Towson v Francis

The Statutory Scheme

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiff's eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for her proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes.
2. It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). 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". The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court.
3. The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of the most recent of which is Penninger v Penninger [2017] NSWSC 892 at [114] - [148].
4. For the benefit of the parties, I shall repeat the relevant principles.
5. Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff will always, as a practical matter, involves an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575.
6. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
7. Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
8. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
9. The concept of "advancement in life" extends to a person's adult years: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at 204
10. Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14] - [15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…"
11. Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, 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 her or his proper maintenance, education and advancement in life: Singer v Berghouse (1994) 181 CLR 201 at 227; [1994] HCA 40.
12. "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. 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] 1 WLR 1808; [2008] UKHL 52 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'."
13. In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
14. 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. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
15. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
16. The questions posed arise 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 the decision made 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.
17. 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."
18. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 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.
19. In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
20. The 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 each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. 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.
21. 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.
22. 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).
23. 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.
24. 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.
25. The order 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).
26. Section 66 of the Act sets out the consequential and ancillary orders that may be made.
27. 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.
28. There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.
29. The Court's discretion in making an order 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) 107 CLR 9 at 19; [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63].
30. 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."
31. Of the freedom of testamentary disposition, in Grey v Harrison [1997] 2 VR 359, 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."
32. 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."
33. 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."
34. 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."
35. White J (as his Honour then was) referred to these principles in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 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."
36. In relation to a statement made by the deceased, in Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 138; [1979] HCA 2, Barwick CJ wrote: "…When attempting to decide what a particular testator or testatrix ought as a just and wise father or mother to have done, those reasons which that testator or testatrix actually entertained for his or her decision cannot, it seems to me, justly be ignored. Of course, if the evidence in the matter does not support such reasons, they cannot be acted upon simply because the deceased asserted or entertained them."
37. 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.
38. In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote: "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."
39. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
40. 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 [2004] NSWSC 419 at [89].
41. The size of the estate is a significant consideration in determining an application for provision. However, its size does not justify the Court in rewriting the will in accordance with its own ideas of justice and fairness: Bowyer v Wood at [41]; Borebor v Keane [2013] VSC 35 at [67].
42. In relation to the Plaintiff's claim, being a claim for provision by an adult child, I have set out the following principles in many other cases, which 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": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; 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 children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents 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 at 148; Goodman v Windeyer (1980) 144 CLR 490 at 498, 505; [1980] HCA 31. 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 (1957) 97 CLR 566; [1957] HCA 82; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 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.
43. A very similar statement of these 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]; and at [65]-[67]; 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) 14 ASTLR 175; [2015] NSWCA 297 at [62].
44. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the Plaintiff might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep).
45. In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty".
46. The other claimants on the bounty of the deceased, who are beneficiaries, do not have to prove an entitlement to the provision made for her or him, respectively, in the deceased's Will, or otherwise justify such provision.
47. (Bernadette submitted that the principles that I set out in Bowditch, in relation to grandchildren, were applicable in this case. However, those principles apply, usually, when the applicant is a grandchild, and do not apply where the deceased has chosen to make provision for her, or his, grandchildren in her, or his, Will. The grandchildren are the chosen objects of the deceased's testamentary bounty rather than applicants making a claim for a family provision order out of the deceased's estate.)

Estrangement

1. In this case, there is no dispute that after 2006, Bernadette had very little face to face contact with the deceased. That contact seems to have been limited to a three-day visit, in 2008, and a brief discussion at, and following, Pru's wedding in 2015. These facts have led to the Defendants' submission that in all the circumstances of the case, Bernadette's claim should be dismissed.
2. It will be necessary to refer to the evidence regarding the events that led to the lack of contact between the Plaintiff and the deceased later in these reasons.
3. I have dealt with the general principles concerning the significance of estrangement in a number of cases. In most cases, the existence of estrangement will complicate the assessment of the duty owed by a deceased parent to a child.
4. In Underwood v Gaudron [2014] NSWSC 1055 at [234] - [245] I dealt with the relevant principles in some detail. An appeal in that matter was dismissed: Underwood v Gaudron [2015] NSWCA 269, with the summary of principle not disturbed on appeal. That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53 at [21], and by Robb J, with approval, in Toscano v Toscano [2017] NSWSC 419 at [90].
5. Whilst it is not necessary to repeat all that I wrote in Underwood v Gaudron [2014], I should restate the following passage: "(a) 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 is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act… 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." (c) 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. (d) 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". (e) 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." (f) Even if the 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 the 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. (g) The poor state of the relationship between the 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. (h) 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."

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440; [1980] HCA 14, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many 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. I do not intend what is provided as a guide to be turned into a tyrant.
3. 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 basis for a family provision order has 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]."
4. 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]; and in Burke v Burke at [84] - [85]. They must be remembered.

Additional Facts

1. I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. Bernadette is a child of the deceased. I have referred to the fact that for a period of time she did not have very much to do with the deceased.
2. In 1967, Bernadette, with the encouragement of her father, completed a secretarial course and then decided to enter nursing. She moved away from the family home whilst she completed a three year course, following which she moved to Sydney to do midwifery training.
3. In 1974, Bernadette married her husband, Richard. They lived in Sydney, initially, and then in about 1979, moved to Molendinar, on the Gold Coast, where they remain living. She had a child in 1977 (Richard Jnr) and another in 1980 (Talei).
4. Her parents would usually come to visit Bernadette and her family for 2 or 3 weeks or she would visit them in Wagga for about 2 weeks. Otherwise, they would speak to the deceased, about once a week. Bernadette gives some evidence of the deceased's alcohol consumption during the visits.
5. Following her father's death in 2003, Bernadette would contact the deceased, weekly, by telephone. She says that she would try to speak with her before midday to avoid conversations after the deceased had started drinking.
6. Bernadette had a "falling out with the deceased" in 2006.
7. However, the relationship between Bernadette and the deceased first became troubled, following an incident, in 2006, where following the birth of Bernadette's first granddaughter, the deceased had referred to the grandchild as being "illegitimate", and had said to Bernadette: "Well if that baby is not baptised, I will have nothing to do with you".
8. Following this incident, Bernadette and the deceased did not speak for over a year, until Bernadette re-initiated contact with the deceased, by telephone, on Mother's Day, in 2007. For a period, she and the deceased resumed their weekly telephone contact.
9. In mid-2008, the deceased stayed for an extended visit with Bernadette and Richard at their home. Following an argument concerning the deceased's alcohol consumption, which resulted in Bernadette making arrangements for the deceased to return home prematurely, the deceased said to Bernadette: "you will never get anything from me and don't you ever come to Wagga again".
10. Bernadette asserted that their disagreement had occurred because she was concerned about the deceased's alcohol consumption only and her attempts to have the deceased reduce it. It is not in dispute that the deceased's consumption of alcohol was a source of friction in their relationship. Under cross-examination, Bernadette agreed that she had said words to the effect to the deceased: "if you keep drinking beer and smoking you'll have a stroke and will end up in a home".
11. She admitted, also, that during the deceased's visit, in 2008, to which reference has already been made, when the deceased had vomited on the floor and in her bed (which Bernadette assumed was as a consequence of heavy alcohol consumption), she had spoken to the deceased "very harshly" and had shouted at her: T37.16 - T37.27. Indeed, she decided "that I could no longer tolerate having the deceased stay with us as a result of her alcohol abuse".
12. Bernadette also admitted that, at the time, she had said to the deceased "My father would be ashamed of you", and that following this, she had made no attempt to reconcile with the deceased, and did not speak to her for almost 7 years. Bernadette agreed that that from the middle of 2008, until the deceased's death in 2015, she had "spent no more than approximately 10 or 15 minutes in [the deceased's] company" (T40.37 - T40.43).
13. Peter, who moved back in to live with the deceased, not long after the incident in 2008, and remained living with the deceased until September/October 2011, confirmed that he "observed the Deceased would drink wine each afternoon and evening and had wine secreted throughout the house in old juice bottles".
14. Julianne does not give very much evidence about her observations of the deceased's drinking, other than to state that in 2008, "at the Plaintiff's request" she and Pru visited the deceased's medical practitioner "to discuss concerns around the Deceased drinking alcohol". She also says that, in 2011, the medical practitioner "convinced the deceased to cease drinking alcohol".
15. I am satisfied that the cause of the lack of contact between Bernadette and the deceased, stemmed from the Plaintiff's, apparently, legitimate, concerns surrounding the deceased's alcohol consumption. Even so, that does not absolve the Plaintiff, completely, from not endeavouring to continue, or to resurrect, some relationship with the deceased at any time between 2008 until January 2015.
16. Bernadette and the deceased did meet at Pru's wedding in January 2015. Peter approached her and stated that "Mum would like to say hello to you". They talked for a while and met again the next day. It seems that it was the deceased, therefore, who instigated contact.
17. Bernadette says that, thereafter, they "started talking again" with one, or the other, telephoning. This continued even after the deceased was admitted to a nursing home in about March 2015.

(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

1. There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
2. The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at [478]-[479]: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
3. Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
4. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, once they became adults, imposed upon her by statute or common law.
5. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
6. It should also be remembered that "[a]lthough the relationship of parent and child is important and carries with it a[n]… obligation reflected in the … Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives": Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition. However, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] at [73].
7. The size of the deceased's estate is also relevant to determining the extent of the obligation or responsibility.

(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

1. I have earlier dealt with these matters. The value of the net distributable estate, even without considering the costs of the proceedings, on any view, is not large.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. In her affidavit sworn 1 September 2016, Bernadette deposed that her assets comprised an interest, held jointly with her husband, in the property in Molendinar (total joint value of $753,000), her own superannuation ($288,000) and her car ($3,500). She also disclosed her husband's assets to include superannuation ($241,000), moneys in savings account ($18,500), and a car ($4,500). Therefore, taken together, Bernadette and Richard's assets total $1,308,500. They have no liabilities.
2. In her first affidavit, Bernadette described her current gross monthly income and current net monthly income as "nil". She also gave evidence that up until about mid July 2016, she had been working 4 days per week as a Registered Nurse/Midwife, and had been earning a net income of $923 per week. She was admitted to Hospital on 17 July 2016 suffering respiratory arrests which impacted upon her underlying medical conditions, to which I shall refer.
3. She stated that has been unable to return to work and believes, because of her age, and the "very lengthy rehabilitation period ahead", she will never work again.
4. She disclosed her husband's income as "a fortnightly pension of $83".
5. Her joint expenditure, with her husband, was said to be $1,197 per week. They disclosed no liabilities.
6. In her affidavit sworn 12 May 2017, Bernadette stated that since she swore her previous affidavit, "…my financial details and those of my husband have not significantly altered". She goes on to state "I did apply on or about 23 January 2017 for a Centrelink Disability Support Pension. However, to date, I have been unsuccessful in securing such a Pension".
7. At the hearing, when asked about her income, Bernadette maintained her evidence that her income remained "nil" (T16.4, T16.19 - T16.20). However, when challenged by counsel for the Defendants, who showed her Centrelink records disclosing that she had been receiving at least $480 (and in some instances, more) per fortnight, in Newstart payments, during the period November 2016 up until May 2017 (T17.7 - T19.20), she conceded that these payments did, in fact, constitute income that should properly have been declared in her updating affidavit (T20.3 - T20.17).
8. In answer to a question from the Bench clarifying the question from counsel which she did not answer, Bernadette denied that she had sought to deliberately mislead the Court, and said that she had wrongly interpreted "income" to only refer to moneys received from employment (T20.19 - T20.30). Despite this assertion, Bernadette was unable to explain why in her most recent affidavit, she had referred to her unsuccessful application for a Disability Support Pension, but had omitted to disclose that she had been in receipt of a Newstart allowance (T20.32 - T21.02).
9. In addition, Bernadette conceded that she had not declared that her son, Richard Towson Jnr, who had resided with her and her husband at the time her affidavits were sworn, paid board to them of $150 per week, which again, should have properly been declared as part of the income received (T21.16 - T21.50).
10. Although the only evidence provided to the Court relating to her husband's financial circumstances was that which had been included in her affidavits, during cross-examination by counsel for the Defendants, Bernadette denied any knowledge of the details concerning her husband's receipt of a fortnightly pension from Colonial First State of about $463 (T29.27 - T29.39, T29.46 - T30.4). The fortnightly pension appears in his bank statements in 2014, 2015 and up to 23 November 2016 (albeit at differing amounts): Ex.3.
11. When pressed on the point, Bernadette stated "You don't understand. I don't look at his money. I don't touch his money. I wouldn't know what goes into his account" (T31.19 - T31.21).
12. Bernadette maintained her ignorance of the details of her husband's financial circumstances, even when confronted with evidence by counsel for the Defendants that showed that he also received an Aged Pension from Centrelink of $646 per fortnight (Ex. 3).
13. In total, therefore, this puts her husband's income at approximately $1,109 per fortnight (T33.7 - T33.10). These figures were confirmed, as correct, by Richard, when he was cross-examined: T48.37 - T50.3. Accordingly, their joint income appears to be approximately $1,589 per fortnight.
14. This is an income which, obviously, should have been disclosed to the Court. Bernadette's explanation is not a credible one, when one remembers that her affidavit evidence disclosed virtually no income. She must have had some idea about the income available to pay the family's expenses. If she did not, she ought to have made enquiries of her husband, or more appropriately, should have asked him to swear an affidavit setting out his financial and material circumstances. As has been stated, s 60(2) includes a reference to the financial circumstances of any person with whom the applicant cohabits.
15. As stated earlier, if an order for costs is made for Bernadette, part of the amount she has paid to her lawyers may be reimbursed to her.
16. Although not applicants for provision, the Defendants, each of whom has not made a claim against the estate of the deceased, are the other named beneficiaries under the Will, have put forward her and his financial and material circumstances, respectively, in the proceedings.
17. Julianne is employed as a Teacher's Aide, part time. Her net monthly income is $839. Her husband, Paul Francis, is employed as a contract Race Caller/Announcer/Judger for various racing clubs, and in addition to rental income he receives on a commercial property, has an average net monthly income of $4,005. Accordingly, their joint income is about $4,844 per month.
18. The combined assets of Julianne and her husband total $1,617,088. Her assets include a joint interest with her husband in a property situated in Wagga Wagga ($330,000), cash at bank ($313,928), superannuation ($61,971) and a car ($2,000). Her husband's assets include cash at bank ($57,188), a quarter share in a commercial property situated in Wagga Wagga ($460,000), superannuation ($362,000) and a car ($30,000).
19. Their only liability is a $20,000 loan to the National Australia Bank.
20. As Julianne is aged 60 years, she states she hopes to retire in the next few of years.
21. Luke is employed as a Storeperson/Radio Announcer, and his combined net monthly income is $3,657. His assets total $110,222 and comprise cash at bank ($33,220), a car ($20,000), and superannuation ($57,001).
22. His only liability is a car loan ($16,257). Luke lives alone in rented accommodation and does not own assets with any other person. Luke states he is currently saving to buy his first home, which he hopes to purchase for approximately $350,000.
23. Pru is employed as a School Counsellor/Registered Psychologist and her net monthly income is $3,042. Her assets include a townhouse in Wagga Wagga ($315,000), a car ($6,000), cash at bank ($745) and superannuation ($69,133).
24. Her husband, Michael Gleeson, works as a Team Leader/ Horticulturalist, and earns a net monthly income of $4,208. Michael's assets include a car ($20,000), cash at bank ($49), and superannuation ($87,050).
25. Together, their assets total $497,977. Their liabilities include a mortgage over their unit ($171,556), car loan ($900), credit card balance ($480), and a personal loan ($10,000).
26. Pru states that now that she and her husband have had their first child, they would like to move to a larger house, which they estimate will cost between $450,000 and $500,000.
27. Counsel for the Plaintiff submitted that Bernadette's present and future personal and financial circumstances are such that she has substantially greater need than any of the Defendants. It was, therefore, submitted, that an appropriate amount for provision would be in the range of $100,000 to $150,000.
28. Counsel for the Defendants submitted that by contemporary Australian (or international) standards, Bernadette and Richard are in a comfortable, and secure, material and financial position. Their ability to live within their present means is demonstrated by the fact that they have no liabilities. He also contended that all of the future needs of Bernadette are within her current means.
29. Bernadette's claim relating to her future medical needs, the Defendants asserted, was based upon the assumption that, at the point in the future at which Richard is no longer able to assist Bernadette with domestic tasks, they will have to retain the services of various in-home carers. However, it was submitted that when, as a result of age and ill-health, Bernadette and Richard become unable to live independently, they will (like most elderly Australians) move on to some form of assisted-living accommodation, which they will have the means to do so without any further provision out of the estate of the deceased.
30. The Defendants tendered a document described as "Assisted Living Options in the Vicinity of Moldinar, Qld" (Ex.1), which suggested that if it was necessary to move to that type of accommodation, the proceeds of sale of their jointly owned property would be sufficient to pay for the accommodation costs.
31. The Defendants submitted that even in a much larger estate, the deceased would not have been under a moral obligation to provide Bernadette with the means to live out her life in her own home with daily assistance from paid carers.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

1. I have already referred to the financial circumstances of Richard, Bernadette's husband.
2. Richard was cross-examined. He admitted having read Bernadette's affidavit, acknowledging that he, himself, had not given any evidence of his own financial circumstances. He acknowledged that he was still receiving the Colonial First State Pension "which might have adjusted now, I'm not sure": T48.31 - T48.39; and that it was still about $463 per fortnight. He also accepted that since about September 2016, he was receiving a Centrelink pension (including supplements) of about $646 per fortnight: T50.00 - T50.06.
3. It seemed to be accepted by the Defendants that his pension had risen because Bernadette had ceased work in about July 2016, and that it had taken several months for his pension to be adjusted accordingly.

(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

1. Bernadette gives evidence that, since 2012, she has suffered from Polymyalgia Rheumatica, resulting in muscle pain and severe fatigue, and Giant Cell Arteritis (which may have resolved). The medical conditions from which Bernadette also suffers are said to include: renal tubular acidosis hypophosphatemia (having developed acidosis from her migraine medication), bladder sphincter dysenergia (Irritable Bladder), vestibular imbalance resulting in dizziness and hand tremors, persistent tracheal irritation, hernia and gastric reflux, recurrent migraines, cataracts in both eyes, depression and anxiety. She is reliant upon a wheeled walker due to impairments in her mobility.
2. She annexed to her first affidavit, a letter dated 9 February 2016 from her General Practitioner of many years, Dr Stephen Yelland, confirming that she suffers from the abovementioned medical conditions.
3. She also annexed a copy of a medico-legal assessment dated 1 June 2016 by Nancy Stephenson, an Occupational Therapist who was a witness in the Plaintiff's case (having sworn an affidavit to which her report was annexed) and was cross-examined.
4. Ms Stephenson gave evidence at the hearing that presently, Bernadette requires 12.5 hours per week of gratuitous care from her husband and daughter. Assuming Bernadette's husband and daughter were no longer able to provide her with the assistance that she needs, then she estimated commercial providers (without any government subsidy) would charge $30,750 per annum for this level of assistance. These rates were also based upon the assumption that Bernadette would remain living at home, rather than moving into assisted living (T24.24 - T25.29).
5. Ms Stephenson conceded that even if the decision was not made for Bernadette to enter into a nursing home or assisted care facility, that "[T]here are also care packages available for people to access to remain in their own home and that would be the first step, so there would be subsidised packages once you're of pensionable age or you're on a disability pension" (T25.36 - T25.39).
6. In response to a question from the Bench, Ms Stephenson acknowledged that there are intermediate steps that could be taken between, for example, living at home, as Bernadette presently is, and going into nursing home accommodation, such as retirement villages, and other forms of assisted living, and that these options would provide many of the care and support needs that were identified in her report. She also confirmed that it is likely that there would be a sequence of progression through these various options as care needs gradually increased. In Ms Stephenson's opinion, Bernadette, at the present time, did not require nursing home care. She accepted that the extent of an individual's financial circumstances and assets will also determine the amount of government assistance that is subsidised (T26.24 - T27.31).
7. Although much of Bernadette's present medical needs are currently being provided for by her husband and her daughter, counsel for Bernadette submitted that as her husband has been diagnosed with prostate cancer, as he is 70 years of age, and "is therefore unlikely to be able to continue providing assistance to the plaintiff for much longer….When the plaintiff's husband ceases to be able to provide assistance, the plaintiff will need to pay for those services".
8. Talei, who was not cross-examined, gave evidence (in an affidavit sworn on 21 October 2016), that she had been attending at her parents' home "each Monday since late 2012…to undertake a thorough clean of the Plaintiff's house", which cleaning activities "usually last up to 3 hours".
9. Bernadette deposed that she attends rehabilitation "twice a week for three (3) hours on each occasion". She also gives evidence that she will need to undertake bathroom renovations as a result of her mobility restrictions, which she estimated would cost between $25,000 and $30,000. She also lists other 'needs' as including compression garments (estimated to require four per year, $316), and the "installation of a concrete ramp to rear of yard with hand rail assistance" ($3,000).
10. Although in her first affidavit she had also stated her present needs included a new bed "to allow me to sleep in an upright position", the cost of which was estimated to be between $6,000 and $8,000, during cross-examination Bernadette conceded that at the date of hearing, she had already purchased this bed (T44.2 - T44.12).

(g) the age of the applicant when the application is being considered

1. Bernadette is 64 years old.

(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

1. Bernadette acknowledges in her affidavit evidence that she "[has] not made any financial contribution to the estate of the Deceased".
2. As a child of the deceased, and perhaps, at other times, later in her life, Bernadette may have made some contribution to the welfare of the deceased during her lifetime, although she does admit to a closer relationship with her father than with the deceased.
3. It also appears not to be in dispute that Julianne and, to some extent, Peter, Luke and Pru, provided a great deal more practical, and other, support to the deceased in her final years and made a greater contribution to her welfare.

(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

1. Under the Will of the deceased, Bernadette receives a legacy of $20,000, which as stated earlier, has not been paid to her. No reason has been given for not paying the legacy, to which the Plaintiff is entitled under the Will.
2. Julianne gave evidence that after her father's death, the deceased had said to her, words to the effect: "I will give you, Peter and Bernadette $30,000 each". She also stated that the deceased had told her, that she had given Bernadette $10,000 when the deceased had visited her after the deceased's husband's death, and a further $20,000 when Bernadette and her husband had subsequently visited the deceased. She deposed that the deceased had said words to the effect to her: "I gave Bernadette $30,000 and she didn't even say thank you".
3. However, counsel for the Defendants did not put this claim to Bernadette during cross-examination.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. In a prior Will dated 16 November 2005 of the deceased (Ex. A), Bernadette was one of the named executors, and was to have received an amethyst ring, a one-third interest in the Wagga Wagga property, and an equal share of the residue along with Julianne and Peter. This Will was drafted prior to the estrangement that took place between the deceased and Bernadette in 2006, to which reference has been made.
2. The 2005 Will is consistent with the relationship between Bernadette and the deceased being reasonably close until the later years of her life.

(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

1. Bernadette was clearly not being maintained by the deceased in the years before the deceased's death.

(l) whether any other person is liable to support the applicant

1. Apart from the Commonwealth government's responsibility to continue to provide each with a pension, Bernadette's husband has an obligation, in law, to support her "to the extent that [he] is reasonably able to do so, if, and only if, [she] is unable to support [herself] adequately": s 72(1) Family Law Act 1975 (Cth).

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. I have earlier referred to the fact that there was virtually no contact between Bernadette and the deceased during effectively the last 7 years of the deceased's life. (Ironically, at least in part, this was caused by the Plaintiff's concern for the welfare of the deceased.)

(n) the conduct of any other person before and after the date of the death of the deceased person

1. Julianne gave evidence of a close relationship with the deceased, no doubt, in part, assisted by them both having resided in Wagga Wagga. She stated that she saw the deceased frequently, and that as children, Luke and Pru would regularly stay over at the deceased's home.
2. During the period of 2000 - 2003, Julianne gave evidence that she visited the deceased and her father every weekday, gave assistance with household tasks, and provided respite to the deceased in the care of the deceased's husband, who had suffered a stroke and a quadruple heart bypass.
3. Julianne also gave evidence that she had the deceased and the deceased's husband to her in-laws home on Christmas Day most years, over the last 30 years. She would also take the deceased on holiday, visited her on Mother's Day, assisted the move of the deceased into the nursing home, and once there, would visit her on a regular basis; along with Luke and Pru, had attended for a weekly dinner with the deceased in the 12 months following the death of the deceased's husband; arranged for her car registration renewals; provided transport to the deceased to medical appointments and the like from mid-2014, once the deceased had ceased driving. It is clear that they had a close relationship.
4. Pru lived with the deceased for around 4 or 5 months in 2006. She is also said to have given assistance to the deceased in administrative tasks that the deceased required (such as photocopying, typing letters, printing). Along with Luke, she also assisted the deceased with any of her technological needs (e.g. home security alarm, DVD player, television, and air conditioner).
5. Luke does not state anything in his affidavit about his relationship with the deceased.
6. Bernadette did not dispute that the Defendants, and particularly Julianne, greatly assisted the deceased during the later years of her life.

(o) any relevant Aboriginal or Torres Strait Islander customary law

1. This factor is not applicable.

(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

1. There is no other matter that I consider relevant.

DETERMINATION

1. 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, Bernadette, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
2. As stated, the proceedings were commenced within time.
3. The size of the actual estate is not large. The provision for her in the deceased's Will, without more, would mean that she will receive $20,000.
4. In determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the Plaintiff's overall financial position, the totality of her relationship with the deceased, the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.
5. Thus, one cannot consider the terms of the deceased's Will on its own. One must consider the many other facts. As Basten JA wrote in Chan v Chan at [22], the Court must remember: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
6. Each of the beneficiaries has raised her, and his, claim, respectively, on the deceased's bounty and has adverted to her, and his, financial and material circumstances, respectively. The Court must not ignore the claim of each as a beneficiary, being the chosen objects of the deceased's testamentary bounty. It is clear from the evidence, however, that Julianne is in the best financial position of all of the parties.
7. Claims for a family provision order present particular difficulties where the actual estate is not large and where there are significant 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 claim, and who are the chosen objects of the deceased's bounty.
8. This is a case of an applicant adult child who has lived quite independently of her parent, the deceased, for many years, but who is nonetheless, at the date of the hearing, in circumstances where she has virtually no working capacity, where she has quite severe health problems, and where her husband is 70 years of age and retired. Their major asset is their home, some, or all, of the proceeds of which, in due course, will probably be required to pay for alternative retirement, or nursing home accommodation for one or both of them.
9. I have given close consideration to dismissing the proceedings because of the failure to disclose fully, and properly, the financial and material circumstances, at least so far as income is concerned. The principle of full and frank disclosure in a family provision proceeding has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.
10. However, after that consideration, and with some hesitation, I have come to the conclusion that Bernadette's failure to disclose details of the family's income was not intentional. It seems to me it was more likely to have been careless, and, probably, ill considered.
11. I am also satisfied that the Defendants are, and the Court is, now aware of the Plaintiff's and her husband's complete financial picture. (There was no suggestion to the contrary.)
12. Having considered the financial resources (including earning capacity) and financial needs, both present and future, of Bernadette, the size of the estate and the claims of the three Defendants on the beneficence of the deceased, and consistent with prevailing community standards, I am satisfied for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of Bernadette has not been made by the Will of the deceased.
13. I then turn to the provision, if any, that ought to be made for her. Because of the size of the estate, the competing claim of the beneficiaries, and the period of estrangement that occurred, any provision for her, must be modest. (In this regard, I consider that whilst the period of estrangement is relevant, it must be considered in the context of her relationship with the deceased as a whole. I consider that the estrangement operates to restrain the level of provision to be made for Bernadette.)
14. I do not accept the submission of counsel that Bernadette should receive a lump sum of between $100,000 and $150,000. The Plaintiff's conduct in only seeing the deceased a few times during the last years of her life, taken with the size of the deceased's estate, and the competing claims of the other beneficiaries, does lead to the conclusion that such an amount ought not to be regarded as "adequate and proper" in all the circumstances. A lump sum of that size, also, does not give due regard to the deceased's testamentary intentions as expressed in the Will.
15. In my view, a lump sum of $60,000, in lieu of the provision made for Bernadette, should be made out of the deceased's estate. This lump sum will enable her to undertake the bathroom renovations required as a result of her mobility restrictions, which she estimated would cost between $25,000 and $30,000. She also lists other "needs" as including compression garments (estimated to require four per year, $316), and the "installation of a concrete ramp to rear of yard with hand rail assistance" ($3,000). It will also provide for a small lump sum to assist her in paying for some of the continuing costs of rehabilitation and/or exigencies of life.
16. (In coming to this figure, I have not forgotten that there is the possibility that if a costs order in favour of Bernadette is made, she will be reimbursed part of the amount that she has already paid to her solicitors.)
17. The estate is simply not large enough, and the duty of the deceased, in all the circumstances of this case, in my view, did not extend to an obligation to pay for the type of home help that the Plaintiff has identified. To provide for a lump sum of $350,000 (the estimated cost of home help), or alternatively, $100,000 or $150,000, would, after costs, leave very little to be divided between the three chosen objects of testamentary bounty. Each of them has a significant claim on the bounty of the deceased.
18. If costs were paid out of the estate, and if the gross amount of $435,076 is the distributable balance of the estate available, each of the three Defendants would receive about $145,000. Because of Julianne's financial and material circumstances, which are far better than either of her children, it seems to me that, unless the Defendants agree, the burden of the provision made for Bernadette, should be borne out of the share of the estate passing to Julianne. This will result in her receiving about $85,000, whilst each of her children will receive $145,000. Of course, if they agree, for example, to bear the burden of the lump sum payable to Bernadette equally, each of the Defendants would receive $125,000.
19. (The reason I have left open the possibility of agreement between the Defendants is because there were no submissions made on the topic. I have based the order upon their respective financial and material circumstances and the respective stage of life at which each Defendant is, currently.)
20. Thus, the Court: 1. Orders, having found the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that in lieu of the provision made for her in the Will of the deceased, the Plaintiff receive a lump sum of $60,000 out of the estate of the deceased. 2. Orders that no interest is to be paid on the lump sum, if that lump sum is paid within 7 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum. 3. Orders, unless otherwise agreed between the Defendants, that the burden of the provision made in favour of the Plaintiff, be borne out of the share of the deceased's estate passing to Julianne Francis, the first Defendant. 4. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW). 5. Orders, unless any party makes an application for a different costs order, that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased and that any application for a different costs order should be made by informing my Associate of the application within 7 days.

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