Soens v Rathborne

HIS HONOUR: The words written by Allsop P in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [1], resonate with the decision to be made in this case. His Honour commenced his reasons for judgment in the following way:

The Plaintiff, who is the child of Darryl Thomas Rathborne (“the deceased”), commenced these proceedings on 13 April 2017. She seeks a family provision order to be made out of the estate and notional estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”). Her case is unusual as there is no dispute that she did not see the deceased for the first 24 years of her life.

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 The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.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.

The deceased died on 27 April 2016, aged 65 years.

The Defendant named in the Summons is the widow of the deceased, the executrix of his Will made on 16 February 2016, and the sole beneficiary named in that Will.

It is not in dispute that the Plaintiff’s proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

As at the date of his death, because there was said to be no property, of any substantial value, solely owned the deceased, the Defendant did not apply for Probate of the deceased’s Will. This is, therefore, a case where the application is by the Plaintiff for a family provision order in respect of the estate of the deceased, in relation to which administration has not been granted. (As will be read, there was, in fact, some property, being proceeds of a bank account and a car that was in the sole name of the deceased at the date of his death.)

In addition, there was property (to which I shall refer), the deceased’s interest in which may be designated as notional estate, and which property is now solely owned by the Defendant. The Act provides that a family provision order may be made in relation to property that is not part of the deceased person’s estate, but which is designated as “notional estate” of the deceased person 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.

The Defendant is a necessary and proper party/Defendant. In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131], the plurality of the High Court accepted the submission that “where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined”.

In Smith v Dayman [1994] NSWCA 286, Handley JA had earlier remarked that “[a] court could not, ordinarily, make orders designating property as notional estate without the owners being parties to the proceedings”. Both of these decisions were recently referred to by Gleeson JA (with whom Simpson JA agreed) in Yee v Yee [2017] NSWCA 305, at [196]-[198].

Neither party made any submissions, in writing, as to whether it is proper to grant administration in respect of the estate of the deceased to the Plaintiff, for the purposes only of permitting the application concerned to be dealt with: s 91 of the Act.

In Wheat v Wisbey [2013] NSWSC 537, I discussed whether it was necessary for there to be a grant of administration in an estate, before an application for a family provision order can be dealt with. (I also concluded that a grant of administration is not required at the time an application for a family provision order is made. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.)

I shall not repeat all that I wrote in Wheat v Wisbey. I referred to the Act, s 91, and to the “rare” case in which there is only property that may be designated as notional estate. I concluded, at [57]-[59], that:

I repeated these views in Curnow v Curnow [2014] NSWSC 896.

In the written submissions, both parties submitted that, if an order for provision were to be made in favour of the Plaintiff, it could only be met out of property designated as notional estate of the deceased, which property is held by the Defendant. The Defendant, however, went on to dispute that a notional estate order should be made for a number of reasons to which I shall return.

As the matter proceeded, I came to the view that there may be $50,000, which could form part of the actual estate of the deceased. I shall return to this topic later in these reasons. The Defendant had received this amount also.

In the present case, since the Defendant is a party to the proceedings and because she has agreed to satisfy any family provision order and costs order made in favour of the Plaintiff, before a notional estate order is made (T2.03 – T2.07), it is not proper, at this time, to grant administration under s 91, as it is unnecessary. If there is any difficulty in giving effect to, or implementing, the family provision order in favour of the Plaintiff that I propose to make, I would then be prepared to make an order in favour of the Plaintiff under s 91.

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.

The parties also agreed that there is no scope for the operation of the intestacy rules so that, hereafter, it is only necessary to refer to the Will of the deceased.

It is impossible to reach clear findings of facts in all of the areas of dispute. Nor is it necessary to trawl through all of the detail of the affidavits filed. In these cases, it can be difficult, if not impossible, to reconcile the contradictory expressions of fact and opinion which the affidavits reveal. I have endeavoured to set out findings of fact, some of which are undisputed and some of which I find on the balance of probabilities.

The deceased was born in August 1950.

The Plaintiff was born in July 1977 and is now 40 years old.

The Plaintiff is a child of the deceased’s relationship with Ms Cheryl Westerman. That relationship commenced in 1976, and ended a few months before the birth of the Plaintiff. It was an extremely short relationship.

I shall return to the evidence about the relationship of the Plaintiff and the deceased later in these reasons (which is, or may be, in dispute).

Following the breakdown of the relationship with Ms Westerman, the deceased, married Ms Debbie Rathborne. There were three children of the marriage, namely, David, Dean and Donna. That marriage irretrievably broke down in about 1991 and it was dissolved subsequently. (None of the children of the deceased, or Ms Rathborne, has played any part in these proceedings.)

The Defendant was born in June 1950 and is now 67 years old. She first met the deceased in 1967. Their relationship continued for 4 years, and they were engaged to be married, until the deceased moved to Newcastle. They met again in, and co-habited for 25 years from, 1991 until the deceased’s death. They were married on 1 October 1994, and remained married at the time of the deceased’s death, over 21 years later. There were no children of their marriage.

As stated, the deceased made a Will on 16 February 2016, in which Will the Defendant is the sole beneficiary named. In the event that she did not survive the deceased for 30 days, the substitute beneficiaries were her two children, Nicole Lee Bailey and Renee Michelle Baumann, and Nicole’s daughter, Jala. The Plaintiff was not a beneficiary, or substitute beneficiary, named in the deceased’s Will.

At the date of the deceased’s death, the sole property owned by him was a Holden Commodore motor vehicle ($50,000), money in a bank account with Westpac (approximately $6,000) and 2 guns ($1,000). The Defendant used the money in bank to meet, in part, the funeral expenses ($9,000). The motor vehicle remained in the possession of the Defendant until it was sold in late July 2017.

The deceased and the Defendant were registered proprietors, as joint tenants, of a property at Parkridge Drive, Jilliby (“the Jilliby property”) in New South Wales. The Jilliby property was purchased by them in about 2009. A notice of death was registered by the Defendant on June 2016. She is now the sole registered proprietor of the Jilliby property.

The parties agreed that, at the date of the deceased’s death, the Jilliby property had a gross value of $900,000. They also agreed that, at the date of hearing, its value had increased to $1,200,000. It follows, and the parties agreed, that, for the purposes of the hearing, the value of the deceased’s interest in the Jilliby property could be estimated to be $600,000.

In addition, at the date of his death, the deceased held a BT SuperWrap+ Portfolio (“the Portfolio”) valued at approximately $760,000. In February 2015, he made a non-lapsing nomination in relation to the whole of his interest in the Portfolio, appointing the Defendant as the sole beneficiary.

The current value of the assets in the Portfolio is $623,432: T3.37 - T3.43.

The guns remain in the possession of the Defendant and they still have a value of $1,000: T2.43.

The parties agreed (including the proceeds of sale of the deceased’s car), that the property that could be designated as the notional estate of the deceased had a total value of $1,274,432: T3.24 - T4.03.

The persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties, Ms Debbie Rathborne (the deceased’s former wife), the children of the deceased and Ms Rathborne, namely David, Dean and Donna, and the Defendant’s children by a prior marriage, namely, Nicole and Renee.

Notice has been given to all of the persons referred to (other than the parties) but none has commenced proceedings. The Defendant stated that she believes that the deceased’s children “will not be lodging a competing claim”. When the Court enquired about the basis of the belief, which evidence had not been objected to, counsel for the Defendant stated that it was that notice of the Plaintiff’s application had been given to each and that the solicitors had not received any response from any of them: T4.05 – T5.10.

The Defendant also stated that “my daughters … do not intend to lodge a competing claim”. This was, apparently, based on discussions said to have been held with each of them.

The Defendant has raised her financial circumstances, as the holder of property sought to be designated as notional estate, in the proceedings. She has also raised factual matters that she submits go to the discretionary considerations. Furthermore, as the sole beneficiary named in the Will, the Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to her, regardless of her financial position or needs: s 61 of the Act.

As stated above, the deceased owned a car at the date of his death (with an estimated value of $50,000).

In an affidavit affirmed 31 January 2018 (the day before the hearing), the Defendant stated that she had sold it and had received $50,000, on 27 July 2017. She acknowledged that the proceeds of sale had been deposited into her own bank account, and that she had spent it all.

The Defendant gave evidence that since the deceased’s death, she had spent $59,763 making “substantial improvements to the Jilliby property” as well as paying all of the maintenance and other costs relating to that property, including rates and insurance. Some of these expenses were paid using the proceeds of sale of the car: T2.20 – T2.33.

As will be read, s 79 of the Act permits the Court, on application by an applicant for a family provision order, or on its own motion, to make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

Accordingly, an available alternative is to designate the amount of $50,000 as notional estate of the deceased.

Even though, as stated, the Defendant is the sole beneficiary named in the Will of the deceased, she is also the sole executrix named in the Will. Whilst it is clear that she distributed the proceeds of sale of the car to herself, as beneficiary, more than 6 months after the deceased’s death, there is no evidence that the Defendant had given notice, in the form approved under s 17 of the Civil Procedure Act 2005 (NSW), of any intention to distribute property in the estate after the expiration of a specified time: s 93(1) of the Act.

Even if she had given notice, the protection afforded by s 93(2) of the Act, would not be available to her, since, at the time she received, and deposited the proceeds of sale of the car into her bank account, she was aware that the Plaintiff had commenced the proceedings, some three months earlier. Accordingly, at the time of the distribution, she had notice of an application for a family provision order affecting the estate of the deceased.

In the circumstances, the Court could follow the line of authority which requires an executrix who has distributed property to herself prior to the period in which any claim upon the estate might be made by an eligible person, to restore the monies to the estate: Ernst v Mowbray [2004] NSWSC 1140, Young CJ in Eq, especially, at [64]-[65]; Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115, at 127.

In Ernst v Mowbray, at [65], Young CJ in Eq, wrote:

A third alternative would be to take the distribution made to herself as relevant to determining the substantial justice and merits in either making, or not making, a notional estate order in respect of the deceased’s interest in the Jilliby property that has passed to the Defendant by survivorship: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [106]-[107].

It is unnecessary to discuss this aspect further, at this time, since the parties agreed that following the reasons for judgment, an opportunity should be given to the Defendant to satisfy any order for provision and/or costs made by the Court, in the event that the Plaintiff was successful, and, if the Defendant could not do so, then to identify appropriate property to bear the burden of that provision and costs.

As the issue of costs is to be determined at a later time, for reasons to which I shall refer, I am satisfied that the parties should be given an opportunity to make submissions with respect to the final orders that should be made in the proceedings.

Usually, in calculating the value of the deceased's estate and notional estate available from which an order may be made, the costs of the proceedings should be considered with circumspection, since, unless the overall justice of the case requires some different order to be made, the applicant, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate (and/or notional estate) of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate.

In an affidavit sworn on 30 January 2018, by Ms M Cunningham, solicitor, the Plaintiff’s costs and disbursements, calculated on the indemnity basis, from the commencement, to the conclusion, of the one day hearing, were estimated to be $47,000, inclusive of GST. In the same affidavit, she stated that the costs and disbursements, calculated on the ordinary basis, from the commencement, to the conclusion, of the proceedings, were estimated to be $35,000, inclusive of GST.

Ms Cunningham also stated that “Counsel and solicitor costs are charge[d] on a contingency basis. There is no uplift to be charged on these fees.” In addition, she stated that the Plaintiff had paid the filing fee ($1,078) but that the Court hearing allocation fee ($2,197) had “not yet been paid by the [P]laintiff as the [C]ourt agreed to postpone payment”.

At the commencement of the hearing, counsel for the Plaintiff confirmed that the “contingency basis” referred to in the solicitor’s affidavit, meant that the Plaintiff had entered into a “conditional costs agreement" and that it provided that the payment of all of the Plaintiff’s legal costs is conditional on the successful outcome of the matter to which those costs relate: Legal Profession Uniform Law (NSW), s 181(1). Counsel also stated that it does not provide for disbursements to be paid depending upon the outcome of the matter: s 181(6) of the Legal Profession Uniform Law, and that the Plaintiff is to pay disbursements of $3,825 (of which she had paid $1,078) whatever the result: T6.18 – T6.36; T63.03 – T63.09.

In an affidavit affirmed on 12 December 2017, by Mr P Mereniuk, solicitor, the Defendant’s costs and disbursements, calculated on the indemnity basis, from the commencement, to the conclusion, of the one day hearing, were estimated to be $65,000, inclusive of GST. Although not stated in the solicitor’s affidavit, it appears that on 18 December 2017, the Defendant withdrew $18,000 from superannuation “for the purposes of making a payment to my solicitors in respect to the costs of these proceedings”.

Counsel for the Defendant stated that the Court should not determine the issue of costs in these reasons as there is a document that may be relevant to the determination of the costs of the proceedings. He stated that in the event that the Plaintiff was unsuccessful, the Defendant would seek an order for costs, calculated on the indemnity basis, to be paid by her: T7.20 – T7.24.

When these reasons are delivered, the matter will be adjourned to enable the parties to consider the form of final orders, and if necessary, to argue the question of costs.

The deceased's earlier Will, dated 8 November 2009, left his entire estate to the Defendant provided she survived him for 30 days. In the event that she did not, he left the whole of his estate, after payment of debts, funeral and testamentary expenses, to Renee. The deceased did not make any provision, in this Will for the Plaintiff.

The Plaintiff gave evidence of a number of conversations that she said she had with the deceased about his testamentary intentions, including, that he would “make sure you are taken care of in the future”; “[the Jilliby property] will all be yours one day”; “I missed out on so much of you growing up that I will make you very comfortable when I die”.

Ms Westerman gave evidence that the deceased “often said” that he was sorry and that he “would make up for it”. He is alleged to have also said “I have made Angela executor of my will because I owe her”.

I treat the evidence of these conversations cautiously since it is not possible for the Defendant to have disputed each of them. However, what is clear is that all of the conversations are inconsistent with each of the Wills made by the deceased to which reference has been made.

To the extent that any of the facts stated hereunder are in dispute, what I have stated should be read as the factual findings of the Court.

Although they had met previously, when the deceased again met Ms Westerman, in 1976, she was married and living with her husband. She gave oral evidence that she and he were separated, but it is difficult to accept this evidence given only at the hearing.

At the time, she had three young children. When her relationship with the deceased ended, a few months later, Ms Westerman returned to live with her husband. She continued to do so for a period of time. In fact, her husband was named as the father on the Plaintiff’s Birth Certificate.

I shall not set out all of her evidence on this topic, but I did not find Ms Westerman’s evidence convincing. Importantly, she had not disclosed the matters orally stated in her affidavit.

Furthermore, her evidence in cross-examination, about having told the deceased that she was pregnant, and his response to that news, was as follows (at T44.34 – T44.41):

This evidence is inconsistent with her affidavit, in which she had stated:

After the dissolution of the marriage of Ms Westerman and her first husband on a date not disclosed, Ms Westerman married again. This marriage was between about 1987 and about 1993: T49.45 – T49.50.

Ms Westerman also gave evidence that when the Plaintiff was about 8 years of age, she said that she wanted to speak to her father. Ms Westerman said that she telephoned the deceased and told him that the Plaintiff was his daughter and that the Plaintiff wanted to speak to him. When the Plaintiff was on the telephone, he disconnected the call without speaking to her. When Ms Westerman telephoned him again, shortly thereafter, he is alleged to have said: “That is the past.”

The Plaintiff’s evidence, at T30.09 – 30.12, was:

There is no person capable of rebutting the evidence given by the Plaintiff and by Ms Westerman about these conversations with the deceased. I treat this evidence with some caution, but, I do not think that it matters, ultimately, bearing in mind other evidence, and because the Plaintiff accepted that before 2001, “the only contact was one telephone call”: T30.18 – T30.20.

In 1991, the deceased was informed of the Plaintiff’s existence. He required parentage testing to occur before acknowledging that the Plaintiff was his child. I am unable to speculate as to his reasons for doing so. (The suggestion made by the Plaintiff and Ms Westerman is that he did so to avoid paying child support.) The fact that he did seems somewhat inconsistent with Ms Westerman’s evidence of the previous acknowledgement that the Plaintiff was his child.

The parentage testing procedure occurred and despite it being established that she was his child, the Plaintiff and the deceased did not meet until 2001. He was assessed by the Child Support Agency and was required to make payments for child support.

Ms Westerman gave evidence that he paid $50 per week (but in her oral evidence corrected that to $50 per month) for about one year. The Defendant asserted that he complied with his legal obligations.

There was no evidence by either party, from the Child Support Agency, that would assist in determining the disputed facts surrounding this aspect of the case and whether the deceased complied with his financial obligations, to the Plaintiff, thereafter, in a timely manner, or for how long.

Counsel for the Plaintiff made some criticism of the deceased stating that, after 1991, he should have taken steps to locate, and engage with, the Plaintiff. However, there was no evidence of the deceased having been informed, by Ms Westerman, or otherwise, of the whereabouts of the Plaintiff. Furthermore, the Plaintiff had turned 18 in 1995, and thereafter, she took no steps, it would seem, to contact the deceased.

Yet, the Defendant gave evidence that when she asked the deceased if he wished to make contact with the Plaintiff or his other children, he said: “We are not going back. We are moving forward. Too much will be dug up if Angela is still in my life.”

I do not attribute blame to either the Plaintiff, or the deceased, for the lack of contact until 2001. The sad, but undisputed, fact is that there was no contact, other than one telephone call, for the first 24 years of the Plaintiff’s life. Each, it would seem, was prepared, no matter how emotionally difficult it might have been, to live her, and his, life, respectively, without the other being a part of it.

The meeting of the Plaintiff and the deceased in 2001 was prompted by a card, sent to the deceased by Ms Westerman, which was in the following terms:

Subsequently, the Plaintiff telephoned the deceased and he and the Defendant met the Plaintiff and her husband.

Although it appears to be the subject of dispute, I accept the Defendant’s evidence that the deceased contributed $5,000 towards the costs of the Plaintiff’s wedding, at which he and the Defendant attended. I accept this evidence even though the Defendant acknowledged she was unable to produce a document that showed the payment: T71.43 – T71.44. (The Defendant had made the assertion of fact in an affidavit made on 13 June 2017, but the Plaintiff had not responded to it by denial.)

I also accept the Defendant’s evidence that “there was no mention of [the deceased] in the thank you or acceptance speeches”. The Defendant was not cross-examined on this statement which was stated in an affidavit read in the proceedings. Nor had the Plaintiff responded to it by denial.

The deceased wrote a letter, dated 2 June 2001, to the Plaintiff, which demonstrates his emotions in having met the Plaintiff. He wrote:

As well, he sent her several cards, in 2001, in each of which he professes his love for the Plaintiff, his daughter.

The evidence reveals that, thereafter, the Plaintiff’s face to face contact with the deceased was limited during the period 2001-2009. She agreed that “the substantial amount of face to face contact was when he visited [the Plaintiff’s] home at Collingwood Park”: T32.13 – T32.17. I accept that the deceased’s visits coincided with the Defendant visiting her daughters on the Gold Coast.

In relation to the amount of contact, I do not accept all of the evidence of the Plaintiff. For example, she gave the following evidence, in answer to questions by the Court, at T40.45 – T41.11:

The Plaintiff’s evidence does not sit comfortably with the first sentence of an email sent by her to the deceased, in August 2009, which stated, in part:

When the Court asked the Plaintiff to explain how the two pieces of evidence could sit conformably together, she said that because they had email and text correspondence “nearly daily”, the period being referred to was reflective of “two or three weeks” of having had no contact. It is hard to accept this evidence when the only two emails produced for the whole of the eight year period were the two emails which I shall set out and when there is no copy produced of any other emails or texts between them.

The circumstances suggesting a breakdown of their relationship, in 2009, appear in two emails, one sent on 13 August 2009 by the Plaintiff to the deceased, and the second, being his response, sent on 16 August 2009. The email sent by the Plaintiff is in the following terms (with editorial corrections):

(The Plaintiff did not give evidence of when the person named Jyah, the Plaintiff’s godson, died. Had she done so, one might have been better able to determine the length of the period when they did not have contact before the August emails.)

The email sent by the deceased to her is in the following terms (with amendments):

The content and tone of these emails speak volumes. They demonstrate an exchange, not between strangers, or mere casual acquaintances, but between an adult child and a parent, expressing differing points of view. However, it is evident that it was the Plaintiff who harboured a significant degree of anger towards the deceased. It was she who raised whether it was “the end of our relationship”, and whether there was any ability to “see any future there for us”. What comes through, very clearly, from the Plaintiff is a strongly felt sense of grievance at the way the deceased had, for whatever reason, treated her, and the sense that his conduct, at least in part, was caused by the Defendant.

The email from the deceased suggests that he was upset about the Plaintiff offering her opinion about matters relating to his relationship with the Defendant and with another person. In this regard, the Defendant described the deceased as being “disappointed because [the Plaintiff] became quite meddlesome in our life and [was] putting forward her opinion about what her father should do”: T74.40 – T74.44 and that the deceased did not want her “opinion across how we should continue our life and how he should continue his relationship... [We] didn’t need any outside influence or outside opinion”: T75.01 – T75.06. Yet, the Defendant stated that she was not asserting that the deceased did not want to see the Plaintiff, but simply that he did not want her to meddle in his personal relationships: T75.26 – T75.30.

There was no evidence about the Plaintiff having contacted the deceased, following receipt of his email, to ascertain the nature of “the fright with my health”, to which the deceased had referred. (This is inconsistent with the Plaintiff’s evidence that “[F]rom 2001, things went well for about 10 years. My father could come up to where we lived…and we would spend weeks together”.

The Plaintiff did say, in cross-examination that her contact with the deceased ended “for only about a week or two and then we connected again”: T36.35 – T36.37. I do not accept her evidence in this regard which I find to be implausible bearing in mind the tone and content of the emails sent in August 2009 and the lack of any documentary evidence supporting her assertion.

Having read all of the evidence, I prefer the Defendant’s evidence about the nature of the contact during the period between 2001 and 2009. I accept that there were about 9 occasions, during these years, that the Plaintiff and the deceased met face to face. This is not to suggest that they did not communicate otherwise, but the dispute to which reference has been made relates principally to the amount of face to face contact about which evidence had been given.

The Defendant gave evidence that in February 2009, the deceased paid for the Plaintiff and her husband to attend her daughter’s wedding. They stayed with the deceased and the Defendant at the Defendant’s home in Springfield. She says that this was the last occasion when the Plaintiff and the deceased saw each other face to face. I accept that evidence. (This evidence suggests that the period when they did not have contact may have been no more than 6 months).

The Plaintiff did give some evidence of the further contact that she had with the deceased after her email of 13 August 2009. However, she does not suggest any contact in 2010, but says that in approximately 2011, she moved overseas, to Dubai, where she and her family lived for 3 years. She stated that, whilst living there, she telephoned the deceased “a few times”, and that they spoke. She also wrote that there were “numerous texts to, and from, my father but I have changed my phone and my phone numbers after leaving Dubai”.

The Plaintiff accepted that there was no evidence to corroborate her written statements that she and the deceased remained in contact after 16 August 2009. Important, in my view, is the fact that her husband, Robert, did not give any corroborative evidence (or evidence, at all), for example, that he had observed the Plaintiff telephoning the deceased, or that he had spoken to the deceased when she had contacted him. Nor had he given any evidence about the contact, face to face, and otherwise, in the period 2001 and 2009.

There was no explanation for him not being a witness in the proceedings.

Furthermore, there is no evidence of any subpoena to produce documents having been served upon any telephone service provider relating to the Plaintiff’s telephone number(s) before the changes to which she refers, or the deceased’s telephone number in the period between August 2009 and 2016, which could reveal details of her telephone calls to the deceased in those years.

In Andrew v Blair [2007] NSWSC 1003, Young CJ in Eq wrote, at [5]:

The Defendant gave evidence that it was her understanding that the deceased had no contact with the Plaintiff from (August) 2009 until the week before his death when there was some contact between the Plaintiff and the Defendant concerning the deceased. This seems to me to be more likely than the Plaintiff’s evidence on this topic bearing in mind all of the evidence I have read on this topic.

In any event, the Plaintiff accepted that she did not contact the deceased for the last two or three years of his life, despite knowing where he was living and with knowledge of his telephone number: T38.

It was the Defendant who contacted the Plaintiff, on 20 April 2017, to advise her that the deceased was unwell. The Plaintiff responded, by text message two days later. In that text, despite her earlier criticism of the Defendant, she wrote thanking her for being “so understanding”.

One text message (in the series of text messages, all of which do not require repetition), sent by the Defendant, on 27 April 2016, to the Plaintiff, states:

The evidence of the text messages was given by the Defendant. The fact that she included this evidence, some of which did not assist her case, provides another basis for me to prefer her evidence where it conflicts with that of the Plaintiff.

The Plaintiff stated that “we grew so very close and our bond was strong [for] a period of 12 years” and that “it was only the few years previous to his death that we grew apart as Mary would not allow us to have a relationship”. I do not accept the period of time that she says the bond was strong, or that it was the Defendant who caused the breakdown of the Plaintiff’s relationship with the deceased.

Yet, overall, the evidence makes clear that this is not a case of mere paternity. It is a case where there was no relationship between a child and a parent for the first 24 years of the child’s life; then, their relationship began and there was contact between them for about 9 years; and then there was a period, of about 7 years, when they did not have much communication, one with the other. However, I am satisfied that throughout the whole of the period between 2001 and the date of his death, the deceased retained a wish to maintain his parental relationship, with the Plaintiff.

It was acknowledged by counsel for the Plaintiff that “there was fragility [in the relationship] present and this became evident when put under first sign of strain”. She also stated that “there was not an established relationship to fall back on” and that “[F]ather and daughter were in essence in 2001, two strangers that shared strikingly similar physical features coming together in an attempt to establish a parent/child relationship. The foundation was simply not present to weather conflict and it is perhaps understandable that it did not.” With respect, I agree.

There is no suggestion that the relationship of the deceased and the Defendant was other than a close and loving one. (There is evidence of the deceased having had an affair, but he and the Defendant subsequently attended marriage counselling. The Defendant stated that she “observed that our relationship grew stronger” following counselling.) In any event, as was accepted, they had been together for about 25 years and were married at the date of the deceased’s death.

The evidence reveals at the time of his marriage to the Defendant, the deceased had no property of substantial value. He had a motorcycle but not much else. He had recently resolved a property settlement with Debbie Rathborne, the mother of three of his children.

When they commenced co-habitation, the deceased moved into the Defendant's home in Springfield, New South Wales. She had purchased this property in 1975, using an amount ($28,500) received as a result of a car accident she suffered in 1973. At the time of their cohabitation, this property was unencumbered. It was sold by the Defendant in 2011 for $335,000 and the whole of the net proceeds of sale was used to reduce the mortgage that had been taken out on the Jilliby property.

The deceased and the Defendant purchased an investment property at Lennox Head in 2004 for $407,000. The Lennox Head property was rented by the Defendant’s daughter, Renee and two of her friends. However, the Defendant contributed $1,000 per fortnight, for a period of 4 years, to assist with mortgage repayments. This property, also, was sold in 2011, for $435,000, which was enough to discharge the mortgage registered on it, and to cover the costs and expenses of sale.

The deceased and the Defendant purchased the Jilliby property in 2009 for $887,000. The purchase price was raised by a mortgage secured over the Defendant’s Springfield property and one secured on the Jilliby property.

The deceased worked full time as an electrical engineer and the Defendant worked full time as a registered nurse.

In November 2015, the Defendant received an inheritance from a friend. It is not entirely clear whether it was a lump sum of $80,000, which she stated in her affidavit, or $90,000: T64.8 – T64.12. Whichever amount it was, she transferred these funds into the deceased's Westpac account to reimburse him the costs of his Holden car, household expenses, and for furniture for the Jilliby property. In September 2015, the Defendant used $36,000 of the inheritance to purchase the Holden Storm Ute.

There can be little doubt that the Defendant made a very significant financial contribution to the acquisition, conservation and improvement of the property that was jointly owned by them, both before and after, the deceased’s death. As his wife for 20 years, she also made a significant contribution to the welfare of the deceased.

The Plaintiff gave evidence about these matters in her affidavit made on 19 May 2017.

Despite the Court, on 2 November 2017, having directed that each party serve upon the other an updating affidavit, neither of the parties did so until a day or two prior to the hearing. However, as neither counsel made any objection to the service of updating affidavits so late in the proceedings, I have read each of her affidavits.

In addition, the Plaintiff was cross-examined on not having produced any of her, or any of her husband’s, income tax returns, which after some prevarication, she admitted she had not done: T18.33 – T19.11.

The Plaintiff, who is aged 40 years, is married to Robert and they have two children each of whom is still a minor. She is said to be in good health.

Although the Plaintiff said that she and her husband own a battery business called Northcoast Battery and Trailers, in fact her husband conducts that business as a sole trader: T19.21 – T19.24.

She asserted that they now earn, as wages, about $3,500 per month (decreased from $6,000 per month), which is about $875 per week. The Plaintiff hoped that if the business improved, the income received would also increase: T28.35 – T28.37.

She also stated that the rent for the premises from which the business is conducted has increased from $880 per month to $2,148 per month. It is from the income of the business that the rent is paid.

The Plaintiff set out the family’s weekly expenses, which are said to total about $1,787. Those expenses include mortgage repayments ($600), car loan repayments ($185) and tax ($163), as well as home, and family, expenses. The Plaintiff does not disclose how the difference ($937) between their weekly income ($875) and their weekly expenditure ($1,787), is met.

In addition, she says that she is paying off a tax liability ($5,914) at about $270 per month, and that her husband is paying off a tax liability ($8,247) at about $438 per month. (These two expenses do not appear to form part of their weekly expenses of $1,787.)

The Plaintiff produced a document headed Profit and Loss Statement which was said to be covering the period July 2016 to June 2017. In fact, it comprised four pages and covered, so it would seem, the years ending June 2016 and June 2015 (Ex. 3) which related to the business. These documents were said to be “a computer generated MYOB document” which she had produced: T20.00 – T20.22. There was no explanation proffered for not producing any document that revealed the profit and loss for the period after June 2017.

She agreed that in each of the financial years, the income of the business had increased: T26.13 – T26.15, although as a result of having been evicted from the premises from which the business was being conducted, whether that would continue was uncertain.

The Plaintiff has superannuation of $24,111 with REST Superannuation and Australian Pharmaceutical Guild. Her superannuation has increased by about $4,000 since her first affidavit.

Her husband has superannuation of $162,000. His superannuation appears to have increased by about $12,000 since her first affidavit.

The Plaintiff has disclosed:

The Plaintiff gave evidence that no payments were being made currently to reduce the debt owed to her father-in-law but that he was not pressing for repayment or charging any interest on the outstanding loan: T27.25 – T27.43.

It was submitted that by the deceased not having made any contribution to the costs and expenses of the Plaintiff during her childhood, he had bettered his own financial circumstances.

There is some merit in this submission, but it is to be remembered that Ms Westerman stated that she had not sought any child support from him until 1991. The Defendant’s evidence reveals that, then, the deceased complied with his legal obligations in relation to paying child support for the Plaintiff. Her evidence about the deceased’s financial circumstances, when their relationship continued, must also be remembered.

As the deceased himself stated, following their meeting in 2001, and until 2009, the Plaintiff provided some joy to the deceased and, in this way, contributed to his welfare.

The Plaintiff was financially independent of the deceased for all of her adult life.

It was submitted that the Plaintiff had a demonstrated “need”. Counsel pointed to:

The Defendant is 67 and works, part time, as a registered nurse and clinical nurse specialist. Her net weekly income as a nurse is approximately $900. She was receiving approximately $1,000 per week from the pension plan to which reference is made. In December 2017, she reduced this amount to $1,500 per month “with a view to conserving the fund while I am still working”.

Her expenses are estimated to be approximately $2,000 per week and these include the cost of food and groceries ($400), entertainment ($200), gifts ($100) clothing ($100) and “general” expenses ($150).

The Defendant has assets being the Jilliby property ($1,200,000), a motor vehicle ($25,000), her own superannuation ($8,080), household and personal effects ($30,000) and money in bank ($2,953). In addition, as stated previously, there is $623,000 in the Portfolio.

The Defendant has a credit card debt ($2,445) and depending upon the result of the proceedings, she will have to satisfy any family provision order made in favour of the Plaintiff and any costs orders that are made.

I should mention that the Defendant accepted that, since the date of death, she had received about $353,909 (Ex. D); that she had spent about $100,000 on repairs and renovations (including $48,519 for the maintenance and repair of the Jilliby property); that her monthly expenditure (calculated at $2,000 per week, for 20 months) totalled about $160,000; that she had purchased a car for her daughter (about $25,000) and one for herself ($33,000); and that she had paid something towards the cost of her daughter’s wedding overseas ($20,000). She also said that she had paid some of the costs of her grandchild (who is on the autism spectrum), including something for her school fees and also paid for her to have occupational therapy and speech therapy.

The Defendant is, generally, in good health, although she suffers from high blood pressure and has suffered a back injury.

Bearing in mind her age, it is unlikely that she will be able to work as a registered nurse for very much longer. There is no evidence about for how long the Defendant is likely to do so.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiffs’ eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for her proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate or notional estate of the deceased for those purposes. Also, it will be necessary to determine whether a notional estate order ought to be made.

It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order (s 59(1)(c)). Only then, may “the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”(s 59(2)). The Act stipulates no automatic entitlement to provision and the deceased’s Will applies unless a specific application is made to, 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) 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 any applicant.

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

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; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).

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) said 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 at [9].

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

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, out of the estate or notional estate, should be the only, or even the dominant, consideration.

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

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

In Heydon and Leeming, Jacobs' Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths) at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145 - 146, wrote:

More recently, in Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787, Newey J, at [26], wrote:

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

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

Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14]-[15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears:

The concept of “advancement in life” extends to a person’s adult years: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114].

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

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote:

In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Murphy J wrote at 505:

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

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

The 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:

Their Lordships went on to state, at 478:

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:

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:

In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502:

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

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

In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) 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.”

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

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

I should mention what Parker J has written in Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 at [94]:

Whilst I agree that s 60(2)(d), and therefore, “financial needs”, is simply one of the matters to which the Court may, but does not have to, have regard, if the Court does so, as will be read, one of the purposes for which the matters in s 60(2) may be regarded 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". I respectfully agree.

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]:

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

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.

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.

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 a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [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; [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 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).

Under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

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

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

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 under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).

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

The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning “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 designating property specified in the order as notional estate of a deceased person”.

It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision “may now apply in the same proceedings for orders for relief and designating property as ‘notional estate’ thereby compelling the ‘disponee’ of a ‘prescribed transaction’ to provide money or property for the purpose of making financial provision for the applicant”: Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441. (Although the terminology in the Act is different, the same principle applies under the Act.)

Rosalind Croucher in “Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) SydLR 263, has commented on the notional estate provisions of the former Act:

In New South Wales Law Reform Commission, Report 110 Uniform Succession Laws: Family Provision, (May 2005) at 37, "notional estate orders" are described as "orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased's death (either with or without the intention of defeating applications for family provision)".

In Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was “a complex concept” but shortly described it as “property which would have become part of the deceased’s estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way and in particular circumstances, prior to his or her death”.

Section 63(5) of the Act, relevantly, provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act.

Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).

As will be read, the deceased’s estate is insufficient for the making of the family provision order that the Court is of the opinion should be made. At best, the estate would be about $51,000 (the proceeds of sale of the car and the guns.)

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, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).

Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76. "Property" includes “any valuable benefit” (s 3).

Section 75 of the Act provides:

Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described in s 76(2)(b), arises:

Any such circumstance is “subject to full valuable consideration not being given” (s 76(1)). Importantly, a distinction must be drawn between “valuable consideration” and “full valuable consideration”: see, for example, s 76(4) of the Act.

Important also is the omission of the words “in money or moneys worth”, which had appeared after “full valuable consideration” in the equivalent provision (s 22) of the former Act.

The expression “subject to full valuable consideration not being given”, in my view, has the effect of imposing a requirement, wholly separate from the result, which is property becomes, by operation of the right of survivorship, held by another person or subject to a trust.

There did not appear to be a dispute that the non-severance, before the deceased’s death, of the joint tenancy, is a matter capable of giving rise to a designation of notional property: Cetojevic v Cetojevic [2006] NSWSC 431. As such, it is necessary to consider certain other sections of the Act.

Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person, or subject to a trust, or as otherwise provided by the section. Sub-section (3) provides that a relevant property transaction consisting of circumstances described in s 76 (2)(b) or (e) is taken to have been entered into immediately before, and to take effect on, the person’s death, or the occurrence of the other event referred to in those paragraphs.

Section 78 of the Act provides:

As stated earlier, s 79 of the Act relevantly provides that the Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

In this case, there can be little doubt that the proceeds of sale of the deceased’s car, as a result of the distribution, became held by the Defendant.

Section 80(1) provides that the Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person, if the Court is satisfied that the deceased person entered into a relevant property transaction before his, or her, death and that the transaction is a transaction to which the section applies.

Section 80(2) provides for the section to apply to the following relevant property transactions:

(In this case, only s 80(1)(c) is relevant.)

It is not essential that the applicant be able to rely upon the provisions of more than one of the sub-paragraphs identified. It is sufficient if he, or she, is able to establish the matters in any of them.

Section 83 of the Act relevantly provides that the Court must not, merely because a relevant property transaction has been entered into, make an order under s 80, unless the Court is satisfied that the relevant property transaction, or the holding of property resulting from the relevant property transaction, directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death).

The effect of a notional estate order is that “a person’s rights are extinguished to the extent that they are affected by a notional estate order” (s 84 of the Act).

The power to make a notional estate order is discretionary. Section 87, contained in "Division 3 Restrictions and protections relating to notional estate orders", circumscribes the Court’s power to make a notional estate order. That section provides:

In John v John [2010] NSWSC 937, Ward J (as her Honour then was), at [118]-[120], wrote:

In reference to s 87(a) of the Act, Basten JA in Phillips v James at [125], wrote:

Thus, the Defendant is the person whose “reasonable expectations” should be considered, since she is the spouse of the deceased, and in the events that happened, the person who has come to hold the jointly owned property by survivorship.

The “substantial justice and merits” referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep). (In that case, the reference was to the equivalent provision (s 27(1)(b)) of the former Act.)

The position of both parties should be considered in respect of s 87(b) and s 87(c).

Section 89(1) of the Act relevantly provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.

If the Court has made, or proposes to make, a family provision order designating certain property as notional estate, s 92 of the Act enables the Court, on application by a person who offers other property in substitution ("the replacement property"), to vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or to make a notional estate order designating the replacement property as notional estate instead of the property proposed to be designated as notional estate by such an order, as appropriate. However, such an order may only be made if the court is satisfied that the replacement property can properly be substituted.

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; McKenzie v Topp [2004] VSC 90 at [63].

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

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

In Stott v Cook (1960) 33 ALJR 447 at 453-4, 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:

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:

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

In Henry v Hancock [2016] NSWSC 71, at [69], Brereton J wrote:

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

The size of the estate and/or notional estate is a consideration in determining an application for provision. However, its size does not justify the Court in rewriting the 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] VSC 35 at [67].

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 are also useful to remember:

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 the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [62].

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 J, 26 April 1985, unrep). Nor is it the role of the Court to provide reparations to the Plaintiff in respect of what might be regarded as poor parental behaviour by means of a monetary order: Williamson v Williamson [2011] NSWSC 228 at [124]-[127].

The deceased did not have any parental responsibility during the first 14 years of the Plaintiff’s life. That fact may increase the moral obligation to make adequate and proper provision for her out of his estate by his Will: Campbell v Chabert-McKay [2010] NSWSC 859, per White J (as his Honour then was) at [119].

Counsel for the Plaintiff also relied upon the statement of Brereton J in Stone v Stone [2016] NSWSC 605, at [62]-[63] to the effect that as the Plaintiff had been “denied opportunities as a child and young adult to build skills and acquire knowledge to equip her for life in the future”.

In this case, there is no evidence that the Plaintiff did not build such skills or acquire knowledge to equip her for life in the future. To the contrary, the Plaintiff told the deceased that she had married a wonderful man, and had two beautiful children. She also gave evidence of her contribution to the business that was conducted by her husband. She did not provide any evidence of the skills that had not been able to be built, or the knowledge she asserted that had not been acquired, as a result of the deceased playing no part in her life.

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

The other claimant on the bounty of the deceased, who is the sole beneficiary, does not have to prove an entitlement to the provision made for her in the deceased’s Will, or otherwise justify such provision. In this case, however, she has provided a deal of evidence demonstrating her contribution not only to the building up of the deceased’s estate, but also to his welfare.

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), 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. As Lindsay J said in Verzar v Verzar [2012] at [131]:

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

Having established eligibility, and that the proceedings were commenced within time, relevantly, 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. This must be determined, so it would appear, before the question whether property should be designated as notional estate since the Court may make such an order only for the purposes of a family provision order to be made under Part 3.2 of the Act, or for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate be paid from the notional estate of the deceased.

Yet, as has been pointed out by Ball J in Ogburn v Ogburn; Ogburn v Ogburn [2012] NSWSC 79 at [66]:

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

There was no provision in the deceased's Will for the Plaintiff. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no provision is made for her in the deceased’s Will.

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

Whether that is so, requires an assessment of her financial position, the size and nature of the deceased’s estate (and notional estate), the relationship between the Plaintiff and the deceased, the competing claim of the Defendant, as another person who has a legitimate claim upon the bounty of the deceased, and the circumstances and needs of the Defendant: see, for example, McCosker v McCosker, at 571–572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 at [70].

This is a case where in the first 24 years of their joint lives, there was little more in the relationship between the Plaintiff and the deceased than biological paternity. During these years, apart from complying with his obligations to make payments of child support, he did not make any financial or other contribution to the Plaintiff. However, the Plaintiff's claim for a family provision order is not a vehicle for seeking compensation for any past wrong said to have been committed by the deceased.

Following his meeting with the Plaintiff, in 2001, the deceased professed his love for her as his child. He even identified the importance of the Plaintiff to him, according to the evidence of the Defendant, a short time before his death. I have also taken into account the contribution made to the costs of her wedding ($5,000). Yet, there was limited contact between them for several years before the deceased’s death. I assess this bearing in mind the history of their relationship.

The Defendant acknowledged that the deceased owed an obligation to the Plaintiff, as his child. Counsel went on to submit, however, that the obligation was circumscribed by the limited contact the deceased had with the Plaintiff, particularly after August 2009. The Court should take into account, and evaluate, the whole of the circumstances regarding the relationship of the Plaintiff and the deceased.

In addition, there was the significant competing claim of the Defendant which must also be considered.

Taking all of the circumstances into account, I am satisfied that adequate provision for the Plaintiff’s proper maintenance and advancement in life was not made by the Will of the deceased.

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

Having considered the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances, I am satisfied that the Plaintiff should receive a modest capital sum that she can retain, in part, for exigencies of life if she wishes, to use the balance to pay off some debt, thereby providing the family with more disposable income, or to use in any other way that she sees fit. In my view the relationship that existed between the Plaintiff and the deceased for the last several years of the deceased’s life does operate to restrain the level of provision that “ought” to be made for her.

The provision for the proper maintenance and advancement in life of the Plaintiff that ought to be made, in my view, is by way of a lump sum of $80,000. In coming to this conclusion on quantum, I have taken into account the value of the deceased’s property that may be designated as notional estate; the competing claim of the Defendant; the responsibility of the Plaintiff’s husband to assist in maintaining the Plaintiff; the fact that the deceased made virtually no financial contribution to the maintenance and education of the Plaintiff during her childhood and young adult life; the contribution of the Plaintiff, particularly between 2001 and August 2009, towards the welfare of the deceased; that there was little contribution by the Plaintiff after that time; that the Plaintiff and her husband are not wealthy, having a significant amount of mortgage and other debt (including, one half of the amount of the debt owed to the Plaintiff’s father-in-law (which is $58,000 in total), $15,000 being the amount of the car loan, $2,000 being the Plaintiff’s credit card debt and $5,914 being the tax bill that she has to pay); as well as a modest amount for the exigencies of life which will provide something of a buffer in case of ill health or incapacity (which buffer the Plaintiff does not currently have). Her entitlement to superannuation is also modest.

I have not forgotten, in coming to the conclusion on the quantum of the provision to be made for the Plaintiff, the deceased’s entitlement to testamentary freedom, or his right to purchase property, which passes, by survivorship, to the Defendant, his widow, or her very substantial competing claim, as his wife of many years, upon the bounty of the deceased, and her competing financial claim on his bounty. Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child’s life and into retirement.

In this case, relevantly, the Court's power to make a notional estate order will only arise if I am satisfied that the deceased's actual estate is insufficient for the making of the family provision order, or any order as to costs, that should be made. Even then, I must not designate as notional estate, property that exceeds what is necessary to allow the provision that should be made, or, if I make an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both.

As stated, without an order that the Defendant repay to the estate the amount she received by way of the proceeds of sale of the car, and interest thereon, she is the only holder of property that may be designated as notional estate and is a proper and necessary party to the proceedings. She has been given the opportunity to be heard, and has been heard, in opposition to the making of a notional estate order.

It is clear, from all of the evidence, that:

However, consideration of the importance of not interfering with the Defendant’s reasonable expectations in relation to the Jilliby property and the substantial justice and merits involved in making, or refusing to make, the order must be considered.

Whilst the Defendant made a significant financial contribution to the purchase of the Jilliby property both before and after the deceased’s death, and continues to live there, the deceased also made a financial contribution. He made a contribution of $150,000 to reduce the debt secured by the mortgage shortly prior to his death.

The Defendant has lived in that property since its purchase and has a reasonable expectation to continue to do so. One would not expect that the Plaintiff would have any reasonable expectation that she would inherit any part of the Jilliby property (despite what the deceased is alleged to have said).

It was submitted by counsel for the Defendant that the substantial justice and merits of the case are against the making of a notional estate order as it would dispossess the Defendant of her home. Respectfully, I disagree. The Defendant received the proceeds of sale of the car at a time when she was well aware of the Plaintiff’s claim. If that amount were repaid to the estate, the amount of the contribution that the Defendant would have to make to satisfy the family provision order would be no more than $30,000. As stated, there is $623,000 in the Portfolio. There would be no need for her to borrow the balance of the lump sum or to have the lump sum secured by registered mortgage. Subject to any costs orders, the Defendant would have an unencumbered home and over $500,000 available to her from the Portfolio. In addition, she has some personal superannuation and a car.

I am of the view, that the substantial justice and merits require the making of a notional estate order. In this regard, having found that a family provision order ought to be made, it would be unjust, in my view, to not make a notional estate order with the consequence that all, or part, of the lump sum provision for the Plaintiff could not be met.

Counsel for the Plaintiff submitted that the Jilliby property was not her “first port of call” in regard to a notional estate order. However, since I have determined that the deceased’s interest is available to be so designated, and as it will be for the Defendant to determine how to satisfy the family provision order and any costs order, it is not necessary to determine the more difficult questions arising in relation to whether any part of the Portfolio should be designated as notional estate. I have earlier referred to s 92 of the Act.

In view of the fact that there is cash available to the Defendant, subject to any further submissions, I am of the view that interest on any part of the lump sum that remains unpaid after 28 days of the making of orders, calculated at the rate prescribed on unpaid legacies by s 84A(3) of the Probate and Administration Act 1898 (NSW), is to be paid from that date until the date of payment.

If there remains any dispute about the form of orders, or in relation to how the burden of costs should be borne, after the parties read these reasons, I am prepared to make the order referred to by Young J in Ernst v Mowbray and to order that the balance necessary to satisfy the family provision order and any costs orders be paid out of the notional estate of the deceased.

In summary then, subject to any further submissions, the following orders should be considered by the parties:

I would commend to the parties that, if possible, agreement should be reached on the matters remaining outstanding so that the further costs may be curtailed. Any orders should include one that provides for the exhibits and subpoenaed material to be returned; with any exhibits returned to be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

I shall hear the parties as to the final form of the substantive orders to be made, including costs. In the meantime, the Court: