Wengdal v Rawnsley

1. [1]

   HIS HONOUR: These are contested family provision proceedings in which two sisters, Jill Wengdal, the Plaintiff, and Susan Christine Rawnsley, the Defendant, are pitted against each other in respect of the estate of their mother, Margaret Mannell Rawnsley (“the deceased”), who died on 8 September 2017, aged 95 years.

2. [2]

   This is also a case in which an adult child of the deceased, who is, and had been, for many years, independent, and self-sufficient, wishes to obtain a greater share of the estate of her mother, in circumstances where her mother, after due consideration, came to the view that she was not entitled to any more provision from her estate than that which she provided in her Will, and where she provided to the solicitor, who drafted the last Will, the reasons for her decision in that regard.

3. [3]

   At the conclusion of the hearing, on the second day, I adjourned to consider the oral submissions that had been made and the matter generally. I informed the parties that, upon my return to the Bench, I would announce my decision, then hear any argument on costs, and then publish my reasons as soon as practicable thereafter. (In this regard, I had been informed, at the commencement of the hearing, that each party had served at least one Offer of Compromise: Tcpt, 17 June 2019, p 11(12-24)).

4. [4]

   I took this course because, in my view, the result of the case was clear and because I did not wish the parties to incur additional costs in having an argument about costs after I had published my reasons. Furthermore, there was time, after submissions had concluded, to deal with the argument about costs.

5. [5]

   Upon my return, I informed the parties that I proposed to order that the Plaintiff’s Summons be dismissed. Then, I heard the argument on costs to which I shall refer. I concluded that the Plaintiff should pay the Defendant’s costs, calculated on the ordinary basis, rather than on the indemnity basis, of the proceedings. Those orders were then made. These are my reasons for those orders.

Some uncontested formal matters

1. [6]

   The Plaintiff commenced the proceedings by Summons filed on 8 May 2018, in which she made a claim for an order for further provision out of the deceased's estate and notional estate, pursuant to the Succession Act 2006 (NSW) (“the Act”), an order for interest, under s 100 of the Civil Procedure Act 2005 (NSW), and an order for costs. (At the commencement of the hearing, counsel for the Plaintiff agreed that the claim for interest would be under s 84A(3) of the Probate and Administration Act 1898 (NSW). This was appropriate. In view of the conclusion that I reached, any formal amendment is unnecessary.)

2. [7]

   Relevantly, the Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.

3. [8]

   The Defendant is the sole executrix named in the deceased’s duly executed Will, dated 18 March 2013. This Court granted Probate of that Will to her on 19 October 2017.

4. [9]

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

5. [10]

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

6. [11]

   A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Chapter 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

7. [12]

   There are said to have been distributions, to the Defendant, from the bank accounts of the deceased, particularly after the deceased’s death, which have reduced the quantum of the actual estate. Section 78(1) of the Act provides that the Court may make an order designating property as notional estate only: (a) for the purposes of a family provision order; or (b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. The Court must not make such an order regarding costs unless the Court makes or has made a family provision order in favour of the applicant: s 78(2) of the Act. The Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made or the costs to be paid: s 89(2).

8. [13]

   Although it will be necessary to refer to the value of the property that could be designated as notional estate, it is not necessary to refer, in more detail, to the applicable parts of the Act relevant to the designation of such property, as it was clear, on the Plaintiff’s case as advanced during the hearing, that the deceased's actual estate was sufficient for the making of the family provision order sought to be made, and any order as to costs that the Court might be of the opinion should be made: s 88(b) of the Act.

Background Facts

1. [14]

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

2. [15]

   The deceased was born in January 1922. At the age of 20, in January 1943, she married Lloyd Thaxter Rawnsley, and remained married to him, until his death, in August 1987. There were only two children of their marriage, being the Plaintiff, who was born in May 1945, and who is currently 74 years of age, and the Defendant, who was born in December 1949, and who is currently 69 years of age.

3. [16]

   The deceased’s Will, relevantly, provided for “30 percent [sic] (30%) of any monies held in any financial institution by me on deposit to my daughter [the Plaintiff]” and for the residue of her estate to pass to the Defendant.

4. [17]

   There was no dispute that despite the fact that the amount currently held on deposit has been reduced, the Plaintiff is entitled to 30 per cent of the amount that existed at the date of death of the deceased: Tcpt, 17 June 2019, p 88(19-42).

5. [18]

   In the deceased’s Will, the attestation Clause noted that the deceased “being visually impaired, this Will was read to her … whereupon the Testatrix stated that she knew and approved its contents”. This is relevant because the Plaintiff complained about the circumstances in which the Will was made. However, previously, she had made no attack on the validity of the last Will of the deceased. There was no merit in her complaints.

6. [19]

   In the Inventory of Property attached to, and placed inside, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, gross value of $414,215. The estate was said to consist of the refund of the ingoing contribution of a leasehold interest in a retirement village ($300,000), and money in three bank accounts ($2,936, $159, and $111,119).

7. [20]

   In an affidavit sworn on 24 October 2018, the Defendant disclosed that, in addition to the amounts stated above, at the date of the deceased’s death, the estate also had assets in the form of shares ($1,107). Therefore, the total value of the estate, at the date of death, was $415,352. (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

8. [21]

   Although no liabilities of the estate are identified in the Inventory of Property, the Defendant, in an affidavit sworn on 24 October 2018, disclosed some liabilities which, in total, amounted to $26,276. The liabilities included an unpaid legal bill ($1,248), recurrent charges to the retirement village, in which the deceased had, for a period of time, lived ($15,563), funeral expenses ($7,920), an unpaid pharmacy bill ($533) and a debt to the Defendant for the catering costs of the wake ($1,012). At the time she swore that affidavit, the Defendant had access to a letter dated 3 October 2017, being a Preliminary Assessment with respect to the retirement unit in which the deceased had lived, which letter revealed potential liabilities of $170,236.

9. [22]

   It was accepted that the Defendant did not disclose, to the Plaintiff, the potential liabilities referred to, until a copy of the letter was annexed to her affidavit sworn on 8 May 2019, and served upon the Defendant, on 10 May 2019, that is to say, about 5 weeks prior to the hearing. No explanation for the non-disclosure of the letter, and the potential liabilities, was provided by, or on behalf of, the Defendant.

10. [23]

    The potential liabilities of $170,236, in respect of the retirement unit in which the deceased lived, does not include any amount for commission that will be payable to a real estate agent, to market, and sell, the leasehold interest in the retirement unit (which has not, as yet, been sold). At the hearing, the parties agreed that the commission should be estimated to be $10,000.

11. [24]

    Then, the parties agreed that, at the date of hearing, the deceased’s estate consists of the value of the leasehold interest in the retirement unit (estimated to be $400,000) and moneys held in the Defendant’s solicitor’s trust account ($56,451).

12. [25]

    The Defendant, in her affidavit of 8 May 2019, confirmed that a number of payments and distributions had been made, following the death of the deceased out of the estate, which had reduced the cash available in the estate. These included the payment of a pharmacy bill ($640), the reimbursement of what were said to be “reimbursement of executor’s expenses” for the wake ($1,012) and otherwise ($6,540), the payment of an insurance premium payment ($381) and a brokerage fee for sale of shares ($100), the payment of courier and copying charges incurred in complying with notice to produce ($368) and a landlord’s insurance premium ($389). In addition, there were distributions made, to the Defendant, of $21,581.

13. [26]

    (There were various administration costs and some costs on account of these proceedings also paid out of the estate. I shall refer to the Defendant’s costs and disbursements of the proceedings shortly.)

14. [27]

    It follows, if these estimates prove accurate, that the value of the actual estate ($456,451), less the deductions that may be payable on the sale of the leasehold interest ($180,236), out of which an order for provision for the Plaintiff may be made, and any costs ordered to be paid, will be $276,215.

15. [28]

    If the amount distributed to the Defendant were to be designated as notional estate ($21,581), the total value of the estate and notional estate, excluding the costs of the proceedings, if any are payable out of the estate, will be $297,796. On either calculation, this is an estate of small value.

Eligible Persons

1. [29]

   There was no dispute that the only eligible persons are the Plaintiff and the Defendant. Only the Plaintiff has made a claim for a family provision order. However, the Defendant has given evidence of the bases of her claim on the bounty of the deceased. She has also raised her financial circumstances as a competing financial beneficiary. She was cross-examined.

2. [30]

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

The Costs of the Proceedings

1. [31]

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

2. [32]

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

3. [33]

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

4. [34]

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

5. [35]

   Although Mr T Goldberg, a solicitor in the office of the Plaintiff’s solicitors, swore an affidavit on 30 April 2018 referring to the Plaintiff’s costs of the proceedings, calculated on the ordinary basis, up to the date of the mediation, he did not disclose, in that affidavit, that the Plaintiff had entered into a conditional costs agreement with his firm. He should have done so.

6. [36]

   However, in an affidavit affirmed on 13 May 2019, by Ms M Assudani, a solicitor in the employ of the solicitors acting for the Plaintiff, the estimated costs and disbursements, inclusive of GST, to the date of the affidavit, was said to total $78,347, all of which remained unpaid. Of that amount, $11,070 was described as “an uplift premium pursuant to the conditional costs agreement between Turner Freeman and the Plaintiff”.

7. [37]

   Ms Assudani estimated that the further costs and disbursements, inclusive of GST would total $38,500, of which $4,000 was “the uplift premium applicable to the future”.

8. [38]

   Ms Assudani estimated the total costs and disbursements, calculated on the indemnity basis, to completion of the hearing, were $116,847, and that those costs, calculated on the ordinary basis, were estimated to be $70,108.

9. [39]

   The Court sought to clarify the contents of this affidavit, to determine the Plaintiff’s costs, calculated on the ordinary basis without the uplift factor. Ultimately, without objection, the Court was informed, from the Bar table, that the Plaintiff’s costs, calculated on the ordinary basis, excluding the uplift factor, were estimated to be $52,581 and that the uplift fee was 25 per cent: Tcpt, 17 June 2019, p 6(29-45).

10. [40]

    Section 181 of the Legal Profession Uniform Law (NSW) deals with "conditional costs agreements" and states that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Section 182 provides that a conditional costs agreement may provide for the payment of an uplift fee.

11. [41]

    Because a copy of the conditional costs agreement was not in evidence, I am unable to state whether the conditional costs agreement, in the present case, is one that complies with s 181. However, for the purpose of this aspect, I shall assume that it does. I also do not know its precise terms, including whether the Plaintiff is liable for disbursements in the usual way, whatever the result of the proceedings. One assumes that it results in what is often described as “no win, no fee”.

12. [42]

    Neither party made any submissions, in writing, as to the entitlement of a Plaintiff to an additional amount for costs for the uplift fee, or the reasons why any such amount should be passed on to a Defendant by an order for costs calculated on the ordinary basis. Perhaps, this is because the Plaintiff accepted, at the hearing, that the “uplift fee” was not part of the ordinary costs of the Plaintiff: Tcpt, 17 June 2019, p 6(47) – p 7(1); G E Dal Pont in Law of Costs, (3rd ed 2013, LexisNexis) at [17.55]; Stojanovski v Stojovski [2016] NSWSC 976. (Also see, Day v Perpetual Trustee (Master Macready, 3 August 2001, unrep) in which the Court dealt, at length, with the reasons for not usually allowing the charge of an uplift factor. It was regarded as a financing cost which should not be passed on to the residuary beneficiaries.)

13. [43]

    There can be little doubt that “[C]onditional costs agreements … discharge an important utilitarian function in facilitating access to justice. Many potential litigants are deterred from enforcing their legal rights and entitlements due to inadequate economic resources. Conditional costs agreements allow for the re-allocation of risk among the litigant and the legal practitioner. In exchange, the legal practitioner is entitled to a modest uplift fee reflecting their assumption of a proportion of the risk by conducting the matter on a speculative basis”: Frost v Miller [2015] QSC 206, per Carmody CJ, at [16].

14. [44]

    However, in some cases, there is also merit, in what, recently, was written in Olsen v Olsen [2019] NSWSC 217, by Pembroke J, at [6]:

15. [45]

    In an affidavit sworn on 15 May 2019, by Mr R S Dunn, the Defendant’s solicitor, the costs and disbursements of the Defendant were estimated to be $79,440. He did not disclose, in this affidavit, that $23,736 had been paid, out of the deceased’s estate, on account of the Defendant’s costs and disbursements of the proceedings. Thus, the balance of the Defendant’s costs and disbursements will be $55,704.

16. [46]

    Taken with the Plaintiff’s costs, calculated on the ordinary basis, and exclusive of any uplift fee, the total costs that could be ordered to be paid out of the estate, would be $108,285. That amount would impact, significantly, on the value of the estate.

17. [47]

    It follows that if all of the estimates proved accurate, and if all of the costs (other than the uplift fee), calculated on the usual basis ($108,285), were ordered to be paid out of the actual estate and the estimated amount that could be available to be designated as notional estate (in total $297,796), would be $189,511. Without any order designating property as notional estate, the value of the estate out of which an order could be made would be $167, 930.

18. [48]

    The Court, in all jurisdictions, has referred, many times, to the overriding purpose of the Civil Procedure Act, as contained in s 56, which is "... to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Furthermore, the costs of proceedings should be proportionate to the importance, and complexity, of the subject matter in dispute: s 60 of the Civil Procedure Act. In addition, in the context of a claim for a family provision order, the costs should be proportionate to the value of the deceased's estate and notional estate, and the family provision order, if any, that may be made in the proceedings.

19. [49]

    (Whilst, in some cases, there may be some difficulty in predicting a result, particularly in a case in which there are factual disputes, and, even though there is no costs matrix, or formula, that can be applied, any uncertainties, in the present case, this cannot provide an excuse, or justification, for almost $200,000 (taking into account the total estimates, calculated on the indemnity basis), in costs and disbursements, having been incurred in an estate (and potential notional estate) of such a modest value.)

20. [50]

    The discretion conferred under s 99 of the Act is broad. Either party, including a defendant, as legal personal representative of the estate of the deceased, may be deprived of all, or part, of her, or his, costs, if the circumstances justify it. The usual costs order may be modified if the Court is of the view that the litigation has been prolonged unnecessarily. The Court should set its face against litigation in which an estate is unnecessarily consumed in costs: Fiorentini v O'Neill [1998] NSWSCA 79.

21. [51]

    Since the orders were made in this matter, Ward CJ in Eq has delivered reasons for judgment in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, in which she wrote, at [172] - [174]:

22. [52]

    Whilst these sentiments have been expressed by this Court many times, they should be repeated for the benefit of parties and the profession.

The offers made by the Defendant

1. [53]

   In relation to costs, after I announced the order dismissing the Plaintiff’s Summons, the Defendant tendered a letter dated 17 August 2018, which letter contained a Calderbank offer. He also tendered an Offer of Compromise dated 3 April 2019. The two documents were marked, together, as Ex. 2.

2. [54]

   I shall refer to the offers made in each and set out the reasons why I did not make an order for indemnity costs to be paid by the Plaintiff.

3. [55]

   There were no offers, in writing, tendered on behalf of the Plaintiff. However, counsel indicated, from the Bar table, without objection, that the only offer that had been made by her was one in which she would receive, in lieu of the provision made for her in the Will of the deceased, a lump sum of $95,000, plus costs, calculated on the ordinary basis: Tcpt, 18 June 2019, p 115(6-20).

4. [56]

   (This was, in substance, what had been submitted, on her behalf, as adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, out of the estate and notional estate of the deceased. Presumably, in the circumstances, the offer was not tendered because it was obviously irrelevant.)

5. [57]

   Bearing in mind the estimated costs of the Plaintiff, calculated on the ordinary basis, and without the uplift factor ($52,581), taken with the quantum of the provision sought ($95,000), it is hardly surprising that the Plaintiff’s offer was not accepted.

An earlier Will of the deceased

1. [58]

   The Plaintiff relied upon the contents of a Will of the deceased, which was duly executed on 15 November 2011, in which the deceased appointed both the Plaintiff and the Defendant as executors, and left the whole of her estate, after the payment of debts, funeral and testamentary expenses, to them, equally.

2. [59]

   Whilst an earlier testamentary document is relevant as disclosing the deceased’s testamentary intentions at the time of its creation and execution, freedom of testation permits a will-maker to change her, or his, mind thereafter: Sgro v Thompson [2017] NSWCA 326.

Reasons for changing her Will

1. [60]

   In her last Will, the deceased did not provide any reasons for revoking the 2011 Will and changing the provision made for the Plaintiff. However, there is evidence, by affidavit sworn on 19 October 2018, from Ms K L Hammersley, a solicitor of some years’ experience, who took instructions from the deceased about that Will, which reveals the views of the deceased.

2. [61]

   Ms Hammersley, who was not cross-examined, in her affidavit, wrote:

3. [62]

   In her affidavit in reply, the Plaintiff did not deny, expressly, the contents of the statements made by the deceased to Ms Hammersley. However, there was some evidence given by her, orally, which was unchallenged, regarding the care that she provided to the deceased. It follows, so it was said, that the statement made by the deceased about only the Defendant “who cares” and “who does everything for me”, was inaccurate. It was also said that there was no evidence that the Plaintiff was “too busy”.

4. [63]

   Neither of the Plaintiff’s two children, perhaps, more importantly, Vicki, gave evidence about her own role in the life of the deceased, or her observations of the care provided by the Plaintiff. However, it is clear, from other evidence, that the Plaintiff played some role in the life of the deceased and had assisted the deceased in some respects.

5. [64]

   Finally, whilst it is true that the Plaintiff does, currently, have a mortgage debt, a matter to which I shall return, there was no evidence about when the amount was borrowed, the amount that was, initially, borrowed, and the purpose for which it was borrowed. The Plaintiff’s evidence, when asked in cross-examination, about the borrowing, was vague in the extreme. What was not in dispute, in the statements of the deceased, is the assertion that the Plaintiff “has a house”.

6. [65]

   I wrote in Andrew v Andrew [2011] NSWSC 115, at [25]:

7. [66]

   In Brimelow v Alampi [2016] VSC 135, McMillan J wrote, at [15] (although the terms of the relevant section are different):

8. [67]

   The same principle applies in relation to any explanations given by the deceased in making limited provision for the applicant. In this case, the explanation given by the deceased casts light on the relationship between the deceased and her two daughters, at least from the deceased's perspective, and provides the deceased’s perception of why she should make greater provision for the Defendant.

9. [68]

   I have borne in mind that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, the Court must carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin (as McLaughlin AsJ then was) made the point, at [81], that:

10. [69]

    In her instructions to Ms Hammersley, the deceased appears to have weighed the testamentary claims upon her in an apparently sensible way and by considering the major two people who had a claim on her bounty, being her only children. It appears to be a case where she did “expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle” or where she “felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate”: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.

11. [70]

    In all the circumstances, I have treated the deceased’s statements, weighed with the other evidence, as one of the factors to be considered.

The Credibility of the Witnesses

1. [71]

   In some respects, I was unimpressed with the Plaintiff’s evidence. I found, on a number of occasions, that she had not really considered the evidence regarding her financial circumstances that she had included in her most recent affidavit.

2. [72]

   Perhaps, the most obvious example of the criticism that may be made of the Plaintiff’s evidence is in regards to the amount that was said to be the subject of a debt secured by mortgage (described by her as a liability), and emphasised by what occurred on the second day of the hearing, which made it clear that the Plaintiff had taken no steps to ascertain the current amount due under the mortgage at the time she swore her affidavit shortly prior to the hearing.

3. [73]

   In her affidavit in support of the Summons, made in April 2018, she had stated that the debt secured by mortgage, was $30,000. In the most recent affidavit served before the hearing, in which she purported to update her financial circumstances, she repeated that she had a debt of about $30,000, secured by mortgage, over her home. She repeated this in her oral evidence. However, she accepted that she had “probably not” checked to see that her affidavits were accurate: Tcpt, 17 June 2019, p 27(24-25).

4. [74]

   Following completion of the submissions by counsel for the Defendant, an application was made on behalf of the Plaintiff, on the morning of the second day of the hearing, to establish a more precise amount of her mortgage debt. No proper explanation was provided why that evidence had not been previously produced to the Court. Indeed, somewhat ironically, it was put that the evidence should be admitted because the Defendant had obtained access to documents, produced on subpoena, which revealed the true position. (It was not suggested, however, that the Plaintiff’s legal representatives had not obtained access to the very same documents that would have enabled each to ascertain the true position.)

5. [75]

   The Plaintiff then sought to re-open her case and tender a Bank Statement, which was said to refer to the amount of the mortgage debt. Counsel for the Defendant objected to the tender as it was evidence produced so late in the proceedings.

6. [76]

   In coming to my conclusion, I did not forget what Hammerschlag J wrote in Stone v Stone [2019] NSWSC 233, at [60]-[62]:

7. [77]

   His Honour then referred to ss 56(1), (2), (3) and (4)(a) of the Civil Procedure Act and added, at [64]-[66]:

8. [78]

   Upon my return from the short adjournment of the matter, which was taken, amongst other reasons, to allow counsel for the Defendant to obtain instructions, the Court was informed that he had been unable to contact his instructing solicitor (who had not attended the hearing that morning), and therefore, he could not say whether what had been asserted, from the Bar table, as to the availability for inspection of the document, was accurate.

9. [79]

   However, counsel for the Defendant fairly accepted that there was not a significant difference between what had been asserted as the mortgage debt (about $30,000) and the amount the Bank Statement revealed ($46,178). He accepted that the Defendant would not be prejudiced by the tender. Counsel for the Defendant did not point, but could have pointed, to the fact that the dates covered by the Bank Statement covered two weeks in January 2019, rather than the position as at the date of the hearing. (This is discussed in more detail later in these reasons).

10. [80]

    With some hesitation, I came to the view that I should admit the document. Thus, the Bank Statement, for the statement period 1 January 2019 to 16 January 2019, was tendered as Ex. C. It revealed that “the Borrowers” were identified as the Plaintiff and Alan Geoffrey Quartermain, who had been her de facto partner, until his death in June 2011.

11. [81]

    There had been very little evidence about Mr Quartermain, and it was not known whether the Plaintiff had inherited any part of his estate (if he had any), or whether his estate had been distributed. Exhibit C also revealed that, at that date, there was a “direct debit repayment” of $237, presumably, per fortnight (although this is not entirely clear).

12. [82]

    As was obvious, the Bank Statement did not disclose the current position of the mortgage debt, but the position about 5 months prior to the hearing. Finally, it revealed a withdrawal, by way of “Redraw Advance” of $1,000 on 10 January 2019. No explanation for the advance was given by the Plaintiff and she was not recalled to give evidence concerning the topic.

13. [83]

    During cross-examination, it became clear that the Plaintiff, in her most recent affidavit served before the hearing, had not updated her current income either. Whereas, in her affidavit she asserted that she “currently receive(s) an age pension of $800 per fortnight and $525 a month from my Superannuation”, she gave evidence that the pension she received, was, at the date of hearing, $916 per fortnight and that the amount received by her from her superannuation was, in fact, $599 per month.

14. [84]

    Furthermore, whereas in her May affidavit, she had asserted that her superannuation had a balance of about $110,000, in cross-examination, she agreed that her superannuation had a balance of about $133,000: Tcpt, 17 June 2019, p 19(43-48).

15. [85]

    The apparent increase in the value of her superannuation, since her first affidavit, made in April 2018, also seems inconsistent with her statement in her affidavit that she “had to draw down $10,000 from my… Superannuation Account” to cover a shortfall of income and expenditure.

16. [86]

    These significant differences cannot be taken to be simple errors. Rather, they reflect a lack of proper care and attention to her current financial circumstances. Whilst I do not conclude that she, intentionally, tried to mislead the Court, it is clear that had there not been detailed investigation, in cross-examination, the Court would have been misled as to the Plaintiff’s financial circumstances, at the date of hearing.

17. [87]

    However, one constant in the Plaintiff’s financial circumstances is that, at the date of hearing, she retained the home (to which the deceased had referred), of which she is the sole registered proprietor, and which she says has a value of $1,300,000.

18. [88]

    Despite the submission made by her counsel that the Court should, effectively, ignore the fact that the Plaintiff has an asset of such significant value, because it is her “home”, I do not accept the submission in the circumstances of this case. It is an asset that is available to her and it far exceeds the value of the deceased’s estate and notional estate.

19. [89]

    Bearing in mind that she asserts that she requires about $39,000 to carry out repairs and renovations to the home, it may be that she will be required to sell it if its condition deteriorates further. In any event, she has an ability to sell her home, downsize if she thinks it is appropriate to do so, and, thereby, relieve any financial pressures that she asserts that she has.

20. [90]

    The Plaintiff’s claimed needs included the costs of maintaining a program with Active Seniors, to strengthen her balance (taken over some years, and estimated to be $18,600); a lump sum ($150,000) “to assist me in taking care of myself in my old age and for unforeseen medical emergencies and to cover the cost of treatment for stenosis if my diagnosis worsens”; a lump sum ($5,000) for a tooth implant procedure; a lump sum to carry out repairs and renovations to her home ($39,000); a lump sum for the purchase of replacement whitegoods for her home ($2,300); a lump sum ($5,000) for a “Posturepedic mattress”; a lump sum ($2,000) to replace her car tyres; and the costs of a “holiday to Canada to see the Rocky Mountains and to go on an Alaskan cruise” ($10,000).

21. [91]

    The total of the amounts suggested to cover the so-called “needs” is $231,900, over 75 per cent of the value of the estate and notional estate. The reality of the unreasonableness of asking for that sum, obviously, occurred to the Plaintiff’s legal representatives, who orally submitted that the Plaintiff should receive, in lieu of the provision made for her in the Will of the deceased (about $34,200), a lump sum of $95,000 and her costs.

22. [92]

    There are some other troubling aspects of the Plaintiff’s case. There appeared to be an implied criticism made by the Plaintiff of the Defendant in spending some of her income on what were described as “discretionary purchase[s]”. This was an unworthy line of cross-examination. It was, also, rather ironic, since the Plaintiff, herself, included as her monthly expenditure, “clothing, cosmetics, hair, nails and waxing” ($350), and gym membership (“Active Seniors”) ($155), which totals more than the amount disclosed by the Defendant on “discretionary expenditure”.

23. [93]

    Furthermore, the Plaintiff gave evidence of credit card debts totalling $13,000, but did not state how these credit card debts had accumulated. In addition, it seems that she had not provided the actual debt in respect of each credit card, but simply rounded it up (or down), which is presumed by her use of “approximately” when describing these amounts.

24. [94]

    Another aspect of the Plaintiff’s case relates to her complaint that the Defendant had not sold the deceased’s unit for some years, which seemed to suggest had diminished the value of the deceased’s estate. This, too, was not a criticism that should have been made, particularly as the Plaintiff was living permanently in Sydney, whilst the Defendant, who was permanently living in London, visited Sydney, on a number of different occasions, to look after the deceased.

25. [95]

    The Plaintiff’s evidence was that it was her own daughter, Vicki, who was assisting the deceased, with her banking, and otherwise with her financial affairs. One might have thought, if it was a serious complaint, that it would have been raised by the Plaintiff or her daughter. There was no suggestion in the evidence that the Plaintiff, or Vicki, had ever raised, with the Defendant, or for that matter, the deceased, that steps should be taken to sell the property of the deceased.

26. [96]

    A further criticism made by the Plaintiff of the Defendant was that she had received various amounts from the deceased. The Defendant accepted that she had received over $10,000, in 2013, from the deceased’s bank account, to enable her to complete a writing course. However, it appears that this amount was transferred to her out of the deceased’s bank account, presumably by Vicki (who was said to be assisting the deceased in relation to banking). It would be unlikely that Vicki would have taken this step without having discussed it with the deceased and obtained her permission to transfer the funds: Tcpt, 17 June 2019, p 87(10-33).

27. [97]

    (I should also mention, on this topic, that the Defendant hopes to earn income from her writing, and whilst she has not done so yet, she is still optimistic that one or more of her manuscripts might be published: Tcpt, 17 June 2019, p 71(29-37).)

28. [98]

    I do not accept the submission made by counsel for the Plaintiff that each of the Plaintiff’s daughters did not give evidence in order to save costs, in circumstances where the Plaintiff’s costs and disbursements, calculated on the indemnity basis, and including an uplift factor, was as high as it was.

29. [99]

    The Defendant, whilst, at times, somewhat defensive in giving her evidence, I thought was doing her best to answer the questions truthfully. She may have been in error giving evidence about the overseas trips that she made, but this is hardly surprising as the period of time covered by the questions was from 2007. In any event, it should not really have been the subject of any cross-examination at all, as clearly the Plaintiff’s solicitors had access to the Defendant’s passports and had created a document headed “international Travel Movements”, which document, ultimately, was Ex. A.

30. [100]

    In regard to Ex. A, there was some merit in the Defendant’s complaint, that the document was misleading in showing the number of visits into, and out of, Australia, when in fact, she had remained in Australia during the particular period.

31. [101]

    Other than in respect of the “discretionary” expenditure to which I have earlier referred, the Defendant was not cross-examined about her current financial circumstances, which are clearly not nearly as strong as the financial circumstances of the Plaintiff.

32. [102]

    The Defendant has no assets of any significance; no home; no car and no superannuation. She is in receipt of a pension ($1,244 per month) and receives a housing allowance ($2,099 per month). (As the Defendant is in receipt of a British pension, those amounts, which have been taken from the Defendant’s Affidavit made 19 July 2018 and referred to again in her affidavit made 17 May 2019, were (presumably) converted from British pounds to Australian dollars. There may, naturally, be some incongruity in relation to the conversion rates of these amounts. I do not think much turns on this). She lives in rented accommodation and has recently been advised that she will need to vacate her accommodation because the property where she lives is being redeveloped. All of the housing allowance is spent on rent.

33. [103]

    The Defendant has debts totalling $26,429. Her expenses exceed her income and as a result her debt is growing.

34. [104]

    Furthermore, the Defendant is in relatively poor health. She requires treatment for Hashimoto's disease; she suffers from fibromyalgia and the resulting fatigue; and she has ongoing gastric pain. Currently, she is being monitored for an abdominal lump/cyst. She requires some dental treatment. She suffers from restless leg syndrome which adversely affects managing her activities of daily living, and has poor eyesight and re-occurring eye infections.

35. [105]

    No other deponents were cross-examined.

The Law

1. [106]

   (In view of the conclusions which I expressed at the hearing, it is not necessary, for present purposes, to determine whether the property alleged to be notional estate was, in fact, capable of designation. The nature of the property is not significant. Even if I had concluded some additional provision ought to be made for the Plaintiff, there would have been sufficient funds in the actual estate to satisfy her claim and costs. This does not, however, mean that I have not borne in mind the receipt, by the Defendant of an amount of $21,581 out of the estate of the deceased.)

2. [107]

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

3. [108]

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

4. [109]

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

5. [110]

   Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

6. [111]

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

7. [112]

   Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254, at [126], White J (as his Honour then was) wrote that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “an evaluative determination of a discretionary nature, not susceptible of complete exposition” and one which is “inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297, at [40], citing Manuel v Lane [2013] NSWCA 61, per Emmett JA, at [9].

8. [113]

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

9. [114]

   In Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [81]-[84], Buss JA wrote:

10. [115]

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

11. [116]

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

12. [117]

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

13. [118]

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

14. [119]

    “Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54, at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime”. Neither is the word “maintenance”, nor the phrase “advancement in life”, defined in the Act.

15. [120]

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

16. [121]

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

17. [122]

    The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3), at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

18. [123]

    These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

19. [124]

    Their Lordships went on to state, at 478:

20. [125]

    Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

21. [126]

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

22. [127]

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

23. [128]

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

24. [129]

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

25. [130]

    In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”

26. [131]

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

27. [132]

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

28. [133]

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

29. [134]

    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.

30. [135]

    (The question of the process by which the Court is required to implement s 59(1)(c) and s 59(2) of the Act, revived by the Court of Appeal in Sgro v Thompson, has been compendiously dealt with by Robb J in Maynard v Maynard [2018] NSWSC 1961 at [121]-[163].)

31. [136]

    I shall adopt the approach that I referred to in Vidler v Ivimey [2013] NSWSC 1605, in which I considered, in some detail, the history of this controversy to that point in time at [38]-[40], and [68]-[84] and concluded at [84]:

32. [137]

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

33. [138]

    Section 60 of the Act provides:

34. [139]

    It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew, 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. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, “may” does not mean “must”.

35. [140]

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

36. [141]

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

37. [142]

    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.

38. [143]

    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).

39. [144]

    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.

40. [145]

    In a small estate, as this one is, it is important to remember what Salmond J wrote in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221:

41. [146]

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

42. [147]

    Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket & Ors (1993) 10 WAR 532, at 540.

Some Additional Principles

1. [148]

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

2. [149]

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

3. [150]

   Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

4. [151]

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

5. [152]

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

6. [153]

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

7. [154]

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

8. [155]

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

9. [156]

   In relation to the significance of freedom of testation, in Sgro v Thompson [2017] NSWCA 326, at [83], White JA (with whom McColl JA agreed) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan, at [127], namely, that:

10. [157]

    His Honour added, at [86]:

11. [158]

    Recently, in Steinmetz v Shannon [2019] NSWCA 114, White JA referred to the statements previously made by him, and wrote, at [51]-[57]:

12. [159]

    Brereton JA, at [96], emphasised 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.

13. [160]

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

14. [161]

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

15. [162]

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

16. [163]

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

17. [164]

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

18. [165]

    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).

19. [166]

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

20. [167]

    Finally, because it seemed to play a part in the Plaintiff’s claim, I should refer to what was written in Blore v Lang (1960) 104 CLR 124; [1960] HCA 73, by Fullagar and Menzies JJ, at [6]:

Qualifications on “Principles”

1. [168]

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

2. [169]

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

3. [170]

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

4. [171]

   The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; Yee v Yee [2017] NSWCA 305, at [172]; Steinmetz v Shannon, per White JA, at [37]. They must be remembered.

Additional Facts

1. [172]

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

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

1. [173]

   The Plaintiff gave evidence that she had an unbroken, long, close and supportive relationship with the deceased, for the whole of her life. She gave evidence that she supported the deceased, and accommodated her when she left Auckland in 1988 after the death of her husband (the Plaintiff’s father), Lloyd. The deceased came to live with the Plaintiff and her family in Sydney, and the Plaintiff became the deceased’s main carer.

2. [174]

   The Plaintiff gave evidence, by way of affidavit made 26 April 2018, that she “was a caring and loving daughter. I was the constant daughter in my Mum’s life and shared a close relationship with Mum until her death” (Affidavit, 26 April 2018 at par 83). She indicated, also in her affidavit made 26 April 2018, at par 70, “I got along with Mum extremely well and I never minded having to help her or do anything for her. I remember Mum was always happy to see me when I saw her”.

3. [175]

   The Plaintiff also gave evidence that she visited the deceased “weekly” between late 1994 and the middle of 2013. The Plaintiff’s visits with the deceased included going shopping and having lunch together, driving the deceased to and from the majority of her medical, optical and dental appointments, and between 2000 and 2011, she attended the deceased’s home to do her laundry and ironing. Between 2013 and 2015, the Plaintiff asserted she visited the deceased “two to three times a week” at the nursing home at which the deceased resided. When the deceased was hospitalised, in 2015, the Plaintiff asserts she visited the deceased “daily”.

4. [176]

   Except for a period of around 9 years after she left New Zealand, age 34, for employment in Australia, the Plaintiff lived in the same city as the deceased.

5. [177]

   The Defendant, in her affidavit made on 24 October 2018, gave evidence that “I am aware that Mum’s relationship with the plaintiff deteriorated over time”. She also disputed the frequency that the Plaintiff visited, and otherwise cared for, the deceased. (By way of example, the Defendant asserted, at the hearing, that the Plaintiff was paid to do the deceased’s washing, and indicated the Plaintiff would collect the washing before the deceased awoke: Tcpt, 17 June 2019, p 73(48) – p 74(2)).

6. [178]

   Other than the Defendant’s assertions, made in her affidavit and under cross-examination, the nature and duration of the Plaintiff’s relationship with the deceased was not the subject of any real dispute. The Plaintiff was not cross-examined on the nature and duration of her relationship with the deceased.

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

1. [179]

   This is not expressly referred to in the Plaintiff’s affidavit evidence. In any event, I have referred to general principles above.

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

1. [180]

   As discussed earlier in these reasons, it was agreed, at the hearing, that the value of the actual estate ($456,451), less the deductions that may be payable on the sale of the leasehold interest ($180,236), out of which an order for provision for the Plaintiff may be made, and any costs ordered to be paid, will be $276,215. If the amount distributed to the Defendant were to be designated as notional estate ($21,581), the total value of the estate and notional estate, excluding the costs of the proceedings, if any are payable out of the estate, will be $297,796.

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

1. [181]

   The Plaintiff is retired. She receives income by way of her superannuation as well as an aged pension. She now receives, by way of aged pension per fortnight, $916, and in superannuation, $599, per month.

2. [182]

   The Plaintiff owns the home in which she resides, which at the hearing was accepted as having an estimated value of $1,300,000 (Tcpt, 17 June 2019, p 12(45-50)), save for the mortgage debt that has already been discussed in these reasons, reported to be $46,178 for the period 1 to 16 January 2019: Ex. C.

3. [183]

   The Plaintiff gave evidence, in each of her affidavits, of other assets consisting of $10,000 in the bank, and a car ($15,000). The Plaintiff, in cross-examination, accepted that the balance of her superannuation was approximately $133,000. (As has been stated, this amount differs from that asserted in the Plaintiff’s affidavits made 26 April 2018 and 16 May 2019.)

4. [184]

   The Plaintiff disclosed liabilities, other than her mortgage debt, as debts from three separate credit cards, totalling approximately $13,000, further details of which were not disclosed.

5. [185]

   As has been discussed earlier in these reasons, the Plaintiff gave evidence of her anticipated financial needs, being to repay the debt secured by mortgage, dental repairs, home repairs and renovations, home appliances, an orthopaedic mattress, new car tyres, and to supplement the balance of her superannuation.

6. [186]

   The Defendant’s financial resources, and anticipated financial needs, have also been discussed in these reasons. She does not own real estate, a vehicle, or any items of “significant resale value” (Affidavit of the Defendant, 19 July 2018 at par 9 to par 11). The Defendant has been advised that she will need to vacate the accommodation she rents because the property where she lives is being redeveloped.

7. [187]

   Her income is derived from a State Pension and a Housing Allowance. In her affidavit made 17 May 2019, at par 9, the Defendant gave evidence that her expenses exceed her income, and she uses her credit card to pay for daily and living expenses. She also gave evidence that she has borrowed money from friends or family, “to get by”, which she has not repaid.

8. [188]

   As has been said earlier in these reasons, other than in respect of “discretionary” expenditure, including overseas travel to which I have referred, the Defendant was not cross-examined about her current financial circumstances.

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

1. [189]

   As far as is known, the Plaintiff is not cohabiting with another person. The Plaintiff gave evidence that she does not hold assets with any other person (Affidavit, 16 May 2019 at par 31).

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

1. [190]

   The Plaintiff gave evidence that her health is “relatively good”. She requires some dental work, and, occasionally, has sore muscles, for which she sees a chiropractor for treatment every fortnight. She has been diagnosed with Stenosis, which causes her to suffer back pain. The Plaintiff also gave evidence she has problems with balance, which causes her to lose balance while walking.

2. [191]

   The Defendant gave evidence of a number of ongoing medical conditions, which have been discussed earlier in these reasons. They include an abdominal lump that is being monitored at a hospital in London; fibromyalgia; Hashimoto’s Disease; fatigue and generalised pain caused by endometriosis; poor eyesight; recurring eye infections; restless leg syndrome; and she requires dental treatment.

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

1. [192]

   The Plaintiff is 74 years of age. I accept that she does not have any ongoing earning capacity.

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

1. [193]

   As has been discussed earlier in these reasons, I accept that the Plaintiff made some contribution to the welfare of the deceased.

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

1. [194]

   The Plaintiff acknowledged that, in 2002, the deceased gave her $20,000, following the deceased receiving a sum of money from the deceased’s brother’s estate. The Plaintiff asserted that “Mum gave $40,000 to Susan. Mum offered to give me $30,000 but I told Mum to only give me $20,000 as Alan and I were both still working at the time” (Affidavit of Jill Wengdal, 26 April 2018 at par 49). (On that topic, at the hearing, there was some evidence that the $40,000 given to the by the deceased, was, in fact, repayment for a loan, not a gift. In my view, not much turns on this.)

2. [195]

   Otherwise, it appeared that the deceased and the Plaintiff had been financially independent for many years. There was no suggestion that the Plaintiff was financially dependent upon the deceased at the date of death.

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

1. [196]

   The Plaintiff’s evidence indicates that she does not believe the deceased would have intended to not divide her estate equally between her daughters. In her affidavit made 26 April 2018, at par 51, the Plaintiff wrote that in 2008, at which time the deceased asked the Plaintiff to NSW Trustee & Guardian to make a will, “Mum said to me: ‘I want everything to be divided equally between my two daughters’.” However, as discussed earlier in these reasons, there is the evidence of Ms Hammersley, which reveals the testamentary intentions of the deceased as reflected in her last Will.

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

1. [197]

   As previously stated, the Plaintiff was not being maintained by the deceased at the date of death.

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

1. [198]

   There is no other person liable to support the Plaintiff. However, it is clear that she is secure in her own home and that she receives an income that is also regular and secure.

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

1. [199]

   I am satisfied that there is nothing under this sub-paragraph that needs to be identified.

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

1. [200]

   I have dealt with the deceased’s view of the conduct of the Defendant.

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

1. [201]

   This factor is not applicable.

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

1. [202]

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

Determination

1. [203]

   As stated, there was no dispute that the Plaintiff is an eligible person or that she commenced the proceedings within the time prescribed by the Act.

2. [204]

   Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.

3. [205]

   The deceased made some provision for the Plaintiff in her Will. Even though that provision amounted to only slightly more than $34,000, that does not, automatically, mean that she will have established the jurisdictional threshold.

4. [206]

   Whilst it is accepted that she may have some "needs", that is not all that the Court is required to consider. Merely because some financial relief could be given to assist her, this does not mean that there is justification for judicial interference with the dispositions made in the Will of the deceased. The question whether “adequate” provision has been made “directs attention, not merely to an applicant’s financial needs, but also to the size and nature of the deceased’s estate, the relationships between the deceased and the applicant and others with claims upon his bounty, and the circumstances and needs of those other persons. The evaluation involved in deciding whether ‘adequate’ provision has been made is to be guided by applying the Court’s assessment of what would, in the circumstances, be right and appropriate, according to prevailing community standards and expectations”: Squire v Squire [2019] NSWCA 90, per Meagher JA (with whom Macfarlan JA and Simpson AJA agreed), at [10].

5. [207]

   As well, the Court must not forget the word “proper”, which is also used in the section, the meaning of which has been discussed earlier in these reasons.

6. [208]

   Whilst the Plaintiff maintained that her financial circumstances were not as the deceased thought, she did not give evidence of any material changes in those circumstances either since the Will was made (in 2013), or since the death of the deceased (in 2017). (I have referred to the lack of evidence about the debt secured by the mortgage. As also stated, the constant is that she owned the home in which she resides, and which is currently, of substantial value (particularly compared with the value of the deceased’s estate).

7. [209]

   That the Plaintiff did not give any evidence of having approached the deceased for financial assistance during her adulthood is also relevant in circumstances where the Defendant did, and where she received the assistance of the deceased, who appears to have appreciated the Defendant’s parlous circumstances and the need for such assistance.

8. [210]

   But for the commencement of these proceedings, the amount that the Plaintiff received under the Will of the deceased would have gone some way in reducing the mortgage debt. Alternatively, it would have provided a modest capital sum for exigencies of life.

9. [211]

   Considering the situation in life of the Plaintiff at the present time, I was not satisfied that adequate provision for her proper maintenance, education or advancement in life had not been made by the Will of the deceased. In this regard, she has a home, a car, superannuation and a secure income (by way of pension). She does have a liability, being the debt secured by the mortgage, but that debt accounts for less than 5 per cent of the value of the home on which it is secured.

10. [212]

    In this case, any provision the Court makes in favour of the Plaintiff has to be made at the expense of the Defendant, for whom the deceased believed, more provision ought to be made, and whose claims to such provision from the estate appear far more compelling than those of the Plaintiff. To make provision for the Plaintiff, as well as for her costs, would result in a significant part of the available estate going to her rather than to the principal chosen object of the deceased’s estate. The Plaintiff’s financial position is far better than the Defendant’s is, and that financial position does not justify an order for additional provision being made out of the deceased’s estate and notional estate.

11. [213]

    Whilst the Plaintiff might feel a sense of grievance, or hurt, as a result of the unequal disposition of the deceased’s estate, she has not established, to my satisfaction, that further provision for her out of such a small estate ought to be made.

12. [214]

    All of these considerations led me to find that there was no failure, on the part of the deceased, to make adequate provision for the Plaintiff. Accordingly, her claim failed at the jurisdictional stage. That finding concluded the matter and led to the dismissal of the proceedings.

13. [215]

    But, if (contrary to my foregoing conclusion), I had been satisfied that the Plaintiff had been left without adequate provision for her proper maintenance or advancement in life, I would have turned, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life for the Plaintiff, having regard to the facts known to the Court at the time the order were made.

14. [216]

    All of the considerations that need to be made at that stage, also produced the result that, as a matter of discretion, I was not satisfied that a family provision order ought to be made for the Plaintiff. The financial circumstances of the Defendant were such that her competing claim upon the bounty of the deceased, financially and otherwise, has the effect of extinguishing any order for provision for the Plaintiff that might be made.

15. [217]

    I did not overlook the fact that the Court is not invested with a discretion to remake a deceased’s Will upon some principle of fairness or to achieve equality amongst various claimants.

16. [218]

    As Kitto J wrote in McCosker v McCosker, at 580:

17. [219]

    For all of these reasons, I came to the view that the Summons filed by the Plaintiff should be dismissed, and I made that order.

Costs of the Proceedings

1. [220]

   On the issue of costs, little need be said. Whilst it may be that the offer made by way of Calderbank offer (which was a lump sum of $55,000 in lieu of the provision made for the Plaintiff in the Will of the deceased, inclusive of her costs payable within 7 days of the making of the order), which is more favourable than the result of the case, and the offer made in the Offer of Compromise (that the Summons be dismissed, but that there be no order as to costs) which also has the possibility of being more favourable than the result of the case, because of the term relating to the Defendant’s costs, I am of the view that there is a sound reason for not making an order for indemnity costs.

2. [221]

   Importantly, until the affidavit of the Defendant sworn on 8 May 2019 was served on 10 May 2019, the Plaintiff was entitled to believe that the gross value of the estate was in the order of $450,000 (subject to any costs orders that were made). The letter of 3 October 2017, which identified the estimated liabilities of about $170,000, had not been provided to the Plaintiff.

3. [222]

   Whilst it is not possible to come to the conclusion that the approach of the Plaintiff would have been different had she known this information prior to the lapsing of the Offer of Compromise, I cannot conclude that the Court should, in this case, “otherwise order”.

4. [223]

   The same reasons do not provide a basis for making no order as to costs (as was submitted by counsel for the Plaintiff). The Plaintiff was well aware that, on any view, the value of the estate was small. She persisted with her claim, which at the hearing was one for about one half of the value of the estate (before the deduction of costs). This was not a reasonable position to adopt when she must have known the value of the estate and the competing financial circumstances of the Defendant.

5. [224]

   For these reasons, I concluded that the Plaintiff should pay the Defendant’s costs, calculated on the ordinary basis, and I made that order.