Sariban v Pocock; Pocock v Peipman

Supreme Court of NSW|2018-04-17|Before: Hallen J

Background Facts

In claims such as these, factual context is necessary. It is convenient to begin with a short statement of some of the background facts, since these provide the context in which the issues arise. Many of these facts are taken from the affidavits read in the proceedings, or in evidence given during the case, which are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.
The deceased was born in the Republic of Estonia. On a date not disclosed in the evidence, she moved to Germany, where she worked as a draft person. She escaped Germany during the Second World War and migrated to Australia in about 1948. Here, she met Eskil Vaino Peipman, and they were married in May, 1950.
Eskil, also, was born in Estonia (in about 1918). He had been living in Australia, for about 24 years, at the time of his marriage.
There were five children of the marriage of the deceased and Eskil, being Sam, who was born in February 1951, and who is now 67 years old; Ruth, who was born in April 1952, and who is now 66 years old; Ingrid, who was born in September 1954, and who is now 63 years old; Michael, who was born in May 1956, and who is now 62 years old; and Andrew, who was born in April 1959, and who is now 59 years old: T11.
Eskil died in a motor vehicle accident on 3 October 1958. At the time of his death, he was a legally qualified medical practitioner, employed by the Commonwealth Government as a specialist thoracic surgeon.
On 6 March 1959 this Court issued Letters of Administration of Eskil's intestate estate to the deceased, a copy of which was tendered at the hearing (part of Ex. 1D1).
In the Affidavit "D", filed with the application for administration, sworn by the deceased on 16 February 1959, a copy of which affidavit formed part of Ex. 1D1, the nature and value of Eskil's estate, available for distribution, less such expenses, debts and liabilities, as may have been payable out of that estate in the course of the administration, disclosed that the total value of his estate was estimated to be £7,665. At the date of his death, he was the sole registered proprietor of the Ryde property (£6,500). In addition, Eskil's property included furniture (£393), a car (£600), money in current accounts (£156) and shares (£6). There was a debt, secured by mortgage, of about £2,990, a hire purchase debt (relating to furniture) (£227) and water rates in respect of the Ryde property (£19). The final estimated balance of Eskil's estate was said to be about £4,426. (In these amounts, I have omitted the reference to shillings and pence and shall omit a reference to cents in the amounts to which I shall refer. This will explain any seeming mathematical errors.)

Costs and Disbursements of the Proceedings

Usually, in calculating the value of the deceased's estate available from which an order may be made, the costs of proceedings involving the estate should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, Ingrid, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate.
As Basten JA put it in Chan v Chan [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
In this case the question of the costs of the possession proceedings should also be considered. In those proceedings, Ingrid sought an order that Sam pay her costs of those proceedings, whilst Sam also sought an order that his costs be paid. There may still be some costs that should be paid out of the estate, even if that order were made, as Sam would only be required to pay Ingrid's costs, calculated on the ordinary basis.
In an affidavit sworn on 14 March 2018, Ms A Drayton, Ruth's solicitor, revealed that a conditional costs agreement had been entered into with Ruth "in the sense that if the claim is dismissed the Plaintiff will not have to pay any professional costs. The Plaintiff will still have to pay the disbursements estimated at about $8,000. There is no uplift factor."
Ms Drayton also stated that the "conditional costs and disbursements, on the ordinary basis, up to and inclusive of the hearing are $58,000, inclusive of GST". She estimated Ruth's "conditional costs and disbursements, on the indemnity basis, up to and inclusive of the hearing are $88,000, inclusive of GST". No amount has been paid by Ruth on account of her costs and disbursements.
At the hearing, counsel for Ruth stated that the legal representatives for Ruth agreed that if she were successful and a cots order in her favour is made, her solicitors would not seek to claim from Ruth more than the amount, calculated on the ordinary basis, recovered from the estate: T70.32 - T70.34.
Mr I C Miller, solicitor, in an affidavit sworn on 6 March 2018, stated that the costs and disbursements, including counsel's fees, calculated on the indemnity basis, of Ingrid, as the Defendant in the family provision proceedings, up to and including the hearing, were estimated to be $109,386, inclusive of GST. He estimated Ingrid's costs and disbursements, including counsel's fees, calculated on the indemnity basis, of the possession proceedings, to be $12,154 (being one third of the total costs and disbursements of $36,462). It follows that Ingrid's costs and disbursements of both proceedings, total $121,540.
Sam did not provide an affidavit that dealt with his costs and disbursements. However, at the hearing, enquiries having been made of his former solicitors, Ruth and Ingrid were prepared to accept that the amount of $8,428 was the amount of costs and disbursements of those solicitors incurred in acting for Sam in the family provision proceedings. (Sam stated that he did not accept that estimated amount.)
The general rule is that a litigant in person, who is successful in the litigation, is entitled to recover disbursements, but is not entitled to claim costs for time spent in the conduct of litigation: Cachia v Hanes (1994) 179 CLR 403, at 412-3; [1994] HCA 14. (There is no suggestion that Sam is a legal practitioner who is self-represented in the proceedings brought against him so that the exception to the general rule applies: London Scottish Benefit Society v Chorley (1884) 13 QBD 87.)
The parties agreed (Ex. 1D3) that, in the event all of the estimates prove accurate, and in the event all of the costs are payable out of the estate of the deceased, the value of the estate, out of which an order could be made would be about $328,149. (Of course, this agreement was subject to whether Sam's claim is successful.)
In the event that Ruth's claim for a family provision order is unsuccessful, Ingrid and Sam both seek orders that the proceedings be dismissed and that Ruth pay Ingrid's and Sam's costs of those proceedings. Ingrid seeks an order, in the event that she succeeds in the possession proceedings, that Sam pay her costs of those proceedings.
The parties requested that the Court not deal with the costs of the proceedings as there may be relevant documents that impact upon how the costs of the proceedings should be borne.
Unless the parties agree, more Court time and costs will be incurred. Upon delivering these reasons, I shall set down the costs argument for hearing. One would hope that the parties reach some agreement on the issue of costs so that the estate is not diminished, even more, by legal costs.

The Credibility of Witnesses

There were many factual issues raised in the affidavits read in both proceedings. It is impossible to identify all of the factual disputes that existed on the affidavits. What follows are some of the more important features of evidence. It is necessary to express some views on the credibility of the witnesses.
Only four witnesses gave oral evidence at the hearing: Ruth, Ingrid, her husband Nicholas, and Sam. For the most part, Ruth and Sam based her, and his, case, respectively, upon her, and his, own testimonial evidence. There were, of course, documents relied upon, to which reference has been, or will be, made.
As stated, Michael, whose affidavit was read, was not cross-examined. Similarly, each of the solicitors who gave evidence about the respective costs and disbursements of the party represented was not cross-examined.
I was somewhat unimpressed with Ruth as a witness. I formed the view that she had been advised that she would need to establish, at least, that she had some "needs". Her oral evidence left me with the firm impression that she was endeavouring to establish "need" by asserting that she would like to move to Tasmania to live, and that, even with her entitlement on intestacy out of Eskil's estate, she would have insufficient to purchase accommodation there, to purchase a car, and to have a capital sum for exigencies of life. Overall, on this topic, I found her evidence unconvincing. There was some documentary evidence that does not support some of her assertions.
My reasons for expressing this conclusion are as follows.
There is no suggestion in the affidavits that she had informed any of her siblings, or anyone else, of her desire to move to Tasmania prior to the commencement of these proceedings. Her apparent desire to relocate to private housing, somewhere in Tasmania, is not disclosed in her first affidavit (16 January 2017), but in her affidavit, mostly in reply, of 14 August 2017, at [84].
In that August affidavit, Ruth annexed a copy of advertisements for the sale of different properties, not in one particular area, but in areas including, Mount Direction (central north), Pyengana (north-east), Crabtree (south), Midway Point (south-east), Wattle Grove (far south), and Arthur River (west coast) of Tasmania.
Ruth repeated her assertion regarding relocation "to somewhere quiet and peaceful, like Tasmania at the conclusion of these proceedings" (my emphasis), in her affidavit sworn 23 March 2018. She annexed "search results for properties that are suitable for my needs. All of these properties are in Tasmania in semi-rural locations…which are not too remote". Again, different locations were identified.
Ruth gave evidence that she has never been to Tasmania; she does not know anyone who lives there, although she said her art teacher travels there on occasions; and in answer to a question from the Bench, that whilst she did not have a large circle of friends in Sydney, she had more friends than she would have if she moved to Tasmania: T71.13 - T71.22.
Ruth has lived in the same Department of Housing accommodation for the last 18 years (since March 2000). She stated that she had been "fortunate to secure" this accommodation and agreed that her accommodation was secure, saying that "it is hard to get evicted. You have to be really bad to get evicted": T61.18 - T 61.20; T62.34 - T62.38. She also said that even though there were "a lot of problems that are hard to cope with in a Housing Department …ours is one of the best, like we don't have drug problems at least": T62.24 - T62.26.
Yet, she complained about the nature of the accommodation, suggesting that it was too small and that she needed a garden area for her "large collection" of potted plants, there being insufficient space in her unit. However, in cross-examination, she stated that she does not keep her plants inside the home unit in which she lives, and that there is a "concrete area in the back and the front … with a veranda" in which she keeps the plants: T63.33. (There was no suggestion that this concrete area was too small to house the potted plants.) She also admitted that she had a "shade house", which Sam had erected for her, in which she housed her potted plants: T63.38 - T63.40.
She also complained about the neighbours saying "there were a lot of social problems". She said that she was bothered "by a man with Tourette's who yells non-stop, day and night, and there is a man who has had a breakdown and yells at everything and people behind have built a granny flat right up close to where my bedroom is": T62.21 - T62.24.
Her complaints about the neighbours were not referred to in any of Ruth's three affidavits that were read in the proceedings. (The only reference, to a noisy and disturbed neighbour, named Julie, was in her first affidavit at [96].) One might have thought that if the complaints about the neighbours were genuine, or were serious, some reference would have been made to them in one, or other, of the affidavits upon which she had relied.
Nor was there any evidence of the nature of her complaints being provided to the Department of Housing.
The Plaintiff gave a detailed interview to Aideen Gallagher, an Occupation Therapist, in which she answered questions about her social environment. There was no mention of any noise, or other, nuisance caused to her by neighbours. Indeed, Ms Gallagher recorded (Ex. 1D4/23): "She describes trying to socialise with people in her apartment block and organising flower competitions to engage people. She has found it difficult to motivate her neighbours to engage in these competitions with her."
In the same document, there is a reference to her describing "good social support in terms of health workers and NDIS staff that come in to support her. She describes NDIS as her family and she is highly satisfied with this".
In the Plaintiff's NDIS Plan, approved on 28 October 2016 (Ex. FPP1/162) and her NDIS Plan dated 30 October 2017 (Annexure "F" to the Plaintiff's affidavit sworn on 23 March 2018), respectively, there is a section entitled "Where I live and the people who support me" and one entitled "My daily life". In neither Plan, under the relevant heading, is there any record that the Plaintiff is concerned by the behaviour of any of her neighbours, or any complaint recorded about any of them.
In fact, her complaints under this heading relate to feelings of isolation caused by the medical conditions from which she suffers. One of the goals recorded was "to have support to access the community more often".
In answer to Sam's only question to her, Ruth conceded that during the period in which she has been living in her current residence, she had not made any enquiries about alternative public housing in Sydney: T70.45 - T71.04. Nor had she made any enquiries about the availability of public housing in Tasmania if she decided to move there, saying that she had not done so because it was "another State": T73.22 - T73.28.
It is also clear from Ruth's evidence that she has had a long-term psychiatric and medical support network in Sydney. For example, she has been a patient of Dr Patricia Burke since about 2000. She described the relationship with Dr Burke as "something miraculous", saying that the doctor had been wonderful and that seeing her regularly had improved her well-being. (Indeed, Ruth's mental health has been described as "stable for some time and she has many supports around her. She…engages successfully in her community with the assistance of a new Housing support worker": T69.04 - T69.09.)
Ruth's explanation in regard to being prepared to give up these medical and other professionals, if she moved to Tasmania, was that one was, or more of them were, going to retire in the not too distant future. However, there was no evidence about when any of the medical, or support, practitioners might retire.
Ruth acknowledged that she had not carried out any research in relation to the psychiatric and medical support networks available in the parts of Tasmania to which she had referred: T67.08 - T67.13.
Ruth no longer drives a car, having not held a driver licence for many years. It may be difficult for her to live in parts of Tasmania, described as "not too remote" without a car. She said that she was hoping to buy a car and regain her driver licence.
Despite these matters, there was no suggestion that she had given inaccurate evidence about her financial circumstances or state of health. Some of Ruth's evidence regarding her relationship with the deceased was corroborated.
Ingrid is a witness whose evidence I accept. In cross-examination, she acknowledged that during Guardianship Tribunal proceedings involving the deceased, she had inspected bank records that showed withdrawals of money from the deceased's account whilst the deceased had been in hospital, and said that she had not carried out investigations as she knew that the withdrawals had been made by Sam.
Ingrid explained her concerns surrounding the withdrawal of funds from the deceased's bank account shortly before her death. She said that she did not agree that the moneys had been withdrawn in anticipation of the deceased returning home from the hospital. She also said, in answer to a question from the Bench, that she did not make a claim for moneys that may have been wrongfully withdrawn by Sam from the deceased's bank account, as the deceased's estate passed to Sam under the Will and that it would be his money in any event: 2T26.34 - 2T27.02.
Ingrid accepted, without hesitation, that Ruth would visit the deceased weekly and that she had had a "very good relationship" with the deceased. She also accepted that, perhaps, one of the reasons that Ruth lived in the Ryde area was because it was close to the Ryde property where the deceased lived: 2T07.35 - 2T07.46.
Sam asked Ingrid questions about an answer to a question about how often she had visited the Ryde property after the death of the deceased. Ingrid accepted that her answer that she had visited once was incorrect and that she had visited several times: 2T11.16 - 2T11.38. This correction did not impact upon my acceptance of Ingrid as a witness of truth.
Finally, Ingrid said that she thought that a claim against Sam for unpaid rent, or an accommodation fee, had been made in the Statement of Claim. Such a claim had not been made. This error also does not affect my assessment of her credibility.
Nicholas Pocock, Ingrid's husband, was cross-examined by counsel for Ruth. He was asked whether he remembered any conversation with Ruth in 2017, in which she had said to him that she wanted to move to Tasmania. He responded that he did not remember any such conversation. (Ruth did not give evidence of having had such a conversation with Mr Pocock.)
Sam gave evidence, which, broadly speaking, I accept. When assessing his reliability, I do find it to be a matter of concern that he ignored, completely, the requests made for him to vacate the Ryde property or, if he did not vacate, to pay rent or an occupation fee. He had, however, paid water rates and council rates: 2T47.45 - 2T48.06.
Sam provided no adequate, or proper, explanation for him not paying any rent or occupation fee. With no disrespect intended, his submissions on this topic were somewhat difficult to follow.
Yet, I do think that, in giving his evidence, he was endeavouring to assist the Court. Whilst many of his concerns relate to personal matters between him and one, or more of his siblings, or concerns about what he believed to be unfounded criticism of some of his conduct, these were matters which were peripheral, and mostly irrelevant to the disputes which the Court must decide.
He admitted, for example, without prevarication, that he and the deceased survived, for the most part, out of her income; that the deceased had a habit of withdrawing amounts of cash which she kept at home; that there was about $50,000, which had been kept at the Ryde property, which was the amount that he had retained; that the source of that amount was the deceased but that "[she] had virtually told me that it was mine. And I didn't want to use it, you know, until she died. But she virtually told me it was. She made it very clear": 2T43.10 - 2T47.20.
He also admitted that he had used money ($11,495) (Ex. FPP3), the funds for which came "from savings that my mother had, sort of, given me", to purchase a car: 2T51.27 - 2T51.31.
Furthermore, he agreed that Ruth had visited the deceased weekly. He also accepted that he had received a substantial benefit in continuing to live in the Ryde property, stating that he had contributed to the welfare of the deceased whilst doing so. He added that he "did make contributions. I'm the one that helped my mother with everything she did. I helped with the gardening, and helped with the house. You know, as I said in one of my affidavits, we were virtually life partners. So any problem in that area, you know, my mother had full authority if she wanted rent or anything like that, and she never asked for it": 2T48.43 - 2T48.50.
There cannot be any real dispute about his contribution to her, as the deceased, herself, recognised those contributions in the Will letter and in her Will.
Of course, until Ingrid became the trustee of the two-thirds interest in the Ryde property in 2015, it was the deceased who had been the trustee. In this regard, I accept that whilst Ruth, and her siblings, did not seek to obtain her, or his, share, respectively, of their interest in the Ryde property, and permitted the deceased (and Sam, a sibling) to remain living there, rent and occupation fee free, that was a contribution made by each of them to the welfare of the deceased: s 60(2)(h) of the Act.
Michael gave unchallenged evidence by affidavit dated 10 July 2017, in which he stated that he has lived in the United States of America since 1977. He visited Australia once a year, and during the final year of the deceased's life he visited on four occasions. When he visited he would stay with both the deceased and Sam, usually for "two to three weeks at a time". He disclosed that during his visits, he observed, at least initially, that the deceased would "look after Sam by doing all of the cleaning, cooking and other day-to-day duties". However, during the final years of the deceased's life, Michael observed Sam take on "more and more of the day-to-day household duties and provided care to my mother in various forms". He also observed that, from about 2012, "the job of looking after [the deceased] was becoming more and more difficult for Sam". He also stated that he "never saw Sam treat my mother in any manner other than that of a loving and dutiful son" and that his mother appeared to him to be "content and happy".

The Possession Proceedings

It is necessary to determine the claims made in the possession proceedings because the determination of Sam's claims in those proceedings will affect the family provision proceedings. If Sam succeeds in his claim that the share of the Ryde property is held for the deceased, the value of the deceased's estate will be greater.
At the time of the commencement of the possession proceedings, Ingrid, as the executrix of the deceased's estate, was the registered proprietor of the Ryde property. Legal title to the Ryde property, thus, was established. She acknowledged that she held the land on trust, as to two-thirds, for the intestate beneficiaries of Eskil's estate, and also acknowledged that she held one third of the Ryde property, for Sam, as the sole beneficiary of the deceased's estate.
In Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7, at [55]-[56], Gleeson CJ, Gummow and Hayne JJ wrote: "In Ramage v Waclaw, Powell J reviewed many of the authorities, including the judgment of James LJ in Sharpe v San Paulo Railway Co, which support the proposition that, where relief is sought in the equitable jurisdiction of the Supreme Court against a third party, a beneficiary may sue in his own name, joining as defendants the trustee and any other beneficiaries, but only where there are "special circumstances". One reason for this restriction, given by James LJ in Sharpe, is the avoidance of the vexation of the third party by multiple suits. Powell J held that the "special circumstances" were not confined to collusion between the trustee and the third party, or the insolvency of the trustee. But the general principle is that stated by Scott: 'The interests of the beneficiaries of a trust are protected against a third person acting adversely to the trustee through proceedings brought against him by the trustee and not by the beneficiaries. As long as the trustee is ready and willing to take the proper proceedings against the third person, the beneficiaries cannot maintain a suit against him.' Minters referred to statements of principle by the Privy Council in Hayim v Citibank NA. Their Lordships referred to some of the authorities discussed by Powell J in Ramage, including Sharpe, and concluded that "special circumstances" included a failure by the trustees to perform their duty to the beneficiaries to protect the trust estate or the interests of the beneficiary therein. Nothing there said assists the arguments by Minters that the plaintiffs had the necessary entitlement for Pt IV of the Act." (citations omitted)
In circumstances where Ingrid was the executor of the deceased's estate to whom Probate was granted, as well as being the sole trustee of Eskil's estate and one of the beneficiaries of that intestate estate, and where Sam was the sole beneficiary entitled to the whole of the deceased's estate (subject to Ruth's claim for a family provision order), I am satisfied that Sam has standing to bring the claim as against Eskil's estate on behalf of the deceased's estate. I am satisfied that there are special circumstances such that Sam has standing to sue. No submission to the contrary was made by counsel. That, of course, does not mean that Sam is entitled to the relief that he seeks.
As stated above, there is no dispute that the title to the Ryde property was registered in Eskil's sole name at the date of his death. There was no assertion that the deceased had any interest in the Ryde property at the date of Eskil's death.
Whilst the deceased did set out the circumstances in which she repaid the mortgage debt on the Ryde property following Eskil's death in the Will letter, quoted above, there is no direct evidence that she did so. However, it is more probable than not that she did, since, at the time of his death, all of their children were minors. None of them gave evidence that she, or he, had contributed to the repayment of the mortgage debt.
Yet, no claim, formal or informal, was made by the deceased, following Eskil's death or after her repayment of the mortgage debt, that she had any interest in the share of the Ryde property that passed to the five children of the deceased on intestacy. She, herself, obtained her share of the Ryde property pursuant to the operation of the intestacy rules following the distribution of his estate and she became registered as the holder of that interest upon the basis that the balance would be held on trust for her five children.
The repayment of the children's two third share of the debt secured by the mortgage did not give rise to the deceased coming to hold an increased interest in the Ryde property. A person who pays off a mortgage debt is entitled to preserve the security (of the mortgage) for her, his, or its, own benefit: Ghana Commercial Bank v Chandiram [1960] AC 732; Paul v Speirway Ltd (in liq) [1976] Ch 220.
In Cochrane v Cochrane (1985) 3 NSWLR 403, Kearney J explained the principle, in this way, at 405: "This principle is based on equity's concern to prevent one party obtaining an advantage at the expense of another which in the circumstances of the case is unconscionable. Hence, there is a common thread running through the relevant cases to the effect that the conscience of the mortgagor should be affected so as to cause the mortgage to be kept alive. This is illustrated in the text book examples first, of a third party not being entitled to a right by way of subrogation where he simply lends the money on an unsecured basis to the mortgagor who then uses such funds to pay off the mortgage; and secondly, of a third party being so entitled where he advances the money to pay out the mortgage on the understanding that security would be provided for such advance upon the mortgage being paid out."
(As to a recent discussion of this case, and subsequent cases, see Barber v De Prima [2018] NSWSC 601.)
Whether the children concurred in the deceased paying off the mortgage debt does not matter because what would have occurred is that they would have owed their share of the mortgage debt to the deceased instead of to the original creditor: Re Dalma No 1 Pty Limited (in liq) [2013] NSWSC 1335, at [30]. Had she chosen to do so, the deceased's remedy may have been to seek contribution from the children. This, of course, she never sought to do.
Furthermore, the intention of the deceased, in paying off her children's share of the mortgage debt, may be significant, where it is for some reason clear that she, as the payer, did not intend to seek contribution from them. I am satisfied that the deceased had no intention to seek contribution. No claim was made by her, or on her behalf, during her lifetime, claiming that the children owed her a share of the money which she had repaid. Nor did she ever assert that having paid off the whole of the mortgage debt, she was entitled to a greater share of the Ryde property. Indeed, the deceased, herself, acknowledged that her interest in the Ryde property was limited to the one-third interest. It was upon the basis of that limited interest, and the interest of each of the children to an equal share of the two-third interest, that she determined to make the Will leaving the whole of her one-third interest to Sam.
There is no reason to doubt the admission made by the deceased in regard to the extent of her interest in the Ryde property. It was, after all, an admission against her own interests.
Counsel for Ingrid submitted that there is a presumption of advancement in respect of the contributions made by the deceased on behalf of the children. It was submitted that there was no evidence to displace this presumption. It was noted that in McCoy v Caelli [2010] NSWSC 1233, at [74], White J (as his Honour then was) wrote that "there was no issue that the presumption of advancement applies as between a mother and son".
It was also submitted by Ingrid that the repayment of mortgage debt, even if made with no intention to benefit the children, did not give rise to a resulting trust, but instead a right to an accounting or an allowance: Ryan v Dries [2002] NSWCA 3 at [14] (per Giles JA). It was further submitted that "the deceased and the Defendant had sole occupation of the property without payment of occupation fee for decades".
Finally, it was submitted that even if a larger equitable interest in the Ryde property were asserted by the deceased, immediately prior to her death, because she had repaid the mortgage debt on behalf of the children, relief would be barred because of her laches, in combination with the decades where each equitable co-owners refrained from exercising their legal rights in respect of the Ryde property.
Even if the deceased had been entitled to a greater share of the children's interest in the Ryde property, and Sam was entitled to the interest held on her behalf, this would not provide a defence to the claim for possession which was being made by Ingrid as the legal owner of the Ryde property.
In Re Transphere Pty Ltd (1986) 5 NSWLR 309, McClelland J analysed whether under the Companies (NSW) Code a receiver could be appointed of property held upon trust for other persons. His Honour observed, at 311: "It is important to recognise the true nature and incidents of legal and equitable estates in property subject to a trust. They are clearly and succinctly described in the judgment of Hope JA in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 at 518-520. (His Honour's analysis is not affected by the decision of the High Court in that case - see 149 CLR 431.) I would not wish to detract from the value of Hope JA's exposition by trying to summarise it. But what is significant for present purposes is the imprecision of the notion that absolute ownership of property can properly be divided up into a legal estate and an equitable estate. An absolute owner holds only the legal estate, with all the rights and incidents that attach to that estate. Where a legal owner holds property on trust for another, he has at law all the rights of an absolute owner but the beneficiary has the right to compel him to hold and use those rights which the law gives him in accordance with the obligations which equity has imposed on him by virtue of the existence of the trust. Although this right of the beneficiary constitutes an equitable estate in the property, it is engrafted onto, not carved out of, the legal estate. Hope JA (at 519) illustrates the point by the following quotation from Maitland - Lectures on Equity 2nd ed (1949) at 17: '… Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here.'
Hope JA in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510, at 519 - 520 [17], also wrote: "This relationship can, perhaps, be usefully illustrated by reference to the possession, and the right to possession, of land which is held by a trustee subject to a private trust. As legal owner, and subject to any disposition of the right, such as would occur upon the granting of a lease, the trustee has at law the right to possession of the land and, unless somebody else is in possession, under him or adversely to him, he also has the legal possession of the land. He may maintain trespass against anyone who infringes that possession, and ejectment against any person who, without his consent, takes possession. At law a cestui que trust has no right to possession. … When placed in possession by the trustee, at law the beneficiary is merely tenant at will of the trustee, the tenancy being determinable at law at any time on demand of possession by the trustee... As a corollary, the trustee might at law determine the beneficiary's tenancy and recover the land from him in an action for ejectment, and the beneficiary would have no legal defence. He would, of course, have an equitable defence which he has long been able, by statute, to plead in the action at law." (Omitting citations)
It follows, even if Sam's contention that the two-thirds interest in the Ryde property was subject to a trust in the deceased's favour, to which greater interest he was entitled, Ingrid would still be entitled to possession, unless perhaps, the interest was as to the whole of the interest held for the children. Since I am not satisfied that the deceased had any greater interest, the right to possession has arisen and Sam's claim is not such as to defeat that right.
In all the circumstances, the claim by Sam, on behalf of the deceased's estate, to a greater share of, or interest in, the Ryde property does not succeed. Nor does his claim for an accounting. In my view, Ingrid is entitled to an order for possession.
I have considered any hardship that Sam might suffer by having to vacate the Ryde property. However, he has enjoyed occupation for nearly two and a half years, since the death of the deceased, making no monetary payment to Ingrid, which payments, after deduction would have been held for the five children of the deceased.
There has been ample warning of the need for him to make alternative arrangements. He appears to have taken no steps taken to that end.
In answer to some questions from the Bench, Sam stated that, whilst "it would be unfortunate", he could vacate possession of the Ryde property if it was found that his claim was not successful in one or two months. He agreed that he could vacate within 6 weeks: 2T56.29 - 2T56.43. As it has been about 5 weeks from the conclusion of the hearing, if he is allowed another 6 weeks to vacate, he will, in my view, have had sufficient time to do so and that time will allow him to vacate in an orderly manner.

The Statutory Scheme - the family provision proceedings

Next, I shall discuss the statutory scheme that is relevant to the facts of the family provision proceedings. As Ruth's eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine is whether adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased: s 59(1) of the Act. Once that power is enlivened, the court may make "such order for provision ... as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made" (s 59 (2)).
There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases, one of the most recent of which is Penninger v Penninger [2017] NSWSC 892 at [114] - [148].
For the benefit of the parties, I shall repeat the relevant principles.
Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testatrix, who has given due consideration to the claims on her estate.
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, out of the estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on a deceased's testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan, at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs."
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14] - [15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…"
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer, Gibbs J wrote, at 502: "…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote: "…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." [Citations omitted.]
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).
Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.
Practice Note SC Eq 7, which applies to claims for a family provision order, currently provides, in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act 2005 (NSW). Also, see Baychek v Baychek [2010] NSWSC 987, per Ball J, at [10]-[20]; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50] - [52].

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90 at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
Recently, in Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan, at [127], namely, that: "…respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
White JA added, at [86]: "To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The size of the estate and/or notional estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].
In relation to the claim by the Plaintiff, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [62].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep). Nor is it the role of the Court to provide reparations to the Plaintiff in respect of what might be regarded as poor parental behaviour by means of a monetary order: Williamson v Williamson [2011] NSWSC 228 at [124]-[127].
The other claimant on the bounty of the deceased, Sam, who is the sole beneficiary, does not have to prove an entitlement to the provision made for him in the deceased's Will, or otherwise justify such provision. In this case, however, he has provided a deal of evidence demonstrating his contribution to the deceased's welfare.

Qualifications on "Principles"

As long ago as 1980, in White v Barron at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85] and Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.

The receipt of the pension

I have earlier noted that Ruth receives, and has received for many years, a pension, and has lived in Department of Housing accommodation for over 18 years. Those facts are relevant to the Court's considerations.
Young J (as his Honour then was) in Parker v The Public Trustee (Supreme Court (NSW), 31 May 1988, unrep) said: "In my view the attitude that the Court takes in this area of the law to this problem under the authorities appears to be as follows: (1) The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of dependants upon the public purse... (2) It is no answer to a claim that a deceased failed to make proper provision for his dependant that the dependant is entitled to a pension under the Social Security Act... (3) When making provision, a wise and just testator usually makes his will without regard to any means tested pension that a beneficiary may be able to receive... (4) A wise and just testator, however, when formulating his bequests, does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions... (5) A testator has no duty to organise his affairs so that his beneficiaries receive the maximum benefit from his estate so long as he makes adequate provision for them... (6) It would be contrary to the policy of the Act for the Court to so make an order that there was thrown onto the public purse the support of a dependant to the advantage of a 'wealthy beneficiary'... (7) Where the estate is small and especially where there are a series of claimants on the testator's bounty, it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement."
However, in Thom v The Public Trustee (Supreme Court (NSW), McLaughlin M, 2 April 1992, unrep) it was said: "It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for... by disregarding the fact that for a period of 20 years before the deceased's death... [the Plaintiff] was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support... [the Plaintiff] from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for... [the Plaintiff] by will, could be approached without recognising the fact that... [the Plaintiff] would be entitled to continue to receive such a pension."
In Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep) his Honour wrote: "The protection of public funds from claims by indigent persons is not a purpose of Family Provision legislation but they are incidentally protected by the legislation, which was not an Act solely for the protection of private interests and serves public policy... In my opinion, the availability of age pensions and other social benefits is a circumstance which should be regarded, and particularly in smaller estates, it may be appropriate to leave an Applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant, to throw burdens off public funds and onto private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth within the estate, it should be directed away from the less fortunate and successful of the eligible person so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available, it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources ..."
In Taylor v Farrugia, at [59], Brereton J referred to a number of the authorities and concluded: "The court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82]."
In reading the Will letter, it does seem that the deceased took into account Ruth's eligibility for a pension and her secure accommodation in the Department of Housing property in which she had lived for many years, in deciding how her estate should be shared between her children.

Additional Facts

I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59 (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

Ruth is a child of the deceased. She attests to having had a good relationship with the deceased throughout her life. There was no dispute about the closeness of her relationship with the deceased.
She moved out of the family home when she was 23.5 years of age. She left to live in a Christian Community, which she thought would improve her well-being, both spiritually and mentally. She lived there for about 5 years. Whilst there, she maintained regular and close contact with the deceased.
Ruth left the Christian Community in unhappy circumstances. She was "expelled" because she attempted to commit suicide by eating oleander leaves. She returned to live with the deceased (and Sam). She lived there for a period of time, but was persuaded to move out and move back to a Christian Community house in Cronulla.
Subsequently, in about 1980, she moved to Queensland where she lived in a facility called "The New Life Centre" in Ipswich. She lived there between 1980 and 1982.
Ruth gave evidence that whilst living at the Centre, she was sexually abused and assaulted by the Pastor. There is evidence of her complaint, made in December 2014, to the Royal Commission into Institutional Responses to Child Sexual Abuse the receipt of which was acknowledged by letter dated 5 February 2015. (It is not necessary to repeat the details of her allegations which are set out in the complaint.)
In about 1997, Ruth became seriously mentally ill and was hospitalised twice in Brisbane. The deceased was aware of Ruth's medical condition as she pleaded with her to return to the Ryde property.
In 2000, Ruth did return to live in the Ryde property with the deceased and Sam, but she remained there only for about one year. She says that whilst living there, she contributed approximately $50 every fortnight to cover her share of the cost of food and utilities, and other household expenses. She left at the insistence of Sam, then moving into the Housing Department one bedroom home unit that she currently occupies.
Whilst living in the home unit, she continued to visit the deceased, and whilst her health permitted, the deceased visited her. This continued when the deceased went into hospital. When she became a resident at a nursing home in Lindfield, she was only able to attend once, because of the geographical distance from Ryde, where she lived, and because of Ruth's "poor physical and mental health".
I am satisfied that Ruth had a close and loving relationship with the deceased throughout their joint lives. Indeed, the deceased, in the Will letter, wrote that she had given "much thought and loving feel[ings] for each and every one" of her five children.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at [478]-[479]: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, once they became adults, imposed upon her by statute or common law.
Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
The boundaries of the obligation or responsibility are not amenable to rigid definition. Importantly, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] NSWCA 269, at [73].
The size of the deceased's estate is also relevant to determining the extent of the obligation or responsibility.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

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

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

Ruth does not work and is in receipt of a disability support pension from Centrelink, and her income is said to be $814 per fortnight. In addition, she receives an "Energy Supplement" ($14) and a "Pension Supplement" ($66) per fortnight
She pays rent for the home unit in which she lives of $219 per fortnight which is deducted from the income she receives. In addition, there appears to be an additional $92 per fortnight deducted by way of a "Lump Sum Advance Repayment". Amounts deposited to her bank account, in the last 6 months, by way of pension, are in the order of $580 per fortnight.
In November 2016, Ruth obtained approval for assistance under the National Disability Insurance Scheme ("the NDIS"). Her most recent NDIS Plan is one identified in a letter dated 30 October 2017 from the NDIS to Ruth. This document reveals the "NDIS reasonable and necessary supports budgets", which includes a budget of $31,343 for "Assistive technology", including for a motorised scooter, a shower support, walking aids, orthoses, a power bed and a pressure care cushion; $1,395 for "Improved life choices"; $9,854 for "Improved daily living"; $1,606, for transport; and $40,037 for "Core supports".
Ruth's assets include her two-fifteenths interest in the Ryde property (no less than $200,000 and perhaps $220,000), personal effects (nominal value), and a harp ($900). In March 2018, her debts included a credit card debt of $105.
As stated, Ruth continues to reside in Housing NSW rental accommodation, and she has been a public housing tenant since about 2000. I have earlier referred to her evidence that she wishes to move to Tasmania.
Leaving aside my conclusions about her evidence about wanting to move to Tasmania, in her March 2018 affidavit, she has asserted that the search results (a copy of which are annexed to that affidavit) reveal that the further four suitable properties in "semi-rural locations" in Tasmania are advertised for between $145,000 and $180,000. Taking the mid-point of these estimates ($162,500), she would have about $30,000 left after the payment of stamp duty, legal costs and the costs of moving there.
In addition, she asserts a need for the costs of sound-proofing a piano room, for cataract surgery, for dental work, for body hair removal (laser), for additional podiatrist and psychologist visits, for the regular replacement of orthopaedic shoes, for the purchase and regular replacement of spectacles, possibly a car and a contingency fund for future medical and/or financial expenses. She also mentions the need for a mobility scooter but conceded, in cross-examination, that "I can't bring myself to use a scooter at the moment" and that if she needs one, it would be provided through the NDIS Plan: T64.43 - T65.05. (In her March 2018 affidavit, Ruth noted that she had experienced "great difficulty in obtaining approval for specific services" for her NDIS Plan. In reference to requests made by her occupational therapist to the NDIS, she stated in cross-examination "but often they refuse your request": T65.08 - T65.09.)
There was no evidence presented that her request for a scooter would be refused; nor was there evidence of past requests being refused. In addition, there was no estimate included for any of these so-called "needs".
In the event that Ruth does not move to Tasmania, she will have a capital amount of no less than $200,000 and perhaps, $220,000, which will provide capital and a small additional income. (Of course, this is subject to any order for costs.)

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

Ruth is single and lives alone.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

Ruth suffers from a number of medical conditions, including, but not limited to, chronic schizophrenia, migraines, anxiety, hyperacusis (a debilitating hearing disorder characterised by an increased sensitivity to certain frequencies and volume ranges of sound), low blood pressure, psoriatic eczema, irritable bowel syndrome, fibromyalgia, hypercholesterolaemia (elevated amounts of cholesterol in the blood), asthma, angina, coronary heart disease, renal impairment, bilateral carpal tunnel syndrome, generalised joint hypermobility syndrome and chronic pain. She takes a range of medication.
I accept that Ruth has a very limited, if any, earning capacity.
Sam is in good health. He does not assert any physical, intellectual or mental disability. However, periodically, he requires "expensive dental work". He also has problems with his eyesight, requiring him to have high-index lenses. He may require eyelid repair.

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

Ruth is 66 years old.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

I have referred to Ruth's contribution by not seeking the sale of the Ryde property to obtain her share of the property that passed to the five children as a result of Eskil's death. In addition, I am satisfied that by having a close and loving relationship with the deceased, she contributed to the welfare of the deceased.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

It is clear that by paying off the whole of the mortgage debt secured on the Ryde property, after the death of Eskil, for two-fifteenths of which Ruth would have been liable, the deceased did make some provision for her (and the other children) during the deceased's lifetime.

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

I have already referred to the testamentary intentions of the deceased.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

There is no evidence that Ruth was being maintained by the deceased in the years prior to the deceased's death.

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

Apart from the Commonwealth government's responsibility to continue to provide her with the disability pension, the housing provided by the NSW Government, and the NDIS provision, there is no other person who is liable to support Ruth.

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

I am satisfied that there is no specific conduct to which I have not referred.

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

Sam gave evidence of his competing financial claim, asserting that any order for additional provision for the Plaintiff would necessarily require the sale of the Ryde property with the consequence that he would be left without employment or accommodation.
Sam's assets are his one-third interest in the Ryde property which he inherits from the deceased (estimated to be $566,666) as well as the two-fifteenths interest (no less than $200,000 and perhaps $220,000). In addition, he has retained the $51,000 and the car ($11,475) referred to earlier.
The deceased described her relationship with Sam as her son. That relationship is referred to in the Will letter and is evidenced by the terms of the deceased's Will and the provision made for him during the lifetime of the deceased.
There is more than enough evidence of his conduct towards the deceased during her lifetime. I have also referred to his conduct in remaining in occupation of the Ryde property since the deceased's death.

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

This factor is not applicable.

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

There is no other matter that I consider relevant.

Determination

Having established eligibility, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Ruth, has not been made by the Will of the deceased.
As I have written in other cases, one of which is Morier v Liem [2016] NSWSC 582, at [247], the fact that no bequest is made in the deceased's Will for the applicant does not, of itself, bespeak inadequacy. A person may fail to satisfy the description of being "left without adequate provision" even though no provision is made for her in the deceased's Will. But as stated, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires a consideration of all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries.
Importantly, as stating previously, in considering the question, it is erroneous to treat it as confined only to an assessment of Ruth's material needs. Rather, the Court is required to have regard to not only her financial position, but also to the size and nature of the estate, the totality of the relationship between her and the deceased, and the relationship between the deceased and others, particularly, Sam, with claims upon her bounty. To consider her financial needs only, would elevate Ruth's financial needs over what the deceased regarded as her obligation to Sam.
It is clear that Ruth had been financially independent of the deceased for many years prior to her death, whereas Sam had been, at least partly, dependent upon the deceased throughout his lifetime, a matter that the deceased seems to have acknowledged.
I have borne in mind the fact that Sam has had the benefit of accommodation in the Ryde property both before, and since, the death of the deceased and that he ignored Ingrid's reasonable request to vacate, or to pay rent, or an accommodation fee, so long as he lived there. Whilst these matters do not portray him in the best light vis-a-vis his siblings, the deceased did have in mind that his accommodation should be ensured.
I have also taken into account the fact that Sam has received the money which he currently has, and a car, the source of each of which was the income, or capital, of the deceased. Again, however, he was the chosen object of the deceased's testamentary bounty and the person she wished to inherit the whole of her estate.
Earlier, I have quoted what White J (as his Honour then was) said in Slack v Rogan; Palffy v Rogan, at [127]. The passage is important in the present case and should not be forgotten. The deceased in her Will explained the reasons, relevant to Sam, why she wished to leave the whole of her estate to him. She specifically identified "the care and support" that she had received from him; the fact that he had lived with her for the whole of his life; and the desire to "ensure his accommodation" if the Ryde property was sold (as it will be). She also referred to her other children, referring to each having "adequate accommodation" and having no need "to rely on my estate for their future welfare". She considered the provision that each would receive from the proceeds of sale of the Ryde property following her death.
In addition, the fact that the deceased stated that she would have, and then did, have her signature on the Will letter witnessed by a Justice of the Peace, signifies that she considered its contents to be a matter of importance and solemnity. Whilst it is not part of the Will, it should still be regarded as an important indication of the deceased's testamentary intentions, which did not change at any time thereafter.
In the Will letter, in relation to Ruth, she identified her being "independently cared for" and referred to "Centrelink support". Whilst she could not have known about the NDIS Plan, made in 2016 and 2017, she was aware that Ruth was secure in her accommodation from the Housing Department and that she was receiving a disability pension.
Furthermore, there appears to have been no significant deterioration in Ruth's financial circumstances, or state of health, after the deceased's death, or, for that matter, after the deceased made her Will. The deceased appears to have been well aware of both of those factors, as well as the support that might be available to Ruth bearing in mind both her medical conditions and her financial circumstances.
Whilst the Court readily appreciates that Ruth may feel hurt and upset that the deceased has chosen to provide the whole of her estate to Sam, in the circumstances of this case, an order for provision for Ruth cannot be made. The legislation does not justify orders to remedy perceived unfairness or hurt feelings.
The consideration of all of the matters that the Court is required to consider leads me to find that there was no failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life for Ruth. It follows that the Court does not have jurisdiction to make an order for provision out of the estate of the deceased for her and the proceedings should be dismissed. In this regard, I have not forgotten the statement quoted above, made by White JA, in Sgro v Thompson, at [86].
However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the notional estate of the deceased for the maintenance, education or advancement in life of Ruth, having regard to the facts known to the Court at the time the order is made.
As a matter of discretion, having regard to the matters identified in s 60(2) referred to above, as well as other matters to which I have referred, I would make no provision for Ruth. There is no suggestion that Ruth expressed, to the deceased, any intention to move from her home unit at Ryde, let alone any intention to move to Tasmania. Furthermore, the Court was not persuaded by her evidence on the topic of moving to Tasmania. I have set out the reasons for reaching this conclusion earlier.
However, even if it is her intention to move to Tasmania, then, taking into account the provision that she will receive from the proceeds of sale of the Ryde property, as a result of Eskil's intestacy, she will be able to purchase accommodation within the purchase price range that she has recently identified.
If, on the other hand, she did not move to Tasmania, or if she did but did not purchase accommodation there, she will have available a capital sum of no less than about $200,000, and perhaps, $220,000 available to her, which, until spent, will provide a small income from interest.
At this time, it is not possible to anticipate the economic consequences for the parties of the dismissal of the family provision proceedings, and an order being made in the possession proceedings, other than to note that the amount of the distributable estate may be diminished as a result of the costs orders that will be made, or that Ruth's and Sam's share of the proceeds of sale of the Ryde property may each be diminished. But the possibility of that occurring is a risk that each appears to have been prepared to take. At least Ruth will not have to pay her own legal representatives as a result of the conditional costs agreement entered into with them.
In relation to the possession proceedings, I have already stated that the matters raised by Sam do not provide a basis for him remaining in possession of the Ryde property and that he should vacate that property within 6 weeks of the making of the orders.
Section 7A of the Sheriff Act 2005 (NSW) provides: "7A Powers of Sheriff when executing writs and warrants for possession of land (3) The Sheriff must give the occupier of land subject to a writ of possession of land or a writ for the levy of property that relates to land not less than 30 days notice to deliver up possession of the land. (4) Subsection (3) does not apply if the execution of the writ has been previously stayed by a court or if a warrant for possession is issued under the Residential Tenancies Act 2010, the Residential (Land Lease) Communities Act 2013, the Retirement Villages Act 1999 or the Holiday Parks (Long-term Casual Occupation) Act 2002."
I note Kingelty v Stockley [2017] NSWSC 671, at [12] - [14], in which Bellew J wrote: "In the circumstances of the present case the provisions of section 7A of the Sheriff Act 2005 (NSW) ("the Act") require some brief consideration. Section 7A(3) of the Act requires the sheriff to give the occupier of any land which is subject to a writ of possession not less than 30 days' notice to deliver up possession. Part of the rationale underlying that provision is to ensure that an occupier is given adequate notice before a writ of possession is executed, so as to allow such person(s) to (inter alia) make application to the Court for a stay of the execution of the writ if there are grounds on which to do so. In the present case there is evidence that the defendant was notified of the writs on 16 May 2017. Self-evidently, 30 days have not yet expired since that notice was given. However, section 7A(4) of the Act provides that subsection (3) does not apply if execution of the writ has previously been stayed by a court. In the present case the orders made on 10 April 2017 did not incorporate, in express terms, an order staying the execution of the writ. However, order 4(d) (referred to at [9] above) necessarily had that effect, by providing that the sheriff was not to execute the writs of possession before 26 April 2017. In those circumstances, I am satisfied that by virtue of s. 7A(4), s. 7A(3), which would otherwise require the giving of 30 days notice, does not apply. Further, I accept the submission of counsel for the plaintiffs that the evidence establishes that the defendant agreed to give vacant possession of the properties by 24 April 2017, that he is subject to orders of this Court requiring him to remove his belongings from the properties and restraining him from remaining there, and that he has been on notice of the potential issue of writs of possession since at least 10 April 2017, that being the date on which the deed was entered into and the consent orders made."
Whilst Sam did not agree to vacate possession of the Ryde property, his evidence was: "Q. Now, Mr Peipman, could you help me with one thing? Sorry, three things. Firstly, in the event that the property has to be sold A. Mmm. Q. how long is it going to take for you to leave the property? A. Well, I guess if I was really desperate I could sort of get most of the stuff into a lock up, you know, in a few days if I really had to. Q. Well, would, for example, one or two months be sufficient? A. That would be sufficient, yes, sir. Q. Thank you. And so if I said, for example, six weeks, if that were a necessary order that's in between one or two months would that be a sufficient time for you to vacate the premises? A. It would. It's unfortunate that I'd have to, but that probably would be sufficient, yes."
As more than 5 weeks have passed since the conclusion of the hearing and an order is to be made that the writ of possession not be executed until the day after 6 weeks of the date of these orders, I am satisfied that the Sheriff need not give a further 30 days notice to Sam to vacate the Ryde property.
(Although the orders set out below do not bear the whole of the particulars of title to the Ryde property, the orders as entered will do so. The orders have been made as if the full particulars of title have been included.)
In proceedings 2016/382014, the Court: 1. Orders that the Plaintiff's Summons be dismissed.
In proceedings 2017/180094, the Court: 1. Orders that judgment be entered for the Plaintiff for possession of the Ryde property, being the whole of the land comprised in Certificate of Title Folio Identifier XXXX. 2. Orders that the Defendant vacate possession of the Ryde property, being the whole of the land comprised in Certificate of Title Folio Identifier XXXX, within 6 weeks of the date of these orders. 3. Orders that the Plaintiff have leave to issue a writ of possession in respect of the whole of the land comprised in Certificate of Title Folio Identifier XXXX forthwith. 4. Orders that the writ of possession not be executed until the day after 6 weeks of the date of these orders.
In view of the request of the parties that the question of costs of the proceedings be determined following these reasons being published, any argument as to costs of the proceedings and how those costs are to be borne, will be listed on a date to be arranged when these reasons are published.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2018

Administration of Estates Act 1954(NSW)

Family Provision Act 1982(NSW)

Wills, Probate and Administration Act 1898(NSW)

Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Cicek v Estate of late Solomon [2014] NSWCA 278 Cochrane v Cochrane (1985) 3 NSWLR 403 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18 Diver v Neal [2009] NSWCA 54 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Ghana Commercial Bank v Chandiram [1960] AC 732 Goodsell v Wellington [2011] NSWSC 1232 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 Kay v Archbold [2008] NSWSC 254 Kingelty v Stockley [2017] NSWSC 671 Kohari v Snow [2013] NSWSC 452 London Scottish Benefit Society v Chorley (1884) 13 QBD 87 MacGregor v MacGregor [2003] WASC 169 MacPherson v R (1981) 147 CLR 512; [1981] HCA 46 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCoy v Caelli [2010] NSWSC 1233 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Morier v Liem [2016] NSWSC 582 Palagiano v Mankarios [2011] NSWSC 61 Parker v The Public Trustee (Supreme Court (NSW), 31 May 1988, unrep) Paul v Speirway Ltd (in liq) [1976] Ch 220 Peipman v Turner [1961] NSWR 252 Penninger v Penninger [2017] NSWSC 892 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), Samuels JA, 16 June 1986, unrep) Re Dalma No 1 Pty Limited (in liq) [2013] NSWSC 1335 Re Transphere Pty Ltd (1986) 5 NSWLR 309 Ryan v Dries [2002] NSWCA 3 Salmon v Osmond [2015] NSWCA 42 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thom v The Public Trustee (Supreme Court (NSW), McLaughlin M, 2 April 1992, unrep) Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep) Williamson v Williamson [2011] NSWSC 228 Yee v Yee [2017] NSWCA 305 Texts Cited: R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5(1) Aust J Leg Hist 5 Category: Principal judgment Parties: 2016/382014 Ruth Vivian Sariban (Plaintiff) Ingrid Orlanda Amalie Pocock (first Defendant) Samuel Eskil Peipman (second Defendant)

Judgment

HIS HONOUR: In Bolger v McDermott [2013] NSWSC 919, at [1], I wrote: "No dispute can be bloodier than when the blood, thicker than water, is spilled copiously in uncompromising and uncompromised litigation between [siblings] in a fight over their inheritance ... When it happens, one hopes that the judgment of the court will at least bring an end to the wrangling, if not to the continuing reverberations of the fractured relationships and the wounded feelings: (Lifely v Lifely [2008] EWCA Civ 904, per Ward LJ, at [1])." The quotation is apt to the circumstances of this particular case.
The disputes that the Court is required to decide have their roots in the life, and death, of Orlanda Amilde Peipman ("the deceased"), who was born in July 1925, who died on 27 December 2015, aged 90 years, and who left property, of modest value, in New South Wales.
Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.
The combatants in the two proceedings, which were heard over two days, are three of the five children of the deceased, being Ruth Vivian Sariban, who is the Plaintiff in proceedings 2016/382014 ("the family provision proceedings"); Samuel Eskil Peipman, who is the second Defendant in the family provision proceedings and the only Defendant in proceedings 2017/180094, ("the possession proceedings"); and Ingrid Orlanda Amalie Pocock, who is the first Defendant in the family provision proceedings, and the Plaintiff in the possession proceedings.
The two other children of the deceased, Michael Peipman and Andrew Peipman, were not parties in either of the proceedings. Michael was a witness in the family provision proceedings and his affidavit was read in the Defendant's case. He was not cross-examined. Andrew was not a witness in either proceeding.
Ward CJ in Eq, on 6 October 2017, made an order for the joinder of Sam as the second Defendant in the family provision proceedings. At that time, Sam was legally represented. On the same date, her Honour, again without opposition, ordered that the two proceedings should be heard consecutively, with the evidence in one being evidence in the other. This order, with respect, was clearly necessary, and appropriate, as much of the evidence to be read in one, is, or may be, relevant to both proceedings.
Ingrid is one of the two executors named in the Will made by the deceased on 14 November 2007. On 9 September 2016, this Court granted Probate in common form of that Will to her. Leave was reserved to Sam, the other named executor in the deceased's Will, to come in and apply for Probate, but he has not done so. The making of a grant expressed in that way is authorised by s 41 of the Probate and Administration Act 1898 (NSW).

Litigant in Person

At the commencement of the hearing, having confirmed that Sam was not a lawyer and that he did not have any legal training or experience, the Court confirmed its duty to ensure that the trial is fair, and that it is determined in accordance with the law, stressing the need to consider the interests of all of the parties. Of course, this duty applies whether a party has been unable to obtain legal representation, or if he appears self-represented by his own choosing, or where the party is represented: MacPherson v R (1981) 147 CLR 512, 546-547; [1981] HCA 46. The Court confirmed that this did not mean that to dismiss one's lawyers, or to retain none, should be an advantageous procedural step.
Sam was also told that, as he was appearing unrepresented, the Court's duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate, or stand in the shoes of his previous legal representatives. Nor would the court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Tomasevic v Travaglini (2007) 17 VR 100 per Bell J, at 130; [2007] VSC 337; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), Samuels JA, 16 June 1986, unrep, at 27); Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130].
He was also informed that the Court would not permit him to give evidence from the bar table without oath or affirmation. The limited guidance to which the Court referred, then went to explaining to Sam how the case would proceed, commencing with the reading of the affidavits onto the Court record; informing him of his right to object to any part of the affidavit evidence relied upon by Ruth, or by Ingrid, that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); his right to cross-examine the deponent of any affidavit read by Ruth or by Ingrid; and providing an explanation of the consequences of not cross-examining a witness. The guidance would not extend to advising him of how any of these rights should be exercised.
The Court also suggested that he watch the cross-examination, conducted by counsel to try to understand the way in which it should be done. He was informed that he would only be allowed to cross-examine Ruth on matters not cross-examined upon by counsel for Ingrid.
Finally, the Court confirmed that he had received the Outline of Submissions that had been received from counsel, and he confirmed that he had a copy of the Submissions, as well as the Court Books.

At a glance

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Judgment (27 paragraphs)

Legislation Cited (9)

Cases Cited (90)