Wise v Barry; The Estate of Robyn Margaret Wise

Supreme Court of NSW|2018-10-16|Before: Hallen J, Legislation Amendment J

Background Facts

In claims such as these, factual context is necessary. It is convenient to begin with a short statement of some of the background facts, since these provide the context in which the issues arise. Many of these facts are taken from the affidavits read in the proceedings, or in evidence given during the case, which are uncontroversial unless otherwise stated.
The deceased was born in November 1950 and, as I have mentioned, died, at the age of 60 years, in April 2011.
The deceased married Robert Wise on a date not disclosed in the evidence. Shane is one of the two children of their marriage. He was born in September 1973. The only other child of the marriage is Craig Andrew Wise, who was born in September 1975. He did not play any part in the proceedings (although some evidence of his financial circumstances was provided, without objection, by Shane).
The deceased's marriage was dissolved in about 1992. Shane gave evidence, and Stephen did not dispute, that there had been an adjustment of matrimonial property interests, as a result of which the deceased received $100,000 and a car. The evidence reveals that $94,338 was deposited into a bank account, in the name of the deceased, on 2 June 1993. As at 30 June 1996, the amount shown in the deceased's bank account referred to above was $25,511. How the difference in the two amounts had been spent, was not disclosed in the evidence.
Stephen was born in January 1954. He met the deceased in March 1994. They commenced a de facto relationship in about 1996, when Stephen moved into the Nelson Bay property, which the deceased was renting at the time.
The deceased's last Will was one duly made by her on 20 September 1998. In that Will, the deceased: 1. Revoked all previous testamentary acts (Clause 1); 2. Appointed her son, Shane, and, her "partner", Stephen, as executors (Clause 2); 3. Made a specific gift of "half the value of my home to my partner…and 1/4 each share of the remaining half to my sons…" (Clause 5); 4. Made a general gift of "all my [j]ewellery, clothing, car and all personal effects to my sister, Gayle Anne Hadfield, to divide between relatives as she sees fit & proper who resides [sic] at Woodberry" (Clause 6); 5. Gave the residue of her estate to Stephen, Shane and Craig (Clause 7).

Costs and Disbursements of the Proceedings

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate.
As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
I also do not forget that "the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute" or that "[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order": Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].
Nor should parties assume that in an estate, with an extremely modest value, as this one is, that all of the costs will be borne by the estate of the deceased. I have previously written that in small estates particularly, the Court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Harkness v Harkness (No 2), at [18]. I tend to the view that, perhaps, in this case, there has been both obstinacy and unreasonableness, on both sides. A fuller picture may be presented in any argument about costs.
In an affidavit sworn on 14 August 2018, by Shane, his costs and disbursements, including the costs of mediation, calculated on the indemnity basis, to the conclusion of a 1 day hearing, were estimated to be $56,998. In addition, there was an estimated expense of $2,000 for "travelling and accommodation".
He also gave evidence that he had personally paid $2,000, on account of his costs and disbursements, in relation to the proceedings. The total of these costs and disbursements, therefore, is about $61,000: T6.39 - T7.12.
Whilst no evidence was provided to the Court as the matter continued into a second day, counsel for Shane stated from the Bar table, without objection, that an amount of $12,000 should be added as the costs and disbursements of the second day, making the total estimate of $73,000: T110.17 - T110.25. The amount was, apparently, calculated by adding counsel's fees and the solicitor's costs and disbursements, including staying overnight, in Sydney.
In an affidavit affirmed on 11 April 2018, Ms R D Wallbank, solicitor, revealed that the estimated costs and disbursements of Stephen, up to and including the mediation were $37,632. Despite directions having been made when the matter was listed for hearing, no updating affidavits as to Stephen's current financial resources, or his costs of the proceedings, were served in accordance with those directions.
The failure to comply with the directions had been pointed out to counsel for the Defendant at the pre-trial directions on 12 September 2018 but the lack of evidence was not remedied. The importance of parties complying with the directions of the Court has been stressed on many occasions, as has the importance of an applicant disclosing fully, and accurately his or her financial circumstances: see, for example, Chu v Ngar [2015] NSWSC 1505, at [126] - [128] and, more recently, Cringle v Cringle [2018] NSWSC 1558, per Ward CJ in Eq. at [35] - [36].
At the hearing, counsel for Stephen stated, from the Bar table, that Stephen's costs and disbursements had increased by $5,000 (inclusive of GST), making a total estimate of $42,632: T7.46 - T7.49. Later on, during the first day of the hearing, he endeavoured to file an affidavit of Ms Wallbank, but it was obviously inaccurate in several respects and counsel for the Plaintiff objected to it being filed. In the circumstances, I did not accept it for filing.
On the second day of the hearing, counsel for the Defendant, without objection, sought to file in Court another affidavit of Stephen's solicitor. In the circumstances, I granted leave to do so.
In this affidavit, which was affirmed on 16 October 2018, a very different picture of Stephen's costs and disbursements was disclosed. Firstly, the costs and disbursements, calculated on the indemnity basis, for a 1.5 day hearing, were estimated to be $79,502 inclusive of GST. Calculated on the ordinary basis, the costs and disbursements were estimated to be $54,202, inclusive of GST.
Ms Wallbank also disclosed, in this affidavit, that Stephen had paid $62,087 of his rendered costs, disbursements and counsel's fees to date. No prior evidence had been given about this aspect in the costs affidavit referred to earlier, or by Stephen himself. The Court was given no explanation for this omission.
One cannot help but conclude, if the estimates prove accurate, that there has been a complete lack of proportionality, which seems to support the earlier statement regarding obstinacy and stubbornness.
Bearing in mind the encouragement given to the parties to resolve their differences without the need for a contested hearing, with all its attendant costs, including making a Smyth order, I shall consider limiting the costs and disbursements of one, or both, parties after the conclusion of the proceedings and will require the parties to make submissions on the issue of costs, unless agreement is otherwise reached. I shall also consider making an order under s 98(4) of the Civil Procedure Act 2005 (NSW) in order to avoid the expense, delay and aggravation involved in arguments arising out of any protracted debate about costs or the assessment of costs: Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121, at [4] - [7].
All of these matters were raised with the legal representatives of the parties during the hearing. They requested me not to deal with the question of costs as there may be a document, or documents, that will be relevant to how the burden of costs should be borne. I shall abide the request and when these reasons are delivered, the way in which the Court should deal with the issue of the burden of costs will be determined.
I should mention that Stephen has consulted, and has been advised, by four firms of solicitors namely Rankin and Nathan in 2012, David Bicknell in 2015, Ian Vasey of Lawson solicitors in Foster in 2016 and his present solicitor. However, it appears that only his current solicitors have been involved in the proceedings.

The value of the estate at the date of the hearing

Subject to the claim for an occupation fee, to which I shall return, the parties were agreed that if one deducted from the gross value of the estate ($320,000), the costs and expenses of sale of the Nelson Bay property ($10,000), the debts secured by the mortgages ($15,452, $843 and $50,180, making a total of $66,476), the additional costs of the administration of the deceased's estate ($12,000), and the amount to be repaid to each of the parties on account of administration costs (in total $5,000), the net value of the estate, without any deduction of costs, was $226,524: T107.40 - T108.15.
The parties also agreed that if the total estimated costs of both parties ($127,202) were also deducted ($73,000 and $54,202 respectively), the net available estate out of which any provision could be made for the Defendant, if an order extending the time for the making of his application were made, would be $99,322: T110.35 - T110.42.
If such amount were distributed in accordance with the terms of the deceased's Will, again omitting the claim for mesne profits or an occupation fee, Stephen would receive a lump sum of $49,661, and each of Shane and Craig, would receive about $24,830.

Claim for an occupation fee

As stated, in his amended Summons, Shane claimed an occupation fee because Stephen has remained in occupation of the Nelson Bay property since the date of the deceased's death.
There could be, and was, no dispute that implicit in the deceased's Will was the requirement that the Nelson Bay property be sold. There was not a devise of that property to Stephen, Shane and Craig, absolutely, but rather a share of the "value of my home" given to each of them.
Stephen, since the date of death, has remained in occupation of the Nelson Bay property. He has not vacated the Nelson Bay property, despite having no entitlement, under the Will, or otherwise, to do so, and despite being orally requested to vacate, by Shane and Craig, the first time, a few weeks after the death of the deceased.
It should have been obvious that Stephen had no legal entitlement to remain in possession of the Nelson Bay property, and that he should have vacated possession thereof, particularly once there was a grant of Probate. Furthermore, as an executor to whom Probate was granted, he was in a fiduciary relationship and was under an obligation not to prefer his own interests to those of the other beneficiaries.
To make matters even worse so far as unauthorised occupation is concerned, in 2017, Stephen's current wife and her two children moved into the Nelson Bay property. They, also, had, and have, no legitimate basis for being, or remaining, in occupation. Stephen did not seek the permission of Shane and Craig for that to occur. Indeed, until relatively recently, he had not informed Shane, as his co-executor, that it would be occurring.
Furthermore, Stephen, at no time, commenced proceedings, by Statement of Claim, for a declaration of trust over the Nelson Bay property. He did not assert in the Cross-Summons that the Nelson Bay property was held on trust for him. He did not assert that he had any legal entitlement to remain in occupation of the Nelson Bay property.
Nor did Stephen attempt to obtain any order from the Court, by way of interim provision under s 62 of the Act, which permits the Court to make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. Indeed, he did not even make a claim for a family provision order until nearly 7 years after the death of the deceased. (As I have mentioned, this means that his claim was filed just less than 6 years out of time.)
By not vacating possession, it was submitted that Stephen had prevented the estate from having access to, and from dealing with, by sale, or other disposition, the most substantial asset in the estate of the deceased. The estate did not obtain any income from the Nelson Bay property either. In other words, Stephen had wrongfully interfered, or denied, the estate's property rights.
There was evidence as to the reasonable letting value of the Nelson Bay property and agreement on the total gross amount that could have been received between April 2011 and 2018. The parties agreed that the total gross amount based upon the estimated rental was $118,000. The estimate was based upon the agreed Valuation Report referred to earlier.
The parties also agreed that if the total gross amount for the reasonable letting value was ordered to be paid, then, what had been paid out of Stephen's own funds towards the three loans ($48,047) would be reimbursed to him out of the gross sum. That would mean that $69,953 (without interest accrued thereon) would be the net amount left to be paid to the estate: T101 - T102; T108.17 - T108.30.
The parties also accepted that if the gross amount was ordered to be paid as an occupation fee, and if there were no order for costs to be paid out of residue, Stephen would be entitled to a one third share of the net amount remaining, as one of the three residuary beneficiaries. That, of course, would be subject to how the burden of costs was to be borne and the income tax liability, if any, payable thereon.
Neither counsel included any submissions in relation to the entitlement to an occupation fee from Stephen, with the result that it became necessary to allow each an opportunity to file supplementary written submissions.
On the day on which Shane's submissions on the topic were due, the Court received an email in the following terms from his counsel: "Further to directions made on 16 October last, I advise that the plaintiff's claim for an occupation fee/mesne profits will not be pursued and is withdrawn…"
Thus, Shane, representing the estate, may be taken to have abandoned the claim for an occupation fee.
Despite this, it is clear from the evidence read, that the estate has been deprived of income which it could have received from renting the property. It is equally clear that Stephen has received a significant benefit by remaining in occupation since the death of the deceased. He made it clear, during his cross-examination, that despite the correspondence passing between the lawyers, and the discussions held between himself, Shane and Craig, he was not prepared, at any time, to vacate the Nelson Bay property. Indeed, it will require an order of this Court for that to occur.
Even though no claim for an occupation fee is now being pursued, the Court is entitled to, and will, take into account the benefit that Stephen has received, following the death of the deceased, in remaining in occupation of the Nelson Bay property without any legal entitlement to do so. The quantum of the reasonable letting value, even calculated from shortly after the date of the grant of Probate, would be reasonably significant.

The delay between the date of death and the commencement of the proceedings

I have earlier set out the Plaintiff's claims for relief. In relation to those claims, the following matters of fact are not in issue.
The deceased died almost 7.5 years ago. This Court granted Probate about 5.5 years ago.
For some time after the death of the deceased, Shane and Stephen had little contact. In October 2011, Shane received correspondence from solicitors acting for Stephen. Shane gave instructions to his own solicitors. Discussions then took place between solicitors; there was a change of Stephen's solicitors; and in January 2013, the necessary Probate application was signed by the parties.
Shane, in his affidavit of November 2017, acknowledged that "[B]oth prior to and since the grant of probate, negotiations took place on behalf of myself and Craig and the Defendant as to the disposal or acquisition by the Defendant" of the Nelson Bay property.
Stephen's then solicitors (Rankin Nathan Lawyers) wrote a letter dated 23 August 2012 (Ex. B) to the solicitor (John Edmunds) acting for Shane and Craig, which it is not necessary to repeat in detail, pointing out that Stephen "has available to him a family provision claim under the Succession Act and a resulting or constructive trust over the Property". The letter went on to note that "[O]nce the loans are repaid and the other estate expenses are met, the net value of the estate will only be about $120,000 to $130,000." An offer was then made without prejudice except as to costs, that "each of your clients be paid the sum of $5,000 by Stephen and the balance of the estate be transferred to him, together with all estate liabilities".
Mr Edmunds sent a letter dated 28 August 2012 (Ex. 5), which is also not necessary to repeat in detail, but in which it was pointed out that Shane and Craig "accept that the net value of the estate would not exceed $130,000" and that they proposed that "they pay to your client the sum of $65,000 in consideration for which the subject property will be transferred" to them on the basis that simultaneously with the transfer, they would discharge the loans secured over the Nelson Bay property. This letter was also said to be "without prejudice except as to costs".
The Defendant's solicitors wrote again a letter dated 26 September 2012 (Ex. 1). A further offer of $15,000 to be paid to each of Shane and Craig was made. Again, the letter was said to be without prejudice except as to costs.
In May 2013, the Plaintiff's solicitors wrote to the Defendant confirming that Probate had been granted and that "it is appropriate to finalise the distribution of the estate". The letter continued (with editorial amendments): "There appear to be three (3) options available which are as follows: 1. That you acquire Shane and Craig's interest in the property and simultaneously refinance the existing mortgages. 2. That Shane and Craig acquire your interest in the property and refinance the mortgages. 3. That the property be sold, [the] mortgages be paid and the proceeds distributed in accordance with the Will. This option is less desirable and it would necessarily incur agent's fees, legal fees etc together with potential delays. I am instructed that my clients [are] ready willing and able to purchase your one-half interest in the property and refinance the existing loans. I am instructed they can proceed to do so relatively quickly. My clients expect this aspect of the matter to be resolved without further delay noting that you have had occupation of the property since Robyn's death over two (2) years ago. Accordingly I would request that you reply to [this] letter setting out your intentions within seven (7) days. I look forward to your reply within that time or should you instruct solicitors to act on your behalf, from your solicitors."
The next letter that included an offer that was tendered (Ex. 4) was one dated 14 December 2014, from Mr Edmunds to Stephen himself. The letter referred to a proposal made in May 2013 "putting a proposition for the disposal or transfer of the property…". It referred to subsequent attempts by Shane and Craig "to negotiate an amicable resolution with you without success". The letter also referred to "the executors and the trustees of the estate being yourself and [the Plaintiff] have an obligation to finalize the estate without delay". An offer was then made that the Plaintiff and Craig (or one of them and/or their family members) would "acquire your interest in the property for the sum of $120,000; or that you acquire my clients' interest in the property for the sum of $100,000. In either event, the party acquiring the property would also be required to discharge or refinance existing mortgages". The letter described this offer as the Plaintiff's "final attempt to resolve the matter".
There is no evidence of any response by Stephen, or by any solicitor on his behalf, to this letter.
In addition to the offers made, there is evidence that in March 2014, Shane and Stephen agreed to list the Nelson Bay property for sale. In late March, 2014, a Sales Inspection Report and Exclusive Agency Agreement was entered into with Nelson Bay Real Estate Pty Limited to sell the Nelson Bay property.
A letter, dated 25 February 2015, was sent by Nelson Bay Real Estate advising of a sale of the Nelson Bay property for $340,000. Stephen refused to proceed with the sale.
There were other negotiations, attempted by Shane, that did not result in any sale of the Nelson Bay property or completion of the administration of the deceased's estate.
In late May 2015, Shane and his wife offered to purchase the Nelson Bay property at the selling price. They signed a Contract for the sale, but Stephen did not do so and gave oral evidence that he did not read, or even open, any related correspondence as he "wasn't interested": T69.03 - T69.11.
Somewhat surprisingly, some negotiations between Shane, Craig and Stephen continued thereafter, the precise nature of which are not disclosed in detail, but no settlement was reached.
Stephen's evidence about his occupation should be noted. I had some difficulty accepting, as truthful, some of this evidence. For example, he stated that he had not been permitted by Shane to live in the Nelson Bay property after the deceased's death but that "[T]he pair of us lived there together, Robyn and I. And when she passed away I was to stay there": T69.26 - T69.35. Of course, the terms of the deceased's Will suggest otherwise.
He stated that he "could not recall" being asked to vacate the Nelson Bay property (despite the fact that he had stated in an affidavit that "[W]ithin weeks of the deceased's death the Plaintiff and his brother Craig started demanding that I vacate my home, the Nelson Bay home unit"): T74.50 - T76.14. He also stated that when he married, he did not seek the consent of anybody for his wife, or her children, to move into the Nelson Bay Property because he "did not think of it": T70.04 - T70.07.
Furthermore, in his oral evidence, he frankly maintained that the Nelson Bay property would never be sold whilst he was living there and even though he had signed the authority with the agent to sell the property, he had "no intention of selling": T64. He also accepted that he would "make sure" that the Nelson Bay property was not sold and that his intention was that it not be sold: T71. These are not matters that he appears to have communicated to Shane as his co-executor.
Even now, title to the Nelson Bay property remains registered in the name of the deceased and the debts secured by the mortgages or otherwise payable out of the estate remain unpaid. The estate should, and could, have been administered without delay. It has not been.
Yet, I must also bear in mind that there is a measure of reciprocity in the way Shane acted. No proceedings were commenced by him, after Probate was granted, and it was only in late 2017 that these proceedings were commenced. The explanation may be that the commencement of legal proceedings would result in significant costs being incurred (as they have in any event).

Removal of an Executor

It is because of Stephen's determination to remain living in the Nelson Bay property that these proceedings have been necessary and, at least in part, the significant delay in the administration of the estate has occurred.
It is clear that the administration of the deceased's estate should have been simple. The duties of Shane and Stephen, as executors, in administering the deceased's estate included collecting, and realising, the deceased's assets, and paying the deceased's creditors. Specifically, the administration of the estate required the sale, or other disposition, of one asset, being the Nelson Bay property, which was of modest value, and the repayment of debts, funeral, and testamentary expenses, which would have required the repayment of debts secured by the mortgages registered on title. The net proceeds of sale of the Nelson Bay property could then have been distributed in accordance with the terms of the Will.
There is prejudice to Shane and Craig in the delay in having final distributions, made to them. Against that, the Court must weigh up the fact that there has been an increase in the value of the Nelson Bay property in the years Stephen has remained in occupation. However, that is not because of Stephen.
It was accepted by the parties that it was necessary to proceed on the basis that their executorial duties have not been fully completed, and that the jurisdiction to be exercised by the Court, on the Plaintiff's application, is one under the Probate jurisdiction (involving an application for a revocation order and a fresh grant of administration) rather than that under the equity jurisdiction (an application for removal of a trustee): Estate of Webster [2016] NSWSC 580, per Lindsay J, at [22].
There is also no dispute that the Court has an inherent power to revoke a grant of probate. The relevant principles were stated in Bates v Messner (1967) 67 SR (NSW) 187, at 189 and 191 - 192. Also see Mavrideros v Mack (1998) 45 NSWLR 80, at 101 - 102; [1998] NSWCA 286.
In Bates v Messner, Asprey JA wrote, at 191 - 192: "... that the essential basis of the exercise of the court's inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P., namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as 'abortive', 'inefficient', 'useless' or 'ineffectual', are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that 'he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his administration' has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other mattes which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant."
Needless to say, the exercise of the Court's discretion will depend upon the facts of the particular case. The Court's jurisdiction is a supervisory and a protective one. Its exercise is not to be undertaken lightly. The wishes of the deceased, where possible, should be honoured. A relevant consideration in its exercise will be the stage the administration of the estate has reached by the time the application for removal is made. What will best safeguard the interests of the beneficiaries and the due and proper administration of the estate, according to the terms of the deceased's Will, is the yardstick to be applied in any such application.
An executor who is shown to be guilty of inexcusable delay, one who otherwise impedes the due administration of the estate, or who obdurately refuses to do something necessary for the administration of the estate without sufficient reason may be removed. The dereliction of the executor's duty, whether born of intent, of carelessness, or incompetence does not really matter.
A breakdown in the working relationship between the executors, frustrating the process of administration of the estate, may also suffice for the exercise of the Court's jurisdiction: Estate of Webster, at [26], as may the existence of an actual, or potential, conflict of interest, taken with a failure to recognise such a conflict, or potential conflict. Yet, it is not necessary to make any finding of misconduct, or default, on the part of any person.
In the case at bar, Shane submits, with some justification, that the due and proper administration of the deceased's estate has been prevented by reason of acts or omissions on Stephen's part. The fact that these proceedings have not been able to be resolved by them, and that each party has persisted to conclusion by reasons for judgment makes it seem more likely than not that there is no realistic expectation that they will be able to work together in the interests of the due administration, and final distribution of the estate.
The sale could, and should, have been able to have been completed promptly, and the share of the proceeds of sale distributed to each of the beneficiaries entitled to share those proceeds. It has not been. Therefore, what must be considered are the interests of all of the beneficiaries, the security of the Nelson Bay property, and the efficient and satisfactory execution of the trusts in the deceased's Will.
In my view, the welfare of all the beneficiaries is opposed to Stephen's continued occupation of the office of the executor. An order should be made that Stephen be removed as an executor and the grant of Probate should be revoked with an order that there be a grant made to Shane alone, so that the final administration of the estate can conclude promptly. Vacant possession of the Nelson Bay property should be given within 28 days of these reasons being published and a writ of possession should be made. There will also be the need to make an order that the balance of the Summons, so far as it relates to the order sought for an occupation fee and consequential relief in respect thereof, should be dismissed.
I shall require the parties to provide Short Minutes to reflect these reasons.

The Cross-Summons - The Statutory Scheme

In order to place into context the reasons for the Court's decision, it is, next, convenient to consider the statutory regime and the legal principles that govern the circumstances in which the Court can exercise the discretion under the Act. The legal principles are not in dispute.
Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.
As stated, s 58(2) of the Act, relevantly, 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. If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application. Clearly, permitting the Court to "otherwise order" was included in the legislation to avoid the section becoming an instrument of injustice.
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]. (The equivalent section in similar UK legislation has been described as "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.)
In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [23] - [24], Pembroke J put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
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, as follows: "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. 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. 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. 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 [2011] NSWSC 1029 at [21]. 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. 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. 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]."
In Moore v Randall [2012] NSWSC 184, at [39], White J (as his Honour then was) 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."
In Stone v Stone [2016] NSWSC 605 at [36], Brereton J (as his Honour then was) made the following observations about the operation of s 58(2) of the Act: "The effect of the section is to confer on the Court a discretion to extend time, having regard to all the circumstances of the case, but only if sufficient cause is shown for the application not having been made within the 12-month period. This limitation period is not merely procedural nor a mere formality, but is substantive. An applicant for such an extension must demonstrate that there was sufficient cause for not having made the application within the 12-month period. So much is mandatory. This requires some explanation for the failure to make the application during that period. Once sufficient cause is shown for not having made the application within that period, the discretion to extend time (by making an 'otherwise order') is enlivened. It is not a jurisdictional prerequisite that sufficient cause be shown for any further delay after the expiry of the 12-month period; however, any such further delay and the reasons for it are plainly part of 'all the circumstances of the case' to which the Court must have regard in exercising the discretion. Other discretionary considerations include whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which an executor or a beneficiary has acted to their detriment); and the strength of the applicant's case for relief under the Succession Act. A mere change of mind on the part of an eligible person, who has decided not to make a claim - even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim - is ordinarily not sufficient cause for granting an extension of time."
However, a slightly different view seems to have been expressed in Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45, at [24], in the Court of Appeal, in which Meagher JA wrote that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
With great respect, I respectfully agree that the meaning of "sufficient cause" is sufficient, in all the circumstances, to justify the granting of an extension of time.
Unlike the legislation in some other States, in New South Wales, the application for provision under the Act and an application for an extension of time within which to make an application are not discrete and separate applications. Thus, to refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant.
As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 at [31]: "The appellants' submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: 'If it is improbable that the substantive application will succeed it seems idle to grant the extension.' This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success 'may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ...'."
Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].
Meagher JA also noted in Verzar v Verzar [2014], at [33] - [35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2). … The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996). … Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."
Gillard J in Valbe v Irlicht [2001] VSC 53, had written, at [31]: "In my opinion the strength of the case is an important and relevant factor to take into account. The period of delay and the reason for it, whilst important, are not factors which carry much weight in the absence of prejudice and in the face of a strong claim. Justice is the paramount consideration and to deny a person an extension of time in the face of a strong claim could amount to an injustice."
I repeated part of this statement in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…"
In Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, Basten JA, at [89], stated that the factor of prejudice: "… added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to 'otherwise order' pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim."

The Evidence on Extension of Time

Stephen addressed his delay in bringing the proceedings by way of Cross-Summons in his affidavit affirmed 12 February 2018, much of which evidence, when read at the hearing, was rejected, or was allowed to be read only as a submission.
In respect of his admissible evidence, he stated, at [45] - [49]: "Within weeks of the deceased's death the Plaintiff and his brother, Craig, started demanding that I vacate my home - the Nelson Bay Home Unit … I found it difficult to cope with or process any proposal that would require me to vacate my home. By about 2012 I obtained legal advice and representation from time to time and many offers for the settlement of this matter were exchanged between me and the Plaintiff and his brother, Craig. These periods of negotiations seemed to come in waves and then, when no agreement was reached, go dormant; only to be subsequently revived some months later. In June 2012 my mother died … I was never advised to commence any legal proceedings and never considered it necessary myself …"
(It is to be noted that "my home" must be read as the home in which Stephen lived. He had never been a registered proprietor of the Nelson Bay property.)
Stephen then continued, which evidence was allowed as a submission, only, at [49]: "… as I have always remained hopeful that the Plaintiff and his brother, Craig, would ultimately understand and recognise that I am morally and legally entitled to and should receive the sole ownership of the Nelson Bay Home Unit from the deceased's estate in accord with both my financial and non-financial contributions to the acquisition, maintenance and improvement of the Nelson Bay Home Unit and the deceased's original promise to me when we purchased, subsequently regularly repeated by her, that it was and would always be my home."
Stephen's evidence that he was "never advised to commence any legal proceedings" was, at least in part, incorrect, as demonstrated by the correspondence from Rankin Nathan Lawyers, which was tendered during the hearing and revealed he had sought some advice in respect to his rights under the Act: Ex. B; Ex. 1. Stephen also, gave oral evidence that he first received legal advice after the death of the deceased in "early 2012" and accepted that he had instructed Rankin Nathan Lawyers to send a letter (Ex. B) to the solicitors for the Plaintiffs: T76.21 - T77.12.
In cross-examination, various questions were put to Stephen in respect of his understanding of the deceased Will and his attempts to resolve the proceedings. He accepted that he understood the terms of the Will "meant that unless there was some agreement reached between you and the children of the deceased that the house had to be sold": T64.01 - T64.07. In response to whether he was happy with what was set out in the Will, he stated "it was fair": T64.15 - T64.17.
Relevantly, also, the following questions were put, at T66.05 - T66.14: "Q. And at no time having seen a number of solicitors up until the time that the these present proceedings were commenced did you bother to take any steps to claim a greater interest than what was provided for you in the Will did you, it was these proceedings that led to your response to file a cross summons understand that? A. I don't understand? Q. At no time up until these proceedings were commenced did you consider taking any step to challenge the Will? A. Challenge the Will? No I suppose not."
However, after a question from the Bench going to whether he understood that now the proceedings had been commenced and were being heard that the property has to be sold, Stephen conceded, "Yes, it is unfortunate": T66.17 - T66.21.

Determination regarding extension of time

As stated, Stephen sought, and received, legal advice from a number of solicitors during the 7 years following the death of the deceased in relation to her estate. He failed, or neglected, to commence any proceedings until after these proceedings were commenced by Shane. It is hard to believe that he was given no advice in relation to his rights to commence proceedings for a family provision order in circumstances where the issue of family provision relief was raised in correspondence from his then solicitors and where there is no evidence given by any solicitor supporting that assertion. There was no evidence explaining the failure to adduce that evidence.
I have earlier referred to Stephen's evidence of his intention to not sell the Nelson Bay property. Despite his evidence, I think it more likely that because he wished to remain in occupation, and because he realised that once proceedings were commenced, it was more likely than not that the Nelson Bay property would have to be sold, he made a conscious decision not to commence such proceedings until he was forced to do so.
I do not believe that it was a lack of awareness, or inadvertence, or inattention, but rather a deliberate choice that he made, with a total disregard of his obligations as a joint executor, or what was in the interests of all the beneficiaries.
Finally, Stephen was asked the following questions in respect of costs of the proceedings (at T66.32 - T66.35, and then at T67.03 - T67.11): "Q. And Mr [Barry] you have been advised many times that it would cost a great deal of money if it has to be determined by the court didn't you, you knew these proceedings would be expensive if they had to be commenced? A. I didn't realise the expense involved, but yeah. … Q. You have been advised many times these proceedings if they were necessary would be very expensive and the estate would be wasted, you have been told that many times haven't you? A. No, not, no. Q. I suggest that is untrue, you have been told many times and you knew these proceeding would be expensive and the estate would be wasted as a result of that? A. Yeah, yeah a lot of people have said but I didn't realise."
(The response that he was unaware of the costs of the proceedings is difficult to accept, remembering that a Smyth order was made, and I was informed by counsel, for each party, that the order had been complied with.)
Stephen provided what was said to be an explanation for not commencing the proceedings within time, namely that there were ongoing negotiations being conducted between the parties. That is, undoubtedly, true, on the evidence, although it was made clear that the Court has not been informed of all of the evidence on the topic.
However, I am more than satisfied that whilst there were "ongoing negotiations", it was Stephen's clear, but uncommunicated, intention, that the Nelson Bay property was not to be sold and that he was going to remain living in it as long as he possibly could. That was not made clear to Shane but negotiations were allowed to continue. It is difficult to know what would have occurred had he done so but it is unlikely that Shane would have waited as long as he did to commence the proceedings.
Furthermore, I do not accept the submission that there was no unconscionable conduct on the part of Stephen. The failure to communicate what seemed to be his, apparently, non-negotiable position, whilst continuing negotiations, in my view, gives rise to unconscionable conduct on Stephen's part. He should either have disclosed his intention to not agree to the sale of the Nelson Bay property since that would mean he would have to vacate, or to, himself, commence proceedings for a family provision order well before he did so, in early 2018, some 7 years after the deceased's death, and a little less than 6 years after the expiration of the time required by the Act for the making of an application.
I am satisfied, also, that there is prejudice suffered by both of Shane and Craig in that each has been kept out of his entitlement under the deceased's Will. This is a less important matter since Shane now does not wish to proceed with the claim for an occupation fee, which I regard as a relevant consideration. There are also the costs and expenses, financially and emotionally, in conducting negotiations, none of which were likely to lead anywhere bearing in mind Stephen's uncommunicated intention to not permit the sale of the Nelson Bay property.
I do not accept the submission made on Stephen's behalf that to the extent there has been any prejudice to Shane and Craig that it has been as a result of Shane's own inactivity. Whilst there were negotiations persisted with, it appears that avoiding the costs that undoubtedly would be incurred if it was necessary to bring proceedings, was a consideration, without knowledge of Stephen's intention.
Furthermore, I am satisfied, on a preliminary consideration, that Stephen does not have a claim for a family provision order that would succeed. Accordingly, I propose to dismiss his application without a full consideration of the circumstances of the claim other than to set out the basis for this conclusion.
Whether the provision, if any, made for the applicant is "adequate" for his, or her, "proper" maintenance or advancement in life, involves not only scrutiny of the "needs" of the applicant for maintenance or advancement in life, but also an examination of the totality of the relationship between the applicant and the deceased. It also requires a consideration of the value of the estate.
In this regard, I should note that Stephen owns a business that manufactures and distributes saw blades. He is the only person employed by his business. He earns an estimated net amount of $520 per week. Relevantly, he also gave evidence of his wife's income, after superannuation and tax, which was estimated to be $660 per week. He did not provide any evidence of the value of the business.
Stephen did not file an affidavit updating his financial resources. However, at the hearing he orally deposed that circumstances have changed, as his wife now only works three days per week and earns $441: T55.46 - T55.50. Therefore, Stephen and his wife have a combined weekly income of about $961.
(In cross-examination, Stephen admitted that "some … expenses are paid through the business" each fortnight: T58.32 - T 58.38. It was not clear what expenses are paid from his business accounts, although when it was put to him that his motor vehicle expenses come out of the business he replied "they probably do, yes": T58.40 - T58.46.)
Although Stephen gave evidence of the estimated weekly expenditure of his family, excluding business expenses and credit card payments, in the circumstances of this case, I cannot see that the deceased had any obligation to take into account the fact that he has a new family and that his expenditure had increased accordingly. (In any event, the family's weekly income appears to exceed its expenses by about $265.)
Stephen gave evidence that he estimated his current assets, including assets he holds jointly with his wife, comprise household goods and personal possessions ($5,000), a car ($10,000) and business assets ($6,000). Stephen also gave updating oral evidence that he received $22,800 from a private insurance shoulder claim: T55.34 - T55.44. (Although he had a half share in a boat, this was sold and the proceeds of sale used to fund a part of his legal expenses.) His only liability appears to be a credit card debt ($1,800).
Of course, it is to be remembered that Stephen has an entitlement under the Will of the deceased. (I earlier estimated this amount to be $49,661, assuming the relevant debts, liabilities and the estimated costs of both parties are paid from the deceased's estate. It will be more if the costs are not deducted.)
Whilst it is true that Stephen will need a place to live following the sale of the Nelson Bay property, this need can be satisfied out of his, and his wife's, own resources. There is no evidence that they cannot afford to rent. In this regard, there will be no further need to pay any amount for the Line of Credit Loan.
There was little evidence about the nature of Stephen's relationship with the deceased. However, it was not suggested, bearing in mind its duration, that it was other than a close one. Furthermore, I have considered his contributions, both financial and non-financial towards the deceased, and to her estate since her death.
Stephen advanced no evidence in respect of any physical, intellectual, or mental, disability. He is in full time occupation and has an earning capacity.
Shane gave evidence of both Craig's, and his own, current financial and material circumstances. It is necessary to consider their competing claims.
Shane is employed as a plant operator and has a weekly wage of about $1,677. He also earns an additional amount for "overtime" and "shift allowances", which "fluctuates but sometimes anywhere up to $2,600": T50.30. Shane's wife, Melinda, earns approximately $14,000 per year. Shane and Melinda have two dependent children, Tori, who is 18 years old, and Maddison, who is 12 years old.
Shane and Melinda have estimated assets comprising a home in Boat Harbour, New South Wales ($650,000) ("the Boat Harbour Property"), Shane's superannuation ($300,000), cash in bank ($2,000), an investment property ($440,000), and a share portfolio ($20,000).
Shane and Melinda have estimated liabilities comprising a debt secured by mortgage over the Boat Harbour Property ($230,000) and a mortgage over their investment property ($335,000). They also have an obligation to repay a loan ($50,000) that was used to purchase the share portfolio.
Although there was no affidavit filed that updated Shane's financial circumstances, he gave oral evidence that this was the "correct" financial position: T49. However, he conceded that the estimated value of each of his properties was a guess formed by reference to "what was selling in the area" and also from "websites": T49.24 - T50.16.
In response to the suggestion that the Boat Harbour Property was actually worth $740,000, Shane replied, "Well I am not sure what it is worth, around $600 or $700, $750, who knows": T50.20.
At the time that Shane swore his affidavit of 21 March 2018, Craig was employed by Telstra and had a base salary of $90,000 per year. His wife, Naomi, was employed by the Department of Human Services and earned $55,000 per year. They have two dependent children, Blake, who is 16 years old, and Kade, who is 11 years old.
Shane gave evidence that Craig was told that his position would be made redundant on 30 June 2018 and he has "no employment after that date and will not receive a redundancy payment". However, he gave subsequent oral evidence that Craig is now employed as a service technician earning approximately $82,000: T34.43 - T35.03.
In response to a question that Craig's wife's income "is about $65,000 per annum", Shane replied "around about that mark": T51.16 - T51.17.
Craig's and Naomi's only disclosed asset is a home in Adamstown, New South Wales, with an estimated value of $600,000. It is subject to a debt secured by mortgage of $420,000. (Shane accepted that their property may increase in value when renovations are complete. Then, the value of the property could be in the order of $750,000 to $800,000: T51.31 - T51.37.)
It is fair to say that the financial circumstances of each of Shane and Craig are better than that of Stephen. However, when one considers the provision made for Stephen in the Will of the deceased, the size of the deceased's estate, and the fact that Stephen has remained in occupation of the Nelson Bay property for so many years, and that, now, he is not being required to pay any occupation fee, the Court cannot be satisfied, on a preliminary view, that adequate provision for his proper maintenance, education or advancement in life has not been made by the Will of the deceased.
Of course, I have also considered that the parties agreed Stephen has paid $48,047 out of his own funds, this payment having reduced the amount owing under the three loans secured against the Nelson Bay Property. However, as I have also mentioned, this amount was significantly less than the potential rental income that would have accumulated by letting the Nelson Bay property, even when considering it may not have been occupied by a tenant for the entire period between April 2011 and 2018.
There was no evidence that each of Shane and Craig did not have a good relationship with the deceased, or that either was estranged from her. It is to be remembered that they were her only children and were chosen objects of her testamentary bounty. Their claims on the estate were based on the ordinary ties of blood and familial affection.
In Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, Lord Hughes wrote at [47]: "It was not correct to say of the wishes of the deceased that because Parliament has provided for claims by those qualified under [the relevant section] it follows that that by itself strikes the balance between testamentary wishes and such claims… It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all the relevant factors… ."
Furthermore, I am bound by what has been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
In this regard, there were three claimants on the bounty of the deceased, being, Stephen, Shane and Craig. Perhaps, because of their relationship, Stephen's claim was the greatest, at least so far as it related to the Nelson Bay property, a matter that the deceased, herself, had recognised by giving him the greatest share of the "value" of that property.
Although it is not the test, I mention that Stephen, himself, acknowledged that he regarded the terms of the deceased's Will as "fair": T64.15 - T64.22. The importance of this admission is that it suggests that he believed that the deceased had fairly considered the interests of the three people with a claim on her bounty.
Taken all of the circumstances of the case to which reference has been made, I am not satisfied that the deceased's Will fails to make adequate provision from her estate for the proper maintenance or advancement in life of Stephen. That he has received accommodation in the Nelson Bay property since the death of the deceased is relevant. Accordingly, there is no reason to extend the time for the making of his application.
It follows that Stephen's claim under the Act must be dismissed. An order ought to be included that the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).
I shall allow the parties to prepare Short Minutes of Order reflecting these reasons both in relation to the Summons and the Cross-Summons. The matter will then be adjourned to enable orders to be made and to have any further argument on costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2018

Valbe v Irlicht [2001] VSC 53 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Category: Principal judgment Parties: Shane Colin Wise (Plaintiff) Stephen Gregory Barry (Defendant) Representation: Counsel: Mr G Rich (Plaintiff) Mr D Flaherty (Defendant)

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