Smith & Anor v Smith

Supreme Court of NSW|2011-08-22|Before: Dixon CJ, Ms J

Robbins Watson Solicitors (Defendant) File Number(s): 2010/426728

The Applications 1HIS HONOUR: These reasons relate to proceedings commenced by two Plaintiffs, in which a claim for a family provision order for each, under Chapter 3 of the NSW Succession Act 2006 ("the Act"), is made. 2The 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 The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009.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. 3The deceased, whose estate is the subject of the claims, is Stanley William Smith ("the deceased"). 4The Summons was filed on 24 December 2010, by Keith Milton Smith and by Darren Robert Smith, each of whom is a son of the deceased. It was filed within the time prescribed by the Act (within 12 months of the deceased's death). 5The Defendant named in the proceedings is Colin William Edward Smith, the oldest son of the deceased and the executor named in the deceased's Will. 6There is no question, in the present case, of any provision being sought by the Plaintiffs out of notional estate of the deceased. 7Without any undue familiarity, or disrespect intended, I shall refer to each of the Plaintiffs, the Defendant, and any other family members, by his, or her given name, in these reasons. 8There are also proceedings, which were commenced in the Common Law Division, in which Colin sought possession of real estate at Tweed Heads owned by the deceased. I shall return to those proceedings later in these reasons.

Background Facts 9The following facts are uncontroversial. 10The deceased died on 10 June 2010. He was then aged 81 years, having been born in January 1929. 11The deceased was married to Betty Muriel Smith, the mother of Keith, Darren and Colin. She died in 1995. 12Colin is aged 57 years, having been born in February 1954. 13The deceased left a Will that he made on 9 February 1996, Probate of which was granted by the Supreme Court of New South Wales, to Colin, on 30 September 2010. 14The deceased left the whole of his estate to Colin for his sole use and benefit absolutely. In the Will, the deceased did not disclose any reasons for making no provision for either Keith or Darren. 15In 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 $747,485. No liabilities were disclosed. The estate was said to consist of real property at Tweed Heads ($485,000), money held on deposit in current accounts ($118,261), moneys held in a savings account ($81,112), other moneys on deposit ($50,032) and in an annuity account ($8,077) and personal and household effects ($10,000). (I have omitted a reference to the cents and shall continue to do so.) 16Colin gave evidence that cash in coins (about $800) was shared equally between his brothers and himself. As there was no dispute about this, I shall, for the purposes of these proceedings, ignore that amount. 17In his affidavit sworn on 19 August 2011, Colin states that the net distributable estate currently available consists of cash held by his solicitors ($160,853) and the Tweed Heads property. At the hearing, the parties agreed that the current value of the Tweed Heads property should be taken to be $460,000. 18The parties were also able to agree that the costs and expenses of sale of the Tweed Heads property were about $15,000. 19In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their 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 his costs be paid out of the estate. 20The Plaintiffs' costs and disbursements of the proceedings, calculated on the ordinary basis, have been estimated to be $81,692 (inclusive of GST and upon the basis of a two day hearing). 21The Plaintiff's solicitor, Mr Kolokossian, was cross-examined about the estimate. He said that a costs assessor, who had considered the solicitors' file, had made the estimate. The disbursements included the costs of that costs assessor (estimated to be between $1,000 and $2,000). 22For the purposes of calculation, I shall use the estimate of the Plaintiffs' costs. In doing so, neither the parties nor the Court should be regarded as having accepted the quantum as the actual costs and disbursements. 23The Defendant's costs and disbursements of the present proceedings, including senior counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), are estimated to be $111,814. Some of these costs and disbursements ($64,224) have already been paid. The Defendant's solicitor, Ms Smyth, gave oral evidence that the balance of the costs to be paid at the conclusion of the proceedings will be $47,590. (There is an amount of $958 yet to be paid in the possession proceedings to which I shall refer.) 24The parties agreed that, for the purposes of the hearing, and assuming the estimates of costs prove accurate, and the usual order for costs is made, the estimated net distributable value of the estate will be in the order of $475,613. (This amount does not include any occupation fee or entitlement to mesne profits to which Colin may be entitled. Why each has been excluded will be explained later in these reasons.) 25(I should note that the probate and administration estate expenses of $13,597 have also been paid and estate liabilities of $19,389 have been reimbursed to Colin out of the estate. The costs of the possession proceedings, to which I shall turn, that have been paid are $17,424.) 26The Defendant submitted, and the Plaintiffs did not dispute, that the market rent for the Tweed Heads property, if it were cleaned and rented, was, and had been, from May 2011, about $450 per week. 27The persons described as eligible persons, within the meaning of the Act, are the Plaintiffs and the Defendant. Only the Plaintiffs have brought proceedings under the Act. In the circumstances, I am satisfied that no prescribed notice of the proceedings need be served upon any person.

The Possession Proceedings 28It will be necessary to return to these proceedings later in these reasons. However, it appears that the following matters are not in dispute. 29Colin commenced the possession proceedings on 20 March 2011, that is after the commencement of the present proceedings. Davies J heard the proceedings on 12 May 2011 and concluded: "Given that the hearing is only a matter of three months away, I do not think it is appropriate that [Keith and Darren] should be put out of the property. Although $50 per week each is a fairly small sum to be paid, particularly in the light of no payment for almost a year since the death of the deceased, I consider that it is appropriate that they should remain in the property until the conclusion of the Succession Act proceedings at that rental, together with an order that they should pay any utilities, being electricity, gas and water usage on the property. In all of those circumstances I consider it is appropriate to accede to the Notice of Motion filed by [Keith and Darren] on 14 April to transfer these proceedings to the Equity Division and I direct that they be heard together with the equity proceedings. I will grant liberty to apply to me in the event that there is any default in the payment that is required to be made pursuant to these reasons. In relation to the matter of costs, although [Keith and Darren] have succeeded in having the proceedings transferred and in having resisted an order for possession at this stage, they have done so really by seeking an indulgence of the court to permit them to remain in the property for three more months when they have no legal entitlement to do so. In those circumstances I think that there should be no order for costs on the Notice of Motion with the intent that each party should pay their own." 30Relevantly, his Honour ordered: "[Keith and Darren] are to pay to [Colin] the sum of $100 per week to the Plaintiff commencing Tuesday 17 May 2011 and are to pay the utilities on the property, being gas, electricity and water usage, when notified by [Colin] that such bills are due, or if [Keith and Darren] are otherwise in receipt of those bills, when they are due to be paid. Liberty to apply on two days' notice to my Associate, which can be exercised in relation to any default." 31There is no dispute that neither of the Plaintiffs paid the rental amount of $50 per week, or any part of it, at any time, since the orders were made. 32On 9 June 2011, Colin's solicitors listed the matter again before his Honour upon the basis that liberty to apply in relation to any default had been granted. His Honour, at that time, determined: "On 17 May 2011, the solicitors for [Keith and Darren] wrote to [Colin's] solicitors suggesting that [Colin's] solicitors had an obligation to provide account details for the payment details of the money. I should have thought in the first instance that the obligation was on [Keith and Darren] and their solicitors to ascertain to where the money was to be paid. In any event, on the same day by email, [Colin's] solicitors wrote giving details of the account into which the money was to be paid. No money was paid by 17 May. On 19 May, an email was sent to [Keith and Darren's] solicitors pointing out that no payment had been made and asking them to rectify the breach. No response was received to that email. On 25 May 2011, [Colin's] solicitors again wrote to [Keith's and Darren's solicitors] pointing out no money had been paid and further money was then due. They warned that continuing failure to pay the money would result in the court being approached under the liberty to apply. Mr Chapple, who appears this morning again for [Colin], tells me that no money has subsequently been paid, with the result that almost a month has passed since the orders that I made. Mr Kolokossian has appeared this morning for [Keith and Darren] and has indicated to me the difficulties that he has had in trying to explain the orders and responsibilities of [Keith and Darren] to them. He tells me also that because Keith ad Darren will be faced with costs involved in travelling to Sydney and accommodating themselves during the Equity hearing in August, they simply cannot afford to pay the monies that I directed should be paid as a condition of the stay of the possession proceedings. It was not suggested to me at the time that I made the made the orders on 12 May that [Keith and Darren] would not have the capability of paying any money because of those pending expenses. [Colin] has an undoubted right to possession of the property as executor of the Will of his father. The Defence filed by [Keith and Darren] does not demonstrate any defence known to the law. Rather, having denied that Colin was entitled to possession, it set out a number of matters which in summary can be said to be that they have rights under the Succession Act to apply for provision out of the estate of the deceased. As Mr Thompson, who appeared previously for [Keith and Darren] acknowledged, the right to bring a claim under the Succession Act does not give them any interest in the land. [Keith and Darren] sought an indulgence against the Plaintiff's undoubted right to possession of the land by reason of the pending Equity hearing. They have not been prepared to comply with the directions that I made for the payment of a very small occupation fee, and I note again that no occupation fee has been paid since the death of the deceased in June of last year, a period of 12 months. Before the death of the deceased, there was some indication that they were paying to the deceased $50 per week for the occupation of the property, although I am not clear whether that was $50 in total, or $50 each. In all the circumstances, there does not seem to be any basis for preventing [Colin] now from obtaining possession of the land. There is no certainty that [Keith and Darren] will be successful in obtaining an order that the property be transferred to them, as opposed to some provision being made out of the estate for them. Because the defence does not disclose a defence known to the law, I strike out the Defence filed on 9 April 2011. [Keith and Darren] are to pay the costs of today, and [Colin] is stayed from executing any costs orders including today's cost order until the finalisation of the proceedings under the Succession Act ." 33Colin has obtained judgment for possession of the Tweed Heads property and to recover mesne profits. A writ of possession may be issued, but Colin decided not to execute the judgment until the conclusion of these proceedings. 34The possession proceedings are listed, again, on 31 August 2011, to determine the quantum of mesne profits to which the estate might be entitled. The parties' legal representatives agree that rather than involving the estate in more litigation, I should take into account the fact that the Plaintiffs have resided in the deceased's property rent, or occupation fee, free since the death of the deceased, and that they did not comply with the orders made by Davies J in regard to the payment of an occupation fee. This is a sensible agreement. 35The evidence reveals that Colin's costs and disbursements, calculated on the indemnity basis, associated with the possession proceedings, were estimated to be $19,329. I do not know what part of Colin's costs ordered to be paid by Keith and Darren, calculated on the ordinary basis, are likely to be, but I have been informed by counsel for Colin, without demur, that an estimate of those costs is $6,500. The Plaintiffs should be treated as each being liable for one half of the costs. 36The size of the deceased's estate would be increased by whatever amount is ultimately recovered on account of costs from Keith and Darren. 37In the circumstances, I shall adopt the same course as set out above, in order to avoid additional costs of assessment and of recovery being incurred. Thus, I shall not assume an actual payment of Colin's costs by Keith and/or Darren, but simply take the liability of each for one half of the estimate of Colin's costs ordered to be paid, into account, in determining the provision to be made for each of them. 38I made it clear to the parties legal representatives, during submissions, that this would not necessarily involve an exact mathematical calculation based upon deducting one half of the estimated costs calculated on the ordinary basis as ordered by Davies J from the provision that I considered ought to be made for each Plaintiff. 39No submissions were made on the question whether, in the circumstances of an admitted breach of a court order, which the parties in breach do not intend to rectify, Keith and Darren should not be heard in these proceedings. As such submissions might raise some difficult questions (see, for example, what was said by Campbell J (as his Honour then was) in Leaway v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757), I proceeded to continue to hear the proceedings. Again, the Plaintiffs' conduct is a matter to be taken into account.

Introduction 40I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions. 41The 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." 42Whilst 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. 43The 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 person'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 person'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.

The Substantive Provisions of the Act 44The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). There are six categories of persons by, or on whose behalf, an application may be made. One category is "a child of the deceased" (s 57(1)(c)). 45In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). This is irrelevant in the present case. 46Then, 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 the court is satisfied of the inadequacy of provision, that consideration is given to 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. 47Other 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. 48It 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". 49Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act). 50Under 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. 51"Provision" is not defined by the Act, but it was noted in Diver v Neal [2008] NSWSC 304 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". 52Neither are the words 'maintenance' and 'advancement in life' defined in the Act. 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." 53In 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." 54In 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." 55The 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. 56Each 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." 57Dixon 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." 58In 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." 59In 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." 60The 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. 61Whether 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). 62Tobias 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." 63In 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]." 64In 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. 65The 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. 66The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [16]. 67Section 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 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." 68It 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 hierarchy as between the various factors. The weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender. 69Considering 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 sub-s (2) will be largely, if not wholly, irrelevant. 70Furthermore, 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, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 71Leaving 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. 72This does not mean, however, that some of the matters referred to in s 60(2) will be irrelevant 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." 73And by the comments of Callinan and Heydon JJ in Vigolo v Bostin , who wrote (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." 74Section 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 person'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. 75Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made; (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. 76The order may be made, relevantly, in this case, in relation to the estate of the deceased. 77The order for provision out of the estate of a deceased person may require the provision to 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). 78Any 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). 79Section 66 of the Act sets out the consequential and ancillary orders that may be made. 80The 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). 81Section 99 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 or notional estate, or both, in such manner as the Court thinks fit.

Applicable Legal Principles 82In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these were given in the context of the previous legislation, they are equally apt in a claim such as this one. 83Bryson 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 function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased'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. 84In 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 deceased'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". 85The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair. 86Yet, 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. 87In relation to a claim by an adult child, the following principles, in my view, are relevant: (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 house, or to set their children up in a position where they 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: 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) There is no the 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. (e) 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 . (f) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of the applicant's case. 88In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said (at 135): "The...legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of...a fair distribution of ... [the] estate. 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 instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." 89In Barna v Barna [2008] NSWSC 1408, Brereton J said: "[27] The obligation to make provision for persons for whom the community would expect a testator to make provision does not import an obligation to deal with children equally. A testator is entitled to deal differently with his or her children, and the quality of the relationship that the testator has with each of the claimants on the estate is a relevant consideration."

Pension Entitlement 90Because the Plaintiff, Keith, is, and has been, receiving a pension for over 20 years, it is necessary to briefly consider the relevance of that receipt in a claim for a family provision order. (Although Darren is receiving a NewStart Allowance, if he is unable to obtain employment, he, too, is likely to revert to receiving a pension and associated benefits.) 91In Taylor v Farrugia at [59], Brereton J said: "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]." 92An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported), in which the learned Master 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, ... 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... 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 ... by will, could be approached without recognising the fact that ... would be entitled to continue to receive such a pension." 93In my view, and it was not submitted to the contrary, the availability of the pension and associated social benefits is a circumstance to which the Court should have regard. In light of the size of this estate, it seems to be appropriate to leave Keith (and, if necessary, Darren) wholly dependent on such pension and benefits. 94I accept the submission made by senior counsel for Colin that Keith and Darren are unlikely to work and will remain dependent upon social security in the future. (I have not forgotten in this regard, Darren's evidence that he would like to obtain employment and that he has, unsuccessfully, sought such employment.)

Additional Facts 95I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60 of the Act and by a consideration of the factors relevant to both claims at the same time, as this will permit the application of the statutory criteria to be weighed comparatively in relation to the claims. Where necessary, I shall also consider the competing claim of Colin. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 96Keith and Darren is each a child of the deceased. 97Keith states that he had a close relationship with the deceased and that he lived with the deceased for the whole of his life. This is not completely accurate as the evidence reveals that he did not live with the deceased for his whole life. Colin's evidence, which I accept, is that in 2002, the deceased requested Keith to leave the Tweed Heads property, which he did. He did not return to the Tweed Heads property again until about June 2008. 98I also accept that the relationship between the deceased and Keith was not as close as Keith suggested. In this regard, in a Report to the Guardianship Tribunal dated 9 April 2002, there is a reference to Keith indicating "that the situation between himself and his father has become untenable, with increasing verbal aggression and the risk of physical aggression occurring between them". 99For about 12 months after being asked to leave, Keith slept in a car at a friend's home. He then returned to Sydney where he was homeless for about 12 months until he found accommodation in a boarding house. He does not give evidence about having any contact with the deceased during the period between 2002 and 2008. 100I am satisfied that, overall, Keith's relationship with the deceased was reasonably close, although they argued with each other. They would watch rugby league together, and, otherwise, provided some companionship to each other. 101Darren lived with the deceased until about 1999. He was in a relationship from 1999, married in 2000, and for a short time between 2003 and August 2004, he and his family moved in with the deceased, before they moved to Tweed Heads and then to Cobar, where they lived in government assisted housing. His marriage ended in 2007 and it was about then that he returned to live with the deceased. During the period he did not live with the deceased, he saw the deceased every 8 months or so, but did speak to him by telephone more regularly. 102His relationship with the deceased was reasonably close, overall, also, although they, too, argued with each other. They would watch rugby league and play snooker together. With Keith, Darren and the deceased would go to the local leagues club on most Tuesday and Thursday nights. He, also, provided some companionship for the deceased. 103The evidence also reveals that there were heated arguments between the deceased, Keith and Darren. One particular example related to an event in late 2009, or early 2010, in which Keith and Darren became upset about the terms of the deceased's Will and the fact that the deceased had made Colin his Attorney. Another event occurred a few months later, when the deceased sought Colin's assistance to have both Keith and Darren move from the Tweed Heads property. 104It was submitted, on behalf of the Plaintiffs, that the cause of the arguments and any other conflict between them was because the deceased drank heavily. In this case, the cause of the disharmony does not really matter, since it was not submitted, on behalf of Colin, that the relationship of the deceased with either Plaintiff was such that it would reduce the entitlement to provision out of the deceased's estate if provision were otherwise considered to be made. 105Colin asserted that he had a very close relationship with the deceased, although he left home in about 1980. He and his wife returned to live with the deceased for a short time in about 2009, whilst they were building their present home. On 10 April 2002, Colin was appointed as the guardian of the deceased. However, no financial management order was made at that time. 106I am satisfied that Colin did have a very close relationship with the deceased. He, no doubt, provided a calming influence, although it seems clear that the Plaintiffs resented his significant role in the deceased's life. (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 107Disregarding any obligation, or responsibilities, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation or responsibility to either Keith or Darren imposed upon him by statute or common law. Other than for accommodation, it appears that each had been financially independent, for many years, prior to the deceased's death. 108There was no legal obligation or responsibility to Colin either. However, bearing in mind his contribution to the building up of the deceased's estate, it might be that there was some obligation upon the deceased to make provision for Colin, particularly as he had identified such an obligation when he showed Colin his Will in which Colin was named as the sole beneficiary. (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 109I have dealt with this earlier in this judgment. The value of the estate, on any view, is not large. (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 110Keith receives a pension, which is, currently, $716 per fortnight. He accepts that he has a surplus of income over expenditure, but this, at least in part, arises because he pays no rent and pays only half of the electricity bill. His income is increased by the amount of $20 paid to him, each fortnight, by Darren, as his share of the electricity costs (the total of $40 a fortnight being deducted from Keith's Centrelink payments). 111Keith says that he owns: (a) a television, worth around $100; (b) a stereo system, bought new a few years ago, worth around $100; (c) some clothes, worth around $300; and (d) a double bed which is about 15 years old, worth around $300. 112He has no liabilities. 113As to his "needs", Keith states: "40. In the future, I will need provision of a place in which to live. 41. Ideally, I would like a small house or unit. That would cost at least a couple of hundred thousand dollars. 42. Darren and I have talked about buying on-site caravans. I believe it would cost me about $50,000 to $75,000 to buy one. Site fees on the caravan would be an additional $138 per week. If I could do that, hopefully my pension will cover the cost of the site fees. 43. I don't want to be living with Darren for the rest of my life. I want my own place. 44. I expect that a caravan will last me about 20 years at the most and will then need to be replaced. 45. I will also need furniture, crockery, linen and cutlery which I estimate will cost around $10,000. They too will need to be replaced from time to time. 46. Additionally, I will need sufficient funds to feed and clothe myself and for transport. I estimate these, in current terms, will cost around $200 each week. I am informed by my solicitors and verily believe that the lump sum necessary to provide $200 to me each week for the next 36 years until I reach an age of 83 years will be $231,240." 114Darren receives a NewStart Allowance of $469 per fortnight. 115Darren says that he has almost no assets. The few things that he owns are: (a) a second hand television, worth around $100; (b) a stereo system, bought second hand a couple of years ago, worth around $50; and (c) the few clothes worth around $200. 116He has no liabilities. 117As to his needs, Darren says: "52. In the future, I will need provision of a place in which to live. 53. I would like to stay in the [Tweed Heads] house but I know that it is not possible. At some stage, I would like a place of my own. Ideally, I would like a small house or unit. 54. I am hoping to be able to buy a mobile home in which to live. Keith and I have costed these at Chinderah in New South Wales. They range in price from $50,000 to $75,000. On site fees would also have to be paid though. 55. I expect that a caravan will last me about 20 years at the most and will then need to be replaced. 56. I will also need some furniture, crockery, linen and cutlery which I estimate will cost around $10,000. They too will need to be replaced from time to time. 57 Additionally, I will need sufficient funds to feed and clothe myself and for transport. I estimate these, in current terms, will cost around $200 each week. I am informed by my solicitors and verily believe that the lump sum necessary to provide $200 to me each week for the next 43 years until I reach an age of 83 years will be $254,000" (In submissions, I was provided with different calculations such that the amount required for Keith would be $225,720 and the amount required for Darren would be $241,580.) 118The need to pay for legal representation to conduct the proceedings could also, in the case of each Plaintiff, be viewed as a need, particularly in the absence of other assets. 119The parties agreed that site fees for a demountable mobile home would be about $138 per week. There was no evidence of the amount of the bond, if any, which might need to be paid. 120There was an issue about whether each of the Plaintiffs would be entitled to rent assistance. It was conceded, however, on behalf of the Plaintiffs, that "individuals and families who are paying site fees for caravans are eligible for Commonwealth assistance". It was not accepted, however, that each was entitled to rent assistance. 121Senior counsel for Colin submitted that as Keith had been receiving about $110 per fortnight previously, by way of rent assistance, it was likely that he would be able to receive a similar amount. 122It was also submitted that each of the Plaintiffs would be eligible to receive a first homeowner's grant and stamp duties relief under NSW and Federal legislation. There was no specific evidence about any of these matters. 123I shall take into account the matter conceded by counsel for the Plaintiffs. 124Colin says that, at the present time, he is employed as a bus driver. He states that whilst his employment is uncertain, he has never been out of work throughout his adult life. His wife works also. He and his wife own a home ($545,000), which is subject to a debt secured by mortgage ($464,745). He has superannuation ($60,112), as does his wife ($53,196). They have house contents ($70,000) and two cars ($30,000 and $12,000 respectively). His wife owns some shares ($10,628). 125Colin's and his wife's combined monthly income is $5,634. He says that their monthly expenditure is $6,573. It appears that the surplus expenditure is met from borrowings. 126During submissions, senior counsel for Colin stated that he had no objection to each of the Plaintiffs taking whatever of the contents in the Tweed Heads property that he wishes to take. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 127Whilst Keith and Darren live together, neither cohabits with any other person. 128I have earlier set out the financial and material circumstances of Colin's wife. She has not sworn an affidavit in the proceedings, but Colin was not cross-examined upon the basis that he had not fully and/or adequately set out their financial and material circumstances. (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 129Keith left school in Year 9, not having obtained his School Certificate. He has had no further education since. He can read and write but has difficulty with big words and complex sentences. He has not worked since he was 15 years old. 130Keith was a passenger in a motor vehicle that was involved in a car accident in 1990. He went through the windscreen, as a result of which he suffered major head and neck injuries. He also lost distance vision out of his left eye. He has been on a disability pension since then. He has a permanent stutter. 131Keith says he has problems with his teeth. He may need dentures. 132Keith recently attended hospital complaining of undifferentiated abdominal pain and low back pain. However, the doctors were unable to find any cause of his complaints, describing "nil abdominal pathology". On presentation, he was also described as looking "well, was afebrile and haemo dynamically stable. His abdomen was soft and non-tender on palpation. His CVS and respiratory exams were unremarkable". He was shown as having "simple and parapelvic renal cysts". 133Keith attributes his medical problems to "stress". 134I shall later in these reasons refer to some of Keith's evidence. It was submitted that this evidence suggests a person with brain damage. I am unable to accept that submission since there was no expert evidence upon Keith's mental state, or whether he had, in fact, suffered brain damage. 135Darren left school midway through Year 8. He was not even 15 years old then. He can read and write but cannot spell. He has not worked since 1988, although he has for about the last two years, worked as a volunteer with Lifeline at Tweed Heads. He is an offsider on a truck. He works 3 days per week, which he says he enjoys, as it keeps him occupied and gives him an interest. 136Darren says that his health is otherwise good. (Following his separation from his wife and children, he suffered some psychological problems, including an adjustment disorder with anxiety, depression, unresolved loss and grief issues. However, he gave evidence that these problems have resolved.) 137He needs extensive dental work and probably dentures. 138Colin's health is said to be "moderate". He suffers from a variety of conditions, particularly high blood pressure, which is controlled with medication, and a hernia. He has referred to problems with his eyes, but in cross-examination this was accepted as being related to have to wear glasses and sunglasses whilst driving and that there was no specific problem for which he had received treatment. 139Colin gives evidence about some medical problems from which his wife suffers. Since she is neither a beneficiary, nor an eligible person, it is unnecessary to state these medical conditions. 140It is clear that each of Keith and Darren has no significant employment history and little formal education. It is clear that Colin, too, left school early. However, as submitted, he has chosen to work and to better his position and circumstances. (g) the age of the applicant when the application is being considered 141Keith is 46 years of age, having been born in April 1965. Darren is 41 years of age, having been born in July 1970. (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 142Neither Keith nor Darren asserts any financial contributions to the acquisition, conservation and improvement of the estate of the deceased. 143Keith asserts that he mowed the lawns and did some shopping for the deceased. Importantly, however, he ensured that the deceased took his medication. He also asserts that he and Darren assisted the deceased with putting up a front and back fence in the home in which they lived with the deceased. 144Darren asserts that he, too, maintained the garden and lawns and would carry out general maintenance around the Tweed Heads property. He also says that he brought home the beer that the deceased liked to drink. He would also keep the home tidy and assisted with washing and wiping up dishes and generally looking after the deceased. 145The evidence reveals that Colin inherited the whole of his great-grandmother's estate, which estate included real property at Newtown. His great grandmother died in 1968. The real estate was transmitted to Colin in about 1975 (when he attained the age of 21 years). The family continued to live in the Newtown property after the death of Colin's great grandmother without paying any rent or occupation fee. Colin maintained the Newtown property. 146Colin shared his bedroom with boarders whilst still at school so that his parents could receive additional income. The evidence also reveals that Colin paid board to his parents after he commenced work. 147In 1981, Colin transferred the Newtown property to the deceased. Colin received about $26,000, which he estimates was about half of its true value. The deceased told him that about $30,000 was all he could borrow. 148The deceased sold the property, in about 1998, for $418,000. At the time of the sale, the deceased did not give Colin any of the proceeds. However, he showed Colin his Will and said that all of his estate would be Colin's one day. 149The deceased used the proceeds of sale of the Newtown property to pay for the Tweed Heads property, the purchase price of which was $216,000. It appears that it was only as a result of the deceased coming to own the Newtown property, which was sold to him by Colin, that there is any estate at all. 150I am satisfied that Colin's contributions were substantial and these were recognised by 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 151The deceased permitted each of the Plaintiffs to reside with him during his lifetime, and did not charge him rent or an occupation fee. They each contributed $50 to "pay the bills". 152Since the death of the deceased, each of Keith and Darren have continued to live rent, or occupation fee, free in the deceased's property. In my view, particularly bearing in mind the order of Davies J, with which neither of them has complied, remaining in occupation since the deceased's death, has been of significant benefit to each, whilst a significant detriment to Colin. 153Keith did not receive any additional gifts, or other provision, from the deceased during the deceased's lifetime. 154Darren received $800 from the deceased in about 2000, and $2,100 in 2004 or 2005. In each case, it was whilst Darren was married. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 155The Plaintiffs assert that the deceased made a will prior to the death of their mother, in which his estate was divided equally between Keith, Darren and Colin. A copy of that Will was not produced and Colin denied having seen any such Will. He admitted that he had heard about such a Will, but only from the Plaintiffs. 156Otherwise, the only evidence of the deceased's testamentary intentions is the Will, Probate of which has been granted. (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 157There is evidence that the deceased was partly maintaining each of Keith and Darren at the date of his death, since each lived in the Tweed Heads property at that time, rent or occupation fee free. (l) whether any other person is liable to support the applicant 158Apart from the Commonwealth government's responsibility to continue to provide Keith with a disability pension, and Darren with a NewStart Allowance, there is no other person with a liability to support either of the Plaintiffs. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 159The Act does not limit the consideration of "conduct" to conduct towards the deceased. 160The most significant matter relating to the conduct of the Plaintiffs relate to the failure of each, with knowledge, to comply with the orders of the Court. In this regard, and to demonstrate the views expressed by each, I set out part of his evidence. 161Keith's evidence, relevantly, was: "Q. I'm sorry? A. I won't be moving out unless I see money. Q. Now you were one of the defendants in possession proceedings where Mr Smith, your brother, tried to get access to the house so it could be sold, do you understand that? A. When I see me money I will leave the premises. Not beforehand. Q. Please Mr Smith, can you listen to the question. You were a defendant in proceedings brought against you by your brother and you understood that those proceedings were seeking to have access to the house so it could be sold, is that right? A. (Witness nods). Q. Yes? A. (Witness nods). Q. You're nodding? A. Yeah okay. Q. All right. And you discussed those proceedings in an affidavit that you swore on 3 August 2011. Do you remember filing an affidavit or swearing an affidavit which talked about what you called the eviction proceedings? A. Such as trying to evict us out of the house, yes I know. He took us through tribunals and everything and never succeeded. Q. I'm sorry? A. He took us through the family tribunal and never succeeded with it because there was no, there was no, what do they call it? A lease agreement. Q. Now I'm asking you about the Supreme Court proceedings. Are you aware that in May 2011, so May this year, the Court ordered that you were allowed to stay in the property if you paid $50 each, a hundred dollars between yourself and your brother to Mr Colin Smith? A. The simple reason I won't pay him a hundred dollars a fortnight is because we don't see nothing. He came down. He cleaned my Dad's room out. Never told us nothing. I sat down at the table. I tried to tell him 100,000 times all the mail that was coming into the house I would sit it down on the family table. I would wait for him to come home from work. I would ask him to sit down at the family table, me and Darren, the three of us, open up the mail and see what's going on. He refused. Took the mail into the room, opened it up with Lyn and never showed us nothing. Q. Are you saying that you refused to pay the Court ordered $50 a week on the basis that you didn't like the way your brother treated the mail? A. That's right and plus he took money out of Dad's room behind our backs. Q. Now you were aware that the Court had said that you could stay in the house past this hearing if you paid $50 a week, you knew that didn't you? A. Sorry? Q. You knew that the Court had said that if you paid $50 a week and your brother paid $50 a week you'd be allowed to stay in the house until after these proceedings were finished, you understood that didn't you? A. I never paid nothing. I refuse to pay. Q. I understand that but you understood that's what the Court said. The Court said you can stay there if you paid $50 a week? A. (Witness nods). Q. Yes? A. (Witness nods). Q. You understood that? A. I understand that. Q. And you did not pay any amount of $50 a week did you? A. That's right. Q. And you didn't make any mention of that in your affidavit of 3 August 2011. Perhaps this witness could be shown page 74 of the Court book, the affidavit of 3 August (shown). Now Mr Smith you said in that affidavit, you talked about the eviction proceedings and you set out there the fact that you have incurred costs in relation to those eviction proceedings, do you agree with that? A. Cost as what? Q. In paragraph 7 of the affidavit you say that your costs were approximately $10,000 in early May, do you see that? A. My legal bills. Q. Now you understand that after 3 May the judge made an order that you could stay if you paid $50 a week for the estate and you've agreed that you understood that at the time. Now what you did, and you failed to pay that $50 a week, and then there was a further hearing, do you remember that? A. I don't remember it. The reason why I refused to pay is like I said, I'll keep resaying it, over and over and over. Q. You don't need to repeat what you've said. I'm just asking about your knowledge as at May when you failed to pay the $50 a week you knew that there would then be another hearing didn't you? A. I was here at the hearing. Q. And you know that the other hearing which happened in June meant that your defence was struck out, you understand that? A. No, I don't. Q. What I'm saying to you is that if you paid the $50 a week there wouldn't have been a need for another hearing, would there? A. Why should I pay somebody? You tell me something here, why should I pay somebody that comes down to the house, goes into me Dad's room, takes everything, money, everything. Never confirms it with me. Never confirms nothing with me and Darren. Nothing whatsoever." 162I then asked: "Q. Mr Smith the answer to that question is that there was a Court order. Why didn't you comply with the Court order? A. The simple reason your Honour why I didn't comply with the Court order is he came down to the house, he cleaned Dad's room out, he took all the money. He took everything out of Dad's room. He never confirmed with us nothing. Q. When was that? A. This is after Dad passed away, not too long after. Q. How long after? A. I'd say about a week after. Q. So that was in June 2010 your father died? A. That's correct. Q. So this would have been in late June or early July 2010? A. Well your Honour-- Q. Is that right? A. He came down, he came down to the house after Dad passed away. He said to me and Darren that he was going to stay there. He was staying in the front room of the house, one part there. He said it was too noisy which was a lie to me your Honour. I knew it was a lie. Q. This all happened in June or July 2010? A. 2010. Q. The judge's order where he ordered you to pay $50 a week was in May 2011? A. Your Honour I refused to pay-- Q. Is that right? A. Yes, I refused to pay him on that reason because he came down, he cleaned out Dad's room. He cleaned out over a thousand dollars out of Dad's room. Right. Never told us nothing. He told me that Dad banked it. Now I want to see that evidence too here in the Courtroom plus I want to know where $60,000 plus went to out of there as well. Q. So you thought that because of your brother's conduct-- A. That's right. Q. You'd breach an order of the Court? A. Well I'm not breaching, I wasn't breaching the order of the Court. I was just doing what I think was right. Not pay him no money. Q. Well did you pay the money to your solicitor? A. No, I didn't pay the solicitor. Q. So you didn't pay, you didn't comply with the Court order, is that right? A. Yeah your Honour. Q. Thank you. A. I don't think it's right your Honour that he can come down to the house and turn around and take money out of Dad's room and not confirm it with us and then tell us that Dad had banked a thousand dollars which is a lie." 163The cross-examination continued: "Q. Now Mr Smith you said earlier that unless you got your money you weren't prepared to move out of the house? A. That's right. Q. Do you recall saying that? A. Yeah. Q. What do you consider your money when you gave that answer? A. Like I said my one-third that I'm entitled to as family. Q. And are you saying that unless you receive one-third of the estate you will refuse to move out of the house? A. That's right. Correct. Q. Even if another court tells you to? A. That's right because I have nowhere to go. Q. And you would be prepared to breach a Court order to give possession to the estate if you feel that you haven't been done right by, is that correct? A. That's correct." 164Darren's evidence, relevantly, was: "Q. You knew, didn't you, that Justice Davies ordered that you and your brother pay $100 a week between you? A. Yes, that is correct. Q. To your brother? A. Yes. Q. And on that basis you would be allowed to stay in the house until these proceedings, your proceedings were heard? A. Yes. Q. You understood that? A. Yes, that is correct. Q. When did you first understand that? A. Since I got notice of it. Q. So, that would have been shortly after the hearing of 12 May? A. Yes. Q. It is true, is it not, that you have made no payment at all? A. Yes, that is correct. Q. You knew that there was a Court order requiring you to pay $50 a week? A. Yes. Q. And you failed to do so? A. Yes, that is correct. Q. Why is that? A. Because I am not paying my brother nothing. Q. I am sorry? A. I won't pay my brother nothing. Q. Even when a Court tells you to? A. No, I still won't pay it. I will pay it to my dad but not to my brother. Q. You knew that that is not a good reason in the eyes of the Court, is it? A. Yes. Q. Still you did it? A. Yes. Q. If a Court ordered you to do something which you did not want to do because you thought it might be giving your brother a benefit, would you still refuse to do it? A. Yes. Q. That would include moving out of the house if you did not get what you were entitled to in these proceedings? A. Yes. Q. You say to his Honour that if his Honour gives you less than you think you are entitled to you would refuse to move out? A. Not if it is enough to get a roof over my head. Q. How much do you think you are entitled to in these proceedings? A. I seen a will years ago, one third each. That was between mum and dad. Q. Are you saying to his Honour that you are entitled to get one third? A. As long as I have somewhere to stay, a roof over my head. Q. Are you aware of the requirement that people obey Court orders? A. Yes. Q. That failure to obey a Court order can lead to punishment? A. Yes. Q. You still say to the Court that unless his Honour does as you require, you would refuse to move out? ... Q. Do you still say that if the Court gives you less than you feel you are entitled to you think you would be entitled not to move out? A. No, I would still move out as long as I have enough to get a place of my own. Q. If you did not get enough to get a place of your own what would you do? A. I would probably have to rent." 165The conduct of Keith and Darren in failing to comply with a Court order is worthy of censure. Furthermore, in the witness box, whilst being cross-examined, Keith was combative and stated that questions being asked were unnecessarily intrusive and no business of the Defendant. (I do not think that this was caused by a desire not to disclose the information but rather by a misplaced belief that the answers were irrelevant.) Both Keith and Darren considered that he had a right to equal provision out of the deceased's estate. 166I understand that viewed from the position of each Plaintiff, the deceased had acted unreasonably in leaving him nothing. Colin had received everything. Furthermore, Colin had succeeded in disturbing the possession of the Tweed Heads home, which each of the Plaintiffs had enjoyed for several years. Each considered that he was entitled to provision out of the deceased's estate. It was quite clear that Keith, in particular, was very emotional about all of these matters and had been for some time. 167I accept that what I have stated above might explain the evidence that was given. It does not justify it. Nor does it provide any excuse for the attitude of each Plaintiff in his complete disobedience to the Court's orders. 168It is conduct that I consider that is relevant to these proceedings. (o) any relevant Aboriginal or Torres Strait Islander customary law 169This 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 170A matter that I consider relevant is that Colin received the deceased's car in 2003. The car was sold for $8,000 and Colin distributed the proceeds of sale equally between his two sons. 171There is no other matter that I consider relevant

Eligibility 172Keith and Darren, as a son of the deceased, is each an eligible person under s 57(1)(c) of the Act. As such, he does not have to establish factors warranting the making of her application. There is no dispute that the proceedings brought were commenced within the time prescribed by the Act. 173I must consider, at this time, first, whether adequate provision for the proper maintenance, education, or advancement in life, of each of the applicants, 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. 174There was no provision in the deceased's Will made for either Plaintiff. (The operation of the intestacy rules is irrelevant.) This does not, automatically, mean that he will have established the jurisdictional threshold. 175However, I have come to the view that Keith and Darren has done so in this case. There was not, and there could not realistically be, any dispute that the jurisdictional threshold had been met by each of them. Senior counsel for Colin accepted that the first stage of the two-stage test was satisfied. 176It is then necessary to consider whether to make a family provision order and the nature of any such order. This is a more difficult question because of the very strong competing claim of Colin and the recognition of the deceased's freedom of testation. 177I should deal briefly with the reliance by the Plaintiffs on life tables and the suggestion that each should receive a lump sum calculated at the rate of $200 per week for the remainder of his life. 178In Tchadovitch v Tchadovitch [2010] NSWCA 316, Campbell JA commented at [73]-[74] (Allsop P agreeing at [1]-[5] and Young JA agreeing at [94]): "73 I would not want my finding that it was within the discretion of the trial judge in the present case to take into account the expert evidence, to be taken as encouragement for parties in Family Provision Act cases to provide expert evidence of the type that was provided here. Presumably it would be of little assistance in many such cases because the assets were insufficient to meet all claims. In the present case, a sufficient reason why the judge was justified in taking it into account was that both parties conducted the case on the basis that such evidence was appropriate for him to consider. 74 There is no issue before us concerning the admissibility of such reports, but such an issue might arise in future cases. It might arise at the level of whether the assumptions were adequately established, or at the level of whether a ground for exclusion under section 135 Evidence Act 1995 was made out. Alternatively, if admitted, a question might arise about whether cross-examination should be limited. There are some other matters of potential concern besides admissibility. One is that, many testators manage to write wills that make proper provision for their family without calling on an actuary or accountant to help them do so. When the Act enables the Court to make proper provision for eligible people when a testator has failed to do so, it is far from clear that the Court ought to do so using a type of factual material that a testator is unlikely to have used. Another is that it would be a matter of concern if the costs of Family Provision Act cases were increased through regular use of such reports. The effect of these matters can be left for future decision." 179In this case, not only is there no expert evidence, there is no rational basis for choosing $200 per week. Furthermore, if the Court acceded to the submission, the Plaintiffs, together, would receive virtually the whole of the deceased's estate, after the payment of costs. Bearing in mind the very strong competing claim of Colin, it is clear that this would not be an appropriate result. 180In reality, each of the Plaintiffs seeks a modest lump sum to enable him to buy a demountable mobile home, some furniture, and otherwise to provide for exigencies of life. Even though it is submitted that the cost of the demountable mobile home is in the order of $75,000, there is other evidence, which I accept, that cheaper accommodation of that type could be obtained. 181Darren, who said he had inspected some demountable mobile homes, admitted as much and acknowledged that the higher end of the range of costs suggested in his evidence was for two-bedroom accommodation. Each Plaintiff acknowledged that he only needed one-bedroom accommodation. 182I am of the view that each Plaintiff should receive a lump sum that will enable him to purchase a one bedroom demountable mobile home, some furniture and whitegoods. An amount for moving, and set up costs, as well as to provide something for exigencies of life, should also be allowed. 183Taking into account the effective provision made by the deceased for accommodation for the period from his death, including the occupation fee ordered to be, but not, paid by each Plaintiff, and considering the costs that would have to be paid by the Plaintiffs, as ordered by Davies J, in the possession proceedings, I consider that each Plaintiff should receive a lump sum of $77,500. The burden of the provision should be borne by the Defendant. 184After the payment of the lump sums ($155,000), the balance of his legal costs and disbursements ($48,548), the costs of sale of the Tweed Heads property ($15,000) and the Plaintiffs' costs (say $81,692), the Defendant should have a reasonably large capital sum remaining (about $320,000). (In re-stating the Plaintiffs' costs estimate, I should not be taken to be expressing any view on the reasonableness of the Plaintiffs' and the Defendant's quantum of costs. I am simply using the estimates provided in the evidence.) 185The lump sum should be paid simultaneously with each of Keith and Darren vacating the Tweed Heads property. The amount to be paid to each should not be the subject of deduction for his costs, which should be paid, so far as the Plaintiffs are concerned, in some other way. If possible, the parties should co-operate in working out a way that would enable each of the Plaintiffs to be satisfactorily housed. 186A period of say 2 or 3 weeks, or such other period as is agreed, to vacate the Tweed Heads property should be allowed, calculated from the date when written notice is given to the Plaintiffs' solicitors that the lump sum is available to be paid to each of the Plaintiffs. This time period may enable them to locate the demountable mobile home to which each will move. If possible, part of the lump sum should be used to purchase such a home. 187For every week thereafter, the amount of $450 should be deducted from the provision made for the Plaintiff who remains in occupation without the consent of the Defendant. If both remain in occupation without consent, then $225 per week should be deducted from the provision made for each, until he vacates the premises. 188It follows from what I have said, that the costs ordered to be paid by Davies J will be treated as having been satisfied by the Plaintiffs and no claim for mesne profits may now be sought by Colin from either, or both, of the Plaintiffs, since I have taken into account that claim. 189Thus, subject to the payment of the lump sum in each case, and the Plaintiffs' costs, all proceedings between the parties should be finalised and there should be no reason for further disputes between them. 190I do not allow interest on the lump sum since the Plaintiff may remain in occupation as set out above. No interest is allowed on the lump sum payment if the Plaintiffs do, or either of them does not vacate the Tweed Heads property. 191In relation to costs, I was requested to delay the determination of costs so that each party could make further submissions if agreement cannot be reached. I shall hear any argument on the burden of costs and whether the costs, of either party, should be capped, or otherwise be recoverable. 192I would hope that the parties are able to reach agreement on costs. However, if they are unable to, I shall decide this issue also as well as the method by which the Plaintiffs' costs, if any, payable out of the estate should be secured. 193I stand the proceedings over to a mutually convenient date. I direct the parties to bring in short minutes to reflect the reasons for judgment.

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: 31 August 2011

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