Elizabeth Ann Bremner v Jennifer Lee Graham

1. [1]

   HIS HONOUR: The Plaintiff, Elizabeth Ann Bremner, who is the mother of the deceased, John David Bremner, commenced proceedings by Summons filed on 31 March 2015. Although in that Summons, she sought a revocation of the grant of Probate of the deceased’s Will and consequential relief, as well as a family provision order, under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”), she filed and served an amended Summons, on 8 May 2015, in which she limited her claim to one for a family provision order and costs only.

2. [2]

   The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009.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 of the Act, 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.

3. [3]

   The deceased made his last Will on 10 March 2014. Probate of that Will was granted to the Defendant, Jennifer Lee Graham, on 9 September 2014. She is the executrix and sole beneficiary named in that Will. There is a dispute about the precise nature of the relationship of the deceased and the Defendant at the date of the deceased’s death, but little turns on the determination of this issue because, as written, she is the sole beneficiary named in his Will.

4. [4]

   The Plaintiff asserts that she is an eligible person, within the meaning of that term in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased person was a member. Since she asserts that she is a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, she must also establish that, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application: s 59(1)(b) of the Act.

5. [5]

   The Defendant denies that the Plaintiff is an eligible person and also that there are factors which warrant the making of the application. She submits, as well, that even if each of these matters is established, the Court would not be satisfied, at the time when the Court is considering the application, that adequate provision for the Plaintiff’s proper maintenance or advancement in life has not been made by the Will of the deceased. (There is no scope for the operation of the intestacy rules in relation to the estate of the deceased.)

6. [6]

   The Defendant does not deny, however, since the deceased died on 27 April 2014, that the application was made within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

An Outline of the Facts

1. [7]

   I am satisfied that the following facts have been established, and that they provide a useful background. To the extent that any facts are the subject of dispute, they should be regarded as the findings of the Court.

2. [8]

   The Plaintiff was born in June 1943.

3. [9]

   The Plaintiff married Ian Davidson Bremner on 2 October 1965. He died in February 1996. There were four children of their marriage, namely the deceased, who was born in August 1967; Heather Ann Bremner, born in September 1972, and who died in September 1999; Buck Buchanan Bremner, born in October 1976; and Jenny Buchanan Bremner, born in February 1984.

4. [10]

   The deceased was not married at the date of his death and he had no children. As stated, there is some dispute as to the relationship of the Defendant and the deceased. I shall return to this topic later in these reasons.

5. [11]

   The deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $296,215. It was said to consist of real estate at Windale ($253,000), monies on deposit ($6,352), shares in NIB Holdings ($1,260), a car ($8,000) and wages and leave entitlements ($27,603). (I have omitted, and shall continue to omit, any reference to cents.)

6. [12]

   At the date of the hearing, the actual estate was said to have a value of $271,092. The Defendant accepted that there was property that may be designated as notional estate, with a value of $295,905, made up of proceeds of a superannuation policy ($93,657), the proceeds of a death benefit ($175,492) and interest received ($26,756). It follows, from the above, that the current total value of the estate and notional estate, before the deduction of any costs of the proceedings, is $566,997.

7. [13]

   In calculating the value of the estate and notional estate of the deceased, that is, or may be, available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since an applicant, if successful, normally, would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid out of that estate, whilst the executor, irrespective of the outcome of the proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

8. [14]

   Mr A Windus, the Plaintiff’s solicitor, estimated the Plaintiff’s costs and disbursements, calculated on the ordinary basis, to be $29,700, inclusive of GST, and upon the basis of a 1 day hearing.

9. [15]

   Mr S Churches, the Defendant’s solicitor, estimated the Defendant’s costs and disbursements, inclusive of GST, calculated on the indemnity basis and on the basis of a 1 day hearing, to be $57,000. (It is unnecessary to comment on the reasonableness or proportionality of this estimate since the Defendant is the sole beneficiary named in the Will of the deceased. However, it should not be forgotten that in all cases, parties should work to resolving the issues between them in such a way that the costs are reasonable and proportionate to the importance and complexity of the subject matter in dispute.)

10. [16]

    It follows that at the hearing, the value of the actual estate, after the deduction of costs, is $184,392. (Since the Plaintiff does not seek provision greater than the value of the actual estate, it is unnecessary to determine whether the property that may have been designated as notional estate should be designated as such. It is accepted that the Defendant has received, or will receive, $295,905, being the current value of the cash that may have been designated as notional estate.)

Some additional Facts

1. [17]

   On 23 April 2015, the Plaintiff became bankrupt after the presentation of a Debtor’s Petition. The document headed “Notification of Bankruptcy” (Ex. A) reveals that there was only one creditor of the Plaintiff and that the debt due to that creditor, upon which the bankruptcy was founded, was $6,849. It also discloses that the Official Trustee in Bankruptcy was appointed as the trustee of the Plaintiff’s bankrupt estate.

2. [18]

   The Court was informed from the bar table, without objection, that to enable her discharge from bankruptcy, the Plaintiff would be required to repay the debt ($6,849) as well as the costs and expenses of the Official Trustee in Bankruptcy, which were estimated to be $5,370. There may be some interest that has accrued on the debt, although the amount of interest was not calculated.

3. [19]

   Also in evidence is some correspondence, dated 25 April 2015, addressed to the Plaintiff, following her bankruptcy, which contains the following statement:

The Effect of the Bankruptcy

1. [20]

   In McMahon v Smith; Turner v Smith; and Smith v Smith [2011] NSWSC 487; (2011) 9 ASTLR 428, I wrote, at [128] – [129]:

The Evidence of Dependency

1. [21]

   The Plaintiff’s evidence in support of her eligibility was set out in her first affidavit. I shall set out that evidence verbatim:

2. [22]

   The Defendant’s evidence about statements made to her by the deceased (as she did not know the deceased at the times of the events spoken of by the Plaintiff) is as follows:

3. [23]

   From this evidence, it appears to be a dispute about the degree of assistance provided by the deceased to the Plaintiff, rather than the fact of assistance.

The Statutory Framework

1. [24]

   I shall next discuss the statutory scheme and the principles that are relevant to the facts of the present case. Although I have set out much of what is written hereunder in other cases, in view of the importance of this case to the parties, I consider it necessary to repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

Eligibility

1. [25]

   The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person. In New South Wales, it 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, one category identified in s 57 is “a person who was, at any particular time, wholly or partly dependent on the deceased person, and … who was a member of the household of which the deceased person was a member” (s 57(1)(e) of the Act).

2. [26]

   In the present case, the Plaintiff relies upon the fact that she was a member of the household of which the deceased was a member. That language is expressive of her status, as well as her relationship to the deceased. There is no age limit placed on an applicant making an application. The Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member.

3. [27]

   There is, and there can be, no dispute that the Plaintiff and the deceased were members of the same household, at least until he left home at the age of about 17 years.

4. [28]

   However, to establish eligibility within this category, there is also a condition of whole, or partial, dependency. The Plaintiff cannot succeed except by virtue of a combination of status (membership of a household of which the deceased was a member) and actual dependency (whole or partial). Yet, household membership and dependency need not have occurred concurrently.

5. [29]

   The Act contains no definition of the words “dependent on”. In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

6. [30]

   In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)):

7. [31]

   In Skinner v Frappell [2008] NSWCA 296 at [85], Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote:

8. [32]

   In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it had been said by Hope AJA:

9. [33]

   In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself”.

10. [34]

    In McKenzie v Baddeley [1991] NSWCA 197 at [4], Priestley JA (with whom Hope AJA agreed) had held that the word “partly” in the phrase “partly dependent”, whilst a word of “some elasticity”, does not mean “substantially” dependent, but means “more than minimally”, or perhaps, “significantly”. Meagher JA, at [6] commented that “[c]ommon sense requires that certain trivial activities should be disregarded”.

11. [35]

    A similar view was taken by the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 at [13]. At trial (Alexander v Jansson [2009] NSWSC 1000 at [27] – [30]), McLaughlin AsJ had written:

12. [36]

    On appeal, Brereton J, with whom Basten JA and Handley AJA agreed, wrote, at [13]:

13. [37]

    The question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199. It is not to be determined upon theoretical considerations. It is “the actual fact of dependence or reliance on the earnings of another for support that is the test”: per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 at 189.

Factors warranting the making of the Application

1. [38]

   In the case of an applicant who falls within s 57(1)(d), (e) or (f) of the Act, the Court must next consider, and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

2. [39]

   The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

3. [40]

   In considering the meaning of what he described as “this poorly conceived and clumsily expressed subsection” in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), McLelland J said, in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

4. [41]

   I have dealt with the meaning of the phrase in other cases, one of which is Doshen v Pedisich [2013] NSWSC 1507. (I note that Slattery J, in Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 at [174], agreed with the views that I had expressed in that and other cases about the meaning of that phrase.) I shall not repeat what I wrote in that case.

5. [42]

   In Sassoon v Rose [2013] NSWCA 220 at [15], an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed) noted:

6. [43]

   In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote:

7. [44]

   Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199] – [200], in which Slattery J wrote, after referring to the authorities:

Inadequacy of Provision

1. [45]

   It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are 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 (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”.

2. [46]

   Relevantly, other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an 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 by the Will, on the one hand, and to the requirement for maintenance, education or 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.

3. [47]

   Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).

4. [48]

   In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed:

5. [49]

   Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented 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 has 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].

6. [50]

   Under s 59(1)(c), 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.

7. [51]

   “Provision” is not defined by 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”.

8. [52]

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

9. [53]

   In Jacobs’ Law of Trusts in Australia by J D Heydon and M J Leeming, (7th ed 2006, LexisNexis Butterworths) at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

10. [54]

    In Re Dennis (Deceased) [1981] 2 All ER 140 at 145-146, Browne-Wilkinson J wrote:

11. [55]

    In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ said:

12. [56]

    In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 505, Murphy J wrote:

13. [57]

    In Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114], White J noted:

14. [58]

    In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said:

15. [59]

    In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 575, Dixon CJ and Williams J stated:

16. [60]

    The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon “a purely economic and objective basis”, 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 at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

17. [61]

    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:

18. [62]

    Their Lordships went on to state, at 478:

19. [63]

    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:

20. [64]

    In Goodman v Windeyer, Gibbs J wrote, at 502:

21. [65]

    In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], Callinan and Heydon JJ said:

22. [66]

    Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:

23. [67]

    In Palagiano 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 “[t]here are no definite criteria by which the question can be answered.”

24. [68]

    His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]:

25. [69]

    Whether an applicant has a “need” or “needs” is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but 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. The concept involves economic considerations.

26. [70]

    In Collins v McGain [2003] NSWCA 190 at [42] and [47], Tobias JA, with whom Beazley and Hodgson JJA agreed, said:

27. [71]

    In Devereaux-Warnes v Hall (No 3) at [81], Buss JA wrote:

28. [72]

    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 v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).

29. [73]

    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 v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton at 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at 816 [38], 820 [47] (Ormiston J).

30. [74]

    “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]:

31. [75]

    In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at [41], David J at added:

32. [76]

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

33. [77]

    Yet, in referring to the concept of “need”, it should also be noted that the statutory formula makes no reference to “need”, but rather to “adequate provision for the proper maintenance, education or advancement in life”. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that “the need a claimant must demonstrate is a need for ‘proper’ maintenance, education and advancement in life”, but that does not mean that “adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others”. Respectfully, I agree. Consideration of “needs” must be in the context of the statutory formulation.

34. [78]

    In the event that the Court is satisfied that the power to make an order is enlivened (having been satisfied that the Plaintiff is an eligible person, that there are factors warranting the making of the application, and that adequate provision for his proper maintenance, education or advancement in life 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.

35. [79]

    This part of the determination 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.

36. [80]

    Section 60 of the Act, at least in part, is new. It provides:

37. [81]

    It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

38. [82]

    White J wrote 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.

39. [83]

    In West v Mann [2013] NSWSC 1852 at [12], Kunc J wrote:

40. [84]

    As was also pointed out by Barrett JA, in Andrew v Andrew, at [88]-[89]:

41. [85]

    Beazley P, in Phillips v James [2014] NSWCA 4 at [51], described s 60(2) as involving:

42. [86]

    In Chapple v Wilcox, Basten JA, at [7], wrote:

43. [87]

    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.

44. [88]

    The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

45. [89]

    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).

46. [90]

    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.

47. [91]

    Section 65(1) of the Act requires the family provision order to specify:

48. [92]

    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).

49. [93]

    Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).

50. [94]

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

51. [95]

    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.

Other Applicable Legal Principles - Substantive Application

1. [96]

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

2. [97]

   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.

3. [98]

   The Court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].

4. [99]

   In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

5. [100]

   Of the freedom, in Grey v Harrison, Callaway JA said, at 366:

6. [101]

   In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

7. [102]

   In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that:

8. [103]

   As Pembroke J said, in Wilcox v Wilcox, at [23]:

9. [104]

   White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]:

10. [105]

    Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

11. [106]

    As Allsop P said in Andrew v Andrew, at [16]:

12. [107]

    How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]:

13. [108]

    Thus, “there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment”: Williams v Aucutt [2000] 2 NZLR 479 at [44]. As Emmett JA wrote in Burke v Burke [2015] NSWCA 195 at [124]:

14. [109]

    In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added:

15. [110]

    Barrett JA, at [64], wrote:

16. [111]

    In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote, summarising these authorities:

17. [112]

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

18. [113]

    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, that the deceased’s intention in the Will be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45] (White J).

19. [114]

    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].

20. [115]

    In Chu v Ngar [2015] NSWSC 1505 at [308] – [310], although not a case involving a bankrupt, I considered the effect of the applicant for a family provision order having creditors:

21. [116]

    It follows that the fact that some, or all, of the provision that may be made in an application will go to discharge the Plaintiff’s debts does not, necessarily, tend against an order for provision.

22. [117]

    What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46], by Kelly J should also be remembered:

23. [118]

    In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse “strongly suggests that the Court cannot consider the adequacy (or inadequacy) and propriety 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”.

Is the Plaintiff an Eligible Person?

1. [119]

   As stated, there is no dispute that the Plaintiff was a member of the household of which the deceased was a member. The real issue is whether she was wholly, or partly, dependent upon the deceased.

2. [120]

   On balance, I am of the view that the Plaintiff is an eligible person having been partly dependent upon the deceased. In this regard, whilst I do not think he provided the assistance to which the Plaintiff referred from the age of about 5 years (as she seems to have asserted in her affidavit), he was the oldest child of the Plaintiff, and although the Plaintiff had a husband, she seemed to have been unable to depend upon him for very much assistance in maintaining or otherwise looking after the family, particularly in the late 1970s and the early 1980s. Indeed, he was absent from the family home, at times, during that period. (He was admitted to Morisset Hospital which, I understand, was a specialist psychiatric hospital.)

3. [121]

   It was the Plaintiff who was working to earn a living to support herself and her young children. There was, then, an increase in the Plaintiff’s dependence on the deceased for assistance. As the oldest child, she required him to assist her in looking after the other children and to perform some of the household duties, generally, whilst she was at work, and before he left for, and when he returned from, school. She also relied upon him after he finally left school at about 15 years of age.

4. [122]

   Apart from the period of time that the person identified as “Doreen Beacon” (T11.10-T11.11) helped her following the birth of Heather, in 1972, it appears that it was the deceased upon whom the Plaintiff actually relied for the partial satisfaction of the need to assist in looking after the other children and to perform some household duties until she returned home from work.

5. [123]

   Although there is a difference of degree concerning the assistance actually provided by the deceased to the Plaintiff, the fact that he told the Defendant that he did provide some assistance to the Plaintiff, corroborates her evidence that she turned to him for that assistance and that he provided it.

6. [124]

   That each of the other children helped, when she or he respectively, was of sufficient age to do so, does not result in a lack of dependency by the Plaintiff upon the deceased. Nor does the fact that some of the things that the deceased did are “normal filial duties within the family circle that are performed by children” mean that the Plaintiff did not rely upon him.

7. [125]

   In this regard, the facts that the Plaintiff was the principal provider for herself and her children and that she had to work until late in the evening, whilst she had young children at home are relevant to the question of dependency.

8. [126]

   In addition, the Plaintiff is illiterate and was dependant on the deceased to help, at various times, in relation to her business dealings and paperwork including dealing with Centrelink, the Department of Housing, and in paying bills.

9. [127]

   Furthermore, the deceased supported the Plaintiff emotionally. By way of example, in 1984 it was the deceased who observed that the Plaintiff was emotionally upset and he persuaded her to see her doctor. In fact, he made the appointment for that to occur.

10. [128]

    It follows that I am satisfied that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act.

Are there factors warranting the making of the Plaintiff’s application?

1. [129]

   Having determined that the Plaintiff is an eligible person, I turn next to whether there are factors warranting the making of her application. In this regard, the Court must consider whether “factors” exist which, when added to the facts which render the applicant an “eligible person” give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

2. [130]

   As will be read shortly, the deceased mentioned his family as objects of testamentary recognition, although in the context of not wishing to make any provision for any of them.

3. [131]

   When one considers this question according to community standards, I am of the view that the Plaintiff, as the mother of the deceased, has established such factors. The blood relationship is one significant factor.

4. [132]

   Approaching the matter this way obtains some support from the provisions of Ch 4 of the Act dealing with intestacy. On an intestacy, the parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves no spouse, and no issue, and if there is only one surviving parent, the entitlement vests in that parent: s 128 of the Act. The Act, itself, seems to suggest that a parent, in certain circumstances, is regarded as a natural object of testamentary recognition.

5. [133]

   I have considered the nature of the relationship between the Plaintiff and the deceased after 1996. In this regard, it is fair to say that it was not as close as it might have been. Yet, there was no hostility between them and they did have some contact, although it could not be regarded as regular or lengthy. In the last 5 years, for example, the Plaintiff admitted that she saw the deceased 8 or 9 times: T15.09 - T15.11. She did not see the deceased at all for about 18 months prior to his death, although she did speak with him on the telephone on one occasion when his uncle died: T14.31 - T14.32.

6. [134]

   (I do not regard them as having been estranged, although it is clear that the relationship was not a close one.)

7. [135]

   In this regard, I have read the evidence of Tracy Dianne Partridge, who wrote that the deceased told her that he did not see his family anymore (although she noted that “he said this with a saddened/resigned smile”); the evidence of Marilyn Selway, who gave evidence that the deceased told her that he “hated’ his family, being disappointed with their actions when his father passed away and that he did not intend to leave anything to any of them; Steven Francis Graham, an adult child of the Defendant, who stated that the deceased was reluctant to talk about his family, saying that he had not seen them in years, and hoped that he did not see them; and Christopher Graham, another adult child of the Defendant, who stated that the deceased told him that he did not talk to his family. None of these witnesses was cross examined.

8. [136]

   Having considered all of the evidence, I am satisfied, for the purpose of section 59(1)(b) of the Act, that there are factors which warrant the making of the Plaintiff’s application.

Inadequacy of Provision

1. [137]

   The Court, if satisfied of the applicant's eligibility, and also that there are factors warranting the making of the application, must then determine whether adequate provision for the proper maintenance, education, or advancement in life, of that 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)).

2. [138]

   The parties are a long way apart in financial, and other, terms. The Plaintiff is aged 72 years. At the time of the deceased’s death, she was living on a pension and had no assets. In fact, she lives with her daughter in government housing. She receives a pension, all of which is consumed by modest essential expenditure. She has no savings. She has approximately $8 in her bank account.

3. [139]

   The Defendant is aged 56 years, having been born in December 1959. Whilst she is currently employed, she is concerned that her employment may come to an end next year. She earns about $1,500 per week gross, which she says equates to $1,000 per week, after tax. At the time of the deceased’s death, she lived in her own home. The home is a three bedroom home with a value said to be about $305,000. It is encumbered by a mortgage, which secures a debt of $181,113 (as at August 2015). She had a motor vehicle valued at about $43,000, but it is encumbered by an amount similar to its value. She has superannuation of about $134,000 and an “account balance” of about $267,000. (This amount is part of the amount that she has received as a result of the death of the deceased.)

4. [140]

   It is clear that she could pay off the amount secured by the mortgage registered on title, with the result that her monthly expenditure would be reduced by about $1,358 per month. Her surplus of income over expenditure, then, would be about $2,000 per month. She would still have an additional sum of about $85,000 plus what is left from the balance of funds yet to be paid from the estate (less any provision made for the Plaintiff and costs).

5. [141]

   (The Defendant acknowledged an error in her expenditure. Her Greenslip payment for her car was not $150 per month, but rather $50 per month: T23.09 – T23.18.)

6. [142]

   The deceased, of course, made no provision out of his estate, or notional estate, for the Plaintiff.

7. [143]

   The Plaintiff clearly has a "need". She does not have, and will not be able to acquire, the financial ability to deal with the exigencies and vicissitudes of life. She has income by way of a pension, but has no capital fund for the exigencies of life. She has no earning capacity. As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence.

8. [144]

   This is not a case where her debts, on bankruptcy, are so significant, with the result that to make provision would be of no practical benefit to her. In all probability, if she were able to pay off the debt, interest and the costs and expenses of the Official Trustee in Bankruptcy, she would be able to seek to be discharged from bankruptcy.

9. [145]

   However, I do not accept the submission that the Plaintiff has a need for accommodation, it being submitted that “she needs provision in the sum of $130,000 for the building of a “granny flat” on her son’s property”. As stated, she lives with her daughter, in government housing. There is simply no evidence of her accommodation being insecure. In any event, the size of the estate and the nature of the relationship of the deceased and the Plaintiff would not warrant such provision.

10. [146]

    As stated, the Plaintiff is the deceased’s mother. I have set out her relationship with the deceased in the context of the family previously.

11. [147]

    The Defendant gave evidence that she was the de facto spouse of the deceased at the date of his death. I do not have to decide whether she was, because even if she was not, their relationship, after the events involving the deceased in another relationship, was renewed and, thereafter, remained an extremely close one at the date of the deceased’s death. The Defendant admits that throughout her relationship with the deceased, they kept their finances separate “but would help each other financially when necessary and both of us would share expenses when out socially together or on holidays together”.

12. [148]

    When he became unwell, it was the Defendant who assisted in cleaning his house and doing his washing and ironing. He appointed her his Attorney and sole enduring guardian (T24.07), which appointments reflect the closeness of their relationship. Also, it must not be forgotten that the Defendant is the sole executrix and beneficiary of the whole of the deceased’s estate. I am satisfied that they had a special, and enduring, relationship over a reasonably long period of time.

13. [149]

    Counsel for the Defendant did not include in his written submissions, any submissions relating to the question whether there was an inadequacy of provision. In his oral submissions, he simply said that the Court would not be satisfied of inadequacy. I do not agree. In my view, despite the lack of closeness between them, considering the Plaintiff’s circumstances at the date of the hearing, according to prevailing community standards the deceased ought to have made some provision for the Plaintiff.

14. [150]

    It follows that I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for her, by the deceased.

15. [151]

    Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the Plaintiff. I have regard to the facts known to the Court at the date of hearing, including amongst other things, the size and nature of the deceased's estate and notional estate, the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased and the Defendant, who has a significant legitimate claim upon the deceased's bounty, and notwithstanding that the relationship of the Plaintiff and the deceased had deteriorated after 1996.

16. [152]

    Even though I have concluded that the Plaintiff and the deceased were not estranged, the poor state of their relationship, illustrated by the absence of regular and close contact for many years, does operate to restrain amplitude in the provision to be made: Wheatley v Wheatley [2006] NSWCA 262 at [37] (Bryson JA); Keep v Bourke [2012] NSWCA 64 at [50] (Barrett JA).

17. [153]

    The determination of what provision should be made cannot be done by exact calculation or computation and must, at least in part, depend upon an estimate of the needs of the applicant.

18. [154]

    In my view, the Plaintiff should receive a lump sum of $38,000. This will enable her to pay off the debt and any interest thereon, as well as the costs of the Official Trustee in Bankruptcy (say, in total, about $13,000). She will then have about $25,000 by way of a capital sum left for exigencies of life and to provide a modest additional income to supplement the pension she receives.

19. [155]

    I make the following orders: