Bowers v Bowers

1. [1]

   HIS HONOUR: The Plaintiff, James Richard Bowers, brings a claim under Chapter 3 of the Succession Act 2006 (NSW) (the Act) for a family provision order out of the estate of his mother, Bethia Jocelyn Bowers (the deceased).

2. [2]

   The Defendant named in the proceedings is Sara Louise Bowers, another, now adult, child of the deceased, and one of the executors named in the Will dated 21 June 2017 of the deceased, to whom this Court granted Probate, on 21 June 2018. (Peter Joseph Bowers, another, now adult, child of the deceased, and the other executor named in her Will, renounced Probate.)

3. [3]

   The case is a sad one as immediate family members are opposed in relation to the estate of the mother of some, and the grandmother, of the others. Regrettably, the apparent lack of any current relationship between the Plaintiff with a number of his siblings, and the Plaintiff with his own three children, has played a part in the proceedings. Counsel for the Plaintiff described the family as one “where there is entrenched conflict. I'm not sure whether that is going to change in the future”: Tcpt, 21 November 2019, p 160(10­–­12). That appeared to be an apt description of the family dynamics.

4. [4]

   Mercifully, this is not a case in which there is an allegation of, what used to be called, “disentitling conduct”, by the Plaintiff towards the deceased. He appears to have enjoyed a reasonably good relationship with her.

5. [5]

   Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

The Claim

1. [6]

   James filed a Summons on 18 October 2018, in which he sought a family provision order and an order for his costs. A family provision order is one 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 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

2. [7]

   Somewhat faintly, at the hearing, counsel for Sara, argued that the proceedings should be dismissed. However, during the course of oral submissions, it appears to have been accepted, in my view, correctly, that the provision made by the deceased, for James, in her Will, was not adequate for his proper maintenance or advancement in life: s 59(1)(c) of the Act; and that provision “ought” to be made for James, in lieu of the provision made for him in the deceased’s Will, out of the estate of the deceased: s 59(2) of the Act.

3. [8]

   The real, and more difficult questions, related to the manner in which that provision should be made, namely whether the provision should be by way of payment of a lump sum of money, by periodic payments of money, by an absolute, or a limited, interest only, in property; and whether any conditions, restrictions, or limitations, should be imposed by the Court on the provision to be made for him: s 65(2) of the Act.

4. [9]

   In broad summary, and as explained below, I have concluded that the deceased arranged her Will in such a way as to control the funds flowing to James by the interposition of a discretionary trust; in all the circumstances, adequate provision for his proper maintenance or advancement in life was not made by the Will for him; and that in lieu of the provision made for him in the Will, he should receive a lump sum of $750,000 out of the estate of the deceased.

5. [10]

   I am also satisfied that a condition should be imposed on the use of part of the provision made for him out of the estate, as, to date, he appears to have been ill-equipped to provide a home for himself, a matter about which the deceased expressed some concern. I shall return to how the burden of the provision should be borne later in these reasons, and shall require the parties to provide a form of orders that reflect these reasons.

6. [11]

   The matter was listed for three days, although it was completed in two days. Throughout the hearing, Ms M Bridgett of counsel appeared for James, and Mr J E Armfield of counsel appeared for Sara.

Procedural Issues

1. [12]

   Before addressing the substance of the proceedings, there are several procedural matters that should be noted.

2. [13]

   Shortly prior to the long adjournment on the second day of the hearing, I raised the fact that some of the medical evidence concerning James would be included in the reasons for judgment. I did so in the context of expressing a tentative, and exploratory, view as to a possible outcome of the proceedings and suggesting, bearing in mind the family relationship, that the parties may wish to discuss the resolution of the proceedings, during the long adjournment, and prior to the oral submissions being concluded.

3. [14]

   Following the long adjournment, counsel for James sought, for the first time, “that the judgment should not be published and made public”: Tcpt, 21 November 2019, p 139(17–25).

4. [15]

   I understood what was being sought by this oral application was an order that the name and identity of James should be suppressed, except as may be necessary for the proper conduct of the proceedings, and, in the alternative, an order that the reasons for judgment not be published, or if they were, to identify James by pseudonym. The precise form of the orders being sought was not stated by counsel.

5. [16]

   It is important not to lose sight of the fact that this application was made on the second day of the hearing in Court, following completion of the cross-examination of all of the witnesses, and after the long adjournment. There was no explanation for the delay in making the application.

6. [17]

   Counsel was unable to formulate the basis upon which orders could be made other than to say that it was “that the judgment has the potential to impact on Mr Bowers' future employment”. She then said that she required further time to consider the question and would provide submissions on the topic: Tcpt, 21 November 2019, p 139(36–44). No further reference was made during the remainder of the hearing to those submissions on the topic being provided to the Court.

7. [18]

   For the reasons to which I shall refer, the matter came before the Court again on 27 November 2019 (after judgment was reserved). On this occasion, counsel for James indicated that she wished to provide written submissions on the topic. As the application previously made had not been formally dealt with, I directed that counsel for James provide a copy of any such submissions to counsel for Sara by noon on 29 November 2019, and if there was no objection by Sara, to those submissions being provided to the Court, a copy of those submissions could then be sent to the Court. I indicated that if objection were taken, it would be necessary for James to make any such application formally, and by notice of motion, as the hearing had concluded and judgment had been reserved.

8. [19]

   In an email, apparently sent at 2:58 p.m. on 29 November 2019, to the Court, and to Sara’s legal representatives, counsel for James stated “… the Plaintiff will not be pursuing his application for a non-publication order”.

9. [20]

   It is, therefore, unnecessary to deal with this application further. It is regrettable that the time of the Court, and of the parties, was spent in making an application that, ultimately, did not proceed.

10. [21]

    Next, also, almost at the end of the hearing, and after her submissions had concluded, counsel for James sought leave to re-open his case. Counsel said at Tcpt, 21 November 2019, p 140(26–37):

11. [22]

    Counsel then said, a little later, at Tcpt, 21 November 2019, p 141(17–22):

12. [23]

    The application was opposed by counsel for Sara.

13. [24]

    The basis for the application on behalf of James, as best as I could glean it, was a reference made by the Court, during counsel’s submissions, to the difficulty in accepting his written evidence on alleged “needs”, bearing in mind some of his oral evidence given in cross-examination.

14. [25]

    In his affidavit of 21 October 2019, James had stated, at pars 28–37:

15. [26]

    The oral evidence, given by James, so far as is relevant, at Tcpt, 20 November 2019, p 76(4–10); p 81(21–26), was as follows:

16. [27]

    James repeated the fact that his solicitor had prepared the figures in his affidavit several times in his oral evidence: Tcpt, 20 November 2019, p 79(34–35); p 83(47) – p 84(08). A copy of the actuarial report to which he referred was not tendered. No evidence was given by the solicitor as to how the evidence had been prepared, or otherwise, on the topic.

17. [28]

    James also gave evidence that he had perused advertisements for home units on the Internet, including units situated in Parramatta: Tcpt, 20 November 2019, p 80(39–46). In support of the costs of accommodation, he annexed to his affidavit of 21 October 2019, a copy of two advertisements for one-bedroom apartments for sale in Lane Cove. He had stated, at par 34 of his affidavit, that “[a]s well as the purchase price of the unit I would also incur stamp duty costs of $27,460.00 on a purchase for $710,000.00”. However, he accepted, in cross-examination, that he had not physically inspected either of the one-bedroom apartments to which the advertisements related: Tcpt, 20 November 2019, p 80(42–43).

18. [29]

    Following the conclusion of the cross-examination, the Court enquired of counsel whether there was “[a]nything arising” and was told that there was not: Tcpt, 20 November 2019, p 85(41–47).

19. [30]

    The application, as made, was one to re-open the case for James. It may have really been an application for leave to re-examine James, although this was not entirely clear. Whether it was or not, no reference was made to s 39 of the Evidence Act 1995 (NSW), sub-section (a) of which, effectively, confers upon a party an entitlement to question a witness about matters “arising out of evidence given by the witness in cross-examination” and subsection (b) of which permits other questions to be put, but only with the leave of the Court.

20. [31]

    Re-examination is permitted to remove ambiguity and uncertainty, to qualify or explain evidence of a witness in cross-examination, and “whenever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts related to credibility, which is capable of being construed unfavourably to the party calling the witness and which represent a distortion or incomplete account of the truth as the witness is able to present it”: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater No 21) [2019] NSWSC 294 at [35] (Beech-Jones J), quoting Hadid v Australis Media Ltd (Supreme Court (NSW), 5 November 1996, unrep).

21. [32]

    In Underwood v Gaudron [2014] NSWSC 1055, in relation to an application for leave to re-open, I wrote at [98]–[99]:

22. [33]

    Whether to permit a party to re-open the case has important evaluative, as well as discretionary, aspects. None of the matters to which reference was made in Underwood v Gaudron founded the application made on behalf of James in this case.

23. [34]

    Of course, in determining the application made by James, I also considered s 56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose referred to, namely, to “facilitate the just, quick, and cheap resolution of the real issues in the proceedings”.

24. [35]

    In refusing the application, I had regard to the time at which the application was made on behalf of James. His oral evidence was given on the first day of the hearing. Following that evidence, Sara gave some short evidence, she was cross-examined, and the Court adjourned, shortly before 4:00 p.m. (as the next witness was likely to be cross-examined for longer than the available time than was then available). When Court resumed on the second day of the hearing, counsel for James made no application to re-open the case to permit re-examination of James, or otherwise. Thereafter, two more of the Sara’s witnesses, were cross-examined, and counsel for James had commenced her oral submissions. After she had concluded her oral submissions, and in order to shorten the length of his oral submissions, discussions then took place between the Court and counsel for Sara, to narrow the issues and outline the type of provision that might be made for James.

25. [36]

    Despite the time that had passed since the conclusion of the cross-examination of James, the Court was not informed of the nature of the evidence that he proposed to give if re-examination, or leave to re-open, were allowed. More than an adequate opportunity had been available to James to give instructions to his solicitor, and to counsel, about his evidence to enable the nature of the evidence to be disclosed. The proposed further evidence could have been presented in the form of an affidavit by James, but it was not.

26. [37]

    Furthermore, the duration of the hearing would have been extended by allowing re-examination, or leave to re-open, at that time. I also took into account the strain that allowing further evidence to be given by James, at that stage of the proceedings, would involve, bearing in mind that Sara, Peter, and at least some of James’ children, had been in Court throughout the hearing.

27. [38]

    The statement made regarding the difficulty accepting the written evidence was based upon James’ own evidence, repeated more than once to which reference has been made. There could have been no misapprehension about the questions put to him, or the answers that he had given.

28. [39]

    Also, one should not lose sight of the fact that, at the commencement of her oral submissions, counsel for James had handed up, as an aide memoire, a revised statement of James’ “needs”. This document appeared to acknowledge that the so-called “needs” identified in James’ affidavit were no longer claimed to be his “needs”.

29. [40]

    Nor did I consider that there were any ambiguities, or uncertainties, in the evidence given by James. It did not seem to me that his answers represented a distortion, or an incomplete account, of the truth as he was able to present it. To the contrary, it seemed that the application was being made because he had been cross-examined on his sworn written evidence, and which oral evidence, he may have thought, did not assist his case.

30. [41]

    In all the circumstances, I concluded that the interests of justice did not favour the grant of leave to James to allow re-examination, or of leave to re-open his case. Accordingly, I refused the application.

31. [42]

    I have referred to the evidence given by James on this topic in some detail because it reveals what occurs in so many cases that are now being heard, namely that there is not, although there ought to be, an “objective and balanced consideration … given by litigants and their legal representatives at an early stage (and throughout the proceedings) as to the merits of the proposed application(s), the size of the estate and the likely impact of costs on the distributable estate, when commencing (and continuing) family provision claims”: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [171] (Ward CJ in Eq). The value of the so-called “needs” of James, as originally prepared by his solicitor, would have almost exhausted the whole of the net distributable estate.

32. [43]

    It also suggested that the expectation of the Court that a litigant should be impartially, and independently, advised, by his, or her, legal advisers, as officers of the court, and should not merely be the mouthpiece of that litigant, may not have been met. In Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, Pembroke J, at [22], wrote, in the context of affidavit evidence.

33. [44]

    Furthermore, these applications, which took some time to be determined, did not assist in the containment of the costs of the proceedings.

Applications made after the hearing and during the Court vacation

1. [45]

   Regrettably, after the hearing of this matter had concluded and I had reserved the decision, the time of the Court continued to be occupied by the receipt and consideration of correspondence from James making a number of “applications”.

2. [46]

   On Tuesday 26 November 2019, the Court received email correspondence from Mr Z Hiramanek, a solicitor, which was in the following terms:

3. [47]

   The email did not disclose that it had been sent to Sara’s legal representatives or to the legal representatives who had acted for James during the proceedings.

4. [48]

   At my request, my Associate responded as follows:

5. [49]

   There then followed the following email correspondence, beginning with an email from counsel who had appeared for James at the hearing:

6. [50]

   Several hours later, my Associate received the following, apparently contradictory, email, directly from James:

7. [51]

   Again, at my request, my Associate replied to James and copied in all the relevant legal representatives including those who acted for James at the hearing:

8. [52]

   As the above correspondence demonstrates, it was unclear whether the legal representatives acting for James at the hearing continued to act for him. JusticeLink records revealed that James’ solicitors had not filed any Notice of Intention of Ceasing to Act. As such, I instructed my Associate to send a further email to James and to the legal representatives:

9. [53]

   At about 8:35 a.m., on 27 November 2019, the Court received an email from Ms Bridgett stating that the application was not proceeding. I informed the parties that the matter remained listed.

10. [54]

    At the hearing, Ms Bridgett again appeared for James and Mr Armfield appeared for Sara. James did not attend (although that was upon the advice of counsel). Ms Bridgett informed the Court that “[t]he plaintiff is not self-represented”: Tcpt, 27 November 2019, p 1(21–25). She was unable to explain why he had made that assertion in the email correspondence. She said: “… I got instructions this morning. As soon as I got the instructions that he was to withdraw the application which was on the advice of his solicitors, that I emailed his Honour’s associate to withdraw the application to prevent any further legal costs”: Tcpt, 27 November 2019, p 2(03–08).

11. [55]

    It was at this hearing that counsel for James made an application for what I have described as a non-publication order. On this occasion, I noted that James had made an oral application again in regard to the application made on his behalf that the judgment not be published and made public: Tcpt, 27 November 2019, p 6(09–11).

12. [56]

    Regrettably, that was not the end of the applications made by James. In the period between the re-listing of the matter on 27 November 2019 and the delivery of these reasons, James has sent three emails to my Chambers making various applications. These included attempts to make “[o]ne more submission”, a “further written submission” and a renewal of his application to inspect and copy the Court file.

13. [57]

    It is worth observing that each of these was sent during the Court vacation and, therefore, required further consideration outside the Court’s sitting period. Each of these applications was misconceived, and on my instructions my Associate sent the following email in reply on 28 January 2020:

14. [58]

    Following this, James sent another email, apparently, again, renewing his application to copy the Court the file. At that stage, I instructed my Associate to respond referring to my previous email and indicating that the Court would not respond to any further email correspondence concerning the matter.

15. [59]

    The delay that has been occasioned from considering, and addressing, each of James’ emails, and applications, has put an unnecessary strain on Court resources. The applications for the inspection of the Court file, should never have been made especially in circumstances where his counsel acknowledged, at Tcpt, 27 November 2019, p 2(50) – p 3(11), that:

16. [60]

    James repeated insistence on contacting my Chambers, and the disregard of the correspondence sent to him from the Court, does him no credit. The fact that none of his correspondence appears to have been addressed to the legal representatives of Sara and/or his former legal representatives makes it even worse. This is particularly so when one remembers that James is a legal practitioner, notwithstanding that he is not acting in that capacity in the present matter.

17. [61]

    I should mention that the conduct of James, following the conclusion of the hearing, has not impacted, in any way, on the conclusions reached in respect of his substantive application.

Some formal matters

1. [62]

   Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It was not in dispute that, as a child of the deceased, James is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant, at the time of the deceased’s death, in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person”).

2. [63]

   However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which, and the basis on which the deceased person did so”. This matter will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.

3. [64]

   It was not in dispute that James commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 20 November 2019, p 6(13–16).

4. [65]

   As the deceased left a Will that dealt with all of her property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

5. [66]

   A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. In this case, there was no property that is sought to be designated as notional estate of the deceased.

6. [67]

   Unsurprisingly, Sara does not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Background Facts

1. [68]

   It is next convenient to set out some background facts that are not the subject of any dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.

2. [69]

   The deceased was born in March 1930 and died on 12 January 2018.

3. [70]

   The deceased was the daughter of Mary Scott Fyfe. Mary had left a Will, dated 7 March 1956, in which she had provided to her three sons, the right to reside “rent free for so long as he, or they, shall live and shall desire to live therein”, in a property that she owned in Randwick, a suburb of Sydney, on certain terms and conditions and thereafter Mary was to receive a share of her mother’s estate.

4. [71]

   The precise date of Mary’s death is not known, but by letter dated 22 August 1969, addressed to the executors of her Will, one of her sons gave notice of his intention to reside in the Randwick property. Indeed, the Randwick property was not sold until about May 1976.

5. [72]

   Peter gave evidence, about which he was not cross-examined, that it was not until the sale of the Randwick property, that the deceased received her share of Mary’s estate. With that share, and having also received a share of the estate of one of her brothers, and using the savings that she had, the deceased, in 1977, purchased a property at Willoughby, which was her most valuable asset at the date of death.

6. [73]

   In September 1952, the deceased married Norman John Bowers. The marriage ended by divorce order in February 1981. There is some evidence that the deceased and Norman may have separated in about 1973. Norman died in June 2013.

7. [74]

   There were seven children of the deceased’s marriage, being Rosemary, who was born in June 1953; Peter, who was born in January 1955; Stephen, who was born in August 1956; Sara, who was born in October 1957; John who was born in December 1958; David who was born in October 1960; and James, who was born in March 1963.

8. [75]

   In the mid-1970’s, as a mature age student, the deceased attained a Bachelor of Economics.

9. [76]

   James married Debra Edwards Frances in about 1989. There were three children of the marriage, namely Emma Ann Bowers, who was born in February 1992; Jeremy Thomas Bowers, who was born in December 1996 and Tamara Jane Bowers, who was born in November 1998. (Regrettably, James does not have contact with any of the children. I shall return to several aspects of his conduct, with regard to his children, later in these reasons.)

10. [77]

    James’ marriage to Debra ended by divorce order made in 2007. They had separated in January 2006: Ex 3. James and Debra entered into a financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth) in August 2007. They reached an agreement on matters involving their children and also on financial matters.

11. [78]

    At the time of separation, James and Debra owned a property at Lindfield. It was the major matrimonial asset. It was sold after they separated, and the net proceeds of sale were shared, equally, between them.

12. [79]

    Although James averred in his second affidavit to having received $250,000, (which he orally admitted was wrong (Tcpt, 20 November 2019, p 33(25–33)), and in his affidavit in reply, to having received “around $550,000” (which he stated was “my recollection at the time” (Tcpt, 20 November 2019, p 34(40–45)), I am satisfied, from Debra’s evidence, which I accept, that the amount that he and she each received from the proceeds of sale of the Lindfield property, was $680,000 or $690,000: Tcpt, 21 November 2019, p 114(48) – p 115(11).

13. [80]

    A further reason for not accepting James’ written evidence, is that Ex 2, being a copy of a report dated 5 September 2012 from NHS Ealing Mental Health and Wellbeing Service, relied upon by him, records that James had told the author of the report that “as part of his divorce settlement he was awarded £400,000 …” He orally accepted that, at the time he made the statement, that amount would have equated to about AUD717,000: Tcpt, 20 November 2019, p 37(31–37).

14. [81]

    When the children were young, Debra would take them to visit the deceased “quite frequently and she was a regular guest at our home. The children and I were invited to all family events, which we attended”: Affidavit, Debra Edwards Frances, 1 May 2019 at par 16. Debra’s close relationship with the deceased continued after the dissolution of her marriage to James.

15. [82]

    Debra is currently employed as a management consultant. Two of the three children of the marriage live with her, in the home at Paddington, a suburb of Sydney, which she owns, and she provides for them, financially, to the extent that they are not able to provide for themselves.

16. [83]

    In 2013, James married Ausra Gintalaite. She has a daughter, Gabrielle, who is 19 years old. They all lived together from about 2009. James and Ausra separated in about June 2018. There may have been a short reconciliation later in 2018, but in an email dated 19 December 2018, addressed to his brother, John, James stated “I broke up with Ausra again”.

17. [84]

    James repeated the assertion of his final separation in a Review and Submit Details Request, dated 18 December 2018, addressed to Centrelink: Ex 5.

18. [85]

    There was no evidence of the deceased having met either Ausra or Gabrielle.

19. [86]

    Following the separation, James returned from the United Kingdom, to Australia. He has continued to live in Sydney.

20. [87]

    James stated that he believes that “my wife may make a claim for property settlement, but no such claim has presently been made”: Affidavit, James Richard Bowers, 6 March 2019 at par 19. James gave no evidence about the potential value of any claim for property adjustment that might be made by Ausra and how any such claim might impact his financial circumstances.

21. [88]

    (I have considered the potential claim by Ausra, but any claim would be based, at least in part, upon her financial and non-financial contributions to their pool of assets. In any event, there is no suggestion of any financial, or other, contribution, by either James, or Ausra, to the estate of the deceased. There was no evidence about Ausra’s financial circumstances or her resources.)

22. [89]

    James is a qualified solicitor holding Bachelor of Economics and Bachelor of Laws degrees. He also has a Bachelor of Civil Law with Honours from the University of Oxford. I shall return to his financial circumstances, resources, and asserted “needs”, as finally advanced, later in these reasons.

23. [90]

    There is no suggestion that James made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the deceased’s estate, or to the welfare of the deceased, or to the welfare of members of the deceased’s family, before, or after, the deceased’s death. However, as a child of the deceased, and in the absence of any evidence of a poor relationship between son and mother, I am prepared to infer that he made some contribution to her welfare.

24. [91]

    I shall refer to the provision made for James later in these reasons. There is no evidence that the deceased made any contribution to him after he became an adult. It is clear that he was not wholly, or partly, dependent upon her, financially, for many years before her death. In other words, he was not being maintained, either wholly or partly, by the deceased before her death.

25. [92]

    Very little is known about the other children of the deceased. Rosemary is employed as a managing director and her husband, John, is a lecturer. They have three children, Patrick, Emily and James. Peter is a retired medical researcher. He is divorced and lives in Miami, Florida, in the United States of America. His children are Samuel Francis Bowers and Harriet Louise Bowers. Stephen is a retired solicitor. He is married to Sue, who is also a retired solicitor. Sara is a retired Crown Prosecutor. David is a doctor. John is a Crown Prosecutor.

26. [93]

    The deceased’s two grandchildren, who are named as beneficiaries in Clause 3(b) of her Will, are Samuel, who was born in April 1987 and Harriet, who was born in November 1988. Nothing is known about the financial resources (including earning capacity) and financial needs, both present and future, of either of them.

27. [94]

    None of the siblings, other than Sara and Peter, gave evidence. Sara’s affidavits were essentially formal affidavits that dealt with the nature and value of the deceased’s estate at the date of death and at the date of hearing. Peter’s first affidavit was one in reply. His second affidavit provided evidence regarding Mary’s Will and Estate. Neither Sara nor Peter gave evidence about her, or his, financial resources (including earning capacity) and financial needs, both present and future. Each of them was cross-examined.

28. [95]

    James gave evidence that he did not know the financial circumstances of his siblings but believed that each was “very comfortable financially”: Affidavit, James Richard Bowers, 6 March 2019 at par 13.

29. [96]

    Each of Emma, Jeremy, and Tamara, who are named as remainder beneficiaries in Clause 3(f) of the deceased’s Will, gave evidence of her, and his, financial resources and needs, respectively. None of them was cross-examined.

30. [97]

    Each of the remaining beneficiaries is entitled to elect to remain silent about her, or his, financial resources and needs, respectively, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and her preferable disposition to that beneficiary, respectively, as a beneficiary, regardless of her, or his, financial resources or needs. The Act specifically provides that her, or his, interests, as a beneficiary, cannot be disregarded, even though she, or he, has not made a claim: s 61. Each is entitled to rely upon the terms of the Will and her, or his, competing claim as a chosen object of the deceased’s testamentary bounty.

31. [98]

    In Sammut v Kleemann [2012] NSWSC 1030 at [137]–[140], I set out the principles in a case where a beneficiary does not disclose her, or his, financial resources. I shall not repeat what I wrote there.

32. [99]

    The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 [94]; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing), stated the principle, far more succinctly:

33. [100]

    Also see Poletti v Jones (2015) 13 ASTLR 113 at 118 [23]; [2015] NSWCA 107 at [23] (Basten JA, Leeming JA agreeing).

34. [101]

    Even if the Court may infer that each of the beneficiaries, other than Emma, Tamara and Jeremy, has no financial need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than James, the beneficiary’s silence does not mean that her, or his, competing claim should not be evaluated. As will be read, what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

35. [102]

    In reaching the conclusion in regard to the family provision order sought by James, the Court will not disregard the competing interest of any beneficiary as a claimant upon the bounty of the deceased and a chosen object of the deceased’s bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ, McTiernan J agreeing); [1962] HCA 19.

The deceased’s Will

1. [103]

   By her Will dated 21 June 2017, the deceased:

2. [104]

   There was no dispute that by Clause 3(f) of her Will, the deceased had created a testamentary discretionary trust in which the principal discretionary object was James.

Eligible Persons

1. [105]

   The only eligible persons are the seven children of the deceased. Of the deceased’s children (other than James), only Sara, as the Defendant/executrix, and Peter, gave evidence.

2. [106]

   There was no dispute that each of Emma, Jeremy, and Tamara is not an eligible person: Tcpt, 20 November 2019, p 6(05–07).

3. [107]

   Only James has made a claim for a family provision order. However, Emma, Tamara and Jeremy, is each a witness, called in Sara’s case, who has raised her, and his, financial circumstances, respectively, as a competing financial beneficiary. I shall return to the financial circumstances of each later in these reasons.

The nature and value of the deceased’s estate

1. [108]

   In accordance with a direction made by the Court on 28 October 2019, the parties, provided an Agreed Schedule, but on the second day of the hearing, provided an amended Agreed Schedule that contained:

2. [109]

   I have taken what follows from the amended Agreed Schedule, a copy of which was marked as Ex AS1, the following information (omitting a reference to cents, which may explain any apparent arithmetical error). This evidence is not the subject of dispute.

3. [110]

   As at the date of death, and according to the Inventory of Property attached to the Probate document, the deceased's estate consisted of:

4. [111]

   Pursuant to Sara’s affidavit sworn 21 October 2019, the deceased's estate, at that time, consisted of:

5. [112]

   In order to finalise the estate, the shares with Telstra and NIB Holdings will need to be sold. The parties agreed that the estimated costs involved, and the potential CGT on the sale would be relatively modest, and that the estimated costs and expenses, and CGT, if any, was not included in the Agreed Schedule.

6. [113]

   The gross value of the deceased’s estate, at the date of hearing, was $1,913,135. Each one-sixth share, at this time, with no deduction for the costs of the proceedings, would have equated to $318,855.

Costs and Disbursements of the Proceedings

1. [114]

   Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

2. [115]

   Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

3. [116]

   On the second day of the hearing, the Court granted leave to file an affidavit of Mr A Ng, the solicitor with the conduct of the case on behalf of James. He disclosed that the estimated costs and disbursements for James, calculated on the indemnity basis, were $137,500; and that the estimated costs and disbursements, calculated on the ordinary basis, were $96,250 (inclusive of GST). At the time of the making of Mr Ng’s affidavit, James had not paid any of these costs and disbursements.

4. [117]

   Mr Ng’s also stated that the costs and disbursements are not payable on a conditional basis and that there is no uplift factor in respect of those costs and disbursements. The affidavit further disclosed, however, that there is a conditional fees agreement with counsel, and that her fees are to be paid on a conditional basis. There is no uplift fee in respect of those fees.

5. [118]

   Also, on the second day of the hearing, the Court granted leave to Sara to file an affidavit of Ms K J Fulcher, the solicitor with the conduct of the case on behalf of Sara. She disclosed that the estimated costs and disbursements for Sara, calculated on the indemnity basis, were $134,485; and, as set out in the Agreed Schedule at par D, Sara’s estimated costs and disbursements, calculated on the ordinary basis, were $94,139 (inclusive of GST).

6. [119]

   Ms Fulcher also disclosed that Sara has paid, out of the estate of the deceased, amounts totalling $44,585. It follows that the balance of Sara’s costs and disbursements, calculated on the indemnity basis, is $89,900.

7. [120]

   In the course of the discussion during the opening of the case, counsel for the parties agreed that in the event that James was successful in obtaining an order for provision, the usual order for costs should be made. In the event that James was unsuccessful, counsel for James stated that she would wish to make submissions that his costs should come out of the deceased’s estate: Tcpt, 20 November 2019, p 11(15–40).

8. [121]

   Later, counsel for Sara stated that Sara would not seek costs from James in the event that the Summons was dismissed: Tcpt, 21 November 2019, p 134(11–13). Because of the result of the proceedings, this is no longer a relevant matter.

9. [122]

   Shortly before the conclusion of the hearing, the Court was informed that in the event that James were successful, a gross sum costs order for $96,250 could be made for his costs and disbursements calculated on the ordinary basis, and that a gross sum costs order for $90,000 could be made, being the balance of Sara’s costs and disbursements, calculated on the indemnity basis. (The parties and their legal representatives are to be commended for reaching agreement on the quantum of costs, as it was clearly in their interests, and in the interests of the beneficiaries, to do so. The duration of the administration of the estate will now be shortened as costs will not have to be formally assessed.)

10. [123]

    The total of the costs and disbursements that will be ordered to be paid out of the deceased’s estate, taking into account the amount already paid on account of Sara’s costs, will be $186,250.

11. [124]

    It follows that the value of the available net distributable estate out of which an order for provision could be made was $1,726,885. It also follows that, each one-sixth share of the deceased’s estate, will now equate to about $287,814.

The deceased’s testamentary intentions

1. [125]

   Whilst the Act refers to “testamentary intentions of the deceased” (see, for example, s 8 and s 60(2)(j)), there is no definition of that term in the Act.

2. [126]

   James stated, more than once, during his evidence, that the deceased did not discuss her testamentary intentions with him. He did, however, rely upon various documents said to support the submission that her intention was for him to receive the whole of her estate. As late as in his counsel’s written closing submissions, it was submitted that:

3. [127]

   The documents which I have read, and to which I shall refer, and the evidence of various conversations that I accept were had with the deceased, do not support this submission. In my view, the documents relied upon are merely part of the instructions to a solicitor for the preparation of her Will and, as will be read, only part of her deliberations for the ultimate distribution of her estate on her death.

4. [128]

   There was no evidence of any formal, duly executed, Will, other than the last Will of the deceased.

5. [129]

   There is some evidence that, in August 2016, prior to making her final Will, the deceased had attended upon solicitors, with Peter, and had given instructions for the preparation of a Will. There is a diary note, dated 19 August 2016, of instructions, which refers to the fact that the deceased had 7 children; that James had a “mental disability” and that he “lives in London”. There is a reference to a “trust” of the whole estate, with James as the “principal beneficiary”. The “income [was] not to effect [sic] Centrelink entitlements”. On James’ death, the estate was to be divided between the deceased’s remaining children, other than David, and with one share passing to Emma, Tamara and Jeremy. Later, in the diary note, there is a reference to “1/6 to each child” with “James’ share to be held by John and Sara on protective trust”, with the residue to Emma, Tamara and Jeremy.

6. [130]

   I am satisfied that the deceased, at the time the diary note was created, had not finally determined how her property was to pass, or be disposed of, after her death, and that she was, then, still contemplating, and seeking advice on, the different ways of distributing her estate. This conclusion is confirmed when one considers the evidence of what followed the initial instructions from the deceased.

7. [131]

   By letter dated 13 October 2016, Mr Cameron of Cameron Legal, sent to the deceased a draft Will, an Enduring Power of Attorney and an Appointment of Enduring Guardian. The draft Will provided, in the event that James survived the deceased, for the executors to settle the residue of the estate on a testamentary trust, “The James Richard Bowers Testamentary Trust”, with the “Income Beneficiary” being James, the “Default Beneficiaries” being Rosemary, Samuel, Harriet, Stephen, Sara, John, Emma, Tamara and Jeremy and the “Vesting Day” being the date of death of James.

8. [132]

   Clause 8.2 of this draft Will provided:

9. [133]

   Clause 11.4 of this draft Will provided that the Trustee had the power to:

10. [134]

    Further instructions must have been received from the deceased because there are, then, other draft Wills, subsequently prepared, and sent to the deceased for her consideration. For example, under cover of a letter dated 6 December 2016, from Cameron Legal, a draft Will was sent to the deceased.

11. [135]

    On 13 March 2017, there is a reference to Peter having “phoned to book an appointment for his mother Beth Bowers for 18 April 1:00 pm to finalise her Will”.

12. [136]

    A further draft Will was then sent under cover of a letter dated 3 May 2017, from Mr Cameron to the deceased. There is another draft Will, with handwriting on it, which appears to be the draft of Clause 3(f) of the final Will of the deceased.

13. [137]

    The deceased gave further written instructions for changes to her Will by email dated 7 May 2017, addressed to Mr Cameron. These instructions included that James was to receive $20,000 “when the will is executed” out of the one-sixth share that was to be held in trust for him and “David … [was] to accept the money I gave to him during the 1990’s as his share of my estate”. (There is no suggestion that anyone other than the deceased sent this email.)

14. [138]

    The draft of her final Will was sent to the deceased under cover of a letter dated 2 June 2017. The deceased signed the Will on 21 June 2017.

15. [139]

    Having read the documents annexed to James’ affidavit, I am satisfied that the deceased did not have any fixed, and final, testamentary intention until she signed the Will, Probate of which has been granted. This is not to say that she did not contemplate different provision to be made for James. However, none of the considerations included leaving her whole estate to him absolutely.

16. [140]

    Peter gave oral evidence that he had suggested a form of trust to the deceased in relation to the one-sixth share to be held for James: Tcpt, 21 November 2019, p 118(09–11). I accept that he did so, but it was the deceased who executed the Will in which his suggestion was taken up.

17. [141]

    Peter also gave the following evidence:

18. [142]

    (There appears to be an error in the transcript of proceedings which refers to an objection taken by counsel for James to the second sentence of par 19 of Peter’s affidavit. Following that objection, counsel for Sara declined to press the sentence and as a consequence I did not read it: Tcpt, 20 November 2019, p 16(06–13). In fact, the notation made on the affidavit in the Court file depicts that objection was taken to the third, not the second, sentence of par 19, and it is that sentence which is omitted from the quote above and which I have not read.)

19. [143]

    In cross-examination, Peter gave the following evidence:

20. [144]

    Bearing in mind that James gave evidence that the deceased did not ever discuss her testamentary intentions with him, and as James was not present at the conference referred to, it is difficult to understand how the questions could have been asked in the form that they were. Be that as it may, having read the evidence advanced on this topic, and having seen Peter give his evidence, I have no hesitation in accepting that he did not make any suggestion that “the beneficiaries should receive their legacy before James’ death”. Rather, I consider that the genesis of the deceased’s decision was her own experience with Mary’s estate, to which reference has been made.

21. [145]

    Peter also gave evidence, about which he was not cross-examined, that the deceased knew that James had been suffering from a mental illness; that James’ work history was irregular; and at times, he had worked for several months and at other times, he was unemployed but seeking employment.

22. [146]

    James acknowledged in a handwritten note addressed to Centrelink (Ex 12), that the deceased “left my 1/6th share on trust with my brother and sister owing to my mental illness”. He acknowledged, in his oral evidence, that this may have been the reason for creating the trust in the Will, although he maintained his denial that she had discussed her concerns with him: Tcpt, 20 November 2019, p 69(45) – p 70(18).

23. [147]

    His oral evidence on this topic was:

24. [148]

    Peter also gave evidence, which I accept, that:

25. [149]

    Although it was denied by James, I find it likely that the deceased did tell James that he should buy a unit with the proceeds from the property settlement: Tcpt, 20 November 2019, p 44(38–47).

26. [150]

    Debra gave evidence that, following her separation from James, their three children remained living with her: Tcpt, 21 November 2019, p 105(03–05). She also gave evidence that her income was sufficient to enable her to support the children: Tcpt, 21 November 2019, p 106(03–05). She also gave written evidence, about which she was not cross-examined, of having had a number of conversations with the deceased. She wrote:

27. [151]

    Whilst James did not deny that he had not provided financial support to his children, Debra denied the proposition, advanced on behalf of James, that he had not paid child support because he could not afford to do so. She gave evidence that “after the financial settlement occurred and the money went into our respective bank accounts, James went on an extended overseas holiday for more than six months”: Tcpt, 21 November 2019, p 114(35–41).

28. [152]

    There is also in evidence a copy of a letter, dated 8 February 2007, from Adrian Twigg & Co, James’ then lawyers, to Debra (Ex 3), in which it was stated that James had:

29. [153]

    There is no suggestion, made in this letter, that James was financially incapable of doing so at this time.

30. [154]

    In relation to these matters, I accept the evidence of Peter and Debra where it conflicts with the evidence of James.

31. [155]

    Counsel for James maintained throughout her submissions that the deceased intended to provide for James but that she had mistakenly believed that he had a “mental disability” and that the deceased “did not properly appreciate all the circumstances surrounding [his] mental health needs”. If this submission was intended to mean that the deceased did not have any medical evidence which suggested a causal connection between the medical conditions from which James suffered and his then spending habits, that submission should be accepted. More recent medical evidence, which was read in the proceedings, does not support such a current connection either.

32. [156]

    However, bearing in mind all of the evidence, I am satisfied that the deceased did know that James had not used any part of the proceeds of his property settlement with Debra to purchase accommodation for himself, or to pay child support for any of his three children. I also accept that the deceased had suggested to James that he purchase such accommodation and that, generally, she was aware of his pattern of behaviour when it came to spending money on himself.

33. [157]

    The deceased was entitled to, and did, take into account her obligation to make provision for each of her other children and if appropriate, her grandchildren. She carefully considered, over a prolonged period of time, that obligation, and she determined to make provision for each, other than David, for whom she believed provision had been made during her lifetime. (As stated, David has made no claim for provision.) Peter also did not receive anything under the Will, but his “share” appears to have been gifted to his children. These seem to be the reasons why the deceased made her final Will in the way that she did.

James’ medical condition

1. [158]

   There was no dispute that James has been suffering from some forms of mental illness for many years. The deceased appears to have recognised this.

2. [159]

   A summary of the medical records in evidence (Ex A) reveals:

3. [160]

   There is a report about James’ medical conditions dated 10 September 2018, from Dr Julian Short, a consultant psychiatrist. James has consulted Dr Short twice, once in January 2005, and then on 7 August 2018. Dr Short reported that “[O]ver the course of time, Mr Bowers’ diagnosis has changed and it has emerged that he suffers a severe Schizophrenic illness” (emphasis removed from original). The report goes on:

4. [161]

   It seems likely that the picture of James’ ability to maintain employment is not as bleak as Dr Short suggested. It does not appear that, since the report was prepared, and at a time closer to the hearing, Dr Short was informed that James had been in employment since 10 July 2019 or that he was in employment at the date of the hearing: Tcpt, 20 November 2019, p 71(45) – p 72(05). (No subsequent report by Dr Short was in evidence.)

5. [162]

   It was not suggested that stable employment is not maintained because he is a malingerer. To the contrary, I formed the impression that James is highly motivated to seek, and try to maintain, employment as a solicitor.

6. [163]

   Whilst it was suggested that his inability to maintain a job is because of an inability to take direction, there was no evidence about this. Neither was there any evidence from any employer that he had been terminated because of his mental state: Tcpt, 21 November 2019, p 111 – p 112. Regrettably, there was no evidence, at all, from any employer, as to the reasons for the termination of his employment.

7. [164]

   Bearing in mind that he is compliant with his medication regime, it is not clear why the medications that are prescribed, and that he takes, do not alleviate the symptoms of his condition.

8. [165]

   Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he, or she, has a significant earning capacity. Earning capacity is measured “by reference to the individual, when viewed with all his, or her, characteristics, in the labour market”: Nominal Defendant v Livaja [2011] NSWCA 121 at [65] (Basten JA for the Court), followed in Mead v Kerney [2012] NSWCA 215 at [18] (Macfarlan JA, McColl JA and Sackville AJA agreeing); Dal v Chol [2018] NSWCA 219 at [9] (White JA); and in Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 at [45] (Macfarlan JA, White JA agreeing), [91]–[92] (Payne JA). Yet, common experience demonstrates that there are many people in the workplace, and in society generally, who might well be described as suffering from depressive illnesses, who manage to hold down, successfully, positions of employment.

9. [166]

   The medical evidence, overall, does not lead to the conclusion that James does not have any earning capacity: s 60(2)(d) of the Act. It does seem clear, however, that his illness has a profound effect on his interpersonal relationships, and that this may be a factor, but not the only factor, that affects his capacity to maintain stable employment.

10. [167]

    Having read all of the evidence, I am satisfied that whilst James is able to, and currently does, work as a solicitor, it may be that his employment will not always be permanent, stable, or continuous. There may be periods of unemployment, the precise medical reasons for which, ultimately, probably do not matter.

James’ ability to manage money

1. [168]

   The parties spent far more time, and energy, on whether James could handle money. This issue arose as a result of what was said to be the deceased’s concern that he was dissipating the proceeds from his property settlement and that he should not be provided with a capital sum. I have dealt with some of the evidence earlier.

2. [169]

   If James had any problem handling money during his marriage to Debra, she did not give evidence that it caused them much, if any, financial hardship.

3. [170]

   There is evidence, however, that, by about August 2011, James had spent virtually all of what he had received, in 2007, from his property settlement with Debra, as well as the income that he had earned during that period.

4. [171]

   In an email dated 13 August 2011, James told Peter that he was “doing it tough … and was wondering if you could see your way clear to lend me some money”. Peter responded that he would not send money to James in London, but would send a “one-way, non-refundable, airline ticket to get you back to Sydney”. The offer was rejected: Ex 7.

5. [172]

   James stated, more than once, that he did not believe that he required someone to look after his finances. He added:

6. [173]

   This view is slightly different to what he is recorded as having told the Gateway Worker in Ex 2. In September 2012, James is recorded as having said that he “puts his spending habit down to his mental state”. Despite acknowledging that he had said this, he denied that “that is a problem that still continues to exist”: Tcpt, 20 November 2019, p 69(17–26).

7. [174]

   Counsel for Sara cross-examined James on expenditure after 2006. He suggested that James had received, by way of the property settlement, and the amount received in 2017, by way of the litigation about $1.0 million, and that amount had all been spent. Whilst James accepted that about $1.0 million had been received, and spent, he did not consider “that to be an excessive amount”: Tcpt, 20 November 2019, p 69(08–15).

8. [175]

   The earlier comment that the parties spent far too much time, and effort, on this issue, is demonstrated by the fact that there was tendered on James’ behalf, and marked as Ex B, a folder comprising over 830 pages of bank statements (together with an aide memoire) (to none of which was specific reference actually made), whilst Sara tendered, as Exhibits 8, 9, 10 and 11, a summary of transactions on his Metro Bank (Metro) Card, his HSBC credit card, for his hotel expenses whilst he was in Sydney in 2018, and of his taxi expenses (upon which James was cross-examined).

9. [176]

   Exhibit 8 revealed that in the period between July and December 2018, he had spent via his Metro credit card account £29,615.

10. [177]

    Exhibit 9 was a summary of expenditure on his HSBC account which revealed expenditure of £47,178 in the years 2009 to 2013.

11. [178]

    Exhibit 10 was a summary of James’ accommodation expenses at two hotels in Sydney. At the first, a hotel in Potts Point, the summary disclosed that James spent a total of about £6,007 between June and October 2018. In cross-examination, James denied that this was expensive: Tcpt, 20 November 2019, p 68(18–20). The second hotel was a holiday apartment complex in Manly Beach. The summary disclosed that James spent a total of about £3,699 in August 2018.

12. [179]

    Exhibit 11 was a summary of taxi charges incurred by James during the period July 2018 to October 2018. The summary disclosed that James spent £888.10 on taxis in that period.

The relevant law when an applicant may dissipate the provision made

1. [180]

   In Green v Perpetual Trustee Co Ltd (Supreme Court (NSW), 10 July 1985, unrep), Hodgson J (as his Honour then was) wrote, at 12, that the Court could not “have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order” which was made, and that “such consideration could suggest that there should be terms attached to the order to prevent dissipation”.

2. [181]

   In Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep) Powell J (as his Honour then was) referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour wrote, at 43:

3. [182]

   As was written by Young CJ in Eq, in Carroll v Cowburn [2003] NSWSC 248 at [17], “merely because there is a fear that a successful plaintiff might squander his or her benefaction is no reason not to provide for the plaintiff …”, although the plaintiff’s financial habits may bear on the form of the order made.

4. [183]

   Campbell JA (Giles JA and Handley AJA agreeing) wrote in Hampson v Hampson (2010) 5 ASTLR 116 at 136–137 [96]–[101]; [2010] NSWCA 359 at [97]–[102]:

5. [184]

   Hampson v Hampson was a case involving the applicant’s use of marijuana, and was not one involving the assertion that the provision made would be otherwise wasted.

6. [185]

   In Leary v NSW Trustee and Guardian [2017] NSWSC 1113, Ward CJ in Eq, at [89]–[103], dealt with the authorities in some detail. I shall not repeat what her Honour wrote in that case.

7. [186]

   The words of Lord Hoffmann (Lord Mackay agreeing) in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368; [1999] UKHL 35, albeit in a completely different context, should be remembered:

8. [187]

   Lord Hope (Lord Mackay agreeing), at 379–380, said much the same thing:

The financial resources (including earning capacity) and financial needs, both present and future, of James

1. [188]

   James’ assets comprise as at 7 November 2019, cash savings ($7,013). He does not have any debts. Since July 2019, he has been renting a small house in Parramatta ($435 per week). He does not cohabit with another person.

2. [189]

   James commenced employment on 10 July 2019 as an employed solicitor and his monthly salary is $5,724. His estimated monthly expenses are approximately $4,640. He does not have any dependants.

3. [190]

   I have earlier referred to what are said to be his “needs”. In the “aide memoire” handed up during her submissions, counsel for James set out his revised “needs” as follows:

4. [191]

   The total of these “needs” amounts to $1,248,268. That equates to about 72 per cent of the value of the net distributable estate of the deceased.

5. [192]

   There is other evidence, relied upon by Sara, which discloses that accommodation in Parramatta, the suburb in which James currently works, is significantly less expensive than the cost of accommodation in the Lane Cove area where James said that he wants to live: Ex 14.

6. [193]

   James gave evidence that he has not made any enquiry from any bank as to whether he would be able to borrow money to assist in the purchase of accommodation. He said, at Tcpt, 20 November 2019, p 85(27–39), that he had not done so:

7. [194]

   James then added:

8. [195]

   Whilst counsel for James submitted that he is aged 56 years old, and that he has a life expectancy of approximately 27 years, there was no evidence that any discount had been used in calculating the “lifetime costs” set out above.

9. [196]

   In addition, there was insufficient evidence to satisfy me that James would require psychiatric care, involving monthly visits to a psychiatrist, for the remainder of his life. Certainly, there was no evidence that he has had such regular psychiatric care to date. Indeed, as was pointed out by his counsel, he “has no history of being non-compliant … with his medication or having had any admissions into a psychiatric hospital”: Plaintiff’s Closing Oral Submissions, 21 November 2019 at par 18.

10. [197]

    It was asserted that there is no other person liable to support James. On occasions in the past, he has obtained the assistance by way of a pension, or other social security benefits, during periods of unemployment.

The competing claims of Emma, Tamara and Jeremy

1. [198]

   Each of James’ children has put on evidence of her, and his, financial circumstances. None of them was cross-examined.

2. [199]

   Emma is now almost 28 years old. She resides in Barton, in the ACT, with two flatmates. She is employed as a Legal Policy Officer at the Department of Prime Minister and Cabinet. She receives a gross annual salary of $102,971 per annum. Her employer also makes compulsory superannuation contributions comprising 15.4% of her fortnightly contribution salary. She receives about $90 per annum in interest. Her total gross income is about $103,061.

3. [200]

   Emma will commence a 12 month judicial associateship. During this period her salary will reduce to $72,948 gross per annum. She will receive compulsory superannuation contributions.

4. [201]

   Emma has about $33,036 in the bank and a car ($2,000). She also has superannuation ($33,623) which is not immediately accessible. She has a HECS liability of $16,157.

5. [202]

   Emma’s expenditure is in the order of $80,000 per year.

6. [203]

   Emma wishes to undertake a Master of Laws degree in the USA. The estimated cost is over USD$90,000.

7. [204]

   Emma suffered a sporting injury to her knee in August 2019. The estimated costs of recovering from the injury are $6,800.

8. [205]

   Tamara is now aged 21. She resides with Debra and Jeremy in Debra’s home in Paddington, a suburb of Sydney.

9. [206]

   Tamara is employed casually at the Round House Bar at University of NSW. Her annual income is approximately $6,500 after tax. Her annual expenditure is $10,810. Her mother pays for most of these expenses.

10. [207]

    Her personal assets consist of money in the bank ($7,200). She has superannuation ($450), which is not accessible.

11. [208]

    She, too, has a HECS liability of $19,500. She wishes to pursue a career in psychology.

12. [209]

    Jeremy is now 23 years old. He resides with Debra and Tamara in the Paddington home.

13. [210]

    He is a fulltime student in his Honours year in psychology at the University of NSW. He had previously received a student allowance but this has now ceased. His total assets are the money in his bank account ($257) and superannuation ($1,270) which is not currently accessible.

14. [211]

    Jeremy has a HECS liability of $23,190. He wishes to continue his studies, including pursuing a career in medicine. His annual expenditure is $10,043. His mother pays for most of these expenses.

15. [212]

    Counsel for Sara stated that the three children of James should receive an equal share of the estate divided between them after any provision made for James. Perhaps demonstrating the conduct of James towards his own children, James made the submission that they should not receive any provision now. Somewhat ironically bearing in mind his claim, it was put that they should not do so “because the deceased's intention was that they should not get it”: Tcpt, 21 November 2019, p 156(50) – p 157(20).

16. [213]

    Of course, the Court may “make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order”: s 66(2) of the Act.

17. [214]

    When this was raised with counsel for James, her response was, at Tcpt, 21 November 2019, p 157(31–38):

18. [215]

    Since it will not impact upon the order that I shall make for James, I propose to make an order in favour of each of his three children since by making an order in his favour, in lieu of the provision made for him in the Will of the deceased, Emma, Jeremy and James are affected by the family provision order because there is no real possibility that they will receive any part of the share referred to in Clause 3(f) of the deceased’s Will. It is just and equitable to do so in all the circumstances of the case.

19. [216]

    James also made the submission, without any logical, or indeed any, basis, being provided, that “the grandchildren … Samuel and Harriet should bear the burden before the other beneficiaries bear the burden”: Tcpt, 21 November 2019, p 162(05–09). I do not accept this submission. Furthermore, it was not submitted by Sara, on behalf of the other beneficiaries that Samuel and Harriet should do so.

The Statutory Scheme

1. [217]

   I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases.

2. [218]

   Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly in this case, the Court is satisfied as to matters, namely that:

3. [219]

   Only if satisfied of each of those matters, can the Court then 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.

4. [220]

   Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for 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 made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance 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 or advancement in life of the applicant.

5. [221]

   The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434–435 (Barwick CJ), 443 (Mason J); [1980] HCA 14.

6. [222]

   “Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97 [34]; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), 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”.

7. [223]

   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) 35 WAR 127 at 145 [72], [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.

8. [224]

   In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

9. [225]

   In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502:

10. [226]

    In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:

11. [227]

    White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283–284 [123]; [2013] NSWSC 522, wrote, at [123]:

12. [228]

    In Ilott v The Blue Cross [2018] AC 545 at 564–565 [14]–[15]; [2017] UKSC 17, a claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63, Lord Hughes JSC (Lord Neuberger PSC, Baroness Hale DPSC, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption JJSC agreeing), in defining “maintenance”, wrote, at [14]–[15]:

13. [229]

    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 applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of “needs” which an applicant cannot meet from his, or her, own resources will always be highly relevant, and quite often decisive, as 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 her or his proper maintenance, education and advancement in life: Singer v Berghouse at 227 (Gaudron J, albeit her Honour was in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J).

14. [230]

    In Devereaux-Warnes v Hall (No 3), at [81]–[84], Buss JA (as his Honour then was) wrote:

15. [231]

    However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

16. [232]

    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.

17. [233]

    Of course, “need” is 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 (the former 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] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:

18. [234]

    In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added:

19. [235]

    However, no narrow view of what is encompassed by the concept of “need” is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1, Bryson J (as his Honour then was) commented, at 8, that “[i]t does not seem possible to give a complete or exhaustive statement of the concept”.

20. [236]

    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.

21. [237]

    If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

22. [238]

    The measure of adequate provision is determined by reference to what the applicant needs for their proper maintenance and not by reference to a need to achieve “equality”.

23. [239]

    As was written in Blore v Lang (1960) 104 CLR 124 at 134–135 (Fullagar and Menzies JJ, albeit in dissent); [1960] HCA 73:

24. [240]

    Section 60 of the Act provides:

25. [241]

    It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [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 purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

26. [242]

    In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA wrote:

27. [243]

    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 Act does not provide guidance as to the relative weighting of each factor. The weight of each 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 are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based.

28. [244]

    Furthermore, 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.

29. [245]

    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).

30. [246]

    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.

31. [247]

    The Court should, and does, give considerable weight to the deceased’s wishes in recognition of the better position in which he, or she, was placed. Of course, this is subject to the qualification that the Court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the Court is considering the application, rather than at the time of the deceased’s death or will: Slack v Rogan; Palffy v Rogan at [127].

32. [248]

    Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales at 19, commented upon the consideration that was to be given to the deceased’s wishes:

33. [249]

    In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:

34. [250]

    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:

35. [251]

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

36. [252]

    In Squire v Squire [2019] NSWCA 90, Meagher JA (Macfarlan JA and Simpson AJA agreeing) wrote, at [10], that the discretionary power to make a family provision order:

37. [253]

    But, as was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 368 ALR 161 at 180 [97]; [2019] NSWCA 114 at [97]:

38. [254]

    In Olsen v Olsen [2019] NSWCA 278, White JA (Meagher JA and Emmett AJA agreeing), at [75]–[76], concluded:

39. [255]

    The different expressions of the freedom of testation are, in my view, different ways of expressing the same judgment required to be made by the Court. Ultimately, there should be no predisposition against, or for, the making of an order for provision.

Some Additional Principles

1. [256]

   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.

2. [257]

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

3. [258]

   Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

4. [259]

   As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

5. [260]

   Of course, 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) at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

6. [261]

   In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson [2017] NSWCA 326 at [67] (White JA, McColl and Payne JA agreeing).

7. [262]

   The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202–203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).

8. [263]

   The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.

9. [264]

   In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA (Beazley and Basten JJA agreeing), noted that Singer v Berghouse:

10. [265]

    In relation to the claim by James, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:

11. [266]

    These “guidelines” were said to provide a “useful touchstone” and give assistance because they constitute a reflection of community values which assists with decision-making: Chapple v Wilcox at [19] (Basten JA), [67] (Barrett JA), quoted, with approval, by Brereton JA in Steinmetz v Shannon at [106]–[108].

Applicant an Object of a Discretionary Trust

1. [267]

   As stated earlier, under the terms of the deceased’s Will, James is an object of a discretionary trust. As such, he has no enforceable rights to either the capital (other than $20,000), or income, of the trust, and is reliant, for any future benefit, upon the exercise of discretion of the trustees in his favour. A discretionary object has no legal, or equitable, interest in the property of a discretionary trust until the trustee exercises its discretion in that beneficiary's favour. Until that point, a discretionary object’s interest is merely an expectation or hope.

2. [268]

   In Belfield v Belfield (2012) 83 NSWLR 189 at 206–207 [71]; [2012] NSWSCA 416, Campbell JA (Sackville AJA agreeing) wrote, at [71]:

3. [269]

   In Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep), it was written, at 10–12:

4. [270]

   I referred to the authorities in Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023, where I added, at [335]–[338]:

5. [271]

   In Taylor v Farrugia, Brereton J wrote, at [62]:

Qualifications on “Principles”

1. [272]

   As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

2. [273]

   As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), 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 what is provided as a guide to be turned into a tyrant.

3. [274]

   It is necessary for the Court, in each case, after having had regard to the matters that the Act permits 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 has been established. Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. Every case is different and must be decided on its own facts and it is in the detail that the answer to the proper application of the Act is to be discovered: Golosky v Golosky [1993] NSWCA 111 at 16 (Kirby P, Cripps JA agreeing).

4. [275]

   The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]–[20], and by Barrett JA, at [66]–[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and very recently, by White JA, in Steinmetz v Shannon, at [37]. The qualifications must be remembered.

Determination

1. [276]

   As stated, there is no dispute that James is an eligible person. He commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of each has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, the material situation of James.

2. [277]

   What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.

3. [278]

   Bearing in mind the terms of the deceased’s Will, there is a prospect that James might receive nothing by way of income, or capital, out of the deceased’s estate. Whether he does will depend entirely upon the exercise of discretion, in his favour, by Sara and John. To date, he has not received any distribution from the Trust, but I do not regard this as indicative of what might occur in the future.

4. [279]

   However, this does not, automatically, mean that he will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being “left without adequate provision” even though no, or little, provision is made for them in the deceased’s Will. Yet, for some time, James has been unable to work consistently, and, now is in very modest circumstances, with little to fall back on as he ages or in periods of unemployment, although while he is employed, his income exceeds his expenditure.

5. [280]

   The Court is required to make, and I have made, an assessment of the financial position of James, the size and nature of the deceased’s estate, the relationship between him and the deceased and the competing moral, but not financial, claims, of the other beneficiaries who have not disclosed their financial resources or needs, and the circumstances and needs of James: see, for example, McCosker v McCosker at 571–572 (Dixon CJ and Williams J); Singer v Berghouse at 209–210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [16] (Gleeson CJ), [75] (Gummow and Hayne JJ), and [112] (Callinan and Heydon JJ); and Tobin v Ezekiel at [70] (Meagher JA). I have also considered the nature of the disposition to James under the deceased’s Will, arising from the discretionary nature of the testamentary trust, the medical conditions from which James suffers, and the possibility of an intermittent working life that may bedevil him.

6. [281]

   As earlier stated, a court cannot describe, in terms of universal application, what adequate provision for the proper maintenance or advancement in life will entail for a parent in respect of an adult child. In many cases, as has earlier been said, adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his, or her, life. But as stated, every case will depend on its own facts.

7. [282]

   Having considered the matters I am required to consider, James has satisfied me that he has been left without adequate provision for his proper maintenance or advancement in life. I am also satisfied that an order for provision for him should be made. He is not in a strong financial position, he does have a need for a fund to protect against the ordinary exigencies of life, and he does require secure accommodation. As counsel submitted, “due to his resilience and intelligence, [he] continues to find employment”, but the employment does not always last. It was clear, however, that at the present time, his income exceeds his expenditure by about $1,100 per month, at least some of which could be used, if necessary, to satisfy some of his other expenditure: Tcpt, 21 November 2019, p 129(06–40).

8. [283]

   However, I do not think that the provision should be an amount in excess of $1.2 million, as submitted by counsel for James, or $300,000, as was submitted by counsel for Sara.

9. [284]

   The more difficult question is what provision “ought to be made for … his, maintenance … or advancement in life”, having regard to the facts known to the Court at the date of hearing. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or an exact exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made. However, similar considerations as are set out above often arise.

10. [285]

    I do not accept that the deceased had an obligation to provide an unencumbered home with a value of $710,000 for James. He was financially independent of the deceased for many years before her death. The fact that he does not, now, own his own home, was not brought about by the deceased. She did not have an obligation, or responsibility, to provide an unencumbered home for him out of her estate simply because he was her son and because he does not have a home of his own.

11. [286]

    Having considered all of the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that a capital sum should be provided. I am of the view that James should receive, in lieu of the provision made for him in the Will of the deceased, a lump sum of $750,000.

12. [287]

    Whilst it may be that the nature, and level, of expenditure, particularly at times when he was unemployed, and in the period following the separation from Debra, and the years that immediately followed, was greater than it might have been, and the fact that he has made no contribution to child support for his three children, at any time, after separation, particularly when he had a capital fund ($680,000 or $690,000) to make such a contribution, I am unable to conclude that he is a person who requires a third party to manage the provision that is made for him. I have not been persuaded that there should be the interposition of a trustee to manage, or control, the provision that the Court finds ought to be made for him.

13. [288]

    Furthermore, whilst the possibility of an applicant spending the provision for purposes, other than the purposes for which it has been made, is a legitimate matter to take into account in deciding whether he, or she, has been left without adequate provision for his, or her, proper maintenance, education and advancement in life, the Court can impose conditions, restrictions or limitations upon the amount and nature of the provision that is made for him out of the estate of the deceased: s 65 of the Act.

14. [289]

    This is a case, in my view, where the Court should impose a condition in respect of part of the lump sum, namely $550,000. No less than that amount should be used by him to purchase accommodation, and to pay any stamp duty and legal costs payable on the contract for, or in respect of, the property that is purchased. Of course, he may spend more than that amount for accommodation if he wishes to, but this will be a matter entirely for him.

15. [290]

    In coming to the view that the condition should be imposed, I have considered the concern the deceased expressed regarding the fact that James did not use any part of the capital sum he received from the sale of the Lindfield property to purchase accommodation for himself. I have also taken into account the deceased’s other concern, that he should not dissipate the provision made for him out of her estate. Finally, I have considered that James, himself, has advanced the need to purchase accommodation, with the consequence that the condition proposed should not be an onerous one.

16. [291]

    In addition, purchasing accommodation that he will own, in my view, will give James stability and security of accommodation in the event that other aspects of his life, such as maintaining employment as a solicitor, do not provide him with those things. His available income, whilst in employment, will be increased, at least partly, by him not having to pay rent (although there will, of course, be some expenses in owning real estate).

17. [292]

    Moreover, it is common experience in the current economic and financial climate that income returns from investment in bank accounts and term deposits held with financial institutions are low, and would not appear to be as beneficial as the capital accumulation on real property. I have taken this matter, too, into account when considering the imposition of the condition.

18. [293]

    The use of $550,000 for the purchase of accommodation will still leave James with a capital fund, which he can then use as he sees fit. The remaining lump sum will be the basis upon which he can provide for himself. It is a substantial enough amount to make a real difference to his life. However, if he spends the lump sum quickly, and without consideration of his future needs, including medical expenses, then so be it.

19. [294]

    Naturally, in coming to the conclusion as to quantum, I have considered the lack of any competing financial claim on the part of the other beneficiaries named in the Will (other than James’ three children). However, whilst it would be much more pleasant to be open-handed and generous with the deceased’s estate, I must confine myself to the jurisdiction under the Act. The beneficiaries are, after all, the chosen objects of the deceased’s bounty.

20. [295]

    The amount of about $976,000 will be left to be shared between the four children of the deceased, namely Rosemary, Stephen, Sara, and John; there will be one additional share to be divided equally between Samuel and Harriett, and, as agreed to by Sara, and pursuant to s 66(2) of the Act, one additional share should be divided, equally, between Emily, Jeremy and Tamara. This will result in each equal one-sixth share equating to about $160,000. That amount is significantly less than the provision that James will receive pursuant to these orders.

21. [296]

    Directs the parties to provide to the Court, within 7 days, in hard and soft copy, Short Minutes of Order that reflect these reasons.