Slater v Thorne

Supreme Court of NSW|2011-04-01

Lough & Wells (Defendant) File Number(s): 2010/60207

The Application 1HIS HONOUR: Maxine Thorne Slater ("the Plaintiff"), who is a child of Robert John Thorne ("the deceased"), applies for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The Plaintiff commenced the proceedings, by Summons filed on 9 March 2010, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). 3The Defendant named in the Summons is Hayley Thorne, to whom Probate in common form of the deceased's Will was granted, with the Plaintiff. She, too, is a child of the deceased and the sister of the Plaintiff. Naturally, it was the Defendant who represented the estate in the proceedings. 4There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

Background Facts 5The following facts are uncontroversial. 6The deceased died on 9 March 2009. He was then aged 62 years (having been born in December 1946). 7The deceased left a Will that he made on 29 January 2007, Probate of which was granted, on 7 December 2010, by the Supreme Court of New South Wales, to the Plaintiff and the Defendant. 8The deceased's Will, relevantly, provided: (a) a devise of the residence occupied by the deceased at the date of his death, to the Defendant absolutely; (b) the rest and residue of the estate to be divided equally between the Plaintiff and the Defendant. 9In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $440,419. No liabilities were disclosed. The estate was said to consist of real property at Mt Kembla ($360,000), money on deposit ($4,743), superannuation ($33,200) a car ($25,000) and accrued annual leave and other employment sums ($17,475). It was the Mt Kembla property that was the residence occupied by the deceased at the date of his death. 10In an affidavit sworn by the Defendant on 22 March 2011, the Defendant disclosed that a payment was made, after the date of death, to the estate, being an additional amount of superannuation ($169,560). It is possible that a further amount of $28,200 might be paid to the estate as well. 11None of the estate had been distributed at the date of hearing. The parties agreed that the value of the estate available for distribution, subject to the payment of some debts and other expenses, and, if so ordered, the costs of the proceedings, was about $650,000. The parties also agreed that the current value of the Mt Kembla property was $400,000. 12The estimated current value of the Plaintiff's share of residue (depending upon the burden of costs of the proceedings) was estimated to be about $117,000. Thus, the Defendant's share of the estate may be calculated to be about $517,000 (depending upon the burden of costs of the proceedings). 13In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate. 14The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be about $58,400 (inclusive of GST and upon the basis of a one day hearing). The costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, are said to be about $50,000. 15The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), have been estimated to be no more than $37,032. 16With some hesitation on the part of the Defendant, the parties accepted that, for the purposes of the hearing, I should determine the Plaintiff's application upon the basis that the actual net distributable estate, after the payment of such costs as may be ordered to be paid out of the estate, and assuming that the estimates are accurate, will be about $550,000. 17The persons described as eligible persons, within the meaning of the Act, are the Plaintiff and the Defendant, as well as their mother, Allyson Thorne, the former wife of the deceased. She and the deceased separated in 1999 and were divorced in 2006. Mrs Thorne gave evidence in the proceedings by affidavit and was cross-examined by counsel for the Defendant. It is clear that she does not wish to make any claim under the Act. 18Only the Plaintiff has commenced proceedings under the Act.

The Statutory Scheme - The Act 19I shall discuss the statutory scheme that is relevant to the facts of the present case. 20The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional." 21Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires. 22The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a deceased's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 23The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process. 24Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the 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 actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and 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, education and advancement in life of the applicant. 25It was said in the court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". 26Importantly, there no longer appears to be any sanction, in s 59(1)(c) of the Act, to consider the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act). 27Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. 28"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". 29Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], 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." 30In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 31In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 32The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA. 33Each of the 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." 34Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, 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 if life must be considered in the light of 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." 35In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he 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." 36In Vigolo v Bostin at [114], Callinan and Heydon JJ said: "[T]he 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 use 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." 37The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 38Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 39Tobias JA said: "42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred." 40In Devereaux-Warnes v Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process: "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]." 41In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 42The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse , at 211, affirmed that the decision made at the second stage 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. 43Section 60 of the Act, at least in part, is new. It 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 o r der or any beneficiary of the decease d 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." 44It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order , and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender. 45Considering 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. For example, when considering eligibility under sub-s (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant. 46Furthermore, consideration of 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 of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 47Leaving 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. 48This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 49And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made 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. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 50Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court; or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 51Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made; and (b) the amount and nature of the provision; and (c) 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 (d) any conditions, restrictions or limitations imposed by the court. 52The order for provision out of the estate of a deceased person may be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner which 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). 53The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 54Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act). 55Section 66 of the Act sets out the consequential and ancillary orders that may be made. 56The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

Applicable Legal Principles 57In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were stated in the context of the previous legislation, they are equally apt in a claim such as this one. 58Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the testator's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant. 59In Stott v Cook (1960) 33 ALJR 447 at 450, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework 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." 60In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". 61The court's discretion 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 [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. 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. 62Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, 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: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 63The Act is not a "destitute persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 64In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) 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 home, or to set their children up in a position where they can acquire a home 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 [ McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801]. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such 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 a parent 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 . (d) In the case of a child who has maintained herself, or himself, and had, perhaps, accumulated means, that child might well be expected to be able to fight the battle of life without any extraneous assistance. But, even in such a case, if the fight were proved to be a great struggle, and some aid might help in that struggle, and the means of the deceased were sufficient, the Court might properly provide aid by means of an order: In re Allardice per Stout CJ., at 969. (e) There is no obligation upon the deceased to have treated all of his, or her, children by making provision that is equal. In Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142, Palmer J commented: "57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children. 58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation." (f) Menzies and Fullager JJ in Blore v Lang (1960) 104 CLR 124 at 134-5, commented: "Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the Court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator's bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case... The Act is legislation for remedying... breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the Court to be a fair distribution of a deceased person's estate among the members of his family. As it has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made- for instance where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." (My emphasis) Their Honours also added, rather colourfully, in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort" that, "[H]er need is not for the bread and butter of life, but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit". (g) Even more vividly, but to similar effect, is the approach in Worladge v Doddridge (1957) 97 CLR 1 at 12, in which Williams and Fullagar JJ approved the following statement, in Re Harris (1936) 5 SASR 497 at 501: "Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail." (h) There is no need for an adult child to show some special need or some special claim: McCosker v McCosker ; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

Credibility of Witnesses 65I am satisfied that, generally, there were not many facts seriously in dispute. The cross-examination of the parties, and of Mrs Thorne, was very short and really did no more than elicit information to clarify what had been written.

Additional Facts 66I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act. (a) any family, or other, relationship between the applicant and the deceased pe rson, including the nature and duration of the relationship 67The Plaintiff is the daughter of the deceased. She resided with her parents until they separated in 1999. About 3 months after the separation, the Plaintiff moved in with the deceased at the Mt Kembla property. She remained living with him until 2003. Thereafter, they still maintained a high level of contact with each other. 68The Plaintiff's relationship with the deceased was happy, loving and harmonious (as was the Defendant's). I am satisfied that the Plaintiff was a loving daughter to the deceased. (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 69Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law. 70However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is usually recognised in the case of a child. 71The deceased did not assume any obligation, and responsibility, towards the Defendant either. Any obligation, or responsibility, otherwise, was that naturally arising from his parental relationship to her. (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 72I have dealt with this earlier in this judgment. On any view, the deceased's estate is not a large one. 73There is no relevant notional estate. Other than costs of the proceedings the only liabilities left to be paid out of the estate are estimated to be about $14,000. (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 74The Plaintiff worked, part time, as a shop assistant in a florist shop until late August 2010, when she took maternity leave. She has returned to work, one day per week. She earns about $100 per week net. She receives family assistance, each quarter ($300) and a baby bonus allowance, by way of fortnightly payments ($407). It is not clear, from the evidence, how long that assistance will last. 75Her husband, Daniel Slater, is employed. In the year ending 30 June 2010, he had a gross income of $70,707. 76The Plaintiff sets out her assets and liabilities as follows: Assets (a) House at Dapto (jointly owned with husband) $350,000 (b) Savings in Plaintiff's name only $14,000 (c) Superannuation (Plaintiff) $18,000 (d) Motor vehicle: $32,400

Liabilities (a) Mortgage to IMB Limited - joint $191,000 (b) Balance of loan from Allyson Thorne to purchase car) $27,000

77The Plaintiff also sets out her husband's assets and liabilities as follows: Joint Assets (a) House at Dapto (jointly owned with husband): $350,000

Sole Assets of Husband (a) Savings Account: $2,000 (b) Superannuation: $46,600 (c) Motor vehicle: $12,000

Liabilities (a) Mortgage to IMB Limited - joint: $191,000

78The Plaintiff estimates the family's monthly expenses at $4,473, which estimate includes the repayments of mortgage ($2,000 per month). The surplus of income over expenditure is about $100 per month, although, it is likely, that this amount varies. 79The Plaintiff says that: (a) she and her husband do not have any savings; (b) their home requires repair and maintenance, the total costs of which are estimated to be $12,370; (c) she requires a fund to enable her to pay off debts; (d) she requires a capital sum for exigencies of life. 80It was submitted that the Plaintiff should receive a lump sum of $290,000. 81The Defendant sets out her financial and material circumstances, and that of her fiance, as follows: (a) She is 37 years old. (b) She works as a florist and has an interest in a florist shop (although the value of the florist business is not disclosed). (c) She and her fiance, Mark White, own a residence at Farmborough Heights with an estimated value of between $400,000 and $430,000, which is subject to a debt of approximately $5,500 secured by mortgage and other debts of approximately $10,000. (d) She and Mr White have cash savings of about $14,342, two cars, with an estimated combined value of $10,000. Mr White has a fishing boat ($12,000). (e) She has superannuation entitlements of $6,628, whilst Mr White's superannuation is estimated to be $57,684. (f) The Defendant and Mr White have a four year old child and also support, in their home, the son of a previous relationship of Mr White, who is 19 years old. Child-care costs for their son is estimated to be $577 per month. (g) The Defendant's and Mr White's estimated average combined after-tax income is approximately $1,258. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 82The Plaintiff is co-habiting with her husband and their two children, one of whom was born in May 2007, and the other, who was born in September 2010. The financial circumstances of her husband have been set out above. 83There is some question whether the Plaintiff's son is the beneficiary of a trust fund created by the deposit into a bank account of moneys by Mrs Thorne. However, this is tangential to the issues in the proceedings (although the Plaintiff's debt of $27,000, to which reference has been made above, relates to an amount borrowed ($32,000) from this fund to purchase a car). (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 84The Plaintiff suffers from no physical, intellectual, or mental, disability. However, following the death of the deceased, she did have to attend trauma counselling. She still suffers from anxiety issues surrounding the deceased's death. It may reasonably be anticipated that, with time, these issues will resolve. 85The Defendant says that she is not in good health. She suffers from depression and anxiety and takes anti-depressant medication to relieve her symptoms. She also has problems with her right wrist. She sees her doctor once every 2 months or so. There was no evidence as to when, or if, these issues will resolve. (g) the age of the applicant when the application is being considered 86The Plaintiff is presently 33 years of age. She was born in March 1978. (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 87The Plaintiff does not specifically identify any financial contributions to the acquisition, conservation and improvement of the estate of the deceased. She says, however, that when she lived with the deceased between 1999 and 2003, she assisted him with small renovations and improvements to the Mt Kembla property, including assisting with removing old carpet, repainting the interior of the house, and helping him build a retaining wall outside the home. She also made curtains and otherwise attended to domestic duties. They shared cooking and washing. 88In relation to the welfare of the deceased, the Plaintiff says, and I accept, that she cared for the deceased. She says that, with the Defendant, she assisted him in the last weeks of his life. They would spend time together, often and regularly. 89It was not suggested that the Plaintiff received adequate consideration (not including any pension or other benefit) for what she did. (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 90The deceased made no specific provision, during his lifetime, for the Plaintiff. He did not provide any gifts or other benefits. The Plaintiff receives one half of residue under the deceased's Will. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 91There is some evidence of the testamentary intentions of the deceased and the reasons why he made his Will in the way that he did. It was common ground that his decision to leave the Mt Kembla property to the Defendant and the residue divided equally between the Plaintiff and the Defendant was based upon the expectation that Mrs Thorne intended to leave her home to the Plaintiff and that she would divide the residue of her estate between the Plaintiff and the Defendant (all of which she has done). (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 92There is no evidence that the deceased maintained the Plaintiff, either wholly, or partly, before his death. (l) whether any other person is liable to support the applicant 93Apart from the Commonwealth government's limited responsibility to continue to provide the Plaintiff with the family assistance and baby bonus, there is no other person with a liability to support the Plaintiff. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 94The Act does not limit the consideration of "conduct" to conduct towards the deceased. There is nothing to suggest any conduct of the type towards the deceased that might disentitle the Plaintiff to relief under the Act. 95To their credit, the parties were not critical of each other so far as the relationship of each with the deceased was concerned. (n) the conduct of any other person before, and after, the date of the death of the deceased person 96It was not suggested that the relationship of the deceased with the Defendant was in any respects different to that of the Plaintiff and the deceased. She is the chosen object of the deceased's testamentary beneficence in respect of the Mt Kembla property, but that is explicable, other than by reference to her being regarded by the deceased in any special way. 97It is clear that the Defendant, too, had a close, happy and loving relationship with the deceased and like the Plaintiff, seemed to have done all that she could to assist him after his diagnosis with cancer. (o) any relevant Aboriginal or Torres Strait Islander customary law 98This is not relevant in the present case. (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 99There are no other matters that I consider relevant.

Determination 100There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application. 101As the Plaintiff's proceedings have been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both. 102I have set out the provision made for the Plaintiff in the deceased's Will. When one considers, amongst other things, the Plaintiff's financial position, the size and nature of the deceased's estate, the totality of the relationship between the Plaintiff and the deceased, and the relationship between the deceased and, relevantly, the Defendant, that adequate provision for the proper advancement in life of the Plaintiff was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both, is, in my view, tolerably clear. In coming to this conclusion, I have also considered the fact that the Plaintiff has an expectancy under the current Will of her mother. However, I cannot place too much weight on this fact, since her mother is only 60 years old, and may, at any time, alter that Will. 103Whilst it is true, as the Defendant's counsel submitted, that the Plaintiff and her husband are able to pay their expenses as they fall due, they do not have any substantial savings, they have some superannuation, but they have a reasonably significant mortgage. Surplus monthly income is small and it is, no doubt, variable. 104The Defendant's counsel also, correctly, submits that the residue of the estate will have been reduced because of the costs associated with these proceedings, and that those costs have altered the amount that the Plaintiff would have received had the proceedings not been commenced. In this regard, the Defendant referred to her costs of the proceedings, which, if deducted from residue, would reduce each party's share of residue to about $100,000. 105However, even if the provision made for the Plaintiff were calculated as the value of one half of residue, without deduction for costs, I would have concluded that the provision was neither adequate nor proper. 106It is then necessary to consider whether to make a family provision order and the nature of any such order. 107As stated, previously, the Plaintiff submitted that, in lieu of the provision made in the deceased's Will, she should receive a lump sum of $290,000. That sum is calculated as an amount to pay off the mortgage and to provide her with a sum of $100,000 for exigencies of life. 108As stated, the Defendant submits that the Plaintiff's proceedings should be dismissed. No submission was made, on behalf of the Defendant, as to what would constitute adequate and proper provision in the event that the principal submission was not accepted. 109There was certainly the view expressed by the Plaintiff, during cross-examination, that the provision made for her in the deceased's Will was "unfair" and that it was this unfairness that should be remedied. I have previously set out the principles that prevent questions of "fairness" arising. I do not accept that the freedom of testamentary disposition should be so encroached upon that the deceased's decisions, as expressed in the Will, have only a prima facie effect, the real dispositive power being vested in the court. 110In my view, the Plaintiff should receive, in lieu of the provision made in the Will of the deceased, a lump sum of $200,000. 111If the Plaintiff uses that amount to pay off the joint mortgage, then family income of $2,000 per month will become available. Then, at least some, if not all, of the repairs and renovations on the home, should be able to be completed with the surplus funds if the mortgage is paid out entirely. The debt payable to her mother should not take too long to repay from the income saved if the monthly mortgage repayments do not have to be made. 112In coming to this lump sum, I have, of course, considered the nature and value of the estate that would be left for the Defendant. It seems to me that, subject to the order for costs yet to be decided, she should be able to retain the Mt Kembla property, if not completely unencumbered, then with only a relatively small debt secured by mortgage on it. 113Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I order that, in lieu of the provision made for the Plaintiff in the Will of the deceased, she is to receive out of his estate, a lump sum of $200,000. 114The lump sum should be paid, as to $150,000, within 28 days, and as to the balance, within 28 days thereafter, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies, from that date until the date of payment. 115I order that the burden of the additional provision be borne by the Defendant. The amount shall constitute a charge on the Mt Kembla property until such time as it is paid. 116I have also considered whether I should make any order adjusting rights in the event that Mrs Thorne leaves her current Will in place. Leaving aside any power to do so (the availability of which is questionable), I do not think I should do so. It may be that Mrs Thorne will consider whether she wishes to alter her Will to take into account that the Plaintiff has received additional provision out of the deceased's estate. I had the impression that that had there been an agreement between the parties she would do so. 117In my view, as judicial intervention was required, it is a matter entirely for Mrs Thorne whether she alters her Will. 118I was requested by the parties to defer making any order for costs until after these reasons were delivered and the parties had an opportunity to consider them. I shall stand the proceedings over to a mutually convenient date for any argument as to costs.

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: 11 April 2011

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Cases Cited (31)

Cited By (1)