Thompson v Sgro

1. [1]

   HIS HONOUR: Soccorsa Misiano ("the deceased") died on 27 October 2014. On 9 March 2015, this Court granted Probate of her last Will, made 16 August 2010, to her adult daughter, Carmela Sgro, who is the Defendant.

2. [2]

   The Plaintiff, Rosa Thompson, who is the only other child of the deceased, seeks provision out of the deceased’s estate and notional estate pursuant to the Succession Act 2006 (NSW) (“the Act”). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. The Plaintiff also seeks an order that her costs of the proceedings be paid.

3. [3]

   At the commencement of the hearing, the parties agreed that there was no property that could be designated as notional estate. In those circumstances, I shall hereafter simply refer to the estate of the deceased.

4. [4]

   The Plaintiff commenced these proceedings by Summons filed on 23 October 2015. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

5. [5]

   It is also not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person’s status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

6. [6]

   I should mention that the hearing was listed for one day and it concluded within that time. The legal representatives narrowed the issues in dispute and, mercifully, there were not many objections taken to the affidavit evidence.

Background Facts

1. [7]

   As in all claims for a family provision order, factual context is necessary. It is convenient to begin with a statement of facts since they provide that context. In relation to any disputed matters to which I refer, the following facts should be regarded as the findings of the Court.

2. [8]

   The deceased was born in May 1926 and died on 27 October 2014, aged 88 years.

3. [9]

   The deceased married her husband, Saverio Misiano, in the mid-1940s. He died in May 2010. There were two children of their marriage. The Defendant was born in August 1949 and is currently 67 years old. The Plaintiff was born in August 1964 and is currently 52 years old.

4. [10]

   The deceased made her Will on 16 August 2010. She appointed the Defendant as her executrix and devised her interest in a property situated at Jonathan Street, Greystanes (“the Greystanes property”) to the Defendant for her sole use and benefit absolutely, and made a bequest of the residue of her estate to the Plaintiff and the Defendant as tenants in common in equal shares.

5. [11]

   In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased’s estate was disclosed as having an estimated, or known, value of $505,431. The estate was said to consist of the Greystanes property ($500,000), cash in bank accounts ($2,763) and shares in a public company ($2,650). (I have omitted and will continue to omit, any reference to cents.)

6. [12]

   None of the estate has been distributed (other than an amount that has been paid on account of the Defendant’s costs and disbursements to which I shall later refer).

7. [13]

   The Greystanes property has been rented since about November 2014 and the total amount of the rent received, after payment of associated expenses, is estimated to be $26,672. There is about $19,000 left in the rental account held by the Defendant.

8. [14]

   The Defendant said that she had paid $3,574 for repairs and related works to the Greystanes property, as well as some other outgoings, such as insurance, rates and other expenses, which total $6,486, and that she requires to be reimbursed for her contributions ($10,060). In fact, these amounts appear to have been paid out of the rental income of the Greystanes property, to which the Defendant is entitled under the Will of the deceased.

9. [15]

   At the hearing, the parties agreed that the estate currently consists of the Greystanes property ($800,000) and cash held ($19,000). The shares owned by the deceased at the date of death were sold to pay some of the debts funeral and testamentary expenses. The parties also agreed that as it is necessary to sell the Greystanes property, the estimated costs and disbursements of sale would be about $30,000 and that this amount should be taken into account in determining the amount of the available distributable estate.

10. [16]

    Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection, since the plaintiff, if successful, normally would be entitled to an order that her or his costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that her or his costs, calculated on the indemnity basis, should be paid out of the estate.

11. [17]

    The Plaintiff’s costs and disbursements of the proceedings, calculated on the ordinary basis, were estimated to be $42,000, inclusive of GST. The Defendant’s costs and disbursements of the proceedings, calculated on the indemnity basis, were estimated to be $50,000, inclusive of GST, of which $2,580 has been paid from estate funds on account of counsel’s fees and disbursements. There is, therefore, $47,420 left to be paid.

12. [18]

    Counsel accepted that in the event that the Plaintiff is successful, an order should be made that her costs, calculated on the ordinary basis, should be paid out of the deceased’s estate. They also agreed that the Defendant’s costs, calculated on the indemnity basis, should be paid out of the estate. Using the estimates provided, $99,420 should be considered as payable out of the estate. (This is not to say that the quantum of costs has been agreed. That will be for the parties to consider later.)

13. [19]

    It follows, using the estimates as a guide, that the value of the estate available for distribution will be in the order of $690,000.

14. [20]

    The parties also accepted that in the event the Plaintiff is successful, the Court should make an order that she receive a lump sum calculated as a percentage of the net proceeds of sale of the Greystanes property. In this way, both parties would benefit if the Greystanes property were sold for a price greater than had been estimated, and each would be detrimentally affected if it sold for less than the estimate. There would also then be certainty of price, costs, and expenses, upon which calculations could be made.

15. [21]

    McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], has raised the concern that “to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate’s assets, runs the very real risk of under-providing (or over-providing) for [the applicant’s] needs”. Whilst this is undoubtedly true, it seems to me that, in some cases, to make a lump sum order will not be the most appropriate way of determining what is “proper” in all the circumstances of the case, in a case where the principal asset is real estate, the value of which is estimated and which, ultimately, may prove inaccurate. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision.

16. [22]

    Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit", thereby leaving unconstrained the Court’s power as to the nature of the order for provision that may be made.

17. [23]

    As there was no disagreement between the parties about the nature of the order, I propose to adopt the course of providing for a lump sum calculated as a percentage of net proceeds of sale in determining the provision to be made for the Plaintiff out of the estate of the deceased.

18. [24]

    The parties also agreed that they are the only other eligible persons within the meaning of that term in s 57(1) of the Act. The Defendant is also an eligible person, but she has not made a claim.

19. [25]

    By letter dated 8 April 2016, the Defendant’s solicitors informed the Plaintiff’s solicitors that “the Defendant does not raise her financial circumstances in the proceedings”. She was entitled to elect to remain silent about her financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and her preferable disposition to the Defendant as a beneficiary regardless of her financial position or needs. The Act specifically provides that her interests, as a beneficiary, cannot be disregarded, even though she has not made a claim: s 61.

20. [26]

    Yet, the Court may assume that the Defendant does not wish her financial resources and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ). The Court is also entitled to infer that as a beneficiary, she has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Sammut v Kleemann [2012] NSWSC 1030, at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94]; Poletti v Jones [2015] NSWCA 107, at [23] (Basten JA).

Other Additional Facts

1. [27]

   In addition to the background facts, I am satisfied that the following facts have been established (by reference to Ex. 1). Some of the facts mentioned are necessary to consider because the Defendant contends that the Plaintiff has a very poor track record in handling money.

2. [28]

   The deceased and her husband purchased a property at Lackey Street Merrylands (“the Merrylands property”) in September 1956 for £3,150. In September 1985, they transferred the Merrylands property to the Plaintiff, the Transfer revealing the consideration to be $25,000.

3. [29]

   The Plaintiff and her husband, Stephen, obtained a mortgage securing a debt of $22,500 from the Commonwealth Bank at the time. However, they did not use the funds to pay her parents, but used it to effect renovations to the Merrylands property. Indeed, the Plaintiff accepted that she had paid nothing to her parents to enable the transfer of the Merrylands property to her.

4. [30]

   The Plaintiff sold the Merrylands property in about February 1989 for $136,000. No part of the sale price was paid to her parents.

5. [31]

   At about the time the Plaintiff sold the Merrylands property, she and her husband purchased a property at Winston Drive, Doonside (“the Doonside property”) for $144,000. There was a mortgage registered on the title to the Doonside property securing a debt of $80,000, which mortgage was discharged in September 1997 and another mortgage, securing a debt of $64,750, was obtained. In addition, there was a second mortgage registered on the title to the Doonside property but for what reason, and to secure what amount, is not disclosed in the evidence. Each of these mortgages appears to have been discharged in August 2000, when a mortgage securing a debt of $175,000 was registered. This mortgage was discharged in May 2001, when another mortgage, securing a debt of $190,000 was entered into. That mortgage was discharged in June 2004, when another mortgage, securing a debt of $253,000 was entered into. That mortgage was discharged in April 2007, when another mortgage, securing a debt of $285,000 was entered into. That mortgage was discharged in June 2010, when they sold the property for $420,000.

6. [32]

   The Plaintiff and her husband purchased a property at Gray Street, Southport in Queensland (“the Southport property”) in February 1998 for $169,900. There was a mortgage registered on the title to the Southport property securing a debt of $141,000. The Southport property was sold in October 2002 for $139,900. It seems to have been an unsuccessful investment for the Plaintiff and her husband.

7. [33]

   In May 2009, the Plaintiff and her husband purchased a property at Townsend Crescent, Ropes Crossing (“the Ropes Crossing property”) for $560,000. There was a mortgage registered on the title to the Ropes Crossing property. The amount secured by the mortgage at the time of the purchase appears to have been $528,958.

8. [34]

   The Plaintiff and her husband remain the registered proprietors as joint tenants of this property. (Ropes Crossing is a suburb of Blacktown in Sydney.)

9. [35]

   The Ropes Crossing property has built on it a detached two-level brick veneer and tile residential property. The amenities include 5 bedrooms, three bathrooms, “excellent landscaping” with the rear yard including a timber deck. It is said to be in “above average” internal and external condition and repair.

10. [36]

    It will be necessary to return to the current financial and material circumstances of the Plaintiff (and her husband) later in these reasons.

The Statutory Scheme

1. [37]

   Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiff’s eligibility and the commencement of the proceedings within time is not in issue, the sole questions for the Court to determine are whether at the time when the Court is considering the application, adequate provision for the Plaintiff’s proper maintenance, education or advancement in life has not been made by the deceased’s Will and whether an order for provision out of the estate ought to be made for her maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: s 59 of the Act.

2. [38]

   The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780.

3. [39]

   Whether the disposition of the deceased’s estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff 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: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P). In the circumstances of this case, bearing in mind the agreement that there is no property which remains that falls within the residuary estate, the Plaintiff will receive nothing unless an order under the Act is made.

4. [40]

   Although the existence or absence of “needs” which the applicant cannot meet from her, or his, 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, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J).

5. [41]

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

6. [42]

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

7. [43]

   In Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178, the Victorian Court of Appeal confirmed, at [65], that it was essential to success that a claimant establish need, but, at [38] and [66], that need is a relative concept, which

8. [44]

   (The High Court recently, in Jones (a pseudonym) v Smith (a pseudonym) [2016] HCASL 310, stated that:

9. [45]

   As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

10. [46]

    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. 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 [2004] NSWSC 419 at [89].

11. [47]

    Whether to make an order for provision and what provision ought to be made is a question which Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed 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.

12. [48]

    Section 60 of the Act provides:

13. [49]

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

14. [50]

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

15. [51]

    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.

16. [52]

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

17. [53]

    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).

18. [54]

    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.

19. [55]

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

20. [56]

    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).

21. [57]

    Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).

22. [58]

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

23. [59]

    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.

24. [60]

    The Court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].

25. [61]

    In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

26. [62]

    Of the freedom, in Grey v Harrison [1997] 2 VR 359, Callaway JA said, at 366:

27. [63]

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

28. [64]

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

29. [65]

    White J referred to these principles in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [127]:

30. [66]

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

31. [67]

    In Revell v Revell [2016] NSWSC 947, Pembroke J wrote at [5]:

32. [68]

    In all cases under the Act, what is adequate and proper provision is necessarily fact specific. The nature and content of what is adequate provision 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; Vigolo v Bostin, at 199 and 204; Camernik v Reholc [2012] NSWSC 1537.

33. [69]

    In a claim by an adult child, the following principles are useful to remember:

34. [70]

    A very similar statement of the principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval in Smith v Johnson [2015] NSWCA 297 at [62] (although in that appeal there was no challenge to the correctness of those principles).

35. [71]

    In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty”.

36. [72]

    In this case, the only other claimant on the bounty of the deceased is the Defendant. She does not advance her financial and material circumstances, but as previously stated, this does not mean that the Court may disregard her entirely, as she is the chosen object of the deceased’s testamentary bounty. She does not have to prove an entitlement to the provision made in the deceased’s Will for her or otherwise justify such provision. Nor can her claim as the chosen object of testamentary bounty be forgotten.

Qualifications on “Principles”

1. [73]

   As long ago as 1980, in White v Barron (1980) 144 CLR 431; [1980] HCA 14, at 440, Stephen J wrote:

2. [74]

   As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

3. [75]

   The importance of the qualifications to which I have referred in the last paragraph has been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]. They must be remembered.

Additional Facts

1. [76]

   I set out 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 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.

2. [77]

   As stated, the relationship between the deceased and the Plaintiff is that of child and mother. That relationship existed throughout the Plaintiff’s life. I am satisfied that the relationship was a close one and that it endured until the death of the deceased. They kept in contact throughout the Plaintiff’s life with the Plaintiff visiting, or being visited by, the deceased. They also holidayed together at different places in New South Wales, including at the Defendant’s Central Coast holiday home. In the latter years, the Plaintiff did some housework for the deceased and cared for the deceased’s husband. The Plaintiff received a carer’s benefit whilst doing so. After 2012, the deceased regularly stayed with the Plaintiff at the Ropes Crossing property.

3. [78]

   The Plaintiff also took the deceased to see her husband in hospital.

4. [79]

   I am satisfied that the relationship of the Plaintiff and the deceased existed throughout the Plaintiff’s life and that it was a close and loving relationship.

5. [80]

   There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.

6. [81]

   The responsibility of the deceased was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1983] AC 463 at 478-479:

7. [82]

   This factor requires a balancing of potentially competing obligations as between the applicant and the beneficiary.

8. [83]

   Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff as a child, once she became an adult, imposed upon her by statute or common law. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, continues to be recognised.

9. [84]

   In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

10. [85]

    Yet, there is no “presumptive testamentary entitlement of an [adult] offspring”: Underwood v Gaudron [2015] NSWCA 269, at [73] (Basten JA).

11. [86]

    I have earlier dealt with these matters. The value of the estate is reasonable, albeit not large.

12. [87]

    The Plaintiff lives with her husband, Stephen Thompson, and their three adult children, Allison Rose Thompson, who is 28 years of age, Sarah Ann Thompson, who is 27 years of age and Peter Andrew Thompson, who is 20 years of age.

13. [88]

    The Plaintiff sets out her and her husband’s (but not each of her children’s) assets and liabilities as follows (as at October 2016):

14. [89]

    The Plaintiff did not include any reference to superannuation. She had a superannuation balance of about $2,109 (as at 30 June 2014) and her husband has a superannuation balance of $38,542 (as at 12 October 2016).

15. [90]

    The Plaintiff runs a very small hairdressing business from which she earns approximately $50 per week. She has also been employed casually as a carer, with Senior Helpers, since July 2016, earning approximately $430 per fortnight after tax.

16. [91]

    Since October 2016, her husband has been employed by Panucci Transport Pty Ltd as a fleet controller, and receives a net weekly income of $797. (It is said that, recently, he has had a checkered employment history).

17. [92]

    The Plaintiff set out the weekly income of her and her husband as being $1,262, and the family’s weekly expenses as being $1,208 (as at 3 November 2016).

18. [93]

    Although the Plaintiff noted in her affidavit of 21 October 2015 that “[t]he expenses of my husband and myself often exceed his income”, the most recent estimates provided by the Plaintiff show that their income is about $44 a week more than their expenditure.

19. [94]

    However, their current expenditure on mortgage repayments is lower than it will be in the future, because as they were experiencing financial difficulties, they requested the bank to allow them to enter into a payment schedule under which they make lower repayments until the end of 2016. They are also currently in arrears in repaying their car loan and their council rates.

20. [95]

    The Plaintiff submitted:

21. [96]

    As noted, the Defendant does not raise her financial and material circumstances, although she did give evidence that she lives on a farm of 6.25 acres from which she operates a chicken-raising business. She and her husband also own a house at Copacabana in the Central Coast, which is mortgaged for about $350,000. No evidence was given as to the value of the farm or of the Copacabana house.

22. [97]

    The Defendant also gave evidence that Anthony, one of her two adult children, was diagnosed with motor neuron disease in 2014. He lives with the Defendant and her husband, in a granny flat on the farm. The Defendant and her husband have made renovations to make the granny flat wheelchair accessible for Anthony. Currently Anthony is relying on his superannuation and savings to support his own family, but the Defendant and her husband will support him when his assets are depleted.

23. [98]

    The Plaintiff suffers from obesity, type 2 diabetes, chronic back pain and residual sciatica, plantar fasciitis, depressive illness and anxiety disorder, calcaneal spurs and chronic sinusitis. There was no medical evidence to suggest that any of these conditions affect her capacity to work.

24. [99]

    The Defendant gave evidence that she suffers from an illness called scleroderma (which I understand to be a chronic connective tissue disease generally classified as one of the autoimmune rheumatic diseases, one hallmark of which is the thickening or hardening of the skin).

25. [100]

    As stated, the Plaintiff is currently 52 years old.

26. [101]

    The Plaintiff gave evidence of her contributions, particularly to the welfare of the deceased and the Plaintiff’s father. I am satisfied that she did make such a contribution. There is no evidence that she made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate of the deceased.

27. [102]

    The Plaintiff acknowledged that she received some financial assistance from the deceased during the deceased’s lifetime. She accepted that, effectively, she had been gifted the Merrylands property by her parents. She acknowledged that the gift to her had been on the understanding that when they both passed away, the Greystanes property would be devised to the Defendant. This was a clear and unwavering intention, known by both daughters of the deceased for more than 30 years.

28. [103]

    The Plaintiff also acknowledged that in about 1981, her parents purchased a hairdressing salon, which they transferred to her, and which she sold, several years later, for $21,000.

29. [104]

    More recently, in 2013 the deceased gave each of the Plaintiff and the Defendant $5,000.

30. [105]

    As stated, in the events that have happened, the Plaintiff receives no provision out of the estate of the deceased.

31. [106]

    The deceased made clear her testamentary intentions both in her Will and otherwise. She had made a Will in September 1985 which, after providing for her husband, devised the Greystanes property to the Defendant. By this date the Merrylands property had been transferred to the Plaintiff.

32. [107]

    The Plaintiff acknowledged that she knew that the Greystanes property was to be devised to the Defendant. She was referred to a document, said to have been written by the deceased, in Italian, which she denied had been written by the deceased. I do not accept her denial.

33. [108]

    This answer in cross-examination made the Plaintiff’s knowledge of the intentions of the deceased abundantly clear (T33.37-42):

34. [109]

    The Plaintiff was not being maintained, wholly or partly, by the deceased before her death, other than as a child. I have referred to the provision made for the Plaintiff during the deceased’s lifetime.

35. [110]

    There is no person, other than her husband, liable to support the Plaintiff.

36. [111]

    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.

37. [112]

    In Collicoat v McMillan at [40], Ormiston J wrote, in relation to the manner in which an applicant’s behaviour towards the deceased is to be considered:

38. [113]

    I am satisfied that there is no relevant conduct of the Plaintiff before, or after, the death of the deceased. I have dealt with her relationship with the deceased earlier.

39. [114]

    I am satisfied that the conduct of the Defendant impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. She was a loving daughter to the deceased and was her principal carer. The personal care she provided, particularly in the deceased’s last years before moving into the nursing home, and the assistance the Defendant provided with activities of daily living should not be underestimated. There can be no doubt that the Defendant has a very strong competing claim on the bounty of the deceased, which, of course the deceased recognised by making her the principal chosen object of the deceased’s bounty.

40. [115]

    This factor is not applicable.

41. [116]

    There is no other matter that I consider relevant.

Submissions

1. [117]

   I have earlier referred to the Plaintiff’s submissions. In substance, she says that she should receive the benefit of substantial provision.

2. [118]

   The Defendant submitted that the Plaintiff’s and her husband’s current financial position was, to a large extent, their own fault or as she put it “of [the Plaintiff’s] own making”. Examples were given of what were said to be the poor investment choices made. It was submitted that, in those circumstances, the Defendant should not have to lose part of her inheritance, in effect, to bail them out of the consequences of her (or their) poor investment decisions.

3. [119]

   I am not inclined to criticise the Plaintiff (and her husband) for her (or their), investment choices, even if, subsequently, they may have come to recognise some of them as having been somewhat ill-advised. There was no suggestion that the Plaintiff and/or her husband had been reckless, or frivolous, in choosing the investments that were made.

4. [120]

   Whilst it is true that the borrowings to which I have referred continued to increase, and even though part of those borrowings were likely to have been used for living expenses, I do not accept the broad submission that:

5. [121]

   More importantly, it was not suggested, and it does not appear, that they were living a particularly luxurious lifestyle. Indeed, when they went on a holiday, it was to Narooma.

6. [122]

   As was recently written in Bates v Cooke [2015] NSWCA 278 at [3], by Leeming JA:

7. [123]

   And as Sackville AJA pointed out at [66] – [67]:

8. [124]

   The Court of Appeal considered it to be erroneous to interpret community expectations to disentitle an adult child, with financial needs, from claiming a family provision order if those needs were created by well-intentioned, but improvident, investment decisions. An adult claimant is not necessarily disentitled, in such circumstances, from succeeding in a claim for provision, where the estate is sufficient to alleviate her, or his, needs without having a significant deleterious effect on any other relevant person.

9. [125]

   Considering the facts of this case, the poor investment decisions (if that is what they were), or other lifestyle choices, do not disentitle the Plaintiff to additional (or in this case, some) provision out of the estate of the deceased.

10. [126]

    Claims for a family provision order present particular difficulties where the actual estate is not very large, where there is only one asset, being real estate, and where there is a competing claim upon the bounty of the deceased by the beneficiary. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the principal chosen object of the deceased's bounty.

11. [127]

    As I have recently written in Morier v Liem [2016] NSWSC 582, the fact that the Plaintiff does not receive any provision under the Will of the deceased, of itself, does not bespeak inadequacy. That fact is not all that the Court is required to consider. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant, the claim of each on the bounty of the deceased, and the size of the estate, are very relevant factors in determining the answer to the question whether the Court is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff.

12. [128]

    Basten JA wrote in Chan v Chan [2016] NSWCA 222 at [22], that the Court must remember:

13. [129]

    Thus, in determining what is adequate for the proper maintenance, education or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.

14. [130]

    It is beyond argument that the deceased made generous provision for the Plaintiff during her lifetime. The deceased and her husband provided her with a business which was sold for a reasonable amount (indeed three times its purchase price). In addition, they gifted to the Plaintiff an unencumbered home, which the Plaintiff then encumbered to enable repairs and renovations to be made. This demonstrated that the deceased (and her husband) had done everything in her (and their) power to give the Plaintiff the best start in life possible bearing in mind her (and their) financial circumstances.

15. [131]

    However, the level of provision made during the lifetime of the deceased for the Plaintiff, alone, cannot determine what is “proper” on the deceased’s death. Of course, the fact that generous provision has already been made is one of the matters to be taken into account in determining what is “proper”. The situation must be looked at when the Court is determining the Plaintiff’s application.

16. [132]

    Furthermore, even though the applicant manages to live within her, or his, income, does not mean that the income fulfils all her or his reasonable needs.

17. [133]

    The Defendant is the only other person who would have any claim on the deceased’s bounty. She has not alleged a financial claim on that bounty. The Court does not ignore her claim as a beneficiary, being the principal chosen object of the deceased’s testamentary bounty. It is necessary for the Court to consider the individual circumstances of each of the deceased’s children at the date of the hearing. Her competing claim is not founded upon any competing financial need, but on her contributions to the deceased, both financially and in other ways, during the deceased’s declining years.

18. [134]

    When the Court considers the Plaintiff’s financial and material resources, one cannot but reach the conclusion that the provision made for her in the Will of the deceased is inadequate for her proper maintenance and advancement in life. Accordingly, the Court’s jurisdiction to make an order is established.

19. [135]

    Then, one turns to the provision, if any, that ought to be made. In my view, some additional provision ought to be made for the Plaintiff.

20. [136]

    In Grey v Harrison at 366–367, Callaway JA observed:

21. [137]

    This is a case in which, firstly, the Plaintiff has a need to meet her obligations, all of which cannot be met from her own resources. Secondly, the value of the deceased’s estate provides the means to alleviate that need, at least in part. Thirdly, having regard to the competing claim upon the deceased’s bounty, which does not include any competing financial claim by the Defendant, a proportion of the estate can be used to alleviate part of the Plaintiff’s needs.

22. [138]

    It seems to me that the Plaintiff should receive a lump sum that equates to 40 per cent of the net proceeds of sale of the Greystanes property. The net proceeds of sale should be calculated by deducting from the gross sale price, the costs and expenses of sale, including agent’s commission, advertising costs, and the legal costs of sale. The legal costs of these proceedings, namely the Plaintiff’s costs calculated on the ordinary basis and the balance of the Defendant’s costs, calculated on the indemnity basis should also be deducted from the gross sale price.

23. [139]

    Earlier, I have calculated the estimate of the value of the distributable estate to be about $690,000. Deducting $19,000, being the cash, results in the net proceeds of sale being about $671,000, with the result that the Plaintiff would receive an estimated lump sum of $268,400. This equates to almost one half of the liabilities that the Plaintiff and her husband have disclosed. If used to reduce liabilities, the Plaintiff may have available more income. Alternatively, the amount, or part of it, could provide a sum for exigencies of life.

24. [140]

    That amount of provision made for the Plaintiff will still leave slightly more than $420,000 available for the Defendant.

25. [141]

    The Defendant, as the executrix, should have control of the sale of the Greystanes property, although, as a matter of comity, her solicitors should advise the solicitors acting for the Plaintiff of what is being done in that regard. The Greystanes property should be put on the market for sale as soon as reasonably possible, but no later than 6 weeks from the date of making orders, or such other time as the parties are able to agree in writing. Provided the amount to which the Plaintiff is entitled, is paid within 7 days of completion of the sale of the property, no interest is payable on the amount to be paid. Otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date.

26. [142]

    I am also prepared to make an order granting leave to any party to approach the Court to make additional orders for the purpose of giving effect to the family provision order to be made.

27. [143]

    The Court orders: