Drummond v Drummond

1. [1]

   HIS HONOUR: Before the Court, for hearing, on 15 July 2019, were proceedings concerning the estate of Hannah Marie Fitzgerald (“the deceased”) who died on 16 February 2018, aged 88 years. The first named Plaintiff, Kenneth Gordon Drummond, is one of her four surviving, now adult, children. On 21 June 2019, the second Plaintiff named in the Summons, Susanne Marita Stirling, another adult child of the deceased, consented to an order that the whole of her proceedings be dismissed and consequential orders. The Consent Orders were received, by this Court, on 24 June 2019, and on 26 June 2019, I made those orders in Chambers.

2. [2]

   Although part of her affidavit was read in the first Plaintiff’s case, and she was cross-examined, it is unnecessary to refer, otherwise, to the second Plaintiff’s proceedings.

3. [3]

   The Defendant named in the proceedings is Janette Evelyn Drummond, another adult child of the deceased, and the executor named in the Will, made on 22 January 2016, by the deceased. This Court granted Probate to her on 7 June 2018.

4. [4]

   The fourth now adult child of the deceased, Steven Geoffrey Drummond, is aware of the proceedings having been served with the notice of the application, and of the Court's power to disregard his interests, but he has not commenced any proceedings. (I note that Steven’s name was spelled “Steven” and “Stephen” in the evidence filed in these proceedings. For consistency, I shall refer to him only as “Steven”.)

5. [5]

   Without intending any disrespect, or undue familiarity, each of these persons, and other witnesses, once identified, will be referred to below by his, or her, first name.

6. [6]

   At the conclusion of the hearing, I adjourned the proceedings for a short time, to consider the orders that I was prepared to make. I had been informed that there may be an argument about costs depending upon the result of the proceedings. As I did not wish further costs to be incurred by the parties, I then informed the parties of the order for provision that I proposed to make in favour of the Plaintiff. Following this, there was discussion concerning the costs orders that should be made (to which I shall refer later in these reasons).

7. [7]

   I have set out, at the completion of these reasons, all of the orders that I then made.

8. [8]

   I should mention that this is another very sad case, once again involving adult siblings, children of the deceased, who were prepared to incur a significant amount, by way of costs, in the proceedings, rather than coming to a resolution of the proceedings. As will be read, the total amount incurred in legal costs by them is greater than the amount of provision made for Kenneth. Regrettably, this is also a case in which the conduct of an applicant towards the deceased was in dispute.

9. [9]

   Despite what has just been written, it should not be thought that there is meant to be any criticism of the legal representatives of either party. They have endeavoured to manage the hearing, bearing in mind the object of resolving the issues between the parties in such a way that the cost to the parties was proportionate to the importance and complexity of the subject-matter in dispute: s 60 of the Civil Procedure Act 2005 (NSW). In this regard, although the hearing was listed for two days, it was able to be concluded in one day.

10. [10]

    At the hearing, Mr D F Elliott of counsel appeared for Kenneth and Mr N Bilinsky of counsel appeared for Janette. I am grateful to each of them for their detailed written submissions, which I have found extremely helpful.

Formal matters not in dispute

1. [11]

   Kenneth commenced the proceedings by Summons filed on 5 June 2018, in which, relevantly, he made a claim for an order for additional provision out of the deceased's estate, pursuant to the Succession Act 2006 (NSW) (“the Act”) and an order for his costs. (The Summons also sought that the matter be listed on an “urgent basis”, that leave be granted to serve the Summons on short notice, and such further or other Orders as the Court sees fit.)

2. [12]

   Relevantly, 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 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.

3. [13]

   Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Kenneth is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person”). However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “…(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”. This factor, however, will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.

4. [14]

   (Although Kenneth also asserted in his affidavit that he was 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 was a member (Affidavit, Kenneth Gordon Drummond, 1 August 2018 at par 7), it was unnecessary for him to rely upon this head of eligibility, as there is no dispute about the relationship of parent and child.)

5. [15]

   That Kenneth commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act was also not in dispute. It was also accepted that there is no scope for the operation of the intestacy rules, so that it is only necessary, hereafter, to refer to the Will and Codicil of the deceased.

6. [16]

   A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. It was agreed that there is no property that may be designated as notional estate of the deceased.

Background Facts

1. [17]

   It is convenient, next, to provide a statement of some of the background, and the other, facts, since these provide the context in which the issues in this case arise. To the extent that any of these facts are in dispute, the facts stated under this heading should be regarded as the findings of the Court.

2. [18]

   The deceased was born in June 1929. She married Kenneth Drummond Snr in about 1950, and remained married to him, until his death in December 1969. There were four children of their marriage, being Steven, who was born in March 1951, and who is presently 68 years of age; Susanne, who was born in April 1953, and who is presently 66 years of age; Kenneth, who was born in July 1956, and who is presently 63 years of age; and Janette, who was born in July 1959, and who is presently 60 years of age.

3. [19]

   In about 1971, the deceased commenced a relationship with Harry Klein. They were married in about 1972 and remained married until his death, which was either 1992 (according to Kenneth), or 1997 (according to Janette). Nothing turns on this disputed evidence. There were no children of their marriage.

4. [20]

   The deceased’s Will, relevantly, provided a pecuniary legacy of $2,000, to each of Susanne, Stephen and Kenneth; gave a mobility scooter to Hayden James Drummond, a grandson, and left the whole of the residue of the estate to Janette. Interestingly, in the event that Janette did not survive her, the deceased left the whole of the residue to Hayden (who is Janette’s son).

5. [21]

   In the Inventory of Property attached to, and placed inside, the Probate document (a copy of which became Ex. 1), the deceased’s estate was said to have an estimated value of $651,405. The estate was said to consist of real estate at Hamlyn Terrace, New South Wales ($645,000), and cash in two bank accounts ($2,637 and $3,767). The estate, as at the date of the deceased’s death, was said to have no liabilities. (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

6. [22]

   The estate, at the date of hearing, comprised cash in bank, held in a term deposit, the real estate at Hamlyn Terrace, having been sold. The amount, as at 5 June 2019, which was held, was $517,055. There was also an amount of $12,630 held in Janette’s solicitor’s controlled monies account: Tcpt, 15 July 2019, p 3(23-35).

7. [23]

   It follows that the gross value of the estate, after the payment of certain liabilities (outlined in the Defendant’s affidavit made 5 June 2019 as having already been paid out of the estate, including Probate costs - $7,853, counsel’s fees - $9,625 and costs of sale of the Hamlyn Terrace property - $1,865) was $529,685. At the hearing, this amount was agreed by counsel: Tcpt, 15 July 2019, p 4(1-16).

8. [24]

   None of the pecuniary legacies has been paid. These total $6,000. Since Kenneth seeks additional provision, and as the parties agreed that the pecuniary legacies to the other children of the deceased should be paid, the amount of $4,000 will be deducted from the gross value of the estate, leaving an estate, subject to the payment of costs, with a value of $525,685.

Eligible Persons

1. [25]

   There was no dispute that the only eligible persons are the four children of the deceased. Only Kenneth’s claim for a family provision order is being pursued. However, it is clear that all of the eligible persons are well aware of the proceedings, and only Janette has given evidence of the basis of her claim on the bounty of the deceased. She has also raised her financial circumstances as a competing beneficiary. Each of Kenneth and Janette was cross-examined, although relatively briefly.

2. [26]

   The Act specifically provides that Janette’s interests, as a beneficiary, cannot be disregarded, even though she has not made a claim: s 61. She is entitled to rely upon the terms of the Will and her competing claim as a chosen object of the deceased’s testamentary bounty.

The Costs of the Proceedings

1. [27]

   Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

2. [28]

   Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

3. [29]

   As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]:

4. [30]

   However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order, particularly, in relation to estates with a relatively small value.

5. [31]

   Ms D Ruggero, the solicitor with the day to day carriage of the matter, estimated Kenneth’s costs and disbursements, calculated on the ordinary basis, up to and including a 2 day hearing, to be approximately $52,655, inclusive of GST as at 12 June 2019. She estimated his costs and disbursements, calculated on the indemnity basis, to be $61,883, inclusive of GST.

6. [32]

   At the hearing, these estimates were not altered. No costs or disbursements have been paid to the Plaintiff’s legal representatives.

7. [33]

   Ms S Lewis, the solicitor with the day to day carriage of the matter, in an affidavit of 6 June 2019, estimated Janette’s costs and disbursements, calculated on the indemnity basis, up to and including a two day hearing, to be approximately $53,719, of which approximately $9,719 had been paid out of the deceased’s estate. At the hearing, without objection, a further affidavit sworn on 15 July 2019, was filed in Court, which revealed that the estimate of Janette’s costs, were then $69,719. However, taking into account the amount that had already been paid out of the deceased’s estate, a balance of $60,000 is yet to be paid.

8. [34]

   It follows that if the estimates prove accurate, and if orders are made for the payment of the costs of the parties out of the estate, the total amount of $112,655 will need to be paid.

9. [35]

   Then, taking the value of the estate at the date of hearing ($525,685), and deducting the total costs of the proceedings left to be paid ($112,655), the value of the estate out of which any order for provision that may be made for Kenneth was agreed to be $412,990: Tcpt, 15 July 2019, p 6(33-39). On any view, it is a relatively modest estate.

10. [36]

    (Counsel for Janette, in written submissions, had calculated the estate taking into account only Janette’s costs of the proceedings. In light of what has been stated above, and even though a submission was made that Kenneth’s proceedings should be dismissed, I cannot accept that, to ignore the potential for an applicant’s costs to be paid out of the estate, is an appropriate way to proceed in determining the value of the estate out of which an order for provision may be made.)

11. [37]

    Following the parties being informed of the provision to be made for the Plaintiff out of the deceased’s estate, counsel for Janette said that the document to which he had referred (which related to costs), would not be relevant.

12. [38]

    The Court then raised the question whether Kenneth’s costs should be capped. After some discussion, the legal representatives agreed that Kenneth’s costs should be capped, and should be calculated as a specified gross sum, instead of assessed costs, of $47,650, which amount should be paid out of the estate: Tcpt, 15 July 2019, p 100(1-19). I was also satisfied that a lump sum costs order could be made as the court has sufficient confidence to arrive at an appropriate sum on the materials available: Colquhoun v District Court (NSW) (No. 2) [2015] NSWCA 54 at [6]. The course taken by the parties was sensible as it avoids further delay in the administration of the estate and additional costs, and time, being incurred in having the quantum of costs formally assessed.

13. [39]

    As will be read, the costs incurred by the parties exceed the amount of the provision to be ordered for Kenneth. As Meagher JA, with whom Macfarlan JA and Simpson AJA agreed, in Squire v Squire [2019] NSWCA 90, at [40]:

The deceased’s Statutory Declaration

1. [40]

   The deceased swore a statutory declaration at the time she made her Will. It is in the following terms:

2. [41]

   In McDonald v O’Connor [2019] NSWSC 261, at [169]-[181], I dealt with the manner in which the Court should consider statements of the deceased:

3. [42]

   Ultimately, the weight to be given to the deceased’s statement must depend upon all of the evidence, including whether there is evidence, which is accepted, that speaks against its truth. It is part of the circumstances of the case and falls to be assessed, together with all other relevant factors. Yet, the deceased’s statement may always be regarded as the explanation provided, by the deceased, for making the provision that she did.

4. [43]

   In the present case, the deceased’s expressed reason for making the provision that she did for Kenneth was her belief that he was “financially able to support himself”; that Janette did not own her own home; and that Janette was the only child who had visited her and provided her with love and support.

5. [44]

   On the basis of the evidence that I have read, I am satisfied that the deceased’s statement, at the date of the hearing, was only partially accurate. This does not mean that it should be disregarded.

Kenneth’s relationship with the deceased

1. [45]

   There is some dispute about the deceased’s relationship with Kenneth. There is quite a lot of independent contemporaneous documentation, such as police and hospital records, that shed light on the conflicting evidence.

2. [46]

   Kenneth gave evidence that from about 2009, the deceased telephoned him regularly, and requested him to move into her home with her. I accept his evidence that she did make such requests, as there is other evidence which suggests that she was estranged from each of her other children and did not, then, have very much to do with them.

3. [47]

   At that time, Kenneth was recuperating from an illness, and in July 2010, he moved into the deceased’s home. There is no doubt that he did so not for solely altruistic reasons, although he did give evidence that he wished to assist the deceased. I am satisfied that in doing so, he received a significant benefit, namely that he was able to rent out the real estate that he owned at Nana Glen, located 25 kilometres inland, north-west of Coffs Harbour, in New South Wales, and use the rental income to make the repayments of the mortgage debt secured on this property.

4. [48]

   Kenneth says that from that time, he was the deceased’s carer and that he would complete various household tasks such as cooking, cleaning, grocery shopping and performing errands for her. He says that he would also take her to medical appointments, collect her medications, and assist her in taking them. I am satisfied that during this period of time, he was the only one of the deceased’s children, who provided support to her. He was certainly the only one of her children to move into her home to live with her.

5. [49]

   Kenneth also asserts that until he moved out in early 2015, he carried out various household repairs and improvements on the deceased’s home, including attending to the lawn, doing the gardening and the cleaning of the external areas.

6. [50]

   In cross-examination, some criticism was made of his evidence, the submission by counsel for the Defendant being that it was inconsistent with the medical conditions from which he said he then suffered. However, I accept Kenneth’s evidence that he would perform the work at the deceased’s home, at his pace, and over a period of time, stopping when he felt the need to, and continuing when he was able, sometimes days later: Tcpt, 15 July 2019, p 31(34) – p 32(8).

7. [51]

   I also accept the evidence of Dean Stuart McCulloch, the ex-husband of Janette, who from about 2015, helped “with the general up keep [sic] of the [deceased’s] house both inside and out”, and who carried out a lot of work to make it safe for the deceased: Affidavit, Dean Stuart McCulloch, 19 September 2018 at par 7. Of course, by this time, Kenneth had moved out of the deceased’s home.

8. [52]

   In his affidavit made 1 August 2018, Kenneth says that he represented the deceased in certain Land and Environment Court proceedings involving the Wyong Hospital, loaned the deceased $2,000 so that she could purchase a mobility scooter, and “contribute(d) toward the electricity bills and would buy my mother’s groceries”. He says that although he offered, the deceased refused to take any rent from him. He was not challenged on any of these matters.

9. [53]

   Kenneth also gave evidence that prior to him moving into her home, the deceased, often, would telephone him, whilst she was intoxicated, and abuse him. He stated that after he moved in with the deceased, he observed that she would start drinking alcohol in the late afternoon, and then would become abusive by the evening. He says that “I would then generally try to ignore her; however, this would make my mother more irate. I would then generally lock myself in my bedroom to avoid further abuse and confrontation”: Affidavit, 1 August 2018 at par 30.

10. [54]

    Kenneth also gave the following evidence, in his affidavit made 1 August 2018:

11. [55]

    Kenneth asserts that Janette was “estranged from my mother” between about 2009 and 2014. Janette says that she was not estranged from the deceased but did not go to the deceased’s home when Kenneth was there. There is, however, some evidence, to which reference will be made, that supports a period of estrangement between Janette and the deceased. However, it is clear that from about 2015, Janette played a significant role in the life of the deceased.

12. [56]

    Janette paints a somewhat different picture of the deceased. Despite other evidence, she maintained, in cross-examination, that the deceased did not ever drink alcohol to excess and that she never, ever, saw the deceased intoxicated. Based upon other evidence, I do not accept her evidence on this topic, at least so far as it relates to the deceased not ever drinking alcohol to excess.

13. [57]

    Mr McCulloch also gave evidence that he had never seen the deceased drunk or aggressive. I do not necessarily disbelieve his evidence, but that evidence only speaks of his observations of the deceased. It is difficult to know how regularly, if at all, he observed the deceased in the afternoon or evening.

14. [58]

    For the same reason, I accept the evidence of Katherine Anne Miller, a sub-contractor, residential and commercial home care cleaning, for companies such as Kincare and Anglicare, within limits, as she knew the deceased from about September or October 2015, but only observed her, during the day, “often on a Thursday”, after the deceased had been shopping. Ms Miller also gave evidence that the deceased told her that she did not regard Kenneth as her son. However, when this conversation took place is not identified in Ms Miller’s affidavit sworn 19 September 2018. (Ms Miller was not cross-examined.)

15. [59]

    Janette says that the deceased said that she was afraid of Kenneth and that “he abuses me constantly”. She says that in mid-2014, the deceased changed the locks on her house, leaving Kenneth with only a key to the garage. She says that she called the Police to carry out a welfare check on the deceased. Janette says that she did not observe Kenneth to have visited the deceased in the last 3 or 4 years of her life. He denied this statement, saying that he did visit, as the deceased permitted him access to the garage on her property. However, it is clear, that by this time, his relationship with the deceased was not as close as it might have been.

The contemporaneous documents

1. [60]

   In Evans v Braddock [2015] NSWSC 249, at [72]-[77], I wrote:

2. [61]

   In this case, in expressing the views about the relationship of the parties, I have placed more emphasis on the contents of the contemporaneous documents, than upon the evidence, particularly of Janette, whose evidence, in some respects, I found hard to accept.

3. [62]

   In relation to Kenneth, the following excerpts from the contemporaneous documents, to which I shall now refer, are relevant. There is a reference in police records (Ex. A/179) to an incident involving the deceased and Kenneth on 3 June 2011, when:

4. [63]

   Kenneth admitted his intoxication in this incident and otherwise said that when he was drinking alcohol, he did so in his bedroom.

5. [64]

   There is a reference also to a report made by the deceased to the Police on 12 December 2013 (Ex. A/178) which is in the following terms:

6. [65]

   (The passage quoted, in part, supports Kenneth’s evidence of having been her Attorney.)

7. [66]

   Kenneth also admits that he moved out of the deceased’s home following the police being called, when the deceased made an allegation that he was abusing her. The police report relating to this incident is one dated 26 July 2014 (Ex. A/178), and includes:

8. [67]

   There are also a number of contemporaneous medical records that shed light on the relationship between the deceased and her children, among other things. For instance, there are a number of contemporaneous medical records from the file of Dr James Blackburn, who, it appears, was the deceased’s treating doctor.

9. [68]

   In a letter dated 1 December 2006, from Dr J Sturm, a consultant Neurologist to Dr Blackburn, there is a statement that he had met the deceased, one year previously “when she was complaining of giddy episodes”. There is also a reference to a conversation with “the deceased’s daughter who stated that her mum’s memory had been deteriorating over a few years but more noticeable over the past 12 months”: Ex. A/173.

10. [69]

    In a letter dated 13 December 2006, from Dr Sturm to Dr Blackburn, there is a reference to the deceased’s daughter describing some “cognitive impairment”; that “cognitive testing showed some evidence of cognitive impairment …”: Ex. A/174. There is no reference in either of these documents to alcohol.

11. [70]

    In Dr Blackburn’s Progress Notes of 12 August 2008, there is a reference to the deceased being taken to Wyong Hospital and her denying that she was intoxicated “but that was in the report from A&E”. There is also a reference, on the same date, to the deceased refusing to call an ambulance “as a result of having had the ambulance for the previous occasion when they said she was intoxicated”: Ex. A/163.

12. [71]

    In a Mental Health Assessment, dated 21 October 2008 (Ex. A/165), the following appears:

13. [72]

    In a letter dated 22 September 2009, from Karen Slee, a registered Psychologist, to Dr Blackburn, there is a reference to the deceased “ha[ving] completed twelve sessions. She has made progress however [she] continues to feel anxious regarding her two estranged daughters”: Ex. A/172.

14. [73]

    In a “GP Mental Health Care Plan – Review” dated 11 March 2010, there is a reference to the deceased “getting more able to accept the attitude of her daughters to her”: Ex. A/167.

15. [74]

    In an Ambulance Electronic Medical Record dated 10 April 2014, it is noted the deceased had a “past [medical] history” appearing to have suffered an acute myocardial infarction. That record also indicates “Pt live alone. Used to live with son 2/52 ago but due to social issues has been living home alone unassisted since…” Ex. A/136.

16. [75]

    In an Assessment Summary dated 19 November 2015, it was revealed that the deceased had been referred, by Janette, for a general assessment. There is a reference to “Susan” (presumably Susanne) having a Power of Attorney and that she was “currently overseas”. At this time, the deceased was said to be living alone at her home: Ex. A/170. (There was no other evidence indicating the length of time Susanne had been named as the deceased’s Power of Attorney, or alternatively, if the information contained in the record was incorrect.)

17. [76]

    There is evidence that on 10 August 2017, an ambulance was despatched to the deceased’s home and found her “heavily intoxicated”. She was reported to be “agitated, upset, anxious, depressed, Intoxicated”: Ex. A/132. In another medical record, there is a reference to “[r]eports of problematic alcohol use at least back to 2008” although the deceased appears to have denied this: Ex. A/143. A hospital record from 11 August 2017 indicates “daughter (lives in Sydney) has cameras in mother house. Saw her sneaking alcoholic drinks all day” and “Discussion with daughter – mother is a heavy drinker”: Ex. A/146.

18. [77]

    In another medical record dated 10 October 2017, it was reported, in relation to “Current/Recent Substance Use”, an “unknown amount of etoh daily. Daughter filmed this recently with camera in client’s home. client minimalises this. chronic etoh issues”: Ex. A/144-145. (As I understand it, EtOH stands for ethyl alcohol, or ethanol. This substance is found in alcoholic drinks such as beer, wine and liquor. The term EtOH is commonly used when referring to alcohol.)

19. [78]

    In another medical record, which appears to be dated 12 October 2017, Janette is recorded as having stated that the deceased’s behaviour had changed in the last six months. Then, she was “much happier and contented … Her character has changed. Now sullen. More aggressive with people. Isolating. Not wanting to engage with others. Suspicious”. The record also stated “Janette does not wish mother to be told that she has given a different picture as she often blames daughter for everything that is happening”. Later, the same record states “daughter only visits fortnightly to 3 weekly. granddaughter [sic] rarely. [t]hough [the deceased] stated she was there every day”: Ex. A/142.

20. [79]

    There is also evidence that Janette on 17 December 2017, reported, by telephone, to the ambulance service, that the deceased exhibited “poor behaviour when intoxicated”: Ex. A/134. The deceased was found on the floor and helped up by the ambulance. There was no diagnosis of dementia, but Janette was recorded as reporting that the deceased suffered “declining cognitive functioning”. The deceased was taken to Wyong Hospital by the ambulance. The ED assessment from Wyong Hospital, in relation to the same incident, also noted “Regular intoxication happening weekly- becomes aggressive. Previous admission to ED for the same. Daughter report once sober patient regrets actions”: Ex. A/137. In the same document, it is recorded that “… Daughter has brought in guardianship documentation”: Ex. A/138.

21. [80]

    It is clear, from the contemporaneous medical records, that the person with whom medical practitioners, and others, had contact in relation to the deceased, after 2015, was Janette. Where it is suggested that a conversation occurred with the deceased’s daughter, I am satisfied that what is recorded as having been communicated by Janette was communicated, rather than accepting her denials, in cross-examination, of having made such statements.

Kenneth’s situation in life

1. [81]

   Kenneth is now a single man with no dependants. (He was divorced on a date not disclosed in the evidence.)

2. [82]

   He held a plumbing license until about 2013. He is presently unemployed, having not been in full-time employment since about 2007. He appears to have developed a radiculopathy (commonly referred to as pinched nerve) with associated cervical degenerative disease in or about 2006.

3. [83]

   He has been in receipt of a disability support pension (as at 14 June 2019, $463 per week) since that time.

4. [84]

   In 2007, Kenneth was diagnosed with Guillian-Barre Syndrome, “a potentially fatal condition that causes rapid onset of muscle weakness and paralysis due to an autoimmune condition in which the individual’s nerves are attacked by their own immune defence system”. He suffers coronary artery disease which required surgery for the insertion of a stent in January 2018. He also suffers from Type II diabetes which does not appear to be properly managed; he suffers hypertension, which is managed with anti-hypertensive medication and right shoulder supraspinatus tear with impingement and bursitis. He appears to have sensory loss due to peripheral neuropathy in both feet (greatest on the right). There are limited prospects that he will return to work as he has permanent disability and impairment which have diminished his functional and work capacities: Ex. A/19.

5. [85]

   His regular medications include: Astrix (anti-thromoembolic agent), taken daily, Atorvastatin and Exforge (cholesterol and blood pressure), Lyrica (anti-neuropathic agent) taken daily, Panadol Osteo (pain relief), Targin (pain relief), Pristiq (antidepressant), Spiriva (to assist with breathing), Janumet and Lantus insulin injections (for diabetes) daily: Ex. A/3.

6. [86]

   The medical report prepared by Dr Barold records (Ex. A/9):

7. [87]

   I am satisfied that Kenneth has a limited earning capacity.

8. [88]

   Kenneth owns his home at Nana Glen. The parties agreed that its value was $500,000: Tcpt, 15 July 2019, p 77(40-50). He has a car ($3,000) and personal effects ($3,000). He also has a caravan, the value of which he did not disclose. He stated that he did not have any superannuation.

9. [89]

   He has liabilities, including a debt secured by mortgage on the Nana Glen property ($140,702) a personal line of credit ($66,717), credit card debts ($8,424) and outstanding rates ($4,218). Accordingly, his liabilities total $220,061.

10. [90]

    Kenneth had in place a "Hardship Arrangement" with his bank pursuant to which he was required only to meet interest payments in respect of the mortgage debt. That arrangement expired in February 2019. He is currently living in the caravan and renting his home. He stated that the caravan in which he resides does not have hot water or toilet facilities. He receives rental income of $430 per week, which he uses to make the mortgage repayments. He also gave evidence that his tenants have indicated they will not renew the lease after its expiry in July 2019.

11. [91]

    If he needs to sell the Nana Glen property, following payment of costs and outstanding debts, the remaining amount available to him will be approximately $280,000.

12. [92]

    Kenneth's financial position is such that he does not have any amount, available as a buffer, for exigencies of life and he lacks any reserves to meet demands, particularly of ill health, as he grows older. It was submitted that, if the personal loan were cleared, and a modest buffer for future exigencies of life was provided, he could retain the Nana Glen home and live off his disability support pension.

Janette’s situation in life

1. [93]

   Janette was married to Dean Stuart McCulloch for 14 years. They separated in May 2008 and were divorced some time thereafter. They have maintained a friendship since that time and since 21 December 2018, he has been residing with Janette in her home to assist Janette because of the medical conditions from which she suffers. He pays her rent of $315 per week: Tcpt, 15 July 2019, p 69(15-23).

2. [94]

   Although he swore an affidavit on 19 September 2018, which affidavit was read in the proceedings, he did not disclose any information about his financial circumstances. However, in cross-examination, he admitted that he was employed and that he contributes to the household by paying his own expenses. He does not pay for utilities because on occasions, he buys groceries. (Janette says that he “generously” provides her with “some support, including some financial assistance, but this is limited”: Affidavit, Janette Evelyn Drummond, 5 June 2019 at par 13).

3. [95]

   Janette has no property of any significant value. In particular, she has no savings and she owns no real estate. She does not have the potential to generate income or otherwise augment the amount she receives by way of disability support pension. Her only property will be what she receives from the estate of the deceased.

4. [96]

   Janette is also in poor health and suffers from crippling back pain. Such pain cannot be managed with surgery (in part due to her multi-layered spinal degeneration), such that she needs to take heavy medication for her pain relief to manage day-to-day.

5. [97]

   Janette also receives a disability support pension. There is evidence (Ex. A/11) that the household’s assessable income, as at 31 December 2018, was $1,474 (per fortnight).

6. [98]

   Janette gave evidence that she wished to purchase a home on the Central Coast and move there. I am unable to accept her evidence in this regard. She has lived in the same Department of Family and Community Services (as of July 2019, the Department of Communities and Justice) housing, three bedroom accommodation, since 1999, with Hayden, and more recently, with Mr McCulloch. Although there is some suggestion that it was not suitable for her medical needs, there were renovations done to make it more suitable for her requirements.

7. [99]

   Furthermore, when asked about “some examples of properties on the Central Coast, which would provide a secure home for my future needs”, she admitted that she did not carry out the searches of the property advertisements that were annexed to her affidavit, but that her solicitor had done so; that she could not confirm whether the searches related to 2 or 3 bedroom homes; that she had not inspected any properties on the Central Coast to ascertain whether any would meet her needs; that she had not made any enquiries about the costs of a two bedroom home on the Central Coast; and finally, if it became necessary, whether she could borrow any amount to supplement what she might receive from the deceased’s estate after these proceedings were concluded.

8. [100]

   Counsel for Janette made much of the possibility that her current accommodation was not secure because the Department of Family and Community Services (now the Department of Communities and Justice) would take into account any amount that Janette received from the deceased’s estate. He pointed to the Policy document of the Department which referred to a client “not [owning] any assets or property which could reasonably be expected to resolve their housing need”: Ex. 2. However, there was no evidence, referred to by counsel for the Defendant that Janette would be asked to leave her accommodation in the event that she received the balance of the deceased’s estate after any order for provision and costs.

The Statutory Regime

1. [101]

   To justify an order for provision under the Act, the Court must be affirmatively satisfied that the deceased has not made “adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made”: s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court “thinks ought to be made” for the identified purposes: s 59(2).

2. [102]

   Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act and the deceased’s Will applies unless a specific application is made and acceded to by the Court.

3. [103]

   The principles to be applied on this topic are well known and I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.

4. [104]

   Other than by reference to the provision made by the Will of the deceased, 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 an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

5. [105]

   The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.

6. [106]

   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 (as his Honour then was) wrote 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, per Emmett JA, at [9].

7. [107]

   As stated, 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. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson [2017] NSWCA 326, per Payne JA (agreeing with White JA), at [6].

8. [108]

   Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, or him, out of the deceased’s estate, should be the only, or even, the dominant consideration. An applicant’s financial needs and the financial needs of other persons with claims on the deceased’s testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]:

9. [109]

   Furthermore, "needs" are not, necessarily, the measure of the order to be made. The court must also, importantly, consider the competing needs of other beneficiaries.

10. [110]

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

11. [111]

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

12. [112]

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

13. [113]

    In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words “maintenance”, “support” and “advancement”:

14. [114]

    In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), wrote, at [18]:

15. [115]

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

16. [116]

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

17. [117]

    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 Aust J Leg Hist 5, 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) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

18. [118]

    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:

19. [119]

    Their Lordships went on to state, at 478:

20. [120]

    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:

21. [121]

    In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

22. [122]

    In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502, citing Pontifical Society for the Propagation of the Faith v Scales at 19:

23. [123]

    In Vigolo v Bostin, Callinan and Heydon JJ wrote at 114:

24. [124]

    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]:

25. [125]

    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.”

26. [126]

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

27. [127]

    In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:

28. [128]

    As will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

29. [129]

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

30. [130]

    In Boettcher v Driscoll (2014) 119 SASR 523, at 530; [2014] SASC 86, at [41], David J added:

31. [131]

    Sackville AJA pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that “the assessment of an applicant’s needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [12], Allsop P observed that “[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)”. That observation applies to the concept of “financial needs” embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person’s age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person’s financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act”.

32. [132]

    As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes “adequate provision” for the “proper maintenance” of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.

33. [133]

    If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

34. [134]

    The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has discretion means that it may refuse to make an order, even though the question regarding inadequacy of provision has been answered in the applicant’s favour.

35. [135]

    Section 60 of the Act provides:

36. [136]

    It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew, at [37], as “the 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 purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, “may” does not mean “must”.

37. [137]

    In Chapple v Wilcox (2014) 87 NSWLR 646, at 649; [2014] NSWCA 392, at [7], Basten JA wrote:

38. [138]

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

39. [139]

    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.

40. [140]

    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).

41. [141]

    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.

42. [142]

    In In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318, at [321], Jordan CJ described “disentitling conduct”, in the context of s 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), as “character or conduct relevant to the purposes which the 1916 Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default”.

43. [143]

    There is no equivalent provision that refers to character or conduct such as to “disentitle” the applicant to the benefit of a family provision order. Character and conduct may be considered under s 60(2)(m) of the Act, which is in broader terms, without employing the word “disentitling”. As I have written in other cases, the Act requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619, at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780, at [120]-[124]; Page v Page [2016] NSWSC 1218, at [112].

44. [144]

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

45. [145]

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

46. [146]

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

47. [147]

    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)(a) of the Act.

48. [148]

    Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The Court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820-821; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].

49. [149]

    Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540. Bearing in mind the conclusion reached regarding notional estate, this is an estate with a small value.

Some Additional Principles

1. [150]

   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. Other judges, and I, have repeated them in many cases under the Act.

2. [151]

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

3. [152]

   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” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

4. [153]

   As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

5. [154]

   In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:

6. [155]

   Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

7. [156]

   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:

8. [157]

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

9. [158]

   Of course, 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.

10. [159]

    In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].

11. [160]

    The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].

12. [161]

    In relation to the claim by Kenneth, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:

13. [162]

    A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson, at [62].

14. [163]

    The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

15. [164]

    In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. 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”.

16. [165]

    Janette is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased’s Will for her, or otherwise justify such provision. Nor does she have to explain the decision by the deceased to make the provision that she did for Janette in her Will.

Qualifications on “Principles”

1. [166]

   As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

2. [167]

   As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

3. [168]

   It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.

4. [169]

   As Lindsay J wrote in Verzar v Verzar, at [131]:

5. [170]

   The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; and Yee v Yee, at [172]. They must be remembered.

Additional Facts

1. [171]

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

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

1. [172]

   Kenneth is the child of the deceased. He gave evidence that, when he lived with the deceased between 2010 and 2015, he assisted in caring for the deceased, and completing household tasks. This has been outlined earlier in these reasons.

2. [173]

   The evidence indicates that Kenneth did not see the deceased very much from around 2015, although he asserted, in his affidavit made 1 August 2018, that he would try to call her every six weeks or so between 2015 and 2018. He gave evidence that the deceased would either not want to speak to him, or their telephone conversations would be very short.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. [174]

   This is not expressly referred to in the Plaintiff’s affidavit evidence. I have earlier referred to the nature of a parent’s obligation to an adult child.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. [175]

   The nature and extent of the deceased’s estate has been described earlier in these reasons. It is a small estate.

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

1. [176]

   I accept that Kenneth has limited earning capacity.

2. [177]

   I also accept that Janette has limited earning capacity.

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

1. [178]

   This section is not applicable, as Kenneth lives alone.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. [179]

   Kenneth, and Janette’s, medical conditions, respectively, have been outlined earlier in these reasons. I do not repeat them here.

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

1. [180]

   As stated, Kenneth is presently 63 years of age.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. [181]

   As has been discussed earlier in these reasons, I accept that the Plaintiff made some contribution to the welfare of the deceased, and contributed to the upkeep of the deceased’s home, which forms part of her estate. I also accept that for a period of time, he made some contribution to her welfare, although that did not continue after 2015.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. [182]

   Any provision the deceased made for Kenneth, by way of lump sum for example, was not expressly disclosed in the evidence. I accept that Kenneth received a financial benefit from living at the deceased’s home, rent free, between 2010 and 2015. He was able to rent the Nana Glen property and use the rental income to pay the mortgage instalments.

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

1. [183]

   The deceased’s testamentary intentions, expressly stated in her statutory declaration, excerpted earlier in these reasons, indicates her intentions in relation to her estate.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

1. [184]

   Kenneth lived with the deceased for the period 2010 to early 2015, however there is no other evidence to indicate he was being maintained by the deceased in adulthood, before or after he lived with her.

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

1. [185]

   There is no other person liable to support the Plaintiff.

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

1. [186]

   I accept that Kenneth cared for the deceased and attended to the deceased’s needs, at least partially, in the period 2010 to 2015. I also accept that he and the deceased had a turbulent relationship during this period, and otherwise. This may have been exacerbated by alcohol consumption.

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

1. [187]

   I have dealt with the conduct of Janette in relation to the deceased. I accept that, from at least 2015 until the deceased’s death, she was a primary source of support for the deceased.

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

1. [188]

   This factor is not applicable.

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

1. [189]

   I have dealt with the relevant matters earlier in these reasons.

Determination

1. [190]

   Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Kenneth, has not been made by the Will of the deceased.

2. [191]

   What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.

3. [192]

   There was provision in the deceased's Will made for Kenneth but it was for $2,000 only. However, the amount of the provision does not, automatically, mean that he will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased’s Will.

4. [193]

   Yet, judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for Kenneth’s proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

5. [194]

   The Court is required to make an assessment of Kenneth’s financial position, the size and nature of the deceased’s estate, the relationship between him and the deceased, the competing claims, particularly of Janette, as the other person who has a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].

6. [195]

   A wise and just parent will recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life. To some extent, in the present case, the relationship may have been damaged as a result of the effects of alcohol.

7. [196]

   Yet, the deceased’s statement of the reasons for making the provision that she did for Kenneth must also be remembered and given weight to the extent that it is accurate.

8. [197]

   Taking all of the matters into account, I came to the conclusion that adequate provision for Kenneth’s proper maintenance and advancement in life was not made by the Will of the deceased. His current circumstances and the significant debts that he has, taken with his medical conditions, means that some very modest provision out of the estate of the deceased should be made out of the deceased’s estate for him in lieu of the provision made for him in the Will of the deceased.

9. [198]

   The value of the estate, whilst small, is sufficient to make provision for both of the persons to whom the deceased owed some form of testamentary duty.

10. [199]

    The more difficult question then arises, namely what provision “ought to be made for Kenneth’s maintenance, education or advancement in life”, having regard to the facts known to the Court. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

11. [200]

    Having considered the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I was satisfied that in lieu of the provision made for him in the Will of the deceased, he should receive a capital sum of $52,350. This will enable him to pay off his credit card debts ($8,424), and his outstanding rates ($4,218) and will leave about $40,000, which will enable him to significantly reduce his line of credit, or his mortgage debt, whichever he considers he should best reduce.

12. [201]

    In coming to the conclusion on the quantum of the provision to be made for Kenneth, the deceased’s entitlement to testamentary freedom, and the fact that she made a detailed, and sworn, statement setting out the reasons she had for making no provision for making limited provision is, of course, important and was given significant weight in reaching my conclusions.

13. [202]

    I have earlier referred to the amount of costs that were capped at $47,650. The total of the amount of provision, taken with the amount for his costs, means that the total amount of $100,000 will be deducted from the total value of the estate ($525,685), leaving $425,685, from which Janette must pay the balance of her costs ($60,000). That will mean that she should receive, after the payment of her costs, about $365,685.

14. [203]

    The orders that were made (as amended as I had omitted to refer to the provision for Kenneth being in lieu of the provision made for him) were as follows: