Doshen v Pedisich

HIS HONOUR: These are proceedings commenced by Dinka Doshen ("the Plaintiff"), who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") upon the basis that, as a stepchild, she was a person who was a member of the household of Anna Matetic ("the deceased") and was wholly, or partly, dependant upon her at that, or other, particular time.

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiff commenced the proceedings by Summons filed on 7 August 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).

The Defendant named in the Summons is Matija Pedisich, a friend of the deceased, and the executrix appointed in the Will of the deceased to whom Probate was granted.

The Plaintiff is one of two daughters of Ante (also known as "Tony") Matetic, by his prior marriage.

The following facts are uncontroversial.

The deceased died on 17 December 2011. She was then aged 80 years, having been born in January 1931. The deceased, apparently, migrated to Australia in about 1961.

Ante, who was born in May 1927, was first married to Jelena Sliskovic, the Plaintiff's mother, in Yugoslavia. There were two children of their marriage, one of whom was the Plaintiff and the other was Melita, who was born in December 1953. However, this marriage ended in about 1957. Ante went to Austria in about September 1959 and appears to have migrated to Australia, from there, in about 1961.

The precise date of the commencement of the relationship between the deceased and Ante is not entirely clear. They married each other, in Albury, in about 1963. (The precise date of the marriage is also not known, but Ante was about 36 years old at the time of the marriage.) There were no children of their marriage.

The deceased and Ante, were registered as joint tenants of what was to be their matrimonial home throughout their marriage, by Memorandum of Transfer dated 15 October 1965.

Ante died in March 2002. At the date of his death, he had been married to the deceased for almost 40 years.

On Ante's death, it was the former matrimonial home that the deceased inherited by survivorship. The property was sold in 2011, following the deceased entering a nursing home. It appears that the proceeds of sale provided what was to become the major asset in the deceased's estate at the date of her death.

The deceased left a Will that she made on 22 May 2007, Probate in common form of which was granted, to the Defendant, on 21 March 2012, by this Court. By that Will, the deceased provided: (a) a pecuniary legacy of $5,000 to the Victor Chang Research Institute of New South Wales "for assistance in research"; (b) a pecuniary legacy of $1,000 to the Defendant absolutely; (c) for the rest and residue of her estate to be divided between Mate Lojic, the son of her husband's niece, Maria Lojic, and her own niece, Claudia Jaag, for their own use and benefit absolutely, and if more than one, in equal shares as tenants in common.

There was no provision made for the Plaintiff in the deceased's Will. However, the Will provided: "8. I ACKNOWLEDGE that I have made no provision in my Will for DINCA (sic) MATETIC who claims to be the daughter of my late husband as she has ill treated both myself and my late husband for many years and has made no attempt to contact or have anything to do with me."

(I shall return to this statement later in these reasons.)

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death, was disclosed as having an estimated, or known, gross value of $820,022. No liabilities were disclosed. The estate was said to consist of the proceeds of an accommodation bond ($672,537) and moneys on deposit in two accounts ($135,000 and $12,690). (I have omitted any reference to the cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.)

There were, in fact, some funeral and testamentary expenses. The Defendant paid, out of the estate, $9,725 on account of the deceased's funeral and $3,000, on account of legal costs for obtaining Probate.

In an affidavit sworn on 2 September 2013 by the Defendant, she disclosed that the then gross value of the deceased's estate, which is held in cash on term deposit ($783,514) and in a controlled moneys account ($33,544), is $817,059.

The Defendant also disclosed in that affidavit that she had caused to be paid out of the estate, an amount of $7,137 "in relation to the estate"; $935 "in relation to the proposed claim against the estate of Mr Henry Twaddell, the deceased's neighbour"; $31,802 "in relation to the present proceedings" (being legal fees, inclusive of GST, of $29,174 and disbursements, inclusive of GST, of $2,628); counsel's fees of $18,865; and other disbursements of $3,652.

The Defendant estimates additional costs and disbursements ($22,000) of these proceedings are yet to be paid out of the estate.

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

The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, were estimated to be $55,000 (inclusive of GST and upon the basis of a one day hearing).

The bulk of the Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have already been paid out of the estate. It is the balance payable ($22,000) that should be taken into account in determining the estimate of the net value of the deceased's estate. (There is no notional estate to be considered.)

The parties, thus, accepted, for the purposes of the hearing, that I should determine the Plaintiff's application upon the basis that the estimated net value of the distributable estate, after the payment of the Plaintiff's costs ($55,000) and the balance of the Defendant's costs ($22,000), assuming that the costs orders are made, as well as deducting the two pecuniary legacies ($6,000), which have not yet been paid, will be $734,059.

During submissions, it was accepted that the usual costs order should be made if the Plaintiff was successful, but if she were not, the parties wished to make submissions on costs.

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

The Plaintiff asserts that she is the only eligible person within the meaning of that term in the Act. In submissions filed on her behalf, the Defendant disputes that the Plaintiff is an eligible person and says that there are, in fact, no eligible persons.

Neither of the residuary beneficiaries has sworn an affidavit that has been read in the proceedings. However, some information about Mate Lojic has been provided in an annexure to the Defendant's affidavit sworn 2 September 2013. There is annexed to her earlier affidavit sworn 3 December 2012, some information provided by the solicitor for Claudia Jaag. The Defendant gives evidence that each of them has been notified of the Plaintiff's claim. I shall return to the evidence in relation to each of the residuary beneficiaries later in these reasons.

Only the Plaintiff has commenced proceedings under the Act. The Act (as will be seen) provides that I may disregard the interests of a person in respect of whom an application for a family provision order may be made. However, the Court is not permitted to disregard the interests of a beneficiary. However, since there is no suggestion that the provision, if any, made for the Plaintiff should be borne by either, or both, of the pecuniary legatees, I shall disregard the interest of each.

Since no objection was taken to the indirect evidence of the financial and other resources of the residuary beneficiaries, I shall not disregard the interest of each as a beneficiary.

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

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

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

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied, that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of that term as defined in s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly, or partly, dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.

It can be seen, from the sub-section, that there are two limbs. The first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". The language in the sub-section is reflective of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on such a person making an application.

As stated, the first limb that must be established is a relationship of dependence, whether whole or partial, upon the deceased. It is clear that the dependency does not have to be at the same time as the applicant was a member of the household of which the deceased was a member.

Neither the former Act, nor the Act, contains any definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002): "45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote, at [85]: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough."

In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA: "The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J, at [42], said: "Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."

In Tobin v Ezekiel [2012] NSWCA 285, at [109], Meagher JA wrote that dependency "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and at [110], that it "may exist irrespective of whether the dependent person is financially or physically able to support himself or herself".

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[c]ommon sense requires that certain trivial activities should be disregarded".

A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13].

Whether dependency, wholly or partially, exists, is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189.

As Macready AsJ noted in Dunn v McCarthy [2010] NSWSC 675, at [29], "[W]ith young children dependency becomes complex, as is illustrated in the cases of grandchildren".

The second limb of s 57(1)(e) is being "a member of the household of which the deceased person was a member". (The difference between this sub-section and the former Act, which referred to "a member of a household of which the deceased person was a member", is not relevant in the present case. A useful discussion of the difference between the two sections is found in Wolff v Deavin [2012] NSWSC 1315.)

The Act does not state any requisite period of time during which an applicant must be a member of the household of which the deceased person was a member. However, for some period, the applicant and the deceased must have been members of the same household.

It is necessary to consider the meaning of the words "member of a household". I do so, remembering that the words must be given their normal meaning in the context in which they appear. There is no definition of the phrase in the Act.

In considering the phrase, I note that the word "household" may be contrasted with the word "house" (which is not used). The word "house" denotes something physical, whereas the word "household" has an abstract meaning.

The Oxford English Dictionary defines "household" as "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc.)". In this definition, it is the characteristics and dimension of the domestic relationship that make it a household.

Some discussion of the phrase and the word is to be found in Benney v Jones (NSWSC, 13 February 1990, unreported) per Young J (as his Honour then was), at 22: "A good list of the Canadian and United States authorities is contained in the decision of Muir v Royal Insurance Company (1981) 125 DLR (3d) 172 in which case is referred the decision of Wawanesa Mutual Insurance Co. v Bell (1957) 8 DLR (2d) 577 in which it was said the word 'household', in the broad sense of a family, is a collective group living in a home acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity, or other bond, between whom there is an intimacy and by whom there is felt a concern with, and an interest in the life of all that gives it a unity. It may for example, include such persons as domestic servants and distant relatives permanently residing within it. To some degree they are all admitted and submit to the collective body, its unity and its conditions, particularly that of the general discipline of the family head. They do not share fully in the more restricted family intimacy or interest or concern, but they participate to a substantial degree in the general life of the household and form part of it."

In Re Cormick; Peters v Salmon [1984] HCA 79; (1984) 156 CLR 170, at page 178, Gibbs CJ referred to the term "household" as appeared in section 5(1)(f) of the Family Law Act 1975 (Cth) and said of that term that it was "a wide word which would include any relative, friend or servant, ordinarily living in the house." The word is wider than "family". However, Deane J seemed to be of the opinion that being a member of the household inferred a form of special familial relationship.

Another authority to which reference should be made is Kingsland v McIndoe (1989) VR 273, in which Gobbo J gave a useful discussion of the authorities dealing with the meaning of "member of the household". He said, in summary, that the concept of membership of a household, connotes a degree of continuity and permanency of mutual living arrangements.

McLelland CJ in Eq in Munro v Lake (NSWSC, 8 February 1991, unreported) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case, his Honour held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

In Wagstaff v Wagstaff, (NSWSC, 6 November 1991, unreported), Master Windeyer (as his Honour then was), concluded that the ordinary meaning of being a member of a household requires the member to live in that household. He said that a child living at home with the family is a member of both the family and the household, but upon moving out to live elsewhere, remains a member of the family, but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient.

In Markulin v Drew (NSWSC, 12 August 1993, unreported), Young J, at 46, concluded that: "What is to be learnt from the cases, particularly the Court of Appeal decisions in Benney v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions (sic) Act provided that there is, in fact, a household and that the Plaintiff has some intimate connection with the householder or another member of the household even though the Plaintiff does not fall into the category of a quasi-wife or quasi-child... However, it all becomes a question of fact in each case."

In Porthouse v Bridge [2007] NSWSC 686, Bryson AJA discussed, at [20] - [21], what constitutes being a member of the household. He said: "Before Mr Porthouse came to Wollongong in 1968 he had spent school holidays, two weeks in August and about six weeks at Christmas, in each of five years staying with his mother and stepfather in the house. The school holiday periods, notwithstanding that some were as long as six weeks, were visits and he did not become a member of the household during those periods. They come under consideration on the question whether Mr Porthouse was at any particular time partly dependent on Mr Scott. The fact that he had so often and for such extended periods visited the household on holidays assists the conclusion that when his schooldays ended and he came from Tasmania to live at the house with no definite plans to leave he was soon assimilated into the household. From his return from Tasmania after 1971 he was even more clearly entrenched in the household; his father had died and he had nowhere else to go. His association with the household was much stronger than the regular visits and weekend stays referred to in Munro v Lake (McLelland J 8 February 1991), and in my opinion there was the degree of continuity and permanency of mutual living arrangements which the concept of membership of a household connotes. It is probable that the sum of the periods of time he spent there is the equivalent of two years or more. I find that Mr Porthouse was a member of the household at 19 Rawlinson Avenue of which Mr Scott was the head for significant periods. Membership of the household is testified eloquently by his being received back there, time and time again, during his turbulent years when he moved out on several occasions and lived in flats, encountered vicissitudes, and returned to the house where his mother and stepfather lived. It is said to be a test of where one's home is that the people there must let you in when you go back. The facts that Mr Porthouse made several attempts to establish himself in living independently before he finally left forever, and that he was received back after each attempt, testify to his having been, and when received back still being a member of the household."

Reference should also be made to some overseas decisions. In Snair v Halifax Insurance Nationale-Nederlanden North America Corp., 145 N.S.R. (2d) 132; [1995] N.S.J. No. 424 (QL), heard in the Nova Scotia Supreme Court, Cacchione J observed, at [13]: "It is clear that the word "household," as generally defined, has a flexible meaning. It is understood, at times, as being identical with what is meant by family or domestic establishment; that is, a unit of persons who live together. The common element in cases such as Wawanesa Mutual Insurance Company v Bell ... Wade v Canadian Northern Shield Insurance Company ... Murphy v Beaton, is the existence of an element of intimacy or community in the relationship." (Omitting citations)"

In Wright v Canadian Group Underwriters Insurance Co (2002) BCCA 254; [2002] 5 W.W.R. 612, a decision of the Court of Appeal for British Columbia, Low JA (with whom Finch CJ and Ryan JA agreed) said, at [30] - [37]: "The insurer argues that the Supreme Court of Canada decided this issue in its favour in Wawanesa Mutual Insurance Co v Bell, [1957] S.C.R. 581; (1957) 8 D.L.R. 92d) 577. In that case, a policy of automobile insurance provided coverage for a replacement vehicle unless the insured party was driving a vehicle "owned by a person of the household of which the insured is a member". At the time of the accident, the insured was driving a car owned by his brother, his own car being in a garage for repairs. The insured had lived in the brother's home for three years, paid room and board, had certain privileges in the home, but no duties or responsibilities within the home, and was engaged to be married and intending to set up a household of his own. The trial judge held that the insured was not a member of his brother's household. The Ontario Court of Appeal and the Supreme Court of Canada upheld that decision. The insurer here relies upon the distinction made between "of the household" and "in the household" in the Wawanesa case. Although counsel for the insurer does not say so specifically in his written submissions, the insurer's position is really that "of the household" means within a family or other unit of people living together collectively while "in the household" means within a house. In my opinion, the cases do not go nearly that far, as I shall attempt to demonstrate. It seems to me that this argument ignores the use of the word "household" in the exclusionary clause under consideration. The understood definition of the term must have some meaning within the context of the clause. Otherwise, why would the person drafting the policy employ the word? The trial judge in Wawanesa, Aylen J., (reported at (1956) 5. D.L.R. (2d) 759) at 761-2 sought to find a definition for the term "household". He referred to the definition in The Shorter Oxford Dictionary: "....the inmates of a house collectively; a domestic establishment." He thought the word "establishment" implied "some sort of organization". The 1998 edition of the Canadian Oxford Dictionary defines the term this way: "1. the occupants of a house regarded as a unit. 2. a house and its affairs." Aylen, J. went on to quote definitions from "Words and Phrases", perm. Ed. Vol. 19, at p.701 including the following: "Webster gives the primary meaning as '....a household including parents, children, and servants, and it may be lodgers or boarders;' but the cases do not generally sustain the inclusion of the latter. To constitute the family relation between persons living together, it must be permanent and domestic in character, and not temporary. It embraces a household composed of parents, children, or domestics; in short, every collective body of persons living together within one curtilage subsisting in common and directing their attention to a common object." Applying the above definitions, he concluded that the insured's brother was not a member of the household although he was resident in the household. He said this (at 765): 'There appears, therefore, to be a distinction made in the policy between persons "in" the household and person who are "members of the household". Any special privileges which the insured enjoyed in the household arose because of his relationship to the head of the household, and cannot be used as a means of judging his real status in the household, which was that of a boarder. If the policy was intended to except all residents in the household it should have provided so specifically,....' In a short oral judgement (found in the same report as the trial judgement) the Ontario Court of Appeal upheld the decision. Laidlaw, J.A. said (at 766) that the insured driver "was in reality a resident member in the household, and the fact that he was the brother of the head of the household does not of itself make him a member of that household" (my emphasis). The appeal to the Supreme Court of Canada produced three separate judgements all agreeing in the result with the decision in the courts below. Kerwin, C.J.C., with whom Taschereau, J. agreed, simply observed that it was impossible to define the clause in the insurance policy to cover all cases and that, in the circumstances of the case, it could not be said that the lower courts arrived at a wrong conclusion (at 578). Rand, J., with whom Cartwright, J. agreed, approached the meaning of the term "household" in the following manner (at 578): 'Both the Oxford and the Century dictionaries make it clear that the term "household" is of flexible meaning. In the general understanding it is associated and at times identical with what is connoted by "family" or "domestic establishment". The characteristics of the relations between members of a household are so varied and of such different degree of significance that it is quite impossible to define the word in detailed terms applicable to all cases; and to come to a conclusion as to its scope as it is used in the policy requires that we resort to the ordinary aids to interpretation. The exception is in the language of the company, and if it is ambiguous, the ambiguity must be resolved in favour of the insured; and a material consideration to be taken into account is the purpose intended to be served by it.'"

In Wood v Krebs (2004) Carswell Ont 603; 2004 CanLII 27857, Lane J wrote, at [8]: "It appears that the test for membership in the household is a mix of physical presence and emotional or familial attachment. The reference in Wawanesa to submission to the authority of the head of the family is possibly a bit dated from a social and familial perspective in more modern times; what remains clear is that some significant degree of attachment to the family is necessary. I see no reason why a person cannot have more than one household if he chooses to have more than one residence. Persons who are members of the same family may habitually or regularly be at one location and not at another and so form part of one household but not of the other, or alternatively, may be members of a single household maintained in two places."

In Gray v Insurance Corporation of British Columbia (1987) 20 BCLR (2d) 63; 46 DLR (4th) 269, Carrothers JA (with whom Craig J.A. concurred), at 273-274, when dealing with the question whether insurance benefits were available for "members of the household of the insured", said, at [9] -[11]: "I consider the use of the word "member" to be significant. The legislature could have used such words as "tenant", "resident" or "occupant" but it chose the word "member". To my mind to be a "member" of a household implies a constituent, an integral part or a component of a whole, thus supporting the trial judge's concept of a bond or affinity as an essential element of what constitutes a member of a household ... The word "household" in the statute implies a "householder" which in turn implies some form of relationship between the "member" and the "householder". This relationship imposes on the "member" a certain deference to the "householder", compliance with a degree of propriety and responsibility and an active sense of participation in "household" functions and to defer to the wishes of the "householder" in this regard."

In Simmons v Pizzey [1979] AC 37; [1977] 2 All ER 432, Lord Hailsham, after considering the Oxford Dictionary and the Words and Phrases definitions of the term "household", concluded, at page 59: "I do not find any of these references particularly helpful except to make clear to me that I would have supposed in any case that both the expression 'household' and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive."

In Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779, Judge Norris QC, sitting in the Birmingham High Court, Chancery Division, said: "It is, of course, dangerous to try and define what 'living in the same household' means. It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources. None of these factors of itself is sufficient, but each may provide an indicator. ...It is perfectly possible to have one household and two properties. But what does seem to me to be the case is that there were two separate establishments with two separate domestic economies. There was, of course, a degree of sharing when the two met at weekends and some of those weekends were long. But that does not mean that they lived in one household."

In Re Dix deceased [2004] EWCA Civ 139; [2004] 1 WLR 1399, a claim was brought under the Inheritance (Provision for Family and Dependents) Act 1975 (UK). Ward LJ in the Court of Appeal (with whom Mummery and Rix LJJ agreed) addressed the meaning of the word "household". At [23] and [24], his Lordship approved a definition of "household" stated in Santos v Santos [1972] EWCA Civ 9; [1972] Fam. 247 as meaning "people held together by a particular kind of tie, even if temporarily separated", and said "[t]hus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgement of their mutual society, and the mutual protection and support that binds them together ...".

Where eligibility is in dispute, it is for the applicant to establish that she, or he, is an eligible person. In this case, the Plaintiff bears the onus of proving dependency upon the deceased and membership of the household of which the deceased was a member.

In the case of a person who is, relevantly, an eligible person by reason only of paragraph (e) of the definition of "eligible person" in section 57, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

The Act does not specify the "factors which warrant the making of the application". As Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".

However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

In Re Fulop, M McLelland J also said, at 683: "In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."

In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said, at 8 - 11: "There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application .... ... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge: "[7] This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. [9] ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: "[8] As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

In Sassoon v Rose [2013] NSWCA 220, an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed), at [15], noted: "In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those "factors" are ones which, when added to the facts which render the applicant an "eligible person" (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said it is wrong. Even so, as Slattery J has noted in Lumsden v Sumner [2012] NSWSC 1440, at [89], "[t]he authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting".

With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Meagher JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann; Russell v NSW Trustee and Guardian [2013] NSWSC 370; Hamilton v Moir [2013] NSWSC 1200. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox, at [16]; Lumsden v Sumner, at [88]; Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166, per Slattery J, at [145].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence".

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Section 100 of the Act provides, in subsection (2) that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.

Sections 100(5) and (6) provide: "(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In relation to the claim of a stepchild, I have earlier referred to Graziani v Graziani, in which Cohen J discussed what he believed to be relevant considerations.

In McKenzie v Topp [2004] VSC 290, at [56], Nettle J wrote: "... The argument was that where a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make adequate testamentary provision for those children. More specifically, it was said, because it is often the case that a husband cannot know with certainty the extent of the support that his widow will require, and in those circumstances it may be that anything less than the entire estate would be inadequate provision for the widow's proper maintenance and support, the children of the first marriage must forego the provision which they might otherwise have received in order that their stepmother receive adequate provision. But if then later when the stepmother dies there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, it is her responsibility to make it good."

His Honour considered that the proposition described was a novel one, which "should be accepted, up to a point", and then went on, at [58] - [61], to write: "... just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors. Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision. Furthermore, although the question for present purposes is confined to the first or jurisdictional aspect of the inquiry - of whether children of the first marriage may be regarded as persons for whom the widow of the second marriage has a responsibility to provide - the size of the estate and the circumstances of the children may be critical to the answer. But the need to look forward to the second stage of the inquiry in order to complete the first is endemic to most of the considerations listed in s 91(4). It is the consequence of defining the class of eligible plaintiffs in terms of persons for whom a testator or testatrix has a responsibility to provide. The first stage of the inquiry is now informed as much by the answer to be given to the second stage as the second stage will be informed by the answer that is given to the first. But there are still two stages. That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow may be relevant to the question of whether she is responsible to provide for them."

Keane JA (with whom the other members of the Queensland Court of Appeal agreed) in Freeman v Jaques [2006] 1 Qd R 318, at [29], referring to the evaluative balancing of relevant considerations, said: "The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant. Similarly, the greater the extent to which a step-parent's estate reflects her own contributions and efforts, the greater must be the need in the claimant for maintenance or support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support."

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359: "[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

Because, in this case, there are matters raised that bear on the quality of the relationship, being that the Plaintiff and the deceased were said to be estranged for some years before her death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Lathwell v Lathwell [2008] WASCA 256 at [33]. As Basten JA recently stated in Andrew v Andrew at [40]: "It [estrangement] is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience." (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis. (c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for an applicant, particularly in the case of a child "who treat[s] their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573 at 574 - 575 per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them continued companionship and support, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. As Basten JA said in Andrew v Andrew, at [57], referring to a period of estrangement: "Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum." (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at both stages of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis at [102].

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

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

I have earlier referred to the statement made in the deceased's Will.

The deceased made a Statutory Declaration dated 15 August 2001. It was written in the Croatian language and a true and correct translation into English has been provided. It is in the following terms: "I, Anna Matetic nee Stefan, born on 6.1.1931. came to Australia in 1961. We were married in Albury. My stepdaughter came from Yugoslavia in 1965. She stayed with us only for two months, then she ran away from us. I had a bit of money when we came from Europe, we came to Sydney, to Matraville Hostel, both of us got a job, after 4 months in the Hostel we bought a caravan, then we lived in a Caravan Park. Then we bought a used car, so that we saved a deposit for a house, shortly the daughter arrived, when a woman was driving her to English lessons she found herself a boyfriend. So, when we moved into the house, 12 days later she ran away, as far as I know she stole some of my clothes, she hid poison in her suitcase, by chance I looked in her suitcase and I found poison in the suitcase. Afterwards someone kept calling on the phone that they shall mine us and the house, we don't know who was calling. The said Dinka Matolic is not entitled to one cent of our property, nor any movable property from the house, not her, nor her family, she left the house for her dirty doings, what trouble she brought upon us, such shame, we can neither forgive nor forget it; for a number of years I am ill and my husband is ill for a number of years ..."

Ante made a Will in August 2001. The whole of his estate was to pass to the deceased if she survived him.

He, too, stated in the Will that he had made no provision for the Plaintiff, his daughter, "as she has ill-treated both myself and my wife for some years and up until recently made no attempt to contact or have anything to do with either of us".

He also made a Statutory Declaration dated 15 August 2001. It was written in the Croatian language and a true and correct translation into English has been provided. It is in the following terms: "Esteemed Sirs, in this Declaration I give accurate particulars, my daughter Dinka arrived in 1965 to us here in Australia. First of all, she stole my taxation Cheque, secondly, she tried to poison us, when she saw that we have money for house payment, when we moved into the house, after 12 days she ran away and severed the telephone line so we could not call the Police. She left with Luka Gacic, we knew nothing about her for 3 years, where she is living. One night she came and gave us a letter, tomorrow we have to go to Redfern Court. At 9 a.m. when we arrived we were told she is a minor, I have to sign, she is pregnant and she is getting married, I did not sign, I asked who is she getting married to, they did not tell me, nor did I see who is this person, she used the worst possible expressions she could to her father. I know from Luka Gacic's father, who told me that he does not want his son to live with him, he wants to get rid of him, that they don't live together, if a father does not need his own son why would I need him. He is a serious street person, she left the child with Luka Gacic and went off with another. Now when she sees I am in my 75th year, now she needs me. I am very sorry, she did not need me for 36 years, I had three serious operations, one, I had to have operation on both legs, secondly, my stomach and the third is a heart operation, she did not want to come along even once, therefore, I personally would not wish on my part and I cannot permit my conscience all the things she did ot [sic] me in 36 years. I supported her for a year at my brother's every month we were sending money for her maintenance, so that my brother did not have to bear the expenses for her, for a number of years now I don't feel healthy, I have blood pressure and daily I use over 7 various medications, I don't feel well. The worst thing is I am not well with my heart, then arthritis when the weather turns bad. I personally have nothing to forward but the truth. I have nothing else, only I don't want her to have an entitlement to my property, not to one cent. As since 1965 she caused us a lot of trouble. So about her dirty work and her children we don't want to know anything, what she did from 1965 to today and in future."

A copy of each of these documents formed part of the Defendant's evidence.

The Plaintiff, in cross-examination, disputed the criticisms made of her in the Statutory Declaration and in the Will of her father and of the deceased. She said that she had lived a normal decent life after she arrived and that she did not steal from them or try to poison either of them. She said that it was their conduct towards her that caused the breakdown of the relationship between them and her.

Firstly, in reaching a conclusion about the allegations made by the deceased and by Ante, I bear in mind what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 152): "... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim."

I remember, as well, that the fact a statement is made by the deceased does not mean, necessarily, that the statement must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].

Finally, I note the Defendant's acknowledgement that her knowledge of the Plaintiff and the deceased came only from what she was told by one or other of them. She volunteered that she did not know whether what she was told was true.

It is always difficult, in cases like this, to determine where the truth lies, particularly where the events referred to occurred so long ago. However, in this case, I have little hesitation in accepting the Plaintiff's denial of the conduct complained of.

I found the Plaintiff to be refreshingly frank in her answers given in cross-examination. She did not attempt to sugar coat the nature of her relationship with the deceased and admitted, without prevarication, some of the unflattering statements that she had made about the deceased ("Anna is a horrible person" and "She's no good") and about Ante.

In particular, I accept her denial that she attempted to poison the deceased and Ante. Had this been done, I think that each would have been likely to have done something more than complain in a Statutory Declaration made many years after the event.

Leaving aside that allegation, even if the Plaintiff did do what was otherwise complained of, one might have thought that the conduct was of not so serious, bearing in mind the Plaintiff's age at the time, as to warrant the complete rejection of the Plaintiff, for so many years, and to include references to such conduct, in writing, so many years after it had occurred.

In any event, at least part of what was stated by the deceased has been demonstrated, by the Defendant's evidence, to be wrong. I refer to the allegation that the Plaintiff had made no attempt to contact the deceased. The Plaintiff, despite being rejected, continued to make efforts to keep in touch with both her father and the deceased, and after his death, with the deceased. Her continued attempts were also rejected.

In expressing this view, I also accept the Plaintiff's evidence that: (a) She did not get on with the deceased who insisted that the Plaintiff call her "Mum". The Plaintiff said that she could never call her Mum as she had a mother. She said that she would call the deceased "Aunty Anna". (b) She visited the deceased and Ante four or five times a year. On this topic, she said that she stopped visiting until about a year before Ante's death and did not, thereafter, see the deceased (except once, just before the deceased's death): "The last time he threw me out actually didn't speak to me. I swore to myself and I told my husband that he will never do that to me again. I kept my promise for one year. I did not visit them the last year.... It was the same story. They used to call me the names. What do you want here? What are you doing here? They shutting the door in my face for 47 years. If my Dad, in 20 years if he was still alive, I would still not go there. The way I was treated, I refused to be bullied any more like that. Simple as that." (c) The Plaintiff attempted to obtain the assistance of a priest to repair her relationship with Ante and with the deceased. (d) Whilst she did not have a close relationship with the deceased, she respected the fact that she was Ante's wife. However, she did not "respect her attitude [on] the things she insisted on". (e) After Ante's death, she attempted to speak to the deceased. She called her a few times but "the names she used call me, it is indescribable". However, on some occasions, they did speak on the telephone. She was concerned not to go to the deceased's home, because "I was too scared to go there. I saw what was happening. If anything happen to her, I didn't want to answer for it." (The Defendant held a similar concern and often avoided talking to the deceased about the Plaintiff.) (f) The Plaintiff visited the deceased, once, whilst she was in the nursing home. This occurred 6 days before the deceased's death. (g) Notice of her claim against the estate was given to the Defendant about two days after the deceased's death. She told the Defendant that she intended to contest the deceased's Will when she was telephoned about the funeral.

The Defendant agreed that the Plaintiff told her, when encouraging her to intervene with the deceased on the Plaintiff's behalf, that the Plaintiff "was trying to make things happy between them".

I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I do so by reference to s 60(2) of the Act. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship

There is no definition of "family" in the Act. Its popular meaning is not fixed and, undoubtedly, over time, has changed. It is not a technical term or term of art with a specific meaning. It is a word in ordinary usage, with a flexible meaning. Generally, it is a word that may be used in a number of different senses, some wider, some narrower.

In this sub-section, I consider that the word is used in the narrower sense, because of the use of the word "other" before the word "relationship". The language of the sub-section plainly indicates a distinction. It follows that in this sub-section, "family ... relationship" depicts a legal relationship (of blood, by legal ceremony of marriage, by legal adoption) or a de facto relationship. It may also include persons where the link is "step-", or where the link is "in-law" or by marriage.

In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928, at 931, agreed: "Granted that "family" is not limited to cases of a strict legal familial nexus ... . It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is "step-", or where the link is "in-law" or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

Also, in my view, the word "family" does not have the same meaning as the term "member of the household".

I note, also, that there is no definition of "stepchild" in the Act. In fact, there is no specific reference to a stepchild as a category of eligibility. A useful definition of the word is found in s 40A of the Succession Act 1981 (Qld): "(1) A person is a stepchild of a deceased person for this part if - (a) the person is the child of a spouse of the deceased person; and (b) a relationship of stepchild and step-parent between the person and the deceased person did not stop under subsection (2). (2) The relationship of stepchild and step-parent stops on the divorce of the deceased person and the stepchild's parent. (3) To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because - (a) the stepchild's parent died before the deceased person, if the deceased person's marriage to the parent subsisted when the parent died; or (b) the deceased person remarried after the death of the stepchild's parent, if the deceased person's marriage to the parent subsisted when the parent died."

Using this definition for guidance, the Plaintiff was the stepchild of the deceased at the date of her death, the deceased having married the Plaintiff's father. She was acknowledged as such by the deceased (despite the statement in her Will). Accordingly, the relationship of the Plaintiff and the deceased does fall within "family ... relationship".

From her birth until about 1957, the Plaintiff lived with both of her natural parents. Following their separation, and until about mid-1962, she lived with her mother. She then went to the home of her grandparents and uncle, in Dalmatia, where she remained for about 18 months, before travelling to Australia in December 1964, at the age of 16 years. She had written a letter to her father about coming to Australia and he agreed to sponsor her migration.

The Plaintiff stated that the deceased "was more responsible for me to come to Australia than my Dad".

She lived with her father and the deceased for a period after her arrival in Australia. The Plaintiff admits that she moved out of the home in which the deceased and Ante lived in early 1966 (before 8 March 1966), following an argument with her father. She says that, thereafter, until about one year before her father's death, she would see the deceased and her father four or five times a year, often on special days, such as Mother's Day and Father's Day.

I accept that she lived with the deceased and Ante between December 1964 and about January or February 1966. In this regard, I note the date of the purchase of what was to be the matrimonial of the deceased and Ante, in October 1965, and the Plaintiff's evidence that she moved into that home with them. She gave evidence, also, of performing work cleaning the home after they moved in, during the Christmas period after they moved in. (This evidence is inconsistent with the Plaintiff having lived with her father and the deceased for only two months after her arrival in Australia.)

In 1973, the Plaintiff married her husband and she remains married to him.

The Plaintiff asserts, and I accept, that on her 17th birthday, the deceased gave her a ring inscribed "In loving memory to Dinka from Mother" or "Remembering Dinka, from your Mother". It was written in Croatian, which explains the different translations, although the parties accepted that the meaning was the same.

Neither party could explain the significance of the date (15 April 1965) inscribed on the ring.

At the hearing, the Plaintiff produced the ring for inspection by the Defendant. She said that a person gave it to her at the deceased's funeral. Who that person was, and how she came to have the ring, were not the subject of evidence. It is more probable than not that the person obtained the ring from the deceased, or from the home of the deceased after her death. In either event, it is likely that the deceased had retained possession of the ring.

The Defendant gives evidence of a conversation with the deceased in which she said: "Me: Anna, she is your step daughter. Anna: Don't talk to me about her. Marsha, I know you are fair. I brought her here to Australia as a daughter but when I found out that she wanted to poison me, and before she left she stole my clothes and cut the telephone lines and she called a taxi and ran away. She did not listen to me or to Ante. I do not want anything to do with her."

I note the statement made in the Statutory Declaration made by Ante that "I supported her for a year at my brother's" and that every month "we were sending money for her maintenance so that my brother did not have to bear the expenses for her".

I have referred to the Plaintiff's evidence that before and after Ante's death in 2002, she visited, or attempted to visit, the deceased and Ante.

There is some evidence, given by the Defendant, of conversations that she had with Ante, in which he said that the Plaintiff had visited but that he had rejected her. On another occasion, he said that the Plaintiff and her husband visited, but that Ante closed the door and told them to go away.

The Defendant gives evidence of the Plaintiff asking her to bring the deceased to her home but that she (the Defendant) refused to do so, saying "It will upset her too much". On another occasion, when the Plaintiff was at the Defendant's home, the deceased telephoned but the Defendant did not tell her that the Plaintiff was there. This upset the Plaintiff.

The Defendant also states that on another occasion, the Plaintiff told her that she had sent the deceased a present, and was at the deceased's home when it arrived. However, the deceased threw the present out without even looking at it. When the Plaintiff sent another present, the deceased told the delivery person to return it. On a third occasion, the Defendant observed the deceased give a present, sent by the Plaintiff, to Mr Twaddell, her neighbour.

The Defendant gives evidence of trying, initially, to encourage the deceased to see, or at least speak to, the Plaintiff, but the deceased always refused to do so. The Defendant became concerned, because of the deceased's response, when the Plaintiff's name was mentioned, that the deceased might suffer a heart attack if she became too upset, and decided not to press the issue.

The Defendant also gives evidence of attending the Guardianship Tribunal when the deceased's neighbour brought proceedings to have the Defendant removed as the deceased's guardian and Attorney. The Plaintiff was present and described the deceased as "a horrible person" and said "She is no good." The Plaintiff did not dispute this evidence.

The Plaintiff's submissions acknowledge that she and the deceased "had a troubled relationship". However, as stated, there is evidence of the efforts made by the Plaintiff to achieve some harmony in the relationship, although the deceased categorically and uncompromisingly spurned those efforts. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

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

Merely being the stepdaughter of the deceased does not, necessarily give rise to any obligation or responsibility, to make adequate provision for the applicant's proper maintenance or advancement in life. Leaving aside that relationship, the deceased did not have any legal obligation to the Plaintiff.

Ante, as the Plaintiff's father, might have had such an obligation whilst she was a minor, but no obligation or responsibility was imposed upon him by statute or common law at any time thereafter.

The fact that an applicant or a beneficiary was financially independent of the deceased, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between an applicant and the residuary beneficiaries.

Neither the Plaintiff, nor each of the residuary beneficiaries, appears to have been financially dependent upon the deceased. The Plaintiff asserts that she had been financially independent since about 1965 when she started working full time. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

I have dealt with these matters earlier in these reasons. The net value of the deceased's estate is not large. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

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

The Plaintiff sets out her and her husband's financial resources in her affidavits. They own their home at West Pennant Hills ($900,000 or perhaps more), subject to a mortgage ($170,000). The Plaintiff and her husband are both retired. They have no superannuation but the Plaintiff's husband owns a taxi plate, valued at about $350,000. They receive income of about $25,000 per annum supplemented by a part pension/carers allowance. The Plaintiff's husband has an interest (with his brother) in land at Gunnedah, but no income is derived from it.

The Plaintiff gives evidence that the house at West Pennant Hills is in need of extensive repairs, the total cost of which is approximately $135,000. In addition, she needs dental treatment, which is estimated to cost approximately $60,000.

The Plaintiff and her husband own an old car, which is in need of updating. They have deferred expending money on necessities and live modestly in order to retain some cash income from the taxi plate. If the husband's taxi plate is sold, they would be able to discharge the mortgage and pay for most, but not all, of their immediate needs, but they would then have to rely totally on the age pension because their major source of income is from the taxi plate. She asserts that some needs would remain.

The Plaintiff's husband suffers from cataracts that require treatment.

All that is known about the residuary beneficiary, Claudia Jaag, is set out in a copy letter dated 19 September 2012 from her lawyer, Dr Friedrich E Hosl. He states: "... Referring to the financial position and needs of our client, Mrs. Claudia Jaag, your questions will be answered as follows: a) Mrs. Jaag does not own any property, b) she pays a monthly rent for her flat amounting to 780,00 Euro (she lives there with her daughter) c) she has no shares, no money in the bank, she owns a car, built 2002, actual value 3.000,00 Euro, d) she is employed and has a monthly net income of 745,00 Euro, e) she has an open bank credit amounting to 10.000,00 Euro f) see 3) - Kreissparkasse Miesbach (bank) g) Mrs. Jaag is in the process of divorcing; She has 2 children, 26 and 28 years old, the daughter is living together with her, h) + i) she and her family members have no health problems j) The aforementioned shows that our client is indeed in great need of money. She does not earn very much, is divorcing, has no assets, in contrary has to pay debts and furthermore her pension will be very low, the actual taxation is only 264,00 Euro per month"

All that is known about the residuary beneficiary, Mate Lojic, is set out in a copy letter from him dated 20 November 2012 (and translated into English). He states: "Marija Lojic, my mother, born on 05/08/1955 in Jezero (30% disability - angina pectoris, arrhythmia and back problems resulting from a car accident); and Stipe Lojic, my father born 02/01/1944 in Parcic (80% disability, 2 myocardial infarctions, 3 open heart surgeries - valves, narrowing of the aorta and 3 by-pass operations) are supporting ourselves from my father's pension who has also financially supported my studies of three years in duration. During the Homeland War we lost everything we had, the house was completely devastated and pillaged and the 30 years of their work in Germany lost forever. With lots of sacrifice and God's help, we have managed to renovate the house by ourselves. Due to recession in Croatia, there is simply no work available neither for me nor for many others. I have a girlfriend who has also completed the same university course, who is also unemployed, we have been in a relationship for 3.5 years. We would like to get married but since our material situation is very bad, we have to postpone this for some better times. Our parents, who would like to help us, are not in a position to do so because of their general material circumstances. That's why I was forced to go to Germany temporarily and leave my parents who also have health problems. I have found temporary work for a period of 6 months, after which I will return back to Croatia."

In an email dated 11 June 2013, addressed to the Defendant's solicitor, Mr Lojic states: "... I am temporarily employed by the 30.09.2013. in Germany and it is doubtful that my employer will extend my employment. In the meantime, I got married in the municipality because for the church wedding and the traditional wedding for now I do not have any money. So that my wife could stay with me in Germany, this was the only way to get the necessary paperwork (visa). My wife and I live from my earnings, of which is paid rent and utilities. When the money is short, my parents are helping us with my dad's pension. We have no money to buy a car and we live in an apartment that is leaking." (e) if the applicant is cohabiting with another person - the financial circumstances of the other person

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

The Plaintiff is cohabiting with her husband. I have set out his financial circumstances above. (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

There is no suggestion of any physical, intellectual or mental disability. She requires some dental work.

There is no evidence that either Mr Lojic or Ms Jaag has a relevant disability. However, Ms Jaag has had a tumour removed. (g) the age of the applicant when the application is being considered

The Plaintiff was born in October 1948 and is 65 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

There is no evidence that the Plaintiff made any direct contributions to the acquisition, conservation and improvement of the estate of the deceased. Nor is there any evidence of any contribution to the welfare of the deceased.

The Plaintiff during the time she lived with the deceased and her father gave her weekly wages to 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

The deceased appears not to have made any substantial provision for the Plaintiff during her lifetime. I have earlier referred to Ante's statement regarding supporting the Plaintiff when she lived with his brother, her uncle. There was also evidence of the deceased altering her own clothes for the Plaintiff to wear. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is some evidence of the testamentary intentions of the deceased other than in the Will to which I have referred. There is a Will made by the deceased in August 2006, in which the Plaintiff is not referred to at all. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain the Plaintiff, either wholly or partly, at any time, after the Plaintiff left the home in January or February 1966. (l) whether any other person is liable to support the applicant

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

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

I have dealt with the relationship of the Plaintiff and the deceased. I note also, the terms of Clause 8 of the deceased's Will. While this sub-section permits the Court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the Court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.

There is also some evidence that the Plaintiff referred to the deceased as "a horrible person" and a "witch" and she refused to come to her funeral. (n) the conduct of any other person before and after the date of the death of the deceased person

I do not know anything about the conduct of either of the residuary beneficiaries. It appears that the deceased spoke to Ms Jaag and Maria Lojic (the mother of Mr Lojic), who live in Europe, about once a fortnight. She also spoke to Mr Lojic, but less frequently. Each of them is, of course, the principal chosen object of the deceased's bounty.

The deceased had a close relationship with, and was cared for by, the Defendant, particularly after Ante's death. Such was their relationship that when the Defendant went overseas for about 2 months, she arranged for her sister and daughter to care for the deceased. During this time, the deceased became unwell and needed to be moved to a nursing home. This was arranged by and the related work done by the Defendant's sister and daughter. (o) any relevant Aboriginal or Torres Strait Islander customary law

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

There are no other matters that I consider relevant. (I have earlier mentioned that the Plaintiff made no claim on her father's estate.)

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

Being an "eligible person" is a necessary precondition to the Court having power to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is a dispute that the Plaintiff is an eligible person within the meaning of s 57(1)(e) of the Act.

The Plaintiff says that it was for about 15 months, after her arrival in Australia, that she lived as part of the household of the deceased and her father. In fact, on her own evidence, it was perhaps a little over one year (December 1964 until January or February 1966) that she lived with them. During this period, she was a member of the household of which the deceased was a member.

She asserts, and I accept, that during this period, she was "wholly dependent upon the deceased and my father for all my needs including food, clothing and daily necessities". Bearing in mind her age and circumstances, this is not surprising. There is no evidence that she arrived in Australia with any resources. On this topic, the following exchange took place in cross-examination: "Q. I want to suggest to you at no stage were you ever dependant on Aunty Anna for your financial means? A. I was 16 year old child, of course I was dependant. Who else would I turn to? Who else?"

Both the deceased and Ante were working when the Plaintiff arrived. It was the deceased who had arranged, even before the Plaintiff's arrival, for her to be employed in the factory where the deceased worked.

The deceased also gave the Plaintiff a ring, on which she referred to herself as "Mother" which suggests that the deceased wished to occupy such a role in the life of the Plaintiff. It is likely, at least initially, that the deceased provided some care and comfort to the Plaintiff whilst the Plaintiff lived in the home of her father and the deceased. I have referred to the evidence of the deceased altering some of her own clothes for the Plaintiff to wear.

Furthermore, even after the Plaintiff moved out of their home, Ante acknowledged, in his Statutory Declaration, "we were sending money for her maintenance".

In all the circumstances, I am satisfied that the Plaintiff was, at least. partially dependent, upon the deceased during the later period of time.

It follows that I am satisfied that the Plaintiff is an eligible person as defined.

Whether the Plaintiff has established factors warranting the making of her application is the next question to determine. In this regard, I am conscious of what the deceased said in the Statutory Declaration and in her Will. In each of these documents, she states that she has made no provision out of her estate for the Plaintiff because of the Plaintiff's misdeeds.

This statement implies that the deceased considered the Plaintiff as an object of testamentary bounty. Otherwise, there would have been no reason to explain the complete lack of provision made for her.

In any event, I am satisfied that there are factors warranting the making of the Plaintiff's application. In this regard, it is to be noted that the Plaintiff did not make a claim under the former Act in relation to the estate, or notional estate, of her father, with the result that the deceased received the whole of his estate and notional estate.

Even though the Plaintiff's prospects of success, in relation to such proceedings, had they been brought, might have been weak, she had some prospects. The result in Andrew v Andrew demonstrates as much.

Finally, the Defendant's evidence demonstrates that despite being rejected by the deceased on more than one occasion after the death of her father, the Plaintiff did endeavour to maintain a relationship with the deceased. That she was unable to do so was because of the deceased's continued reference to what is said to have been the Plaintiff's conduct that occurred many years before.

In all the circumstances, I am satisfied that there are factors warranting the making of the Plaintiff's application.

As the Plaintiff has established eligibility and factors warranting the making of her application, I turn then to the question whether, at the time the Court is considering the application, adequate provision for the Plaintiff's proper maintenance or advancement in life has not been made by the Will of the deceased.

No provision at all was made for her in the deceased's Will. Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both. Of course, I must consider the totality of the relationship of the Plaintiff and the deceased. I have done so.

In my view, the estate is sufficiently large to enable some provision to be made for the Plaintiff, even taking into account the legitimate claims upon the bounty of the deceased of the residuary beneficiaries and the obligation and responsibility to provide for each of them. I have also considered the financial resources of each and the fact that the Plaintiff's financial circumstances are substantially better than his and hers respectively.

It is also clear that the Plaintiff has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to her maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. By way of example, she has no capital sum to provide for the exigencies of life.

Age and state of health are factors to which, under the Act, the Court may have regard. At the date of hearing, the Plaintiff is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation, of someone who is, or will be, well able to earn enough by her, or his, own exertions to provide for her, or his needs: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82]. She is retired and is looking after her husband who is unwell. The Defendant accepted that she has no earning capacity.

Furthermore, I cannot decide the question of the adequacy, or inadequacy, of the provision made, if any, in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably.

I am satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of the Plaintiff.

Having made that determination, I turn to the questions whether any provision should be made, and if so, the nature and quantum of that provision.

The Plaintiff submitted that she should receive a capital sum calculated as 12.5 per cent of the net estate, or about $91,750. Presumably, this was calculated upon the basis of enabling the dental work that the Plaintiff required to be done, and an amount to purchase another car.

The Defendant submitted that the Plaintiff's Summons should be dismissed because she was unable to establish any of the matters that she was required to establish. In the alternative, it was submitted that if provision were to be made, it should be extremely modest provision.

Having regard to all of the matters that I may consider, including amongst other things, the size and nature of the deceased's estate, the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased and the residuary beneficiaries, neither of whom has a particularly strong claim upon the deceased's bounty, that the Plaintiff is retired and does not have an earning capacity, that she has no superannuation, and that other assets are owned by her husband alone, I am satisfied that some provision, by way of a lump sum, should be made for the Plaintiff out of the estate of the deceased.

However, as the relationship of the Plaintiff and the deceased is acknowledged not to have been as close as it might have been, the nature of that relationship "restrains the amplitude", of the provision that should be made for her. In this regard, I remember that the fracture of their relationship was not temporary but long standing.

Also, I do not consider that the size of the estate and/or the obligation owed to the Plaintiff by the deceased, in the circumstances of this case, warrants the making of the provision of a fund large enough to provide for her to do the repairs and renovations on the home that she asserts, as well as providing a fund for exigencies of life.

In my view, the Plaintiff should receive a lump sum, out of the estate of the deceased of $75,000. This amount will enable her to complete the dental work that she has given evidence that is required to be done, and perhaps, contribute an amount to purchase an alternative vehicle. Alternatively, it will provide her with a capital sum to be used as a buffer against the vicissitudes of life. It will also provide an income supplement until it is used should that be required.

The lump sum will not significantly reduce the balance of the residue of the estate and there will still remain about $660,000, to be divided between the residuary beneficiaries.

As the amount held by the estate is in cash, I am of the view that interest should be paid on the lump sum if it is not paid within 14 days of the making of these orders.

There is no suggestion that the residuary beneficiaries should not bear the burden of the lump sum and costs payable out of the estate equally and I shall so order. There was no dispute that if the Plaintiff was successful, the usual costs orders should be made.

Accordingly: (i) Having found that the Plaintiff is an eligible person; being satisfied that there are factors which warrant the making of her application; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life; order that she receive out of the estate of the deceased, a lump sum of $75,000. (ii) Order that the provision made for the Plaintiff be paid out of the residuary estate. (iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iv) Order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (v) Order that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005.