Meres v Meres

1. [1]

   HIS HONOUR: This is litigation between twin brothers in relation to the estate of their mother, Olga Gene Meres (“the deceased”), who died on 7 July 2015. The Plaintiff, Lennie Meres, seeks additional provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. The Plaintiff also seeks an order that his costs of the proceedings be paid.

2. [2]

   On 5 November 2015, this Court granted Probate of the deceased’s Will, made on 23 December 2014, to the Plaintiff. On 1 November 2016, an order was made, by agreement of the parties, that Rodney Stanley Meres, the Defendant, be appointed to conduct the proceedings on behalf of the estate, he being the only other beneficiary named in the deceased’s Will. This order was clearly appropriate since it is his interest in the estate of the deceased that will have to bear the burden of additional provision, if any, made for the Plaintiff. The Defendant has resisted the Plaintiff’s claim submitting that it should be dismissed with costs.

3. [3]

   At the commencement of the hearing, the parties agreed that there was no property that could be designated as notional estate. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. There is also no scope for the operation of the intestacy rules with the consequence that it is only necessary to refer to the Will of the deceased.

4. [4]

   The Plaintiff commenced these proceedings by Summons filed on 5 July 2016. He filed an amended Summons (correcting the spelling of the deceased’s name) on 2 February 2017. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

5. [5]

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

6. [6]

   (The Plaintiff is also said to be a person “who was, at any particular time, wholly, or partly, dependent on the deceased person, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member": s 57(1)(e) of the Act. It is unnecessary for the Plaintiff to rely upon this category of eligibility and it may be ignored so far as it is relied upon to establish the eligibility of the Plaintiff.)

Background Facts

1. [7]

   In a claim for a family provision order, factual context is necessary. It is convenient to begin with a statement of background facts, since these provide part of that context. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

2. [8]

   The deceased was born in April 1924 and died in July 2015 aged 91 years. She married Ronald Stanley Meres, but he died on 13 December 2015. The deceased and the parties’ father separated, and lived apart, from about 2004.

3. [9]

   In 2004, the deceased and the parties’ father each executed a new Will. Each also appointed the Plaintiff to be her, and his, Attorney and Guardian, respectively. They also reached agreement on the division of the matrimonial properties, with the deceased retaining sole ownership of the former matrimonial home, at Bestic Street, Rockdale (“the Rockdale property”) and the parties’ father assuming residence, and sole ownership, of a property at Banyandah Street, Durras Lake (“the Durras Lake property”).

4. [10]

   There were only two children of the deceased’s marriage, being the parties in these proceedings. They were born in February 1951 and, each, currently, is 66 years of age.

5. [11]

   By his Will, the parties’ father left the whole of his estate to the Plaintiff. The evidence revealed that his estate has been fully administered, the debts, funeral and testamentary expenses paid, the Durras Lake property has been sold, the Plaintiff has received the net proceeds of sale and that the other property of the estate has been distributed to him also.

6. [12]

   By her Will, the deceased appointed the Plaintiff as the sole executor and trustee of her Will. She gave him a legacy of $20,000 and then devised the rest and residue, after payment of debts funeral and testamentary expenses, as to the Rockdale property, to the Plaintiff and the Defendant as tenants in common in equal shares, and as to the balance of the estate, to the Plaintiff absolutely.

7. [13]

   In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased’s estate at the date of death, was disclosed as having an estimated, or known, value of $1,140,161. The estate was said to consist of the Rockdale property ($1,125,000), cash in bank accounts ($9,016) and shares in different public companies ($6,144). (I have omitted, and shall continue to omit, a reference to cents. This will explain any apparent mathematical miscalculations.)

8. [14]

   Part of the deceased’s estate has already been spent. The Plaintiff has paid $17,701, made up of the funeral expenses ($9,234) and some legal and administration costs ($8,467) (but not the costs of the proceedings).

9. [15]

   Following the lodgement of a Transmission Application dated 13 November 2015, the Plaintiff became the registered proprietor of the Rockdale property as executor of the Will of the deceased.

10. [16]

    At the date of hearing, the gross value of the deceased’s estate was $1,201,917, and it consisted of the Rockdale property ($1,200,000) and cash in bank accounts ($1,917). It is a reasonably sized estate in value. Without any deductions at all, for costs and disbursements of the proceedings, and the costs and disbursements of sale of the Rockdale property, the share of each of the parties would be $600,958.

11. [17]

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

12. [18]

    As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

13. [19]

    However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

14. [20]

    At the hearing, the Plaintiff’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $47,000, inclusive of GST. The Defendant’s costs and disbursements, calculated on the indemnity basis, of the proceedings, were estimated to be $71,500, inclusive of GST. (The Plaintiff complains about the quantum of the Defendant’s costs bearing in mind that the matter was relatively straightforward and because it was heard and determined in one day.)

15. [21]

    Counsel did not accept that, in the event the Plaintiff is successful to any extent, an order should be made that his costs, calculated on the ordinary basis, should be paid out of the deceased’s estate. Nor did they agree that the Defendant’s costs, calculated on the indemnity basis, should be paid out of the estate. The Court was informed that a document might be relevant on the issue of costs: T53.07 – T53.12. I shall, therefore, not determine how the burden of costs should be borne until after these reasons are published and any docuemtns are tendered and considered.

16. [22]

    (I should mention that on 1 November 2016, the parties participated in a judicial settlement conference. Regrettably, the matter did not resolve, and on 20 December 2016, the matter was listed for hearing. At the judicial settlement conference, the then costs of the parties were estimated to be, in total, $40,000. Thereafter, almost $80,000, in total, has been incurred in costs.)

17. [23]

    Using the estimates of costs and disbursements provided, and taking into account the possibility that the costs might be ordered to be paid out of the deceased’s estate, an amount of $118,500 would be payable. (This is not to say that the quantum of costs has been agreed. That will be for the parties to consider.)

18. [24]

    In the event that it becomes necessary to sell the Rockdale property, the parties agreed that the estimated costs and expenses of sale would be $25,850.

19. [25]

    The Rockdale property is described by the Plaintiff as “a two bedroom bungalow with a large yard” at the back of which is a greenhouse of approximately 6 metres by 3 metres. A number of expensive, and other, plants are housed in the greenhouse. The Plaintiff is a keen gardener and he has spent time, over many years, maintaining the garden and the plants at the Rockdale property.

20. [26]

    The Rockdale property was also described by the Plaintiff as a “fixer-upper”. He then added, at T26:

21. [27]

    Counsel for the Plaintiff submitted that it may not be necessary for the Rockdale property to be sold, as the Plaintiff would meet any costs order made in favour of the Defendant. This makes clear that the Plaintiff’s case is that he should receive, effectively, by way of provision, the whole of the deceased’s estate. However, the way the Plaintiff’s claim was fashioned, ultimately, was that he should receive the interest in the Rockdale property passing to the Defendant under the deceased’s Will, upon condition that he paid an amount of money to the Defendant. It will be necessary to return to the evidence of the Plaintiff on this aspect later in these reasons.

22. [28]

    The estimated net value of the deceased’s distributable estate available, after the identified costs and disbursements of the proceedings and the costs and expenses of sale of the Rockdale property, are deducted, would be about $1,057,567. It follows, on the basis of the calculations made, that the entitlement of each of the parties would be about $528,783. If the Rockdale property were sold, but the costs were not deducted from the estate, the entitlement of each party would be to about $588,000. If the Rockdale property is not sold, but the identified costs and disbursements of the proceedings were to be paid out of the estate, the value of each party’s interest under the Will of the deceased would be about $541,708.

23. [29]

    The parties also agreed that there are no other eligible persons within the meaning of that term in s 57(1) of the Act.

24. [30]

    The Defendant has not made an application for an order under the Act. Nor does he raise his financial circumstances in the proceedings.

25. [31]

    The parties also seemed to accept, in the event the Plaintiff is successful but does not receive the whole of the estate, that the Court should make an order that he receive a specific lump sum, to be paid out of the share of the proceeds of sale of the Rockdale property passing to the Defendant, rather than a lump sum calculated as a percentage of the net proceeds of sale in lieu of the provision made for him in the Will. The Court raised the latter possibility, but as the parties appear to be prepared to have the Court base any order for provision being by way of a lump sum, based upon the agreed estimated, rather than an actual, value of the Rockdale property, I would not, necessarily, make the type of order that I have made in other cases: see, for example, Thompson v Sgro [2016] NSWSC 1869.

The Relationship of the Plaintiff with the deceased

1. [32]

   The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”. (Although the reference to conduct does not expressly refer to the conduct of the deceased and of the beneficiaries, it must be a relevant factor in assessing the relationship of the deceased and any other person”: Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, per Basten JA, at [25]).

2. [33]

   The Plaintiff deposed to a loving and caring relationship with both the deceased and the parties’ father that had existed since his childhood. Following the deterioration in the health of both the deceased and the parties’ father, the Plaintiff also asserted, and I accept, that he assumed a significant degree of caregiving responsibilities for each of them as well.

3. [34]

   In 1980, the Plaintiff was sentenced to 5.5 years jail (with a non-parole period of 2 years and 9 months) for trying to import 10 kilograms of cannabis into Australia. His parents provided the security of their home to secure the Plaintiff’s bail and they visited him whilst he was incarcerated.

4. [35]

   It is likely that the Plaintiff’s criminal conduct, even if not directly affecting the deceased, created what might be regarded as the "normal disappointment and anguish of a mother at her son's wrongdoing” (Re Smith (Deceased) (1991) 8 FRNZ 459 at 463). However, this did not prevent her making provision for him in her last Will or in earlier testamentary instruments.

5. [36]

   After being released from jail, the Plaintiff did not live with the deceased until about 1989 or 1990. From then, he lived with them, and then with the deceased alone, at the Rockdale property.

6. [37]

   After the deceased suffered a stroke in 1994-5, her vision, which was already compromised by macular degeneration, deteriorated further. The Plaintiff says that this resulted in her increased reliance upon him. As a result of the combined health problems of the deceased and the parties’ father (who had also suffered a stroke in 1991), the Plaintiff states that “for the next 20 years I continued looking after my parents and did the vast majority of the house work and cleaning and the like”.

7. [38]

   I accept his evidence in this regard as there was no substantial challenge to it. It demonstrates that the Plaintiff is a child of the deceased who had remained exceptionally close to her, and who had supported and nurtured her in her old age. However, the Plaintiff accepts that, at least in part, he “was living off my parents’ various pensions but I was working hard for the money”. In 2014, the Plaintiff began receiving a carer’s allowance.

8. [39]

   Although separated, the deceased and the parties’ father maintained an amicable relationship and remained in close contact. When a fall in 2014 meant that the parties’ father was placed in a nursing home in Sydney, the Plaintiff took the deceased every week to the nursing home to visit.

9. [40]

   The deceased wrote a letter, dated 8 March 2004, in which she referred to an incident when the Defendant used offensive language towards her and the Defendant’s maternal grandmother. The letter ended with the statement “I do not want Rodney to get a penny from my estate”.

10. [41]

    Similarly, in a prior Will made on 3 July 2013, the deceased wrote:

11. [42]

    In that Will, the Plaintiff received the Rockdale property in remainder following the death of the parties’ father who had received it “for life or until remarriage or until he permanently vacates the home whichever event first occurs”.

12. [43]

    However, after the deceased became seriously unwell and was hospitalised in late December 2014, her stance towards the Defendant softened. The Plaintiff asserts that it was as a result of medical advice that the deceased was not expected to survive more than 6 weeks that the she changed her Will to provide for the Defendant.

13. [44]

    (The reasons for the change are not very important since it is not asserted that the Defendant had anything to do with the deceased changing the Will.)

14. [45]

    As her health care needs increased, the deceased was admitted to a nursing home in June 2015. Following this, the Plaintiff visited the deceased every day, often bringing the parties’ father to visit the deceased as well.

15. [46]

    There was really no dispute that the Plaintiff was a loving, caring and dutiful son to the deceased.

The Relationship between the Defendant and the deceased

1. [47]

   Whilst the Plaintiff described his and the Defendant’s relationship with their parents as “close” when they were young, he asserted that by his mid-30’s, his “parent’s relationship with my brother had totally fallen apart”. He attributes the initial breakdown of their relationship to his parents’ disapproval of the Defendant’s relationship, at that time, with a woman who had two children by a previous marriage.

2. [48]

   The Defendant’s view of his relationship with his parents was that “it was strained…and my childhood and teenage years were not happy.”

3. [49]

   The Plaintiff also suggested that the estrangement between the Defendant and the deceased, at least in part, was due to the threat of physical violence from the Defendant towards the deceased. The Plaintiff asserted that the deceased told him that the Defendant had “threatened to kill me with a shotgun”, and that the deceased, therefore, took out an apprehended violence order and that as a result, “from that that time on there was no contact [between the Defendant and the deceased] at all for many, many years”.

4. [50]

   The Plaintiff contended that the Defendant was estranged from the deceased, from their father, and from the Plaintiff himself, for over 20 years prior to the death of the deceased, stating that “I have had no contact with my brother, nor have my parents, to my knowledge, since my father had his major stroke in 1991. On that occasion he showed up for an hour and visited. He has not to my knowledge visited my mother or father since that time”. This was really not disputed by the Defendant.

5. [51]

   A copy of a letter, dated 8 March 2004, in the handwriting of the parties’ father, stated that “My second son Rodney Stanly (sic) Meres is to receive no benefits from my will”. The letter goes on to explain that this decision was based on behaviour by the Defendant which the parties’ father felt indicated a lack of respect for the deceased which led to the Defendant being asked to move out of the family home.

6. [52]

   The Plaintiff also deposed that the Defendant did not attend the funeral of either the deceased or the parties’ father. The Plaintiff contends he had a conversation with the Defendant on 18 June 2016 where the Defendant said words to the effect “I had no intention of showing up to mum’s funeral but I was thinking of showing up for dad’s but when I found out that he left me nothing in the Will I was glad that I didn’t.”

7. [53]

   Although in his affidavit sworn 22 November 2016, the Defendant admitted to the deterioration of his relationship with the deceased and his father as a consequence of their disapproval over his then relationship, he denied ever having made the threats referred to by the Plaintiff. Although he denied that there was ever an apprehended violence order in place, the Defendant did, nonetheless, admit that there had been a court order, at the time, in place, that prevented him from “going anywhere near [the Rockdale property] or having any further dealings with [his] parents”.

8. [54]

   Although the Defendant confirmed he had spoken to the Plaintiff on the 18 June 2016, he denied the contents of the conversation as stated by the Plaintiff. He asserted that he did not become aware of the death of the deceased until he read the death notices in the local newspapers about a week after the funeral had taken place. Nothing significant turns on the disputed evidence.

9. [55]

   Far more important is the fact that there is no evidence that indicates that the Defendant took any steps to remedy any estrangement that existed between himself and the deceased (or the parties’ father) that had existed for so many years. As to the reasons for the estrangement itself, the Defendant stated that “I had a strained relationship with my parents and that my childhood and teenage years were not happy”. It is clear, from all of the evidence, that the Defendant had made his life entirely separately from the deceased for many years before her death.

10. [56]

    Having gone into the relationship in some detail, and even though the relationship of the Defendant and the deceased was not a close one, it cannot be forgotten that he is a chosen object of the deceased’s testamentary bounty. The deceased decided, by making the Will that she did, that she had a remaining obligation to make provision for her independent adult son despite their relationship. It follows that the Defendant does not have to explain or justify the provision made for him, or prove that he deserved the provision that the deceased chose to make for him.

11. [57]

    The Court, in determining an application for a family provision order, may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application: s 61 of the Act.

12. [58]

    Finally, I should mention that the Defendant was not cross-examined.

Plaintiff’s Financial and Material Circumstances

1. [59]

   As stated, the Plaintiff is 66 years of age, and is a single man with no dependents. He is unemployed, having not been in full-time employment for over 20 years. I am satisfied that he does not have an earning capacity.

2. [60]

   The Plaintiff has lived in the Rockdale area for most of his life. He gave unchallenged evidence that all of his friends and associates live in the area or in the St George municipality; his stepdaughter is close by in Marrickville; his medical general practitioner is in Arncliffe; his treating oncologist is at Hurstville; he does his shopping at Rockdale Plaza; and his solicitors are at Rockdale or Kogarah. He feels comfortable in the area and is able to get around the area readily. He frequents the local beaches and clubs.

3. [61]

   The Plaintiff emphasised the importance of his connection with the garden at the Rockdale property, to which garden he has tended for over 20 years. In cross-examination, however, he gave the following evidence, at T30.36 - T31.05:

4. [62]

   There was some criticism made of the Plaintiff for not having referred to his desire to remain living in the Rockdale property in his first affidavit, but rather that he would like “a nest egg of $400,000”. The Plaintiff said it was an oversight and that his “wish from day one, as I have just said, is that I could stay in that property. It is my fervent wish”.

5. [63]

   As at 21 February 2017, the Plaintiff had cash in bank, being the proceeds of sale of the Durras Lake property ($351,564); other money from his father’s estate ($6,881) and a 1968 Porsche 911 Coupe ($20,000). (The parties’ father had certain IAG shares, but they were sold and the proceeds of sale were banked are included in the money: T37.10-T37.13.)

6. [64]

   The Plaintiff did not disclose any liabilities, but, of course, he will have some, including perhaps, some costs of these proceedings.

7. [65]

   At the hearing, the Plaintiff stated that he received income only by way of the aged pension of about $877 per fortnight, and that his expenditure was about $816 per fortnight, leaving a surplus of about $61 per fortnight: T33.20 – T33.27.

8. [66]

   The Plaintiff was cross-examined about the lack of documents produced by him in answer to a Notice to Produce: Ex. 2. The cross-examination, principally, seemed to relate to documents surrounding his ownership of the 1968 Porsche 911 Coupe. Whilst it was suggested to him in cross-examination that the car had a greater value than the Plaintiff had attributed to it, really nothing much turns on this. The car was described by the Plaintiff as in the course of restoration and as “an unfinished project”. It was not suggested that the Plaintiff, otherwise, had not disclosed his current financial circumstances.

9. [67]

   The Plaintiff gave evidence of suffering from a number of health complaints: back and neck pain and restriction of movement relating to a snow skiing accident in 1989 and two car accidents (in 2014 and June 2015); diagnosis of cancer of the tongue in November 2015; a history of coronary problems (heart attacks in 2000 and 2006); and a more recent diagnosis of diverticulitis.

10. [68]

    At the hearing, the Plaintiff acknowledged that in relation to a car accident in which he was involved in June 2015, he had started proceedings for damages for personal injury. He stated that he believed that “an application to the Medical Assessment Service of the State Regulatory Authority will be made sometime later this year”.

11. [69]

    However, the Plaintiff said that he had not been given advice on the precise quantum of damages he could expect to receive if successful in his claim, although he had “discussed with [his] lawyers who represent you in those proceedings the range of likely outcomes” and that he had been told that he might win the case. He was unsure of the likely amount of compensation because although he had seen the doctors for the insurance company and his solicitors had referred him to medicolegal specialists, he had not completed all of the medical appointments. He also accepted that his lawyers, in those proceedings, had agreed to act on a “no win no fee basis”: T 25.40 – T26.15. (I infer that liability remains in dispute.)

12. [70]

    I regard his claim for damages as a financial resource.

13. [71]

    During the course of his oral evidence, the Plaintiff stated that he was prepared to pay all of the cash that he has to the Defendant in order to obtain the Defendant’s interest under the deceased’s Will in the Rockdale property. His evidence in cross-examination (at T35.15 – T38.10) was:

14. [72]

    Following the series of questions and answers set out, I endeavoured to clarify the position (at T39.35 – T40.50):

15. [73]

    (The reference to approaching the Bank relates to evidence given by the Plaintiff that he had approached the Commonwealth Bank at Rockdale to see if he could borrow “a couple of hundred thousand dollars”. The Bank had refused to provide a loan.)

16. [74]

    The Defendant submitted that the fact that the Plaintiff has lived in the Rockdale property for so long is relevant, but to establish the provision made for the Plaintiff by the deceased during her lifetime, in providing him with free accommodation for almost all of his adult life. In addition, he has enjoyed sole use of the Rockdale property since the death of the deceased.

17. [75]

    The issue of rent for his occupation was raised in a letter dated 2 September 2016 from the Defendant’s solicitors to the Plaintiff’s solicitors. The latter responded, by letter dated 8 September 2016, stating “Our client does not have the means to pay $650 per week rent and accordingly will not be doing so. Rent can obviously be adjusted notionally.”

18. [76]

    The Defendant submitted that by November 2016, the Plaintiff had enjoyed 77 weeks of rent-free accommodation in the Rockdale property since the death of the deceased. He provided some evidence (based on correspondence from a number of different real estate agents in the area, none of which was based on an inspection of the Rockdale property) that the rental value that could have been obtained (in about August 2016) was between $550 and $650 per week. The total value of the benefit obtained by the Plaintiff was estimated to have been about $50,000, calculated at the rate of $650 per week. It is about $42,350 if calculated at the rate of $550 per week. (In fact, the benefit to the Plaintiff would be half of any rent paid to the estate because of the terms of the deceased’s Will.)

19. [77]

    Of course, whatever is the correct estimate for the rent that would have been payable, it is clear that the Plaintiff has enjoyed a significant benefit by way of rent free accommodation since the death of the deceased. By the date of hearing, the Plaintiff had enjoyed another 13 weeks of rent free accommodation.

20. [78]

    The Plaintiff is not cohabiting with another person.

21. [79]

    The Plaintiff did not give any evidence of the costs of alternative accommodation in the Rockdale area, or otherwise. However, shortly before the hearing, the Defendant’s solicitor, Mr J Kelly, swore an affidavit to which was annexed “a number of recent notices of properties for sale within the Rockdale area, together with letters from three real estate agents providing estimates of the likely sale prices of three house properties”.

22. [80]

    The covering letter dated 20 February 2017, addressed to the Plaintiff’s solicitors from the Defendant’s solicitors, summarised the position as follows:

23. [81]

    Mr Kelly was not cross-examined.

24. [82]

    I have used this evidence simply to provide a guide as to what alternative accommodation might cost in the Rockdale area. (I also take into account that there would be stamp duty, legal costs of sale, and moving expenses.) It is clear that Mr Kelly’s evidence was used to extract the concessions from the Plaintiff regarding the availability of alternative accommodation.

The Defendant’s Financial and Material Circumstances

1. [83]

   I have earlier noted that the Defendant has chosen not to disclose his financial and material circumstances. He put on no evidence that he was in financial need, or that he would be significantly prejudiced if provision were made in favour of the Plaintiff. The evidence that was read revealed that he had managed his life for many years without any benefit, or expectation of benefit, from the deceased.

2. [84]

   The Defendant is married and has two children.

3. [85]

   Of course, the Defendant is entitled to elect to remain silent about his financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s disposition to him as a part devisee, regardless of his financial position or needs.

4. [86]

   On this topic, in Sammut v Kleemann [2012] NSWSC 1030, at [137] – [140], recently repeated in Jodell v Woods [2017] NSWSC 143, I wrote:

5. [87]

   Also see, Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94]; Poletti v Jones, at [23] (Basten JA).

The Statutory Scheme

1. [88]

   Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. The Act stipulates no automatic entitlement to provision and the deceased’s Will applies unless a specific application is made to, and acceded to, by the Court.

2. [89]

   As the Plaintiff’s eligibility to make an application and the commencement of the proceedings within time is each not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes. It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may “the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

3. [90]

   The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases. For the benefit of the parties, I shall repeat some of what I have written elsewhere.

4. [91]

   Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant’s “needs” that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).

5. [92]

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

6. [93]

   Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

7. [94]

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

8. [95]

   Although the existence, or absence, of “needs” which the applicant 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, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803, at 816 [38], 820 [47] (Ormiston J).

9. [96]

   “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]:

10. [97]

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

11. [98]

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

12. [99]

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

13. [100]

    The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) per Buss JA, at [72], [77]. What is adequate must be relative, not only to the applicant’s needs, but also to his, or her, own capacity and resources for meeting them: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, at 19.

14. [101]

    The words “adequate” and “proper” 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:

15. [102]

    Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:

16. [103]

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

17. [104]

    Section 60 of the Act provides:

18. [105]

    It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a “more focused direction to the court”: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4, at [51] (Beazley P, Meagher JA agreeing).

19. [106]

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

20. [107]

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

21. [108]

    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.

22. [109]

    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).

23. [110]

    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.

24. [111]

    There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful:

25. [112]

    In Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56, at [96], Gummow and Hayne JJ stated that the term "financial resources" is apt to include more than assets which answer the definition of "property". It is not property but something from which a financial benefit is, or may be, gained. It is also cannot be confined to the present legal entitlements of a party and may be regarded as a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency: Hall v Hall (2016) 332 ALR 1; [2016] HCA 23, at [54].

26. [113]

    Contributions of the type referred to in s 60(2)(h) made by the Plaintiff have always been a relevant consideration in the determination of an applicant's claim upon bounty. For example, in Goodman v Windeyer [1980] HCA 31, 144 CLR 490, Gibbs J, at 497-498, wrote:

27. [114]

    However, as Bryson J noted in Gorton v Parks, at 6, 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 for meritorious conduct, 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.

28. [115]

    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 the Plaintiff might feel.

29. [116]

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

30. [117]

    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).

31. [118]

    Unless the Court orders otherwise, relevantly, any family provision order under the Act takes effect as if it were a codicil to the will of the deceased (s72(1) of the Act).

32. [119]

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

33. [120]

    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.

34. [121]

    There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.

35. [122]

    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:

36. [123]

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

37. [124]

    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:

38. [125]

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

39. [126]

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

40. [127]

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

41. [128]

    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.

42. [129]

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

43. [130]

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

44. [131]

    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 [2004] NSWSC 419 at [89].

45. [132]

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

46. [133]

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

47. [134]

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

48. [135]

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

49. [136]

    The Defendant, of course, is not an applicant for provision. He does not have to prove an entitlement to the provision made for him in the deceased’s Will, or otherwise justify such provision. As a beneficiary, the Court is not entitled to disregard his interest.

50. [137]

    In some cases under the Act, and this is one, an applicant who is a child of the deceased, seeks provision by way of an unencumbered home as part of the provision to be made by the Court. In Fung v Ye [2007] NSWCA 115, Young CJ in Equity (as his Honour then was), sitting in the Court of Appeal (with whom Tobias JA and Bell J, as her Honour then was, agreed) said at [25]:

51. [138]

    The Plaintiff relied upon the Court of Appeal decision in Chan v Chan in which Basten JA, at [38], concluded that:

52. [139]

    His Honour then went on to assess the provision that ought to be made. At [59], his Honour concluded:

53. [140]

    Payne JA concluded at [80]:

54. [141]

    His Honour also wrote, at [85] – [89]:

55. [142]

    However, that case is distinguishable for a number of reasons, not the least of which is that the estate was valued, at the deceased’s death, at $9.36 million; the trial Judge accepted that the total value of the estate lay between $11 million and $16 million; and that the updated estimate prepared by the defendant, for the purposes of the appeal, indicated a total value of the distributed and undistributed estate at a little over $15 million. On any view, the estate was an extremely large one.

56. [143]

    Secondly, the case is distinguishable because the plaintiff was found to have a number of psychological and intellectual difficulties, which meant that if he were required to move out of his long term accommodation, it would be stressful and difficult for him. (In this case, I have set out the Plaintiff’s evidence that he “would dearly love to stay in that property in Bestic Street. That's it”.)

57. [144]

    Thirdly, as Payne JA repeated, the testator in that case, over many years, had accepted an obligation to provide accommodation for the plaintiff, no doubt due to the plaintiff’s intellectual and psychological shortcomings. The testator had also accepted, at least until he fell ill towards the end of his life, that he had an obligation to pay for repairs, upkeep and outgoings for the property in which the plaintiff lived. The testator’s Will, however, whilst leaving that property unencumbered to the plaintiff, failed to provide sufficient funds to the plaintiff to pay for the repairs to, the upkeep of, and the outgoings on, that property.

58. [145]

    Despite that case being distinguishable, the Court should not ignore the scope of the Plaintiff’s reliance upon the deceased for accommodation in the Rockdale property for so many years prior to her death and also the Plaintiff’s expressed life-style desire to remain living in the Rockdale property.

59. [146]

    Neither party referred to Phillips v James, in which Basten JA, at [113] - [114], in considering the concept of prevailing community standards in the context of a dispute between siblings, wrote:

60. [147]

    Ultimately, the Court, in determining the responsibility of the deceased, should be guided by what was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at 478-479:

61. [148]

    It is also necessary to say something about the fact that the Plaintiff is entitled to receive a pension. I have set out the relevant principles in Kohari v Snow at [123] – [128]:

Qualifications on “Principles”

1. [149]

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

2. [150]

   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” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend a guide to be turned into a tyrant.

3. [151]

   It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order 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]:

4. [152]

   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]; Burke v Burke [2015] NSWCA 195 at [84] – [85]. They must be remembered.

The Impact of Costs of the Proceedings

1. [153]

   I have earlier noted that the parties did not wish me to determine the issue of costs. However, as shown in the passage of the Plaintiff’s evidence set out above, the impact of costs is of real significance in the present proceedings.

2. [154]

   The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that their costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]- [24].

3. [155]

   Section 60 of the Civil Procedure Act 2005, which applies equally to a claim for a family provision order, refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".

4. [156]

   In Forsyth v Sinclair (No 2) at [27], it was said by the Court of Appeal (Neave and Redlich JJA and Habersberger AJA) at [27]:

5. [157]

   Being an “eligible person” is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

6. [158]

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

7. [159]

   The next question then is whether making the provision for the Plaintiff that the deceased did bespeaks inadequacy. As previously stated, a precondition to a family provision order being made, the Court must be satisfied that the deceased has not made “adequate provision for the proper maintenance ... or advancement in life of the person in whose favour the order is to be made”.

8. [160]

   A consideration of the deceased’s Will, alone, would not suggest inadequate provision was made for the Plaintiff. Excluding the legacy of $20,000 and the residue, neither of which bequests can be met, the deceased effectively divided her estate equally between her only two children.

9. [161]

   But, one cannot consider the terms of the deceased’s Will on its own. One must consider many other facts. As Basten JA wrote in Chan v Chan, at [22], the Court must remember:

10. [162]

    This is not a case of an applicant adult child who has lived quite independently of his, or her, parent, the deceased, for many years, and who is in straitened circumstances. It is a case in which the deceased supported the Plaintiff, by providing to him rent free accommodation for many years before her death.

11. [163]

    Also apposite to the present case, is what Basten JA noted in Chan v Chan, at [21], that “[A] common issue in claims which are unresolved and come to trial is the closeness of the relationship between the testator and a particular family member who seeks provision. That factor was not in dispute in the present case.” Similarly, it is not in dispute in the present case.

12. [164]

    It is clear that if the Rockdale property were sold, the Plaintiff would have a need for accommodation. Yet, importantly, by the terms of her Will, and with her knowledge of the facts then available to her, particularly going to the Plaintiff’s conduct as a loving and dutiful son, the deceased did not consider that it was her moral obligation to provide accommodation for the Plaintiff, by way of the whole of the Rockdale property being devised to him absolutely in her Will.

13. [165]

    It is to be noted, also, that the Plaintiff has, for some time, whilst only receiving an income by way of pension, been living within his means. The capital sum that he now has available (from his father’s estate), until used, could provide some income to supplement his current pension income.

14. [166]

    Even if he used all of the provision made for him in the Will of the deceased and some of the capital sum that he has available from his father’s estate for the purchase of accommodation, his pension income will continue, albeit it may be reduced depending on what capital sum remains.

15. [167]

    The Court is entitled to take into account pension benefits as part of the resources of the Plaintiff, and to consider that they will continue to be received in whole or in part.

16. [168]

    In addition, the Plaintiff has the financial resource, being his claim for compensation for injuries sustained in a motor vehicle accident. I do not place too much emphasis on this fact because whether he will be successful in his claim, and if so, what amount he will receive, is unknown at the date of the hearing.

17. [169]

    It is obvious, in the present case, bearing in mind the size of the estate, and the lack of any evidence about the financial and material circumstances of the Defendant, that there is no competing financial claim of any other person that would inhibit the practicability of meeting any needs of the Plaintiff not met by the provision made for him in the deceased’s Will. Yet, the Defendant does not have to justify retaining the benefits provided to him under the Will of the deceased on the basis of need.

18. [170]

    To summarise, then, using the value of the deceased’s estate at the date of hearing ($1,201,917) on sale of the Rockdale property (the costs being $25,850), each party would expect to receive about $588,000. The Plaintiff has received the whole of his father’s estate, which, following the distribution of that estate to him, at the date of hearing, means that he also has $358,000 in available funds. It follows that upon sale of the Rockdale property, the Plaintiff would have about $946,000, in cash, available to purchase alternative accommodation and to provide a capital sum as a buffer against the vicissitudes of life.

19. [171]

    Assuming, then, that the Plaintiff purchased accommodation for $749,000 (the highest of the range of costs for accommodation stated in evidence), he would have left about $197,000, from which to pay stamp duty on the purchase (which was estimated to be about $30,000), the legal costs and disbursements of the purchase, and any moving costs (which I estimate to be $4,000), with the balance left for exigencies of life. After payment of those costs, he would have about $163,000 available.

20. [172]

    Of course, the Plaintiff may not be required to spend about $749,000 on accommodation. Indeed, he accepted that “$550,000 is enough money in which to purchase a property in Rockdale” (T 30.37 – T30.39). However, I have taken the highest estimate of the cost of purchasing alternative accommodation because he added (at T 30.40 – T30.48):

21. [173]

    The Plaintiff does not have responsibility for anyone else. There is no evidence that a sum in the amount remaining available to him, when taken with the income that he currently receives by way of the pension, and any additional income he received by way of interest on the capital sum is not adequate to provide for his continued needs as he gets older.

22. [174]

    Consistent with prevailing community standards, having considered, amongst other things, the Plaintiff’s financial and material resources, his lack of earning capacity, his close and loving relationship with the deceased, and the medical conditions from which he suffers, taken with the fact that the Defendant has not asserted a competing financial claim upon the bounty of the deceased, I am not satisfied, for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased. It follows the Plaintiff’s case must be dismissed.

23. [175]

    Of course, in the above calculations, the costs of these proceedings have not been deducted from the value of the deceased’s estate. It seems to me, in the circumstances of this case, that is the way the Plaintiff’s case must be determined, since no costs order has yet been made and there is the possibility of a special costs order being made based upon the service of an Offer of Compromise or a Calderbank offer. The issue of costs will have to be determined, so it seems to me, taking contextual circumstances of the litigation and the conduct of the parties into account. To do otherwise, might suggest a predetermination of how the costs of the proceedings are to be borne.

24. [176]

    In case I am wrong in concluding that adequate provision for the proper maintenance, or advancement in life has not been made for him by the Will of the deceased, as a matter of discretion I would not make an order for provision in favour of the Plaintiff. Whilst I accept that the Plaintiff’s relationship with the deceased was far closer than that between the deceased and the Defendant, that does not create an entitlement to receive a greater portion of the estate by way of a reward for the Plaintiff’s conduct.

25. [177]

    As was submitted by counsel for the Defendant, it is important to remember:

26. [178]

    The deceased made her last Will just over 6 months before her death. There is nothing to suggest that at the time, the financial and material circumstances of the Plaintiff were different from his present financial and material circumstances. He was then, as now, not working; he was then, as now, living in the Rockdale property; whilst then, he may have been receiving a carer’s pension, in addition to the pension that he was receiving, that was because he was providing the deceased and/or his father with care and assistance. It is true that he had not suffered the motor vehicle accident that he suffered in June 2015, but, as earlier stated, he has made a claim for compensation for the injuries he sustained in that accident.

27. [179]

    There is no evidence to suggest that when the deceased made her Will, one half of the value of the Rockdale property would not have provided sufficient funds to enable the Plaintiff to purchase alternative accommodation.

28. [180]

    But there was one significant difference between when the deceased made her last Will and the date of hearing. At the time the deceased made her last Will, the parties’ father was still alive. Even if the deceased knew the contents of his Will, she did not know that the Plaintiff would come to have available an amount of $358,000 to add to the provision made for him by her Will. That he did so, at the date of hearing, is a relevant consideration.

29. [181]

    I accept that the deceased, in her Will, provided the Plaintiff with a legacy of $20,000 and the residue of the estate. But it must have been clear to her, that she would have had less than that sum available on bank deposit, and some shares, the total value of which would not provide enough for the legacy to be paid, after her debts, funeral and testmanetary expenses were paid. In addition to all of the matters referred to above, it cannot be forgotten that the Plaintiff has had rent free accommodation in the Rockdale property since the death of the deceased in July 2015.

30. [182]

    Taking all of the matters into account, as a matter of discretion, I would not substitute my judgment for that of the deceased, particularly when the calculations of what would be available to the Plaintiff, when one considers his own assets, resulting in the need for accommodation on sale of the Rockdale property, and a lump sum for exigencies of life, are able to be satisfied. As stated, the Plaintiff would have an unencumbered home (with a value of upto $749,000) and about $163,000 (or more if less is spent on the accommodation) to provide for exigencies of life, and until spent, a modest income to supplement his pension.

31. [183]

    I have tested my conclusions another way. Had no provision at all been made in the Will of the deceased for the Plaintiff, 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 left for him in the deceased’s Will (excluding the legacy of $20,000 and the residue)? In my view, the answer to this question is in the negative.

32. [184]

    I cannot but help to remember what was said by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales, at 19:

33. [185]

    Whilst the Court readily appreciates that the Plaintiff may feel hurt and upset that the deceased has chosen to provide one half of the Rockdale property for the Defendant, in the circumstances of this case, an order for further provision cannot be made. The legislation does not justify orders to remedy perceived unfairness or hurt feelings.

34. [186]

    At this time, it is not possible to anticipate the economic consequences for the parties of the dismissal of the proceedings, other than to note that the amount of the distributable estate may be diminished as a result of the costs orders that will be made. However, it seems to me that the possibility of that occurring is a risk that the Plaintiff was prepared to take. His desired outcome was to receive the Rockdale property. As he stated, at T 29.30, “…it is not about the money. It is about the investment I have done into the property, and the feeling I have that is my home. You know, like it's not about the money…”.

35. [187]

    The case is very different one in which an adult child has been excluded completely from a parent’s will. Here, the Plaintiff received a substantial benefit, that as a result of his own conduct may be reduced.

36. [188]

    The order of the Court is that the Plaintiff’s Summons be dismissed.

37. [189]

    In view of the request of the parties that the question of costs of the 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.