Gray v Mather

1. [1]

   HIS HONOUR: Robert Milton Gray (“the deceased”) died, aged 81 years, on 5 April 2014, leaving surviving him Suzanne Joy Mather (“the Defendant”), the person with whom he was living in a de facto relationship at the time of his death, and Peter Gray (“the Plaintiff”), who is his son by a prior marriage.

2. [2]

   The Plaintiff makes a claim for a family provision order, under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”), out of the estate and notional estate of the deceased. The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

3. [3]

   The Plaintiff commenced proceedings by Summons filed on 20 March 2015. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased). The Plaintiff seeks provision because no provision was made for him in the Will of the deceased. He also seeks an order that his costs of the proceedings be paid out of the notional estate of the deceased.

4. [4]

   At the hearing, without objection, the Plaintiff sought, and was granted, leave to file an amended Summons, in which he corrected some typographical errors in the Summons and also identified the property that he sought to be designated as notional estate, it being agreed by the parties that there is no longer any available actual estate of the deceased out of which an order could be made.

5. [5]

   It is also not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

Factual Background

1. [6]

   I am satisfied that the following facts have been established, and that they provide a useful background. In relation to any disputed matters to which I refer, the following facts should be regarded as the findings of the Court.

2. [7]

   The deceased was married to Robyn Jeanette McIntyre in February 1961. They separated in about 1980. A decree nisi of the dissolution of their marriage was dated 30 November 1982. They settled all of their financial and other matters in dispute between them by Deed made on 29 May 1983.

3. [8]

   There were two children of their marriage, the Plaintiff, who was born in March 1962, and Stephen Robert Gray, who was born in March 1964, but who died in December 1983.

4. [9]

   The deceased left a Will dated 10 September 2010. In that Will, probate of which was granted to the Defendant (the Plaintiff having renounced his joint executorship with her) on 30 July 2015, the deceased left the whole of his estate to her. In the event that she did not survive the deceased for the period of 30 days, the deceased directed the payment of all his debts, funeral and testamentary expenses, made a gift of his personal belongings to the Plaintiff, gave a legacy of $100,000 to each of two named legatees (two grandchildren), and left one half of the balance to the Plaintiff, and one quarter to each of the two children of the Defendant.

5. [10]

   There is nothing in the Will to explain the deceased’s reasons for omitting the Plaintiff from his testamentary bounty by way of primary, as opposed to substitutionary, gift. However, the Plaintiff gave evidence that the deceased told him that the Defendant “would have to be looked after, left comfortable… secure in her home” and that from this conversation, the Plaintiff “assumed” that the deceased wanted her “to be left with sufficient money to meet all her expenses and needs” and “to be comfortable in her life”: T28.43 – T29.11.

6. [11]

   In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, solely owned at the date of death, was disclosed as having an estimated, or known, value of $11,383, and property owned jointly with the Defendant as being $1,140,381. The solely owned property was shares in a public company ($5,383) and a car ($6,000). The property jointly owned with the Defendant included moneys held on two term deposits ($458,105 and $212,427), moneys in two cheque accounts ($39,128 and $1,719), real estate at Yass (“the Yass property”) ($390,000) and a caravan ($39,000). (I have made no reference to cents in the above estimates.)

7. [12]

   There were no liabilities of the deceased identified in the Inventory of Property. However, the Defendant paid $9,013 on account of testamentary and other expenses on behalf of the estate.

8. [13]

   Following the deceased's death, the Defendant sold the caravan for $39,000 and deposited the proceeds into one of the bank accounts.

9. [14]

   All of the property owned solely by the deceased, or owned jointly with the Defendant, has been transferred or transmitted to the Defendant. It is not clear when she transferred, or transmitted, the property into her name. In an affidavit sworn on 8 April 2016, she states that she now holds the following property (not all of which was previously jointly owned with the deceased):

10. [15]

    At the hearing, the parties agreed that the jointly owned property, which passed to the Defendant by survivorship, has a gross estimated value of $1,092,213, being the real estate at Yass ($390,000), the two term deposits ($670,532) and the moneys in the Retirement Account and in the savings account ($31,681).

11. [16]

    During submissions, the parties also agreed that an amount of $19,257 would be paid, as interest on the term deposits, in July 2016.

12. [17]

    The Defendant does not dispute that one half of the money in the term deposits, and one half of any net proceeds of sale of the Yass property, could be designated as notional estate of the deceased, should it be necessary to do so in order to meet any order for provision and for costs that may be made in favour of the Plaintiff. (Of course, it must be remembered that s 89(2) of the Act provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made for the Plaintiff, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.)

13. [18]

    It follows, from the above estimates, that the net distributable value of the potential notional estate of the deceased, is about $546,107. (In this estimate, I have not added any part of the interest since it will not be paid until July 2016. However, it is to be remembered that the Defendant will then receive that amount.)

14. [19]

    Nor does the estimate of gross value include the value of the shares owned by the deceased at the date of his death. It is not in dispute that whilst the Defendant retains the shares, she paid their value, at the date of death, to the Plaintiff (because she said that the deceased had asked her to do so). The amount that she paid was $9,900, which amount also included the reimbursement of some funeral expenses that he had paid. The estimate also does not include any part of an amount of $15,953, being the costs of an overseas holiday and insurance that the Defendant expended prior to the hearing.

15. [20]

    Subject to submissions that may be made on the question of costs, usually, in calculating the value of the deceased’s estate and notional estate finally available for distribution, the costs of the present proceedings should be considered with circumspection, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as the administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate.

16. [21]

    The Plaintiff’s solicitor with the conduct of the matter, Ms R Nelsen, deposed, in an affidavit sworn on 2 May 2016, and a further affidavit of 13 May 2016, that the Plaintiff’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the ordinary basis, are $73,615, inclusive of GST (upon the basis of a two day hearing).

17. [22]

    Mr H E McDonald, solicitor, in an affidavit sworn on 8 April 2016, estimated the Defendant’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the indemnity basis (upon the basis of a two day hearing), to be about $60,914, inclusive of GST. The Defendant has paid $32,614 out of the jointly held bank accounts, on account of these costs and disbursements, leaving an estimated amount of $28,300 left to be paid.

18. [23]

    That over $130,000 has been incurred in legal costs in this estate and notional estate, with a relatively modest value (nearly 24 per cent of the total value of the property that forms part of the estate or notional estate of the deceased), and in circumstances where there are not many issues of fact, or law, in dispute, perhaps, demonstrates the high level of emotion and the intense antipathy that exist between the parties.

19. [24]

    The parties are agreed that if the estimates prove accurate and if an order is made for all of the costs to be paid out of the estate, the total value of the notional estate from which a family provision order could be made is $444,192.

20. [25]

    Both counsel requested that any determination of how costs should be paid await the determination of the proceedings as one party, or both parties, may wish to tender some evidence on that issue. I shall provide the reasons for judgment and, if necessary, shall stand any argument on costs to a mutually convenient time.

21. [26]

    The persons described as eligible persons, within the meaning of the Act, are each of the parties in the proceedings and the deceased’s former wife, Robyn Templeman.

22. [27]

    The Defendant gave evidence that notice of the Plaintiff’s application, and of the Court’s power to disregard her interests, has been served on Ms Templeman, in the manner and form prescribed by the regulations or rules of court: s 61 of the Act.

23. [28]

    In a letter dated 7 August 2015, a copy of which is Ex. 1, Ms Templeman informed the Defendant’s solicitors that she did “not intend making a claim against the estate of my former husband... But I support our son, Peter Robert Gray, in his family provision claim”. Otherwise, Ms Templeman did not play any part in the proceedings and did not give evidence.

Other Facts

1. [29]

   A number of additional facts, the subject of evidence, should be identified. Once again, these facts should be regarded as the findings of the Court to the extent that any are the subject of dispute between the parties.

2. [30]

   The Defendant was born in January 1951 and is now aged 65 years.

3. [31]

   She has two children from a former relationship, namely Darren, who was born in October 1969, and Bevan, who was born in September 1970. (They, with the Plaintiff, are the substitutionary residuary beneficiaries named in the Will of the deceased.)

4. [32]

   In 1981, the Defendant started working for the deceased and about 1 year later, they commenced a relationship. It was not until 1988, that she and the deceased commenced to live together. (The parties are agreed that it does not matter whether a de facto relationship commenced before, or in, 1988, since the relationship between the deceased and the Defendant, on any view, would be regarded as a long standing one, which the deceased, by the terms of his Will, appears to have acknowledged.)

5. [33]

   There were no children of the relationship of the deceased and the Defendant.

6. [34]

   The Defendant made a Will on 27 July 1996, a copy of part of which is Ex. A, in which she appointed the deceased and her son, Bevan, to be the executors. The Will then, relevantly, provided:

7. [35]

   There is also in evidence (Ex. B) a copy of a Will made by the Defendant on 10 September 2010, which is a mirror Will to the deceased’s last Will made on the same date.

8. [36]

   There is no evidence of any other Will of the deceased.

9. [37]

   It is acknowledged that there were some difficulties in the relationship between the deceased and the Defendant. However, as submitted, any disagreements or difficulties in their relationship do not appear to fall outside those that may be usually expected, or experienced, in any relationship of such duration. In this regard, it cannot be forgotten that the Defendant is the sole chosen object of the deceased’s testamentary bounty.

10. [38]

    The Defendant did not suggest that there was any conduct by the Plaintiff that might reduce the provision to be made for him in the event that adequate provision is found to not have been made by the Will of the deceased (the operation of the intestacy rules in relation to the estate of the deceased being irrelevant).

11. [39]

    The Plaintiff gave evidence, about which he was not cross-examined, of the building up of the deceased’s estate, prior to his relationship with the Defendant. He said that in 1982, when his parents separated, his mother agreed that the deceased was to retain “the bulk of the assets so that they could be distributed to my brother and I when we were older”.

12. [40]

    The Defendant accepted that the initial capital contribution towards the purchase of the first parcel of real estate bought by the deceased, which led to the overall increase of capital held at the date of his death, was made solely by the deceased.

The Statutory Scheme – The Act

1. [41]

   Next, I shall briefly discuss the statutory scheme that is relevant to the facts of the present case. I have collected the principles that are generally applicable in many other cases in similar, if not identical, terms. Because there is really no dispute about the principles that apply, it is not necessary to repeat all of the principles.

2. [42]

   As stated, there is no dispute that the Plaintiff is an eligible person or that he commenced his proceedings within the time prescribed by the Act. Accordingly, the first issue is whether adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made, relevantly, by the operation of the Will (the operation of the intestacy rules being irrelevant (s 59(1)(c)).

3. [43]

   It is this mandatory legislative imperative that drives the ultimate result and, it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

4. [44]

   Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision 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 Plaintiff 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 Plaintiff.

5. [45]

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

6. [46]

   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] HCA 40; 181 CLR 201 at 210-211; White v Barron [1980] HCA 14; 144 CLR 431 at 434-5; 443).

7. [47]

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

8. [48]

   During the course of the case, counsel for the Defendant conceded that adequate provision for the proper maintenance, or advancement in life, of the Plaintiff had not been made by the operation of the Will of deceased. It was an appropriate concession to make, in all the circumstances of the case. (It was not conceded that any provision should be made for the Plaintiff.)

9. [49]

   Whether an applicant has a “need” or “needs” is also a relevant factor in the enquiry: see s 60(2)(d) of the Act. (As will be read, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order.)

10. [50]

    “Need” is an elusive, and an elastic, concept to define. The concept involves economic considerations.

11. [51]

    “Need” has also been used in the context of a value judgment or conclusion, namely, that the applicant is “in need” of maintenance or advancement in life, because inadequate provision has been made for his or her proper maintenance, education and advancement in life: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 (Bryson J).

12. [52]

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

13. [53]

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

14. [54]

    Under s 59(2) and s 60(1)(b) of the Act the Court determines what provision, if any, ought be made for the applicant out of the deceased’s estate or notional estate. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

15. [55]

    Section 60(2) of the Act provides:

16. [56]

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

17. [57]

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

18. [58]

    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.

19. [59]

    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).

20. [60]

    Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

21. [61]

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

22. [62]

    The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

23. [63]

    Any family provision order under the Act takes effect, unless the Court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).

24. [64]

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

25. [65]

    Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Notional Estate

1. [66]

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

2. [67]

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

3. [68]

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

4. [69]

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

5. [70]

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

6. [71]

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

7. [72]

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

8. [73]

   Because it was accepted that a notional estate order was necessary if the Plaintiff were to receive a family provision order, and an order for costs, it is unnecessary to refer to the other sections of the Act which go to the restrictions and protections relating to a notional estate order. It is apparent that the property to be designated should be such part of one, or both, of the amounts held on term deposit necessary to satisfy the order for provision and any costs order.

9. [74]

   I shall leave it to the parties to frame the appropriate form of orders which permit the Defendant to determine the source of funds necessary to satisfy the order for provision and any costs that may subsequently be ordered to be paid.

Other Applicable Legal Principles – Substantive Application

1. [75]

   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. [76]

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

3. [77]

   The Court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation. “Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].

4. [78]

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

5. [79]

   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:

6. [80]

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

7. [81]

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

8. [82]

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

9. [83]

   In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by “community standards” or “community expectations” in any decision whether to take the significant step of overriding the expressed wishes of the deceased.

10. [84]

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

11. [85]

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

12. [86]

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

13. [87]

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

14. [88]

    All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides “it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment”: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].

15. [89]

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

16. [90]

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

17. [91]

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

18. [92]

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

19. [93]

    The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased’s Will or otherwise justify such provision. What was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] by Kelly J should be remembered:

20. [94]

    Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there remains binding authority which gives greater weight to the claims of parties who have entered “a formal and binding commitment to mutual support”: Marshall v Carruthers [2002] NSWCA 47; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger & Anor [2010] VSC 320 at [68].

21. [95]

    In this case, the de facto relationship of the deceased and the Defendant spanned 26 years (and perhaps longer). It was, as was accepted by the Plaintiff, a very long relationship. In the circumstances, as the deceased recognised, and as he explained to the Plaintiff, his obligation to her, to the extent to which his assets permitted him to do so, was to ensure that she was secure in the home in which they lived together, to ensure that she had an income sufficient to permit her to live in the style to which she was accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

22. [96]

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

23. [97]

    Importantly, however, it is necessary to remember what Ward J (as her Honour then was), wrote in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [98]:

Qualifications on “Principles”

1. [98]

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

2. [99]

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

The Submissions

1. [100]

   I shall not repeat all of the submissions made by counsel for each party. Each provided written submissions that I have carefully read and which will remain in the Court file. I shall merely provide a summary of those submissions.

2. [101]

   Counsel for the Plaintiff steadfastly submitted that the claim for provision was for $300,000. I shall refer to how he calculated the amount claimed later in these reasons.

3. [102]

   He went on to submit that the Defendant would still remain secure in her own home ($390,000) and have the balance of the term deposits ($370,532), the interest to be paid in July, the additional money in the savings and the retirement accounts ($5,034 and $26,047), superannuation ($69,613), shares ($2,742), and a car ($6,000). She would be required to pay the balance of her costs ($28,300).

4. [103]

   Counsel for the Defendant submitted that even though adequate provision for the proper maintenance and advancement in life had not been made by the Will of the deceased, this is a case in which the strength of the Defendant’s claim on the bounty of the deceased and the nature and value of the notional estate of the deceased was insufficient to satisfy any claim for provision in favour of the Plaintiff.

5. [104]

   During submissions, counsel for the Defendant submitted, in the alternative, that in the event that a family provision order were made, the maximum lump sum that should be ordered out of notional estate was $75,000. (In his written submissions, the maximum amount was said to be $40,000.)

Additional Facts

1. [105]

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

2. [106]

   I am satisfied that the relationship of the Plaintiff and the deceased was a close and strong one and that it endured until the death of the deceased. There was no suggestion to the contrary.

3. [107]

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

4. [108]

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

5. [109]

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

6. [110]

   Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff as a child, once he became an adult, imposed upon him by statute or common law. Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, continues to be recognised. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

7. [111]

   Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no “presumptive testamentary entitlement of an [adult] offspring”: Underwood v Gaudron [2015] NSWCA 269 at [73] (Basten JA).

8. [112]

   The size of the deceased’s estate is also relevant to the extent of the obligation or responsibility.

9. [113]

   I have earlier identified the obligation owed by the deceased to the Defendant as his de facto partner. In this case, bearing in mind the length of their relationship and the age of the Defendant, I am of the view that it is a more significant obligation or responsibility than that owed by him to the Plaintiff.

10. [114]

    I have earlier dealt with these matters. There is no actual estate and the value of property that may be designated as notional estate is not very large.

11. [115]

    The use of the term “financial resources” adds something to income and property.

12. [116]

    The Plaintiff’s financial position may be summarised as follows:

13. [117]

    It was accepted that the liabilities set out were joint liabilities of the Plaintiff and his wife. It was also accepted that the Act is not one to enable provision to be made, in an indirect way, to persons who are not eligible persons, or to make provision for a Plaintiff who states that the provision “needed” is to satisfy another person’s financial needs.

14. [118]

    As was said in Kleinig v Neal (No 2) at 537:

15. [119]

    In Akkerman v Ewins [1999] NSWCA 386, a claim was made by a step-son for provision out of his step-mother’s estate. An order of Master McLaughlin (as his Honour then was) dismissing his claim for provision was the subject of an appeal. The Plaintiff, in an affidavit read in those proceedings, said that:

16. [120]

    Other evidence in that case revealed that a few months before he swore that affidavit, he and his mother had travelled to Holland and had spent some weeks there. Handley JA (with whom Beazley and Fitzgerald JJA agreed) said at [9] – [10]:

17. [121]

    It was then submitted by his counsel that the Plaintiff’s needs were identified as follows:

18. [122]

    There was some criticism of the information about the Plaintiff’s financial resources, in two respects. Firstly, it was submitted that the true value of the home jointly owned was far more than had been estimated. In this regard, the basis of the submission was the content of Ex. 2, being a copy of an advertisement in which the home had been advertised for sale for $925,000, and Ex.3, being a copy of an application for finance, signed by the Plaintiff and his wife in which the value of their home was disclosed at $850,000.

19. [123]

    Secondly, it was submitted that the annual income that the Plaintiff and his wife received was far greater than that disclosed in his evidence. Reliance was placed on Ex. 4, which was a copy of an equipment loan and mortgage application signed by the Plaintiff and his wife, in which their gross business annual income was disclosed at $246,000 and their income from personal employment was disclosed at $91,500 per annum.

20. [124]

    I do not accept the criticism of the evidence given by the Plaintiff and his wife. In regard to the first matter, I accept the Plaintiff’s explanation that the sale price at which the home was advertised, which was many years ago, far exceeded its true value, and that it had been a forlorn hope that such a price would actually be achieved.

21. [125]

    The Plaintiff’s evidence on this topic was corroborated by his wife, who confirmed that no offer to purchase the property at that, or any other, price had been made during the period of it having been on the market.

22. [126]

    Furthermore, there was a recent written market appraisal that provided a range (the amount set out above being the mid-point of the range of prices suggested). No objection had been taken to the market appraisal and no attempt had been made, on behalf of the Defendant, to obtain any other market appraisal.

23. [127]

    Finally, on this topic, the Plaintiff gave evidence that was not the subject of cross-examination that he and his wife continue to conduct their business from the property that is also their home.

24. [128]

    In relation to the income, whilst the document suggests a far larger income than the Plaintiff stated, his wife gave evidence, which I accept, that the income for that particular year had been far greater than the years before and after that particular year. Evidence of the income received by the Plaintiff over five years was the subject of evidence and it had not been put to him that the income for the other years had been underestimated. He also gave evidence that in February 2016, they had lost a “substantial contract” (which reduced the business income by about $3,000 to $4,000 per month).

25. [129]

    The Plaintiff did not suggest that he did not have an earning capacity. To the contrary, he gave evidence that he wished to continue to work as a farrier for as long as he could. However, he said, unsurprisingly, that as he became older, he was performing part of the work more slowly with the result that he was not able to achieve as much as he had in the years before.

26. [130]

    I have earlier set out what was submitted, on his behalf, as to his “needs”.

27. [131]

    The Defendant’s financial resources and needs were submitted to be (based on Life Expectancy tables, a further 21.62 years, applying a weekly multiplier (816) at a 3% discount over the next 21 years):

28. [132]

    As is obvious, the deceased’s notional estate does not have a value of anything like the amount said to be “needed” by the Defendant.

29. [133]

    The Plaintiff is currently cohabiting with his wife. Her financial circumstances have been included above. However, it is to be noted that she has suffered some ill-health which has imposed a significant financial burden on her and the Plaintiff.

30. [134]

    The Plaintiff did not give any evidence of any physical, intellectual, or mental disability, suffered by him. The evidence given related to the condition of his wife.

31. [135]

    Because of the claimed “needs” of the Defendant, there was a dispute about one aspect of her medical condition. She had annexed to an affidavit a copy of a report, dated 14 October 2015, of a consultant neurologist who stated that in mid-2014, he had seen the Defendant and had diagnosed her “as having asymmetrical Parkinsonian features on her left side, the cause being early Idiopathic (Primary) Parkinson’s Disease”. He examined her again on 16 July 2015, and observed the same symptoms, with no apparent significant progression, and noted “at the time that [her] symptoms may have been in some part due or exacerbated by stressors related to extant legal proceedings she is facing…She still had very subtle asymmetrical Parkinsonian features on her left side but the lack of progression was a very good prognostic sign. She may still have very early idiopathic Parkinson’s disease but the other possibilities were that all of her symptoms could be stress related”.

32. [136]

    The medical report went on to state that the Defendant “will need to establish a multidisciplinary support team early on, including a neurologist, a general practitioner, physiotherapist, occupational therapist, speech therapist, dietician, social work (sic) and possibly a specialist nurse” and that she would “need regular medical consultations to monitor any progression of her symptoms”.

33. [137]

    No more recent report was produced by the Defendant and no explanation for not having produced a more recent report, which might have made the position more clear was given.

34. [138]

    The Plaintiff submitted that the report did not establish that the Defendant required the amount set out as her “needs” for medical treatment and associated costs. Having considered the report in its entirety, I respectfully agree.

35. [139]

    The Plaintiff is currently aged 54 years. His wife is currently aged 52 years.

36. [140]

    The Plaintiff does give some evidence of the contribution to the acquisition, conservation and improvement of the deceased’s estate. However, the contribution appears to be by way of assistance provided to the deceased whilst he was married to Ms Templeman. His relationship with the deceased does suggest some contribution to the welfare of the deceased.

37. [141]

    There is some evidence from the Defendant that the deceased purchased motor vehicles, motor bikes, horse floats, trucks, and horses for the Plaintiff and the Plaintiff's wife on several occasions. In addition, the Defendant's evidence is that the deceased purchased a block of land in Yass for the Plaintiff and the Plaintiff's wife, which evidence is disputed by the Plaintiff.

38. [142]

    It is impossible to express a concluded view as to whose evidence is correct. However, it is clear that whatever provision was made by the deceased during his lifetime for the Plaintiff it was not significant.

39. [143]

    I have earlier stated the terms of the deceased’s last Will.

40. [144]

    The oral evidence of the Defendant about her conversations with the deceased was as follows:

41. [145]

    The Plaintiff was not being maintained, wholly or partly, by the deceased other than historically as a child. There is no suggestion that he was maintained by the deceased at any time after the Plaintiff left home. In fact, it would appear that the Plaintiff was financially independent of the deceased for many years prior to his death.

42. [146]

    There is no person liable to support the Plaintiff, other than, perhaps, his wife.

43. [147]

    An evaluation of “character and conduct” may be necessary, not for the sake of criticism, but to enable consideration of what is “adequate and proper” in all the circumstances. Importantly, the Act does not limit the consideration of “conduct” to conduct towards the deceased.

44. [148]

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

45. [149]

    I am satisfied that there is no relevant conduct of the Plaintiff before, or after, the death of the deceased. Indeed, counsel for the Defendant wrote in his submissions:

46. [150]

    I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is the sole chosen object of the deceased’s bounty. She was also in a de facto relationship with the deceased for many years prior to his death. Her contribution to the welfare of the deceased, particularly during his declining years, cannot be forgotten. (It will be remembered that there was a significant age difference between them.)

47. [151]

    This factor is not applicable.

48. [152]

    The only other matter that I consider relevant is the age of the Defendant. She is about 11 years older than the Plaintiff.

49. [153]

    Claims for a family provision order present particular difficulties where the actual and/or notional estate is modest and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.

50. [154]

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

51. [155]

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

52. [156]

    As I have recently written in Morier v Liem [2016] NSWSC 582, the fact that no bequest is made in the deceased’s Will for the Plaintiff does not, of itself, bespeak inadequacy. That fact is not all that the Court is required to consider. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant, the claim of each on the bounty of the deceased, and the size of the estate and notional estate, are very relevant factors in determining the answer to the question whether it is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff.

53. [157]

    The consideration of all of these matters, taken with the proper concession made by the Defendant, leads me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of the Plaintiff. It follows that the Court has jurisdiction to make an order for provision out of the estate of the deceased for the Plaintiff.

54. [158]

    I turn next to consider the nature and quantum of any provision that should be made. In my view the deceased had no legal obligation to maintain the Plaintiff prior to his death. It is clear that the Plaintiff had been financially independent of the deceased for many years prior to his death, whereas the Defendant had been, at least partly, dependent upon him throughout their relationship.

55. [159]

    I must also remember the importance of freedom of testation. There was some evidence given by both parties about his testamentary intentions and what he regarded as the primacy of the Defendant’s claim upon his bounty.

56. [160]

    However, it is to be noted that, whilst the relationship of the deceased and the Defendant was not of short duration, this is not a case of a lifetime marriage, with the shared raising of children, and with a substantial contribution from the Defendant to the assets of both parties. Yet, the evidence, overall, is that the relationship was a close and loving one and that it was continuing at the time of the death of the deceased. I also bear in mind that the Defendant has some health issues that may become more pronounced later in life and little earning capacity.

57. [161]

    I am satisfied that the deceased did not have an obligation to ensure that the Plaintiff was completely debt free, or that he was otherwise financially secure for the remainder of his life. The size of the notional estate and the deceased’s obligation to, and responsibility for, the Defendant, which he acknowledged, simply does not warrant such an obligation being imposed upon him in death.

58. [162]

    In my view, having regard to all of the matters that I am required to consider, the Plaintiff should receive a legacy of $150,000.

59. [163]

    Whilst this amount will not enable the Plaintiff to discharge his share of the family’s debts entirely, it will enable him to repay his share of some of them, or, if he does not do so, will provide a capital sum for exigencies of life.

60. [164]

    This will still leave the Defendant with an unencumbered home and the balance of the cash on term deposits held by her, to meet the costs of the proceedings, if any are payable out of the notional estate, and to meet her expenses and for exigencies of life. (I have not included the amount of interest which the Defendant will receive in July 2016.)

61. [165]

    On the question of whether to designate property as notional estate, I am satisfied that the deceased's actual estate is insufficient for the making of the family provision order. It is also unlikely to be sufficient to meet any costs orders, that should be made: s 83(1)(a), s 88(b) and s 89.

62. [166]

    Then, turning to the property to be so designated, even though the whole of the deceased’s estate has been distributed, there is no reason why the Defendant, as the de facto partner of the deceased at the date of his death, should be placed in the circumstance where she is insecure in the accommodation in which she lived with the deceased and where she continues to live. The substantial justice and merits involved lead to the Court refusing to make such an order.

63. [167]

    I would not be prepared to make any order designating the deceased's share in the Yass property, which is now owned solely by the Defendant, as notional estate.

64. [168]

    I turn next to whether any part of the amount held by the Defendant on term deposit should be designated as notional estate in order to meet what is necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both: s 89(2) of the Act.

65. [169]

    In my view, a consideration of the substantial justice and merits of the case, taken with what might be considered to be the reasonable expectation of the Defendant, does not prevent a notional estate order being made for the lump sum to be paid out of one or other of the term deposits.

66. [170]

    I shall give the Defendant an opportunity to identify the appropriate bank account necessary to be designated as notional estate from which the burden of the order for provision and any costs payable will be borne. It may be necessary for her to identify the bank account that contains sufficient funds to enable the amount to be paid so that the amount may be designated as notional estate.

67. [171]

    As it may be necessary to hear further from the parties on what costs orders, if any, should be made, they should be given an opportunity to make submissions with respect to the form of the final orders. I shall deal with the precise form of orders as to the designation of property as notional estate after the parties have had an opportunity to consider these reasons.

68. [172]

    No interest is to be paid on the lump sum of $150,000 (subject to any argument on the amount for costs), if it is paid within 7 days of the date the relevant term deposit matures; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW) on unpaid legacies, is to be paid from that date until the date of payment.

69. [173]

    For the assistance of the parties, the nature of the orders should include:

70. [174]

    The Court stands the proceedings over for any argument as to costs and for the making of orders in favour of the Plaintiff, which reflect the reasons for judgment, and to enable the Defendant to precisely identify the bank account holding the amount sufficient to satisfy the order for provision to be made in favour of the Plaintiff, any interest thereon, and any costs ordered to be paid out of the notional estate.