Hinderry v Hinderry

HIS HONOUR: These reasons relate to proceedings, in which a family provision order pursuant to the Succession Act 2006 (NSW) (“the Act”), by way of greater provision than was made by the Will of his mother, Samera Hinderry (“the deceased”), out of her estate and/or notional estate, and costs, are sought by the Plaintiff, Michael George Hinderry.

The Act applies in respect of the estate and notional 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 The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009.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 and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. At the hearing, it was agreed that there was no notional estate. Hereafter, I shall simply refer to the estate of the deceased.

There is no dispute that the Plaintiff’s application for a family provision order was made within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased) and that, as a child of the deceased, he is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties and other family members, after introduction, by his, or her, given name.

Michael is the adopted son of the deceased and her husband, Wahib Hinderry, who predeceased her, having died on 28 June 2012, aged 89 years. They had no biological children together.

The first Defendant, Anthony Hinderry, who was called “Tony” in the proceedings, is a biological nephew of the deceased. His father was John Hinderry, the brother of Wahib. He died in about 2004. His mother is Wadad Hinderry. She is still alive and is in her mid 80s.

Tony, who was born in April 1969, has 4 siblings, being Mary Elias, who was born in July 1959; Joseph Hinderry, who was born in September 1965; Bernadette Andari, who was born in September 1965; and Rita Awad, who was born in May 1967.

Of his siblings, only Joseph filed an affidavit that was read in the proceedings. He was not cross-examined.

Mr Akele Elias is Mary’s husband. He swore one affidavit that was read in the proceeding. He was not cross-examined.

The second Defendant, Charbel Semaan, who was called “Charlie” in the proceeding, is also a biological nephew of the deceased and the son of the third Defendant, Semaan Bakhos Semaan, who was called “Simon” in the proceeding. Simon is the brother of the deceased. Neither was cross-examined.

Mr James Kelly is a solicitor. Pursuant to an order made by Lindsay J on 13 October 2014, he was appointed as the interim administrator of the deceased’s estate. He swore an affidavit that was read in the proceeding. He was not cross-examined.

Ms Lily Arthur is the Co-ordinator at Origins Supporting People Separated by Adoption Incorporated. She swore one affidavit read in the proceeding. She was not cross-examined.

Dr C J McCosker is a qualified general practitioner who came to treat the deceased in March 2012. He swore an affidavit that was read in the proceeding. He was not cross-examined.

Mr Neil Hayman was a friend of the deceased. He swore an affidavit that was read in the proceeding. He was not cross-examined.

Mr Matteo Russoniello is the solicitor currently acting for Tony. However, as will be read, in 2003, in respect of a criminal matter that was heard in the Local Court at Wollongong, he acted for Michael. He swore a number of affidavits. I shall refer to his evidence later in these reasons, as he was cross-examined.

The solicitors for the Plaintiff are Kazi Portolesi. Mr Bassam Kazi is the solicitor with the conduct of the matter for Michael. He has sworn a number of affidavits going to the Plaintiff’s costs in these, and other, proceedings to which I shall refer.

Mr David Rod is the principal of the firm of solicitors acting for Simon and Charlie in the proceedings. He swore an affidavit of costs to which I shall refer.

Michael commenced this proceeding by Summons filed on 13 August 2014, initially naming no Defendant, as, at that time, there was an associated contested Probate proceeding to determine which was the last valid Will of the deceased (to which I shall refer as “the Probate proceeding”).

In the Probate proceeding, the Plaintiff was Tony, the first Defendant was Michael, and the second and third Defendants were Charlie and Simon. The principal protagonists, however, in the Probate proceeding, were Tony and Michael. Tony propounded, in the alternative, two Wills made by the deceased. The last in time was a Will dated 9 August 2011 (“the 2011 Will”). The first in time was a Will dated 26 October 2004 (“the 2004 Will”). Michael disputed the validity of both Wills, and, in a Cross-Claim asserted that the deceased had died intestate and that administration of her estate should be granted to him.

The Probate proceeding was resolved without a contested hearing in September 2015, when, following a consideration of those parts of the contents of the Court file to which reference was made, and a form of order was provided and consented to by all of the parties, I made the following orders:

Regrettably, for reasons that are unnecessary to repeat as there was some dispute about them, the Probate document had not been issued by the Court because requisitions, raised by the Probate Registry, had not been completely satisfied. Tony attributed the blame for the failure to answer some, or all, of the requisitions to Charlie and Simon, and they denied any fault.

On the second day of the hearing, the Court was informed that the executors’ affidavit had been signed by each of Charlie and Simon and a copy of it was provided to Tony’s legal representative. On the third day of the hearing, the Court was informed that certain amendments would be required to the executors’ affidavit, but it was anticipated that it would be sworn and filed in the Probate Registry, without undue delay. When filed, the Probate requisitions may be satisfied, with the result that the Probate document will be able to be issued.

In the written Submissions dated 11 May 2016, relied on by Charlie and Simon, their counsel wrote that “[t]he Second and Third Defendants express concern as to whether the [2011 Will and the 2004 Will] respectively are valid”. This statement is surprising bearing in mind the resolution of the Probate proceeding to which all parties had agreed. Senior counsel for Tony submits that it provides an example of the ambivalent role Charlie and Simon have played in the family provision proceeding. Bearing in mind that they are executors of the 2011 Will with Tony, another example is the written submission that “[t]he Second and Third Defendants are prepared to abide any decision of the court save as to costs.”

It is necessary, next, to explain what occurred at the hearing of Michael’s claim for a family provision order.

The hearing was listed in the Family Provision Running List commencing on 18 May 2016, with an estimated duration of 2 days. The matter did not finish within that time and it was re-listed, for submissions, on Wednesday, 25 May 2016.

The flow of the hearing of Michael’s claim was punctuated, firstly, by an application for a permanent stay of the proceedings, which application was made by senior counsel for Tony immediately after Michael gave the following evidence during his cross-examination (at T35.35 – T36.03):

Michael had also given evidence that he “believe[d] [the deceased] wanted me to have the entire estate and was coerced by my cousin, put under pressure. I believe that because of witnessing my father's Will in 2011 after he passed away and noticing his signature to be very much different to what I recognised as his signature. So being my Mum's Will is the same as my father's Will and her mood and her tantrums, if you might want to say, led me to believe like, she didn't agree to what was said in the Will. So I find that inadequate for me to accept it.”

Senior counsel for Tony relied upon s 67 of the Civil Procedure Act 2005 (NSW) which, relevantly, provides that, subject to rules of Court, the Court may, at any time, by order, stay any proceedings before it, either permanently or until a specified day.

Senior counsel submitted that the answers given by the Plaintiff, in circumstances where the Probate proceedings had been determined and orders had been made resolving the issue of the validity of the 2011 Will; that to raise the spectre of the validity of his father’s Will, Probate of which had been granted and had not been the subject of any application to have Probate revoked; and to deal with the conduct of members of his family in relation to “someone signing the elderly's signature when they're sick”, amply demonstrated that Michael was using the Court's process (seeking a family provision order) for ulterior and illegitimate motives.

Needless to say, senior counsel for Michael opposed the oral application for the permanent stay of the proceeding. He made an application to adjourn the proceeding until the following morning to enable the appointment of a tutor for the Plaintiff. He submitted that Michael’s answers demonstrated that Michael had failed to appreciate the nature of a family provision claim and for that reason was a person under a legal incapacity in the conduct of the legal proceedings: T40.41 – T40.43.

After hearing the application for the adjournment made on behalf of Michael, I refused it, principally, because I was not satisfied that there was sufficient evidence, then, before the Court to demonstrate that Michael was a person under a legal incapacity. Indeed, the medical evidence which had been tendered in Michael’s case earlier that morning (Ex. MGH 2), being a report of Psychiatrist, Dr Olav Nielssen, of 12 May 2016, suggested that Michael was not such a person. In that report, it was noted that Michael “had confirmed that he was contesting the Will of his late mother” and he had identified a number of clauses in the Will about which he was concerned.

In addition, there had been no suggestion, at any time, prior to, or during, the hearing, by his legal representatives, that Michael had been unable to provide instructions to them, or that he had not understood the advice that he had been given or advice in regard to settlement of the proceeding: Rappard v Williams [2013] NSWSC 1279.

(At no time, thereafter, has any application been made for the appointment of a tutor for Michael. Nor has it been suggested that, whatever the result of the proceeding, any application will be made for a financial manager to be appointed to manage Michael’s affairs. However, it appears that Michael has sufficient insight to appreciate that he will require assistance in managing his inheritance.)

Finally, I was not persuaded that Michael’s answers, as set out above, necessarily meant that, because of incapacity, he had failed to appreciate the nature of a family provision claim. I pointed out that the answers which indicated that he wished to agitate other issues may be a relevant consideration under s 60(2)(p) of the Act (to which I shall refer later) and also on the question of the costs of the proceedings.

Then, in answer to the application for a permanent stay, senior counsel submitted that Michael had a statutory right to seek a family provision order under the Act as an eligible person; that he had made his application within time, and that the Court was obliged to determine it. He submitted that there was nothing wrong with having other motives in bringing such an application and that the answers relied upon did not mean that he was not seeking greater provision out of the estate of the deceased.

On the application for a permanent stay, counsel for Charlie and Simon submitted that the answers Michael had given were “not inconsistent with the primary purpose of him ventilating his grievance that he has been inadequately provided for”. He submitted that the answers revealed Michael’s view of the reasons why the deceased had made the provision in the Will, asserting his belief that members of his family had convinced her to do so.

After hearing the submissions of the parties, I refused the oral application for a permanent stay made on behalf of Tony. I indicated that there were a number of other reasons for doing so, the first being that it would stultify the administration of the estate and prevent distribution of property to the beneficiaries; the second was that it had not been submitted that Michael’s evidence was irrelevant to the determination of this proceeding, or that the Court could not take them into account in determining the adequacy, or otherwise, of the provision made for him in the 2011 Will or on the question of costs; and the third was that a very large amount in costs had already been incurred in the proceedings, the burden of which would not be determined if Michael’s claim for a family provision order was not finally dealt with.

In stating these matters, I had in mind the principle that unless the interests of justice demand it, a Court should exercise, rather than refrain from exercising, its jurisdiction, and that a permanent stay should be ordered only in an extreme case. I also considered the Civil Procedure Act and the overriding purpose enshrined in s 56, to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the Court’s duty to give effect to the overriding purpose when it exercised any power given to it by the Civil Procedure Act, the objects of case management (s 57); the requirement for the Court to follow the dictates of justice (s 58); the stated object for the practice and procedure of the Court in any proceeding to be the elimination of delay (s 59); and the object of the practice and procedure of the Court in any proceeding to be implemented “in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute”.

(I note, since the hearing, although in a different context, Beazley P, in Liu v The Age Company Limited [2016] NSWCA 115 at [12], has expressed the view that although “it is unnecessary to determine whether the statutory principles stated in the Civil Procedure Act 2005 (NSW), s 56 as to the just, quick and cheap resolution of the real issues in proceedings apply to an application for a stay …I consider that the better view is that they do”. In that case, McColl JA noted, at [159] that:

The matter then continued with Michael being cross-examined until shortly before 4:00 p.m., when I adjourned the proceedings until the next day.

On the second day of the hearing, Michael did not appear in Court. I was informed, from the bar table, without objection, by his senior counsel, that he had arrived in the precincts of the Court but that he had then left. It was not known, then, whether he would return and, if so, when.

No explanation for his conduct was offered and no application was made, on his behalf, to adjourn the proceedings. It was not suggested that his legal representatives were without instructions.

With the consent of all parties, and in order to avoid delay in concluding the hearing, the case proceeded without Michael being present and with the other witnesses to be cross-examined being interposed.

The cross-examination of Mr Kazi, Michael’s solicitor, by senior counsel for Tony commenced, but it did not continue when the parties were able to agree that the estimate of the costs given by him (and, for that matter, by each of the other solicitors) in respect of the Probate proceeding and in respect of the family provision proceeding would be treated as an estimate only, and that the use of the estimate, for the purpose of determining the available distributable estate, would not prevent any party requiring the formal assessment of those costs after the case was concluded.

Tony was then cross-examined.

At 2:00 p.m. on the second day, it was clear that Michael would not return to permit the cross-examination to continue. Senior counsel for Michael informed the Court that:

Even then, there was no evidence called explaining Michael’s failure to attend the hearing on the second day. Nor was there any rational cause, or credible, or any, explanation, offered by his senior counsel for Michael’s absence. In particular, there was no evidence that he was then incapacitated by some medical condition, or illness, from attending. No application to cease to act was made by Michael’s legal representatives.

Neither senior counsel for Tony, nor counsel for Charlie and Simon, submitted that the Court should dismiss Michael’s claim, either pursuant to UCPR rule 29.7(4) (dismissal of proceedings where a plaintiff does not appear) or by reference to the inherent jurisdiction of the Court to control proceedings: Magjarraj v Asteron Life Ltd [2009] NSWSC 1433, per Barrett J (as his Honour then was). (An application for leave to appeal from his Honour’s dismissal of the proceedings was dismissed with costs by the Court of Appeal: Magjarraj v Asteron Life Ltd [2010] NSWCA 207.)

Nor did either senior counsel for Tony, or counsel for Charlie and Simon, submit that the proceeding should be dismissed because Michael had, effectively, refused to permit himself to be cross-examined further by counsel for the Defendants, or that his affidavits should be treated as not read: Russell Caldar v Public Trustee of NSW (Supreme Court, 27 October 2004, Master McLaughlin, unrep).

In that case, Master McLaughlin dismissed an application for a family provision order after the plaintiff, Mr Caldar, refused, for no valid reason, to enter the witness box to be cross-examined on his affidavit by counsel for the defendant. The learned Master decided that Mr Caldar's affidavits had been read upon the assumption that he would be available to be cross-examined on them, and that once that assumption was incorrect, it was appropriate to review the correctness of having permitted the affidavits to be read. On the review, his Honour decided that, in the circumstances of the case before him, the affidavits should be treated as not having been read. Hence, the case failed for lack of evidence. (A holding summons was filed in the Court of Appeal on 4 November 2004, but the holding appeal lapsed.)

Very fairly, if I may say, senior counsel for Tony submitted that Michael’s two affidavits had already been read, and the evidence in response had also been read; that many of the issues to be determined could be determined without further cross-examination of Michael; and that documents had been, and would be, tendered, which would enable the determination of many of the remaining issues.

It was not in dispute that to permit the matter to proceed would still leave it open to the Defendants to make such submissions as they considered necessary about the weight that should be accorded to the Plaintiff’s evidence in light of his refusal, by non-attendance, to be further cross-examined: Cairns v Cairns [2006] NSWSC 364 at [17] (J C Campbell J).

In Fulton v Fulton [2014] NSWSC 619 at [111], I wrote:

Of course, UCPR rule 29.7(2) provides that if any party is absent, the Court may proceed with the trial generally, or so far as concerns any claim for relief in the proceedings.

I formed the view, also, that many of the fundamental facts about the family relationships and the financial and domestic circumstances of the deceased, and the financial resources of Michael, were not, or were not substantially, in dispute. Whilst there were some matters about the family traversed in the affidavits, they were not at the heart of the case and were not essential to the determination of the principal question which is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Michael has not been made by the Will of the deceased.

I also had the opportunity to hear Michael acknowledge that what he had set out in his affidavits in relation to a number of claims on the estate “was a wish list at the time”: T27 – T28. (In this regard, I should note that Michael’s claim for provision in his first affidavit included a claim for purchase of a two bedroom property in Newtown/Surry Hills area costing in the order of $800,000 to $1 million. In his supplementary affidavit the claim for provision escalates and includes a claim for a three to four bedroom house in Newtown, Woolloomooloo and Darlinghurst in the order of $1.5 to $2 million.)

During his submissions, senior counsel for Michael modified Michael’s claim for a family provision order to “a modest legacy of cash out of that fund” for exigencies of life, by this stage it having been acknowledged by the Defendants that, subject to any costs order, he was entitled to the two units devised to him, on conditions, in the deceased’s Will, absolutely: T141 - T142.)

In the circumstances, without objection, the matter continued with submissions being made by senior counsel for Michael. He concluded his submissions and then the matter was adjourned until 25 May 2016 to enable the remaining submissions by other counsel to be made.

On the third day of the hearing, without any advance notice having been given to the other parties until shortly before the hearing recommenced, Michael appeared in Court. Mr J Brown, counsel who then appeared for him, stated (at T155.27 - T155.29):

I took this statement to mean that an oral application was being made to re-open the case so that Michael could be further cross-examined.

The Defendants did not oppose that course. Senior counsel for Tony confirmed that he would only be a further few minutes cross-examining, and counsel for Charlie and Simon said that he did not propose to cross-examine at all, but he had no submissions to make on whether leave to re-open should be granted. In the circumstances, I granted the application to re-open Michael’s case so that he could be cross-examined further.

Michael was then called. His counsel made no attempt to have Michael give evidence about the reasons for his failure to return to Court on the second day of the hearing.

Michael was cross-examined again by senior counsel for Tony.

After senior counsel for Tony had finished cross-examining Michael, counsel for the second and third Defendants sought to cross-examine. His first question, which related to the reasons for Michael’s failure to return to Court on the second day of the hearing, was objected to by senior counsel for Tony, and the question was rejected: T161.30 – T162.21. Counsel did not seek to ask any further questions.

It is helpful, at this point, to provide some further facts, which, to the extent that they are controversial, should be regarded as the findings of the Court.

The deceased was born in 1939 and died on 1 September 2013. She arrived in Australia, from Lebanon, in about 1958. She and Wahib married, in Lebanon, on a date not precisely disclosed in the evidence but inferred to have been in about 1958 (since they had been married for 54 years at the date of his death in 2012).

Samera spoke, and could read and write, English. Tony described her as extremely capable, intelligent, generous, and a kind and loving person. He also said that “she was always a very strong and assertive woman who spoke her mind”.

(Some of Tony’s evidence on this topic is corroborated by Dr McCosker who treated the deceased between May and December 2012. He stated that in his dealings with the deceased “I was never concerned that she lacked the ability to reason or understand or make informed decisions”.)

Michael was born in November 1970. (It can be seen therefore, that, of his cousins, he was closest in age to Tony.)

The deceased and Wahib adopted Michael by Adoption Order, made by this Court, in September 1971.

Michael acknowledged that his father’s, and his uncle's, families were extremely close. His father and his uncle, John, had operated a business together called “JW Hinderry”, which business involved door to door sales and sale of clothing and manchester. Each possessed a hawker’s licence.

The block of 9 units in Miller Street, Coniston, had been built by Wahib and the deceased, and by John and Wahad, together, in the late 1960s or early 1970s. From Michael’s childhood, the families lived next door to one another (respectively at Unit 4 Miller Street and Unit 1 Miller Street). The deceased and Wahib owned 4 units, John and Wahad owned 4 units, and they owned one unit in equal shares, in the block.

In about 1977, they built the units at Gladstone Avenue, and again, both families moved to that unit block, living next door to each other, with Michael and his parents living in Unit 2 and his uncle's family living in Unit 1. Again, each owned the unit in which they lived.

Aside from any commercial relationship, the families were extremely close. They shared meals with each other, went out on picnics together, visited relatives together, went to parties together and celebrated special functions together.

In relation to the relationship with Tony, both the deceased and Wahib appointed him as her, and his, Attorney, respectively, under a Power of Attorney, in August 2004. I am satisfied that the deceased trusted Tony and looked to him to provide her with advice and guidance, particularly as Michael was unable to do so. (I shall refer to my findings on the relationship of Michael and Tony later in these reasons.)

Pursuant to the terms of the 2011 Will, the deceased specifically devised certain identified real estate (all of which is in the Wollongong area), as follows:

The deceased also made provision for the Plaintiff in the following terms:

There was no residue clause in the 2011 Will.

Clause 11 of the 2011 Will provided:

Tony’s senior counsel in written submissions submitted:

There are, obviously, a number of difficulties with Clause 11. Firstly, it seems to suggest that no specific provision is made for Michael in the Will, when that is clearly in error. Secondly, it refers to “my wife” rather than “my husband”.

After some debate during oral submissions, the parties accepted that the objective facts asserted in Clause 11, namely that Michael, over the years, had experienced drug problems; that he had caused a great deal of angst to the deceased and Wahib; and that apprehended violence orders had been taken out by them against Michael, had been established by other evidence in the case.

Thus, there is no need to specifically identify Clause 11, as a matter to be taken into account, on its own, in determining Michael’s case for provision. However, those objective facts may cast light on the relationship between the deceased and Michael, at least from the deceased's perspective.

(The 2004 Will is in essentially the same terms as the 2011 Will, other than in one respect. In Clause 7 of the 2004 Will, the devise of unit 8/Miller Street, is to Bernadette and Mary rather than Tony and Mary.)

The dispositions in Clauses 8 and 9 could give rise to some difficulties in their interpretation. However, at the commencement of the hearing, the parties agreed that, subject to the determination of how costs of this, and the Probate, proceeding are to be borne, the two units referred to could be provided to Michael absolutely, without the imposition of any trust. Indeed, senior counsel for the first Defendant acknowledged that “irrespective of whether there are conditions on those gifts [it] is entirely open to Michael to disclaim and take the properties outright… He can take it on intestacy without the need of any proceedings”: T4.12 – T5.07.

Senior counsel for Michael, in his submissions, noted, however, that to disclaim the devises made for him in the Will and cause the two properties to fall into residue which would pass to Michael on intestacy, would result in the burden of all costs of the probate proceeding and the family provision proceeding being borne by Michael unless the Court made an order that the burden of costs otherwise be borne.

In their written submissions, counsel for Michael wrote:

The deceased, at the date of her death, resided in a unit at Gladstone Avenue, Coniston (Unit 2). She owned four units at Miller Street, Coniston (Units 2, 5, 6 and 8) and she held a one half-interest in a fifth unit (Unit 9) at Miller Street. She also had some monies on deposit in a St George Bank account and had personal effects and household goods. The furniture and household effects have been distributed to Michael.

At the hearing, the parties agreed that the estate assets, charged liabilities and their values, and the beneficiary entitled, are as follows:

(The estimate of the value of each parcel of real estate is the midpoint of market appraisals provided by Mr Kazi to Mr Russoniello in March 2016.)

It appears that the rental income from Units 2, 5, 6 and 8 Miller Street, is $1,858 per week total, whilst the rental income from Unit 2, Gladstone Ave is about $280 per week.

Subject to how the burden of costs of this proceeding and of the Probate proceeding are to be met, it was agreed that the net distributable value of the estate, after deduction of the debt secured on No. 8 Miller Street, and the amount said to be left to be paid to Mr Kelly, is about $1,764,500.

Without any reduction for costs, and bearing in mind that Units 2 and 8 are subject to a mortgage of approximately $260,000, the respective entitlements of the beneficiaries (subject to some comments regarding the form of clauses 8 and 9 of the Will) is Joseph (Unit 2/8), with a net value $262,500; Tony (Unit 5, half share Unit 8 and Unit 9), with a total net value of $532,750; Mary (half share of Unit 8) with a net value of $172,250; and Michael (Unit 2 Gladstone Ave and Unit 6 Miller Street) $789,500, plus the value of residue (if any).

It follows that Michael’s entitlement, under the 2011 Will is about 44 per cent of the net value of the estate (before the payment of the legal costs of the proceedings and the amount left to be paid to Mr Kelly).

So far as can be gleaned, there are no other significant outstanding liabilities of the estate. There was a suggestion that upon sale of one, or other, of the properties, there may be a “post death” CGT liability (T8.12 – T8.14), but there was no evidence produced confirming whether there was any such liability, and if there was, its quantum. It is also likely that there would be costs and expenses of sale of one, or other, of the properties to meet costs, but again, there was no estimate of those costs and expenses.

In an affidavit sworn on 11 May 2016, by Mr Kelly, it is said that he has been “collecting rents from the estate properties and dealing with the management of those properties via the real estate agent, dealing with the insurance company to make a claim following a fire at one of the properties, and consenting to payment for repair work to the damaged properties, dealing with the deceased’s bank, and attending to loan repayments, dealing with the various legal representatives of the parties to these proceedings and arranging payment of weekly payments to [Michael]” and that “[s]ince October 2015, the administration has only involved receiving moneys and making payments”.

On the third day of the hearing, the Court was informed that enquiries made from Mr Kelly’s office revealed that there was approximately $1,000 yet to be paid to Mr Kelly for his work as interim administrator of the estate. (I note that $20,195 has already been paid out of the estate to Mr Kelly for acting as the interim administrator.)

Mr Kelly’s affidavit also revealed that until 7 April 2016, various amounts, totalling $53,250, have been paid to Michael. Since then, the parties agreed that a weekly amount of $350 has also been paid to him ($2,450 to the date of hearing). In addition, Mr Kelly has repaid the mortgage debt at the rate of $1,250 per month.

There was no dispute that the amounts paid to Michael had been paid to him pursuant to an order made by Lindsay J, on 13 October 2014, after a contested hearing for interim provision.

His Honour’s orders, on that occasion, included:

Depending whether a more detailed accounting is required, no claim is made by the Defendants for Michael to repay the amount paid to him.

Usually, in calculating the value of the deceased’s estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, should be paid out of the estate of the deceased, whilst the administrators of the estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.

On the second day of the hearing, the Court was informed, without objection, from the bar table, that Michael’s costs of the Probate proceeding were $122,000; that Tony’s costs of the Probate proceeding were $50,248; and that Charlie’s and Simon’s costs of the Probate proceeding were estimated to be $13,200. (In an affidavit sworn by Mr Rod, and filed, with leave, on the third day of the hearing, Charlie’s and Simon’s costs were reduced to $12,400, inclusive of GST.) It follows that the estimated costs of the parties, of the Probate proceeding, are approximately $184,650.

The Court was also informed that Michael’s costs of the family provision proceeding were $140,000 (and $180,000 on the indemnity basis); that Tony’s costs, calculated on the indemnity basis, of the family provision proceeding were $92,733 (of which $5,599 had been paid out of the estate, leaving a balance of $87,134); and that Charlie’s and Simon’s costs of the family provision proceeding, presumably calculated on the indemnity basis, were estimated to be $70,475. (In the affidavit sworn by Mr Rod, Charlie’s and Simon’s costs were reduced to $64,061, inclusive of GST.) It follows that the estimated unpaid costs of the parties, of the family provision proceeding, are approximately $295,000.

It is clear from all that has been written so far, that all of the parties have engaged in adversarial litigation. Very little quarter appears to have been asked for, or given, including as between the Defendants.

The issue of costs and how they are to be borne is quite complicated for a number of other reasons. Firstly, as stated previously, the parties in the Probate proceeding agreed that the costs, calculated on the indemnity basis, of each, would be paid out of the estate. The parties are not agreed on the quantum of each party’s costs or what part, or parts, of the deceased’s estate will bear the burden of those costs.

Secondly, there is a dispute whether only one set of costs, for all of the Defendants, should be ordered. Tony’s counsel, several times during the hearing, raised this issue. I have identified one basis of Tony’s complaint earlier.

Thirdly, there is likely to be a significant debate about the reasonableness and proportionality of the estimate of the costs of all parties. (I should mention that Mr Kazi swore an affidavit dated 18 May 2016 that was read in which he endeavoured to set out the work that he had been required to do in order to prepare Michael’s case for hearing. It may be necessary to deal with that evidence if the parties are unable to agree upon how costs should be borne.)

Fourthly, the estimates of the parties’ costs of the proceedings are of such a magnitude as to invite consideration of whether (and, if so, what) effective orders can be made for costs to be capped.

Fifthly, as there is insufficient residue to pay the testamentary expenses (which will include the costs of the Probate proceeding), there may be a need to be a pro-rata liability attached to each of the specific gifts, pursuant to Schedule 3 of the Probate Administration Act 1898 (NSW).

Finally, senior counsel for Tony indicated there is a document, or documents, that may be relevant on the issue of how the Plaintiff’s costs are to be borne depending upon the result of the proceeding.

In the circumstances, the Court was requested not to deal with costs until after the reasons for judgment are delivered. At that time, unless the parties are able to reach agreement, it may be necessary to set down for hearing the argument about costs. It is likely that if that occurs, further evidence on costs will be required.

The parties were told that the Court had a real concern that the argument about the costs of the proceedings was looming large in the case, perhaps even overtaking the claim for greater provision being sought by Michael. They were also referred to the concern as to the quantum of costs. I shall deliver these reasons and, if the parties are unable to agree upon that issue, I shall stand the determination of costs over to a mutually convenient date for hearing. When the costs argument is heard, my concerns may be assuaged, but if they are not, I shall deal with those concerns at that time.

There is no issue about the identity of eligible persons. The parties agreed that Michael is the only eligible person.

Mr Russoniello gave evidence of having served each of Joseph, Mary and Bernadette with “notice of these proceedings”. The notice of claim appears to be in the usual form. (However, as stated, the Court cannot disregard the interest of Tony, Joseph and Mary as beneficiaries named in the 2011 Will).

In relation to the other beneficiaries, only Joseph has sworn an affidavit read in the proceedings, in which his financial resources are identified. Thus, the Court may assume that each of Tony and Mary does not wish his, and her, financial resources (including earning capacity) and financial needs, both present and future, respectively, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45] (Macready AsJ).

On this topic, in Sammut v Kleemann [2012] NSWSC 1030 at [137] – [140], I wrote:

Although probably of little relevance to Michael if his claim is successful, his senior counsel submitted that “some of the provision that might be ordered in favour of [Michael] should be borne by Joseph as well as Tony and Mary”: T 143.15 - T143.16.

A significant focus of the evidence, both in the affidavits and at the hearing, related to the relationship of Michael and the deceased.

The Act refers to "the character and conduct of the applicant before, and after, the date of the death of the deceased person". Relevantly, it does not refer to “disentitling conduct” but simply “conduct”.

(In this regard, I should refer to In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318, relied upon by senior counsel for Michael (in the context of the application for a permanent stay). In that case, Jordan CJ, at 321, considered (by reference to the applicable legislation) that disentitling conduct (or “character or conduct such as to disentitle him to the benefit of such an order”) meant “character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default”.)

Under the Act, 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 although, it seems that his, or her, conduct towards the deceased might be more relevant than his, or her, conduct towards others.

In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered:

Campbell JA in Hampson v Hampson [2010] NSWCA 359 at [80], in regard to the Court's consideration of the totality of the relationship between the applicant and the deceased, wrote:

I start this topic by confirming that where there is any conflict between Michael’s and Tony’s evidence, I prefer the evidence of Tony. I formed the view that Tony was a careful witness who made every effort to answer, truthfully, the questions asked of him. I did not find him to be embellishing his evidence regarding his relationship with Michael or trying to exaggerate the seriousness of the events that he had observed involving the deceased.

I note a passage of Tony’s evidence in cross-examination by counsel for Charlie and Simon (which I quote omitting irrelevant words that appear in the transcript) that I found particularly relevant (at T128.35 – T129.00):

His oral evidence was consistent with how he had described his relationship in an affidavit sworn in September 2015, part of which was denied by Michael.

And in a similar vein, in answer to questions by senior counsel for Michael, Tony said, at T131.33 – T131.40:

I am of the view that Michael’s evidence is not wholly reliable. I approach his evidence with caution but I do so for mixed reasons. It is clear that some of his evidence was coloured by his strong emotion. There was a strongly felt sense of grievance at the way the deceased, for whatever reason, failed to tell him that he was adopted until he was in his late 20s.

In this regard, I remember what was said by the English Court of Appeal in R v Turner [1975] QB 834 at 841:

In addition, it is tolerably plain that Michael feels that he no longer has any relationship with Tony and with the other beneficiaries (although there is some evidence that he keeps in contact with some of them). As he repeated several times, he feels that in some way, Tony’s family is responsible for his present predicament and that the members of that family caused the deceased to make the 2011 Will in the terms that she did.

By way of further examples, Dr Nielssen records Michael’s responses while being interviewed as including the statement by Michael that “my cousins can do whatever they want…I haven’t been left anything.”

Ms Arthur, in her affidavit, records a conversation that she had with the deceased in 2012, in which she told the deceased:

Although Ms Arthur does not set out the deceased’s response, she states that she was able to try to “explain to Michael that he had parents that loved him and looked after him”.

Mr Hayman states that the deceased said to him that she loved Michael and always would as he was her son. She also said that she was worried about him and who was going to look after him.

Charlie gave evidence that he had heard the deceased complain to his father about Michael’s behaviour, including regular complaints “that he stayed away from home for days at a time and that he behaved badly towards her and Wahib”. He said that he convinced the deceased to change the locks to the Unit in which she lived, and that she did so but that shortly after the locks were changed, Michael would have a key to the new lock.

To the extent that Michael, in his affidavit, or in cross-examination denied violent conduct towards the deceased (and towards his father and his uncle to the extent that it is relevant), I do not accept his denials. In this regard, I prefer the contents of the contemporaneous court records which reveal various assaults, both verbal and physical, upon the deceased. He was simply not telling the truth.

To the extent that Michael asserts it was the deceased’s conduct that provoked violence towards her, and others, I do not accept that evidence either. There is simply no evidence to corroborate that assertion, which, I note, appears to be inconsistent with the deceased’s desire to look after Michael, as revealed in a number of contemporaneous documents, and with her statements to Ms Arthur that she loved Michael, that he was her son, and that she could not understand why he was angry with her.

Even Michael’s first affidavit contains the following paragraphs:

He acknowledged that “she just wanted the best for me”: T54.48.

In addition, the following passage is to be found at T163.47 – T164.11:

There were parts of his evidence that demonstrated that, on some aspects, he was endeavouring to tell the truth. For example, his evidence on his alcohol and drug dependency and its connection with finding out about his adoption is against his own interest (T47.14 – T47.26, with spelling corrections):

He added, later (at T57.20 – T57.22):

Michael’s conduct towards the deceased, and otherwise, to which I shall refer cannot be said to be seriously in dispute, and if it is, I am satisfied that it has been established, taking into account s 140 of the Evidence Act 1995 (NSW), which requires the Court to consider, amongst other things, the gravity of the matters alleged.

Michael has a long and unhappy history of criminal conduct. There were a number of apprehended violence orders obtained in the period 1998 to 2012, in which the “protected person” was the deceased, and “the defendant” was Michael: Ex. 1D1. In these, a mandatory order was made that Michael “must not assault, molest, harass, threaten or otherwise interfere with, the deceased or engage in any other conduct that intimidates her, and must not stalk her”. In addition, there was an order that he “must not approach her, or any premises in which she resided, within 12 hours of consuming intoxicating liquor or illicit drugs”. Other documents reveal that he breached a number of these orders.

It is not necessary to encumber these reasons with all of the sordid details of events that occurred on each occasion, but the incident or incidents referred to reveal complaints, by the deceased, of continual abuse and harassment, on occasions, physical violence, swearing and calling her names such as “slut” and “whore” and even threats being made by Michael to kill her. The deceased was noted, on at least one occasion, as having said “I am very scared of Michael. I do not feel safe from him”, and that she did not want him to be able to come to her home. On another occasion, she described the problems caused by Michael, and said "I think it is drugs and drinking".

There were many incidents, involving contravention of the apprehended domestic violence orders, malicious or reckless destruction, or damage, to the deceased’s property, assault occasioning actual bodily harm, common assault and larceny, for which Michael was convicted: Ex. 1D1 and Ex. 1D2. (There are convictions recorded on about 26 occasions, commencing in March 1988 and ending in January 2014 (confirmed in the District Court in April 2014.))

Senior counsel for Tony refers to specific incidents, by way of example, which occurred on 17 December 1998 (Ex. 1D2/2), 18 February 1999 (Ex. 1D2/4), 28 May 1999 (Ex. 1D2/6-7), 2 June 2003 (Ex. 1D2/29-30), 10 April 2008 (Ex. 1D2/32), 13 and 15 February 2012 (Ex. 1D2/19-20), and April and May 2013 (Ex. 1D2/27-28).

Tony gave evidence that on one occasion, when Michael was about 20 years old, he observed Michael kick the deceased in the face. He was not cross-examined on this incident, although Michael did deny the incident in his affidavit in reply.

Tony gave evidence of the deceased complaining to him about Michael’s conduct, including Michael’s regular demands for money and that she would give him money as “[t]he only way I could get some peace”. (Indeed, there is evidence that the deceased spoke critically about Michael to a number of people.)

It is necessary to set out one aspect of the evidence, tendered as part of Michael’s case, which is to be found in Ex. MGH3, being part of a file of Tony’s current solicitor, Mr M Russoniello, who, on one occasion in 2003, had acted for Michael in certain criminal proceedings.

I should mention that Mr Russoniello was cross-examined on the contents of his file. I accept his evidence.

Part of the tender included a letter dated 20 March 2015, to Michael’s solicitors, in which the following statement, on which Mr Russoniello was not cross-examined, appears:

The criminal proceedings at which Mr Russoniello acted for Michael related to proceedings for breach/fail to comply with domestic violence order. What follows is taken from contemporaneous documents found in his file.

The hearing was to take place on 23 July 2003 in the Wollongong Local Court but it did not proceed because the deceased did not appear. Michael, who did appear, was said to have appeared to “have some mental problems”.

At some point in July 2003, it is likely that Mr Russoniello met with, and spoke to, the deceased. His notes reveal a conversation in which the deceased said to him:

The hearing proceeded on 25 August 2003. No psychiatric assessment was available on the date of the hearing as Michael had refused consent.

It appears that the deceased attended the hearing and was cross-examined by Mr Russoniello. It follows that this was not a case where a close family member who suffered abuse was unprepared to notify authorities and give evidence in order to try to prevent the conduct from continuing. Nor did the deceased “react with denial, resignation, psychological acquiescence, and passive acceptance”: Katheryn Katz, “Elder Abuse” (1980) 18 Journal of Family Law 695, 711. She attended the hearing and underwent cross-examination in order to prevent Michael’s conduct towards her from continuing.

Mr Russoniello’s contemporaneous notes include the following passage:

Michael was found guilty. In a letter dated 26 August 2003 to Legal Aid NSW, Mr Russoniello wrote:

In addition to these matters, Michael has engaged in other criminal conduct. By way of example, as recently as 2013, he was convicted and sentenced to a term of imprisonment for 18 months for breaking and entering the deceased’s home, stealing property with a value of less than $60,000 and contravening the prohibition and restriction in an apprehended domestic violence order. Upon release, the conditions of his parole were that he participate in alcohol and drug addiction counselling as directed and undergo psychiatric/psychological counselling and treatment: Ex. 1D3.

It was Michael’s case, however, that much of the anger that is evident in his conduct, particularly towards his parents, stemmed from the fact that he did not find out until his late 20s that he was adopted, sometimes referred to in the evidence as “the unresolved adoption issue”.

In this regard, I accept Tony’s evidence, in cross-examination by counsel for Charlie and Simon, at T127.28 – T137.38, and at T138.35 – T138.40:

Yet, this does not mean that what Michael said about this topic was intentionally false. I tend to the view that Michael had probably been told about being adopted by persons within the family, other than by the deceased directly, and that it was when he was in his late 20s, that she, for the first time, expressly confirmed to him what he had been told by others. I also accept that this came as a shock to him, bearing in mind the deceased’s earlier denials that he was adopted.

There is some evidence supporting this view provided by Ms Arthur, to whose evidence I have earlier referred. In addition to the statement made by the deceased earlier referred to, she stated that the deceased had said to her:

I also note, so far as is disclosed in the exhibits, that the first criminal conduct involving Michael and his parents, occurred in 1998, when he was in his late 20s. Junior counsel for Michael, in his submissions in reply, drew attention to, what he submitted was, the temporal link between the time when the deceased confirmed that Michael was adopted and when his anger manifest towards her and Wahib, as revealed in the exhibits to which reference has been made.

There was, however, no expert evidence that showed any causal link between when the deceased confirmed that Michael was adopted and the manifestation of his anger towards her and Wahib. Indeed, there is medical evidence which reveals what is likely to have been the real basis of Michael’s conduct.

It is also necessary, as part of the evidence given of the relationship, to refer to Michael’s evidence of his contribution to the conservation and improvement of the estate, and to the welfare of the deceased, about which he was not cross-examined.

Michael said that he helped his parents by cleaning the house, washing clothes, and buying them groceries. He also assisted them, because of their limited understanding of English, to complete school forms, Medicare application forms, and private health fund applications. He translated news, school documents, letters and TV shows. He says that he would take the deceased to doctor’s appointments and to church.

He says that he made some contribution to the welfare of both his parents. In this regard, he specifically mentions having given up a job, as a sales assistant, in 1989, at the request of the deceased, and having returned from Queensland in 1994, because the deceased told him she needed to have an operation. He also gives evidence that when Wahib was diagnosed with dementia, he helped him and the deceased by taking Wahib to doctor’s appointments and translated conversations with the doctor, and hospital staff, as well as buying his medication, changing his nappies and performing other domestic duties.

Tony denies having observed Michael providing any assistance to either of his parents. On this aspect, I tend to the view that each is giving evidence of different times, Michael speaking of the time before his late teens and, perhaps, when he was not affected by drugs or alcohol, and Tony speaking about other times.

Charbel refers to a conversation with the deceased in which she said that Michael, “when he is being a good boy”, helped her look after Wahib, but that at other times, he would not be around and then did not help. Similar evidence is given by Simon.

I should also mention something about Michael’s schooling and his work history.

Between 1976 and 1982, he attended St Francis Xavier Primary School in Wollongong and then between 1983 and 1986, in Years 7 to 9, he attended Edmund Rice College in Wollongong, each of which, I infer, is a private school. He then attended Wollongong High School where he completed Year 10. He obtained his School Certificate.

Thereafter, Michael enrolled in a number of TAFE courses, which he says he did not complete by reason of his lack of interest. There is evidence (Ex. MGH1), that in July 1995, he attained a Statement of Attainment certified by the Australian Hospitality Review Panel; that in 1996, he received a Certificate of Participation from the Tourism Training Centre; in January 1998, he received a Statement of Attainment in the Responsible Service of Alcohol Program, in April 2001; in 2003, he received a Certificate in entertainment from Wollongong City Employment Training Inc.; in 2003, he attended Hunter Institute TAFE and received a certificate regarding OH & S Induction for Construction Work; in 2005, he received a Statement of Attainment being Certificate II in retail operations; in 2005, he received a Statement of Attainment in Responsible Conduct of Gambling from TAFE as well as a Statement of Attainment in Senior First Aid; in 2006, he received a Statement of Attainment in 3650HA Word Processing Operations; in 2006, he received a Statement of Attainment in operating a Forklift. These matters demonstrate that he is not without ability.

He also had various jobs, including as a sales assistant (in 1989) and as a kitchen hand/bartender (in 1993) in Queensland, as a bartender (in 1995 to 1997), in a nightclub (in 1998), as a waiter (in 2000) and then as a labourer (between 2001 and 2007).

I have earlier referred to the 2004 Will.

Tony gave evidence, upon which he was not cross-examined, about a conversation that he had with the deceased following the death of Tony’s father, John, in 2004:

Shortly before she made the 2011 Will, she had another conversation with Tony:

In response to some evidence from Simon, Tony gave evidence of another conversation with the deceased:

Charlie gave evidence of a conversation with the deceased in which she said to him:

Each of these conversations demonstrate the thought and the logic behind the 2011 Will and the due consideration that she gave to the persons, she believed, who had a claim on her bounty.

Michael’s current mental condition is addressed in Ex. MGH2 to which reference has earlier been made. In summary, Dr Nielssen concluded:

He added that:

Senior counsel for Michael, on the second day of the hearing, tendered a number of, but not all, documents that had been copied from documents produced on subpoena: Ex. MGH4.

I was not taken, in detail, to any parts of the documents by senior counsel. However, I highlight some of the matters which were revealed by an inspection of the documents in the Exhibit:

Senior counsel for Tony noted that “The antecedents do not record any instance in which the Plaintiff was dealt with under the provisions of s.32 of the Mental Health (Forensic Provisions) Act 1990”. That section is engaged, relevantly for present purposes, if it appears to the Court that the defendant is “suffering from mental illness ... but is not a mentally ill person”: s 32(1)(a)(ii). It was referred to in the letter from Preece Lin Lawyers but there is no evidence that the Magistrate who dealt with the matter concluded that “it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law”: s 32(1)(b).

Whilst his mental state, at times, may have affected his conduct towards the deceased, it does not explain, entirely, Michael’s treatment of her, particularly in the last years of her life, especially when one considers that he accepted he had received her love and support throughout his life.

I do not accept the direct correlation, which seems to be asserted, between it being confirmed by the deceased that Michael was adopted and his conduct towards the deceased. I set out the passage in Dr Nielssen’s report relating to “The effect of adoption on Mr Hinderry and his relationship with his family”.

(I should mention that Dr Nielssen was not provided with the complete record of the Plaintiff's mental health or criminal justice material.)

Michael currently lives in a boarding house. He is unemployed. He does not have any significant property. He owns a guitar purchased for $190 and an amplifier purchased for $180. He owns some clothing, 2 lounges, a dining set and kitchenware that were previously owned by his parents and are currently in storage at his parents’ home. He has debts of about $1,433 (and he says a debt to St George Bank of $5,000 in 1996, “but I have no letters or statements about this”).

Michael’s monthly income is $2,800, which is made up of a monthly Centrelink disability support pension (approximately $1,400) and an interim provision from the estate ($1,400).

Michael wrote, in his first affidavit, without disclosure of those expenses, that his “monthly expenditure equals my monthly income”. However, in his affidavit of 5 April 2016, he wrote that his expenditure “at the moment” totals $1,730 per month.

Whilst there was no dispute about Michael’s current financial resources, senior counsel for Tony submitted:

There is no suggestion that Michael is currently cohabiting with any person whose financial circumstances are relevant.

He is aged 45 years. Whilst his age would not, necessarily, reflect his limited earning capacity, it is likely that his medical condition will. He accepts that he has never made any money out of following a musical career, ever recorded any music, or made any money recording and selling recordings. He said, however, that he wants to work in retail and work towards a managerial position.

Michael admitted that he is “not confident in looking after a lot of money and assets” and that he “would like to have assistance in managing my finances. I would like a financial advisor and an accountant”.

He also stated that he “does not want to be associated with Tony… any longer and I do not want him to be my trustee”. He said that he would prefer to live in his own house and that it does not matter where it is: T27.35 – T27.46.

There was also evidence from Michael that he had lived in Wollongong and its environs over many years.

As stated, Joseph filed an affidavit setting out his financial and material circumstances. He stated he was currently unemployed and that he had last worked in about 10 to 14 years ago; that he is dependent upon a NewStart Allowance of $250 per week; that he does not own any property other than a second hand Falcon ($5,000); that he has savings of about $2,000; that he has no debts; and that he lives with his mother, in Unit 1 Gladstone Avenue, paying board of $70 per week to her.

Joseph also gave evidence of his relationship with the deceased, describing it in positive terms. He described the assistance that he provided to her and, at times, to Wahib.

He also described the complaints made to him, by the deceased, about Michael’s conduct. He, too, gave evidence of Michael assaulting Wahib and John. He stated that he called the police because of Michael’s conduct towards his parents “on 5-6 occasions”. He also stated that the deceased said that she was scared of Michael, that he was abusive, that he assaulted her and that he regularly asked her for money.

There is no reason to not accept Joseph’s evidence. He was not cross-examined and his evidence is consistent with other evidence, which I accept, that was read or that was cross-examined upon.

Other evidence (from Tony) confirms that Joseph lives with his mother, Wahad, and that he is “basically her personal carer”. He had lived in Unit 1 Gladstone Avenue, with her since about 1977.

To the extent that it is relevant, Tony knew that Wahad had made a Will but was unable to state its contents other than to say that he is an executor. Accordingly, what provision is made for Joseph in that Will, is not known.

There was really no issue about the principles that apply. I have dealt with them in many cases and I set out what follows for the benefit of the parties.

Under s 59 and s 60 of the Act, the task of the Court, in this case is:

The mandatory legislative imperative that drives the ultimate result is only the Court’s satisfaction of the inadequacy of provision. 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”.

In other words, it is the union of inadequacy of provision, relevantly to this case, made by the Will of the deceased, and the Court’s determination that an order for provision out of the estate of the deceased ought to be made, that gives rise to an applicant’s success.

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

Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).

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

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

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

“Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, 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”.

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

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

In Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114], White J noted:

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

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

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

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:

Their Lordships went on to state, at 478:

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

In Goodman v Windeyer, Gibbs J wrote, at 502:

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

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

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

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

Whether an applicant has a “need” or “needs” is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but 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. The concept involves economic considerations.

In Collins v McGain [2003] NSWCA 190, at [42] and [47], Tobias JA, with whom Beazley and Hodgson JJA agreed, said:

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

“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]:

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

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

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 v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 1 at 6-11 (Bryson J); Collicoat v McMillan at 816 [38], 820 [47] (Ormiston J).

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

In the event that the Court is satisfied that the power to make an order is enlivened, 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.

This part of the determination 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 this 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.

Section 60 of the Act, at least in part, is new. It provides:

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. The inclusion of the last sub-section extends to any fact or circumstance which, in the opinion of the court, is considered relevant. Like some of the other sub-sections, a matter to which regard may be had, may have occurred before, or after, the death of the deceased.

The sub-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. As stated earlier, 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.

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

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

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

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

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).

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).

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. The section, whilst providing a general power as to costs, does not apply to costs as between party and party, as opposed to costs to be paid out of the estate: Chapple v Wilcox [2014] NSWCA 392 at [25]-[26].

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst some 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 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.

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].

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:

Of the freedom, in Grey v Harrison, Callaway JA said, at 366:

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

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

As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]:

White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]:

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

As Allsop P said in Andrew v Andrew, at [16]:

How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James [2014] NSWCA 4 at [113]:

Thus, “there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment”: Williams v Aucutt [2000] 2 NZLR 479 at [44]. As Emmett JA wrote in Burke v Burke [2015] NSWCA 195 at [124]:

In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added:

Barrett JA, at [64], wrote:

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

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

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].

What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46], by Kelly J should also be remembered:

In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse “strongly suggests that the Court cannot consider the adequacy (or inadequacy) and propriety of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

In relation to Michael’s claim, being a claim by an adult child, the following principles are useful to remember:

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); at [65]-[67] (Barrett JA), and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62].

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.

It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]:

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

Michael currently receives, and it appears, has received for some years when not incarcerated, a disability support pension. No submissions were made by senior counsel for the Plaintiff on the relevance of Michael receiving the pension and what effect, if any, that would have on the Court’s determination.

(During submissions, junior counsel for Michael handed up, without objection, as an aide memoire, a document which outlined how that pension might be affected by an order for additional provision. It appears from this document that the value of any real estate, apart from the pensioner’s principal home, is included in the assets test; that the asset test limit for a single person with a home, is $202,000; and that for a single homeowner, the total amount of assets must be less than $788,250. Based upon these estimates, it is possible that Michael’s pension may be reduced but not extinguished: T 176.)

Regrettably, there was no evidence by the Plaintiff on this topic.

I dealt with the matter of a plaintiff’s entitlement to a pension, in Kohari v Snow at [124] – [127]:

I referred to the principles again in Baird v Harris [2015] NSWSC 803 at [161], noting at [162], that they had also been followed by Robb J in Pang v Fong [2014] NSWSC 1425 at [150].

In this case, there are distinct advantages in Michael retaining the disability pension, including access to medical services at a subsidised cost.

In Hampson v Hampson at [95], Campbell JA also noted that “[h]aving engaged in illegal conduct is not a bar to a claim under the Act”. In that case, the Plaintiff had been found to have a history of using and cultivating marijuana.

However, his Honour went on to say:

In West v France [2010] NSWSC 845 at 84, I said:

In Green v Perpetual Trustee Co Ltd (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unrep), an order was made in favour of a Plaintiff who was a heroin user. The order was one that involved a protective trust to make sure that the plaintiff was benefited, yet did not spend his money on heroin. In McLean v Public Trustee [2001] NSWSC 970, a claim was made by a daughter with a gambling problem. An order was made for a legacy upon conditions as to its use. In Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804, an order was made in favour of a grandson who had a chronic history of drug and alcohol abuse and a gambling problem.

In Wheatley v Wheatley [2006] NSWCA 262 at [21], Bryson JA wrote:

I shall not set out all of the submissions made on behalf of each of the parties. Those submissions, in writing and on the Transcript, will, of course remain in the Court papers.

Ultimately, the submission made on behalf of the Plaintiff, in summary, amounts to the following propositions: that he is an adult child of the deceased; that he has established a need for provision because of his limited financial means; that those for whom the deceased provided do not have a need; and that what was provided for him in the 2011 Will should be augmented by a capital sum for exigencies of life ($150,000). In my view, those matters are not enough to justify interference with the terms of the 2011 Will.

I think there is far more merit in the submission made by senior counsel for Tony, which was that, leaving aside any question of conduct, making provision for Michael where he is able to be secure in accommodation, where he has either another property which will provide an income, and be available as a capital fund if it is sold, and if it is sold, which would provide additional income in any event by way of interest, is adequate and proper provision. And that when one superimposes Michael’s conduct, it is amply demonstrated that the provision is not only adequate, but also proper.

There is also merit in the submission that there was no coherent attempt to link causally Michael’s conduct with any medical condition from which he suffered. Certainly, the report of Dr Niellsen to which I have referred does not suggest such a link.

The submissions of counsel for the second and third Defendant were difficult to understand but seemed to be that the Court looks at whether the provision made for Michael “through the eyes of the deceased” and that the Court should “consider the relevance of his conduct not from the objective point of view of those of us that may be standing here, but through the point of view of the testator”.

As there is no dispute about eligibility and that the Summons was filed within the time prescribed by the Act, when the Court is considering the application, I must consider whether the provision that the deceased made for Michael is adequate provision for his proper maintenance, education or advancement in life. That involves not only an evaluation that takes the Court to the provision actually made in the deceased's Will on the one hand, and to the requirement for maintenance and advancement in life of the applicant on the other, but also to the totality of his relationship with the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased.

As the passage in the judgment of Callinan and Heydon JJ in Vigolo v Bostin, which I have quoted emphasises, 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 financial circumstances of the applicant. The whole of the context must be examined.

Even though the 2011 Will was made a few years before the death of the deceased, there is no reason to suggest that the deceased’s testamentary intentions changed in those two years.

This is not a case where the deceased made no, or nominal, provision for Michael in her Will. She made substantial provision for him, being about 44 per cent of the distributable value of the estate (before costs) at the date of hearing. In describing the provision in this way, I have not forgotten that Michael was the deceased’s only child, that there are no other eligible persons, and that the only beneficiary who has disclosed his financial and material circumstances, is Joseph. Whilst it is correct to say that he does not have an immediate need for accommodation, since he lives with Wahab, he has no property, of any significant value, of his own (at this time).

In any event, Michael must establish his claim upon its own merits. The competing claims of the three beneficiaries cannot have the effect of enhancing his claim. As stated, the Act provides that the Court cannot disregard each as a beneficiary and as a chosen object of the deceased’s testamentary bounty.

I must also remember Michael’s conduct towards the deceased, taking into account any medical condition from which he suffered and the strong sense of grievance that he held towards the deceased regarding her not telling him of his adoption. His conduct, whilst not disentitling him to provision, as the deceased, herself, recognised, certainly permitted her to form the view that it restrained its amplitude. She had, on occasions, perceived his conduct as conveying a real threat to her wellbeing and that it was sufficiently serious to seek apprehended violence orders. This type of conduct is not condoned by society, and cannot be condoned by the Court.

His other criminal conduct, even if not directly affecting the deceased, created what might be regarded as "normal disappointment and anguish of a mother at her son's wrongdoing” (Re Smith (Deceased) (1991) 8 FRNZ 459 at 463), or, as it was described in the 2011 Will, “angst”.

Furthermore, Michael’s denials in the proceedings that he had behaved badly towards the deceased, and his repeated assertions, both before and after her death, about her instability, when there is no other evidence to support such assertions, do him no credit.

I should not proceed upon the assumption that “the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in [her] will 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, at 19. I am satisfied that the deceased gave careful, and thoughtful, consideration to the provision that Michael required, principally being a need for secure accommodation, and a capital amount that would provide an additional income. Without this proceeding having been commenced, those “needs” could have been satisfied by the provision made in the 2011 Will.

Subject to any costs order (about which I shall say nothing more at this time), since Michael is entitled to receive the two units absolutely, there are several alternatives that, with appropriate advice, will be available to him in relation to the future. Objectively, one such alternative would provide security of accommodation (one of the units in which he may return to live) and a capital sum (the value of the unit in which he does not live) that will provide an income to supplement his disability pension, which, on current information, would not be, or would not substantially be, reduced. His “needs”, when one takes into account these matters, diminish significantly.

Accordingly, Michael fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of his claim for a family provision order.

However, even if I were wrong in coming to that conclusion, I would not exercise my discretion to make an order in his, favour. Whatever was meant by Clause 11 of the deceased’s Will, the objective facts stated in that Clause could not be seriously in dispute. Accordingly, the family relationship between Michael and the deceased is a key factor in the assessment of his claim (s 60(2)(a) of the Act), as are the obligations or responsibilities owed by her to him: s 60(2)(b). I have dealt with each of these particular matters in some detail earlier.

Whilst there may have been occasions when Michael provided some assistance to her, that assistance seems to have been intermittent, at best, once he reached adulthood. His negative conduct towards the deceased far outweighed his positive conduct towards her. Even if this conduct may be attributed to a substance disorder, that cannot be a justification of, let alone an excuse for, such conduct, which conduct consists of actual wrongdoing, involving both verbal and physical assaults, upon the deceased. The violence and anti-social behaviour spanned many years and the last event was not long before the deceased’s death and after the 2011 Will was made.

This is not to say that an order should be withheld as punishment for bad conduct by the applicant towards the deceased. However, the conduct is relevant to whether an order for even greater provision than that made in the 2011 Will “ought” to be made. There is little room for the view that community standards and community expectations would require the making of additional provision for Michael out of the estate of the deceased.

Although there is evidence from Michael, that he had heard his parents say to him that he would inherit their entire estate, it is clear that over time, the view of the deceased changed. Her clearly stated intention, held from the time of the execution of the 2004 Will, was to benefit not only Michael, but also others who she specifically identified and who she regarded as legitimate claimants on her bounty. Her testamentary intentions and the freedom of testation cannot, and should not, be forgotten.

As stated, the deceased did consider her duty, as a parent towards her only child, to provide for his needs on her death, and by making the provision that she did, she did not allow the disharmony and disappointment that existed to blind her to the recognition of the continuation of that duty.

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

I also note the provision made for Michael during the lifetime of the deceased. I have referred to his schooling. He, himself, gives evidence of his parents having bought him two cars by the age of 20. He admits that he would sometimes ask the deceased for money for petrol, food, clothes, and to pay for recreational activities, like movies, nightclubs and outings with friends. He does not suggest that she did not assist him financially when he asked.

I have tested my conclusions another way. Had no provision at all been made for Michael in the 2011 Will, bearing in mind all of the circumstances of the case, would he have been likely to receive provision out of the estate greater than that in the 2011 Will? In my view, the answer to this question is in the negative.

In all the circumstances, the Summons should be dismissed.

At this time, it is not possible to anticipate the economic consequences for the parties of the Probate proceeding and the family provision proceeding, other than to note that the quantum of the estate will be diminished as a result of the cost order made in the Probate proceeding and the quantum of the entitlement of one, or more, of the beneficiaries is likely to also be reduced whatever costs order is made.

In view of the request of all parties that the question of costs of the family provision proceedings be determined following these reasons being published, I order that any argument as to costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.