Vanderloo v Milne

Supreme Court of NSW|2014-07-03|Before: Robb J

Judgment

The plaintiff, Mr Theo Vanderloo, by summons filed on 1 July 2013, seeks an order that provision be made for his maintenance and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) (the "Act") from the estate or notional estate of Helen Elizabeth Vanderloo, who died on 13 September 2011.
As the summons was filed more than 12 months after the date of Mrs Vanderloo's death, Mr Vanderloo requires an order of the Court under s 58(2) of the Act that permits him to prosecute his claim out of time. He seeks an order to that effect in his summons.
The deceased, who I will call Mrs Vanderloo, was the wife of the plaintiff. The couple married on 16 March 1996, and accordingly had been married over 15 years when Mrs Vanderloo died. She was born on 9 April 1947, and so was 64 years of age at the time of her death.
As the husband of Mrs Vanderloo at the time of her death, Mr Vanderloo is eligible to make an application for a family provision order under s 57(1)(a) of the Act.
Mrs Vanderloo was married to Mr Stuart Milne, but they divorced in 1984. Technically, as a former husband of Mrs Vanderloo, Mr Milne is also an eligible person under s 57(1)(d) of the Act. Given the length of time since the marriage ended, I find that it is unnecessary that a notice under s 61(2)(a) of the Act be served on Mr Milne, before the Court may ignore his potential entitlement to make an application under the Act, pursuant to s 61(2)(b).

Mrs Vanderloo's will

The principal asset in Mrs Vanderloo's estate was her house property at 3 Waninga Road Hornsby Heights, which I will call the "Property". By clause 2(e) of her will, Mrs Vanderloo left the Property as to 50% to Mr Vanderloo, and as to 25% to each of her two sons.
By clause 2(f) Mrs Vanderloo left the balance of her real and personal property to her two sons in equal shares.
Mrs Vanderloo left all of her furniture and articles of a household nature (excepting family photographs) in and about the Property to Mr Vanderloo: clause 2(f).
In clause 5 she made David and Christopher Milne her executors and trustees.
Mrs Vanderloo's will provided by clause 4 that if Mr Vanderloo predeceased her "then the gift to him in clause 2(a) shall lapse". The reference to clause 2(a) must be a typographical error, as that clause provides for a bequest of a ring to one of Mrs Vanderloo's daughters-in-law. It is probable that Mrs Vanderloo intended to refer to clause 2(e), as that is the only substantial bequest she made in favour of Mr Vanderloo. It is not necessary to resolve this question. It is material only in so far as it shows that Mrs Vanderloo wanted the Property to go to her sons, if she was predeceased by her husband, rather than for 50% of the Property to go to Mr Vanderloo's estate.
Probate of the will was granted to David and Christopher Milne on 7 May 2012.

Distribution of Mrs Vanderloo's estate under her will

The parties are agreed as to the assets in Mrs Vanderloo's estate, and the manner in which those assets have been distributed, as well as to an amount of superannuation money to which Mrs Vanderloo was entitled, which has also been distributed.
The executors sold the Property on 22 February 2013 for $730,000, and the net receipt on completion on 24 April 2013 was $710,373. Of that sum the executors have distributed $255,186 to Mr Vanderloo, and half of that amount to each of David and Christopher Milne. The executors retained $200,000 to cover the costs of what was anticipated to be a dispute over the entitlement to Mrs Vanderloo's superannuation. Subsequently, the defendants retained that money to cover the costs of the present proceedings. Were there no such costs, Mr Vanderloo would in due course have received a further distribution of $100,000.
The executors distributed other assets to themselves as beneficiaries in accordance with the terms of the will, after they became aware of the commencement of these proceedings.
The following is an agreed table that sets out the available assets and how they have been distributed to date: Assett Value Distribution $255,186.85 to plaintiff Net proceeds of sale of Property $710,373.71 $127,503.43 to each defendant $200,000 retained ING bank account $20,627.70 Paid to defendants in equal shares Shares $1383.00 Paid to defendants in equal shares BankWest account $2681.59 Not distributed Caresuper superannuation $96,765.08 $48,382.54 to plaintiff $24,191.27 to each defendant Asteron Life Insurance $50,000 Paid to defendants in equal shares Kisoola Share Club money $5000.00 Paid to defendants in equal shares

(Note that this table is taken from a table prepared on behalf of the defendants that appears to have double-counted the shares worth $1383.00).

The Caresuper superannuation amount of $96,765.08 referred to in the table was distributed in the manner set out in accordance with a discretion exercised by the trustee of the superannuation fund under its rules. The manner of distribution was not agreed as between the plaintiff and the defendants. The issue of whether this asset could be part of Mrs Vanderloo's notional estate was not raised. The parties have treated its significance as being limited to the fact that the parties became entitled to the amounts that were distributed to each of them.
Mr Vanderloo gave evidence, which I accept, that the furniture and household effects that he received under the will were relatively valueless. It is notorious that ordinary articles of second-hand furniture have little market value. Mr Vanderloo disposed of the furniture for little return, or gave the furniture away, when he left Australia to go to China after he ceased to occupy the Property.
If Mr Vanderloo had not instituted these proceedings, he would have received a total amount of $403,569.39. Of this amount, $355,186.85 would have been attributable to Mr Vanderloo's share in the estate.
David and Christopher Milne would each have received $241,630.85 in total.
The value of the assets of the estate (putting aside the Caresuper superannuation) that was not represented by the value of the Property was $79,692.29, plus whatever the sale of the furniture and household effects by Mr Vanderloo realised. Ignoring the unquantified value of the furniture and household effects, the evidence has shown that the value of Mrs Vanderloo's estate was $790,066.00

Assets of estate available for distribution

Of the net value of the estate of $790,066 (putting aside the superannuation entitlement, which is not part of the estate) David and Christopher Milne have retained $200,000, after making the interim distributions referred to above.
Since probate was granted, David and Christopher Milne have learned that Mrs Vanderloo gave a guarantee to Commonwealth Bank of Australia of a debt of $100,000, jointly with David Milne. The estate's share of that liability is $50,000. Mr Vanderloo has accepted that the assets available for distribution have been reduced by that amount. Accordingly, the $200,000 is reduced to $150,000.
However, the executors' legal costs of these proceedings have been estimated at $124,127.28, of which $106,527.28 has been paid, and $17,600 remains unpaid. If the usual order is made that the executors' costs on the indemnity basis are to be paid out of the estate, then the amount available for distribution will be reduced to $25,872.76.
I have also been advised by counsel for Mr Vanderloo, and I will accept, that his own costs on the ordinary basis total $65,000, and $85,000 on a solicitor and client basis. If Mr Vanderloo were to succeed in these proceedings, the usual order for costs in his favour would be that his costs on the ordinary basis would be paid out of the estate. The amount available of $25,872.76 will not be sufficient for that purpose, so in that event it would be necessary for the Court to require David and Christopher Milne to make up the shortfall out of the interim distributions of the estate that they have received.
The same will be true for any family provision order made in favour of Mr Vanderloo. In addition to the shortfall in the assets available to meet Mr Vanderloo's costs, it will be necessary for David and Christopher Milne to repay the amount that is ordered to be paid to Mr Vanderloo out of the money already distributed to them.
This possible need for David and Christopher Milne to repay money into the estate may be relevant to the Court's consideration of whether a family provision order ought to be made in this case, and if so, what that order should be. That will be so in relation to a proper assessment of the present financial position of both of Mrs Vanderloo's sons.

Mr Vanderloo's life before marrying Mrs Vanderloo

Mr Vanderloo was born on 24 July 1949 in The Netherlands, and now is aged 65 years. After leaving school he qualified as a car mechanic. For a couple of years before 1974 he was a professional cyclist.
Mr Vanderloo married his first wife when he was 24 in 1972. A daughter of that marriage was born in 1977.
After Mr Vanderloo ceased to be a professional cyclist, he started to work as a truck driver, and then he qualified as a toolmaker.
Mr Vanderloo migrated to Australia with his wife and daughter in 1981. The family eventually settled in Queensland, but the marriage failed and Mr Vanderloo's wife returned to The Netherlands with the daughter when the latter was seven years old. The couple were divorced.
Mr Vanderloo married his second wife in 1987. The couple returned to Europe for family reasons, and in 1990 Mr Vanderloo's second daughter was born. His second marriage ended in divorce in December 1991.
Mr Vanderloo returned to Australia in 1992. He obtained work principally as a truck driver.

Marriage of Mr and Mrs Vanderloo

Mr Vanderloo met Mrs Vanderloo in January 1995. The couple began seeing each other and in January 1996 Mr Vanderloo moved into the Property with Mrs Vanderloo. The couple were married on 16 March 1996.
At the time of the marriage Mr Vanderloo had assets of $38,000, which consisted of savings of $23,000, a Holden car worth $3000, and a semitrailer worth $12,000. Mr Vanderloo was working as a truck driver, and had no debts.
At the time of the marriage Mrs Vanderloo was working as a maths teacher at Asquith Girls High School. She owned the Property.
The couple established a truck driving business using about $30,000 borrowed on the security of the Property. The business operated until Mr Vanderloo closed it down in 2010 when Mrs Vanderloo suffered a relapse of the illness that led to her death.
Mr Vanderloo said that, after a short while, the couple opened a joint bank account and acquired a joint credit card, and that both their wages were paid into the joint account.
The evidence given by Mr Vanderloo as to his income for the 2006 and 2010 years suggests that he earned about $53,000 in those years before tax. His income for the year to June 2012 was only $18,670, which included Centrelink benefits of $7,300.

Mrs Vanderloo contracts leukaemia

Mrs Vanderloo was diagnosed with leukaemia in July 1998 at the age of 51. She was admitted to Hornsby Hospital for approximately 8 weeks.
In about 2000 she retired from her employment as a teacher with the Department of Education because of her illness. Thereafter Mrs Vanderloo undertook volunteer counselling with the Salvation Army. For about five years Mrs Vanderloo studied and worked on a voluntary basis. She then obtained a staff position at the Salvation Army's Care Line. She earned between $470 and $500 per week.
After a period of remission, Mrs Vanderloo became ill gain during a holiday with Mr Vanderloo to North America and The Netherlands that began in May 2010. She was admitted to hospital in the latter country.
Mr and Mrs Vanderloo returned to Australia in August 2010, and in October 2010 she was admitted to hospital for surgery. It was while she was in hospital that she executed her last will. Mrs Vanderloo was discharged from hospital before Christmas in 2010. She had a bone marrow transplant on 13 July 2011, and, as has been recorded above, died on 13 September 2011.
Mr Vanderloo gave evidence that he asked to be given a copy of Mrs Vanderloo's will but was initially refused (I infer by Mrs Vanderloo).
He said that he was troubled, he felt alone and was very insecure, because he had expected that he would be involved in helping Mrs Vanderloo retain a lawyer to prepare her will, but in fact the solicitor was organised by her sons. Mr Vanderloo saw a solicitor, who, he says, advised him to put a caveat over the Property "as he was concerned that the sons could be [Mrs Vanderloo's] attorneys and could transfer the house out of [her] name". Mr Vanderloo gave evidence that the solicitor explained "it's only a protection so nothing could be done without you knowing of what they may be up to". This occurred a week or so after Mrs Vanderloo told him that she had made her will.
The solicitor lodged a caveat against the title to the Property, apparently on 17 November 2010. The nature of the estate or interest claimed by Mr Vanderloo was "One Half Share". The facts given as supporting the claim were: "Beneficial interest in the property as to an amount of one half as tenant in common with the registered proprietor his wife".
There was no factual basis upon which Mr Vanderloo could properly make this claim. He did not give any evidence of any dealing between himself and Mrs Vanderloo that could have led to the couple owning the Property as tenants in common in equal shares. Mr Vanderloo did not say that he believed that he had this entitlement.
The fact that Mr Vanderloo caused the caveat to be lodged tends to show that Mr Vanderloo was conscious at the time that he might have some right to an interest in the Property if anything happened to his wife. It also tends to show that Mr Vanderloo thought his entitlement might be as to half.

Relationship between Mr and Mrs Vanderloo

Mrs Jean Hawke, a friend of Mrs Vanderloo, who visited her frequently in hospital before her death, gave evidence of a conversation that she had with Mrs Vanderloo immediately after the solicitor who assisted her in the preparation of her will had left the hospital after having taken Mrs Vanderloo's instructions for the will. Mrs Vanderloo said to Ms Hawke: "I am making a new will because I don't want Theo to get everything".
David Milne deposed to a conversation that he had with his mother in late October 2010 when she was in hospital, at which time she said to him: Theo and I had a big fight over the house. He told me that the law won't let me leave the house to you and Chris. I was thinking about getting a divorce, but I think I'm going to have to give him half the house. Can you please get a lawyer to come and see me so that I can make a new will?
For the reasons given by McLelland J (as he then was) in Grundel v Registrar-General (1990) 5 BPR 11,217 at 11,219, the Court should treat Mr Milne's evidence with some caution, but that is not true for the evidence given by Mrs Hawke, who is disinterested.
Mrs Hawke also gave evidence that on an earlier occasion, before Mrs Vanderloo was admitted to hospital, she said: "If it hadn't meant that Theo would get half of the house I worked so hard for, I would have left him years ago."
This evidence justifies the conclusion, which I have reached, that Mrs Vanderloo had a reasonably strong view that she had acquired the Property through her own efforts, and that it was a matter for her as to how she disposed of that property, and that she had made her own decision that full ownership of the Property would not go to Mr Vanderloo.
Often, the only way that the deceased person can speak to the Court that is hearing an application under s 59 of the Act for the making of a family provision order is through the terms of the deceased's will. In the absence of clear evidence to the contrary, the Court will usually assume that the testator has thought carefully about how his or her bounty should be bestowed through the medium of the will. In the present case the Court has the additional benefit of the evidence of the statements made by Mrs Vanderloo during her final hospital confinement concerning her motivation in executing her last will in the terms that it contained.
Mr Vanderloo gave evidence of the care that he gave to his wife during her illness. He said that in the initial two months that Mrs Vanderloo was in Royal North Shore Hospital after the couple returned from The Netherlands, he visited Mrs Vanderloo every day, and got as much work driving trucks as he could.
After Mrs Vanderloo was discharged just before Christmas in 2010, she needed a lot of physical help. She could not stand by herself. She needed Mr Vanderloo to take her in a wheelchair whenever they left the house. She was very weak. Mr Vanderloo arranged walking aids and a shower chair. He made lunch and dinner so that all she had to do was to reheat it. He ensured that she had a phone close by. He showered Mrs Vanderloo each day before going to work. He closed down the trucking business, but then he had to drive trucks for wages doing short haul work in order to earn some income. He was never away overnight, and could always be contacted by Mrs Vanderloo on his mobile phone.
Mr Vanderloo said that, after his wife was released from hospital, he had to take a lot of time off work to care for her. He had to drive Mrs Vanderloo to Royal North Shore Hospital 2 to 3 times a week for blood tests. Mrs Vanderloo underwent chemotherapy three times. When she was out of hospital Mr Vanderloo had to administer her pills and injections.
In April 2011 Mr Vanderloo lost his job as a truck driver because of a hearing impairment that was discovered during his annual medical check. He was given a sickness benefit. This enabled him to stay home and he was able to care for his wife 24 hours a day from that time until her death five months later.
Mr Vanderloo said that he and his wife had a good relationship right to the end, and that she never spoke of leaving him. Towards the end he was under great strain and working long days. He said: "over the years of her illness I became one with her, her suffering was my suffering, her battle was my battle".
I accept Mr Vanderloo's evidence as to the strength of his relationship with Mrs Vanderloo. There is some evidence that the relationship was not always perfect. Mrs Vanderloo may from time to time have had some doubts. However, towards the end her circumstances were extremely fraught. It is a commonplace that even strong relationships have their ups and downs. In cases such as this the Court cannot look into the heart of a marriage. I accept that Mr Vanderloo stood by his wife during her final illness, and that he cared for her with a high degree of love and devotion.

Mr Vanderloo's contribution to the Property

In 2007 Mr and Mrs Vanderloo extended the Property to add a big size family room and bedroom with built-in bathroom, and a pantry to the kitchen. This work was financed with the proceeds from the sale of Mr Vanderloo's prime mover, and Mrs Vanderloo's payout when she retired. After the extensions were completed Mr Vanderloo designed and built an architectural front garden with native plants and walking paths.
Mr Vanderloo said that, in addition to general house and grounds maintenance, he carried out the following works during his marriage to Mrs Vanderloo: he painted the rendered exterior of the whole house on three occasions, he replaced the guttering all around the older section of the house, he painted the eaves, he made new concrete front steps from the porch to the garden, he designed and built a balustrade on the front porch, he tiled the front porch, he installed a new automatic garage door, he gravelled the driveway, he installed a front sliding gate and a walk-in gate at the property entrance, and he built a garden pergola.
He said that he also planned the house extension, and supervised the building works associated with the house extension, laying floor tiles, a new kitchen and rendering the house.
Mr Vanderloo claimed that, after his wife died, he painted the garage floor and walls and fitted a door in the hole made over the years to get under the house, he cleared under the house, he replaced timbers and painted the back veranda, he trimmed an overgrown Jacaranda tree in the backyard with the help of a neighbour, he fitted three new doors in the lounge dining area, and he fixed the shower screen doors and painted the old bathroom and toilet.
Mr Vanderloo said that he spent $14,000 of the $51,000 superannuation that he had withdrawn on materials for the repair of the Property.
The defendants challenged the claim made by Mr Vanderloo that all of the work that he had done had been done to an adequate standard, and increased the value of the Property.
The evidence is not such as to permit the Court to resolve the question of whether or not, and if so to what extent, the work that Mr Vanderloo did added value to the Property. As I understand it the defendants did not generally dispute that Mr Vanderloo undertook works in the manner claimed. Rather, they acknowledged at least some of those works and asserted that they were poorly done, and if anything detracted from the value of the Property.
Little more can be concluded than that Mr Vanderloo generally carried out the works as claimed by him; he did contribute some money in terms of the $14,000; and it is unclear whether or not his work generally improved the Property.
It is reasonable to infer that Mrs Vanderloo approved and accepted the work that he did while she was alive.

Mr Vanderloo's life after his wife's death

Mr Vanderloo lived in the Property without paying rent for about 12 months. He handed the keys over to Christopher Milne in early September 2012.
He worked for Mister Pizza Ice Cream from January 2012 until 21 May 2012. He was retrenched at that time. He did not work again in paid employment in Australia. He said that he worked on preparing the Property for sale.
From this time he began living on his superannuation.
In September 2012 he qualified as a teacher of English as a second language after completing a four-week course.
Mr Vanderloo said that he decided to leave Australia, as his last years caring for Mrs Vanderloo and working had been heartbreaking, and he felt he needed a change in living, in language and people, to gain strength for life. He was then 63 years old, and could not see himself driving trucks again.
Mr Vanderloo obtained a position teaching English in China. His role was to teach English to middle-class students who were beginning to learn the language. He worked 18 hours per week teaching, and 18 hours on preparation.
During the spring vacation in January 2013 he contracted a urinary tract infection and soon after that he developed a kidney stone. He could not work for two months and was replaced. When he recovered, he could not obtain work in China, although he did some teaching of small private groups.
Mr Vanderloo said in his 30 May 2014 affidavit that left China on 25 February 2013 and returned to Europe. (In his 1 July 2014 affidavit he said he left China in February 2014). He settled in Belgium where he has family nearby. He rents a two-bedroom apartment in the town of Neeroeteren. Initially he could not find work, as he had to wait until he could apply for a driving licence.
In September 2013 Mr Vanderloo formed a relationship with a Chinese woman named Jiang Zu-Luan, who will shortly be 50 years of age. The couple married on 11 September 2013. Jiang worked as a housemaid before the marriage. She owns a home that was formerly owned by her previous husband, who died of cancer in early 2012.
Mr Vanderloo gave his wife $17,000, when he left China to go to Belgium, and told her to stop work and live off that money until she could join him.
Mr Vanderloo hopes that his new wife will be given a visa to live with him in Belgium. If she is able to live permanently in Belgium, she will only be qualified to do menial work. She does not have assets other than the home in China.
Mr Vanderloo was noncommittal as to what he might do if his wife is not permitted to live in Belgium. He wishes to live there because he has family close by in The Netherlands. He might travel regularly to visit his wife in China. It is possible that, if the couple cannot live together in Belgium, Mr Vanderloo may move back to China. However, he has no plans to do that.

Reasons for Mr Vanderloo's late application for a family provision order

Mr Vanderloo was, as I have recorded above, shown a copy of Mrs Vanderloo's will soon after it was made. He therefore knew from that time that his wife had decided to leave him half of the Property, and none of her residuary estate.
I have already noted that on about 17 November 2010 Mr Vanderloo caused a caveat to be lodged against the title to the Property in which he claimed that he was entitled to a one half share in the property as a tenant in common with Mrs Vanderloo. The terms of the caveat are consistent with Mr Vanderloo accepting that he would ultimately get half of the Property. The reason given by Mr Vanderloo for the caveat being lodged was that it would give him notice if the defendants took steps to sell the property under any power of attorney that they may have had from their mother.
Although it is obvious that Mr Vanderloo knew of his wife's death from the time it occurred, his evidence is that he did not learn that he had 12 months to file an application for a family provision order until after that period had expired.
Mr Vanderloo retained, or approached, four separate solicitors for advice and assistance before he retained the solicitors who act for him in these proceedings in late June 2013, before his summons was filed on 1 July 2013.
Mr Vanderloo's evidence was to the effect that he consulted the solicitors for assistance in obtaining a share of Mrs Vanderloo's superannuation money.
There is in evidence a memorandum of fees to Mr Vanderloo from a solicitor, Mr Adam Darke, headed "Will of Helen Vanderloo". Mr Darke attended the Property on 7 October 2011, and provided "legal advice on the Will of Helen Vanderloo and on the Superannuation entitlements of a spouse". The evidence does not establish what that advice was.
On 18 October 2011 Mr Vanderloo made a request for consideration in the distribution of a death benefit, presumably to the trustee of Mrs Vanderloo's superannuation fund.
Mr Vanderloo sent a letter to both of the defendants on 30 October 2011. He said: "Your Mum's will is Law or the Law is your mum's will". The meaning of this statement is obscure. He set out four "steps" in the will, the third being "the real estate will be divided 50% Theo, 25% Chris and 25% David". The letter does not contest this outcome. It does appear to contest "step 4", which is described as "the estate of your Mum". Mr Vanderloo said that according to law he can ask for the superannuation because it is outside of the will, and will be decided by the superannuation trustees.
Mr Darke's receipts for payment of his fees dated 7 October 2011 and 30 November 2011 also refer to "for advice on will and superannuation matter".
Mr Vanderloo received an email from a new solicitor, Mr Robert Napoli, on 5 September 2012, which referred to a conversation Mr Napoli had had with David Milne in which Mr Milne said that if Mr Vanderloo did not relinquish his claim regarding the superannuation, the house would not be sold promptly. Mr Napoli asked Mr Vanderloo for instructions as to whether he would be prepared to release his interest in the superannuation for the sake of achieving a quick sale of the Property and division of the net proceeds of sale. On 5 September 2012 Mr Vanderloo responded by saying that he wanted to continue to pursue a share of the superannuation.
Mr Vanderloo gave evidence that, in about mid-February 2013, in the course of carrying out internet searches while in China "I came upon various websites of solicitors that dealt with disputes over estates and read something referred to as 'family provision'". He said that he did not ask Mr Napoli about a family provision claim or what it meant because "I was reluctant to embark upon any significant Court action in any event. I just wanted to get what I thought was a fair share of the remaining superannuation and my share of the proceeds of sale of the house. I dismissed the idea of "family provision" shortly after I sent the email".
Mr Vanderloo changed solicitors to a Mr Pilai in April 2013. He gave evidence that in mid-May 2013 he went on the internet again and found a website and read about their being a 12 month time limit to make a claim against the estate. He said that he did not understand that this was the same as the "family provision" claim that he had seen in February 2013. He said: "I dismissed the idea of making a claim for more of [Mrs Vanderloo's] estate as I wished to extricate myself from the dispute with [Mrs Vanderloo's] sons as quickly as possible so I could get on with my life. At that time that then meant more to me than the prospect of more money from [Mrs Vanderloo's] estate to assist me financially".
Mr Vanderloo sent an email to Mr Pilai on 18 May 2013 that gives an internet address for a publication by solicitors in Newcastle concerning the Act, and Mr Vanderloo said "anyway this needs to be filed within 12 months of death. But what it says about superannuation and life insurance is interesting". Mr Vanderloo appears to have cut and pasted into his email some statements about "notional estate", and to have underlined a comment that suggests that an applicant may be able to claim against notional estate that includes "b) where a deceased person had superannuation or life insurance which does not fall into the estate". In the balance of the email Mr Vanderloo seems to say that he wants to pursue his claim in relation to Mrs Vanderloo's superannuation.
Mr David Milne sent an email to Mr Pilai on 5 June 2013, which included the following: As per our phone conversations today I can confirm that the house at 3 Waninga Road Hornsby Heights has been settled. The funds are currently sitting in the trust account and have not been disbursed. Currently there is a matter outstanding, that being the superannuation that is part of the probate. We are not going to distribute any of the funds of the estate until this issues (sic) has been cleared up as there could be significant legal costs that will arise out of taking this issue to (sic) tribunal. These costs will be deducted from Theo's share of the estate. We have not engaged a solicitor on this matter as yet. It was [Mrs Vanderloo]'s wish which was very clearly verbalised to Theo and also set out [in] the will that the superannuation be divided between Chris and myself. If Theo is willing to remove his claim on the superannuation we will be in a position to deposit the funds into his account once the super has been paid into the trust account. I have also been advised that tribunal (sic) can last up to 2 years.
This email was a clear threat by the defendants to Mr Vanderloo that he would not receive his half share of the value of the Property in accordance with the will unless he first abandoned his application for a share of Mrs Vanderloo's superannuation entitlement.
Mr Vanderloo then sought the advice of his present legal representatives and filed his summons seeking a family provision order. I infer that the refusal by the defendants to distribute Mr Vanderloo's share of the estate to him unless he abandoned his claim to a share in the superannuation benefit was a significant factor, inducing Mr Vanderloo to make the present family provision application.

Mr Vanderloo's claim

At the end of the hearing the case put forward by Mr Vanderloo was that his present capital needs involve a total sum of $430,000, which would permit him to buy a two-bedroom apartment in Neeroeteren, Belgium for $250,000; a reliable motor vehicle for $40,000; furniture and fittings for $10,000; and retain an amount of $130,000 for contingencies.
The amount of $430,000 is only $26,430.61 more than Mr Vanderloo would have had, if he had not prosecuted these proceedings. He would have had $355,186.85 from his half share in the property, and $48,382.54 from half of the superannuation fund.

The position of David Milne

David Milne gave evidence of his relationship with his mother in his 14 November 2013 affidavit. It is not necessary that I analyse that evidence in detail. It is sufficient to say that the evidence establishes that there was a close and loving bond between David and his mother during their joint lives. David's father left home when he was five years old, and he was afterwards brought up by Mrs Vanderloo alone.
As has been noted above, David Milne is now 40 years of age.
David's employer is Trade Energy Pty Ltd (Trade Energy). David is a director and a shareholder of the company. Trade Energy employs David as a business development manager. In the financial year ending 30 June 2013 Trade Energy paid David $106,666. David currently works over 80 hours a week trying to keep the business afloat. The company is currently under severe financial stress. The ATO has been demanding payment for Trade Energy's PAYG and GST and the company has now entered a payment agreement with the ATO. Trade Energy is owed a debt of approximately $215,000. It is David's view that Trade Energy will become insolvent if the debt is not paid. Letters of demand have been issued, but the debtor is refusing to pay. The company had approximately $2000 in cash at the time of David's 14 November 2013 affidavit. At that time it did not have enough money to pay David's fortnightly salary on the next pay date. At that time Trade Energy owed creditors approximately $34,000.
In November 2013 David's wife worked part-time at Avery, located in Castle Hill, and earned approximately $50,000 per year.
David is married and has three foster children in permanent care, whose ages are now 5, 6 and 7. The couple are in the process of adopting the children.
All three children have learning difficulties. Rosemary, the eldest foster child, has severe learning difficulties, including possible dyslexia, and suffers from continuous, severe behavioural challenges (attention deficit hyperactivity disorder, oppositional defiant disorder, and anxiety). Rosemary is being treated by medication and therapy. Rosemary currently attends school at Norwest Christian College, which receives special funding due to the special needs that Rosemary has. She needs constant supervision and management. Recent feedback from the preschool that the youngest foster child, Billy, attends is showing warning signs of learning delays, attention deficit and hyperactivity. He is currently undergoing an assessment through Hawkesbury Early Intervention Centre. The nature of the high needs of the children has put a lot of emotional pressure on the family. In particular, Rosemary has frequent outbursts and it takes David and his wife a lot of time and effort to calm her down, which they find very emotionally draining.
Because of the issues with the children, David's wife has had to take time off work for stress leave. She is planning to resign from work in the near future in order to support the children. This will be a difficult decision for the couple to make, as they need her income, but she is not able to cope with being in work and looking after herself and the children.
David's assets are currently as follows: Assets Value Half interest in property at 89 Mitchell Park Road, Cattai NSW $432,500 Car (registered in David's name) $30,000 Tractor (half interest with wife) $1500 Bobcat (half interest with wife) $12,500 ATV farm vehicle (half interest with wife) $1000 Personal effects $2000 Cash (distribution from the estate) $72,053 Shares in Blue DotTraders Pty Ltd $0 Debt owed by Blue Dot Traders Pty Ltd $25,000 Total Assets $576,553

David and his wife have a joint superannuation fund with a balance of $118,964.83. Mrs Milne has a separate superannuation account of $62,145.12.
David's liabilities are as follows: Liabilities Amount Half share of home loan $415,392 Loan (U Connect) $50,000 Westpac credit card $279 Half share vehicle loans $32,500 Total Liabilities $498,171

In addition to the liabilities set out in the above table, David has received a demand from Commonwealth Bank of Australia regarding personal guarantee that he signed in relation to a business operated by Mrs Vanderloo and himself. The liability under the guarantee is $100,000, of which Mrs Vanderloo's estate is responsible for $50,000, and David is responsible for the balance. I understand that this obligation is not the same as the liability of $50,000 to U Connect.
The residential property owned by David and his wife is located in a flood prone area, and he does not anticipate that the value of the property will ever increase significantly. There is a shed on the property that is infested with termites. It needs to be knocked down and rebuilt. David estimates that the cost will be around $20,000.
David and his wife are only paying interest on their home loan. The property is run down and money is needed to fix it up. Accordingly, they cannot afford to make principal repayments.
As of November 2013 David had set aside $100,000 of the interim distribution received from the estate in case an order for further provision was made in favour of Mr Vanderloo. By 30 May 2014 David had used approximately $28,000 of that money, as to $5000 to replace the pump and filter system in the pool, and as to approximately $23,000 to make urgent repairs to the fencing around the property. The fencing had been inadequate and horses that the couple had on the property were escaping and injuring themselves on the previous fence.
In addition to her own half share in the value of the family home and the mortgage that is secured upon it, David's wife owns a utility that is worth approximately $10,000, and a Volkswagen Transporter that is worth approximately $50,000.
As of 30 May 2014 David's weekly income was $1915.33 net. His wife's weekly net income was $1024. The wife's income will cease when she resigns her employment to look after the children. The couple presently receive $750 per week in foster care payments from the State government, but this will cease once the children become adopted. David is not aware of any entitlement to any alternative payments for having adopted children.
The couple's weekly income was, as of 30 May 2014, $3689.33, and their weekly expenses were $5259. That left the deficiency of $1608 per week. The couple will soon take their children out of private schools, and no longer need to spend money maintaining defences on the property. David's estimate is that the couple's weekly expenses will then come to approximately $1221.64 per week. After David's wife resigns, they will have to cope with the net deficiency of approximately $1300 per week.

The position of Christopher Milne

Christopher Milne did not give extensive evidence concerning his relationship with Mrs Vanderloo, but I infer from all of the evidence that it was a loving and respectful relationship.
Christopher is 42 years of age, and is married with four children, whose ages are 7, 5, 2 ½ and 1.
Christopher is a director and shareholder of two companies, Inov8 Access Pty Ltd and Edge Adventure Sports Pty Limited. Inov8 carries on a business of the installation and supply of height safety and rope access systems and building maintenance services. Edge Adventure Sports carries on business operating The Edge Indoor Climbing Centre at Castle Hill, New South Wales.
As at 24 May 2014 Christopher's assets were as follows: Asset Value Notes Half interest in property at 133 Merindah Road Baulkham Hills $360,000 Owned as joint tenant with wife Home loan redraw facility (partial distribution from Estate) $50,391 An additional $20,000 will be paid into the facility by 2 June 2014 Yamaha motorcycle $8500 2011 Ford Ranger $35,000 Chattel mortgage paid by Inov8 Director's loan to Inov8 $162,500 1 ordinary share and 1A class share in Inov8 $1 300 ordinary shares in Edge Adventure Sports Pty Ltd $100,000 Sporting equipment $15,000 Personal effects (1/2 share) $15,000 Total $746,452

Christopher's principal liability is a half share of the home loan secured by mortgage over 133 Merindah Road Baulkham Hills, which is $246,086.
Christopher's wife owns a Volkswagen van which is insured for $54,900.
The shares in The Edge Adventure Sports Pty Ltd may have a value of less than $100,000, as the company only returned a net profit of $5051.04 as at 30 June 2013, compared with $24,228.25 as at 30 June 2012. Christopher did not receive any wages, salary or dividends from the company last financial year or this financial year.
Christopher had a balance in his superannuation fund as at 30 June 2013 of $96,069.58. His wife's superannuation balance was $131,471.98.
Christopher's net weekly income is $1177.10. His wife's current net weekly income is $1588.84. As at 2 December 2013, Christopher's wife's income was $454.38, but she has had to take up more shifts to meet increased expenses in the household.
Christopher accepted in cross-examination that he received $19,500 per annum income from Inov8 in the years ending 30 June 2011 to 30 June 2013, which was not disclosed in his tax returns.
Christopher provided a detailed statement of his family's income and expenses as at 28 May 2014. Total weekly income is $3262.09, and expenditure $3051.70. The surplus is $210.39.
It is expected that, as the children grow older, Christopher and his wife will incur greater education and childcare expenses, particularly when the two younger children reach school age.

Legal principles

It will be convenient in this case to consider Mr Vanderloo's entitlement to a family provision order, before consideration is given to whether the Court should give him leave to make the application out of time under s 58(2) of the Act.
Chapter 3 of the Act governs whether Mr Vanderloo has demonstrated that he is entitled to the benefit of a family provision order, and if so, what the terms of that order should be, as Mrs Vanderloo died after 1 March 2009.
Section 59(1)(c) of the Act provides: "(1) The Court may…make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that… (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person…"
"Family provision order" is defined in s 3 of the Act to mean" "an order made by the Court under chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of an eligible person."
Section 59(2) then provides: "(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
The question is whether, at the present time, Mrs Vanderloo has not by her will made adequate provision for the proper maintenance, education or advancement in life of Mr Vanderloo.
In the present case Mrs Vanderloo has made a gift to Mr Vanderloo in her will of half of the Property.
The question is whether the Court is satisfied, at the present time that the provision is not adequate for the proper maintenance, education or advancement in life of the applicant? That question arises out of the terms of s 59(1) of the Act. I propose to treat this question as being a separate question to that raised by s 59(2) of the Act, and for that purpose will follow the conclusions stated by Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [163] - [165].
Hallen J has set out important principles relevant to determining the answer to this question in Underwood v Gaudron at [130] - [153]. I respectfully adopt those statements of principle, and will state in summary form the principles that I consider to be material to the present application.
In the present case Mr Vanderloo has not made a case that he is in need of additional education, but his claim for an additional provision comes within the concepts of maintenance and advancement in life.
Section 59(1)(c) requires that the Court determine whether the will has not made adequate provision for the proper maintenance, education or advancement in life of Mr Vanderloo. The question is not simply whether the provision is adequate. The meaning of the terms "adequate" and "proper" are crucial. As Hallen J stated in Aubrey v Kain [2014] NSWSC 15 at [63]: "The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 W.A. are 127, per Buss JA, at 145 [72], [77]." Hallen J set out extracts from authorities that have considered the difference in meaning of the two words at [63]-[70].
It will be sufficient to set out the following extract from the judgment of Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566, at 571-572 in relation to how the Court should apply the concept of "proper": "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the Court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the Court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In 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.
The Court must assess the provision made by the testator from the perspective of whether it is "wise and just". Testamentary power lies principally in the testator. The size of the estate available is an important consideration, because the testator is limited in his or her determination of what is wise and just by the extent of the property available for distribution, and accordingly a provision may be "proper" in the circumstances of a particular estate, when that would not be so if the testator had available more assets for distribution. The testator is also entitled, and required, to consider all of the competing claims upon his or her bounty and their relative urgency.
As Hallen J noted in Aubrey v Kain at [50], in cases identified by his Honour, judges of this Court have used the following expressions to describe the mental process involved in deciding whether a provision made by a testator is relevantly adequate and proper; being that the state of satisfaction "depends upon a multi-faceted evaluative judgment" (Basten JA); it involves "an intuitive assessment" (White J); and it is "an evaluative determination of a discretionary nature, not susceptible of complete exposition"; and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Stevenson J).
As I understand the closing submissions made on behalf Mr Vanderloo, his primary argument in support of his claim that he is entitled to a family provision order in his favour for more than half of the Property is that there is a broad general rule that the duty of a testator to his widow, or to her widower, is to provide, to the extent that the assets in the estate permit, sufficient to enable the spouse to have security of accommodation, sufficient income to live in the style in which the surviving spouse is accustomed, and a fund to which the surviving spouse might resort in order to meet unforeseen contingencies. Mr Vanderloo relied upon Luciano v Rosenblum (1985) 2 NSWLR 65 to support this submission. This submission was, as I understand it, put in support of Mr Vanderloo's claim that Mrs Vanderloo had failed to make adequate provision for his maintenance and advancement in life for the purposes of s 59(1)(c) of the Act.
In that case Powell J (as His Honour then was) said at 69-70: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to her to meet any unforeseen contingencies.
The Court of Appeal in Bladwell v Davis [2004] NSWCA 170 has, however, provided more extensive guidance as to how the Court should deal with family provision applications made by the spouse of the deceased. Bryson JA said: [12] There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts vary widely and in truth are unique to each particular case. "Widow takes all" is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under s 7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned. [13] Observations on the claims of widows were made by Powell J in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69-70 in these terms: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However they are frequently, almost universally cited in applications where provisions for widows are under consideration… [18] In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s 7 and the approach established by Singer v Berghouse. Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982. [19] In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.
Ipp JA added: [1] I agree with Bryson JA, for the reasons his Honour has stated, that "it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201 … " [2] I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.
Stein JA, at [24] agreed with Bryson JA and with the additional remarks of Ipp JA.
It is natural that the Court should recognise the social and moral significance of the matrimonial (or other relationship) bond which, even in the modern world, will often involve a long-term relationship where one partner is dependent upon the financial resources of the other, notwithstanding that the dependent partner has made essential non-material contributions to the mutual good of the couple, in a way that has permitted the other partner to accumulate the assets that constitute that partner's estate. There will be many cases where the surviving partner has a call on the deceased partner's estate that is ascendant over the competing claims of other eligible persons. In appropriate circumstances that may be as true for widowers as it is for widows, or other partners to relationships. However, it would be wrong for the Court routinely to equate the survivor of all relationships to the archetypal situation of the dependent widow of a long-term marriage.
A further factor that is of particular significance in the present case concerns the evidence of the steps taken by Mrs Vanderloo during the final stage of her illness to make a will that made a carefully considered division of her assets between her husband and her two sons.
In this respect White J in Slack v Rogan; Palffry v Rogan [2013] NSWSC 522: (2013) 85 NSWLR 253 said at [127]: [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 s 59(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.
Another consideration that is important to the determination of whether Mrs Vanderloo has failed to make adequate provision for the proper maintenance and advancement in life of Mr Vanderloo in the present case is the size of her estate, and the competing claims on her bounty by her husband and her two sons.
In Allen v Allen [2012] NSWSC 140 Macready AsJ said: [95] The extent of the deceased's estate can be considered when determining whether adequate provision has been made, as well as the financial resources and needs of the other beneficiaries (s 60(c) and (d)). [96] In Foley v Ellis [2008] NSWCA 288 Sackville AJA (with whom Beazley JA agreed) stated that, in assessing whether the provision made for an applicant was inadequate, the needs of the other claimants on the deceased's bounty must be considered. His Honour said at [88]-[89]: … 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. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act. The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231): Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
If the requirement in s 59(1)(c) is satisfied, then the Court is empowered by s 59(2) of the Act in terms that it "may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made." It is clear that the effect of the inclusion of the word "may" is that the Court has a true discretion as to whether any order should be made, and if so what order ought to be made: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20 at 212 per Mason CJ, Deane and McHugh JJ.
Section 60(2) of the Act sets out a list of factors that the Court "may" consider in determining whether to make a family provision order and the nature of any such order. The matters that are listed in s 60(2) are a helpful list of factors that may be taken into account, but the section makes plain that the Court can have regard to any other matter that it considers relevant, and the factors are not necessarily determinative in any case: West v Mann [2013] NSWSC 1852 at [12(10)].
In a general way, many of the matters listed in s 60(2) are material to Mr Vanderloo's application: 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 … (m) the character and conduct of the applicant before and after the date of the death of the deceased person … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

Was the provision made for Mr Vanderloo adequate and proper?

Aspirants for family provision orders would do well to remember that the jurisdiction of the Court to interfere with the testamentary freedom of deceased persons to bequeath their estates in the manner of their own choosing is an exceptional statutory power to interfere with that freedom in cases where it can be proved that, having regard to the size of the estate, the testator has failed to act wisely and justly in determining the provision that should be made in favour of the applicant for relief, albeit with the somewhat artificial qualification that the issue is to be determined as at the time of the hearing.
The evidence satisfies me that Mrs Vanderloo made a considered judgment as to the fair and just distribution of her estate between her husband and her two sons. Her will was made relatively shortly before her death, in the probable apprehension that her remaining time might be limited, and it provides a true record of her final testamentary intentions. While Mr Vanderloo made some contribution as to the value of the Property, it was in substance an asset acquired from Mrs Vanderloo's own exertions, and was brought into the marriage by her. Mr Vanderloo enjoyed the benefit of residing at the Property during the 15 year period of the marriage. Mrs Vanderloo was in the circumstances entitled to make her own decision as to how she should divide the Property and the balance of her estate as between her husband and her sons. In leaving half of the Property to Mr Vanderloo she made a substantial gift in his favour. She was entitled to have regard to the circumstances of her sons, and to give the balance of her estate to them, so that it would inure for the benefit of her children and grandchildren. Given Mr Vanderloo's age, any greater gift to him would in due course go to the beneficiaries of his will, and not to her descendants.
In his final submissions Mr Vanderloo said that the circumstances of both David and Christopher Milne were "comfortable". I respectfully disagree. Both sons have young families, and while both have been able to establish, through their exertions in running the small businesses that they operate, a reasonable situation in life for themselves and their families, there is a precarious aspect to each of their financial circumstances. Perhaps Christopher's position is a little sounder than David's. However, they both have a considerable way to go before they will be secure from the risk of the failure of their businesses.
In the circumstances it is both understandable and reasonable that Mrs Vanderloo decided to split the balance of her estate between her two sons, after having made a gift of half of the Property to Mr Vanderloo.
The provision made in Mrs Vanderloo's will in favour of Mr Vanderloo of half the Property has, following its sale, given him an entitlement to $355,186, which Mr Vanderloo would have enjoyed if he had not commenced these proceedings. As the question whether the will made adequate provision for Mr Vanderloo's proper maintenance and advancement in life must be addressed as at the time of the application, the Court must take into account the fact that Mr Vanderloo has also received a distribution of $48,382.52 from Mrs Vanderloo's superannuation fund. In total Mr Vanderloo would have had $403,568.52.
As I have recorded above, in final submissions Mr Vanderloo's counsel put a case that Mr Vanderloo's present capital need is a sum of $430,000. That amount is only $26,430.61 more than Mr Vanderloo would have had, had he not commenced these proceedings.
It may be that the claim that Mr Vanderloo finally made involved him cutting his cloth to meet the circumstances, as at the time of submissions Mr Vanderloo had to accommodate the reality of the evidence concerning the present circumstances of David and Christopher Milne, the accumulated legal costs of the proceedings, and the unexpected fact that it has been discovered that the estate owes the sum of $50,000 to Commonwealth Trading Bank.
In the absence of these proceedings the total distributable value of the estate would have been the $710,373 net proceeds of sale of the Property, plus the additional assets (excluding the superannuation fund) of $79,692.29. The total would have been $790,065.29. It is now known that that sum must be reduced by $50,000, giving $740,065.29. Mr Vanderloo's $355,186.85 share of this sum would have represented approximately 48% of the estate.
As a consequence of Mr Vanderloo's application for a family provision order, if Mr Vanderloo were to succeed and be awarded his legal costs on the ordinary basis out of the estate, the distributable estate will be further reduced by the executors' legal costs of $124,127.28, and Mr Vanderloo's costs of $65,000, giving a total reduction of $189,127.28. When that is deducted from the $740,065.29 the result is $550,938.01.
If one starts with Mr Vanderloo's entitlement under the will of $355,186, there would accordingly only be $195,752.01 available for redistribution. Half of that amount is $97,876, which is all that would be left for each of Mrs Vanderloo's sons, before the effect of any family provision order which would further reduce that amount. When the figures are considered in this way, it demonstrates how great would be the effect of any family provision order in favour of Mr Vanderloo in undermining Mrs Vanderloo's reasonable testamentary intentions.
It is difficult to see how in these circumstances Mr Vanderloo could ever have hoped to demonstrate that Mrs Vanderloo did not make adequate provision for his proper maintenance and advancement in life, given in particular the relatively small increment that his present claim constitutes over the position he would have been in if he had not challenged the terms of Mrs Vanderloo's will.
I find that Mr Vanderloo has failed to establish that adequate provision was not made by Mrs Vanderloo in her will for his proper maintenance and advancement in life, and I will accordingly dismiss his application.

Application under s 58(2) of the Act.

Logically, the question whether an applicant should be permitted to make an application out of time precedes the question of whether a family provision order should be made. However, it is usually the practice for the Court to deal with the issue at the same time as the substantive application for a family provision order is made. Consequently, when the Court comes to decide whether the application should be permitted, it will already know whether, if it is permitted, it will succeed. As a factor that is material to the decision whether to permit the application to be made out of time is its prospects of success, it is hard for the Court to decide the question without being influenced by the outcome of the application itself.
Hallen J has said recently in Epov v Epov [2014] NSWSC 1086 in relation to the circumstances in which the Court will "otherwise order" under s 58(2) of the Act: [60] Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. (Consent is no longer referred to as it was in the former Act.) [61] Clearly, permitting the court to "otherwise order" was included in the legislation to avoid the section becoming an instrument of injustice. It also makes the decision to extend time a discretionary one. [62] Yet, "[T]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380, at [98]. It is "a substantive provision laid down in the Act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167, at 175. [63] Section 58(2) is in terms similar to s 16 of the former Act. However, the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown". [64] In Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184, White J, at [39], wrote that the expression "sufficient cause" "means sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period". That is to say, the sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time: Verzar v Verzar [2014] NSWCA 45, per Meagher JA, at [24]. [65] In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84]-[90], I set out the applicable legal principles relating to an application to extend the time. The decision was followed, by Nicholas J in Twomey v McDonald [2012] NSWSC 22, at [8], and by Ball J in Donaldson v Lawless [2013] NSWSC 861, at [27]. I maintain the views expressed in that decision. [66] It is not necessary to encumber these reasons with a repetition of the reasons in Thomas v Pickering; Byrne v Pickering. A judicial discretion must be exercised and all the relevant circumstances must be taken into account in order to assess the justice of the particular case under consideration. No one factor is necessarily determinative. As I said in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]: [U]ltimately, justice is the paramount consideration in determining whether to extend the time for making an application ….
The observations in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 to which his Honour referred are: [84] The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. [85] The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. [86] The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. [87] The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic 2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig at [21]. [88] In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. [89] As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. [90] Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].
I have set out the facts that bear upon the question whether Mr Vanderloo should be permitted to make his application above at pars 83 to 98.
Mr Vanderloo has the burden of establishing that there is sufficient cause to permit him to make his application out of time.
There is no relevant prejudice to the other beneficiaries in permitting Mr Vanderloo to do so, as even though a substantial part of the estate has been distributed, the executors took that course after they became aware that Mr Vanderloo had commenced the proceedings and sought an order under s 58(2) of the Act.
In this case Mr Vanderloo knew what the will contained soon after it was made by Mrs Vanderloo. This is not a case where the applicant only became aware of the terms of the will after the 12 month period had expired.
Mr Vanderloo's action in causing the caveat to be lodged against the title to the Property showed that at that time it was his expectation that he would be entitled to half the value of the Property. The lodgement of the caveat at least establishes that Mr Vanderloo was alive to the need to protect his own share in Mrs Vanderloo's estate.
The evidence establishes that Mr Vanderloo sought advice from two solicitors, Mr Darke and Mr Napoli, before the 12 month period after Mrs Vanderloo's death elapsed on 13 September 2012. Mr Vanderloo did not provide any comprehensive evidence of the advice that he was given by those solicitors. The limited evidence that there is at least establishes that Mr Darke gave some - unidentified - "legal advice on the Will of Helen Vanderloo". It is hard to accept that Mr Darke failed to raise Mr Vanderloo's possible entitlement to make a family provision application. That said, it must be accepted that it was not put to Mr Vanderloo in cross-examination that he had received that advice. Furthermore, Mr Vanderloo did claim that he had not been advised that he only had 12 months to make the application.
Mr Vanderloo gave evidence that, after the 12 months expired, by various indirect means he gained knowledge that he may have been entitled to make an application for a family provision order, but he did not dispute the issue, because he decided that he only wanted to pursue getting a fair share of Mrs Vanderloo's superannuation, and he otherwise wanted to "extricate" himself from further dispute with Mrs Vanderloo's sons.
It is hard to avoid the conclusion that, in a positive way, Mr Vanderloo had at least some awareness from his initial dealings with the solicitors that he retained that there may have been some avenue for him to seek a greater share of Mrs Vanderloo's estate than he received under her will, but that he made a decision not to pursue that avenue.
I have reached the conclusion, on balance, that the present is not an appropriate case to make an order permitting Mr Vanderloo to make this application for a family provision order out of time. My primary reason is the fact that Mr Vanderloo's claim is for such a small increment over the position that he would have been in if he had made no application that, if I had been able to decide the application for an extension of time soon after the proceedings were commenced, I would have dismissed the application. Further, the evidence that Mr Vanderloo has tendered in support of the application has not dispelled the appearance that Mr Vanderloo was aware before the 12 months elapsed that he had a right to make the application, but he chose not to do so, until David Milne's unjustified refusal to distribute Mr Vanderloo's half share of the proceeds of the sale of the Property to him unless he abandoned his pursuit of a share of Mrs Vanderloo's superannuation prompted him to make the application. I do not think that Mr Vanderloo has satisfied the onus that is placed upon him to justify an order that he be permitted to make his application out of time.
As I have, in any event, dismissed his substantive application, my ruling on the application under s 58(2) of the Act will have no further consequence.

Costs of the proceedings

As Mr Vanderloo's application has failed, and as I am of opinion that his claim did not from its inception have strong prospects of success, Mr Vanderloo will have to bear his own costs of the proceedings.
Subject to any order that the Court might make that Mr Vanderloo pay the defendants' costs of the proceedings, an order should be made that the defendants' costs be paid out of the estate on the indemnity basis.
I will invite the parties to provide submissions on the issue of whether Mr Vanderloo should be ordered to pay the defendants' costs. I have in mind the observations recently made by the Court of Appeal in Chapple v Wilcox [2014] NSWCA 392 concerning the issue of whether costs should follow the event when applications for family provision orders are dismissed, and the continuing possibility that there may be special cases where applicants for family provision orders whose claims fail should not be ordered to pay the costs of the proceedings.
Although this may be a case where costs should follow the event, I am concerned with the fact that on 5 June 2013 Mr David Milne, on behalf of the executors, informed Mr Vanderloo's solicitor that the executors would not distribute to Mr Vanderloo his share of the sale proceeds of the Property unless he abandoned his claim for a share of Mrs Vanderloo's superannuation (see par 96 above). That action appears to have been inappropriate on the executors' part, and seems to have been a contributing cause to Mr Vanderloo's commencement of his application for a family provision order. While it may be that the proper course for Mr Vanderloo to have taken was to commence proceedings to oblige the executors to implement the trusts in Mrs Vanderloo's will, it may nonetheless be that this conduct of the executors should be taken into account in determining what costs order, if any, should be made against Mr Vanderloo. I will leave it to the parties to deal with this issue in submissions.

Orders

I make the following orders: 1. Order that the plaintiff's proceedings be dismissed. 2. The plaintiff is to bear his own costs of the proceedings. 3. The parties are invited to make submissions as to what, if any, order should be made against the plaintiff in respect of the defendants' costs. 4. Subject to any order that will be made in response to order (3), the defendants' costs of the proceedings are to be paid out of the estate of the deceased on the indemnity basis. 5. Order that the exhibits may be returned forthwith in accordance with the Rules

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2015

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (33)