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[2014] NSWSC 585
Supreme Court of NSW
2013-12-16
Kunc J
Original judgment source is linked above.
Summary 1In 1991 the plaintiff ("Ms Hart") met the late Herman Peter Damien Van Son. He was known as "Harry" and, without disrespect, I shall refer to him by that name in this judgment. At the time he met Ms Hart, Harry was 42 years old and Ms Hart was 18. Between 1992 and 2010 Ms Hart lived with Harry. Since then she has formed a new relationship and had a child. 2Harry died intestate on 28 December 2011. On 12 June 2012 letters of administration of his intestate estate were granted to his mother, the defendant ("Mrs Van Son"). At the date of the hearing Mrs Van Son was about to turn 91 years old. 3The estate is small. It consists of Harry's farming property (with residence) at Wagga Wagga (the "property"), for which there are appraisals in evidence valuing it between $280,000 and $360,000. At the time of Harry's death he had furniture and personal effects said to have a value of $2,000 and money in the bank of $2,500. 4Because Harry died without either a spouse or any issue, Mrs Van Son is entitled to the whole of her son's intestate estate (s 128 of the Succession Act 2006 (NSW) (the "Act")). By summons filed on 20 November 2012, Ms Hart applies for provision out of Harry's intestate estate under s 59 of the Act. 5The Court is not satisfied that there are factors warranting Ms Hart's application or that adequate provision has not been made by the operation of the intestacy rules in relation to Harry's estate. Ms Hart's summons will be dismissed.
The Act 6Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to be "made not later than twelve months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown". Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. 7For the purposes of these proceedings, the relevant provisions are: 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. 60 Matters to be considered by Court (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, ... (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 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, ... 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. 61 Other possible applicants (1) In determining an application for a family provision order, the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate) but who has not made an application. (2) However, the Court may disregard any such interests only if: (a) notice of the application, and of the Court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 8In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case. 9By reference to the language of the Act, the questions and issues which the Court must take into account are: (1)Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation. (2)If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))? (3)If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? (4)If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person). (5)If the answer to question (4) is "yes", having regard to all the circumstances of the case (whether past or present) are there factors which warrant the making of the application (s 59(1)(b))? (6)If the answer to question (5) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")? (7)Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? (8)If the answer to question (7) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened. (9)Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)). (10)Having answered question (9), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)). (11)Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. (12)Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "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". The Discretion is otherwise unconfined, which means that in answering question (9) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred. 10Having identified what I consider to be the correct approach under the Act to an application of this kind, I will first deal with uncontroversial matters, then describe the estate and set out the history of the relationship between Ms Hart and Harry. I will then set out the circumstances of each of Ms Hart and Mrs Van Son as I find them to be at the date of the hearing. In making the various findings I will identify the material matters that were in dispute.
Uncontroversial matters 11The answers to the questions posed in paragraphs 9 to (4) above are not in dispute. 12Both as the plaintiff in the proceedings and the person in whose favour the order is sought to be made, Ms Hart is an eligible person under s 57(1)(e)(i) of the Act as a person "who was, at any particular time, wholly or partly dependent on the deceased person" or s 57(1)(e)(ii) as a person who was "at any other time, a member of the household of which the deceased person was a member". 13Ms Hart's summons was filed not later than 12 months after Harry's death. 14Finally, Ms Hart's and Mrs Van Son's interests are the only interests which the Court needs to take into account. Harry had been married but divorced his wife, Lisa Brumby, in 1985, six years before he met Ms Hart. Mrs Van Son's lawyers have undertaken electoral roll and other searches but have been unable to locate Ms Brumby. Mrs Van Son has no knowledge of Ms Brumby's whereabouts or what name she might be using. In those circumstances I made an order at the hearing dispensing Ms Hart from compliance with the Court's rules concerning notice of the application being served on Ms Brumby (who would otherwise be an eligible person). Furthermore, on the basis of the facts to which I have just referred, in accordance with s 61(2)(b) of the Act the Court determines that service of any such notice is unreasonable or impracticable. Pursuant to s 61(2) of the Act the consequence of that determination is that the Court may disregard Ms Brumby's interests in determining Ms Hart's application for a family provision order.
The estate 15By the time of the hearing, the only asset in the estate was Harry's farming property at Wagga Wagga. Mrs Van Son tendered into evidence two appraisals, one for $270,000-$290,000 and the other for $290,000-$310,000. The property is 80 acres. The house on the property is vacant and unkempt. Ms Hart's appraisal valued the property at $340,000-$360,000. 16It was submitted that the estate agent who had provided the appraisal tendered on behalf of Ms Hart was more familiar with valuing country properties than the agents used by Mrs Van Son. Without making a finding to that effect, I nevertheless take that possibility into account by adopting a figure slightly higher than the average of the lower and higher appraisals. I find, on the balance of probabilities, that the value of the property is $320,000. 17It was common ground that the property would have to be sold if provision for Ms Hart was ordered. There was no dispute that the costs of sale would be approximately $10,000. Mrs Van Son is entitled to be reimbursed for certain out of pocket expenses proven at $10,678. Her legal costs are $53,460. Ms Hart's legal costs on the ordinary basis are $55,008. This means that if provision in favour of Ms Hart is to be made and costs ordered in her favour, the net distributable estate available for provision to be made for Ms Hart after payment of all liabilities and costs is $190,854. 18I should also record that there was some debate between the parties about what was said to be a valuable stamp collection owned by Harry. There was some evidence that the collection had been taken by Harry's sister, Elizabeth, after Harry's death. Beyond reference to an assertion on behalf of Mrs Van Son that the stamps were of little or no value, there was no evidence about their value or current whereabouts. Ms Hart's counsel did not suggest that the evidence provided any sufficient basis for the stamp collection to be taken into account in determining the net distributable value of the estate. The parties did not pursue the question of the stamp collection (or a coin collection that was also referred to) any further. Therefore, these matters form no part of my findings in relation to the estate.
The relationship between Ms Hart and Harry 19Ms Hart met Harry in 1991. He was 42 and she was 18 years old. Within 12 months they began living together on the property. At that time the property was owned by Mrs Van Son. 20From 1992 Ms Hart was employed in various capacities. In 1995 she purchased a business known as Access Business Services, earning between $700 and $1,000 per week. Throughout their relationship, whatever income Ms Hart earned was devoted to living expenses for her and Harry. Harry never asked her to pay rent. 21When their relationship began, Ms Hart only had her personal effects. That remained the position after she was discharged from bankruptcy in 2001 (see paragraph [24] below). Similarly, when her relationship with Harry came to an end in 2010, Ms Hart only had her personal effects and some superannuation. 22The evidence about Harry's finances during the relationship supports general findings that he had no regular employment, but he did have some savings, his pension (see paragraph [23] below) and a superannuation payment (see paragraph [25] below). He tried, with no financial success, to make a living as an inventor. From time to time he may have sold a few cattle and bought, repaired and sold some cars (he was a qualified motor mechanic). While I have no doubt that he made financial contributions to the costs and expenses of their relationship, Ms Hart was the more regular and substantial financial contributor. The evidence does not permit a more precise finding about their respective financial contributions. 23During their relationship, Harry's health was not good. In around 1994 he began receiving a disability pension. In about 1998 he was diagnosed with emphysema. Around the same time, Ms Hart began a process (which lasted throughout the relationship) of what she thought was helping Harry get the property ready for sale. As will become apparent, Harry's unwillingness to sell the property became a major issue which led to the end of their relationship. 24On 29 October 1998 Ms Hart made a will leaving any motor vehicles and half of her other assets to Harry. She left the other half of her residuary estate to her parents. In the will she describes Harry as "my partner". Around this time and on other occasions Harry also said words to the effect of "everything will be left to you". In that same year increased competition meant that Ms Hart had to cease to operate Access Business Services. She became a bankrupt on her own petition. Her bankruptcy came to an end in 2001. During the course of her bankruptcy Ms Hart took other employment earning $500 and, later, up to $1,000 per week. 25In November 2000 Harry received $44,000, being the proceeds of his superannuation. His insurer apparently accepted that he had become totally and permanently disabled. 26There was a dispute between the parties as to whether he used some or all of those proceeds to pay Mrs Van Son for the property or whether Mrs Van Son transferred the property to Harry as a gift. Ms Hart deposed that Harry told her at the start of their relationship that he was buying the property from his mother. Ms Hart, who accepted the property may have been transferred for less than full value, also said that Harry told her he was going to use his superannuation payment to make the final payment to his mother. On Ms Hart's evidence Harry delayed registration of the transfer until 2008 to avoid stamp duty and taxes. Mrs Van Son denied receiving anything from Harry for the property, which she said she had gratuitously transferred to him as his inheritance because she expected to predecease him. The evidence does not satisfy me on the balance of probabilities as to what occurred, but a conclusion either way would make no difference to the ultimate result of these proceedings. 27Between 2005 and 2009, Harry was in hospital on a number of occasions being treated for his heart disease. 28In 2006 Harry told Ms Hart "My life is finished. I'm stuffed and you should go and get on with your life". He repeated words to that effect from time to time until they decided to end their relationship in 2009. 29On 16 January 2008 Mrs Van Son transferred the property to Harry. During 2008 Harry began to have to use an oxygen bottle at home. However, while there is no doubt that Ms Hart provided a great deal of assistance to Harry, he was able to care for himself in terms of dressing, feeding, bathing and toileting. That remained the case to the end of the relationship. Ms Hart also deposed that she and Harry enjoyed an active sex life until early 2010. However, Harry's deteriorating health did mean that he was unable to undertake heavy work around the house and the property. Ms Hart did a great deal of this, including working to beautify the garden around the house. 30Between January and May 2009 Ms Hart moved to Pambula to help her father finish building a home. In October 2009 Ms Hart also began to receive a carer's pension. 31Some time in 2009 (I infer after Ms Hart's return from Pambula), Harry and Ms Hart decided to separate. Ms Hart precipitated the decision. She felt their relationship had gone from being a couple to her being more of a carer. They had a conversation to this effect: Ms Hart: Harry, I am sick of living on this place, it is not good for either of us and we need to go and I'm going to pack up and go. Are you coming with me? Harry: No I can't. How can I? 32Around the time of this conversation Ms Hart told Harry that she wanted to set up her own computer business and undertake studies to enable her to do so. The changed nature of their relationship is evidenced by a Wagga Wagga Base Hospital admission form for Harry in September 2009 in which Ms Hart's relationship with Harry is described as "friend". 33Harry's attitude to the sale of the property was a real irritant to Ms Hart. Whenever she raised the sale price with him, he would respond by saying words to the effect of "I am not going to give it away" or "They can go and get stuffed. I know what it is worth". Shortly before she left the property Ms Hart came to the realisation that Harry had little, if any, intention of selling the property. 34Around of the time of Ms Hart's departure she and Harry discussed a property settlement. He said to her words to the effect of "After all you have done for me I don't want to see you leave empty handed and I wish I had some cash to give you. If I sell this place rest assured you will be looked after financially". 35Ms Hart accepted in cross-examination that the conversation which I have recorded in paragraph [31] above was intended by her to be an ultimatum. It was going to be "her way or the highway". When she left the property in April 2010 it was with the intention of shocking Harry into leaving with her. However, he did not do so. At the time of her departure he said to her words to the effect of "I'll continue to try and sell the farm and maybe one day we'll meet up again". 36At the time of her departure, Ms Hart wrote a letter to Harry on 3 April 2010 which I accept accurately reflects her feelings at the time: ... My love for you has never died during our years together. All I have ever wanted is for us to have a better chance at life. This place is so harsh it is hard to get up every day & face it. Any energy putting into making it a nicer place is wasted time after time. ... ... I am deeply saddened that year after year we waste more precious time waiting for you to get a few thousand more than the place is worth. ... life is slipping me by & I don't want to waste another minute of it. ... I truely [sic] hope one day you will cut your losses & escape from this place. I am sorry I haven't lived up to your expectation but I need to go & experience life as you had done before meeting me. 37The letter concludes with "All my love forever?". There is a postscript asking Harry to take care of the animals which they had kept on the property and expressing the wish that Harry and the animals were all coming with her. 38On 4 April 2010 Harry responded to Ms Hart's letter by an email which included: Suze at the moment can't offer you anything, so it is probably better you stick to your plan. I am scattered (sic) ... Goodnight Suze, until we can say hello again. All the best mate. Love H ... 39After she left the property Ms Hart went to live with her parents in Pambula for about a month. She then moved to live in Adelaide with her sister and brother-in-law. 40After she left the property Ms Hart continued to contact Harry on a regular basis, either by phone, Skype or email until about August 2010. By that time Ms Hart was confirmed in her view that Harry did not have a real intention or wish to sell the property. After that time their contact became spasmodic as she made a new life for herself in Adelaide. Five months after leaving the property, in about September 2010, she met and formed a relationship with Mr Scott Mills. Ms Hart commenced living with Mr Mills in Adelaide in about October 2010 and gave birth to their baby girl in September 2011. 41On 28 December 2011 Ms Hart was informed of Harry's death in a phone call from the Wagga Wagga Base Hospital. The hospital asked her to contact Harry's family, which she did. In January 2012 she travelled to Wagga Wagga with members of her own family to attend Harry's funeral.
Ms Hart's circumstances 42Ms Hart found employment in Adelaide. She took maternity leave from her employer. At the end of that leave, in July 2012, she resigned from her employment and is now a full time mother. She is supported by her partner, Mr Mills, who runs a small business installing pet doors. That business has a current income of approximately $28,000 per annum. Ms Hart helps with some of the book keeping. She and Mr Mills have applied for family assistance support. 43Ms Hart has fully repaid a debt of approximately $6,800 for carer's pension payments which she continued to receive for the four months that passed after she left the property before she informed Centrelink of her change of status. Ms Hart has assets of approximately $20,000, comprising cash at bank and a superannuation entitlement. She gave evidence that she still owed approximately $25,000 to two individuals who had made her loans at the time when she owned Access Business Services. I do not take those amounts into account in considering Ms Hart's financial situation by reason of one or both of the effect of her bankruptcy and the passage of time (sixteen years since she ran that business) where there is no evidence of any demand ever having been made for repayment. 44Ms Hart lives with Mr Mills in a home which he owns, which is valued at approximately $450,000. After allowing for cash at bank and the value of two motor vehicles and deducting Mr Mills' current $76,000 mortgage, he has net assets of $407,000. 45Ms Hart's counsel submitted that in all the circumstances of this case "an order for provision of $100,000 would be just and appropriate". Notwithstanding that submission, he readily accepted that "just and appropriate" was no part of the statutory test for provision under the Act. The Court was also informed that the figure of $100,000 was not put on instructions, but was counsel's submission. There is nothing untoward in that. 46Nevertheless, the following exchange - which I regard as significant - took place during Ms Hart's cross-examination: Q. Now, how much do you want the court to order that you have from Harry's estate? A. I don't know. Q. You are the plaintiff, here is your chance? A. I am not sure. Q. You have been 18 months waiting for this day, what do you want the court to give you? A. I am not sure. HIS HONOUR Q. How would you describe your life at the moment, Ms Hart? A. Happy. ELLISON Q. Presumably Mr Mills pays off is it a business loan that is secured against the house or is it a mortgage or what? A. I am not sure mortgage, I believe. Q. And is it a reasonable house, three bedrooms or four bedrooms or something? A. Yes. Q. And what suburb I suppose we know what suburb it is, you are in A. XXXXX. HIS HONOUR Q. Is that a suburb of Adelaide? A. Yes. ELLISON Q. Do you have a vehicle? A. No. Q. I think the two of you bought a new vehicle or another vehicle since this case started, correct? A. No, I didn't buy a vehicle. Q. No, he did? A. Yes. Q. He is the one who makes the money, spends the money and you are at home with the baby? A. Yes. Q. And it is presumably some time off yet but do you hope to rejoin the work force in a few years once the child starts preschool, kindergarten, primary school, whatever? A. I am not sure. Q. But for the moment there is food on the table? A. Yes. Q. The debts are paid? A. Yes. Q. The cars tanks are full of petrol? A. Yes. Q. What do you intend to do with any provision that the court may give you, do you know? A. I am not sure. 47It was submitted for Ms Hart that an amount of $100,000 would be an appropriate reflection of her long and loving relationship with Harry and the fact that she had no assets. A provision of $100,000 would enable her, if she wished, to acquire an interest in the home in which she lives, with the proceeds being used to discharge Mr Mills' mortgage.
Mrs Van Son's circumstances 48At the time of the hearing Mrs Van Son was nearly 91 years old. She owns her own home at Kiama (valued at $650,000) and the property (which I have found has a value of $320,000 - see paragraph [16] above). She has cash at bank of approximately $25,000, a motor vehicle with nominal value and furniture, personal effects and a coin collection all of unknown value. Her income consists of a blind pension of $827.10 per fortnight and payments from her late husband's superannuation of $547.77 per fortnight. She pays a carer approximately $20 a week to give her miscellaneous assistance, including to drive her to appointments. 49Mrs Van Son is legally blind. Her surviving son, who is 62 years old, lives with Mrs Van Son and is supported by her. He has been unemployed for a considerable period of time and receives the New Start allowance. He helps Mrs Van Son with various domestic tasks and also drives her to appointments. 50In 2006, prior to transferring the property to Harry, Mrs Van Son paid $5,000 for a water tank to be built on the property. In 2007 she paid a credit card debt of Harry's of about $6,000 because she says that, as far as she was concerned, Harry had no money.
Are there factors warranting? 51Having set out the facts, the next question for consideration is that posed in paragraph [9(5)] above, namely whether "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application" (s 59(1)(b) of the Act). The relevant legal principles were summarised by Hallen J in Hamilton v Moir [2013] NSWSC 1200, which I respectfully adopt: 46. In the case of a person who is, relevantly, an eligible person by reason only of paragraph (e) of the definition of "eligible person" in section 57, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). 47. The Act does not specify the "factors which warrant the making of the application". As Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted at [16], "[N]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement". 48. However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. 49. In Re Fulop, M McLelland J also said, at 683: In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father. 50. In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said, at 8-11: There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application .... ... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence. 51. Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13: Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act. 52. In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 53. In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: [7] This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. [9] ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 54. In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: [8] As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: seeChurton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681." 55. More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: [62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time." 56. In Sassoon v Rose [2013] NSWCA 220, an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed), at [15], noted: In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those "factors" are ones which, when added to the facts which render the applicant an "eligible person" (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition. 57. It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said it is wrong. Even so, as Slattery J has noted in Lumsden v Sumner [2012] NSWSC 1440, at [89], "[t]he authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting". 58. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Meagher JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann; Russell v NSW Trustee and Guardian. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196];Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox, at [16]; Lumsden v Sumner, at [88]; Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166, per Slattery J, at [145]. 52Like Hallen J and the other judges referred to in the last paragraph just quoted, I propose to follow the approach taken by McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 as opposed to the analysis suggested in Brown v Faggoter [1998] NSWCA 44. Accordingly, the question which I will now answer is whether there are factors which, when added to the facts which render Ms Hart an eligible person, give her the status of a person who would be generally regarded as a natural object of testamentary recognition by Harry. 53Counsel for Ms Hart submitted that such factors were to be found in the long and loving relationship which she had enjoyed with Harry; her financial contributions to the relationship over many years; the relatively short period between the end of the relationship and Harry's death; and, Ms Hart's current circumstances of having little or no assets or savings. Counsel for Mrs Van Son submitted that there were no factors warranting because Ms Hart had made a decisive break from Harry, "getting on with her life", including within a short period of time commencing a new relationship involving the birth of a child; it was a small estate; Ms Hart had no identifiable needs; and, that she had made no contribution to the costs of acquisition of the property because it had been given to Harry by his mother. Because I am unable to make a finding about the consideration (if any) which moved from Harry to his mother for the property (see paragraph [26] above), I immediately put this last submission out of consideration. 54Listing the various matters referred to by counsel demonstrates the truth of the observation made in a number of the authorities cited by Hallen J in Hamilton v Moir that there will often be a degree of overlap between consideration of whether or not there are "factors warranting" for the purposes of s 59(1)(b) of the Act and considering whether adequate provision has not been made for the applicant for the purposes of s 59(1)(c) of the Act. Nevertheless, they are two different inquiries. 55The length of Ms Hart's relationship with Harry and her financial and emotional contribution to it were unequivocally advanced on her behalf as the strongest factors warranting her application. I do not accept the submission that, in and of themselves, those things are factors of the requisite kind. This is because the Act requires the Court to have "regard to all the circumstances of the case (whether past or present)". Even where there has been a longstanding relationship (such as in a long marriage which has ended in divorce), other circumstances will almost always be relevant in determining whether there are factors warranting the application. 56In a case such as this, those circumstances may include the circumstances surrounding and reasons for the end of the relationship, the time that has passed since the relationship ended and the current circumstances of the applicant. All of these may cast light on the question of whether there are factors which give the applicant the status, at hearing, of a person who would be generally regarded as a natural object of the deceased's testamentary recognition. Approaching the matter in this way demonstrates that what in some cases will be a factor which warrants the application will, by reason of "all the circumstances of the case (whether past or present)" not be such a factor in another case. 57In identifying a factor or factors warranting the application, the authorities in this area have often focussed on whether or not there was some kind of ongoing relationship between the applicant and the deceased or, at least, some recognition of status by the latter of the former as continuing to have some family or other connection. So it was in Re Fulop Deceased (at p 683) that McLelland J referred to the fact that after Mr Fulop left home at 18 years of age, "thereafter the family relationship thus established was recognised on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father". 58The present case is similar to a situation where a longstanding marriage has come to and end. That was what the Court of Appeal considered in Churtin v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), where Priestley JA said (at 254): The matters I have mentioned regarding the relationship of Mr & Mrs Christian after their separation and divorce seem to me to be factors which warrant Mrs Christian's making of an application under s 7 of the Family Provision Act. They seem to me to show that the separation and divorce did not completely sever Mrs Christian's relationship with her former husband and that she was in a position different from that of a woman of whose relationship with her former husband all that is know is the fact of the divorce. The circumstances make applicable to her the description of a person who might well, to use McLelland J's words, be "regarded as a natural objection of testamentary recognition" by the deceased. 59The matters advanced by Ms Hart's counsel as factors warranting the application could, in an appropriate case, be found to be such. However, I accept the submission put on behalf of Mrs Van Son that when other circumstances of this case are taken into account, the matters relied upon by Ms Hart do not bear that character in this case. Those circumstances are (in order of importance); (1)Ms Hart has decisively "got on with her life" in forming a new, stable and apparently long term relationship with Mr Mills in a new city, including giving birth to their child. (2)The complete severance of contact by Ms Hart with Harry within a few months of her having left the property, in particular once she had formed her relationship with Mr Mills. In this context Ms Hart's own affidavit evidence was telling in which she volunteered "I didn't mention my relationship with Scott to Harry because by September 2010 the contact between Harry and I had greatly decreased and I didn't believe he had a real intention or wish to sell the farm". (3)Harry's own frequently repeated wish that Ms Hart should leave him and "get on with her life". (4)While I have no doubt that the relationship ended more in sorrow than in anger and that Harry and Ms Hart parted with mutual affection, it was nevertheless her clear decision to leave him. It was her decision to propose the ultimatum of them leaving the property together or she would go alone. Her attempt to shock Harry into leaving the property was unsuccessful. She set about making a new life for herself and has very clearly now done so. (5)While some provision from Harry's estate would help Ms Hart in some general way, she is currently living in a stable and apparently long term relationship in circumstances where she is happy and her daily requirements are being met. She has been unable to demonstrate any obvious need. (6)The small size of the net distributable estate and Mrs Van Son's natural claims to some testamentary recognition from her son, notwithstanding her apparently adequate financial circumstances. 60Taking all of the matters to which I have referred in the preceding paragraph into account, especially the decisive break in the relationship between Ms Hart and Harry and the new life which Ms Hart has made for herself, the Court is not satisfied that there are factors which warrant the making of Ms Hart's application in the sense of being factors which give her the status of a person who would be generally regarded as a natural object of Harry's testamentary recognition.
Is there adequate provision for Ms Hart? 61The effect of the intestacy rules (see paragraph [4] above) is that there is no provision for Ms Hart. The question posed in paragraph [9(6)] above must therefore be answered "none". However, even if I am wrong as to the absence of factors warranting the making of Ms Hart's application, I would also answer the next issue, which is sometimes referred to as the jurisdictional question, in the negative for essentially the same reasons. 62That question is set out in paragraph [9(7)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the amount provided is not adequate for the proper maintenance, education or advancement in life of Ms Hart. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of Ms Hart is enlivened. 63In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: 39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of 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 Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty. 64In addition to the passage from Verzar quoted in paragraph [51] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 as to the general approach to be adopted to applications for family provision: 154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or 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 (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. 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." 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 65Applying the principles set out in the two preceding paragraphs, I have taken into account the matters raised for Ms Hart by her counsel recorded in paragraph [53] above, as well as what I find to be Mrs Van Son's adequate financial position. Nevertheless, for the same reasons set out in paragraph [59] above, the Court concludes that prevailing community standards would not require any provision to have been made for Ms Hart. The questions set out in paragraph [9(7)] above is therefore answered "no". It follows from this that the Court's discretion to make a family provision order in favour of Ms Hart is not engaged.
Conclusion and orders 66Ms Hart's application for provision from Harry's intestate estate fails. 67At the conclusion of the hearing, the parties informed the Court that if Ms Hart's application was unsuccessful, they were agreed that there should be no orders as to costs. 68The orders and notations of the Court are: (1)Summons dismissed. (2)The subpoenaed material and exhibits are to be returned forthwith, the latter to be held by the parties in accordance with Supreme Court Practice Note SC Gen 18. (3)The Court notes the agreement of the parties that in the events which have happened there should be no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2014
Suzanne Hart
Joan Noelene Van Son
[1994] HCA 40
(1988) 13 NSWLR 241
(1998) 193 CLR 72
(1987) 8 NSWLR 679
(1995) 36 NSWLR 24
[1998] HCA 11