Keaton v Gumulak

This case concerns the estate of Patricia Gumulak (the deceased). The Plaintiff, Kathy Keaton, is a now adult child of the deceased and she has made a claim for a family provision order out of the deceased’s estate pursuant to Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

In this case, many of the persons involved share the same surname. As such, where it is necessary to do so, and without intending any disrespect, I have referred to persons, other than the parties, by first name to avoid confusion. I have referred to the second husband of the deceased, John Joseph Gumulak, as the Plaintiff’s stepfather.

The deceased died on 31 May 2018, leaving a Will dated 27 May 2018. Probate of that Will was granted to the Defendant, John Leslie Gumulak, on 11 September 2018. He, too, is a now adult child of the deceased.

The proceedings were set down for hearing before me, for three days, commencing on 7 July 2020. At the hearing, Mr F Austin of counsel appeared for the Plaintiff and Mr D Lloyd of counsel appeared for the Defendant. The proceedings, however, were able to be heard within one day. This does all of the legal practitioners involved a great deal of credit. Prior to the hearing, they had complied with the directions that had been made regarding an agreed schedule of assets and liabilities and counsel had provided written submissions in a timely manner. At the hearing, they did not waste time on unnecessary, and immaterial, objections to affidavits, their cross-examination of witnesses was limited to essential matters, and the oral submissions were concise and to the point. Ultimately, they saved the parties a large amount of costs, and time, which, otherwise, would have been incurred, had the hearing continued for the three days.

At the conclusion of the hearing, having heard the evidence and the submissions of counsel, with the consent of the parties, I informed them that I was able to express the orders that I proposed to make and that I would publish my reasons subsequently. I stated that I was satisfied that adequate provision for the proper maintenance and advancement in life of the Plaintiff had not been made by the deceased’s Will and I then made the orders set out later in these reasons.

In summary, I ordered, pursuant to s 59 of the Act, that the Plaintiff receive, in lieu of the provision made for her in the deceased’s Will, a lump sum of $95,000 by way of provision out of the deceased’s estate. As will be read, the parties, then, were able to agree on the costs orders that should be made. This, also, has saved them further costs and will avoid a delay in the administration of the estate of the deceased.

These are the reasons for the making of the orders.

The Plaintiff commenced these proceedings by Summons filed on 29 May 2019. It was not in dispute that the Plaintiff had commenced the proceedings within time (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It was agreed that the Plaintiff, as a child of the deceased, is an eligible person: s 57(1)(c) of the Act. It is not necessary that the child of the deceased be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c)).

However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant, in the case of a child of the deceased, to whether the applicant is an eligible person.

By Clause 3 of her Will, the deceased dealt with all of her estate. There is, therefore, no scope for the operation of the rules of intestacy. It is sufficient, hereafter, to only refer to the Will of the deceased and its terms.

A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. There was no suggestion that any property could be designated as the notional estate of the deceased.

It was clear that each of the deceased’s three children, the Plaintiff, the Defendant, and Anne Maree Butler, is an eligible person. Ms Butler played no role in the proceedings, although she may have been present during the hearing. There is the former spouse of the deceased, Mr Warren Keaton, who is the father of the Plaintiff, who is also an eligible person. At the hearing, Mr Austin informed the Court that Mr Keaton was present in Court and that he was aware of the proceedings. Mr Lloyd confirmed that, in any event, Mr Keaton had been served with notice of the application, and of the Court's power to disregard his interests. In the circumstances, in determining the Plaintiff’s application for a family provision order, the Court has disregarded the interests of Mr Keaton, as a person by, or in respect of, whom, an application for a family provision order may be made but who has not made an application: s 61(2) of the Act.

Neither the Defendant, nor Ms Butler, has made a claim for provision out of the deceased’s estate. Each, however, is a residuary beneficiary named in the deceased’s Will. The Act specifically provides that the interests of a beneficiary of the deceased’s estate cannot be disregarded, even though each has not made a claim: s 61(1). Each is entitled to rely upon the terms of the deceased’s Will and his, or her, competing claim, respectively, as a chosen object of the deceased’s bounty. Neither disclosed his, or her, financial resources and needs, respectively. It was accepted that each was not a competing financial claimant on the bounty of the deceased, although each was a competing claimant, otherwise.

As to the effect of the silence of the beneficiaries in relation to financial resources and needs, in cases such as these, I have set out the relevant principles in Sammut v Kleemann [2012] NSWSC 1030 at [137]–[140], and have recently reiterated them in Bowers v Bowers [2020] NSWSC 109 at [98]. I shall not repeat those principles here.

The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 [94]; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing), stated the principle far more succinctly as follows:

Also see Poletti v Jones (2015) 13 ASTLR 113 at 118 [23]; [2015] NSWCA 107 at [23] (Basten JA, Leeming JA agreeing).

Even if the Court may infer that each of the two beneficiaries has no need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than the Plaintiff, his, and her, silence does not mean that the competing claim of each of the beneficiaries should not be evaluated. As will be read, what is “proper” requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

The Defendant, as executor, does not seek any commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

It is next convenient to set out a narrative of some relevant background facts that were not the subject of dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.

Although the precise date was not disclosed in the evidence, the deceased was born in about 1953 and died on 31 May 2018. Whilst a teenager, she commenced a relationship with Mr Keaton. There was one child of that relationship, being the Plaintiff, who was born in February 1970.

Approximately 18 months after the Plaintiff was born, her parents separated. After the separation, the Plaintiff spent a short period living with her father and, then, with her maternal grandparents. From the age of about two, the sole custody of the Plaintiff was with the deceased.

In or around 1971, the deceased commenced a relationship with John Joseph Gumulak. The deceased and Mr Gumulak had two children, being the Defendant, who was born in October 1973, and Ms Butler, who was born in September 1974. In the late 1970s or early 1980s, the deceased and Mr Gumulak married.

It was not in dispute that the Plaintiff’s stepfather would physically discipline each of the children. The Defendant deposed in his affidavit, and confirmed in cross-examination, that his father would use a belt to discipline each of the children. What was in dispute, however, was the nature and the extent of that physical discipline, and its effect, upon the Plaintiff. This is a matter to which I shall return.

The Plaintiff left the family home when she was 16 years of age. Thereafter, she continued to receive some financial assistance from the deceased. The precise nature and regularity of the financial assistance was not disclosed in the evidence.

Sometime after leaving the family home, the Plaintiff commenced a relationship with, and then married, David Pattison. There were two children of the relationship, Michael Pattison and Scott Pattison.

In or around 2000, the Plaintiff and Mr Pattison separated.

Sometime thereafter, in or around 2000, the Plaintiff commenced a relationship with Kerry Paterson. They were married in 2003. There was one child of that relationship, Blake.

In 2014, the Plaintiff was diagnosed with Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder. It was her “belief” that the PTSD was caused by the discipline, and the harsh treatment, imposed upon her by her stepfather throughout her childhood. There was virtually no medical evidence to support her belief.

By Clause 2 of her Will dated 27 May 2018, the deceased appointed the Defendant as the executor of her estate. Then, the deceased bequeathed all of her jewellery to be shared between Ms Butler and two of her granddaughters. The deceased then made seven specific pecuniary legacies, each of $10,000. One of those legacies, relevantly, went to the Plaintiff: Clause 3(b)(ii). This lump sum represented the total extent of the financial provision made for the Plaintiff under the Will. The remaining six pecuniary legacies were gifted to, or shared between, a number of the deceased’s grandchildren. There was no dispute in the proceedings that those six pecuniary legacies should be distributed to them, and should not bear any of the burden of the provision to be made for the Plaintiff: Tcpt, 7 July 2020, p 2(22–31), p 4(40–48).

As stated, the rest and residue of the deceased’s estate was divided, in equal shares, between the Defendant and Ms Butler.

On 9 June 2020, I directed the parties to provide an Agreed Schedule that contained:

What follows has been taken, principally, from the Agreed Schedule that the parties prepared in accordance with that direction, which was tendered as Ex AS1, and the discussion between Bench and Bar at the commencement of the hearing. In the figures below, I have omitted a reference to cents. This will explain any apparent arithmetical miscalculation.

The deceased’s estate, as at the date of death, consisted mainly of two parcels of real property. The first was a property at Halekulani, which I understand to be a suburb of the Central Coast region of New South Wales, had an agreed estimated value of $460,000 (the Halekulani property). The second was a property at Bonnells Bay, which I understand to be a suburb of the City of Lake Macquarie, in New South Wales, had an agreed estimated value of $580,000 (the Bonnells Bay property). The estate also consisted of: various bank accounts ($49,693); proceeds of superannuation accounts ($113,109); shares in NIB and IAG ($11,478); two motor vehicles ($6,500); and furniture and other personal effects ($2,000). Additionally, the deceased’s estate contained what remained of the estate of the Plaintiff’s stepfather ($50,000). As such, the gross value of the deceased’s estate, at the date of death, was approximately $1,272,781.

As at the date of death, the deceased’s estate had liabilities of approximately $219,291. These liabilities included a debt due to St George Bank, secured by a mortgage ($174,226), and two credit card debts, also with St George Bank ($4,572). There was also a liability for funeral and other expenses associated with the administration of the estate of the Plaintiff’s stepfather ($40,492). The last amount was not agreed between the parties “pending production of receipts”. Nothing further was said about the estimate at the hearing, and for the purpose of the calculations, that figure was assumed to be accurate.

It follows that the net value of the deceased’s estate, at the date of death, was approximately $1,053,490.

Ex AS1 also provided the estimated values of the assets and liabilities as at the date of the Schedule, being 29 June 2020. At that date, the deceased’s estate consisted of the following assets: the Halekulani property ($470,000); the Bonnells Bay property ($590,000); a superannuation account in the name of the deceased ($5,900); a superannuation account in the name of the Plaintiff’s stepfather ($5,800); the shares in NIB and IAG ($9,686); an account described as the “Estate Trust Account” ($45,445); and an account described as the “Rental Account” ($32,938). In total, the gross value of the deceased’s estate, as at the date of the Schedule, was approximately $1,159,769.

As at the date of the Schedule, the deceased’s estate had two liabilities, being the debt secured by mortgage on the Bonnells Bay property ($174,226); and a credit card debt with St George Bank ($2,489). The liabilities of the deceased’s estate, therefore, totalled $176,716. After repayment of those liabilities, the agreed estimated value of the estate was approximately $983,053: Tcpt, 7 July 2020, p 3(42) – p 4(01).

The parties also agreed that the estimated costs and expenses of sale of the Halekulani property were $13,624 and the estimated costs and expenses of sale of the Bonnells Bay property were $16,528. They also agreed that the six pecuniary legacies, each of $10,000, were to be paid out of the estate.

It follows, without deducting any amount for the costs of the proceedings, the value of the deceased’s estate, out of which an order for provision could be made, was $892,901.

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

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

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

However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value.

In the present case, the Plaintiff estimated her costs and disbursements at $81,800 (inclusive of GST), calculated on the ordinary basis. When calculated on the indemnity basis, that amount increased to $101,500 (inclusive of GST): Ex AS1.

The Defendant’s costs and disbursements, calculated on the indemnity basis, were estimated to be $95,465 (inclusive of GST). Of that figure, $45,965 had already been paid out of the deceased’s estate. Therefore, $49,500 (inclusive of GST) remained to be paid as at the date of the Schedule.

On the assumption that the usual order for costs would be made, the combined costs of the parties left to be paid totalled $131,300.

Naturally, the estimate of the costs of each party was based on a three day hearing. As the hearing concluded within one day, it was necessary for each of the parties to revise the estimate for her, and his, costs of the proceedings.

The Plaintiff’s revised costs, calculated on the ordinary basis, were reduced to $66,800. The balance of the Defendant’s costs, yet to be paid, calculated on the indemnity basis, was reduced to $34,500. Again, assuming the usual order for costs was made, the total amount of costs to be paid out of the estate was estimated to be $101,300. (It follows that there was an estimated saving of $30,000.)

Deducting the reduced estimate of the costs for each party, the net distributable estate out of which an order for provision for the Plaintiff could be made was agreed to be $791,601: Tcpt, 7 July 2020, Part 2 p 3(03) - (21).

The nature of the relationship between the Plaintiff and the deceased was advanced as a key issue in these proceedings. For her part, the Plaintiff described the relationship between her and the deceased as a “very close” one: Affidavit, Kathy Keaton, 26 June 2019 at par 19. The main impediment to the relationship, in the Plaintiff’s mind, was her stepfather.

However, as will be read below, there were various times at which the relationship between the Plaintiff and the deceased was not close at all. Indeed, there were periods in which the Plaintiff avoided visiting, or speaking to, the deceased. What was apparent, on the reading of all of the evidence, was that mother and daughter became estranged. What remained in dispute, however, between the parties, was the cause of that estrangement, and the significance that it had on whether an order for provision should be made.

The Plaintiff gave little evidence of the relationship between her and the deceased during her childhood, other than asserting that she was wholly dependent on the deceased during these years. Instead, most of her evidence focussed on her relationship with her stepfather.

The relevance of the Plaintiff’s relationship with her stepfather to a claim for provision out of her mother’s estate is questionable. Nonetheless, the relationship assumed a particular significance in the evidence and in the submissions. It is, therefore, necessary to consider it, albeit briefly.

The Plaintiff described the relationship with her stepfather as abusive. It was her evidence that he was violent and would physically discipline her with a belt. The Defendant confirmed that his father, the Plaintiff’s stepfather, would discipline all three children with his belt. The Defendant deposed at par 12 of his affidavit sworn 6 January 2020:

The Plaintiff, in her evidence in reply, disputed the Defendant’s characterisation of her stepfather as firm but fair. In addition to the physical abuse, she asserted that he would also verbally abuse, and bully, her. She asserted that she was singled out, from her siblings, and given an unreasonable amount of chores to do.

To a limited extent, the Plaintiff’s account was corroborated by the evidence of Susan Bugg. Ms Bugg swore an affidavit, read in the proceedings, confirming that the Plaintiff was given an extensive list of chores and that the Plaintiff was required to write lines if she failed to complete the list. Ms Bugg recalled one occasion when the Plaintiff’s stepfather was verbally abusive towards the Plaintiff. Ms Bugg was not cross-examined.

Mr Austin spent some time, in the cross-examination of the Defendant, putting to him that the Plaintiff’s stepfather had exhibited anger whilst disciplining the children. The following exchange occurred in cross-examination (Tcpt, 7 July 2020, p 49(01–28)):

When the Court enquired about the relevance of the stepfather’s conduct, Mr Austin submitted that the deceased would have known about it but, it appeared, she did not do anything to intervene or other prevent it.

The Plaintiff moved out of the family home when she was about 16 years of age. Although she asserted that she was kicked out of the home by her stepfather, that assertion was disputed by the Defendant.

The Plaintiff contended that the relationship between her and the deceased was close and supportive through this period. She deposed to the deceased loaning her money on occasions, and to them spending special occasions such as Christmas, together.

Shortly after the Plaintiff moved out of the family home, she and her siblings learned, for the first time, that the Plaintiff’s stepfather was not the Plaintiff’s biological father.

To an extent, the Defendant corroborated the nature of the relationship as the Plaintiff had asserted it. He confirmed that the Plaintiff would return to the family home every two or three weeks during a period in which she lived at Guildford, and that she would also return for special occasions. However, he deposed:

While their perception of these visits was somewhat different, it was plainly not in dispute between the parties that visits had occurred.

The Defendant also confirmed that the deceased provided the Plaintiff with financial assistance. However, he contended that the Plaintiff never paid back any of the amounts that had been loaned.

On at least one occasion, during the 1990s, the Plaintiff moved back in with the deceased and the Plaintiff’s stepfather. The Defendant asserted that, for some of this time, the Plaintiff did not pay rent or assist with household duties. Although the Plaintiff accepted that she did not pay rent, she contended that she did help out, otherwise, with household duties.

The Defendant deposed that, after the Plaintiff commenced her relationship with Mr Paterson, the deceased and the stepfather were not welcomed by the Plaintiff. He deposed, also, that the Plaintiff did not make attempts to visit the deceased and her stepfather.

When the Plaintiff and Mr Paterson were married in 2003, none of the deceased, the Plaintiff’s stepfather, the Defendant, or Ms Butler, was invited to the wedding. The Plaintiff explained that the wedding was “just a formality” and was not a big celebration.

As a result of the above, it was the Defendant’s evidence that the deceased and the Plaintiff’s stepfather were upset at the decline in their relationship with the Plaintiff. He deposed at par 28 of his affidavit sworn 6 January 2020:

The Plaintiff denied that she had prevented her children from seeing the deceased. She deposed in her affidavit in reply sworn 7 February 2020:

As is clear from the above, and as was accepted by her, in cross-examination, there were various times when the Plaintiff did not visit, or speak to, the deceased. However, the Plaintiff maintained in cross-examination that her children would continue to visit the deceased even during these periods.

In or around 2003, the deceased was hospitalised due to complications arising from a rare blood disorder. The Plaintiff gave evidence that she was a consistent source of support and care for her mother during this time. This ranged from visiting her in hospital every day, to performing household chores.

For his part, the Defendant accepted that the Plaintiff provided some assistance and did visit during the deceased’s hospitalisation in 2003. However, by reference to his own contact with the deceased during this period, he seemed to suggest the frequency and significance of such support was not as much as the Plaintiff asserted.

The Defendant also referred to an incident around Christmas 2007 where the Plaintiff and the deceased were involved in a physical altercation. While the Defendant was not present on that occasion, he deposed to his second-hand account of what occurred:

The Plaintiff did not deny that the physical altercation had occurred. She asserted that she had visited the deceased’s home looking for Ms Butler’s husband in relation to an alleged dispute over invested moneys. Following an argument between the Plaintiff and Ms Butler:

However, in cross-examination, the Plaintiff accepted the following (Tcpt, 7 July 2020, p 37(39–50)):

It was clear that, even during this period, the relationship between the Plaintiff and the deceased had begun to fray. In cross-examination, it was put to the Plaintiff, and she accepted, that she would drop her children off at the deceased’s house but would not herself get out of the car (Tcpt, 7 July 2020, p 37(16–37)):

In late 2010, the Plaintiff separated from her husband and moved in with the deceased and her stepfather. This continued, on the Plaintiff’s evidence, for approximately two months until she was “kicked out” of the family home.

The Defendant agreed that the Plaintiff had moved back in with the deceased and her stepfather in 2010. He, however, did not believe that she was “kicked out”. He suggested that she moved on of her own volition.

What emerged as a common thread through the evidence of the Plaintiff and the Defendant was that the relationship between the Plaintiff and the deceased significantly deteriorated in 2014. Unsurprisingly, they differed as to the cause of that deterioration.

In 2014, as averred to above, the Plaintiff was diagnosed with PTSD and Borderline Personality Disorder. As earlier stated, the Plaintiff believed that her PTSD was caused by the treatment suffered at the hands of her stepfather. The Plaintiff raised this belief and her concerns with the deceased. However, in the Plaintiff’s view, the deceased did not provide an appropriate level of support at this time. She deposed at pars 25–26 of her affidavit sworn 26 June 2019:

It would seem that the Plaintiff felt that the deceased was dismissive of her condition. Perhaps, more importantly, the Plaintiff considered that the deceased did not believe that the cause of that condition was, ultimately, the Plaintiff’s stepfather. This was a view that was the Plaintiff held, consistently, through the proceeding years.

In 2015, the Plaintiff recounted an incident where the deceased and Ms Butler had come to visit the Plaintiff at her home. Upon the Plaintiff raising, again, the issues concerning her condition, she deposed that an argument erupted between the deceased and her. She wrote at par 28:

The Plaintiff stated that she received support during this period from her own father, and perceived that the deceased retained a degree of animosity towards her former husband. Consequently, the Plaintiff considered that her receipt of support from her father further exacerbated the difficulties between the deceased and her.

Things did not improve in 2016 when the deceased was diagnosed with cancer. It was the Plaintiff’s evidence that she was instructed not to visit the deceased while the deceased was in hospital. She deposed at par 34:

In cross-examination, counsel put to the Plaintiff that, by the end of 2015, she felt hostile towards the deceased. He suggested that it was this hostility that was the reason that the Plaintiff ceased contacting the deceased. The following exchange occurred at Tcpt, 7 July 2020, p 38(19–33)

Counsel continued with this line of cross-examination and put to the Plaintiff that she was never told not to visit the deceased in hospital. He suggested, again, that it was the Plaintiff’s hostility towards the deceased that caused her not to visit the deceased when the deceased was unwell. Although the Plaintiff maintained that she had been instructed not to attend the hospital, she appeared to accept that her anger towards the deceased had played some part in her behaviour during this period (Tcpt, 7 July 2020, p 39(49) – p 40(04)):

The content of the Facebook post, to which Mr Lloyd referred, is a matter to which I will return below.

The Defendant’s evidence, again, portrays the relationship between the Plaintiff and the deceased during this period in a different light. He asserted that the deceased had been supportive of the Plaintiff following the diagnosis and it was the Plaintiff who had caused the deterioration in the relationship. He deposed at par 35 of his affidavit:

Similarly, the Defendant deposed, in respect of the incident in 2015:

Of particular relevance, in the case advanced by the Defendant, was a Facebook post, made by the Plaintiff, in or around August 2015. The Defendant annexed a copy of the post to his affidavit sworn 6 January 2020. The post, better described as a comment on another post, was in the following terms:

The Plaintiff did not deny that she made the above post. She responded at par 41 of her affidavit sworn 7 February 2020:

In cross-examination, the Plaintiff accepted that the post was public. She expressed her regret in making the post, explaining that she was “angry at the time” and that she had “worked through a lot of those emotions now”: Tcpt, 7 July 2020, p 39(09–12).

The Defendant categorically denied that the Plaintiff was instructed not to visit the deceased whilst she was hospitalised in 2016. It was his evidence that it was simply the Plaintiff’s choice not to visit, or enquire about, the deceased. He referred to another occasion, in March 2018, when the deceased was again in hospital. Whilst visiting the deceased, the Defendant met the Plaintiff at the hospital. The Plaintiff, coincidentally, was there visiting her son who was undergoing knee surgery. Despite spending some time with the Plaintiff and her son, the Defendant asserted that she did not enquire about the deceased nor offer to visit her.

The Plaintiff, in cross-examination, whilst agreeing that she did not enquire, simply said that as the Defendant had informed her about the deceased’s condition during their time together, this was unnecessary.

In her evidence in reply, the Plaintiff explained that she felt unwelcome, and, for that reason, had not offered to visit the deceased despite being at the hospital. Thus, there was no dispute that she did not visit the deceased on this occasion, despite being at the hospital.

Ultimately, the Defendant considered that the deterioration in the relationship was the responsibility of the Plaintiff through the choices she had made. As a final example of those choices, the Defendant deposed at par 48:

The Plaintiff, in cross-examination, did not deny that this had occurred. She accepted that it had occurred on a number of occasions, including on some occasions prior to 2015. On one view, the Plaintiff’s conduct in this regard is symptomatic of the increasingly poor relationship between her and the deceased. However, the Plaintiff’s persistence in allowing, and encouraging, her children to have a relationship with their grandmother is a matter that does the Plaintiff some credit.

(In a case defined by bitter disputes between family members, it serves as some small consolation to know that the Plaintiff’s children continued to have a relationship with the deceased.)

In her oral evidence, the Plaintiff considered that her anger at the deceased had subsided by 2017. Despite that, she did not make any attempt to reconcile, or to repair, their relationship. At Tcpt, 7 July 2020, p 46(18–30), the following exchange occurred:

The Plaintiff did, however, make an attempt to see the deceased at the hospital in the last few days of her life. That attempt was, it appears, unsuccessful. The Plaintiff deposed:

The Plaintiff’s evidence in this respect was, to an extent, corroborated by the evidence of Sarah Collins. Ms Collins swore an affidavit, dated 14 February 2020, deposing to conversations with both the deceased and the Defendant. In each conversation, Ms Collins recalled being told that the deceased did not want the Plaintiff at her funeral.

Perhaps, this demonstrates the extent to which the relationship between the Plaintiff and the deceased had deteriorated. Ms Collins was not cross-examined.

Despite all that I have written on the topic of the relationship between an applicant and the deceased, I remember what was written by Campbell JA (Giles JA and Handley AJA agreeing) in Hampson v Hampson (2010) 5 ASTLR 116 at 133 [79]; [2010] NSWCA 359 at [80]:

There was limited evidence of the testamentary intentions of the deceased. The Plaintiff deposed at par 23 of her affidavit sworn 26 June 2019:

The Defendant contested this portrayal of the deceased’s testamentary intentions, although he did not dispute (nor could he) that the conversation to which the Plaintiff referred had occurred. However, the Defendant deposed at par 33 of his affidavit sworn 6 January 2020:

By the date of the deceased’s Will, 27 May 2018, the relationship between the Plaintiff and the deceased had deteriorated significantly. It is, therefore, unsurprising that the Plaintiff did not receive an equal share of the residuary estate.

I shall return below to the relevance of the deceased’s testamentary intentions in assessing a claim for provision made under the Act.

The Plaintiff is currently 50 years of age. She is separated from her husband, Mr Paterson, but no divorce order has been entered. Currently, she lives in rented accommodation in Lake Haven, a suburb of Wyong on the Central Coast of New South Wales. She resides there with her sons, Scott and Blake, and her father, Mr Keaton.

The Plaintiff has few assets. In her updating affidavit sworn 4 June 2020, she deposed to a small amount of cash in bank ($863) and two superannuation accounts (totalling $54,833). The Plaintiff’s Centrelink Income Statement dated 15 May 2020 disclosed household and personal effects valued at approximately $5,000. It would also appear that she owns a car, the value of which was not disclosed.

Shortly after swearing that affidavit, the Plaintiff received $24,185 as her share of the deceased’s superannuation death benefit. The balance in her bank account as at 19 June 2020 was approximately $23,832.

In her primary affidavit sworn 26 June 2019, the Plaintiff disclosed owning shares in Suncorp valued at approximately $1,884. An updated valuation of these shares, assuming the Plaintiff still possesses them, was not provided.

Her liabilities total approximately $19,089, comprising an amount owed on a credit card ($4,675) and a car loan ($14,414).

The Plaintiff is employed as a call centre consultant and receives a gross income of $31,934 per annum. In her oral evidence, she accepted that, in view of deductible expenses, she paid very little, if any, tax on that income. She accepted that, in some years, she might even receive a tax refund, and in others, she might incur a tax liability of around $1,000.

The Plaintiff receives child support in the amount of $25 per month.

In addition to her income for her employment and the child support payments, the Plaintiff receives Centrelink benefits related, inter alia, to her status as a carer for her son, Scott. As at 15 May 2020, the Plaintiff was receiving approximately $587 per fortnight less a deduction of $80 (being for repayments of a loan and a speeding fine).

In cross-examination, the Plaintiff clarified that the amount she receives from Centrelink varies from time to time. Her entitlement may increase when she borrows money from Centrelink or when she does not work a particular day or week. Equally, her entitlement may decrease, as averred to above, when she repays those borrowed amounts.

By the date of the hearing, the Plaintiff had ceased receiving a family tax benefit payment connected to her youngest son, Blake. She confirmed, in her oral evidence, that she does not receive any additional payment in lieu of the family tax benefit.

The nature of the Plaintiff’s Centrelink entitlements caused some confusion at the hearing. Mr Lloyd’s submission, albeit using a document from one of the Plaintiff’s earlier affidavits, was that the Plaintiff receives approximately $445 per week in benefits: Tcpt, 7 July 2002, p 76(25–49). Conversely, Mr Austin submitted, with the aid of calculations prepared by his instructing solicitor, that the Plaintiff received between $539 and $587 per fortnight: Tcpt, 7 July 2020, p 83(19–21).

The confusion as to the amounts the Plaintiff was receiving from Centrelink seemed to be caused by the fluctuating nature of the amounts in her bank statements. However, it emerged, during the Plaintiff’s cross-examination, that the disability support pension paid to Scott was paid directly into the Plaintiff’s account. That amount is approximately $941 per fortnight.

The Plaintiff also receives payments each month from each of Mr Keaton and Blake. Such payments are in the nature of rent or board, and are put towards the joint expenses of their home. From Blake, she receives from his income, by way of direct deposit into her bank account, $250 per week. The Plaintiff’s bank statements, to which she was taken in cross-examination, indicate that she receives a fortnightly amount of $350 from Mr Keaton.

The Plaintiff disclosed that her monthly expenses were in the order of $4,100. In cross-examination, the Plaintiff clarified that the $4,100 figure included amounts spent for Blake and her share of the household expenses. She accepted that in calculating that figure she had not accounted for the contribution of $250 per week that Blake made to his share of the expenses. She also accepted that there was no accounting for those of Scott’s expenses that she paid, in part, out of his disability support pension which was paid into her account.

The Plaintiff also revealed in cross-examination that she spends approximately $400 per week on cigarettes for herself. Her oral evidence was somewhat unclear as to whether that amount had been included in the estimated total monthly expenditure as she had only allowed $1,200 per month for groceries. At Tcpt, 7 July 2020, p 18(37–44), she gave evidence that “there’s more that’s spent for Scott on cigarettes …”.

Some reference has already been made to the Plaintiff’s medical conditions. She has been diagnosed with PTSD and Borderline Personality Disorder. For those conditions, she consults a clinical psychologist and a general practitioner. She also takes medication on an “as needs basis”. She stated that the costs of some of her “medical scripts” had been included within the $4,100 figure she provided for monthly expenses.

The Plaintiff also deposed that she wanted to engage in further cognitive behaviour therapy, and, if necessary, electroconvulsive therapy. At present she does not have the financial means to pursue these treatments.

The Plaintiff was diagnosed with breast cancer in 2012, but is presently in remission. She requires regular scans every 12 months.

As would be apparent from the references to her carer’s entitlement above, the Plaintiff is the sole carer of her son, Scott. He has been diagnosed with social anxiety, psychotic depression and blepharospasm (a neurological disorder characterised by involuntary muscle contractions and spasms of the eyelid). The Plaintiff cares for Scott in most aspects of his life including his medication and treatment, his finances and other everyday tasks.

In one of her earlier affidavits, the Plaintiff also described her youngest son Blake as financially and emotionally dependent on her. She deposed that he had been diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. Although the Plaintiff was not challenged on any of that evidence, it is clear that Blake has gained some financial independence through his employment. Nonetheless, I accept it as likely that the Plaintiff continues to fulfil a care and support role for Blake.

The Plaintiff described her needs as, first and foremost, to pay off her liabilities. She also expressed a desire to purchase a home for her and her family to afford them with greater financial security. As averred to above, she also seeks to join a private health fund and, additionally, to cover the costs of further medical treatment. Finally, she also deposed to the need for a sum for the contingencies of life. In this regard she pointed to Scott and her ongoing health issues, and her inability to work when either of them is unwell.

At the commencement of the hearing, the Plaintiff tendered, without objection, extracts of medical records relating to the Plaintiff: Ex P1.

Some of the documents in Ex P1 merely confirmed the nature of the Plaintiff’s medical conditions. For example, Ex P1/197 was a copy of the Plaintiff’s Patient Health Summary from Grace Medical Care. It confirmed that in 2012 the Plaintiff was diagnosed with breast cancer and in 2014 she was diagnosed with PTSD and Borderline Personality Disorder.

The Defendant did not dispute that the Plaintiff suffered from these conditions.

Other parts of Ex P1 were relied on variously by Mr Austin and Mr Lloyd to show a connection, or lack of connection, between the Plaintiff’s medical conditions and her conduct towards the deceased.

Although I will return to the submissions made by both counsel below, it suffices to say that the medical evidence was equivocal as to any link between the Plaintiff’s medical conditions and her conduct towards the deceased.

In some documents, the Plaintiff disclosed that she felt her concerns were discounted, or invalidated, by the deceased. For example, at Ex P1/200 was a copy of a record of a surgery consultation by Dr Oliver Weir dated 22 July 2019:

At Ex P1/205, there was a copy of a surgery consultation record dated 22 February 2018 from Dr Rukhsana Javed. The record relevantly provided:

There were other passages that merely referred to the Plaintiff’s relationship with the deceased as being a source of stress without referring to the actions of the Plaintiff’s stepfather. For example, in a letter dated 15 March 2018, (Ex P1/230), Dr Javed listed, amongst other things, as a “Barrier”:

Other passages in the medical records indicated that there were other aspects of the Plaintiff’s life that were causing her emotional difficulty. Variously these included issues with the care of her son Scott (Ex P1/209, Ex P1/212, Ex P1/235), Mr Keaton coming to live with her (Ex P1/215), her relationship with her partner (Ex P1/262), and a misdiagnosis of bipolar disorder (Ex P1/219).

Finally, there were other handwritten records commencing after the date of the deceased’s death, which contained much the same information as the Plaintiff’s affidavits. For example, at Ex P1/281–283 dated 27 July 2019:

In another similar handwritten note, dated 2 August 2019, at Ex P1/286:

Similarly, at Ex P1/287, a note dated 19 October 2019 recorded:

At Ex P1/291, in a note dated 16 November 2019:

In a letter dated 5 December 2019, from Ms Stella Bowring, clinical psychologist, the following is recorded:

I have benefited from the written submissions provided by both Mr Austin and Mr Lloyd prior to the hearing and from their detailed oral submissions at the conclusion of the hearing. I have carefully considered each of the submissions made and shall only refer to certain submissions, by way of emphasis, below.

Mr Austin put at the commencement of his written submissions that “[e]strangement lies at the heart of the case”. He referred to my decision in Rogers v Rogers [2018] NSWSC 1982 for the relevant principles in cases of estrangement. I will return to what I said in that case below.

As to the relationship between the Plaintiff and the deceased, Mr Austin referred to the Plaintiff’s evidence regarding her PTSD. He echoed her evidence that the reason for the estrangement was the deceased’s refusal to acknowledge that the abuse the Plaintiff suffered at the hands of her stepfather was the cause of her PTSD. He submitted that the Plaintiff’s evidence as to the abuse was corroborated by the evidence of Ms Bugg, to which reference has been made above.

As to the Defendant’s apparently contradictory evidence, Mr Austin submitted at par 35 of his written submissions:

I remember, in this regard, as I must, the comments of Campbell JA (Bergin CJ in Eq and Sackville AJA agreeing) in Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 179 [66]; [2012] NSWCA 431 at [67]:

Mr Austin also pointed to the failure of the Defendant to call Ms Butler to give evidence. In the circumstances of the case, which centred heavily on estrangement, he submitted that it was appropriate to make a Jones v Dunkel inference: see Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J), 320–321 (Windeyer J); [1959] HCA 8.

Mr Austin submitted that, even accepting the Defendant’s evidence, the evidence as a whole did not lead to the conclusion that the estrangement was the Plaintiff’s fault alone, or that there was real antagonism directed by the Plaintiff towards the deceased.

He submitted in conclusion on this issue at par 39:

In oral submissions, Mr Austin expanded on this issue. He submitted that the Plaintiff’s diagnoses of PTSD and Borderline Personality Disorder “created a level of disharmony and anger in the plaintiff’s mind”: Tcpt, 7 July 2020, p 57(22–23). He submitted that expert medical evidence to demonstrate a link between the Plaintiff’s conditions and her conduct and anger towards the deceased was not necessary (Tcpt, 7 July 2020, p 58(10–26)):

Mr Austin clarified that he did not make this submission as an excuse for the Plaintiff’s behaviour, but as an explanation for it. He conceded that the Plaintiff had not made any attempts at reconciliation but said that neither had the deceased.

He also submitted that the conduct of the Plaintiff’s stepfather, and the physical discipline suffered by the Plaintiff, was of relevance to the Plaintiff’s claim. He submitted (Tcpt, 7 July 2020, p 62(14–22)):

He returned to the submission that it was connection between the Plaintiff’s conditions, said to arise from the conduct of her stepfather, and the Plaintiff’s conduct and anger towards the deceased, which was presently relevant. Mr Austin pointed to two passages in the medical evidence that, he said, showed that connection. The first at Ex P1/200 was a record of a surgery consultation by a Dr Oliver Weir. The record relevantly provided:

Secondly, he pointed to a Progress Psychological Report & Mental Health Care Plan Review prepared by Arthur D Cooke, clinical psychologist. Mr Cooke wrote (Ex P1/256):

It was his submission that the evidence, including the medical evidence, largely supported the sense of abandonment by the deceased that was felt by the Plaintiff.

Finally, Mr Austin submitted that the provision of $10,000 made for the Plaintiff in the deceased’s Will was not adequate and proper in the circumstances. He submitted at par 46 of his written submissions:

Mr Austin submitted, in his written outline, that an appropriate order for provision was in the range of $150,000 to $200,000. By the conclusion of his oral submissions, in view of the value of the estate, he submitted that any order for provision should be towards the lower end of that range.

Mr Lloyd, on behalf of the Defendant, frankly accepted that there were some factors supporting the Plaintiff’s claim that adequate and proper provision was not made by the deceased’s Will. However, he submitted that the “lack of any established financial need and the abandonment of the relationship with her mother by the plaintiff” were decisive factors against the Plaintiff’s claim.

It was Mr Lloyd’s primary submission that the Plaintiff’s current financial resources were sufficient to meet her asserted needs, with the exception of the purchase of a home. He submitted that the funds the Plaintiff received from the deceased’s superannuation death benefit coupled with the $10,000 legacy to which the Plaintiff was entitled under the terms of the Will, were sufficient to meet all of the Plaintiff’s current liabilities.

He also submitted that the Plaintiff has a surplus of income over expenditure, and that surplus could be used to pay for any additional medical treatment which the Plaintiff wished to undergo.

Finally, he submitted that the Plaintiff had a realistic expectation of being a beneficiary under her father’s Will. There was, however, no evidence going to Mr Keaton’s financial resources. Nor was his Will (if one exists) in evidence.

Mr Lloyd referred to the Plaintiff’s explanation for the estrangement as being her diagnosis of PTSD as being a matter in dispute. He submitted at par 42:

Mr Lloyd squarely faced the conflicting accounts of the Plaintiff and the Defendant. However, he submitted that, ultimately, it may not be necessary to resolve those conflicts:

In his submission, the attitude of the Plaintiff towards the deceased was demonstrated by the Facebook post, to which reference has been made above.

Mr Lloyd submitted, in conclusion, that the Court should not interfere with the deceased’s provision for the Plaintiff in her Will.

In his oral submissions, Mr Lloyd also expanded upon his written outline. He reiterated his submission that the true reason for the estrangement was the Plaintiff’s hostility expressed, inter alia, in the Facebook post. In making that submission he accepted that there was some force in what was put against his case, namely that the Plaintiff was unable to control her emotions due to her medical conditions. However, he emphasised that there was a lack of medical evidence linking the Plaintiff’s conduct to her medical conditions (Tcpt, 7 July 2020, p 69(38–47)):

Mr Lloyd continued, postulating that even if it were right that the Plaintiff subjectively considered that the deceased had failed to acknowledge what was said to have been the true cause of the PTSD, this did not determine the matter. He submitted (Tcpt, 7 July 2020, p 71(38–44)):

Mr Lloyd then turned to the financial circumstances of the Plaintiff. It was his submission that the evidence as to the Plaintiff’s income and expenditure was wholly unsatisfactory. I have already discussed above what Mr Lloyd submitted was the correct figure for the Plaintiff’s income.

The final point that Mr Lloyd sought to make in his oral submissions was that many of the Plaintiff’s identified needs fell away in light of the payment from the deceased’s superannuation death benefit and what had emerged as to the Plaintiff’s financial circumstances.

I have, in many cases, described the statutory scheme and the general principles which guide its construction. For the benefit of the parties, I shall repeat the relevant principles.

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

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

Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased’s Will applies unless a specific application is made and acceded to by the Court.

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

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211; [1994] HCA 40 at [20]–[24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434–435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J).

“Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97 [34]; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], 145–146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.

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

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

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

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

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

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

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

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

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

Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of “needs” which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J).

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

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

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

Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:

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

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

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

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

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

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

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a “multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the Court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

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

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors.

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

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.

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

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

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

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

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

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

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

Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants.

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

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

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

Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

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

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

The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.

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

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

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

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

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

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

As this is a case where the Plaintiff is an adult child of the deceased, it is necessary to the principles that guide the determination of such an application. I have referred to those principles in many cases, and merely repeat them here:

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

I set out the principles relevant to family provision claims in the case of estrangement in Underwood v Gaudron [2014] NSWSC 1055 at [230]–[233]. An appeal from that decision was dismissed by the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269. Their Honours did not express any disapproval of the summary that I had set out at first instance.

As I observed in Rogers v Rogers at [150], a case to which Mr Austin made reference, the summary I provided in Underwood v Gaudron has been referred to, without disapproval, and in some cases with approval, in a number of subsequent authorities. To those authorities may be added the recent decision of Tottle J in Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410 at [282].

I repeat what I wrote in Underwood v Gaudron:

In Rogers v Rogers at [152]–[154] I added:

I also note the concise observations of Doyle J (Vanstone and Parker JJ agreeing) in Tiburzi v Butler (2017) 17 ASTLR 1 at 17 [106]; [2017] SASCFC 89 at [106]:

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

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

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

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

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

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

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

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

As already averred to, there was no dispute that the Plaintiff was an eligible person. Nor was it in dispute that she commenced her claim within time. The first question, therefore, is whether, at the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has been made by the deceased’s Will.

What is written below should be read as a continuation of what has been written above. In coming to the conclusion expressed below, I have had regard to the factual matters set out above.

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

The Court is required to make, and I have made, an assessment of the financial position of the Plaintiff, the size and nature of the deceased’s estate, the relationship between the Plaintiff and the deceased, and the competing moral, and financial, claims of the beneficiaries: see, for example, McCosker v McCosker at 571–572 (Dixon CJ and Williams J); [1957] HCA 82; Singer v Berghouse at 209–210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [16] (Gleeson CJ), [75] (Gummow and Hayne JJ), and [112] (Callinan and Heydon JJ); and Tobin v Ezekiel at [70] (Meagher JA). I have also remembered that neither of the beneficiaries gave evidence of his, or her, financial resources and needs.

As would be apparent from the evidence as set out above, the relationship between the Plaintiff and the deceased was advanced as the major issue in this case. In assessing that relationship, I have been mindful not to descend into the minutiae of the interactions between the Plaintiff and the deceased. I have also remembered that the precise cause of that estrangement was a matter of dispute between them. Ultimately, it is neither desirable, nor possible on the evidence before me, to determine with any degree of confidence the precise cause.

While the estrangement was of a not insignificant period, such an estrangement in my view did not destroy the ties between the deceased and the Plaintiff. The relationship does not, in the circumstances of this case, preclude an order for provision being made for her.

The Plaintiff is not in a strong financial position. Despite Mr Lloyd’s submission to the contrary, I am satisfied that she cannot meet all of her needs out of the surplus of her income, should such a surplus exist. (It would exist if, perhaps, less was spent on cigarettes, but this is a choice that the Plaintiff, herself, must make.)

In all the circumstances, I was satisfied that a lump sum of $10,000 made in the Will of the deceased constituted inadequate provision. In coming to that conclusion, I have remembered that the Defendant and Ms Butler were the chosen objects of the deceased’s testamentary bounty.

The next question is what provision “ought to be made for … her, maintenance … or advancement in life”, having regard to the facts known to the Court at the date of hearing. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or exact, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made. However, similar considerations as are set out above often arise.

It is quite clear, as I have set out above, that the Plaintiff and the deceased had virtually no contact from late 2015 until the date of the deceased’s death. Although that estrangement does not preclude an order for provision being made, it does in my opinion, in the circumstances of this case, restrain the amplitude of the provision to be made for her.

Remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I was satisfied that a lump sum should be provided for the Plaintiff out of the deceased’s estate which will provide her with an ability to pay off all of her debts, and leave a fund for the exigencies of life.

I concluded that the Plaintiff should receive, in lieu of the provision made for her in the Will of the deceased, a lump sum equal to $95,000. Taken with the amount that she received from the deceased’s superannuation, that, in my view, constituted adequate and proper provision for her maintenance and advancement in life.

That leaves, on present calculations, approximately $696,000 to be distributed between the Defendant and Ms Butler as residuary beneficiaries. Each of them therefore receives $348,000.

At the commencement of the hearing, counsel indicated that I would not be able to deal with costs as part of these reasons. The implication from that being that there may, depending on the result, have been some documents either or both wished to tender on the issue of costs.

In view of the fact that I informed the parties of the result and my orders at the conclusion of the hearing, I was able to deal with the issue of costs immediately.

At that time, neither party sought to tender any documents or make any submissions that I should make an order other than the usual order as to costs.

The principles relevant to the exercise of the Court’s discretion as to costs are well known, and I do not propose to repeat them here.

To their credit, the parties were able to agree on the quantum of the Plaintiff’s costs. This enables me to make an order pursuant to s 98(4)(c) for costs to be paid in a specified gross sum instead of assessed costs. Such an order saves the parties from the costs of assessment and prevents further delay in the administration of the deceased’s estate.

In view of the above, I made the following orders at the conclusion of the hearing: