Page v Hull-Moody

1. [1]

   HIS HONOUR: These proceedings involve the estate of Gay Estelle Page (the deceased) and a claim brought by one of her, now adult, children, Julie-Anne Page, for a family provision order, under Chapter 3 of the Succession Act 2006 (NSW) (the Act).

2. [2]

   The deceased died on 18 December 2017, leaving a Will dated 14 April 2016. This Court granted Probate of that Will, on 15 March 2018, to Cathy Mae Hull-Moody, another, now adult, child of the deceased, the younger sister of the Plaintiff, and to Jayde Hull-Moody, a, now adult, grandchild of the deceased, and a child of Cathy.

3. [3]

   Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

4. [4]

   By Clause 3 of her Will, the deceased, after payment of debts, funeral and testamentary expenses, left one-quarter of her estate to Cathy, one-quarter of her estate to Julie-Anne (on certain terms referred to below), one-quarter of her estate to Bianca Jade Labarte, who is Julie-Anne’s daughter, and one-quarter to be divided between Jayde and her brother, Blake Hull-Moody, in equal shares as tenants in common.

5. [5]

   (It should be noted that while the Will of the deceased referred to “Bianca Jade Labarte”, Bianca’s affidavits were sworn under the name “Bianca Jade Page”. Moreover, it appears that the surname of Bianca’s husband and children is “Labarthe”. Nothing turns on the spelling error in the Will.)

6. [6]

   In Clause 3(d) of her Will, the deceased directed that, before distributing Julie-Anne’s one-quarter share to her (or to the Public Trustee of Queensland, if it was managing her financial affairs), Cathy and Jayde should discharge any mortgage, or debt, which may be secured against Julie-Anne’s home at the time of the deceased's death.

7. [7]

   From the summary of the terms of the Will, it can be seen that the deceased, effectively, divided her estate equally between her two daughters, with one half going to one daughter and her child, and the other half going to the other daughter, and her two children.

8. [8]

   Although, for a time, the Public Trustee of Queensland was appointed as administrator for Julie-Anne’s financial matters, at the date the deceased made her Will, at the date of her death, and at all other times (including at the date of hearing), Julie‑Anne’s financial affairs had ceased to be managed by the Public Trustee. The circumstances surrounding the removal of the financial manager will be referred to later in these reasons. Also, as will be referred to later, there is a current debt, secured by mortgage on Julie-Anne’s home.

9. [9]

   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, rather than coming to a resolution of the proceedings. Whilst it may not be an important aspect of the case, if Julie-Anne’s motive in bringing the proceedings was to obtain a larger part of the estate, she has failed entirely, and she may now be subject to an order for Cathy’s and Jayde’s, as well as for her own, costs. A realistic assessment of the possible provision that might have been made for her, when compared to the costs of the proceedings, might suggest that it was not her sole motive. One had the sense that Julie-Anne considered that she had an entitlement to, rather than the deceased having an obligation to make, further provision for her.

10. [10]

    It should not be thought that this is meant as a criticism of the legal representatives of either party. For the most part, 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: Civil Procedure Act 2005 (NSW), s 60. The hearing was set down for two days and was completed within that time, even though it did not commence until approximately 11:35 a.m. on the first day because of Julie-Anne’s failure to arrive at Court. (The Court, with the agreement of the legal representatives, came to the view that even formal matters, such as dealing with objections to affidavits, should not be dealt with in her absence.)

11. [11]

    At the hearing, Mr P R Glissan of counsel appeared for Julie-Anne. Mr L J Ellison SC, with Ms C Newman of counsel, appeared for Cathy and Jayde. I am grateful to the legal representatives, particularly to counsel for Julie-Anne, for the manner in which he conducted the hearing (even though the balance of the first day of the hearing, after Julie-Anne’s arrival, was spent dealing with objections to affidavits).

Some formal matters not in dispute

1. [12]

   The Plaintiff commenced the proceedings by Summons filed on 18 December 2018. The proceedings were commenced 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.

2. [13]

   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. [14]

   Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. As a child of the deceased, Julie-Anne is an eligible person within s 57(1)(c) of the Act. The language of the subsection 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” in s 57(1)(c)).

4. [15]

   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, in the case of a child of the deceased, to whether the applicant is an eligible person.

5. [16]

   As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

6. [17]

   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 Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) 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.

7. [18]

   Initially, counsel for Julie-Anne raised the possibility that the proceeds of sale of the deceased’s car ($6,500), which were distributed to Jayde and Blake, may be able to be designated as notional estate. However, he accepted that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances: s 88 of the Act. Mr Glissan said (Tcpt, 24 February 2020, p 10(03–04)):

8. [19]

   However, neither counsel made any submissions, after that time, on the issue of notional estate. I propose to ignore the sale proceeds of the car as notional estate although it will be part of the provision that each of Jayde and Blake have received out of the estate of the deceased.

9. [20]

   The only eligible persons, about whom there is no dispute, are Julie-Anne, Cathy and their father, Lawrence Walter Page, the spouse of (albeit separated from) the deceased, at the date of her death. There was a suggestion, made by counsel for Julie-Anne, that Bianca may be an eligible person, being a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased. She has not commenced proceedings. She, also, had filed and served evidence of her financial resources and financial needs. Only Julie-Anne has made a claim.

10. [21]

    Each of the persons who is, or who may be, an eligible person (other than Julie-Anne) and both Jayde and Blake, as beneficiaries, has been served with notice of Julie-Anne’s application, and of the Court's power to disregard her or his interests, respectively, in the manner and form prescribed by the regulations or rules of court. Jayde and Blake, also, have put on evidence of her and his financial resources and financial needs.

11. [22]

    Cathy has not commenced proceedings under the Act, but she, too, has given evidence of the bases of her claim on the bounty of the deceased as one of beneficiaries named in the Will of the deceased. She has raised her financial circumstances.

12. [23]

    For reasons referred to later, Lawrence has not made a claim and it is accepted by the parties that he will not do so as he and the deceased entered into a property settlement reflected in a Financial Agreement made between them. I am prepared to disregard his interests as an eligible person.

13. [24]

    Each of Jayde, and Blake, whilst not an eligible person within the meaning of that term in s 57(1) of the Act, as a beneficiary named in the Will of the deceased, has given evidence of the bases of her, and his, claim, respectively, on the bounty of the deceased.

14. [25]

    The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though each has not made a claim: s 61(1). Each is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I shall refer to the situation in life of each of the beneficiaries later in these reasons.

15. [26]

    Cathy and Jayde, as executors, do not seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Some background facts

1. [27]

   It is next convenient to set out some facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.

2. [28]

   The deceased was born in January 1936 and she died in December 2017 aged 80 years. She married Lawrence Walter Page, who is the father of the Julie-Anne and Cathy, in July 1960, and remained married to him at the date of death, although they separated in February 2016. (There are some minor inconsistencies in the date of the marriage and of the separation, but nothing turns on these inconsistencies.)

3. [29]

   Although the deceased and Lawrence were not divorced at the date of the deceased’s death, they had entered into a Financial Agreement, made on 2 June 2016, “pursuant to s 90D [sic] of the Family Law Act 1975 (Cth)”. So far as these proceedings are concerned, Lawrence gave a family provision release (albeit not approved by the Court as no application for that approval was brought).

4. [30]

   The deceased and Lawrence owned a property at Asquith, a suburb of Sydney located on the Upper North Shore (the Asquith property), as tenants in common in equal shares. There was some evidence that the deceased and Lawrence, initially, held the Asquith property as joint tenants and that the joint tenancy that was severed in 2016. Pursuant to the Financial Agreement:

5. [31]

   Lawrence was born in October 1936, and is currently aged 83 years old. He had lived in the Asquith property since separation. For part of the time, Julie-Anne also lived in the Asquith property with him. Indeed, she has continued to do so and was staying there at the date of the hearing.

6. [32]

   In August 2018, Lawrence was taken to Hornsby Hospital. On 23 August 2018, he was transferred to Macquarie Hospital as he had been diagnosed with a heart condition. A week later, he was transferred to Mt Wilga Private Hospital, for rehabilitation, where he remained until 26 September 2018, at which time he returned to the Asquith property. On 1 January 2020, Lawrence vacated the Asquith property and was taken to Hornsby Hospital where he remained until 13 January 2020, when he was transferred to Longueville Private Hospital.

7. [33]

   It was accepted that Lawrence is unlikely to return to live at the Asquith property. Pursuant to Clause 4(b) of the Financial Agreement, the Asquith property is now to be sold and the net proceeds divided pursuant to Clause 5, which provides:

8. [34]

   Lawrence has made a Will dated 22 May 2017, a copy of which was tendered: Ex D3. The Will appoints two non-family members as executors; provides for two pecuniary legacies, one of $10,000 to the executors “to be applied … to the care of my rabbit, Gigi …”, and the other of $60,000, to Cathy, if she survives him, but if she does not, to her children; and the whole of the residue of his estate is to be divided, equally, between Julie-Anne and Cathy if she survives him and, if not, to her child or children respectively.

9. [35]

   (There is a direction to the executors, regarding the share to which Julie-Anne is entitled, which relevantly requires them to apply her share to discharge any mortgage, or debt, secured against the property in which she resides before the remainder is paid to her: Clause 6.)

10. [36]

    The parties agreed that, currently, Lawrence’s estate consists of his interest, as a tenant-in-common in equal shares, in the Asquith property (estimated to be $516,375) and cash investments of about $326,955. There was other evidence of an additional $33,000 held in a bank account: Affidavit, Cathy Mae Hull-Moody, 3 February 2020 at par 65.

11. [37]

    It was also accepted by them that Lawrence is not able to revoke the Will as he has lost capacity. The only way the Will can be changed is by an approach to the Court and the Court making another will for him: Tcpt, 24 February 2020, p 73(39–43). There was no suggestion that an application will be made by any person, seeking an order from the Court, authorising a will to be made or altered, in specific terms approved by the Court, or a will, or part of a will, to be revoked, on behalf of Lawrence as a person who lacks testamentary capacity: s 18 of the Act.

12. [38]

    Julie-Anne was born in March 1963, and is 57 years of age. Cathy was born in September 1965 and is 54 years of age. Bianca was born in December 1982, and is 37 years of age. Jayde was born in July 1993, and is 26 years of age. Blake, who is Cathy’s son, was born in June 1995, and is 24 years of age.

13. [39]

    It is clear from the evidence, that neither Cathy, nor any of the grandchildren of the deceased, supports Julie-Anne’s claim for additional provision out of the estate of the deceased. It was submitted by Cathy and Jayde that her Summons should be dismissed.

14. [40]

    In May 2010, the deceased had made an application to the Queensland Civil and Administrative Tribunal for the appointment of a guardian and the appointment of an administrator in regards to Julie-Anne. On 8 September 2010, the Tribunal ordered that the Public Trustee of Queensland be appointed as administrator for her for all financial matters until further order of the Tribunal.

15. [41]

    In May 2011, Julie-Anne brought an “[a]pplication for administration appointment or review” to the Tribunal, seeking to manage her own financial affairs. (There were other applications made in 2011 by the deceased and also by Bianca, but these are not particularly relevant.)

16. [42]

    On 4 October 2011, the Tribunal delivered Reasons for Decision. Relevantly, the Tribunal ordered that the order dated 8 September 2010, made by the Tribunal, appointing the Public Trustee of Queensland as administrator for Julie-Anne should be revoked to the extent of that appointment.

17. [43]

    The deceased spent a period of time in hospital until, in January 2016, she was discharged. For a period of about 6 months, she lived with Cathy, following which she moved into a retirement unit in The Cotswolds Village at Turramurra (the Turramurra property).

18. [44]

    Despite efforts, the Turramurra property has not been sold. The parties seemed to agree that it is uncertain when it will be able to be sold.

19. [45]

    Lawrence made two payments of $30,000 and $60,000 in June, and July, 2017, respectively, to reduce the amount due under the mortgage secured on Julie-Anne’s property: Ex P3 (Statement No 24). (I shall return to the provision made by the deceased during her lifetime for Julie-Anne.)

20. [46]

    Julie-Anne accepted that the debt secured by the mortgage could have been paid out of the provision that she would receive under the Will of the deceased. However, she explained that she would wish to leave some part of the debt ($10,000) because she “may need to do further repairs and if I keep a line of credit open, on the pension, I’m able to go to the bank and get their assistance”: Tcpt, 25 February 2020, p 103(21–28).

21. [47]

    In January 2019, Julie-Anne made a request of Westpac Banking Corporation, which Bank is the mortgagee shown on the mortgage securing a debt ($111,841) registered on the title of her real property in Queensland. The request made was “to review repayments on the grounds of hardship”. The Bank reduced the mortgage repayments, between 5 February 2019 and 5 July 2019, to $200 per month. Thereafter, between 5 August 2019 and 5 January 2020, the repayments were to be $770 per month “until further notice” provided she complied with the repayment schedule. Thus, if all but about $10,000 of the debt secured by the mortgage were repaid in accordance with the terms of the deceased’s Will, the income available to Julie-Anne would be increased: Tcpt, 25 February 2020, p 104(15–22).

The estate of the deceased

1. [48]

   On 10 December 2019, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

   1. (1)

      the assets and liabilities of the estate at the date of death;

   2. (2)

      the assets and liabilities of the estate at the date of the schedule;

   3. (3)

      the estimated costs and expenses of any property that is to be sold;

   4. (4)

      the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and

   5. (5)

      any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.

2. [49]

   I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1 in the proceedings and from the other evidence which is not the subject of dispute. (Ex JS 1 was, in part, ambiguous so what follows corresponds with the discussion with counsel at the commencement of the hearing.)

3. [50]

   In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the deceased’s estate was disclosed as having an estimated, or known, value of $1,225,000. The estate was said to consist of the deceased’s sole interest in the Turramurra property ($575,000) and the deceased’s interest, as tenant in common in equal shares, with Lawrence, in the Asquith property ($650,000). In Ex JS 1, cash from a closed bank account ($5,000), was also disclosed as an asset at the date of the deceased’s death. It follows, that, at the date of her death, the value of the deceased’s gross estate was $1,230,000. (I have omitted, and shall continue to omit, a reference to cents.)

4. [51]

   The deceased’s estate, as at 7 February 2020 (the date of Ex JS1), was said to consist of the deceased’s interest in the Turramurra property ($575,000), and the deceased’s interest in the Asquith property ($568,375), (neither of which had been sold at the date of hearing). As at 3 February 2020, no offers to purchase the Turramurra property had been received. The parties agreed that the gross value of the estate, at the date of hearing, was estimated to be $1,143,375.

5. [52]

   Cathy, as one of the deceased’s executors and one of Lawrence’s Attorneys, has given Julie notice that she intends to sell the Asquith property as soon as she is able. For her part, Julie-Anne agreed that she would vacate possession of the Asquith property by 28 February 2020. For some time, she has known that she will have to vacate the Asquith property. She agreed that when she left, she would leave all of Lawrence’s furniture and possessions there; she would properly clean the property, including the fridge; that she would leave Lawrence’s family photos and the photos of himself and other people; and that she would take all of her possessions with her: Tcpt, 25 February 2020, p 87(46) – p 88(33).

6. [53]

   However, in the Defendants’ Additional Submissions, at par 11 (the purpose of which is discussed further below), senior counsel for Cathy and Jayde submitted:

7. [54]

   Whether or not Julie-Anne had vacated the Asquith property by 28 February 2020, as she had assured the Court, is an aspect of her conduct that will be relevant to her claim.

8. [55]

   On 9 April 2020, senior counsel for Cathy and Jayde provided further Additional Submissions in Reply. So far as is relevant to this issue, senior counsel submitted at pars 10–11:

9. [56]

   I had not, prior to the receipt of the Defendants’ Additional Submissions in Reply, granted leave to Cathy and Jayde to file further evidence in the proceedings. Indeed, counsel for Julie-Anne, by his reply submissions, opposed any application by Cathy and Jayde to reopen the evidence. He further provided specific objection to the proposed Affidavit in the following terms at par 9:

10. [57]

    In view of no application having been made to the Court, by notice of motion, or otherwise, other than in written Additional Submissions, I do not propose to grant leave to rely upon the affidavit and I have ignored it. I have not taken into account the fact that Julie-Anne may have continued to occupy the Asquith property after 28 February 2020 in the determination of her claim. However, her occupation of the Asquith property, rent free, as at, and prior to, the date of the hearing is a relevant matter that I have taken into account.

11. [58]

    There was no dispute that there were liabilities of the estate at the date of hearing, comprising the levies due on the Turramurra property ($28,575), an amount to be reimbursed to Cathy for electrical works carried out on the Turramurra property ($831), and also the legal costs and disbursements of administration of the deceased’s estate ($15,000). It was also agreed that the costs and expenses of sale of the Turramurra property were estimated to be $16,875 and that one-half of the costs and expenses of sale of the Asquith property were estimated to be $15,250. It follows that the total of the liabilities and the estimated costs and expenses of sale of the real estate, is $76,531.

12. [59]

    Thus, the net value of the estate of the deceased, at the date of hearing, without the deduction of any costs of the proceedings, is estimated to be $1,066,844.

13. [60]

    As will be read, the total of the costs of the parties is estimated to be $150,000. It follows, if the estimates prove accurate, that the value of the estate out of which a family provision order could be made for Julie-Anne will be about $916,844. Each quarter share provided for in the Will of the deceased would then be $229,211.

14. [61]

    It is likely that the deceased’s share of the proceeds of sale of the two properties will not be available, for distribution, to the beneficiaries named in the deceased’s Will, until completion of the respective sales, and completion of administration of the deceased’s estate.

The Costs of the Proceedings

1. [62]

   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. [63]

   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. [64]

   As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330; [2016] NSWCA 222 at [54]:

4. [65]

   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 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. 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 small value.

5. [66]

   Julie-Anne’s costs and disbursements, calculated on the ordinary basis, were estimated to be $60,000: Ex JS1.

6. [67]

   On the first day of the hearing, senior counsel for Cathy and Jayde set out an undertaking that they had given to the former solicitors who had been acting for Julie-Anne. Before it was tendered, a copy of the inter partes undertaking, in writing, was provided to her and her counsel. The undertaking, a copy of which was provided to the Court (Ex D2), was in the following terms:

7. [68]

   Ms J M Napoli, the solicitor with the carriage of the matter on behalf of Cathy and Jayde, in an affidavit sworn on 3 February 2020, disclosed that their costs and disbursements, up to and including the conclusion of the proceedings, were $90,000 (of which $40,000 were fees of counsel), and which estimate was inclusive of GST and calculated on the basis of a two day hearing. No moneys have been paid on account of those costs and disbursements.

8. [69]

   At the commencement of the hearing, the parties agreed that the Court could deal with how the burden of costs should be borne as part of these reasons. They agreed, also, that there were no documents that would, or might, be relevant to this issue and that what might be regarded as the usual order for costs could be made, whatever the result of the proceedings.

9. [70]

   The parties were encouraged to agree on the costs of each, calculated on the ordinary basis, and also, so far as Cathy and Jayde were concerned, their costs, calculated on the indemnity basis. By doing so, the court could make an order, before costs were referred for assessment, to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs: Civil Procedure Act, s 98(4)(c). This would avoid any further delay in the administration of the estate.

10. [71]

    On the second day of the hearing, the Court was informed that the parties had, in fact, agreed that the costs of Julie-Anne, calculated on the ordinary basis, were $60,000 (including GST); that Cathy’s and Jayde’s costs, calculated on the indemnity basis, were $90,000 (including GST); and that Cathy’s and Jayde’s costs, calculated on the ordinary basis, were $82,500 (including GST).

11. [72]

    The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that all of the costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]–[24].

12. [73]

    Furthermore, s 60 of the Civil Procedure Act, which applies equally to a claim for a family provision order, refers to “the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”.

13. [74]

    As Meagher JA (Macfarlan JA and Simpson AJA agreeing) in Squire v Squire [2019] NSWCA 90 said of the disproportionate costs in that case at [40]:

14. [75]

    The problem in this is case is exacerbated even further as, at the conclusion of the second day of the hearing, the following exchange occurred between counsel for Julie-Anne and the Court (Tcpt, 25 February 2020, p 166(03–21)):

15. [76]

    It would certainly be a “wholly unsatisfactory outcome”, to use the words of Meagher JA, if the legal costs that were incurred in the proceedings proved to be three times the amount of provision to be ordered.

16. [77]

    Yet, in the instant case, the problem is much greater. Had there been no claim and no hearing, Julie-Anne would have received approximately $266,711 out of the estate (being about one-quarter of the net value of the estate at the date of hearing). In circumstances where she has proceeded with her claim, and, for the moment, assuming that she were successful and an order made for costs to be paid out of the estate, she would receive $229,211 out of the estate and an additional $50,000 pursuant to an order under the Act. In such circumstances, even if she received $50,000, by way of additional provision, she would only be $12,500 better off than she would have been if no proceedings were commenced.

17. [78]

    That would be a simply astonishing outcome. It is rendered even more astonishing when one considers the situation where Julie-Anne is unsuccessful and is ordered to pay Cathy and Jayde’s costs on an ordinary basis ($82,500) and is liable to pay her own costs ($60,000 on the ordinary basis). Julie-Anne’s share of the estate in those circumstances is reduced to $86,711.

18. [79]

    The effect of the disproportionate amount of legal costs incurred in these proceedings was a matter of significant concern to me, and one to which I will return below.

The rejection of the affidavit of Ms Meadows

1. [80]

   On or about 24 January 2020, Cathy and Jayde filed, and served, an affidavit of Ms M Meadows, a person with whom Julie-Anne had come in contact. Counsel for Julie-Anne objected to the affidavit being read as it had not been served in accordance with the Court’s earlier directions, and, in any event, had not been served not later than a reasonable time before the occasion for using it arose: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 10.2(1). He submitted that he had not had a reasonable opportunity to take instructions, or to prepare any affidavit in response. He also submitted that the contents of the affidavit were not relevant to the issues to be determined in the case.

2. [81]

   Without going into details, the affidavit related to the conduct of Julie-Anne towards Ms Meadows.

3. [82]

   I was not persuaded by counsel’s reliance on UCPR r 10.2, although it was a matter upon which Julie-Anne was entitled to rely. In my view, and in the circumstances of this case, one month was a reasonable time before the occasion for using the affidavit had arisen. As to the failure to comply with directions, arguably it had been filed in accordance with the directions, but served one day late.

4. [83]

   However, leave to read the affidavit was not granted because it raised issues of Julie-Anne’s conduct towards Ms Meadows, which conduct, it seemed to me, was not relevant to the issues that the Court needed to determine. While I accept that the character and conduct of the applicant, before and after the date of the death of the deceased person is one of the matters to which the Court may have regard for the purpose of determining, relevantly, whether to make a family provision order and the nature of any such order (s 60(2)(m) of the Act), in this case, the conduct complained of, would not assist in determining those two issues.

5. [84]

   In addition, to allow the affidavit to be read, would have required Julie-Anne to respond to it and would have necessitated her, and Ms Meadows, being cross-examined on what each had averred respectively. Cross-examination, bearing in mind the nature of her evidence, was likely to have been of some length, with the consequence that it would have unduly prolonged the hearing.

6. [85]

   In all the circumstances, and in accordance with the overriding purpose to which the Court must give effect in s 56 of the Civil Procedure Act, the affidavit was not permitted to be read.

Events prior to the hearing

1. [86]

   The matter was listed in the Family Provision List (as it was then called), for the first time, on 15 February 2019. Directions were made on a number of occasions thereafter, until, on 17 May 2019, the matter was listed for a private mediation which was to take place on 29 May 2019. On each of the occasions that the matter was before me, Julie-Anne had appeared by legal representative.

2. [87]

   On 7 June 2019, Julie-Anne appeared in person and the matter was stood over until 12 July 2019. On the next two occasions, when the matter was listed for directions, Julie-Anne did not appear personally, or by a legal representative.

3. [88]

   On 6 September 2019, whilst I was on leave, the matter came before Kunc J, in order to deal with a notice of motion, filed on 14 August 2019, by Cathy and Jayde, in which they sought dismissal of these proceedings for want of due despatch. When the matter was called, there was no appearance by Julie-Anne, and as there was evidence of service of the notice of motion, his Honour proceeded to deal with it. He made orders as sought in the notice of motion.

4. [89]

   Subsequently, at 11:55 a.m., Julie-Anne appeared. It is not necessary to rehearse what she told his Honour on that date, but, after further discussion, his Honour stayed the orders that he had made until 27 September 2019 or further order. His Honour also ordered that the matter be listed for Court-annexed mediation at 2:00 p.m. on 25 September 2019.

5. [90]

   The matter was again listed before Kunc J on 13 September 2019, on which occasion Julie-Anne appeared, albeit late, in person. His Honour stood the matter over until 27 September 2019.

6. [91]

   The mediation was listed before Senior Deputy Registrar Bellach. The proceedings did not settle.

7. [92]

   On 27 September 2019, Kunc J made directions for further evidence and stood the proceedings over to his List on 30 October 2019. On that date, Julie-Anne appeared, as did senior counsel for Cathy and Jayde, and his Honour vacated the order dismissing the proceedings and dismissed the notice of motion. The matter was then referred immediately to my List. When the matter came before me, it was set down for hearing.

8. [93]

   During the course of the hearing, without expressing any final view of the result, the Court raised with counsel for Julie-Anne, the risks that she faced if her Summons was, ultimately, dismissed and the usual costs orders were made. The Court was informed that he believed that she had understood the risks: Tcpt, 25 February 2020, p 80(27) – p 81(15).

9. [94]

   It is clear, from the above history, that every effort was made by the Court to enable the parties to resolve the proceedings.

Events after the hearing

1. [95]

   Following the completion of the hearing, I formed the view that because counsel for Julie-Anne had only been acting for her from 10 December 2019, he may not have known of the chronology of events that had occurred before that date as set out above.

2. [96]

   I also formed the view that I should raise a matter that had not been the subject of submissions, namely that it was not until early January 2020 that the Asquith property was able to be sold, as Lawrence only then had vacated that property.

3. [97]

   For those reasons, I listed the matter again on 26 February 2020, and both senior counsel and counsel appeared. Subsequently, I caused a copy of the transcript of the matters raised during the mention on that day to be provided to each of them. In my view, it was necessary to take this unusual step because I considered that each party should be given the opportunity to make further submissions on the matters that I had raised and because the time available for submissions had been extremely limited.

4. [98]

   I allowed further written submissions on the basis that they would be limited to the two aspects of the matter I had raised with counsel, first, the impact of the inability to sell the Asquith property on the question of the costs of the proceedings, and second, the consequences that would follow were the Summons dismissed and Julie-Anne ordered to pay the agreed quantum of costs namely that her provision under the Will of the deceased would be eroded by her liability to pay the costs of the proceedings.

5. [99]

   In accordance with the directions then made, counsel for both parties delivered written submissions on 13 March 2020.

6. [100]

   Senior counsel for Cathy and Jayde noted that the Defendants had offered an inter partes undertaking to Julie-Anne on 28 February 2020 — an undertaking ostensibly given in response to the concerns I raised with counsel on 26 February — which was in the following terms:

7. [101]

   To an extent, this would improve Julie-Anne’s financial position (at least temporarily) in the event that her claim is wholly unsuccessful. As senior counsel for Cathy and Jayde observed, the effect of the undertaking would be that “… the plaintiff will have more than sufficient to fulfil her intent to reduce her residential mortgage”.

8. [102]

   Counsel for Julie-Anne made an attempt to withdraw the agreement within Ex JS1 to the value of the Turramurra property. In support of this submission, he annexed a copy of an email sent by him to the solicitors for Cathy and Jayde. It appears from that email that Cathy and Jayde had recently received an appraisal of the Turramurra property that valued it at $550,000. (As is discussed further below, senior counsel for Cathy and Jayde opposed the placing of this email before the Court: Defendants’ Additional Submissions in Reply at par 3.)

9. [103]

   (It will be recalled that Ex JS1 reflected the agreement of the parties (at least at that stage) that the value of the Turramurra property was $575,000. The annexed email from counsel for Julie-Anne proposed that the parties agree to a decrease in the value of the property.)

10. [104]

    There is no evidence that any agreement was reached prior to the delivery of submissions and no attempt has been made, on behalf of Julie-Anne, to re-open her case in this regard. Nor was there any application seeking leave to withdraw what was, in effect, an admission as to the value of the Turramurra property.

11. [105]

    At the time when the Court is considering Julie-Anne’s application (the date of the hearing), the parties had agreed to the value of the Turramurra property. It was inappropriate, and also beyond the scope of the envisaged supplementary submissions, for counsel for Julie-Anne to attempt, after the hearing and without the consent of the Defendants, to withdraw an admission in submissions.

12. [106]

    Furthermore, Julie-Anne receives a percentage share of the deceased’s residuary estate, with the result that even if the value of the Turramurra property has decreased, the other beneficiaries will receive a reduction in the quantum of the provision made by the deceased for each of them.

13. [107]

    In the circumstances, I propose to ignore the assertion made in the submissions and continue to treat the value of the Turramurra property as $575,000, as agreed by the parties at the hearing.

14. [108]

    Additionally, counsel for Julie-Anne, by his submissions, attempted to seek leave for Julie-Anne to withdraw from her agreement as to costs in the event that she were unsuccessful. It had been agreed that, were Julie-Anne unsuccessful, the usual costs order could be made: see [69] above. Counsel’s submission was on the basis that, at the time of the commencement of the proceedings, when the Asquith property was unable to be sold “her claim for additional provision was then extremely strong and likely to succeed”: Plaintiff’s Supplementary Submissions at par 7. He further submitted that, now that the Asquith property could be sold:

15. [109]

    He also submitted, at par 10, that:

16. [110]

    Finally, he concluded, at par 12, that:

17. [111]

    Senior counsel for Cathy and Jayde in his Additional Submissions in Reply opposed any attempt by counsel for Julie-Anne to set aside the agreement regarding costs: Defendants’ Additional Submissions in Reply at par 2.

18. [112]

    Senior counsel for Cathy and Jayde also made additional submissions, essentially reaffirming the submissions that he made at the hearing regarding Julie-Anne’s claim for provision and the question of the burden of any provision to be made: Defendants’ Additional Submissions in Reply at pars 4–6.

19. [113]

    He also submitted that the agreement reached between the parties at the hearing as to costs should stand. The only circumstance in which senior counsel for Cathy and Jayde considered that the “point may be arguable” was if Julie-Anne was to consent to a dismissal of her claim: Defendants’ Additional Submissions in Reply at par 8. As no such consent was forthcoming, it is not necessary for me to engage with this contention.

20. [114]

    Senior counsel for Cathy and Jayde also took issue with counsel for Julie-Anne’s submission that Lawrence’s vacation of the Asquith property effectively doubled the size of the deceased’s estate: Defendants’ Additional Submissions in Reply at par 9.

21. [115]

    Counsel for Julie-Anne also filed Reply Submissions on 9 April 2020. For the most part, his submissions essentially reasserted the submissions made in his earlier supplementary submissions. To the extent that it was necessary to do so, he made an application to reopen the evidence in order, presumably, to tender the email between the solicitors for Cathy and Jayde and himself: Plaintiff’s Submissions in Reply to Defendants’ Additional Submissions in Reply at par 5.

22. [116]

    As will be apparent from the length of the passages above, the supplementary and reply submissions provided by the parties went far beyond what I had envisaged. The submissions, particularly those of counsel for Julie-Anne, raised a number of new issues that ought properly to have been raised by way of an application to re-open supported by a notice of motion and affidavit in support.

23. [117]

    In allowing counsel and senior counsel the opportunity to provide further written submissions, I had envisaged that the legal representatives would consider certain issues that had been troubling me and that they would assist the Court in the resolution of those issues. Instead, the parties took the opportunity to engage in disputes about separate, and distinct, issues at a cost to the parties.

24. [118]

    As stated above, there has already been a completely disproportionate amount of costs spent in this matter. I do not propose to allow any further costs to be incurred by an additional day, or part of a day, of hearing.

25. [119]

    As I am considering making an order that neither of the legal representatives should be permitted costs for the supplementary submissions, which as I have written, were, virtually of no assistance, I shall relist the matter for the determination of the costs of the written submissions and to allow an argument on costs.

Claim for a Family Provision Order — The Statutory Scheme

1. [120]

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

2. [121]

   Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that:

3. [122]

   Thus, to justify an order for provision under the Act, the Court, relevantly, must be 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).

4. [123]

   Importantly, the question of the inadequacy of provision is to be assessed at 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 her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). 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.

5. [124]

   Relevantly, 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. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance 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 or advancement in life of the applicant.

6. [125]

   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: Singer v Berghouse (1994) 181 CLR 201 at 210–211; [1994] HCA 40 at [20]–[24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434–435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J).

7. [126]

   “Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), 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. [127]

   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(1) Australian Journal of Legal History 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 at 145 [72], 145–146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.

9. [128]

   In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing), 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:

10. [129]

    In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 at [18], Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502:

11. [130]

    In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:

12. [131]

    The word “maintenance”, and the phrase “advancement in life”, are not defined in the Act.

13. [132]

    In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented

14. [133]

    In Alexander v Jansson (2010) 6 ASTLR 432 at 440 [18]; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]:

15. [134]

    In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at [9], Dixon CJ and Williams J wrote, at 575:

16. [135]

    In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote:

17. [136]

    White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283–284 [123]; [2013] NSWSC 522, wrote, at [123]:

18. [137]

    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 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of “needs” which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J).

19. [138]

    As was written in Devereaux-Warnes v Hall (No 3), at [81]–[84], Buss JA (as his Honour then was) wrote:

20. [139]

    However, 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 will also 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.

21. [140]

    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.

22. [141]

    Of course, “need” is 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 (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 at 1825 [54]; [2008] UKHL 52 at [54]:

23. [142]

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

24. [143]

    However, no narrow view of what is encompassed by the concept of “need” is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 at 8, Bryson J (as his Honour then was) commented that “[i]t does not seem possible to give a complete or exhaustive statement of the concept”.

25. [144]

    Yet, as Basten JA wrote in Chan v Chan, at [22]:

26. [145]

    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. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

27. [146]

    Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175 at 194 [84]; [2015] NSWCA 297, at [84], that:

28. [147]

    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.

29. [148]

    Section 60 of the Act provides:

30. [149]

    It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 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 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.

31. [150]

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

32. [151]

    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. There is no mandatory command to take into account any of the matters enumerated. 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. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors.

33. [152]

    Furthermore, 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.

34. [153]

    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).

35. [154]

    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.

36. [155]

    The Court should, and does, give considerable weight to the deceased’s wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will: Slack v Rogan; Palffy v Rogan at [127] (White J).

37. [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:

38. [157]

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

39. [158]

    As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]:

40. [159]

    This passage confirmed that the Act is to be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687 at 708 [97]; [2019] NSWCA 114 at [97]:

Some Additional Principles

1. [160]

   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. [161]

   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 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

3. [162]

   Bryson J noted in Gorton v Parks, 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. [163]

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

5. [164]

   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 the Court’s own notions of fairness. His Honour added:

6. [165]

   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. [166]

   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 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

8. [167]

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

9. [168]

   The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202–203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).

10. [169]

    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) at 7.

11. [170]

    In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:

12. [171]

    However, none of the other beneficiaries named in the deceased’s Will have to prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will.

13. [172]

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

14. [173]

    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 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.

15. [174]

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

16. [175]

    Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J (as his Honour then was) in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is:

Claim by an adult child

1. [176]

   I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out:

2. [177]

   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] (Basten JA); 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] (Sackville AJA).

Qualifications on “Principles”

1. [178]

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

2. [179]

   As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), 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. [180]

   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. [181]

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

5. [182]

   The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]–[19] (Basten JA), [66]–[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.

6. [183]

   But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]–[108]:

7. [184]

   (In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that “[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave”: Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)

8. [185]

   In addition, the formulation of principles, whilst not intended to “constitute a fetter upon the discretion not intended by the legislature”, may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

Additional Facts

1. [186]

   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. [187]

   Julie-Anne is one of two children of the deceased. The relationship was sometimes volatile between them. In regard to Julie-Anne’s conduct, I shall, later in these reasons, refer to her medical condition, which may, in part, explain some of her conduct.

2. [188]

   (At times in her evidence, Julie-Anne was critical of the deceased. For her part, Cathy rejected those criticisms. However, nothing turns on this conflict. Having read the admissible evidence given by each, and seen each give her evidence, I tend to the view that Cathy’s description of the deceased is likely to be the more accurate.)

3. [189]

   There is evidence that Julie-Anne has used drugs and alcohol, although she states that she did so as it “provided a temporary relief [from the] constant pain” and that she has not used drugs or alcohol “for the past 8 years”.

4. [190]

   Julie-Anne gave evidence of Bianca telling her that the deceased wished to “make peace” before she died with Julie-Anne. Julie-Anne says that she “made a few telephone calls to [the deceased] to her mobile. I recall these calls were warm”.

5. [191]

   Overall, I am satisfied that the relationship between them was reasonably close, although I accept Cathy’s evidence that in the last two years of the deceased’s life, when the deceased was unwell, Julie-Anne contacted her only once: Tcpt, 25 February 2020, p 143(04–09).

6. [192]

   As Sackville AJA noted in Foley v Ellis at [102]:

7. [193]

   Some time was spent on the issue of the relationship between the deceased and Julie-Anne, but, in my view, ultimately, nothing turns on the nature of the relationship, because in her Will, the deceased treated her two daughters the same way. Cathy described the deceased as “a very fair mother”, who “treated us all the same”: Tcpt, 25 February 2020, p 143(04–09).

8. [194]

   The deceased clearly evinced an intention to effectively divide her estate four ways, so that her two children, and the child, or children, of each, each received one quarter.

(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. [195]

   Julie-Anne asserted that the deceased “owed me the obligation of a mother to her daughter”. I have dealt with the general principles on this topic.

2. [196]

   The deceased did not have the same obligation to her grandchildren, although it is clear that her relationship with each of them was close, loving and supportive.

(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. [197]

   As discussed earlier in these reasons, the value of the estate out of which an order could be made, taking into account the costs of the proceedings, will be in the order of $916,844. It is an estate of reasonable value.

(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. [198]

   Julie-Anne receives a disability pension of $933 per fortnight. She says that she receives no other income. She estimates her fortnightly expenditure at $799, which suggests that she has surplus income of about $134 per fortnight.

2. [199]

   She says, and I accept, that she has no capacity for employment.

3. [200]

   Julie-Anne has assets, including her property at Tewantin, Queensland ($495,000), two cars ($2,500 and $1,000), a small amount of cash ($236) and furniture, household and personal effects ($3,000). Of course, but for these proceedings, she would also have had a one-quarter share of the value of the deceased’s estate, which if the estimates prove accurate, and if there had been no costs of these proceedings, would have had an estimated value of about $266,700.

4. [201]

   The Tewantin property is described by a real estate agent who was retained to provide a valuation as providing “challenges from a marketing perspective”. There is, apparently, a significant “amount and volume of ‘stuff’ in and around the home”. However, the home “appears to be in good overall condition”. Some work, however, is required. (Tewantin is a rural town in the Shire of Noosa, Queensland.)

5. [202]

   In addition, her financial resources include her interest as a beneficiary in Lawrence’s estate. In Hall v Hall (2016) 257 CLR 490 at 506–507 [54]–[55]; [2016] HCA 23, French CJ, Gageler, Keane and Nettle JJ held, at [54]–[55] (albeit in the context of family law) that:

6. [203]

   I refer to the benefits that Julie-Anne is likely to receive from Lawrence’s estate as a financial resource because it is accepted that Lawrence cannot change his Will. Of course, it is not known when any entitlement under his Will may crystallise.

7. [204]

   Julie-Anne has liabilities, including the amount secured by mortgage over the Tewantin property ($111,841 as at 6 January 2020), outstanding council rates ($4,153), outstanding water rates ($2,199), what are described as “clean-up costs” ($5,510), outstanding speeding and parking fines ($2,300) and a debt due to Ann Campbell ($29,099). These liabilities total $155,104.

8. [205]

   Julie-Anne states that her “needs” include funds to purchase spectacles ($250), an amount to pay the debt secured by mortgage ($111,841), an amount to meet her current liabilities ($155,104, an amount that includes the mortgage debt), an amount to carry out repairs to the Tewantin property ($77,828) an amount for dental treatment ($54,000), a lump sum to pay for private health insurance (at $289 per month for the remainder of her life) and “a further lump sum for future contingencies” (submitted to be about $30,000). The total of these claimed “needs” is estimated to be $412,662.

9. [206]

   Cathy gave evidence, in one of her affidavits sworn 3 February 2020, of her financial and material circumstances. She was cross-examined on a range of matters including her, and her husband’s, financial circumstances. In the course of cross-examination, counsel for Julie-Anne showed her, and subsequently tendered, a number of documents. Upon my inquiry as to the relevance of such cross-examination, counsel submitted that it was relevant to the issue of where the burden of any provision to be made for Julie-Anne should lie: Tcpt, 25 February 2020, p 148(22–41). The submission made was that the burden of any family provision order should be borne substantially, if not wholly, by Cathy because all of the grandchildren beneficiaries are not as materially well off as she is.

10. [207]

    Cathy and her husband currently reside in a property they own in North Turramurra. Their joint weekly income is $3,100 (gross) including superannuation. It would appear that, at the present time, most of that income has been generated by Cathy’s husband in the course of operating his business. Cathy deposed that while she ordinarily works full time with her husband in the business, she has been unable to do so of late. She was asked questions about income that she earned from her book-keeping company, but it was not suggested that her evidence was inaccurate.

11. [208]

    The property that Cathy and her husband own in North Turramurra has a value of $1,650,000, but is subject to a mortgage debt of $294,000. They own an investment property in Ettalong, which has a value of $625,000, but which is subject to a mortgage debt of $481,153, they have a joint superannuation fund ($829,000). The value of her husband’s business was not disclosed, and Cathy was unable to provide a precise value.

12. [209]

    It was also revealed, in cross-examination, that Cathy and her husband, relatively recently, had purchased another investment property in Woy Woy. Although Cathy was unable to provide a precise value of the Woy Woy property, she accepted that the purchase price was about $360,000: Tcpt, 25 February 2020, p 147(16–39). It was unclear from the cross-examination whether Cathy and her husband had taken out additional liabilities in order to finance the purchase of the Woy Woy property.

13. [210]

    In addition to the mortgage liabilities on the properties, Cathy also disclosed an equity loan taken out against the North Turramurra property ($757,536).

14. [211]

    Cathy and her husband’s annual expenditure (including mortgage repayments) is approximately $105,560.

15. [212]

    Bianca made two affidavits, in one of which she disclosed her financial resources and needs. She was not required for cross-examination.

16. [213]

    Bianca is 37 years old and currently resides in Alkimos, a suburb of Perth, Western Australia, along with her husband and their three children. Currently, she is studying Pilates at The Pilates Klinic in Joondalup, in Western Australia, and additionally volunteers there one day per week. She does not currently earn an income, however her husband earns approximately $2,300 net per week.

17. [214]

    Bianca lists, as one of her assets, the family home in Alkimos ($446,364) albeit subject to a mortgage ($364,371). It is unclear whether she solely owns that property, her husband solely owns it, or they own it jointly. She also discloses that she owns a car ($38,000 with $28,000 owing), a motor bike ($6,000), a “Reformer Pilate’s [sic] bed” ($6,000), house contents ($20,000), monies in a bank account ($3,377), a savings account ($1,100), and has superannuation ($6,000). She also disclosed her husband’s superannuation ($60,000).

18. [215]

    Bianca does not separately state her liabilities, but it is clear that there is at least the debt secured by the mortgage over the family home, and the amount owing on the car.

19. [216]

    The annual expenditure of Bianca’s family as a whole amounts to approximately $118,000.

20. [217]

    Jayde gave evidence of her financial resources and needs. She was not required for cross-examination. She is 26 years old and currently resides in rental accommodation in Wollstonecraft, a suburb of Sydney, with one housemate. She is employed as a Merchandise Assistant at a Petbarn store. She receives an hourly rate of $24.50 and deposed that she may work between 38 and 45 hours per week. If one assumes that Jayde works 40 hours per week, her annual income would be in the order of $51,250 gross. Jayde’s annual expenditure is approximately $44,000 although it is not clear whether it allows for income tax. If it does not, then it is unlikely that her income exceeds her expenditure.

21. [218]

    Jayde owns a car (purchased for $12,250) and has approximately $469 in her bank account. She also has monies in a superannuation account totalling about $27,498. It is doubtful, bearing in mind her age, that her superannuation is immediately accessible.

22. [219]

    Jayde took out a personal loan ($8,159) to finance studies in an Advanced Diploma of Business with Statement of Attainment in Fashion Design Industry Practice. At the date of the swearing of her affidavit, Jayde had ceased these studies and was not in a position to recommence them. Additionally, Jayde has monies owing on a credit card ($4,476).

23. [220]

    Jayde hopes to use the share to which she is entitled to pay off her liabilities and, in the future, purchase an investment property with Cathy and Blake.

24. [221]

    Blake gave evidence of his financial resources and needs. He, like Jayde, was not required for cross-examination. He is 24 years old and resides in rented accommodation, in Tempe, a suburb of Sydney, with three housemates.

25. [222]

    Blake is currently employed on a casual basis in the entertainment industry. His average weekly income (after tax) is $650. Additionally, he is attempting to start his own business as a lighting technician. It does not appear that this business, at least at the time of the swearing of his affidavit, was generating any significant income. He gave evidence that he would like to make several purchases for his business, including a computer and a van. Further, he would like to travel and purchase a property but does not currently have the financial capacity to do either.

26. [223]

    Blake estimates that his annual expenditure is approximately $28,150. However, he expects that his weekly rent will increase by about $60–$80 in the near future.

27. [224]

    Blake’s assets are limited to shares ($4,000) and superannuation ($11,526). It is doubtful, bearing in mind his age, that his superannuation is immediately accessible.

28. [225]

    Blake has a HECS debt of $48,000 but has not yet reached the income threshold for repayments to be made.

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

1. [226]

   Julie-Anne is not cohabiting with any other person. For a short time, she lived in the Asquith property, with Lawrence, until his hospitalisation in January 2020.

(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. [227]

   Julie-Anne sets out details of her medical condition. She says “I suffer from bipolar disorder, general anxiety disorder, attention deficit hyperactivity disorder [and] post-traumatic stress disorder”. She also admits to “a collecting-clutter problem”. Other evidence reveals that she has “had long term involvement with mental health services, since childhood”.

2. [228]

   Many of the medical reports relied upon were from 2010 or 2011: Ex P1. The most recent report is one dated 24 February 2020, from Dr John Smart, who opines that she “has attended this practice intermittently since her childhood … suffers from longstanding anxiety and is having panic attacks …”: Ex P2.

3. [229]

   Another report, dated 10 March 2019, from Dr D A Kirkman, a general practitioner, confirms the diagnosis of Adult Attention Deficit Hyperactivity Disorder “which she has had since birth. This is a life-long psychiatric condition which will require Julie-Anne to have life-long supervision by treating physicians and regular supply of medication …”.

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

1. [230]

   Julie-Anne is 57 years old.

(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. [231]

   Julie-Anne gave evidence about the transfer by her to the deceased and Lawrence, in November 2002, a part of the Asquith property. A copy of the Transfer, dated 15 November 2002, discloses a consideration of $200,000. There would appear to be no dispute that at least $134,000 was paid into Julie-Anne’s account on 15 November 2002. There is other evidence of about $180,000 of the consideration being paid (albeit this included amounts other than cash payments to Julie-Anne’s account).

2. [232]

   Cathy gave evidence about the subdivision of Julie-Anne’s property and that the deceased and Lawrence “saw it as a way to maximise the value” for Julie-Anne’s benefit.

3. [233]

   Subject to one matter, I am satisfied that Julie-Anne did not contribute, in any material way, to the estate of the deceased, financially or otherwise. I am also satisfied that she did not contribute, in any meaningful way to the welfare of the deceased. She states, however, that she “gave up the prospect of a continued career with Budget Rent-a- car [sic] to return home to help care for my father, who had been diagnosed with cancer, at my mother’s request”.

4. [234]

   I am satisfied that Julie-Anne has provided some assistance in caring for Lawrence, although it is fair to say that her involvement in that care has been relatively recent. Cathy, also, has assisted Lawrence.

5. [235]

   It is clear that Cathy played a far greater role, and in the welfare of the deceased, in the deceased’s life than did Julie-Anne.

(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. [236]

   Julie-Anne acknowledges in par 105 of her affidavit affirmed on 9 February 2019, that between 1982 and 2015, she received provision from the deceased, which she estimates to be $124,000.

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

1. [237]

   The deceased had made a Will dated 18 December 2013. In that Will, she left the whole of her estate to Lawrence if he survived her by 30 days. (In the event that he did not, the terms of the Will were the same as the deceased’s last Will in relation to the distribution of her estate.) There is no evidence of any prior Will.

2. [238]

   As has been discussed earlier in these reasons, the deceased did make provision, in her Will, for Julie-Anne. She says that the deceased said to her:

3. [239]

   I have referred to the 2013 Will of the deceased.

4. [240]

   It is difficult to accept these assertions of conversations with the deceased when one reads the different Wills made by the deceased, the contents of which provide a much clearer view of the deceased’s long held testamentary intentions.

(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. [241]

   Julie-Anne was not being maintained by the deceased before her death.

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

1. [242]

   There is no other person liable to support the Plaintiff. However, she is entitled to, and does, receive the disability pension.

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

1. [243]

   The details of Julie-Anne’s conduct, and the nature and quality of her relationship with the deceased, have been discussed earlier in these reasons.

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

1. [244]

   There was no criticism of any of the other beneficiaries, or of the nature and quality of her, or his, relationship, respectively, with, and behaviour towards, the deceased. It is not necessary to discuss, in detail, the character and conduct of the other beneficiaries as each is the sole chosen object of the deceased’s bounty.

2. [245]

   Julie-Anne described the deceased’s relationship with Bianca as “very close” and says that the relationship was important to each of them, with the deceased providing “wonderful support for Bianca”. Cathy agrees and states that the deceased “helped Bianca financially until [the deceased’s] death”.

3. [246]

   It is clear that each of Cathy, Bianca, Jayde and Blake had a close and loving relationship with the deceased.

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

1. [247]

   This 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. [248]

   In her affidavit in reply, affirmed on 25 October 2019, Julie-Anne lists further provision made for her in 2016 and 2017, totalling $109,795. That provision was made, principally, by Lawrence. (I have referred to $90,000 of this amount paid by Lawrence in June and July 2017.)

Determination

1. [249]

   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 Julie-Anne, has not been made by the Will of the deceased.

2. [250]

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

3. [251]

   When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased, and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19–20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

4. [252]

   Having considered the matters I am required to consider, I have come to the view that Julie-Anne has failed to establish that the deceased’s Will did not make adequate provision for her proper maintenance, education, or advancement in life. 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. Furthermore, as I must, I have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testatrix is entitled to respect: Slack v Rogan; Palffy v Rogan at [127] (White J), approved in Sgro v Thompson at [83]–[87] (White JA, McColl and Payne JJA agreeing). As stated above, the deceased’s decisions reflected in her Will should not merely have a prima facie effect, the real dispositive power being vested in the Court.

5. [253]

   Provision was made for Julie-Anne in the Will of the deceased meaning that this is not a case where a child of the deceased has been entirely excluded from participation in a parent’s estate. The provision that was made is the same provision as the deceased made for Cathy, her other child. The deceased also made provision for her grandchildren as set out above, with each of whom she had a close relationship. In Cathy’s case, in particular, the claim upon the deceased’s bounty was greater because of the nature of their relationship and Cathy’s contribution to the deceased’s welfare. I have earlier mentioned the relationship of each of the grandchildren with the deceased. Accordingly, this is also not a case in which the deceased discriminated against the Plaintiff by reason of their relationship, or otherwise.

6. [254]

   The provision that was made for Julie-Anne, but for these proceedings and any costs orders that are made, by the Will of the deceased, would enable her, when the estate is able to be converted to cash, to pay off her debt secured by the mortgage on her property. That would increase her disposable income and also provide an additional sum for the exigencies of life.

7. [255]

   The deceased complied with any obligation that might be said to exist to provide a capital sum, for Julie-Anne’s maintenance and advancement in life. By so doing, she was also ensuring that Julie-Anne would be secure in her own accommodation, have a capital fund for exigencies of life, and also, an increased income. In my view, the deceased was not obliged to do more.

8. [256]

   Now, as a result of the proceedings that she commenced, subject to further submissions on the question of costs, Julie-Anne may have a significant debt which will relate to the costs that have been incurred in these proceedings. It is difficult to conclude that the Court should make a family provision order out of the estate of the deceased in order to ensure the payment of the costs of the proceedings. One asks rhetorically why a wise and just testatrix, or the application of contemporary community standards, would reasonably require that the deceased’s Will should be altered in favour of an adult child for whom she provided, in order to further provide for, amongst other things, the expensive costs consequences of the adult child’s decision to bring proceedings to effectively challenge that Will?

9. [257]

   It has also been written, many times, that the purpose of the jurisdiction under the Act is not the correction of the hurt feelings, or the sense of having been wronged: Heyward v Fisher at 7 (Kirby P); Robinson v Tame (Court of Appeal (NSW), Kirby P, 9 December 1994, unrep) at 13. The jurisdiction is designed to provide for an eligible person where inadequate provision is made for her, or his, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).

10. [258]

    In my view, this is not a case where the community would expect the deceased to have made even greater provision than she did for Julie-Anne in all the circumstances. Even utilising the indeterminate and unreliable concepts of “fairness or equality”, the deceased’s Will appears to have been one that the community would regard as a fair distribution of the deceased’s estate amongst her children and grandchildren.

11. [259]

    That conclusion does not alter even when Julie-Anne’s financial resources and needs are taken into account. When the Court takes into account the degree to which Julie-Anne would have been capable, by reasonable means, of providing adequately for her own proper maintenance and advancement in life by the use of what she had been given, one does not come to a different view.

12. [260]

    Accordingly, I am not satisfied that Julie-Anne has established that adequate provision for her maintenance and advancement in life has not been made by the Will of the deceased. It follows that her proceedings must be dismissed.

13. [261]

    Even if I were wrong in considering that the Plaintiff failed at the jurisdictional threshold, I would not, as a matter of discretion, make any provision for her. It cannot be forgotten that she received provision from the deceased during her lifetime, and on her death, as well as from Lawrence, during his lifetime, and is likely to receive additional provision on his death. There is simply no basis for a finding, under s 59(2) of the Act, that provision “ought to be made for [her] maintenance, education or advancement in life” beyond the provision available to her under the deceased’s Will. In other words, the Court ought not to make an order for additional provision out of the estate of the deceased.

14. [262]

    In the circumstances, the Court orders that the Summons be dismissed.

15. [263]

    I would encourage the parties to not incur further costs arguing about costs and, if possible, to try to reach agreement on the issue. The court directs, in the event that the issue of costs is not resolved between the parties, the matter is to be re-listed for the purpose of hearing argument on whether the issue of the costs of the proceedings should be determined other than in accordance with the usual order for costs.