the Succession Act, is highlighted by the absence from the deceased's will, or the elongated process of his giving instructions for, executing and publishing his will, of any evidence of consideration given to the claims on his bounty of Katerina or - perhaps more tellingly - children that might be born of a marriage between himself and Katerina. The deceased (a man who was so conscious of his relationship with his children that he treated stepchildren equally with his own, that he expressly disinherited an estranged stepson and that he treated his other children equally) made no provision for, and articulated no concern about, future-born children. He published his will to his brother, but provided no copy to Katerina. She was out of mind in the process of making his will, though not out of sight.
At the time he made his will (focusing on the whole process of will making, from initial contemplation, to instructions, to execution and to publication of the will) the deceased was living a compartmentalised life, a life in transition. When the will was drafted, he was in the process of divorcing his first wife. By the time he executed it, he had divorced her. He had made no commitment to marry any other. Katerina had made no commitment to marry him, if ever he were to propose. Both were free agents, free to marry somebody else, or not to marry at all. He was in a de facto relationship with Katerina, but not living with her in the same house on a full-time basis. His purchase of the McMahon's Point property took the form of an investment even when, nearly a year after the will was "made", full-time cohabitation commenced.
At the time the will was "made" the deceased's mindset was such that he was living in a mental space - a compartment - separate from that occupied by Katerina. She was not on his radar when he "made" the will. That the two of them lived in close physical proximity, in a de facto relationship, does not alter the fact that he did not consider whether she, or any children they might have together, had any claim on his bounty. That was something he was content to defer until such time, if ever, they married. His de facto relationship fell short of marriage in substance and form. It was not inevitably bound to end in marriage. He and Katerina had had an on-again / off-again relationship over an eight year period, including a period of cohabitation in 2011. They were not yet cohabiting full time. Their relationship was a work-in-progress. Although marriage was from time to time discussed it remained a matter of speculation until such time as the deceased might bring himself to propose marriage, at which time Katerina (however hopeful she might have been) reserved a right of refusal. He was focussed entirely on re-ordering claims on his bounty by his first family. He did not have in mind, or have regard to, the possibility that he might re-marry or, in particular, that he might marry Katerina. That was a separate topic, reserved for future consideration.
He was focused upon extricating himself from a spent marriage (severing all connection with his wife, but maintaining relationships with favoured children of that marriage), unconcerned with any prospective marriage or family obligations arising from such a marriage.
For these reasons, I conclude that the deceased's will was not (within the meaning of section 12(3) of the Succession Act) made in contemplation of his marriage to Katerina and, accordingly, it was, by section 12(1) of the Act, revoked by and upon that marriage being solemnised. The will cannot be admitted to probate. The deceased died intestate. His estate must be administered in intestacy, subject to any family provision order made in favour of Max.
The deceased having been found to have died intestate, the grant of letters of administration in respect of his estate was correctly made; consideration must be given to Katerina's application for an extension of time within which to purchase the McMahon's Point property from the estate; as she concedes, her family provision application must be dismissed; and Max's family provision application must be determined, as must the parties' ancillary dispute about competing entitlements to the deceased's superannuation fund.

(2012) 81 NSW LR 656

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