Smith v Smith

Supreme Court of NSW|2016-07-20|Before: Hallen J, Santow J

The Relationship of each Party with the Deceased

Because a considerable amount of time was spent on this issue, and because the principal submission made by Lucas was that the relationship of each of Mark and Leanne was such that he, and she, should be regarded as having been estranged from the deceased, I shall deal with this issue next.
The context which gave rise to the relationship of each of the parties with the deceased, some of which I have set out earlier, is relevant.
Mark's evidence about his relationship is that, at least until 2007, he was "always a loving and loyal son". Although there is a dispute about the regularity of his visits to the deceased, I am satisfied that his relationship with the deceased until about 2007, was a reasonably close one.
He admits that he became estranged from the deceased in 2007 "for reasons unbeknown to myself". He describes the incident which prompted him not having further face to face contact with the deceased, in the following terms: "It was in February 2007 that I went to see dad. I had just dismounted my motorcycle and removed my helmet at the gate, when I heard a commotion coming from the home. I saw my father waving his arms about, yelling in my direction, and once I broke his words down I realised he was saying the following: Dad: "Fuck Off!" Me: "Why?" Dad: "I don't want you here." It was seeing my father this way that I could not bring myself to argue further. I rode back out of the driveway and away towards town, where I remained by the Nepean River until my tears had ceased. I did not know why my father told me to go that day."
It was put to Mark, in cross-examination, that the reason for the deceased's conduct was that he had heard that Mark said that the deceased did not love his grandsons. Mark denied that he had made any such statement and reiterated that he did not know why the deceased had acted in that way. I accept his denial, as Lucas was not present at the incident involving the deceased and Mark. Also, Lucas did not suggest that the deceased had told Mark of the reason.
Lucas also admitted that he did not raise the relationship of the deceased and Mark again because he did not want his relationship with the deceased to change, realising, if he tried to intervene, that the deceased might become upset.
Mark admitted that, thereafter, he did not see, or speak to, the deceased, although he did send him, and Lucas, some text messages "for several years with wishes on their birthdays and Father's Day". He says that the total number of texts messages sent to the deceased, over the following 4 or 5 years, were between 10 and 15. No mobile telephone records to corroborate his assertion were tendered.
Mark admitted that he did not receive any acknowledgement, or response to the text messages, from the deceased. I formed the impression that he considered, perhaps with some justification in the circumstances, any attempt at reconciliation would be fruitless.
Lucas disputed the number of text messages that he had received from Mark, and did not know whether Mark had sent any text messages to the deceased.
Leanne said that from a young age, she and the deceased did not always see eye to eye, and they would have disputes, which Margaret would be required to mediate. After Margaret's death, her life became more difficult with, and she experienced isolation from, the deceased. Her relationship with him deteriorated to the point that the deceased told her that she was to live with her grandparents, which she did for a short period of time. She returned home, but a few months later, in about December 1989, she left the deceased's home, never to return.
The precise event or events that caused her to leave was not disclosed in her evidence or investigated during cross-examination. Nor was it made clear whether her leaving home, initially, was intended by her to be temporary or permanent. However, that probably does not matter much since it crystallised into a permanent situation. That she had no contact with the deceased for about 19 years before his death was not in dispute.
I formed the impression from her written, and oral, evidence that she felt a strong sense of grievance towards the deceased in regard to his treatment of her, particularly following the death of Margaret. No doubt, at this time, each was dealing, in her, and his, own way, with Margaret's death, and perhaps, neither comprehended the sense of loss felt by the other.
Although Leanne did not specifically mention it in an affidavit, there is evidence from Melissa Lonergan, a friend of Mark and Leanne, who stated that in around 1990 or 1991, whilst at the Chittaway Tavern, she encouraged Leanne to greet the deceased who was also there. Ms Lonergan observed Leanne to do so as he walked by the table at which they were sitting, and that the deceased did not respond to Leanne's greeting.
Leanne next spoke to the deceased in 1995 when she was about 22 years old, at the wake of the deceased's mother, but, again, he did not respond to her greeting. Thereafter, neither she, nor the deceased, made any attempt to contact the other. I consider the following passage of oral evidence given by Leanne as instructive (editing transcript errors): Q. Just let me understand some of the evidence you gave to Mr O'Brien, is this the position that the second last time you saw your father was in 1989? A. There was a time at a tavern that - I think it's - I don't know if I've put it in mine, but I saw him at a tavern. Q. But the [second] last time you spoke to him was in 1989? A. Yes, yes. Q. Then you spoke to him again, the last time I think you told Mr O'Brien, in 1995 but he didn't respond to your greeting. Have I understood that evidence? A. Yes. Q. Then have I understood your evidence to be that since 1995 you made no further attempts to contact him either by telephone, through Mark or otherwise? A. I didn't. I couldn't handle another rejection. Q. Did either of your brothers ever tell you that [the deceased] wished to speak to you or anything like that? A. No."
Lucas maintains that Leanne's decisions to leave, and to not return, to the deceased's home had been her decision alone and not one forced upon her by the deceased. However, he says that he and the deceased never discussed the deceased's relationship with Leanne.
Lucas had the closest relationship with the deceased. As I have stated, he lived with the deceased for all of his life until he left home to live with Rebecca. He admitted that living at home with the deceased had benefitted him because he had not had to pay any rent, but he said that he did pay some of the expenses whilst he was living there.
Lucas looked after the deceased for the last 6 weeks of the deceased's life, resigning from his full-time employment to do so.
Lucas admitted that he did not inform either Mark or Leanne of the deceased's terminal illness, or tell either of the deceased's death. He said that he "respected [the deceased's] wishes on all matters" and that had the deceased asked to see either of them, he "would have taken the appropriate steps". He added that "if Dad told you to do something you do it".
Other evidence given by Lucas made clear that he does not now have, and since 2007, has not had, a relationship with either Mark or Leanne. He said that he does not regard them, any longer, as his family. He said that he would like to resurrect his relationship with his nephews, Jesse and Tyler, but realises the proceedings have not helped that to occur.
The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of "the character and conduct of the applicant" and "the conduct of any other person". (Although the reference to conduct does not expressly refer to the conduct of the deceased, "that must be a relevant factor in assessing the relationship of the deceased and any other person": Poletti v Jones [2015] NSWCA 107, per Basten JA, at [25].)
The nature of the relationship and the acknowledged estrangement complicates the assessment of the obligation owed by a deceased parent to an adult child. However, in this case, its significance, particularly to the deceased, should be remembered. I refer to the evidence of what the deceased said, as transcribed in Ex. A, in 1994, and the provision made by him for each of Mark and Leanne in the 2007 Will, the nature of which provision was not altered until a few weeks before the deceased's death.
The event in 2007, which is said to have prompted the breakdown of the deceased's relationship with Mark, occurred prior to the date the deceased made the 2007 Will. In that Will, the deceased made some provision for Mark. That Will was not revoked, despite there being no contact between them for about 7 years thereafter.
By 1994, the deceased had not seen, or spoken to, Leanne for about 5 years. By 2007, he had not spoken to her for about 18 years. Yet, by his 2007 Will, he made significant provision for her.
The deceased's intention to benefit each of his three children was expressed to a friend of the deceased, Mr P K Skamperle. The deceased also spoke to Mr B F McInnes, another friend, about that intention. Each was not cross-examined on his affidavit. The deceased also said something similar to Melissa. (I accept that in each case, the statements appear to have been made many years prior to the deceased's death.)
I tend to the view that the breakdown in the relationship with each of Mark and Leanne had more to do with the personality of the deceased than with any desire of each of them to sever, completely, all ties with him. Each of the children of the deceased described the deceased in terms that suggest that forgiveness for faults, or perceived faults, did not come easily to him. Certainly, the deceased does not appear to have exercised any ability, or taken any responsibility for trying, to heal the rift that existed between himself and two of his three children.
No doubt, each of Mark and Leanne could have made greater efforts to resurrect his, and her, relationship, but that might have been difficult for fear of further rejection. Yet, each cannot be absolved completely from responsibility for the estrangement that continued. In the case particularly of Leanne, it does not provide a complete excuse for not trying at all to contact the deceased through Lucas, or otherwise trying to communicate with him in writing.
The virtual lack of provision for each of Mark and Leanne, as demonstrated by the terms of the deceased's last Will, does not appear to have been a long held testamentary intention of the deceased to deny each, because of his, and her, conduct, respectively, a greater share of his estate. (Perhaps less so for Mark, bearing in mind the terms of the 2007 Will).
There was a suggestion that Lucas may have encouraged the deceased to change his Will. He admitted that he had taken a document said to have been written by him in the presence of, and with instructions from, the deceased, to the solicitors who then prepared the last Will for the deceased. A call for the document referred to (bearing in mind the same solicitors represented Lucas at the hearing) did not result in its production.
Even if the allegation were relevant, there had been no challenge to the validity of the last Will, and Probate was granted of that Will. Therefore, counsel was not permitted to persist with the cross-examination of Lucas on this topic.
Finally, it is to be noted that the deceased did not provide any statement about the reasons for making the dispositions made by his last Will or for changing the 2007 Will. Nor did he tell Lucas of his reasons.
In my view, the estrangement that existed between the deceased and each of Mark and Leanne does not result in disentitling either to additional provision from the deceased's estate. The conduct of each was not callous or unfeeling. Each did not demonstrate ill-temper or violence towards the deceased. That each was unavailable to make amends at the end of the deceased's life may be explained by the fact that each was not informed, by Lucas, that the deceased was dying.
The conduct of each does, however, as I shall demonstrate later, by reference to authority, restrain, somewhat, the amplitude of the provision that ought to be made for him and her, respectively, from the deceased's estate.

Mark's financial and material circumstances

Mark is a member of the Royal Australian Navy, holding the rank of a Sailor, taking a position as a Dental Supervisor.
Mark says the value of his assets, including superannuation is $463,250. Of that estimate, approximately $408,528 is said to be his superannuation balance. Treating that amount as a financial resource, because it is said to be unavailable, he has property with a value of $54,721, of which about $35,000 is held as cash in bank. This amount is the balance of his Australian Defence Force Retention Bonus, which he would have to repay if he leaves the ADF prior to June 2019. (There is no suggestion that he intends to do so. To the contrary, he gave evidence that he intends to remain in the ADF and hopes to progress in rank.)
Mark and his family do not own any shares and do not have any interests in any company or corporations. He does not have any liabilities.
Mark's current gross annual income is $85,382. His fortnightly net income is approximately $1,810 (making a monthly net income of approximately $3,621). He states that his family's monthly expenditure is approximately $5,417. Part of the shortfall between Mark's net income and the family's expenses is made up by Melissa's income as a personal trainer. She earns approximately $10,000 per annum.
Jesse and Tyler are both in high school. Each works part time and makes what contribution he can to household expenditure. The contribution by each is unlikely to be financially significant.
Tyler hopes to attend university. Jesse does not know what he wants to do in the future but enlisting in the Navy is a possibility. At least in the immediate future, it is likely that each will continue to be dependent on Mark and Melissa.
Mark suffers from displaced and protruding discs in his spine, requiring podiatry orthotics, and has deteriorating vision. There was no suggestion that his medical conditions affect his earning capacity.
Mark conducted his case upon the basis that he and his wife do not own, and have never owned, real estate. He says that if additional funds were provided to him, he would use the funds as a deposit on a home. He says that he is willing to move to a more remote area (Taree, NSW or a more affordable area in Western Australia) in order to purchase a very modest home and continue living as a family unit.
He gave evidence that the costs of a house would be about $500,000. He did not give any evidence of having inspected any particular houses that were available for sale. Nor did he give evidence of what amount he might be able to borrow to fund such a purchase if he and Melissa do decide to do so.
I confess to having some doubt that the purchase of a house is a "need". Currently, the accommodation in which the family has lived for about 8 years, which he admitted was "comfortable", and the rent for which is subsidised, is secure, so long as Mark remains in the Navy. If he were to relocate to Western Australia (which he described as "a dream"), he could live "on base", with no accommodation costs. If Melissa and their children did not go with him, they would be permitted to remain living in his current accommodation, albeit that if either of Jesse or Tyler were no longer dependant, the rent might increase.
There is no suggestion of any significant benefits being provided to Mark during the deceased's lifetime. (He was given $500 by the deceased many years ago.) There was a period of time when Mark was living with the deceased with his family when he may have lived occupation fee free, but it was only for a few months. During this time, Melissa took the role of the housewife and supported the household in that manner.

Leanne's financial and material circumstances

Leanne was described, by her counsel in submissions, as "a wayfarer, who has kept the odd job from time to time".
She has property with a value of $162,440, of which $97,340 comprises contributions to superannuation. She has cash in bank of about $50,000. Otherwise, she owns no shares, property, or any other valuable assets. She has no liabilities.
She has recently (from about February/March 2016) gained employment at Rottnest Island, an island off the coast of Western Australia, a short distance west of Fremantle, as a casual store-person. She receives an average gross monthly income of approximately $4,281, with a net monthly income of approximately $3,458. Her monthly expenditure is estimated to be approximately $1,998. (In her previous position as a kitchen hand, she was earning an income of approximately $79,000 per annum.) It can be seen that, currently, she has a surplus of income over expenditure ($1,460).
Leanne's employment is by no means secure (being dependent on seasonal change) and her pay varies, depending on her rostered shifts. Because she lives on the Island, she is rostered to work shifts totalling 38 hours per week. She does not pay rent for her accommodation.
Leanne lives alone and has no dependants.
Leanne suffers from a number of medical conditions. Most significantly, at the date of hearing, she refers to an overactive thyroid (diagnosed in 2006), which will require her to take medication for life. There are various side effects of the medication, including weight loss, irritability and agitation. She also, until recently, suffered from contact dermatitis (eczema rash over hands and face) requiring wearing of gloves if working in a kitchen and limiting water contact that causes sensitivity. (This condition has improved since she left her last job.) She also suffers from deteriorating eyesight.
Leanne gave some evidence that her medical conditions did make her current job harder, although, to date, they do not appear to have affected her earning capacity.
Leanne conducted her case, also upon the basis that she does not own, and has never owned, any real estate. She says that if additional funds were provided to her, she would use the funds as a deposit on a home. She gave evidence of 4 bedroom homes, in Fremantle, available for purchase, which would cost in excess of $440,000. She explained that she needed such a large home to house friends and family who might visit. She gave no evidence of having inspected any properties for sale. Nor did she give evidence of what amount she might be able to borrow to fund such a purchase.
Again, I confess to having some doubt that the purchase of a house is a "need". Even if it were a "need", she does not require accommodation of the type she identified. Also, she admitted that her savings ($50,000) and the bequest in the deceased's Will ($30,000), together, would provide sufficient to pay a deposit for a home.
Whilst she said that a home might provide "some stability into my life", she gave evidence that she had "lived in more than 30 different places - houses, flats, caravans, car and tent and … had more than 20 different jobs. If I am unhappy I move on. I cannot help this. It is who I am. I learnt a long time ago that life is too short".
She was really unable to say where she might choose to live more permanently, saying that she had not yet found the place to settle down.
In my view, Leanne's history, and her evidence, does not suggest that she has any real desire to establish roots in any particular place. Indeed, she gave evidence that she did not intend to remain working where she is, although she might stay there for a couple of years; that she used the employment as a "stepping stone" to get into the tourism industry; and that she did not know where, or when, her next employment would be because "I haven't looked that much into it. I take one step at a time."
Leanne admitted that once the deceased had placed $500 in her bank account without any request by her. However, she stated that she returned it to him. Otherwise, the deceased did not provide any benefits to her after she left home.

Lucas' financial and material circumstances

Lucas was employed full-time as a hardware sales assistant with a gross income of $3,642 per month. He has recently changed jobs, but as he had not disclosed any of the changes by serving an updating affidavit, and as counsel for the Plaintiffs asserted prejudice because of an inability to investigate late evidence, counsel did not persist with the application for leave to adduce this evidence.
Rebecca, his wife, works for the Department of Family and Community Services as a caseworker earning approximately $4,202 per month.
Lucas has assets with a total net value of $279,683. These assets include a recently constructed home said to be worth about $450,000 to $500,000, but subject to a mortgage of $362,542. He and his family live in the home.
As stated earlier, he and Rebecca have a dependent child. He gave evidence that he and his wife "make ends meet to get by".
Lucas admitted that he had received a number of benefits from the deceased during the deceased's lifetime, including occupation fee free accommodation for many years, as well as a gift of between $30,000 and $34,000, to enable him to purchase previous accommodation. Whatever amount it was that the deceased gave to him, Lucas admitted that it was a significant benefit.

The Statutory Scheme

There was really no issue about the principles that apply to this claim. I have set out the principles in many cases and I set out what follows for the benefit of the parties.
Because there is no dispute about eligibility or that the proceedings were commenced within time, under s 59 and s 60 of the Act, the task of the Court, in this case, is: 1. to determine whether the provision made for the maintenance, education and advancement in life of each applicant by the deceased's Will (the operation of the laws of intestacy being irrelevant) is adequate and proper; 2. if the opinion is that the provision is inadequate, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made; and 3. in making that evaluative judgment, to have regard to, as discretionary factors, such of the matters in s 60(2) as it considers relevant. (The Court is not obliged to do so, the section stating "may have regard to".)
The mandatory legislative imperative that drives the ultimate result is the Court's satisfaction of the inadequacy of provision made by the deceased's Will. Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
In other words, it is the union of inadequacy of provision made by the Will of the deceased, and the Court's determination that an order for provision out of the estate of the deceased ought to be made, that gives rise to the success of each applicant for additional provision.
Other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, 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".
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 575, Dixon CJ and Williams J stated: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
In 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 early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 505, Murphy J wrote: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114], 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 a 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."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In Hay v Renwick [2016] NSWSC 1048, Brereton J, at [17], noted that "advancement … envisages not merely maintaining the standard or status of an eligible person, but in an appropriate case, improving and enhancing it".
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, 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."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], Callinan and Heydon JJ wrote: "[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 used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied."
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's "maintenance, education or advancement in life involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but 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. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, at [42] and [47], Tobias JA, with whom Beazley and Hodgson JJA agreed, said: "Further, 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 focussed. 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. ... 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 because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3) at [81], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. … 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]. Often "need", in the sense of the claimant's inability to satisfy his or her financial requirements from his or her own resources, and a "moral claim", in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased's estate) and contemporary accepted community standards, will co-exist. Sometimes there may be a strong "moral claim" but no "need". Sometimes the "moral claim" may be slight but the "need" dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without "adequate" provision for his or her "proper" maintenance etc. See Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 per Fullagar J at 281."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
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 or advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 1 at 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at 816 [38], 820 [47] (Ormiston J). It follows that "the jurisdiction is not an exclusively needs-based one": Hay v Renwick, per Brereton J, at [15].
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree. Consideration of "needs" must be in the context of the statutory formulation.
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
As was recently repeated by Ferguson JA (with whom Whelan and Kaye JJA agreed) in Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178, at [66]: "It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant's assets and income are just two facts that go into the melting pot in determining whether there has been adequate provision made."
In the event that the Court is satisfied that the power to make an order is enlivened, 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.
This part of the determination arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides: "(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. The inclusion of the last sub-section extends to any fact or circumstance which, in the opinion of the Court, is considered relevant. Like some of the other sub-sections, a matter to which regard may be had, may have occurred before, or after, the death of the deceased.
The sub-section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. As stated earlier, there is no mandatory command to take into account any of the matters enumerated.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit. The section, whilst providing a general power as to costs, does not apply to costs as between party and party, as opposed to costs to be paid out of the estate: Chapple v Wilcox [2014] NSWCA 392 at [25]-[26].

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst some of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.
Bryson J noted in Gorton v Parks at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. 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.
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of the freedom, in Grey v Harrison, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James [2014] NSWCA 4 at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479 at [44]. As Emmett JA wrote in Burke v Burke [2015] NSWCA 195 at [124]: "While community expectations and the feelings and judgment of the fair and reasonable man in the community are to be adopted as criteria, it is never self-evident what the community would expect or what its standards are or values would be. The expectations of individual members of the community may well vary widely… Indeed, it may be that individual members of the community would take the view that, apart perhaps from spouses, minors or disabled children, there should be no restraint on testamentary freedom. The Succession Act itself, in s 60(2), lays down criteria in very broad terms, leaving a very wide discretion for the Court."
In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added: "One way of considering the present matter is to inquire what social, domestic or moral obligation the deceased had to provide for the claimant whilst still alive… There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. In the present case, relevant community values will be affected by the nature of the estate. Quite particular values might operate with respect to farming properties which are subject to fluctuations in relation to debt and revenue depending on natural events and particularly drought. They may also be affected by the financial viability of an estate and its capacity to support those owning or managing it, if broken up and part disposed of."
Barrett JA, at [64], wrote: "What Allsop P called 'the feeling and judgment of fair and reasonable members of the community' falls to be ascertained according to the circumstances of the particular case. Matters to be taken into account in making the relevant assessment are the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Verzar v Verzar [2014] NSWCA 45 at [39]; Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [70]; McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse (above) at 210; Vigolo v Bostin (above) at [16], [75], [112]."
In Henry v Hancock [2016] NSWSC 71, Brereton J, at [69], wrote, summarising these authorities: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased as his, or her, parent having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113 at [30]; Savic v Kim [2010] NSWSC 1401, at [82].
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams at [89].
Because of the way in which Lucas was cross-examined, it is necessary to repeat what was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, at [46], by Kelly J: "There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Footnotes omitted)
In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse "strongly suggests that the Court cannot consider the adequacy (or inadequacy) and propriety of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
In relation to the claim of Mark and Leanne, being a claim by an adult child, the following principles are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801 at [57]; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, the community does not expect a parent to look after his or her child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary 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 at [58]. 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams at [86]. 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J). 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 7. 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 at 149. 8. 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. In Barna v Barna [2008] NSWSC 1402, Brereton J noted, at [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." In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J, at [57] - [58] commented: "The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children. That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation."
A very similar statement of the principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited, with approval, in Chapple v Wilcox at [21] (Basten JA); at [65]-[67] (Barrett JA), and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62].

Estrangement

Acrimony or estrangement between an applicant and the deceased is a consideration that has been at the forefront of Lucas' case in opposition to the claim by each of Mark and Leanne.
On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
I have discussed the topic of estrangement in a number of cases. Most recently, in Underwood v Gaudron [2014] NSWSC 1055, I set out the general principles which I repeat. (Although my judgment was the subject of an appeal, which was dismissed, the Court of Appeal did not indicate any disapproval of what I had written on this topic: Underwood v Gaudron [2015] NSWCA 269.) 1. The word "estrangement" does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased's estate is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. 2. The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: "... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." 1. There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. 2. The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. 3. As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." 1. Even if an applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That an applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. 2. The poor state of the relationship between an applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. 3. Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].
In Andrew v Andrew, Basten JA at [40] endorsed what I had said about estrangement, much of which is set out above, as follows: "As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience."
His Honour added at [49]: "The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant."
Also see the analysis of Ward JA in Burke v Burke [2015] NSWCA 195 at [89] - [95].

Qualifications on "Principles"

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; Burke v Burke [2015] NSWCA 195 at [84] - [85]. They must be remembered.

Determination

Claims for a family provision order present particular difficulties where the actual estate is modest and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiaries who have had to defend the claims and who are the chosen objects of the deceased's bounty.
Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, each of Mark and Leanne, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
There is no dispute that the proceedings were commenced within the time prescribed by the Act.
The fact that a small bequest is made in the deceased's Will for each Plaintiff does not, of itself, bespeak inadequacy. The Court is required to consider more than that. The totality of the relationship of each Plaintiff and the deceased, the age and capacity of the Defendant and any other beneficiaries, the claim of each on the bounty of the deceased, and the size of the estate, are very relevant factors in determining the answer to the question whether the Court is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of each Plaintiff.
The consideration of all of the matters I am required to consider leads me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of each of Mark and Leanne respectively. It follows that the Court has jurisdiction to make an order for provision out of the estate of the deceased for him and her.
I turn next to consider the nature and quantum of any provision that should be made. In my view the deceased had no legal obligation to maintain either Plaintiff prior to his death. It is clear that each Plaintiff had been financially independent of the deceased for many years prior to his death. Nor did the deceased have any obligation to treat his three children equally.
I do not accept the submission made by Mark's counsel that "[a]s an absolute minimum award of provision for Mark, the Court could consider an order that he receive a lump sum out of the deceased's estate equivalent to what the deceased clearly intended he receive, being 1/3 of the estate".
Nor do I accept his similar submission that, "as an absolute minimum award of provision, the Court would order that Leanne receive a lump sum out of the deceased's estate equivalent to what the deceased clearly intended she receive, being 1/3 of the estate".
In my view, the submission, in each case, does not take into account all of the matters that are required to be considered, and in particular the period of time, in each case, during which there was no contact between each of Mark and Leanne, respectively, and the deceased.
But this does not mean that I accept the Defendant's principal submission that each of the claims should be dismissed, because, in the case of Mark, he has "failed to demonstrate any significant need which would justify further additional provision being awarded out of the estate" and in the case of Leanne, that the legacy given to her in the Will ($30,000) is adequate and proper provision in all the circumstances.
I tend to the view that the deceased's obligation to each extended to making provision of a modest capital sum for exigencies of life, which can be used, if necessary, as a deposit on a home, or in any other way that Mark and Leanne, respectively, wishes to use it.
In my view, having regard to all of the matters that I am required to consider, Mark should receive, in lieu of his entitlement under the deceased's Will, a legacy of $90,000. Leanne should receive, in lieu of her entitlement under the deceased's Will, a legacy of $100,000.
In my view, Leanne should receive slightly more because her employment is less stable and because she does not have the support of a spouse or partner, in the event that her current financial circumstances change. The difference is not significant because she has no dependants to support, whereas, at least currently, Mark does have two teenage children. In addition, her lack of contact with the deceased was significantly longer than was Mark's.
In each case, the provision made, without reference to the savings that each has, should be sufficient to provide a reasonable sum for a deposit to be paid on the purchase of a home, if that is how each uses it, or alternatively, when added to his, and her, savings, respectively, a reasonable capital sum as a buffer for contingencies.
Having considered the quantum of the provision to be made, I shall next consider how the burden of the provision should be borne. I have considered the parties' submissions, to which reference has been made previously.
It seems to me that the legacy for each of Mark and Leanne should be borne in the same manner as each legacy was to be borne under Clause 4(a)(i) and (ii) of the deceased's Will. In this way, the deceased's intentions (except as to the quantum of provision for each of Mark and Leanne), will not be subverted to a greater extent than is necessary to make proper provision for each of Mark and Leanne.
It will also be remembered that under s 72(1) of the Act, a family provision order takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the will of the deceased person, if the deceased person made a will.
In view of the agreement between the parties as to the legacy for Jordan, that should be paid also, in accordance with Clause 4(a)(iii) of the deceased's Will.
Thus, from the net proceeds of sale of the Turondale property ($600,503), the legacies to Mark, Leanne and Jordan should be paid first ($220,000). Then, subject to any further submissions, the costs of the proceedings should be borne (say $118,000, or whatever sum is ultimately ordered to be paid for the costs of the proceedings). Then, the balance of the proceeds of sale should be divided in accordance with Clause 4(a)(iv) of the deceased's Will.
Using the estimates, an amount of about $260,000 will be left to be divided equally between Lucas, Bahlie, Jesse and Tyler, with the result that each will receive about $65,000. In addition, Lucas will retain the residue ($23,817) and the Box Ridge Property ($90,000). It follows that he will receive property in the estate with a total value of $178,817. That is significantly more (bearing in mind the net value the estate) than any of the other beneficiaries receives. The greater provision reflects his competing claim upon the bounty of the deceased.
I have referred to what was said on behalf of Jesse and Tyler in regard to a reduction of their shares. Properly invested, the share of the estate passing to Bahlie, will be reasonably large when it is paid to her. I have not disregarded the interests of any of these beneficiaries, but I consider that the obligation of the deceased to each of his children is greater than his obligation to his grandchildren.
As there is available cash, there is no reason why each legacy should not be payable within 14 days. If it is not paid then, interest at the rate prescribed in the Probate and Administration Act 1898 (NSW), on unpaid legacies should be paid calculated from the date of payment until it is paid. As the only beneficiary who can cause the payment of each legacy to be made is the Defendant, if interest is payable, it should be paid out of his share of the estate.
I shall reserve the question of how the burden of costs should be borne.
The Court orders: 1. Having found that each Plaintiff is an eligible person, and that adequate provision for his and her proper maintenance or advancement in life, respectively, has not been made for him and her, in the Will of the deceased, that the first Plaintiff, Mark Sonny Smith, in lieu of the provision made for him in the Will of the deceased, receive a lump sum of $90,000; and that the second Plaintiff, Leanne Cara Smith, in lieu of the provision made for her in the Will of the deceased, receive a lump sum of $100,000. 2. That pursuant to s 72 of the Succession Act 2006, each family provision order take effect as if the provision was made in Clause 4(a) (i) and (ii) respectively of the deceased's Will. 3. That no interest is to be paid on each lump sum, if that lump sum is paid within 14 days of the making of these orders; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from the share of the estate passing to Lucas, from that date until the date of payment of the lump sum. 4. The provision for each Plaintiff be borne by the share of the estate passing to the beneficiaries identified in Clause 4(a)(iv) of the deceased's Will. 5. If agreement cannot be reached on how costs are to be paid, any argument regarding the costs of the proceedings be heard at a date to be arranged at the time of the publication of these reasons. 6. That the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

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: 09 August 2016

Family Provision Act 1982(NSW)

s [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Hay v Renwick [2016] NSWSC 1048 Henry v Hancock [2016] NSWSC 71 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Marks v Marks [2003] WASCA 297 Palagiano v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Texts Cited: Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 Category: Principal judgment Parties: Mr Mark Sonny Smith (first Plaintiff) Ms Leanne Cara Smith (second Plaintiff) Mr Lucas Matthew Smith (Defendant) Representation: Counsel: Mr F Maghami (Plaintiffs) Mr S O'Brien (Defendant)

The Claim

HIS HONOUR: The Court is concerned, yet again, with a family dispute regarding the disposition of the estate of a deceased parent, he being the father of all of the parties to the proceedings. The case provides another example of the high level of emotion that is generated in relation to the distribution of the property of a parent. Despite various opportunities given to the parties to resolve the proceedings, they did not do so, and instead conducted the proceedings, the hearing of which lasted 2 days, at a combined estimated cost of about $125,000. (The hearing would have been longer, and the costs greater, but sensibly, after some encouragement, only the parties were cross-examined.)
In relation to some of the affidavit evidence that was read, one cannot help but remember, and now repeat for the benefit of the legal profession, what Pembroke J wrote in Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, at [19] and at [22], which, in my view, is particularly apt for those acting in claims for a family provision order: "It is common for some litigants to want to use their evidence as an opportunity to unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case. But a fair hearing of their case can be seriously hindered by such unfiltered outpourings. That is why, among other things, counsel have a duty to the court which is additional to their duty to the party whom they represent. This duty is a legal duty, not merely a rule of practice or etiquette: Teece, The Law & Conduct of the Legal Profession in New South Wales, second edition, Law Book Co, pages 30-35 and 41-44. … For those reasons, a strictly adversarial approach to the presentation of a party's case must sometimes be tempered. Counsel's duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence. In all cases, to a greater or lesser degree, the efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client's best interest. It is more likely to ensure that a just result is reached - sooner and with less expense."
The passages quoted refer to the duty of counsel. In my view, the duty extends equally to solicitors, who also must exercise professional judgment in determining the relevant, and necessary, information to be included in the affidavits to be read in the proceedings.
The Plaintiffs, Mark Sonny Smith, and Leanne Cara Smith, are two of the three children of Ross Gilbert Smith ("the deceased"). Each makes a claim for a family provision order out of the estate and/or notional estate of the deceased pursuant to the Succession Act 2006 (NSW) ("the Act"), by way of greater provision than was made by his Will. They also seek an order that their costs of the proceedings be paid out of the estate.

At a glance

Court

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Before

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Judgment (11 paragraphs)

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Legislation Cited (3)

Cases Cited (78)