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.