Hogan v Hogan

HIS HONOUR: These are proceedings commenced by the Plaintiff, Anthony Michael Hogan, who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"), as a child of Edith Marie Shepperd Hogan ("the deceased").

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008, effective from 1 March 2009 (s 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036). A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide, from that estate, for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiff commenced the proceedings by Summons filed on 6 June 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). In an amended Summons, filed on 13 March 2012, the Plaintiff sought, additionally, orders relating to administration of the estate under s 91 of the Act, but the relief sought is no longer necessary because Probate of the deceased's Will has been granted. It was, then, only the Plaintiff's claim for a family provision order, the designation of property as notional estate, and an order for costs that was sought. (At the hearing, however, the parties also agreed that it was unnecessary to consider the notional estate provisions of the Act since there is sufficient in the actual estate to meet the claim for provision by the Plaintiff.)

The Defendant named in the Summons is Michael Joseph Hogan, the executor appointed in the Will to whom Probate was granted, the husband of the deceased, and the father of the Plaintiff. He is also the sole beneficiary of the deceased's estate.

Also before me are proceedings, commenced by the Defendant, in Hornsby Local Court, in which he sought repayment of the sum of $57,000, which he alleged he lent the Plaintiff on 29 August 2010 ("the debt proceedings"). The Plaintiff admitted receiving that amount but asserted that the payment was a gift, not a loan, to him. I shall refer to these proceedings as "the debt proceedings".

On 30 October 2012, Nicholas J ordered that the debt proceedings be transferred to the Supreme Court and be heard with the family provision proceedings. His Honour also ordered that the costs of, and incidental to, the debt proceedings be costs in the family provision proceedings.

The issue raised in the debt proceedings in the local Court is less important, to the point of extinction, now, because the Defendant submitted in writing "whether ... the money is characterised as a gift or a loan, it is appropriate and expedient for that [amount] simply to be taken into account in any order for provision that might be made for [the Plaintiff]". The parties agreed that the debt proceedings should simply be dismissed pursuant to s 91 of the Civil Procedure Act 2005, upon the basis that the Defendant, in these proceedings, who is the Plaintiff in the debt proceedings, is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that, or any other, Court.

Without any undue familiarity, or disrespect intended, and for convenience, I shall refer, hereafter, only to the Plaintiff and the Defendant by his role in the proceedings for the family provision order, and to other family members, or witnesses, after introduction, by her, or his, given name.

The following facts are uncontroversial.

The deceased died on 7 June 2010. She was then aged 76 years, having been born in April 1934.

The deceased married the Defendant in August 1965 and remained married to him at the date of her death, almost 45 years later. The Defendant is aged 81 years, having been born in March 1932.

There were three children of the marriage, one being the Plaintiff, and the others being twins, Brendan James Hogan and Paul Martin Hogan, who were born in March 1970.

The deceased left a Will that she made on 15 February 2000, Probate in common form of which was granted, by this Court, on 4 April 2012. As stated, the sole beneficiary of the deceased's estate is the Defendant, as he survived her by 30 days. However, had he not survived the deceased, a property in Greenacre was specifically devised to the Plaintiff, and he and his two siblings were to share, equally, the rest and residue of the deceased's estate.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death, was disclosed as having an estimated, or known, gross value of $1,182,433. The estate was said to consist of the deceased's interest as tenant in common in various parcels of real estate, one situated in Padstow ($225,000), in Fairy Meadow ($190,000), in Woy Woy ($130,000), in Croydon Park ($300,000), in Toukley ($125,000) and in Charmhaven ($140,000), money on deposit ($64,632), personal effects ($3,000) and shares ($4,800). (I have omitted any reference to cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out.)

In the Inventory of Property, there was also a reference made to "Property Owned by the Deceased as Joint Tenant with another or others". The deceased and the Defendant owned all of the property referred to. That property consisted of a car ($3,000), moneys in various bank accounts or credit unions ($74,769), money in a cash management account ($90,723) and shares ($3,220). All of the property passed to the Defendant by survivorship.

(The parties agreed, at the hearing, that one half of the current value of the property passing to the Defendant by survivorship is $85,855.)

Although not referred to in the Inventory of Property, there were also proceeds of a death benefit ($129,603), held by State Super Financial Services Australia (which is the Trustee), in the State Super Allocated Pension Fund. The deceased was a pensioner in the Fund. Although the Trustee made the decision, in October 2012, to pay the proceeds of the death benefit to the Defendant, as the spouse of the deceased, and determined to affirm its original decision in December 2012, the Defendant, by letter dated 6 March 2013, was advised "that the Trustee has been notified that the Superannuation Complaints Tribunal (SCT) has received a complaint in relation its (sic) decision in relation to the distribution of the death benefit of the late Edith Marie Shepperd Hogan" and that the "Trustee is unable to distribute any of the death benefit ... until the SCT outcome is known".

(The Plaintiff and Brendan made the original challenge to the trustee's decision, but I was informed from the bar Table, without objection, that it is only the Plaintiff who lodged the complaint with the Superannuation Complaints Tribunal.)

When the decision of the Superannuation Complaints Tribunal will be made is not known, but so far as the parties were aware, it had not been made at the date of hearing. Then, the value of the proceeds of the death benefit was $134,554.

Although there were no liabilities disclosed in the Inventory of Property, in an affidavit, sworn 26 July 2013, the Defendant disclosed that certain liabilities of the estate, that had been paid, totalled $64,219. Of this amount, funeral expenses were $12,969, legal costs of probate and administration were $1,884, there was a repayment of rent monies of $26,702, and an amount of $22,663 was paid on account of the Defendant's costs of these proceedings.

The Defendant asserts that there are additional liabilities (other than the costs of these proceedings), which total $14,000, being unpaid tax liabilities ($10,000) and administration expenses ($4,000).

The parties agreed that the deceased's actual estate, at the date of hearing, had a gross value of $1,340,292 and that it consisted of deceased's interest as tenant in common in real estate at Padstow ($315,000), in Fairy Meadow ($200,000), in Woy Woy ($137,500), in Croydon Park ($300,000), in Toukley ($140,000) and in Charmhaven ($131,250), money on deposit ($103,057), a tax refund ($1,639) shares ($8,843) and the personal effects ($3,000).

It follows, if one deducts the anticipated future liabilities ($14,000), and if one does not take into account the costs of the proceedings (to which I shall refer), the net value of the estate is $1,326,292.

(Although it has not been included as a liability, evidence was tendered that on 16 January 2013, the Office of State Revenue issued a land tax assessment on the various parcels of land, of $19,572 (discounted to $19,278 if not paid by instalments). Other evidence reveals that the discounted amount was paid out of the joint bank account, which remains in the name of the Defendant and the deceased, on or about 26 February 2013.

In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate.

The Plaintiff's solicitor estimated the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $57,500 (inclusive of GST and upon the basis of a one day hearing). (I note that the Plaintiff has paid $4,334 on account of disbursements. The Plaintiff's solicitor estimates that, if the usual costs order is made, about $3,750 of this amount would be recoverable.)

The estimate of the Plaintiff's costs includes certain costs and disbursements incurred in the debt proceedings.

The Defendant's solicitor estimated the Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $59,800 (inclusive of GST and upon the basis of a one day hearing). Bearing in mind the amount already paid to the Defendant's solicitors ($22,663), the balance payable for the Defendant's costs and disbursements is $37,137.

Of course, depending upon the result of the Plaintiff's claim and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

However, using the estimates that have been provided, the parties agreed that the net value of actual estate, available for distribution, is, at the date of hearing, $1,231,655.

The persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties, Brendan and Paul. The Defendant gives evidence that Paul has been served with the prescribed notice of the Plaintiff's proceedings. In fact, he was present, with the Defendant, during the hearing.

Brendan swore two affidavits that the Plaintiff read in the proceedings. He was cross-examined.

The Act (as will be seen) provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application only if: (a) notice of the application, and of the Court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

Since each of the other eligible persons, namely Brendan and Paul, has not commenced proceedings, despite having notice of the Plaintiff's application, the Court may disregard his interests as a person in respect of whom an application for a family provision order may be made. Neither is a beneficiary, who, in the events that have happened, takes under the deceased's Will. I propose, in the circumstances of this case to disregard the interests of each.

Even though the Defendant has not commenced proceedings for a family provision order, he is the sole beneficiary and the Court is not entitled to disregard his interests as such.

When the deceased signed her Will, she also made a Statutory Declaration, which relevantly provided: "1. It is my clear intention and will my son Anthony Michael Hogan have the property known as ... Greenacre in the state of New South Wales. 2. I have thought about this for some time and believe that he should have this property in addition to his share of the residue of my estate. I have come to this decision as he is not as financially secure as my other two sons Brendan James Hogan and Paul Martin Hogan who are also beneficiaries under my will dated 15 February 2000. 3. I believe that he needs to have a property that is independent and separate from his brothers who have been adequately and fairly provided for under my will dated 15 February 2000. 4. If my will is ever contested on the grounds that my son Anthony Michael Hogan received a distinct and separate property this being ..., Greenacre in the state of New South Wales in addition to his share of the residue of my real and personal estate. Then it is my intent to have this document read by the Court."

The Greenacre property is, and has at all material times been, owned by the Defendant, part of the interest in which passed to him by inheritance and the balance by purchase. The deceased's reasons for believing that she had the power to leave that property to the Plaintiff in her Will are unexplained.

The Defendant made a Will on 15 February 2000, which was a mirror Will of the deceased's Will.

The Defendant made another Will on 31 August 2007, which relevantly revoked his 2000 Will and went on to provide: "... 3. IF my son ANTHONY MICHAEL HOGAN survives me for thirty (30) days I GIVE DEVISE AND BEQUEATH either my property located at and known as xx xxxxx, Greenacre or my property located at and known as xx xxxxx, Punchbowl to my said son ANTHONY MICHAEL HOGAN with the choice of which property being his and his alone to him for his life such election to be exercised by him within ninety (90) days of my death provided that he pays the rates and taxes levied on the property and premiums on any insurance policies taken out by my Trustees on the property and keeps it in repair to the satisfaction of my Trustees and I GIVE DEVISE AND BEQUEATH the remainder interest to such of my grandchildren as shall survive me for more than thirty (30) days and if more than one in equal shares as tenants in common absolutely. 4. (a) Subject to the preceding paragraph, at the written request of my said son ANTHONY MICHAEL HOGAN my trustees shall sell the house and purchase another replacement property including resident funded retirement or nursing home accommodation. (b) Any cash balance arising from the sale and purchase shall form part of the rest and residue of my estate. 5. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate both real and personal whatsoever and wheresoever situate including lapsed devises and bequests to my Trustees UPON TRUST to sell call in and convert the same into money with power to postpone such sale calling in and conversion so long as they in their absolute discretion shall think fit without being liable for loss and to stand possessed of the proceeds of such sale calling in and conversion upon the following trusts: a. To pay thereout all my just debts funeral and testamentary expenses and Capital Gains Tax and Goods and Services Tax and State Probate Duty and Federal Estate Duty if any assessed upon or by reason of my death. b. If my said son ANTHONY MICHAEL HOGAN survives me for thirty (30) days to pay the sum of TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00) to my said son ANTHONY MICHAEL HOGAN absolutely. c. To stand possessed of the balance remaining including lapsed shares in equal shares for such of my sons PAUL MARTIN HOGAN and BRENDAN JAMES HOGAN as shall survive for thirty (30) days IE either of my said sons does not survive me for thirty (30) days leaving children surviving me such children shall take by substitution and if more than one in equal shares as tenants in common the share which such deceased son would have taken if he had survived me and had attained to a vested share."

There was a codicil to the Defendant's Will made on 7 May 2008, but its terms are irrelevant.

Thus, under the terms of what is said to be the Defendant's current Will and codicil, the Plaintiff receives some provision, but not the same provision as his brothers.

First, I shall discuss the statutory scheme that is relevant to the facts of these proceedings. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the Courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

As stated, the former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person.

Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. The Court is given a statutory power that may be exercised only for the purpose for which it was granted. Thus, it is only if the statutory conditions are satisfied, that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). The Court has no power to make an order in favour of an applicant who is not an eligible person. In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application.

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

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

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

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

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

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

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].

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

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

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

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

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

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

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

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

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77].

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

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; 97 CLR 566, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

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

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

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

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

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

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

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

In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

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

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

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

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

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

In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."

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

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

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

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

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

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

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

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

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

It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made") has not been made, and if so, whether it should (whether to make an order and, if so, the terms of that order).

More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79] where I stated what is said in the last paragraph, and commented: "There is much to be said for that conclusion. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60."

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

Perhaps, the way to approach the matter is to simply to refer to the Act containing "twin tasks": Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other.

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

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

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

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, inevitably, will depend upon the individual facts of the particular case.

There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

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

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

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

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

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

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

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

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

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

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

Section 66(1) permits the Court, in addition to, or as part of, a family provision order, to make orders for, or with respect to, any of the matters identified for the purpose of giving effect to the family provision order.

Thus, the Court has the power under ss 65(1) and 66(1) to make a family provision order conditional upon the applicant giving up an existing benefit or right.

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

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

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

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

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

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

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

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

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

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

Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the Court to "connect the general but value-laden language of the statute to the community standards".

As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."

How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36].

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

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

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

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

The size of the estate is a significant consideration in determining an application for provision.

In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J, at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003), at [179] - [182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.

The following principles are relevant to the competing claim of the spouse of the deceased. Of course, these have been stated in the context of the applicant being a widow, rather than in a case where the widower is the party defending the claim for a family provision order. Even so, I am satisifed that they should be taken into account in such a case. (In Samsley v Barnes, at 76,307, Kirby P noted that there was no different approach to widowers than to widows. In M A Bourke (dec'd) and the TFM Act [1968] 2 NSWLR 453, at 455, Street J considered that there was a high moral duty owed to a surviving husband.) (a) As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to her spouse, to the extent to which her assets permit her to do so, is to ensure that he is secure in the matrimonial home, to ensure that he has an income sufficient to permit him to live in the style to which he is accustomed, and to provide him with a fund to enable him to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free his mind from any reasonable fear of any insufficiency as he grows older and his health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain himself independently and autonomously may also bear upon the notion of what is proper provision. However, what I have said above is not of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6, at [142] - [144]. (b) The three elements identified in (a) above are not necessarily mutually independent. The Court is not to approach the assessment of what is proper for a competing claimant by attempting precisely to replicate the way of life that the deceased and her spouse planned to have had she survived. (c) There remains binding authority which gives greater weight to the claims of a party who has entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320, at [68]. In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, Gleeson CJ, at [24], said: "The structure of marriage and the family is intended to sustain responsibility and obligation." However, in Bladwell v Davis [2004] NSWCA 170, Bryson JA stated: "[19] In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409 -411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." Ipp JA added: "[2] I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109, at [80] - [82]. (d) Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where he is the master of his own life, and in which, for the remainder of his life, he is not beholden to beneficiaries: Langtry v Campbell (NSWSC, 7 March 1991, unreported). (e) Usually, a mere right of residence will be an unsatisfactory method of providing for a spouse's accommodation. This is because the spouse may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The spouse will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (NSWCA, 16 May 1984, unreported), per Hutley JA, p 2; Golosky v Golosky [1993] NSWCA 111.

Ward J (as her Honour then was) referred to many of these authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added: "[98] Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19).

I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

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

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

I shall now set out additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence which I have accepted. Where necessary, I shall express the conclusions to which I have come on disputed evidence. I do so by reference to s 60(2) of the Act. 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

The Plaintiff is one of three children of the deceased and the Defendant. He resided with them until he was 19 years of age. He then left home to commence a science degree at the University of Wollongong, where he attended for 3 years.

He was married to his first wife in November 2001. Their marriage ended in April 2010 when a divorce order took effect.

He regularly visited his parents, until the deceased's placement in a nursing home, and after her admission, he attended every Friday, or second Friday, to assist with her spa treatment.

I am satisfied that he and the deceased enjoyed a close and loving relationship throughout the deceased's life. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, a reference to a "breach of moral duty" commonly appeared in decisions under the former Act. Thus, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between an applicant and the only beneficiary.

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

I have earlier referred to the obligation or responsibility owed by the deceased to his, or her, spouse, particularly a spouse of a very lengthy marriage (as this marriage was). The obligation, or responsibility, otherwise, naturally arises from the matrimonial relationship.

The fact that an applicant was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

I have dealt with these matters earlier in these reasons. The net value of the deceased's estate is reasonably large. (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

A consideration of this matter calls for a comparison of the financial resources of the applicant and the beneficiary.

The Plaintiff is well-educated, having completed a Bachelor of Science (Hons) and a TAFE course in commercial cookery. He was taking an accountancy course at the University of Western Sydney (according to his affidavit of 2 August, 2013) but he has deferred for the remainder of this year. He says that he may return to the course next year.

Although he was recently unemployed, he has a record of continuous employment as a payroll officer. His unemployment was the result of him resigning from his position to take up a new position. Unfortunately, he suffered a stroke soon after accepting the new position and it appears that his new employer withdrew its employment offer.

He became unemployed in about early July 2013 but, at the date of hearing, he had secured a probationary (for 6 months) position with a company as a payroll officer, on $68,000 per annum gross, or about $4,416 per month net, plus superannuation.

He received $17,903, plus statutory entitlements, from a previous employer. After the deduction of tax, the Plaintiff paid the whole of the amount into his wife's bank account. He says that there is nothing left in the account but neither he, nor his wife, provides details of how the amount deposited was spent.

I am satisfied that he has an earning capacity, but that it is likely to be affected by his medical conditions (as to which see later).

The Plaintiff's current assets and liabilities are as follows:

He has superannuation of about $40,000.

Whilst it is not entirely clear, the Plaintiff says that he has an obligation to repay Brendan various amounts made to assist him, including $30,000, advanced to assist in the purchase of the Plaintiff's home at Granville. There is no suggestion of any specific demands made by Brendan to repay the amounts advanced. However, it was put that even if the Plaintiff does not have a legal obligation to repay the advances, he has a moral obligation to do so.

The Plaintiff estimates his, and his wife's, monthly expenditure to be about $4,206. This estimate includes $1,970 by way of monthly mortgage repayments.

In the past, he has had some difficulties meeting all of his expenses. There is evidence that a Default Notice pursuant to s 57(2)(b) of the Real Property Act 1900 was served in July 2012 and that as a result of his failure to pay the arrears demanded by the deadline, the entire balance of the loan became due and payable. However, those problems seemed to have resolved, but recently, he is again in arrears ($3,519).

The Plaintiff describes his needs as follows: (a) No savings of note to provide him with a buffer against the consequences of his medical conditions or life's exigencies more generally; (b) No financial resources to provide appropriate accommodation or to enable him to meet his commitments under the present mortgage; (c) Nothing to provide for his wife or his child should he predecease them; (d) No funds to purchase a new car, when his present car is now 17 years old; (e) No amount to enable him to carry out repairs and renovations on his home, which includes, new fencing ($2,500), underpinning ($20,000), converting the laundry into a nursery ($6,000), and tree removal ($4,000). (f) No amount to pay for associated costs of the birth, which includes obstetrician fees ($3,800), hospital deposit ($200) foetal scans ($460) and baby equipment ($3,000).

The Defendant's current assets (with the addition of cents) are:

Of course, in addition, he receives the whole of the deceased's estate, which, after the payment of the costs of the proceedings, has been agreed at $1,231,655. It follows, that the value of the Defendant's assets exceeds $3.5 million.

He does not receive any form of aged pension and he does not have any superannuation.

The Defendant was cross-examined about moneys he had loaned to Paul, one amount of $160,000 and another of $255,000, each of which loans was secured by mortgage. He was asked how much of these loans had been repaid, but could not remember. He said that Paul "had paid back a good bit." The inference that I was asked to draw is that there may be additional property, being the amount not repaid by Paul, to the Defendant.

The Defendants sources of income are a workers compensation payment of about $18,977 per annum before tax, and the gross rental income from the properties, of $28,899, per annum. He lives a modest lifestyle and his income is just sufficient to meet his expenses.

The Defendant wishes to remain living for as long as possible in the matrimonial home that he shared with the deceased for 46 years. In order to do that, he may need to undertake some renovations to the property, which he estimates to cost around $70,000. He admitted that the home, currently, was suitable for his needs and that it was comfortable.

The Defendant wrote in his affidavit that he would likely require some domestic assistance, which he estimates to cost in the order of $10,000 - $20,000 per annum. In cross-examination, he said that he did not know whether these costs and expenses would be incurred and much depended upon his state of health.

He accepted that, probably, some time in the future, he will have to move into a nursing home. In his affidavit, he gave evidence that he will be required to pay an accommodation bond (between $450,000 and $550,000) and nursing home costs, which may be in the order of $50,000 per annum. (He was unable to remember much of this information in the witness box. He said that he had left the enquiries to Paul.)

The Defendant wrote in his affidavit that should the Plaintiff, or any of his other children, "fall on hard times in the future, I would like to help them". He repeated, in his oral evidence, that he was prepared to do so. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person

This sub-section permits account to be taken of the financial circumstances relating to the cohabitation.

The Plaintiff lives with his second wife, Leigh, who is currently unemployed and who owns no assets. She commenced a child care traineeship in May 2011 and was earning $450 net per week on average. At the time she stopped working, at the end of 2012, she was earning $500 per week net. He says that if she returned to work full-time, she could expect to earn about $900 per week net.

Whilst she is capable of earning an income, her ability to do so will be qualified as she raises a family. (They are expecting a child who will be born later this year.) However, they have obviously discussed her return to work, because there is evidence that they are considering asking a relative of hers, from the Philippines, to come to Australia to assist with childcare. (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

On 28 June 2013, the Plaintiff "presented to Westmead Hospital after being referred by his GP with hypertension and double vision, with difficulty walking in a straight line due to double vision." The final diagnosis on his discharge on 9 July 2013, revealed that he had suffered an ischaemic stroke.

He feels that his health is improving following the stroke although the Plaintiff continues to suffer from a number of different medical conditions, namely, type 2 Diabetes Mellitus, depression, with recurrent episodes, high blood pressure, insomnia, obstructive sleep apnoea and morbid obesity. One of his treating doctors has opined that the Plaintiff is likely to have episodes of depression for the rest of his life, for which he will need to have ongoing psychiatric treatment; that he would benefit from domestic assistance 4 to 8 hours per week for the rest of his life; that he will probably need time off from work, from time to time, in the future; and that he will need to take medication on a monthly basis for the rest of his life, the current cost of which is about $400 per month.

A medical health summary reveals that he takes, or is supposed to take, various medications.

In his affidavit of 2 August 2013, the Plaintiff wrote that he was having trouble controlling his diabetes, that his blood pressure was elevated, his sleep apnoea remained the same, but that his "depression has deteriorated".

In relation to some of his medical conditions, it is clear that he would benefit from compliance with the treatment, his ability to follow a diabetic diet, regular exercise and general lifestyle control. He accepted that this was so, and added, that with his wife's help, he was trying.

The Defendant's health is poor. He had a quadruple bypass in 1997, suffers from hypertension and hypercholestrolaemia. He has only one functioning kidney, suffers from chronic back and neck pain and from persistent respiratory infections. He currently receives homecare. He states that he "feels very anxious and depressed about my future and security".

It is clear from the manner in which he gave evidence, that the Defendant has some short-term memory problems. (g) the age of the applicant when the application is being considered

The Plaintiff was born in March 1968 and is currently 45 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

The Plaintiff, along with his brothers, helped to repair and renovate the properties owned by his parents over the course of many years (between about 1979 and 2001). There are photographs showing them at work.

However, I do not accept his evidence that from the age of 12 years, he spent approximately half of his weekends working on the various rental properties owned by the deceased and the Defendant. (Brendan, for example, disputed the Plaintiff's evidence on this topic.)

From the late 1960s, the Defendant and the deceased slowly accumulated properties through their combined hard work and sacrifice. For example, in the late 1960's or early 1970's they purchased the Punchbowl and the Padstow properties. In the mid-1970's, they purchased the Croydon Park property and then in the late 1970's the Charmhaven and the Toukley properties. In the 1980's, they purchased the Woy Woy and Fairy Meadow properties. With his sister, he inherited the Greenacre property and he purchased her interest in it.

Until his injury in the mid-1970s, the Defendant worked 6 or 7 days a week, working for the Department of Public Works from Monday to Friday, and picking up additional work on the weekends. From the mid-1970s, he received a workers compensation pension and supervised the renovation of the properties that he and the deceased owned. During this time until her retirement, the deceased worked part-time as a nurse.

In a Report from the Canterbury Aged Services dated 18 July 2005, in relation to the deceased, it was said that she was suffering from dementia with Lewy bodies, Parkinson's disease, arthritis, depression and having an unsteady gait. The Defendant is referred to as her carer and as assisting her with her daily hygiene, and various activities of daily living.

After she was admitted to the nursing home in about early 2007, the Defendant would regularly catch a train and a bus from his home at Punchbowl each week to visit the deceased. At times, he would also visit her with one, or more, of his sons.

The Defendant states that he desires to retain the various properties that he and the deceased acquired during their shared life together. That desire stems from the fact that the properties provide him with an income and also from psychological and emotional considerations. He states that, "[i]t would be terrible if I had to sell the properties. I feel it would kill me. They give me a purpose and they are my only hobby ... [t]hey are more than just investments to me. Edith was a remarkable and brilliant woman and I feel like she is part of those properties. They remind me of my wife and our happy years together, working together for our future".

Brendan corroborated that the Defendant placed a great store on retaining real property and that he had tried to instil this belief in his children. (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

Both the deceased and the Defendant assisted the Plaintiff with obtaining an education. They contributed to his university fees, and he was permitted to reside rent, and occupation fee, free, in one of the jointly owned properties in Fairy Meadow, whilst at Wollongong University.

He returned home and lived with his parents, board free, between about 1998 and 2001. (He says that whilst he did not contribute money, he bought some food.)

He has also been assisted in purchasing property. His parents paid the deposit, of $40,000, on the purchase of his property at Granville. He subsequently received the rental income from the Greenacre Property between 2001 and 2003 to assist him with his mortgage repayments. He estimated that he received between about $160 and $180 per week for about two years.

The deceased purchased a CPAP Machine for the Plaintiff, which he uses to counteract his sleep apnoea. He recollected that the machine cost about $2,500.

More recently, the Plaintiff received $57,000, which he used towards a financial settlement with his first wife.

Finally, the Plaintiff conceded that between 27 May 2008 and 25 March 2010, he had withdrawn various amounts, totalling $18,801 from a joint account in the names of the deceased and the Defendant. He said that he had sought the approval of the Defendant to withdraw the amounts that he had.

The Plaintiff relied upon the provision that has been made for his siblings for the purpose of putting into perspective the provision that was received by the Plaintiff. I have earlier referred to the substantial loans made to Paul by the Defendant. Brendan gives evidence of other advances made to Paul. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is some evidence of the testamentary intentions of the deceased other than in the Will to which I have referred.

The Plaintiff says that he had a conversation with the deceased in which she said that he would be getting the Greenacre property and that the rest of their estates was to be split between the three children equally. He acknowledged that he had understood, that he was not to receive the Greenacre property until after the death of the survivor of the deceased and the Defendant.

Another witness, Barbara Maude Mackenzie, who was not cross-examined, refers to a conversation in 2000 and 2001, in which the deceased said to her: "Michael and I have made our Wills. I have bequeathed the house at Greenacre to Anthony. Brendan and Paul will always be financially secure in the future but Anthony will need a helping hand and support."

It is clear that the deceased's approach to providing for the Plaintiff distinguished between him and his brothers. It is obvious from what wrote, that the deceased had concerns about the Plaintiff's ability to advance in life. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain the Plaintiff, before her death other than during the period referred to. (l) whether any other person is liable to support the applicant

There is no person with a liability to support the Plaintiff, other than, perhaps, his spouse. (m) the character and conduct of the applicant before and after the date of the death of the deceased person

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

I have dealt with the relationship of the Plaintiff and the deceased. There was little relevant conduct relied upon otherwise.

The relationship of the Plaintiff and the Defendant does not appear to be very close. It is clear that the Defendant is upset that these proceedings have been brought and that that they have not been able to be settled.

It is also clear that he believes that he and the deceased have made provision for the Plaintiff throughout his life.

One other matter raised related to the Plaintiff attending at the Defendant's house and without permission taking a copy of various testamentary documents. Although proceedings were commenced against the Plaintiff and Brendan in May 2011, for the return of the documents, the Defendant discontinued those proceedings. (I do not think that anything turns on this other than, perhaps, it gives support to the Plaintiff's concern about the provision that might be left for him in the Defendant's Will.)

Otherwise, there is no evidence of any adverse conduct by the Plaintiff that should be taken into account. (n) the conduct of any other person before and after the date of the death of the deceased person

I am satisfied that the Defendant was a husband of the deceased, of a 45 year relationship, who did, and has done, all that he could do in relation to the deceased. He is, of course, the chosen object of the deceased's bounty. (o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

There are two other matters that I think are relevant. I have earlier referred to the Defendant's Will and the Codicil, which is his current Will and Codicil. I think it likely, in all the circumstances, that if the Defendant does not revoke that Will and make greater provision for the Plaintiff, and if the Plaintiff survives the Defendant, that he is likely to seek a family provision order out of the Defendant's estate.

The second matter is that during submissions, Mr Condon SC, for the Plaintiff, submitted that if "substantial provision was made for the Plaintiff out of the deceased's estate, that the Plaintiff would give an undertaking to the Court to not proceed with the complaint to the Superannuation Complaints Tribunal". He did not make a submission as to what would constitute "substantial provision".

Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that the Plaintiff, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is also no dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act.

Having established eligibility and that the proceedings were commenced within time, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the Plaintiff's proper maintenance or advancement in life has not been made by the Will of the deceased.

Mr S Chapple, counsel for the Defendant, conceded that the Plaintiff had established "jurisdiction" and that the real issue between the parties was not whether provision ought be made, but the nature and quantum of that provision.

Having considered the matters I am required to consider, I, too, am satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of the Plaintiff. No provision was made for him in the deceased's Will. The estate is sufficiently large that provision may be made for him, even taking into account the legitimate claims upon the bounty of the deceased of the Defendant and the obligation and responsibility to provide for him.

It is also clear that the Plaintiff has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.

Age and state of health are factors to which, under the Act, the Court may have regard. At the date of hearing, the Plaintiff is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation, of someone who is, or will be, well able to earn enough by her, or his, own exertions to provide for her, or his needs: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82].

Furthermore, I cannot decide the question of the adequacy, or inadequacy, of the provision made, if any, in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. The word 'proper' in the collocation of words in the section of the Act being considered is of considerable importance.

Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the applicant having regard to the facts known to the Court, the real area of concern is how to deal with the Plaintiff's claim, whilst bearing in mind the competing claim of the Defendant.

In my view, there is sufficient in the estate to make provision by way of a lump sum for the Plaintiff without affecting, in any substantial way, the financial circumstances of the Defendant. However, I do not accept that the Plaintiff should receive out of the deceased's estate, $400,000 or more, by way of capital sum absolutely, which he sought in oral submissions, and which lump sum would enable him to pay off his mortgage completely and have an unencumbered fund available to pay for the things that he is presently unable to afford.

In my view, the Plaintiff is not entitled to expect that all his needs should be met, in full, from the estate of the deceased. The order should be no more than is necessary to make adequate provision for the Plaintiff's proper maintenance and advancement in life. Furthermore, I must take into account the right of the deceased to dispose of her property as she did in her Will.

In my view, the Plaintiff should receive a lump sum of $290,000, which will enable him to pay off the mortgage debt in its entirety. In addition, upon him disclaiming any interest in the death benefit proceeds, he should receive an interest free loan of $110,000, from the Defendant, as the executor of the estate. The interest free loan should be repayable on sale of the Plaintiff's property, within 18 months of the Defendant's death, or at such other time as the Plaintiff and the Defendant, or his legal personal representative, agree, whichever is the earlier. The loan should be secured by way of registered first mortgage over the Plaintiff's real estate, since the use of the lump sum to pay of the debt secured by the current mortgage will leave his real estate unencumbered. The precise terms, and the form, of the first mortgage should be agreed between the parties.

In this way, the Plaintiff will have a sufficient amount, albeit by way of a secured borrowing, to pay for those things that he says he is currently unable to afford. Depending on how the amount loaned to him is spent, he may have a small lump sum remaining for exigencies of life. He will also have an increased income of almost $2,000 per month.

Whilst it is true, because of the terms of the interest free loan, that he may have to deal with the Defendant's legal personal representative, after the death of the Defendant, I consider that this will occur in any event, as the Plaintiff, is likely to bring proceedings for a family provision order in respect of the Defendant's estate or notional estate (unless the Defendant alters the terms of his current Will) if he survives the Defendant.

I direct the parties to bring in Short Minutes of Order, reflecting these reasons, including the form of the mortgage to which I have referred. The means by which effect can be given to this decision should also be included. The Short Minutes of Order should include, at least, that: (i) The Plaintiff, Anthony Michael Hogan, is an eligible person; the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life; (ii) The Plaintiff should receive a lump sum of $290,000, absolutely, out of the estate of the deceased. (iii) No interest is to be paid on the lump sum, if it is paid within 35 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (iv) Upon the Plaintiff disclaiming any interest in the death benefit, he should receive out of the estate of the deceased, an interest free loan of $110,000, which loan is to be secured by registered first mortgage, the terms and form of which, should be agreed, on the Plaintiff's real estate. The loan should be repayable no earlier than 18 months after the death of the Defendant, or on sale of the Plaintiff's property, or at such other time as the Plaintiff and Defendant or his legal personal representative agree, whichever is the earlier; (v) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs calculated on the indemnity basis, shall be paid out of the estate of the deceased. (vi) The debt proceedings should be dismissed upon the basis that the Defendant (who is the Plaintiff in those proceedings) is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that, or any other, Court. (vii) The exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vii) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.