Baird v Harris

HIS HONOUR: Robert William Baird (“the deceased”), who was born in 1950, died on 19 September 2013, aged 63 years. He was survived by two children, namely Ashley Elizabeth Griffiths (nee Baird), a child from his first marriage (who has not played any part in these proceedings other than as the deponent of an affidavit that was read) and Jack Alexander Baird (“the Plaintiff”) a child from a relationship that commenced in 1991 and ended in about 1997.

The Plaintiff, who is now aged almost 19 years, was diagnosed with Autistic Spectrum Disorder (previously called “Pervasive Developmental disorder”) and a mild intellectual disability when he was a child. He commenced these proceedings, with a tutor, by Summons filed on 13 June 2014, in which he sought a family provision order, pursuant to the Succession Act 2006 (NSW) (“the Act”) and costs. 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, or notional estate, for the maintenance, education, or advancement in life of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2008. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2008.

There is no dispute that the Plaintiff’s application was filed within the time prescribed by the Act (within 12 months of the date of the death of the deceased).

There were 7 affidavits relied upon by the Plaintiff and 11 affidavits relied upon by the Defendant. However, of the total number of witnesses (4 for the Plaintiff and 5 for the Defendant), only one witness was cross-examined. The matter was listed for one day and it was completed well within that time. The parties, and their legal representatives, are to be commended for the manner in which the hearing was conducted.

The deceased left a duly executed Will that he made on 16 September 2013. On 25 October 2013, this court granted Probate in common form of that Will, to Christine Ann Harris, the Defendant, the sole executrix and the major beneficiary named in that Will.

According to the Inventory of Property, a copy of which was attached to the Probate document, the property owned solely by the deceased at the date of his death was disclosed as having an estimated, or known, gross value of $497,200. The estate was said to consist of real estate at Mirrabooka, a suburb of the City of Lake Macquarie, in New South Wales, on a peninsula east of the town of Morisset on the western shore of Lake Macquarie ($290,000), cash in bank ($127,200), a caravan ($25,000), a motor vehicle ($50,000) and a motor cycle ($5,000). The Defendant disclosed no liabilities in the Inventory of Property. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.)

By his Will, the deceased devised the Mirrabooka property and bequeathed the motor vehicle to the Defendant. The deceased gave a legacy of $50,000 to Ashley, made a bequest of the caravan to her, and permitted her to choose of any of his furniture that she wanted. He gave a legacy of $50,000 to the Plaintiff, “upon him attaining his majority”, a car, which was specifically identified in the Will, but not adverted to in the Inventory of Property (as it was owned by the Defendant), and the motor cycle referred to above. He also left the whole of the rest and residue of the estate to the Defendant, to hold same upon trust for the Plaintiff, until he attained his majority, and for Ashley as tenants in common in equal shares.

In an affidavit sworn on 15 July 2014, the Defendant disclosed that she had transmitted the Mirrabooka property to herself, beneficially, as registered proprietor, and had also transferred the motor vehicle, in late November 2013 (that is two months after the date of death, one month after Probate was granted, and within the time prescribed for the making of an application for a family provision order). In addition, she had paid the legacy of $50,000, and distributed the caravan, to Ashley, in December 2013 (that is three months after the date of death, two months after Probate was granted, and within the time prescribed for the making of an application for a family provision order).

The Defendant also said that an amount of $64,328 had been invested, on behalf of the Plaintiff, as he was then a person under a legal disability, being a minor. She still retains possession of the motor cycle (now unregistered), which was bequeathed to the Plaintiff because, she says, he does not want it. She has not paid, even now, the amount held on his behalf to the Plaintiff. (She was unable to inform the court of the amount that was held at the date of hearing, although her counsel thought that it might be about $66,000: T2.06.)

The Defendant, in the same affidavit, also disclosed that the motor vehicle which was distributed to her, had been sold by her for $50,000, and that she used $31,940 to purchase another vehicle. Other evidence reveals that the purchase of the substitute vehicle occurred in early January 2014.

The balance of the proceeds of sale of the motor vehicle (about $18,000), she says “were expended upon repairs and renovations” to the Mirrabooka property. (There is also evidence that the Defendant contributed $12,293 of her own money, to the repairs and renovations.) Other evidence reveals that the expenditure on repairs and renovations occurred between about November 2013 and April 2014.

Finally, the Defendant states that $3,880 has been paid from the estate to her solicitors, as “testamentary expenses”, but that no part of the estate has been used to pay any of her costs of the proceedings.

In making the distributions, the Defendant did not wait six months after the deceased’s death, as referred to in s 92 of the Probate and Administration Act 1898 (NSW). Nor did she, as the sole executrix of the Will, publish a notice in the form approved under s 17 of the Civil Procedure Act 2005 (NSW), that she intended to distribute the assets in the estate after the expiration of a specified time. There was no evidence of any advertisement in accordance with s 92 stating that any person having a claim on the estate must provide particulars of the claim within a month, after which time she might distribute the assets, having regard only to the claims of which, at the time of distribution, she had notice. (The court raised this matter with counsel for the Defendant who accepted that it could be inferred that there was no notice given or advertisement published.)

One purpose of s 92 of the Probate and Administration Act is to facilitate the administration of an estate. The section is designed to enable the executor, or administrator, of an estate to distribute an estate leaving out of account any claims of which she, or he, does not have notice. Where no notice is given, the executor or administrator is not entitled to the protection conferred by the section.

At the commencement of the hearing, the parties were asked whether any claim was made by the Plaintiff to designate property that had been distributed by the Defendant to Ashley as notional estate of the deceased. The court was informed that neither party sought to have the property distributed to Ashley, or any part of it, designated as notional estate, as that property was not to bear the burden of the additional provision, if any, made for the Plaintiff or the costs of the proceedings. It follows that I shall not include the provision made for Ashley in calculating the nature and value of the notional estate of the deceased available for distribution.

Although she is not a party to the proceedings, Ashley swore an affidavit on 24 October 2014 in which she deposed that she was born in October 1987 following the marriage of the deceased and her mother, Jann Thompson, in 1986. They separated in about 1992 and divorced in about 1993. The Mirrabooka property was purchased by the deceased and Jann.

Ashley also stated that she had used the money distributed to her by the Defendant from the deceased’s estate “to pay down our house mortgage”.

The Defendant stated that it is her intention to not make a claim for executor’s commission.

Having spent over $30,000 carrying out repairs and renovations to the Mirrabooka property, the Defendant asserts, in an affidavit sworn on 7 May 2015, that its current value is between $300,000 and $310,000; that she continues to reside in that property on her own; and that she has continued to pay the land and water rates and the insurance in respect of it (although she does not state how much she has paid).

During the course of the hearing, the parties agreed that the current value of the Mirrabooka property should be taken to be $325,000. The Defendant, as the sole registered proprietor, accepted that if additional provision were to be made for the Plaintiff, it would be necessary to sell the Mirrabooka property. The parties agreed that the costs and expenses of sale of the Mirrabooka property should be estimated to be $10,000.

The parties then agreed that the estimated net proceeds of sale of the Mirrabooka property, which could be designated as notional estate, should be used to provide a guide in answering the questions posed by the Act. They accepted that there was a real possibility that the Mirrabooka property could sell for more, or for less, than the agreed estimated gross value, with the result that the Plaintiff, or the Defendant, might be detrimentally affected by its actual sale price if a lump sum order were made.

They also accepted that it would be prudent, in the event that the Plaintiff were successful, to provide him, absolutely, with an amount calculated as a percentage of the net proceeds of sale. In this way, both parties would benefit if the Mirrabooka property were sold for a price greater than had been estimated, and each would be detrimentally affected if it sold for less than the estimate. There would also be certainty of price, costs, and expenses, upon which calculations could be made.

Finally, the parties accepted that the amount calculated as a percentage of the net proceeds of sale of the Mirrabooka property as ordered to be paid by way of additional provision to the Plaintiff, together with an amount for the costs of the proceedings, should be designated as notional estate of the deceased. It will, therefore, be necessary, to do no more than identify, in these reasons, the specific sections of the Act that enables the court to make a designating order.

In calculating the estimated value of the deceased’s notional estate finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. However, the size of the estate and the conduct of a party may justify a departure: Fiorentini v O’Neill [1998] NSWCA 79.

The Plaintiff’s solicitor, Ms M McGrath, in an affidavit sworn on 6 May 2015, estimated the Plaintiff’s costs and disbursements of the proceedings, including counsel’s fees, calculated on the indemnity basis, to be $55,739 (inclusive of GST and upon the basis of a one day hearing). Calculated on the ordinary basis, she estimated that the costs and disbursements would be $49,985. There was no evidence that the Plaintiff, or his tutor, had paid anything towards these estimated costs and disbursements.

The Defendant’s solicitor, Mr S Churches, in his affidavit sworn 17 October 2014, estimated the costs and disbursements, including counsel’s fees, calculated on the indemnity basis, of the Defendant, for these proceedings to be $38,744 (inclusive of GST and upon the basis of a one day hearing). There was no evidence that the Defendant had paid anything towards these estimated costs and disbursements.

I was requested to not deal with the question of costs as there may need to be evidence and submissions made on the costs of the proceedings. I shall allow the parties an opportunity to consider these reasons and adjourn the matter to enable the question of costs to be argued. In doing so, they should also consider whether the court should exercise its power to cap the costs of the proceedings.

If the usual costs orders are made, and if the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs for both parties. Hopefully, in view of the size of this estate, this will not be necessary and the parties will be able to reach agreement, if necessary, without the need for additional costs to be incurred.

In the event that agreement is not reached on the quantum, the parties should agree to retain part of the net proceeds of sale (say, $90,000) to satisfy any costs orders, in order to avoid any substantial delay in the distribution of the balance of the proceeds of sale to the parties.

(It is most unfortunate that nearly $90,000 has been incurred in this small estate in the costs of these proceedings. As has been said, “the court should set its face against litigation in which an estate is unnecessarily consumed in costs”: Fiorentini v O’Neill. In saying this, I am not suggesting that the costs and disbursements are unreasonable. I merely point out that the court gave the parties every opportunity to resolve the proceedings, including a settlement conference and, somewhat unusually, a court-annexed mediation as well, at a time when the costs and disbursements would not have been as large as they turned out to be.)

The parties agreed, and the court is satisfied, taking the estimated agreed value of the Mirrabooka property ($325,000), if the costs and expenses of sale of that property also proved accurate ($10,000) and were deducted, if the usual costs orders are made, and if the estimates of costs prove accurate, and those costs are deducted ($88,729), the amount available to be designated as notional estate to satisfy any order for additional provision for the Plaintiff, will be $226,271. (Of course, it will also be necessary to designate the amount for costs, which is not included in that amount, as notional estate also.)

The Plaintiff identified Ashley and her mother, Jann, as eligible persons. As I have said, Ashley has sworn an affidavit read in the proceedings. She does not seek any additional provision out of the notional estate of the deceased. The court is not entitled to disregard her interests as a beneficiary even though she has not made an application.

There is evidence, by the Defendant, that the prescribed form of notice was “caused to be served” upon Jann, a former spouse, and upon the Plaintiff’s mother, Brenda Catherine Seabrook, on 19 June 2014.

In my view, this is not proper, or satisfactory, evidence of service of a notice by post: see, my judgment in French Consulting Pty Limited v Lawson Stuart Donald [2011] NSWSC 584, at [28]-[30], which I followed in Snow v Snow [2015] NSWSC 90, at [16]. However, I am satisfied, in view of the size of the estate and the number of competing claimants, that the court should disregard Jann’s interests as a person, by, or in respect of whom, an application for a family provision order may be made but who has not made an application.

I should mention, also, that I was informed that Jann was present, in court, at the commencement of the hearing, but she did not stay very long. I am, therefore, satisfied that she was aware of the proceedings.

In circumstances to which I shall come, the Plaintiff’s mother has recently died by her own hand. Accordingly, the lack of proper evidence of service upon her is no longer relevant.

The Defendant also referred to a previous de facto spouse of the deceased, namely Helen Grayson. Enquiries made by the Defendant with friends of the deceased and of Ashley, have failed to reveal her current whereabouts. In any event, it appears that their relationship ended in about 2006, some 7 years before the deceased’s death. There is no evidence of any continued contact between them after the termination of their relationship.

In all the circumstances, I am satisfied that the court may disregard Ms Grayson’s interests upon the basis that service of any such notice upon her is unnecessary. The size of the estate and the strength of the competing claims of the parties, and of Ashley, support this conclusion.

In all the circumstances, it is therefore, only necessary to consider the interests of the parties in the proceedings, as competing claimants, upon the bounty of the deceased.

I am satisfied that the following facts have also been established.

When the proceedings were commenced, the Plaintiff’s tutor was his mother. The home in which they lived was provided by Housing NSW and was situated in Shortland, a suburb of Newcastle, in New South Wales.

However, shortly after the commencement of the proceedings, the Plaintiff’s mother suffered various mental problems, which resulted in her hospitalisation, and in instructions being difficult to obtain from her by the solicitors.

On 6 November 2014, following a notice of motion filed on behalf of the Plaintiff, the court ordered, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 7.18(1), and with the consent of the parties, that Brenda Catherine Seabrook, the tutor of the Plaintiff, be removed as his tutor, and that Barry Terzic, be appointed as the tutor of the Plaintiff in her place.

Mr Terzic, who is the Plaintiff’s uncle, consented to being appointed and since that time, has sworn a number of affidavits that were read in the proceedings. Since his appointment, it is clear that he has acted in the best interests of the Plaintiff, in all respects. He is to be commended for the role he has played in the Plaintiff’s life, and in these proceedings, especially since the death of the Plaintiff’s mother.

On 27 May 2015, the Plaintiff’s mother committed suicide. Sadly, it was the Plaintiff who found her in the home, in which they had lived together. Since that time, the Plaintiff has not returned to that home, but has lived with relatives in Sydney. (It is not likely that he will be able to return to that home as it comprises three bedrooms and Housing NSW is unlikely to regard it as suitable or appropriate for the Plaintiff. I shall return to this topic later in these reasons.)

It is not anticipated that the Plaintiff will receive any inheritance from his mother’s estate, as she died with no assets of any value. In an affidavit that she swore on 11 June 2014, she disclosed that she had cash in bank ($1,334), a car ($2,000) and household furniture and personal effects ($1,000). She disclosed a credit card debt of $510. The affidavit, which was read, over objection by counsel for the Defendant, also stated that the cost of “a duplex” in the Shortland area was about $300,000.

The Defendant was born in May 1951 and is aged 64 years. She met the deceased in October 2006. She and the deceased were engaged to be married on 1 December 2007, but they did not, in fact, marry at any time. The deceased described her as “my friend” in his Will. She says that they “became a couple”. They would spend most of the week together, but that she would go to her home for a day or two each week, until the deceased required constant care, which she provided.

At the date of the deceased’s death, and from 2009, the Defendant was living in a Department of Housing home. However, she spent a significant amount of time with the deceased at the Mirrabooka property. At that time, she had no other accommodation needs. She had modest savings of her own. It appears that she moved into the Mirrabooka property, on a full time basis, only after the death of the deceased, and at a time when she did not know whether any claim on his estate would be made by any eligible person.

She says that the repairs and renovations to the Mirrabooka property included installing a new kitchen; repairing leaking pipes; replacing the floorboards and laying linoleum in the kitchen; installing a new vanity, new toilet and new shower screen in the bathroom; painting the whole of the house; repairing the wiring in the house and replacing light fittings; and replacing old curtains with new ones.

There is annexed to one of the Defendant’s affidavits, a copy of an affidavit under the signature of the deceased, which is in the following terms:

Interestingly, as will be appreciated, there is no reference to the Plaintiff in the affidavit sworn by the deceased.

Although the deceased’s signature appears to have been witnessed by a solicitor, the solicitor has not provided any evidence about the circumstances surrounding the making of the affidavit by the deceased. However, there was no submission made by counsel for the Plaintiff that the contents of the affidavit did not reflect, accurately, the relationship between the deceased and the Defendant.

The only witness who was cross-examined was Ms D M Scott, the General Manager of the Delando Corporation, a supported employment service for people with disabilities.

In July 2014, Delando was contacted by someone at the Plaintiff’s school, with a request for assistance. Thereafter, a representative of Delando assisted the Plaintiff in making an application for funding under the National Disability Insurance Scheme (“NDIS”) as well as an application for a pension.

Between October 2014 and February 2015, the Plaintiff received initial NDIS funding, under which a Delando support worker attended the Plaintiff’s home for 3 hours a day, 3 days a week. The support provided, focused on the individual needs and choices of the Plaintiff based on his individual needs assessments, assisted him with planning activities and helped with basic activities of daily living, social activities and co-ordination.

From February 2015, the support worker attended 2 days per week, for 3 hours per day, and continues to support the Plaintiff in learning life skills to live independently. In view of the death of the Plaintiff’s mother, Ms Scott believed that it would now be necessary to go back for review of the Plaintiff’s individual support package and that it was likely he would soon receive daily support for 2 hours per day. She was unable to say whether the support would be for 5 days, or 7 days, a week. She believed that he would be entitled to receive a disability pension (T8.45), and NDIS support (T17.48), for the remainder of his life.

Ms Scott, gave evidence that, in this way, it is hoped that the Plaintiff will become as independent as possible, will develop skills for day-to-day living and be able to participate in the community. As Ms Scott put it at T18.00-T18.10:

In relation to the Plaintiff’s accommodation, Ms Scott wrote:

In her oral evidence, Ms Scott confirmed that an application had, in fact been submitted, recently, to Housing NSW, on the Plaintiff’s behalf. She thought that it might take up to 6 weeks to assess the application although she could not be certain. In answers to questions from the Bench, Ms Scott said that she believed that the Plaintiff would obtain, from Housing NSW, some form of rental accommodation in the form of a one bedroom, or two bedroom, flat, but could not say when such accommodation would become available. All she could say was that it may be offered “at some stage”, perhaps within the next 4 years.

(Somewhat faintly, the Defendant suggested that the matter should await the determination of the Plaintiff’s application for housing. However, this was not pressed with any conviction and when raised, it was opposed by the Plaintiff as creating additional costs, uncertainty and delay.)

The Defendant tendered a Fact Sheet dated July 2014 from the NSW Government Family & Community Services (Ex. 1) which was said to identify alternatives in relation to seeking the transfer of a public housing tenancy from one eligible member to another member of the same household. To achieve such a transfer, the Plaintiff would have to be assessed by Housing NSW to meet priority housing criteria. Subject to some exceptions, he would need to demonstrate that he was eligible for social housing and be an approved additional occupant of the property with a satisfactory history of occupation for at least two years. If recognised as a tenant, the Plaintiff could be offered a tenancy with a two-year, five-year, ten-year, or continuous lease. He may be required to relocate to a property that better matches his housing needs. One example given is “if the property you are in is too large for your needs”.

(In my view, this document does not assist the Defendant’s case. There was no explanatory evidence in relation to the printout, although some questions were asked of Ms Scott in relation thereto. In my view, the document is no more than a guide, published for the benefit of an applicant seeking the transfer of a public housing tenancy from one eligible member to another member of the same household. It does not set out the approach of Housing NSW in determining such an application.)

Ms Scott’s evidence satisfies me that there is uncertainty concerning if, and when, accommodation might be provided to the Plaintiff by Housing NSW, although she seemed optimistic that some form of accommodation would be provided.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although on many occasions, I have collected the principles generally applicable, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

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

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

Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased.

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.

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

Relevantly, 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].

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”.

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

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

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

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, Murphy J wrote, at 505:

In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms:

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

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

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

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, per Buss JA, at [72] and [77], 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 said:

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 there are no definite criteria by which the question can be answered.

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

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as “the jurisdictional question”: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].

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, yet, it is an element in determining whether “adequate” provision has been made for the “proper” maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.

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

In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA said, in respect of the first stage of the process:

“Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (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, David J, at [41], 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.

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

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

I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I have said, which is not affected by the recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619, Verzar v Verzar [2014], or Salmon v Osmond [2015] NSWCA 42.

(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Gardiner v Gardiner [2014] NSWSC 435. I respectfully adopt his Honour’s reasoning, set out at [117]-[120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)

(In Poletti v Jones [2015] NSWCA 107, Basten JA, at [19], stated that what had been stated by him in Andrew v Andrew “was not to say that there might not be circumstances in which such an approach was the preferable way to proceed. My only point was that the legislation no longer dictated such an approach in circumstances where a rigid demarcation of issues along those lines would be artificial, a point made by Callinan and Heydon JJ in Vigolo v Bostin… a case under different legislation”.)

Ultimately, as Allsop P said in Andrew v Andrew, at [6], it “may be an analytical question of little consequence” since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made) and, if so, whether it should (whether to make an order and, if so, the terms of that order). Accordingly, even if there remains some uncertainty as to whether the Act requires a two-stage approach, “it is settled that the determination under the legislation on either approach, involves an evaluative judgment”: Salmon v Osmond, per Beazley P (with whom McColl and Gleeson JJA agreed), at [54].

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, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [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.

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

In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote:

Beazley P, in Phillips v James, at [51], described s 60(2) as involving:

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

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of 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.

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).

Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in 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.

Practice Note SC Eq 7, which applies to claims for a family provision order, provides, in Clause 24, that “[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000”. (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act. Also, see Baychek v Baychek [2010] NSWSC 987; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50]-[52].

The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, “notional estate” of a deceased person is defined as meaning “property designated by a notional estate order as notional estate of the deceased person”. “Notional estate order” means “an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person”.

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

Section 63(3) of the Act provides that a family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of s 93, except as provided by subsection (5).

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

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

Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).

Section 79 of the Act, relevantly, deals with the designation of property where the estate of the deceased has been distributed. The section provides:

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

Because it was accepted that a notional estate order was necessary if the Plaintiff received additional provision out of the estate by way of family provision order, it is unnecessary to refer to the other sections of the Act which go to the restrictions and protections relating to notional estate order.

I shall leave it to the parties to frame the appropriate form of orders.

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

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

The court’s role is not to reward an applicant. 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. “Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his 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 [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].

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

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, I noted, at [108], that:

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

In Brand v Brand [2015] NSWSC 52, Pembroke J, at [21]-[23], referred to Goodsell v Wellington, repeated what he had said, to similar effect, in Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146, at [30]-[34], and referred to the passage in Wilcox v Wilcox quoted above. See also Salmon v Osmond, per Beazley P, at [69]-[77]. Thus, mere judicial opinion should not be substituted for that of the deceased as the preferred way of distributing his, or her, estate.

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]:

Barrett JA, at [95], wrote:

In Chapple v Wilcox, Basten JA, at [12], and by Barrett JA, at [63]-[64], emphasised the central role played by “community standards” or “community expectations” in any decision whether to take the significant step of overriding the expressed wishes of the deceased.

How the 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, 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 was said by White J in Slack v Rogan; Palffy v Rogan, at [125]:

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

The Act is not a “Destitute Persons Act” and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word “proper” requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).

The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased’s obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.

Nor is it the purpose of the Act to punish, or redress, past bad, or unfeeling, parental behaviour, where that behaviour does not still impinge on the applicant’s present financial situation. In other words, a claim under the Act does not encompass compensation, or reparations, to an applicant for the deceased as his, or her, parent, having failed in the legal, or moral, duty to be a good and responsible parent of the child: Re Bull [2006] VSC 113; Cameron v Cameron [2009] SASC 27, at [41].

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, per Kelly J, at [46], should be remembered:

As stated in the above passage, the size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221:

Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].

Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.

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

In this case, there are some significant circumstances that call for additional consideration, and which fall outside the principles suggested above. The most important, of course, is the medical condition of the Plaintiff and the sequelae of that condition. Furthermore, he is currently without secure accommodation, and whilst he has a capital fund available, which provides some level of protection against future exigencies of life, and, whilst it is retained, a modest additional income, he is obliged to, and will continue to, live substantially on the beneficence of the State.

In Butler v Morris [2012] NSWSC 748, at [108]-[111], I collected some of the authorities concerning the relevance of the entitlement of an applicant for a family provision order to a pension to the determination of what, if any, provision ought to be made in favour of that person:

I have referred to these principles in Kohari v Snow, at [123]-[128]. They were referred to, with approval, by Robb J, in Pang v Fong [2014] NSWSC 1425, at [150]. As in that case (at [151]), “the present is not a case where [the Plaintiff’s] entitlement to a pension and public housing is determinative. His present lifestyle is confined by his need to rely upon those public benefits, because he has no choice”.

In Foley v Ellis, Sackville AJA, at [88], 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. 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 Salmon v Osmond, at [103], Beazley P stressed the relevance of having regard to the deceased’s obligations to all other claimants and concluded, in that case, that even “without regard being had to the costs ordered to be borne by [the beneficiary’s] share of the estate, the legacy ordered in [the Plaintiff’s] favour is disproportionate to any rightful claim she may have when regard is had to [the beneficiary’s] rightful claim to the deceased’s bounty”.

The Defendant is not an applicant for provision. Even so, she does not have to prove an entitlement to the provision made in the deceased’s Will or otherwise justify such provision. In determining the case, the court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by her: Edgar v Public Trustee for the Northern Territory, at [46].

In this regard, the terms of the deceased’s copy affidavit should not be forgotten. In that affidavit, the deceased expressed his reasons for making the provision that he did for her.

Concern as to the capacity of the Defendant to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to be made for her. Her age and earning capacity are also relevant.

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. 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].

I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

There is no dispute that the Plaintiff is a son of the deceased. He lived with his mother all of his life, but, for a period of time, spent every alternate weekend with the deceased at the Mirrabooka property. Following the end of the deceased’s relationship with Helen Grayson, the Plaintiff did not see much of the deceased “for some time”. He says that he did not want to see the deceased, as when he did, the deceased would “put me down”, commenting upon him not being very smart and his likely inability to obtain employment. (There is a dispute about this issue but it may be that it is one of perception. However, the Plaintiff’s evidence is supported by the evidence in his mother’s affidavit.)

The deceased, however, did telephone the Plaintiff to tell him that he had been diagnosed with cancer. Thereafter, the Plaintiff resumed his visits to the deceased at the Mirrabooka property (although there is a dispute about how regularly he visited). In the last few months before the deceased’s death, they would talk by telephone two or three times per week.

It was during his visits that the Plaintiff met the Defendant. The Defendant acknowledges that the Plaintiff saw the deceased for the last time four days before the deceased’s death.

I am satisfied that the Plaintiff had a relationship with the deceased throughout the Plaintiff’s life. It seems to have been a reasonably close and loving one for most of his life, although there was a short period when they did not see a lot of each other.

There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any “moral duty”. Yet, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiaries.

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

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his children, as an adult, imposed upon him by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812, at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition.

The fact that the applicant was financially independent of the deceased, for many years, before the deceased’s death, is a relevant consideration in determining the extent of any obligation or responsibility owed. The size of the deceased’s estate is also relevant to the extent of the obligation or responsibility.

(For reasons earlier mentioned, it is unnecessary to refer to the deceased’s obligation or responsibility to Ashley.)

The deceased, it seems to me, also owed some obligation, or responsibility, to the Defendant. She did look after him when he became unwell and it is clear from the terms of his Will, and the affidavit that he made, that he regarded her as a person with a significant claim upon his bounty.

I have earlier dealt with these matters. The net value of the property that may be designated as notional estate is small if all of the costs are deducted.

The Plaintiff finished Year 12 of High School in December 2014. Since about April 2014, he has received assistance from Delando Corporation. It has assisted him to apply for the disability pension and NDIS funding (to which I have earlier referred). More recently, it has assisted him with his application to NSW Housing.

He currently receives a part pension from Centrelink ($379 per fortnight). He works at the University doing lawn maintenance, earning about $202 per fortnight. He has received an inheritance of $40,000 from his grandfather’s estate. Although he used part of this money to pay for the car repairs, he currently has slightly more than $40,000 on a term deposit as well as $4,528 in a pension account. No doubt, some interest is accruing on this amount. As stated earlier, the Defendant holds $64,328 upon trust for the Plaintiff which should be paid to him. It is likely that some interest has accrued on that sum. There is also the motor cycle to which he is entitled (estimated to be worth $5,000). It follows that he will have a capital sum of about $110,000 available (plus the proceeds of sale of the motor cycle).

He has a driver’s licence and he recently purchased a car for $2,000 on which he has spent $300. He hopes to undergo a safe driver training course so that he is able to drive independently. In addition, he has a need for some psychological care, a need that has existed for some time but which has not been attended to through a lack of funds.

The Plaintiff has liabilities in relation to legal costs and disbursements (or if the usual order is made for the difference between indemnity costs and ordinary costs).

It was submitted (by reference to an aide memoire provided by counsel for the Plaintiff) that the Plaintiff’s total weekly outgoings, if he obtained accommodation through Housing NSW, would be about $453, whilst his income was $291, meaning that there was a shortfall of $162 per week. If he did not obtain accommodation through Housing NSW, his total weekly outgoings were estimated to be $617, resulting in a shortfall of $326 per week. (I should mention that I have taken these figures from a submission rather than from the evidence, which did not support all of the figures included.)

It was also submitted that he needed a capital amount ($20,000) for furniture and whitegoods, and an amount for a car ($15,000) together with a fund to supplement income ($125,000) as well as a contingency fund ($25,000). This totalled $185,000 but it was conceded that he had about $100,000 which could be used, thereby reducing the amount required to about $85,000. (Again, there was no specific evidence to justify these estimates and I have taken them from the Plaintiff’s submissions).

In the alternative, it was submitted that if he purchased accommodation for $220,000 (about which there is some evidence), paid stamp duty and legal costs ($8,000) bought the furniture and whitegoods ($17,000) and had a contingency fund of $20,000, he would need $165,000 (after deducting the capital sum of about $100,000).

Finally, on this topic, I am satisfied that the Plaintiff does have a very limited earning capacity. However, he is likely to continue to receive Centrelink benefits for the remainder of his life.

The Defendant gave evidence that she has cash in a Bank account of $6,500 and that she receives a Widow’s Pension of $570 per fortnight.

Counsel for the Defendant submitted that her needs are greater than those of the Plaintiff and that, under the circumstances, the provision provided for the Plaintiff in the deceased's Will was adequate and proper.

Ashley, in her only affidavit sworn on 24 October 2014, is married and has one child, aged about 18 months. They own a home at Blacktown, the estimated value of which is $580,000. As at October 2014, it was the subject of a secured debt of $375,000. Her husband is a self-employed carpenter. She says that “between myself and my husband, we earn approximately $70,000 gross”. They have a car ($25,000) and a work truck ($32,000). She asserts that there is a car loan ($23,000) and a truck loan ($37,000). They had business credit card debts of $4,000. She estimates that their monthly expenditure is $6,500 (including the mortgage and car loan). She does not identify how the surplus of expenditure over income (about $8,000 per year) is met. (I have included her evidence for completeness. In view of the agreement of the parties not to have any part of the amount distributed to her bear the burden of provision that may be made for the Plaintiff, her need as a competing claimant is irrelevant.)

There is no other applicant for an order for provision.

There is no evidence that the Plaintiff is cohabiting with any person whose financial position is relevant. Whilst he is currently living with relatives (the tutor and his family), this is only temporary.

As stated earlier, the Plaintiff suffers, and will continue to suffer from Autistic Spectrum Disorder and a mild intellectual disability. His local medical practitioner, who has known him since 2003, considers that he requires ongoing support for activities of daily living and supported employment.

These conditions leave the Plaintiff with significant disabilities in communication with both expressive and receptive language being affected.

I have earlier referred to the assistance provided by representatives of the Delando Corporation.

The Defendant says that her health is “reasonable”. She has been diagnosed with depression since the deceased’s death, for which she has been given medication. She suffers from dizzy spells, has arthritis in both feet and hands, and has hammertoes on both feet. (I have earlier referred to the age of the Defendant.)

The Plaintiff was born in June 1996 and is currently aged almost 19 years.

The Plaintiff does not give any evidence of such financial contributions. However, it is likely that by visiting the deceased and speaking with him on the telephone, he did make some contribution to the welfare of the deceased.

There is no suggestion that the deceased made any substantial, or generous, inter vivos provision for the Plaintiff. The Plaintiff acknowledges that shortly before his death, the deceased gave him $200.

I have earlier stated what he receives under the Will of the deceased.

There is some evidence about testamentary intentions other than as disclosed in the Will of the deceased. He made a Will in May 2006 in which he appointed the Public Trustee (now the NSW Trustee & Guardian) as the executor and trustee and left the whole of his estate, after the payment of estate liabilities to be divided equally between Ashley and the Plaintiff.

The deceased made another Will in June 2012, in which he appointed Ashley as executrix. He left a pecuniary legacy of $100,000 to Christine, provided that he was still in a relationship with her at the date of his death. He left the rest and residue in equal shares as tenants in common to Ashley and the Plaintiff.

The deceased made a further Will in June 2013, in which he appointed the Defendant as the executrix and trustee. He left her a legacy of $50,000, the caravan and the car. He left a legacy of $20,000 and such of his antique furniture as she chose, to Ashley. He left the rest and residue of the estate to be held in trust for the Plaintiff until he attained his majority.

I have earlier referred to the affidavit signed by the deceased in which he set out the reasons for making the provision that he did for the Defendant.

As was recently written in Salmon v Osmond, at [72], “a testator’s explanation of why he made those decisions must be given appropriate weight. The weight that is given will depend, inter alia, upon whether it is apparent from the evidence that the testator’s wishes and testamentary intentions are soundly based and not, for example, attributable to irascibility, mere dislike, or based on lack of information, or wrong information”. Thus, whilst this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence or to accept the truth of what is asserted.

There was no suggestion made on behalf of the Plaintiff that what the deceased had said about his relationship with the Defendant and her contribution to his welfare was untrue. Accordingly, I accept what was said about the Defendant by the deceased.

The deceased did not maintain the Plaintiff wholly, or partly, before death, and so it seems, for some years before his death.

Apart from the Commonwealth government’s responsibility to continue to provide the Plaintiff with a disability pension and NDIS relief, there is no other person with a liability to support the Plaintiff. As stated earlier, he is likely to have to rely, to a considerable degree upon the State for the remainder of his life.

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.

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:

I am satisfied that there is no relevant conduct of the Plaintiff that impacts on the determination of what provision should be made for him out of the estate of the deceased. I have earlier referred to the nature of his relationship with the deceased and his contribution to the welfare of the deceased.

I do not regard the period that he did not see the deceased as of importance. The Plaintiff’s perception of the comments made by the deceased may have been misinterpreted but even if they were, it provides a reasonable basis, particularly bearing in mind the age of the Plaintiff, for his conduct.

There is no conduct by the Plaintiff after the death of the deceased that is relevant.

I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is the principal chosen object of the deceased’s bounty. I am also satisfied that she did provide a great deal of support and care to the deceased prior to his death. The deceased acknowledged that in a conversation with the Plaintiff and, of course, in the affidavit that he signed.

It is important to note that the deceased owned the Mirrabooka property for many years prior to the commencement of his relationship with the Defendant. Yet, it is clear that the Defendant contributed about $30,000 to the repairs and renovations of the Mirabooka property after the death of the deceased. Part of that was from the proceeds of sale of the car she inherited from the deceased (about $18,000) and the balance came from her own funds. Thus, she made a financial contribution, albeit after the death of the deceased, to the value of the estate. (I have taken her contribution into account in reaching the conclusion that I have in regard to the provision to be made for the Plaintiff.)

Yet, I am most troubled about the speed with, and the manner in, which the Defendant took steps to distribute the deceased’s estate, including the transfer of the Mirrabooka property, her moving into that property and spending a reasonably significant amount of money, both of the estate and of her own, to renovate that property. I have identified the period following the death of the deceased in which she took these steps without any notice being given to anyone that she intended to distribute the estate.

It is clear, in my view, that the Defendant knew, at the time she made the distribution, that the Plaintiff was a minor and that he suffered from some disabilities.

There is no evidence that she sought advice on the steps she was taking or that she had been informed that no other eligible person would be making a claim for provision, or further provision out of the deceased’s estate. Nor is there any evidence that she made any enquiry about any such claim or sought any assurance that no claim would be made.

In my view, she took a significant risk in giving up her Department of Housing accommodation in circumstances where she did not enquire, or otherwise know, that no claim for a family provision order would be made. It was a risk, it appears, that she was prepared to take.

However, in light of the way in which the case was conducted on the Defendant’s behalf, in particular, the concession made regarding the sale of the Mirrabooka property and the designation of part of the proceeds of sale as notional estate, perhaps, these events are of less significance.

This factor is not applicable.

There is no other matter that I consider relevant.

Being an “eligible person” is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute 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. There is also no dispute that he brought his application within the time prescribed by the Act.

Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by the deceased’s Will.

I have identified the provision in the deceased’s Will for the Plaintiff. In broad terms, he receives about $65,000 in cash, and an unregistered motor cycle which should be able to be sold.

Judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for the Plaintiff’s proper maintenance or advancement in life was not made by the Will of the deceased. However, that is not all that is required. Whether inadequate provision was made requires an assessment of his financial position, the size and nature of the deceased’s estate, the relationship between him and the deceased and other persons who have legitimate claims upon the deceased’s bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Verzar v Verzar [2014] at [39].

Taking into account all of the matters that I am required to consider at the first stage, including the size and nature of the estate, the relationship between the Plaintiff and the deceased, the relationship between the deceased and the Defendant, which was not long (about 7 years) and her contribution to the building up of the deceased’s estate, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold.

I must also remember that the task of the court is to make a determination “according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself”: Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.

It is clear, in my view, that the Plaintiff has some “needs”. As stated above, “need” in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the sense of what was necessary for the applicant’s “proper maintenance, education and advancement in life”: Collins v McGain, per Tobias JA, with whom Beazley and Hodgson JJA agreed.

The court is required to consider all of the circumstances. In the case of the Plaintiff, he is, currently, incapable of adequately providing for himself, and it is likely that, because of his medical conditions, he will never be able to do so. Without some provision, it is highly unlikely that he will be able to improve his station in life. He has a need for additional capital. He can use that capital to assist in the provision of accommodation, whether rented or purchased (if he is able to obtain additional funds) or whilst it is unused to provide an additional, albeit modest income.

Of course, the accommodation does not need to be a home that he owns absolutely. As stated, the evidence appears to be that, in all probability, he will receive assistance from Housing NSW, if not immediately within about four years. Accordingly, it seems to me that his accommodation needs may be able to be met by renting accommodation until such time as rented accommodation is provided to him by Housing NSW.

I turn now to the second stage, namely the nature of the order that should be made in favour of the Plaintiff. The more difficult question then arises, namely what provision “ought to be made for the maintenance, education or advancement in life” of the Plaintiff, having regard to the facts known to the court. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise.

I am of the opinion that the Plaintiff should receive additional provision by way of a lump sum, which would enable him to provide for exigencies of life and provide a buffer against future contingencies. It is clear, however, that the size of the estate is a limiting factor on what lump sum may be provided.

The additional lump sum should be calculated as 40 per cent of the net proceeds of sale of the Mirrabooka property. (Using the estimated net distributable value of the estate ($226,271) referred to earlier this would yield a lump sum of about $90,500.)

Thus, the additional provision to be made for the Plaintiff and the part of the estate out of which it is to be provided is a lump sum equating to 40 per cent of the net proceeds of sale of the Mirrabooka property.

Naturally, even though not the subject of dispute, I have considered, again whether the provision by way of percentage of net proceeds of sale, is appropriate in this case. In Zagame v Zagame [2014] NSWSC 1302, I wrote, at [310]:

I maintain the view expressed in that case. I remember also that the Act permits the family provision order to be made in one or more ways, including “in any other manner the Court thinks fit”: s 65(2)(f).

By way of testing the adequacy and propriety of the quantum, assuming weekly rent of $250, for 4 years, without any discount, he would require a capital sum of $52,000 to pay the rent. Any part of this amount not used, could provide for his rent in the future, or capital, which could be added to what he has, in order to provide additional income. In addition, he needs a new car ($15,000), and some furniture and whitegoods ($20,000).

A capital sum of about $90,000 would enable him to attend to these needs and leave a very small surplus.

It will be necessary for an order designating an amount equal to 40 per cent of the net proceeds of sale after deduction of the costs and expenses of sale and, if any order for costs is made, an additional amount for the costs of these proceedings.

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

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

I direct the parties to deliver to my Associate, within 21 days, for consideration, agreed Short Minutes of Order giving effect to these reasons.

Finally, there should be an order included in the Short Minutes of Order that the Exhibits should be dealt with in accordance with UCPR rule 31.16A and rule 33.10 and Practice Note No SC Gen 18 (Para 26).

The matter will be listed before me on a mutually convenient date in case agreement on any aspects of the orders cannot be reached. At that time, the question of costs, if still in dispute, can be determined. If agreement on the form of orders is not reached, respective draft Short Minutes of Order, by each party, should be provided within the same time.

If agreement is reached, on the terms of the Short Minutes of Order, including costs, I shall deal with the matter in Chambers without the need for a further appearance and I shall vacate the adjourned date.