Dodds v Dodds

HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made by the Plaintiff, Peter Dodds, out of the estate of his mother, Uvon Dawn Dodds ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is 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 in life, of an eligible person.

The Plaintiff's Summons was filed on 24 August 2012. It was filed within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).

The Defendant, Rosemary Ann Dodds, is another child of the deceased and one of two siblings of the Plaintiff. She is the executrix named in the deceased's Will to whom Probate was granted.

Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to the parties either by the role each plays in the proceedings or by his or her first name. I shall refer to other family members, after introduction, by her, or his, first name.

The following facts are uncontroversial and provide a useful background.

The deceased died on 5 September 2011, aged 83 years, having been born in June 1928.

The deceased was married to Maurice Dodds in about 1955. They separated in 1979 and a divorce order was made in 1981. Maurice has since remarried and lives in Sydney. There were three children of the marriage, being Paula Michelle Holt (nee Dodds), who was born in November 1957, Peter, and Rosemary, who was born in November 1963.

The deceased left a Will that she made on 25 July 2000. This Court granted Probate in common form of the deceased's Will to Rosemary on 3 April 2012. The deceased's Will provided for the whole of the estate, both real and personal, to pass to Rosemary absolutely.

Clause 6 of the deceased's Will provided: "I HEREBY DECLARE that my other children PETER DODDS and PAULA MICHELLE DODDS have not been directly provided for under the terms of this my Will by virtue of the fact that such children are well provided for and have no financial needs."

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate was disclosed as having an estimated or known value of $342,089. The deceased's property was said to consist of real estate at Lorn (near Maitland, NSW) ($340,000), and cash in bank ($2,089). (I have omitted, and shall continue to omit, any reference to cents.)

At the hearing, the parties were able to agree upon the current value of the Lorn property. They agreed that it had a value of $320,000. They also agreed that there was cash in bank of ($3,010). Finally, they agreed that there was no other estate, or any notional estate, out of which an order could be made.

The Lorn property has been rented since about August 2008. Until April 2013, the weekly rental was $255. Since then, it has been rented for $290 per week. The tenants are currently on a week to week tenancy. Expenses for the Lorn property, such as council rates, insurance, repairs and maintenance are paid from the rental account.

(There was some dispute about the amount that should be in the rental account. The Defendant admitted that, at times, she had used the rental moneys to pay personal expenses but she stated that she had reimbursed the amounts used.)

The parties agreed that the legal costs of acting on the sale of the Lorn property would be about $1,750, inclusive of GST, and all necessary disbursements, and that the real estate agent's commission, if the property were sold for $320,000, would be about $10,560. Accordingly, costs and expenses of sale are estimated to be about $12,310.

There is no notional estate the subject of Peter's claim.

In calculating the value of the actual estate, finally available for distribution, the costs of the proceedings also should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendant, as executrix, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate.

His solicitor, Mr D Sankey, estimated Peter's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $35,000 (inclusive of GST and upon the basis of a one day hearing). Peter has paid $8,476, leaving a balance (exclusive of GST) of about $26,524. (On the indemnity basis, he estimated those costs and disbursements to be $48,512.)

Her solicitor, Ms E Houston, has estimated Rosemary's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the indemnity basis, to be about $38,000 (inclusive of GST and upon the basis of a one day hearing). Rosemary has paid $7,760, leaving about $34,240 to be paid. (Probate and administration expenses of $4,000 account for the balance of the amount already paid.)

I have, in other cases referred to a party briefing senior counsel in estates that have a small value, as this one does (see, for example, Geoghegan v Szelid [2011] NSWSC 1440). I remain conscious of s 60 of the Civil Procedure Act 2005, which refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".

Of course, a party is entitled to brief counsel of her, or his, choice. However, that does not mean that senior counsel's fees will be included in the estimate of costs and disbursements that are to be deducted from the value of the estate in calculating the net distributable estate from which an order may be made, or that senior counsel's fees should be allowed on assessment. To do otherwise would result in the available estate, which is already regarded as small, being reduced even further. (This is not suggestive of any criticism of senior counsel in this case, but is reflective of the principle, generally, that fees for senior counsel in an estate having a small value, the issues in which are not particularly complex, should not be allowed on a formal assessment.)

That total estimated costs and disbursements, calculated on the ordinary, and the indemnity basis, respectively, amount to $73,000 or 22.5% of the gross value of the deceased's estate at the date of hearing does seem to display a lack of proportionality. (Taking the indemnity costs of both parties, the percentage increases to almost 27% of the gross value of the estate.) I shall later refer to Practice Note SC Eq. 7, Paragraph 24, and the capping of costs. I have the feeling that the costs that have been incurred demonstrate the intensity of feeling that exists between the parties in the present case.

Rosemary has given evidence that she does not intend to seek commission out of the estate of the deceased.

The persons described as eligible persons, within the meaning of the Act, are Peter, Paula and Rosemary. No mention has been made of Maurice, the former husband of the deceased, the father of the parties and Paula, and there is no evidence of service of the prescribed notice upon him.

I raised this matter with counsel at the commencement of the hearing. Evidence was tendered to demonstrate that notice of these proceedings had been given to Maurice, and Peter, subsequently, gave oral evidence that he had spoken, by telephone, to his father who had stated that he had no need, or reason, to pursue any claim against the estate.

In the circumstances, I am satisfied that I may disregard his interest as a person by, or in respect of, whom, an application for a family provision order may be made.

The only eligible person who has commenced proceedings is Peter. However, Paula has sworn an affidavit that has been read as part of Peter's case. I am satisfied that she is aware of the proceedings.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most 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 equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, Peter relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased and an eligible person within the meaning of that term in the Act.

The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application.

It is only if eligibility is found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."

Basten JA, at 662-3 [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."

Barrett JA, at 677-8 [82] - [86], said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "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": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984).

Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

"Provision" is not defined in the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], 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."

In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon C.J. at p. 128."

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Dixon CJ and Williams J stated, at 575: "[t]he presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."

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 WAR 127, per Buss JA, at 145 [72], [77].

These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "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 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. His Honour, wrote, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

His Honour further observed in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at 571-572; Singer v Berghouse at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70].

Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).

In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 (at 10-11) per Bryson J. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."

"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45].

As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably": at 231 [122]. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then the Court determines whether it should make an order and, if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made.

The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes [to the legislation] requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse (1994) 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [93]."

Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'. 80 Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), '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'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person 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; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94 As stated in Keep v Bourke, the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision".

His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for [the respondent] in lieu of that made under the deceased's will".

At [35], his Honour wrote: "On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."

Although the appeal was allowed, that was because the Court found, at [42], that: "... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."

Nothing in the judgment of the Court of Appeal in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong.

At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said: "92 I refrain from characterisation of these elements of the case as 'stages' because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. 93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

(An appeal in Verzar v Verzar was heard in the Court of Appeal on 22 November 2013.)

Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said: "52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound 'to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act' (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance. 53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "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". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."

It appears that Ball J was not referred to Franks v Franks.

More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79], and commented: "There is much to be said for that conclusion [that the two-stage test should continue to be applied]. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "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". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60."

In Frisoli v Kourea [2013] NSWSC 1166, Slattery J at [139] said: "Whether the two-step test operates with the same full vigour in the current legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26]-[29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made. It has not, for the reasons explained below. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations."

In Ploder v Garcea (as executrix of the estate of the late Fiona Rita Garcea) [2013] NSWSC 1360, Sackar J, at [96], referred to a number of the decisions set out above, and said that he agreed with Allsop P (as his Honour then was), that "whether or not there had been a subtle change in approach is an analytical question of probably little consequence".

In Theoctistou v Theoctistou [2013] NSWSC 1487, Lindsay J wrote, at [62] - [63]: "In approaching the tasks required by the text of the Succession Act, I am mindful that, in their submissions, both parties have drawn attention to the two-stage process discussed in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210, as well as the observations about that process in Andrew v Andrew. By analogy, the first stage corresponds with s 59 (1)(c) of the Succession Act, and the second with ss 59 (2) and 60 (1)(b): Charmock v Handley [2011] NSWSC 1408 at [46]-[50]."

In West v Mann [2013] NSWSC 1852, Kunc J wrote, at [11]: "In this case the parties invited me to apply the terms of the Act. They did not suggest any different result would follow depending on whether a two stage or other approach was applied. What is clear is that experienced first instance judges have been unable to agree upon the effect of current appellate authority. For my own part, and with the greatest of respect, I will do no more than observe that there is a risk that the description or characterisation of the process can become an unnecessary distraction. To adapt what the Court of Appeal has observed in another context, whether the process is correctly described as "two stage", "one stage", "twin tasks" or otherwise is "not a substitute for applying the wording of the statute, construed as a whole and purposively, to the particular fact situation that arises for decision in a particular case": Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 at [185] per Campbell JA and Tobias AJA; McColl JA agreeing."

In Dunne v Dunne [2013] NSWSC 1911, Young AJ said of this question: "For many years courts have approached this sort of case on a two stage basis following what the High Court said in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-210. In Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 the Court of Appeal was divided as to whether this approach was still consistent with the provisions of the Succession Act 2006. Barrett JA said it was, Basten JA said it was not and Allsop P did not decide the point. In Franks v Franks [2013] NSWCA 60 the Court of Appeal of which I was a member with McColl JA and Sackville AJA Came to the same conclusion as Barrett JA. I believe that I should still continue to follow the two stage approach though in the present case it has little significance whether I do or not."

Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made for the person in whose favour the order is to be made), and if so, whether it should (whether to make an order and, if so, the terms of that order).

Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

It has recently been said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court 'may have regard to', but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's 'proper' maintenance, education or advancement in life".

In West v Mann, Kunc J at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

The Act does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.

There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit."

In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property".

Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.

This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the jurisdictional stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

It is also supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. 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."

As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the "eligible person" inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the "adequacy" question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."

Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court.

The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

Any family provision order under the Act takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased or (in the case of intestacy), as in a Will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.)

Section 66 of the Act sets out the consequential and ancillary orders that may be made.

Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Practice Note No. SC Eq 7, which applies to claims for a family provision order, currently provides in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000".

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification"

White J referred to these principles in Slack v Rogan at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin, at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36].

In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959, at 966.

Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

The size of the estate is a significant consideration in determining an application for provision. In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."

In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J, at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003), at [179] - [182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. (i) There is no obligation on a parent to equalise distributions made to her, or his, children so that each child receives benefits on the same scale as the other: Cooper v Dungan, at 542. In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: "The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case... The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J at [46] should be remembered: "There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Omitting citations)

I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established.

As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

I respectfully agree, also, with the statement of White J in Slack v Rogan, at [126]: "The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the "evaluative judgment"."

As will be referred to shortly, Peter is a discretionary object of the Peter Dodds Family Trust, which is said to be a discretionary trust.

In Gregory v Hudson (No. 2) (NSWSC, Young J (as his Honour then was) 18 September 1997, unreported), it was said: "Mr .... puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq. (1959) noted 33 ALJ 240, Norris, AJ said, at 39, 'It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case, render adequate a provision otherwise inadequate.' He then cites Re Allen [1922] NZLR 218. Dickey in Family Provision after Death (LBC, Sydney, 1992) says at page 121, 'There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him, or her, from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case. ... I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of a discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a Memorandum of Wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended ..."

(This decision was followed by Master McLaughlin (as his Honour then was) in Gill v Permanent Trustee Company Limited [1999] NSWSC 394; McCullum v Permanent Trustee [1999] NSWSC 1219; Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251; and in Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107 and by Macready AsJ in Tucker v Tucker [2012] NSWSC 1302.)

In Taylor v Farrugia, Brereton J wrote, at [62]: "Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper [Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq; referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported."

None of these decisions requires the Court to act in total disregard of the potential availability of benefits to an applicant for a family provision order from sources owned, or administered, by others (in this case, the corporate trustee of the discretionary trust).

Furthermore, as stated, the Act specifically refers to "financial resources" (in s 60(2)(d)). In RK v RK (Financial Resources: Trust Assets) [2013] 1 FLR 329, a decision from the United Kingdom, Moylan J wrote in terms that are apt to the present case: "... Resources held within a bona fide discretionary trust are a party's resources to the extent which, on the balance of probabilities, they are likely to be made available to that party either now or within the foreseeable future. This would encompass provision for that party's own needs as well as provision to enable that party to meet an award made against him or her in favour of the other party. The form in which the provision can be made available or might be made available will of course vary. It might be by way of income or capital distributions, by way of loans or by way of occupation of a trust property. In determining this issue of fact the court must assess the evidence available to it. There is a very long tradition of the courts seeking to ascertain the reality of a situation. As Lord Merrivale, P said in N v N [1928] 44 TLR 324, the ecclesiastical courts "showed a degree of practical wisdom ...They were not misled by appearances ...they looked at realities". In Re: The Esteem Settlement [2004] JRC 92, The Royal Court of Jersey said, at para.166: "In our judgment, where the requests made of trustees are reasonable in the context of all the circumstances, it would be the exception rather than the rule for trustees to refuse such requests."

In the present case, as will be referred to, Peter is the sole director of, and shareholder in, the trustee of the discretionary trust, and, therefore, he can be said to control it. Furthermore, there are only two objects of the Trust, being himself and his daughter, Ebony.

Next, I set out additional facts that I am satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

Peter is a son of the deceased and he grew up in the family household. He says, and Rosemary does not dispute, that he felt she had a close relationship with the deceased. (She denies, however, the extent of the contact that he says that he had with the deceased.)

Peter gives evidence that he left home in 1975. He lived, firstly, in Sydney, but later moved to London (1976-1977) and then to Melbourne (1977). Despite not living in Sydney, Peter would return to the home of the deceased to provide support to her and to assist her with the maintenance and repair of the home.

Peter returned to live in Sydney in about 1992. Between about 1998 and 2002, he would see the deceased about once every couple of months. When she was admitted to a care facility in the Central Coast, he would visit her there.

After the birth of his daughter, Ebony, it was more difficult for him to visit the deceased. However, he says that he continued to do so, until 2009 or early 2010, when her mental and physical condition deteriorated substantially.

I accept that Peter, generally, had a close and loving relationship with the deceased for the whole of his life. (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

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, as adults, imposed upon her by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

The fact that an applicant was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. (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

I have dealt with these matters earlier in these reasons. The value of the estate is small. The net value of the estate, even if Rosemary, only, receives her costs out of the estate, will be less than $300,000. (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

Peter is employed as a video production manager. He writes software, makes digital software components for TV programmes and creates software that allows him to manipulate digital video. He is one of only two people in Australia who does the type of work that he is able to do. His business involves some of the very new digital technology. He considers himself in the upper echelon of the profession because of his experience.

His company, Digital Frontiers Pty Limited, "offers a range of services covering program development, electronic proof of concept, conceptualisation, project management and content creation for television, film, interactive television, stills, multimedia and the internet".

Peter lives (with Ebony for some of the time) in a home unit at Manly, which home unit is owned by Andwhen Pty Limited, which is the trustee of the Peter Dodds Family Trust, which is a family trust, of which the only discretionary objects are himself and Ebony. He is the sole director of, and shareholder in, the trustee of that Trust.

Andwhen Pty Limited holds 99 shares out of 100 issued shares in Digital Frontiers Pty Limited. Peter holds the other 1 share beneficially. In the 2012/2013 financial year, the Trust was "treated as a conduit for the payment of franked dividends derived from Digital Frontiers Pty Limited".

Peter seeks provision out of the deceased's estate "to help me reduce some of my debts and provide me with a fund for contingencies".

His property, liabilities and financial resources are as follows:

His monthly income and expenditure is as follows:

The evidence reveals that the income of his business has fluctuated over the last few years. The "best" year in the last few years was 2010 with gross sales of nearly $190,000. However, in that year, the profit, before income tax, was only $1,500. In 2011, the business had gross sales of about $162,000 but the profit before income tax was over $19,000. In 2012, sales dropped to about $143,000, but there was a loss of $7,500.

(Peter gave evidence that since about 2010, on the breakdown of his relationship with Ebony's mother, he has been involved in family law litigation. He is hopeful that further litigation will be avoided as he is seeking mediation. Any further litigation is dependent on the outcome of the mediation. He has had to spend about $120,000 on the family law litigation, which in part, has been funded from loans from his father, Maurice, and his wife.)

Following the conclusion of the case, as foreshadowed, the Court was sent a document headed "Statement of Agreed Facts", signed by counsel for each of the parties, which stated: "In his affidavit affirmed 4 November 2013, the Plaintiff stated at para 5: "I am currently in mediation with Relationships Australia to further alter the orders to better meet the needs of my daughter....I initiated the mediation. If mediation is unsuccessful and/or the abuse issues remain unresolved or ongoing, I will seek full-time care of Ebony by filing a new application with the Family Court of Australia in 2014 to vary the orders regarding care of my daughter, the costs of which I estimate will be between about $25,000 and $35,000. I am taking this action because I believe that Ebony's interests would be better served if she were in my care." During cross-examination, the Plaintiff stated words to the effect that he was hopeful that a mediation would occur. AGREED FACTS: 1. On 2 December 2013, the family dispute resolution practitioner of Relationships Australia - NSW, has certified, pursuant to section 601 of the Family Law Act 1975 (Cth) that the Plaintiff did not attend family dispute resolution, but that the Plaintiff's non-attendance "was due to the refusal, or failure, of the other party or parties to the proceedings to attend". 2. The Plaintiff intends to file an application seeking full-time care of Ebony."

Peter gave evidence that his personal income taken in the last financial year was, in fact, $26,000 and that Digital Frontiers had gross sales of about $143,000 to $150,000 and made a pre-tax profit of around $30,000. The company's pre-tax profit is likely to increase, in the financial year ending 30 June 2014, to about $90,000 to $95,000. (He has based the estimate on year to date figures and the work that is currently available in about the next 6 months.)

Although he did not agree, I have the firm impression that it will be Peter's decision to work, or not work, as the case may be, in the future and, in that regard, he himself is able to decide the extent of the income that may be earned from the work that he does. As he is able to work from home, this should not impact, significantly, on his working hours. He conceded that if he were able to resolve the disputes with his former partner, which he was hoping to do, that would result in being able to devote marginally more time to his business.

Peter uses the main bedroom of the Manly Vale property as his home office and that and that is where he predominantly works from nowadays. With the internet, most of what he does gets delivered digitally, so having a room to work in comfortable surroundings suits his needs.

There was a dispute about the value of the Manly Vale property owned by Andwhen Pty Limited. Rosemary described the unit as "a top floor renovated art décor (sic) unit - penthouse, with spa bath, granite and stainless steal (sic) modern kitchen. Open plan living/dinning (sic)/kitchen".

It seems to me that the unit at Manly Vale is worth about $750,000 or thereabouts (although the range appears to be between $720,000 and $850,000). Even if I am wrong, there is no suggestion that the accommodation it provides to Peter and to Ebony, when she stays with him, is other than secure and comfortable. The mortgage repayments are up to date.

Peter gave the following evidence: "Q. Would you agree that you have been heavily in debt for some years now? A. Since the family law stuff started, the amount of debt has varied. At the moment it's heavy, yes. Q. But it's been heavy what, for at least the last 5 years? A. No, for the past 3 years. Q. Approximately how much a month does the trust pay for the home unit mortgage? A. The mortgage is paid by Digital Frontiers and me. I think the mortgage amount is $2,369 per month. Q. Is there a fixed amount that you apportion between yourself and the trust for the payment or repayment of the mortgage? A. Digital Frontiers pays, according to the tax returns $9,600 per year which is a rental entry. And then I pay the balance out of the money that I draw down or theoretically would draw down from the business each month in the form of salaries. Q. How much a month was it? A. $2,369. Q. So $28,428 per annum at the current rates for the mortgage and approximately $9,600 is paid by the company? A. That is correct. Q. Which leaves approximately $18,828 paid by you? A. That is correct. Q. That's 18,000 obviously after tax dollars in your case? A. That would be correct, yes."

Peter seeks provision out of the estate of between $50,000 and $80,000 and his costs of the proceedings. To make provision of a lump sum within that range would inevitably lead to the sale of the Lorn property.

Rosemary gives evidence of her property, liabilities and financial resources as follows.

For the period 1 July 2013 to 25 October 2013, her business 'Garden Solutions' achieved a profit of $7,432. She says that this equates to, on average, about $442 per week.

With the Statement of Agreed Facts, there were three schedules, which summarise Ex. P4 (Rosemary's bank statements). They disclosed that in the 12 months until 30 April 2013, Rosemary received the following income: $5,670 in family payments, (on average, about $218 per fortnight); $10,305 in Centrelink pension/superannuation payments, (on average $396 per fortnight); and $14,296 in child support payments (on average $549 per fortnight). During the month of October 2013, she received $1,380 in family and child support payments. However, she says in her affidavit that she only receives $320 per fortnight in child support.

Her taxable income for the year ending 30 June 2013 was $22,233.

Her expenses for the period 1 July 2012 to 19 April 2013 totalled $35,310 comprising rent ($17,055), credit card ($1,700), utility bills ($1,302), groceries ($6,300), phone bills ($3,000), insurance ($973), car maintenance and petrol ($1,280), medical and clothing expenses ($1,200), entertainment ($1,000) and school related expenses ($1,500).

At the date of hearing, she has assets of $9,290 being cash in bank ($480), superannuation ($2,130), household items and personal effects ($5,680), and a car ($1,000) (although she states that it requires repairs totalling $2,431).

She states that she has liabilities of $17,306 being a personal loan ($4,000), a HECS debt ($8,985), a Student Finance Support Scheme debt ($2,708), an overdue utility bill ($1,197) and school fees ($416). Rosemary also states that she "is in arrears of rent and will have to find new accommodation". She wishes to reside in the Central Coast area until her son, Riley, completes high school in late 2014.

It is clear, since her son is aged 17 years, that once he turns 18 years, Rosemary will no longer receive any child support, or the family allowance. Her income will then be limited to income from the work she is able to perform, the work she is able to get, and/or social security benefits.

Rosemary admits that she spends a significant amount on cigarettes (when she has sufficient funds to enable her to do so). It was put that she spends a large amount on alcohol as well, but I accept her evidence that she might spend about $30 per week on alcohol.

She accepted that if she were "pushed into a corner" she would have to sell the Lorn property. However, her solicitors have stated, through senior counsel, in Court, without objection, that "if the Plaintiff's claim is dismissed, the solicitors for the Defendant will take no steps to require a sale of the estate realty to cause the Defendant's legal costs to be paid." (e) if the applicant is cohabiting with another person - the financial circumstances of the other person

Peter's only daughter, Ebony, was born in March 2009. He currently shares the care and control of Ebony with his former partner, having Ebony stay with him for 6 days per fortnight, including nights. He intends to seek more contact and hopes to have her full time care.

At present, Peter pays Ebony's expenses whilst she is with him, including paying $130 per month for a psychologist. (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

Peter gives evidence that his health is reasonable, although he suffers "constant back pain, sciatica and pain from a pinched nerve in my back which pain transmits to my left foot and toes". He also has some problems with his knees.

He believes that his work exacerbates the back pain.

Rosemary was diagnosed with depression and anxiety in July 2013. She has also been diagnosed with PTSD (post traumatic stress disorder) "from a work based incident". She is presently being seen by a counsellor (Ms Ford). Their sessions "have mainly been focussing on the impact of PTSD and depression on Rosemary's life such as an inability to concentrate, being withdrawn and avoidance type behaviours at times". Other life stressors include the loss of the deceased and these proceedings. It is hoped that with ongoing therapy and support, Rosemary will be able to manage her depressive symptoms and anxiety.

Rosemary has been prescribed and has been taking anti-depressants to help her sleep. (g) the age of the applicant when the application is being considered

Peter is currently 58 years of age, having been born in July 1955. (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

There is no suggestion that Peter made any direct financial contribution to the acquisition, of the Lorn property. He says, however, that he did provide financial assistance ($6,000 - $8,000) to the deceased in 1986 and 1987.

He also says that in 1990 or 1991, he returned to live with the deceased for about 10 weeks, "to help her fix up her house at Wyoming on the Central Coast ... for sale. I re-concreted her patio and surrounding areas, shored up and repaired her garage roof where the beams had split; I unblocked and repaired or replaced guttering and storm water pipes, repaired the back fence, re-puttied most of the windows, painted, re-hung and fixed doors and locks, re-hung kitchen cupboards, acid-washed the brickwork and fixed broken lights and switches".

Peter gives evidence that in October 2007, he paid $1,400 to bring the deceased's account at the nursing home up to date, and that in 2008, at Rosemary's request, to "cover some accounts ... past and future" for the deceased, he gave her $4,000 in cash.

There is no suggestion that Peter made any contribution to the estate after the death of the deceased.

Peter and Paula both say that they assisted the deceased look after Rosemary when she was a child and when the deceased was required to work. (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

The deceased guaranteed a loan for Peter in about 1979 or 1980. He gave evidence that the amount guaranteed was $22,000. However, she did not have to bear the burden of payment as the guarantee was never called upon.

Although he could not specifically remember, the evidence from Rosemary, who was not challenged on this evidence, was that in 1980, the deceased gave Peter about $3,000 from the proceeds of sale of her home at Pymble. (Peter thought it was about "a few hundred dollars" that had been given.)

In about 1997, the deceased loaned Peter, or Peter's then wife, $10,000 to assist to start a business known as "Fresh Cut Herbs". The deceased assisted in this business. It is clear that Peter was aware of the loan as he told his mother that she did not have to assist unless she wanted to.

Peter believed that upon the termination of his marriage, the loan was either repaid, or that his former wife and the deceased came to an arrangement in regard to that loan. However, Rosemary gave evidence that she had a conversation with the deceased in 2000, at or about the time she made her Will, that the amount of $10,000 was yet to be repaid. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is no evidence, in writing, of the testamentary intentions of the deceased other than in her last Will to which I have referred.

However, Rosemary refers to a conversation that she had with the deceased at about the time she made her Will, which conversation was in the following terms: "On the 25 July 2000 (sic) my mother attended the solicitors appointment and made her will in the offices of Thompson and Norrie Maitland, NSW. I was not present when she saw the solicitor. I at no time influenced my mother prior to her making her will. I was present when she had her will read to her and she confirmed her understanding. I rang Paula again to tell her it was done. After the appointment my mother said: "Peter still has not given me the $10,000 he promised to repay. You should make sure you pursue it if Peter causes problems with the will". I was very taken aback by my mother's decision at that time the will was made and said something to that effect. My mother said "You have been the one helping me at home and you are the one who is struggling and in need of a home of your own for Riley too". She also stated "I have done enough for the other two. They are financially ok. I have given them family antiques and heirlooms in 1979 to 1980 as their inheritance. They don't expect anything else from me." In October 2002 in another conversation she said "Peter still owes me money and it is in my files. I've spoken to Peter and he's promised not to contest my will and he'll respect my wishes". Later she said: "I love my children but don't like who Peter and Paul (sic) have become". My mother also said: "I made my mother a promise to make sure Rick (her brother) had a roof over his head. I know you have a good relationship with him and you will respect my wishes about honouring the promise to my mother". (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain Peter before her death, other than during her childhood and by providing him with accommodation on other occasions.

In 2003 and 2004, the deceased provided Peter with various amounts of between $50 and $150, totalling about $700. (l) whether any other person is liable to support the applicant

There is no person with a liability to support Peter. (m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate" and "proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

I have dealt with the relationship of Peter and the deceased and his conduct towards the deceased earlier in these reasons. Rosemary does not submit that there is any relevant conduct. (n) the conduct of any other person before and after the date of the death of the deceased person

There is much evidence about the conduct of Rosemary before the death of the deceased. I am satisfied that she was a loving and dutiful daughter who did whatever she could to assist the deceased. (o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant in the present case. (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

There is no other matter that I consider relevant.

As stated, there is no dispute that Peter is an eligible person or that he commenced the proceedings within the time prescribed by the Act.

Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of Peter has not been made by the Will of the deceased.

The deceased made no provision for Peter in her Will. (The operation of the intestacy rules is irrelevant.) This does not, automatically, mean that he will have established the jurisdictional threshold.

Whilst it is accepted that he has "needs", that is not all that I am required to consider. The totality of the relationship of the applicant and the deceased, the age and capacities of the competing claimant, and her claim on the bounty of the deceased, are each relevant factors.

In Foley v Ellis, Sackville AJA at [88] noted that Singer v Berghouse (No 2) "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. 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."

Considering the situation in life of Peter at the present time, I am not satisfied that adequate provision for his proper maintenance, education or advancement in life has not been made by the Will of the deceased.

In this case, any provision the Court makes in favour of Peter has to be made at the expense of Rosemary to whom the deceased believed provision ought to be made and whose claims to provision from her estate appear far more compelling than those of Peter. To make provision for him, as well as for his costs, would result in the sale of the Lorn property, which property Rosemary hopes to make her home.

Regrettably, this is a case in which "it is not possible to meet all the claims on the [deceased's] bounty which have been shown to exist. Determination whether there is power to make an order... and also what order should be made, requires the Court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the [deceased's] bounty. There can be no truly satisfactory outcome for this litigation. No-one with a claim on the [deceased's] bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other such person": Bladwell v Davis at [11].

I appreciate that it appears that Peter may now be involved in further litigation involving the care of Ebony. However, as I have stated, he works from his home most of the time and the litigation, if it proceeds, which it seems it will, will eventually end.

Whilst the evidence suggests that Peter's financial position has changed since 2000, when the deceased's Will was made, the fact remains that Peter has security of accommodation, as the sole director of the Trustee of the discretionary trust that owns the unit in which he lives, and also has an earning capacity far greater than that of Rosemary.

Rosemary, on the other hand, lives in rented accommodation and wishes to move into the Lorn property in the next 12 months. She should not have to sell that property in order to allow provision to be made for Peter. Nor should she have to borrow funds secured on that property, which funds could not be repaid on her present income. Her income will be reduced when her son attains the age of 18 years.

I have borne in mind that when she moves into the Lorn property, Rosemary will not have to pay rent. However, that will simply mean that she will have a modest income available to meet her then needs, which will, of course, include some costs and expenses associated with the Lorn property.

All of these considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for Peter. Accordingly, Peter's claim fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the proceedings.

If (contrary to my foregoing conclusion), I were to be satisfied that Peter had been left without adequate provision for his proper maintenance or advancement in life, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of each Plaintiff, having regard to the facts known to the Court at the time the order is made.

The same considerations would produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for Peter. This is a case in which "due regard must be had to what the deceased regarded as superior claims or preferable dispositions as demonstrated by [her] will": Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at [6]. The financial and material circumstances of Rosemary are such that her competing claim upon the bounty of the deceased would have had the effect of extinguishing any order for provision for Peter. I must not overlook the fact that the Court is not invested with a discretion to remake a deceased's Will upon some principle of fairness.

For these reasons, I am of the view that the Summons filed by the Plaintiff should be dismissed.

Senior counsel for Rosemary submitted that there should be no order for costs in the event that Peter's claim was dismissed and that an order that each party is to bear his, or her, own costs, respectively, of the proceedings would be appropriate in those circumstances. Unsurprisingly, counsel for Peter made no contrary submission.

In the circumstances, I accept the submission made on behalf of Rosemary and will make the order suggested.

I order that: (a) The Plaintiff's Summons is dismissed. (b) There be no order as to either party's costs, to the intent that he, and she, will bear his, and her, own costs, respectively, of the proceedings. (c) The Exhibits be returned.