Penninger v Penninger

HIS HONOUR: These reasons concern proceedings between siblings, who are two of the three children of Nella Maria Penninger (“the deceased”). The deceased’s children are the Plaintiff, Alba Silvia Maria Penninger, who was born in July 1956, the Defendant, Jean (now known as “John”) Penninger, who was born in May 1948, and Walter Penninger, who was born in June 1953.

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

The deceased died on 8 July 2010, aged 86 years. However, the proceedings were commenced by Summons filed on 25 July 2016. Alba sought additional provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"). Because her proceedings were not commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased), she also sought an order that the time in which to commence the proceedings be extended up to, and including, the date of the filing of her Summons. In addition, because there has not been a grant of Probate of the deceased’s Will, she sought an order under s 91 of the Act. Finally, she sought an order for her costs to be paid out of the deceased’s estate.

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person.

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

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

There were a number of procedural matters that were raised during the hearing.

John is not the sole executor named in the Will made on 1 August 1997 by the deceased. The other two named executors are Walter, and a solicitor, Mr M P Hallett. Neither Walter, nor Mr Hallett, has played any part in the proceedings.

On 9 March 2015, Mr Hallett, who is now retired, executed a form of renunciation of Probate, a copy of which forms part of Alba’s evidence. John and Walter, despite the passage of 7 years from the date of death of the deceased, have not sought Probate of the deceased’s Will. It will be necessary to return to this aspect of the matter later in these reasons.

Alba disregarded Uniform Civil Procedure Rules (“UCPR”) rule 7.11(1) in commencing the proceedings. That rule requires, in proceedings relating to an estate, that all executors of the Will of the deceased, or all administrators of the estate, must be parties.

John was named as the sole Defendant in the Summons and has represented the deceased’s estate since the commencement of the proceedings. He is a beneficiary, with Walter, of the only remaining property forming part of the estate of the deceased. It appears that, since the deceased’s death, John has remained in control of the deceased’s real property to which I shall refer. He resides on, and operates his business from, that property.

There is no evidence that suggests that Walter is interested in obtaining Probate of the deceased’s Will or in having the estate distributed in accordance with its terms. He appears to have been uninterested in participating in the proceedings either as a party or as a witness.

Both Alba and John referred in her, and his, affidavit, respectively, to Walter having worked as a solicitor. Each also gave evidence that, to her, and his, knowledge, Walter lives on a yacht in Fiji.

In the circumstances of the present case, the Court should exercise its power to dispense with UCPR, rule 7.11(1), pursuant to s 14 of the Civil Procedure Act 2005 (NSW). It seems clear that the only person interested in defending Alba’s proceedings is John. It is his interest in the estate that may bear in whole, or in part, the burden of any provision made in favour of Alba.

Without opposition from Alba, at the commencement of the hearing, I made an order that UCPR rule 7.11(1) be dispensed with.

Also, at the commencement of the proceedings, the Court raised with the parties, the need for an order to be made appointing John a representative of the deceased’s estate for the purposes of the proceedings, pursuant to UCPR rule 7.10(2)(b). Needless to say, John’s consent to be appointed was immediately forthcoming and, without opposition from Alba, I also made that order.

The next procedural issue concerns s 91 of the Act. Neither party made any submissions, in writing, regarding s 91, which section provides:

Relevantly, in this case, the application referred to is by Alba for a family provision order in respect of the estate of the deceased, in relation to which administration has not been granted.

The section does not provide for the making of a grant for the purposes of an application for a family provision order before such an application is made. Thus, if an eligible person makes an application for a family provision order, then that application can include an application for an order under s 91. That has happened in this case.

In addition, s 58(1) of the Act provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.

Section 91 differentiates between "when an application is made" (the date of the filing of the Summons) and "when the application ... is dealt with" (the date of making a family provision order, whether by agreement of the parties, or following a contested hearing or the determination of the proceedings otherwise). The common prerequisite for the section to apply, at either date, is that there is an estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted.

In Wheat v Wisbey [2013] NSWSC 537 at [29] – [60], I dealt with s 91 and whether it was always necessary to grant administration in order to deal with an application for a family provision order. I shall not repeat all of what I wrote in that case.

At [57], however, I stated:

It will be appreciated that s 91(2) identifies the person to whom the grant may be made, namely, “the applicant for the purposes only of permitting the application concerned to be dealt with”. The “applicant” in this case is Alba, and it is to her that the grant under s 91 may be made.

In the present case, as will be read, there is real and personal estate of which the deceased died seised, or possessed of, or entitled to, in New South Wales, at the date of her death. It follows that for the purposes only of permitting the application concerned to be dealt with, it is proper to make an order under s 91. I have come to the view that this should be done, even if Alba’s proceedings were to be dismissed, since even if a family provision order is not made, her application would “be dealt with”.

The third procedural issue related to the late service of affidavits. On 9 December 2016, the matter was listed for hearing in the Family Provision running list to commence on 18 May 2017. At the time of listing the matter for hearing, the Court made following direction:

Paragraph 17 of the Practice Note, relevantly provides:

When the matter was listed for hearing, there was only one affidavit sworn by Alba, which affidavit was made on 18 July 2016. Paragraphs 108 to 129 dealt with her “Personal Financial Circumstances”.

At the pre-trial directions hearing on 19 April 2017, no updating affidavit, by Alba, had been filed, or served, relating to her current financial and material circumstances. When this was raised, Ms M Pringle, counsel who appeared for Alba throughout the proceedings, and who appeared at the hearing, responded that there had been no change in Alba’s financial and material circumstances. The failure to state this in an updating affidavit was raised by the Court and it was stated that at the hearing, there would only be Alba’s evidence which, by then, would be 9 months old.

At the commencement of the hearing, no affidavit updating her financial and material circumstances had been filed or served. However, counsel then sought to file in Court an affidavit sworn 18 May 2017 (the day of the hearing).

A copy of the affidavit had not been given to John’s legal representative until the matter was raised, that is, after the commencement of the hearing, despite there having been an adequate opportunity to do so prior to the commencement of the hearing (at least 20 minutes whilst the Court dealt with other matters). When asked why it had not been provided to counsel for John, counsel for Alba stated that it had been “an oversight”: T3.00 – T3.06.

When asked why there had not been an affidavit prepared earlier, Alba’s counsel stated that she had only become aware of certain information that day. She was unable to explain why no steps had been taken to have an affidavit prepared, and served, prior to, or shortly after, 18 April 2017 (the date of the directions hearing): T4.16 – T4.32.

Unsurprisingly, John’s counsel objected to the affidavit being relied upon as it appeared that “there had been a change in circumstances” and because John would be prejudiced if the affidavit was able to be relied upon.

As will be read, the Court determines whether adequate provision for the proper maintenance, education or advancement in life of the person, in whose favour the order is to be made, has not been made by the will of the deceased, at the time when the Court is considering the application.

It is to be noted that one of the matters to which the Court may have regard, under s 60 of the Act, for the purpose of determining whether to make a family provision order, and the nature of any such order, is “(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…” (my emphasis).

UCPR rule 10.2 provides that a party intending to use an affidavit that has not been filed, must serve it on each other interested party no later than a reasonable time before the occasion for using it arises, and that a party who fails to serve an affidavit as required, may not use the affidavit except by leave of the court.

Clearly, in this case, the Plaintiff did not serve the affidavit a reasonable time before the occasion for using it arose.

In Aubrey v Kain [2014] NSWSC 15 at [196] – [197], I wrote:

In Estate of the late Anthony Marras [2014] NSWSC 915, Bergin CJ in Eq., at [238], emphasised the need for applicants for provision under s 59 of the Act to make “full and frank disclosure of their financial circumstances” and to provide, at least in broad outline, the “whole picture” concerning their financial situation.

More recently, Stevenson J in Stollery v Stollery [2016] NSWSC 54 at [47], also commented:

Legal representatives for a party have a duty, and responsibility, to ensure that there is compliance with the Court’s directions. That must be obvious when there is a real possibility that a party’s claim could be dismissed because of the failure to bring forward necessary evidence.

In the present case, the Plaintiff’s legal representatives do not appear to have complied with their duties, or obligations, in a timely way, and even when they attempted to do so, a copy of the affidavit was only provided to John’s legal representative at the time the original was sought to be filed in Court.

The apparent delinquency of the Plaintiff’s legal representatives is highlighted, when, one month prior to the hearing, the Court explicitly raised with her counsel, the requirement for compliance with the Court’s directions regarding the service of an updating affidavit. Even then, nothing was done until after the commencement of the hearing.

Rather than refusing leave to Alba to file the affidavit in Court, or rejecting the whole of the affidavit, the Court, without opposition from John’s counsel, permitted the affidavit to be filed in Court and read, but rejected those parts of the affidavit that had not been referred to in Alba’s earlier affidavit and which demonstrated a change in circumstances (e.g. deterioration of Alba’s health, a copy of various documents which bore a date in 2016, updated credit card debts without production of the credit card statements and decreases in income).

There is little doubt that the admission of that evidence could cause John some prejudice in the conduct of his defence of the proceedings.

It should be explained that one of the reasons the Court adopted the course that it did was that John, also, sought to rely upon affidavits that had only been served the day before the hearing. The only features of this evidence that distinguishes it from the conduct of the Plaintiff’s legal representatives was that, for the most part, it was in the form of annexing a copy of correspondence between the solicitors for each of the parties and that it was not really controversial.

This leads to the next matter that has caused the Court some concern. In the case, an issue relates to the value of the deceased’s estate. As will be read, the only property, of any value, that the deceased held at the date of her death, was a two-thirds interest in real property situated at, and known as, Depot Road, Merriwa (“the Merriwa property”). The remaining one-third interest in that property is owned by John.

At the hearing, the parties agreed that the total gross value of the Merriwa property was $537,500, with the deceased’s interest, therefore, having a value of $358,333.

It was accepted by Alba, that there was registered on the title to the Merriwa property, a Mortgage dated 5 March 1991 (and registered on 10 April 1991), in favour of Margaret Stanton, John’s wife. The mortgagors are identified as “[the deceased] …as to a one third share and John… as to a one third share as Tenants in Common.”

The principal sum secured by the Mortgage was $175,000, and interest, at the rate of 15 per cent per annum, was to be paid “on so much of [the principal sum] as for the time being shall remain unpaid and upon any judgment or order in which this…covenant shall become merged”.

John disclosed in his affidavit sworn 29 September 2016, that Margaret had provided $175,000 to the deceased’s husband and to John when they “had got into financial difficulty … to assist us in paying our debts”. During cross-examination, he accepted that it was not a loan to him and his father, but rather to him and the deceased: T41.36 – T42.1. (It is clear that there had been an error, as the deceased’s husband had died in 1983.)

John also stated that when one calculated the principal and interest, the whole of the value of the deceased’s interest in the Merriwa property would be consumed completely, with the result that there was no estate from which an order could be satisfied.

In a directions hearing, on 7 October 2016, an issue had been raised regarding the value of the estate, and, in particular, whether the Mortgage was able to be enforced. In a letter dated 11 October 2016, addressed to Alba’s solicitors, John’s solicitors identified ss 40 and 42 of the Limitation Act 1969 (NSW), and s 58 of the Real Property Act 1900 (NSW), and referred to a decision of Gleeson v Gleeson [2002] NSWSC 418 at [28]. It was then asserted that:

In her written submissions, counsel for Alba, raised the issue regarding a construction of the terms of the Mortgage and the obligation of the deceased to pay any part of the principal, or interest, under the Mortgage. It seemed to be asserted that Margaret had no entitlement to enforce the Mortgage.

In a letter dated 21 March 2017, John’s solicitors wrote to Alba’s solicitors stating that Margaret “is an interested party to these proceedings and ought to be joined. Kindly take instructions from the plaintiff regarding this joinder aspect”.

In a letter dated 23 March 2017, Alba’s solicitors responded “We advise that we have no intention of joining Margaret Stanton”.

In a letter dated 26 April 2017, from Elliot Tuthill, who acted for Margaret, addressed to John’s solicitors, the following passage appears:

Counsel for John tendered a copy letter, dated 15 May 2017, from John’s solicitors to Alba’s solicitors (Ex. D1), which included:

In these circumstances, and as neither party had sought to join Margaret to the proceedings, the Court informed the parties, at the hearing, that the construction of the Mortgage was not a matter that would be determined in the proceedings without an opportunity being given to Margaret to respond. (This course was followed because there was evidence that John and Margaret no longer live together.) Neither party then sought an adjournment of the proceedings.

The following exchanges between Bench and counsel for the Plaintiff took place during the hearing, at T48.00 – T48.26:

I should also mention that John gave evidence, in answer to questions from the Bench, that Margaret had advanced the amount of money the subject of the mortgage, and that the source of the amount advanced “came as a result of a settlement of her previous marriage and the assets of that marriage”: T45.09 – T45.15. This evidence was not the subject of challenge.

John also gave evidence, in the affidavit of 13 April 2017, that the amount due under the mortgage was the principal sum ($175,000) plus interest ($656,250). He also asserted that a company in which he held the sole interest, Mirzain Pty Limited, had contributed $275,327 towards the repairs and renovations of the Merriwa property, “for example, installation of residential and Industrial buildings, fixtures and irrigation system”.

No claim had been made by Mirzain against the estate, although, because it is a company in which John is the sole shareholder, he has relied upon payments said to have been made to the Merriwa property as a contribution, by him, to the building up of the deceased’s estate.

In a claim for a family provision order, factual context is necessary. It is next convenient to begin with a statement of background facts, since these provide that context. For the most part, the facts stated immediately below, are not controversial. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

The deceased married Jean (John) Baptiste Georgio Ricardo Penninger (identified as Giovanni Giorgio Ricardo Batista Penninger in John’s affidavit sworn 13 April 2017), in or about May 1949. He predeceased the deceased, having died in August 1983. The deceased did not remarry, or enter into a de facto relationship, at any time thereafter.

There were only the three children of the marriage to whom reference has already been made.

The deceased’s Will provided:

As there was no grant of Probate, there was no Inventory of Property which identified the deceased’s estate, at the date of death. However, in his affidavit made on 29 September 2016, John disclosed that at the date of her death the deceased:

In an affidavit made on 13 April 2017, John disclosed that the deceased’s estate then consisted of the deceased’s interest in the Merriwa property ($358,333), personal and household effects of nominal value and the remaining cash in bank of $136. (As at 13 September 2016, the balance in the account had been reduced to $5,856, with funds having been withdrawn to pay the funeral expenses.) (I have omitted, and shall continue to omit, a reference to cents in relation to values. This will explain any apparent mathematical miscalculations.)

At the commencement of the hearing, the parties agreed that, without any deductions at all for liabilities, or for the costs of the proceedings, the gross value of the deceased’s estate, at the date of hearing, was $358,333. Even on that basis, it will be appreciated that the estate is small.

John also stated that “The estate is insolvent by virtue of the mortgage and/or contributions by … Mirzain Pty Limited, to the development and/or contributions to the Merriwa property. Therefore, there are no assets available to meet the plaintiff’s claim.”

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

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

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

Alba’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $30,000, inclusive of GST, and on the basis of a one day hearing.

John’s costs and disbursements, calculated on the indemnity basis, of the proceedings, were estimated to be $40,000, inclusive of GST, of which John has paid $18,700, from his own resources, leaving $21,300 left to be paid (T12.19 – T12.21). (The amount paid on account of costs, presumably, should be repaid to him out of the estate.)

John accepted that if Alba were successful, she should receive her costs, calculated on the ordinary basis. In the event that she was not successful, Alba accepted that no order for her costs should be made payable out of the deceased’s estate. John accepted that no order should be made for her to bear his costs of the proceedings: T14.32 – T15.09.

Apart from the quantum of the debt secured by the Mortgage secured on the Merriwa property, the parties agreed that if the costs of the proceedings (in total $70,000) were paid out of the deceased’s estate ($358,333), and if the estimates of costs proved accurate, the estate had a net distributable value of $288,333.

However, if all of the principal sum and interest is paid from the gross value of the estate (without deduction of the costs of the proceedings), then the estate would have no value. If the estimate asserted in regard to principal and interest on Alba’s behalf ($166,250) were paid, as well as the costs of the proceedings ($70,000), then the estate would have a value of $121,883.

To avoid further dispute regarding this issue, the parties seemed to be prepared for the Court to proceed upon the basis that after the payment of John’s costs, calculated at $40,000, the estate had a value of $139,000. The following passage, at T65.2 – T66.1, supports this view:

On any calculation (other than deducting two thirds of the principal sum and two thirds of the interest, which would result in virtually no remaining estate), the estate is tiny.

The only persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties and Walter.

As stated previously, the evidence appears to be that Walter lives overseas (in Fiji). On 13 September 2016, John’s current solicitors sent, by email, a letter of that date and a Notice of Claim. Walter acknowledged receipt of the documents, by email bearing date 14 September 2016. He requested John’s solicitor to send to him, by email, (correcting a typographical error) “a copy of the claim and any supporting affidavit and all documents filed by you by email.”

Under cover of an email sent on 15 September 2016, John’s solicitors sent to Walter, a copy of the Summons, Alba’s affidavit sworn 18 July 2016 and the Notice of Eligible Persons.

Walter has not made an application for a family provision order. Nor has he provided to John’s solicitors any information about his financial and material circumstances. Nothing is known about those circumstances. It seems that he does not wish to be involved in the proceedings.

John has not made an application for a family provision order either. He does, however, raise his financial and material circumstances in the proceedings.

The Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made, other than a beneficiary of the deceased person’s estate, but who has not made an application. It follows that neither John’s, nor Walter’s, interests, under the Will of the deceased, can be disregarded.

The deceased died 7 years ago. Probate of the deceased’s Will has not been granted and the assets of the estate have not been collected or distributed. It is clear that the conduct of the executors named in the deceased’s Will has fallen short of the conduct required of executors.

During cross-examination, John stated that when he had attempted to obtain Probate, he had been prevented from doing so by Walter’s refusal to sign the necessary documents to enable this: T46.49 – T47.4. John also claimed that he had not been told by his then solicitor, that he could have applied for a grant of Probate in his own right: T47.13 – T47.16.

Other than the fact that there has been no grant of Probate to him alone (for which he must take responsibility), there has been no justification for the conduct of the executors. Whilst Mr Hallett, relatively recently, has renounced Probate, and Walter is outside the jurisdiction, John has failed to provide any evidence to justify not having done anything to properly administer the deceased’s estate, or to satisfactorily explain what has prevented him from seeking Probate, with leave to Walter to join in if he so desires, and from, otherwise, carrying out his duties as an executor.

It appears to me, that he has been content, until very recently, to allow the status quo to remain, which has enabled him to enjoy the occupation, and use, of the deceased’s interest in the Merriwa property.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have done so in many other cases, but for the benefit of the parties, I shall do so again.

Usually, in cases such as the present, the Court must determine (not necessarily in the order set out below) whether:

These matters are not entirely distinct, but are related and overlap. For example, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application.

The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of ss 57(1) and 59(1)(a). It is only an “eligible person” who may apply to the Court for a family provision order. Relevantly, in this case, Alba relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that she is a child of the deceased.

As stated earlier, Alba made her application almost 6 years after the death of the deceased. The Act, relevantly provides, in s 58(2) , the period within which the application must be made:

In Moore v Randall [2012] NSWSC 184 at [39], White J (as his Honour then was) wrote that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period.”

In Verzar v Verzar [2014] NSWCA 45 at [24], in the Court of Appeal, Meagher JA wrote that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

Clearly, permitting the Court to “otherwise order” was included in the Act to avoid the section becoming an instrument of injustice. Yet, “[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380 at [98].

The equivalent section in similar UK legislation has been described as “a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules”: Re Salmon, Deceased [1981] Ch 167 at 175.

In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 at [23]-[24], Pembroke J put it more strongly:

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows:

To refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant. As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, at [31]:

Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]:

As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, “the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person’s estate”: Harrison v Harrison [2011] VSC 459 at [292].

Also relevant to the present case, is what was said in Mansfield v Mansfield [2003] WASC 214 at [65]:

Likewise, an applicant who is under a reasonable misapprehension as to the extent of his, or her, interest under the deceased’s Will, provides a sufficient reason explaining the delay in commencing proceedings: In re Marland (decd) [1957] VR 338.

Although in another context, the High Court said in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475:

As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]:

If eligibility is established, and the time for making the application is extended, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the Court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act.

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”.

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

The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780.

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

Although the existence, or absence, of “needs” which the applicant cannot meet from her, or his, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227.

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

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

As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 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.

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.

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

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

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

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of 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 is, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

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

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

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

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

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

Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).

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

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

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

The Court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19; McKenzie v Topp [2004] VSC 90 at [63].

In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

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

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

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

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

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

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

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

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

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

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

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

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 other claimants on the bounty of the deceased in the present case are John and Walter.

Neither John, nor Walter, even though not applicants for provision, have to prove an entitlement to the provision made for him in the deceased’s Will, or otherwise justify such provision.

I shall refer to the evidence on this topic in respect of two time periods. The first time period covers the period between the date of the deceased’s death until January 2016. The second period covers the period thereafter until the commencement of the proceedings.

I shall quote Alba’s evidence regarding the first time period verbatim:

The only response by John, to Alba’s affidavit evidence, is:

Alba was cross-examined about her evidence. She confirmed that she had sent the email following the deceased’s death and that she had not received a response to it. She accepted that she had not telephoned John thereafter. She could not remember whether she had sent Walter an email about the estate. She stated that she had not spoken to any friends about bringing a claim against the estate (T22.1 – T22.27).

The Court also asked Alba some questions:

On 10 January 2016, Alba received a telephone call from John and they had a conversation which included the following:

Alba goes on to state - “I gave the defendant my address. We finished the telephone call with pleasant conversation.”

On 15 January 2016, Alba received a letter from Ms K Oldman of Denman Legal, (who was John’s former solicitor) which, relevantly, provided:

(I should mention that the letter was dated 25 November 2015 but it seems to have been accepted that Alba did not receive it until 15 January 2016.)

There was a form enclosed but a copy of that document was not included in the evidence. Alba gave evidence, however, that she thought it had referred to her being a beneficiary and that it asked for her bank account details. She was asked whether it said anything about if intending to bring a claim she should do it within a particular period. She was unable to recall whether it did, but did not believe so: T25.25 – T25.45.

In an email dated 18 January 2016 from John’s former solicitor, the following appears:

Importantly, there is no reference in the email, to the debt secured by the Mortgage on the Merriwa property, or the amount that would be payable.

In a letter dated 25 January 2016, solicitors retained by Alba (Jessep & Storm, Mr P Jessep) wrote to John’s former solicitors (Denman Legal):

By letter dated 27 January 2016, Ms Oldman responded:

It goes without saying that in January 2016, the proceedings, if commenced immediately, would still have required an order extending the time for the making of Alba’s application. The Plaintiff’s application, even then, was over four years out of time.

By letter dated 5 April 2016, Mr Jessep asked for specific information about the nature and value of the deceased’s estate.

By letter dated 11 April 2016, Ms Denman responded:

There is no evidence of Alba, or her solicitors, having contacted John, or Walter, directly, after receipt of this letter.

It should be mentioned that a copy of the correspondence to which I have referred was annexed to Alba’s affidavit sworn on 18 July 2016. However, each of the annexures was said to be an annexure “referred to in the affidavit…sworn at Caringbah this 18th day of April 2016”. As stated, the Summons was not filed until 25 July 2016.

Alba accepted that she had received a copy of her draft affidavit from her solicitors in April 2016 (T23.43 – T23.45). There was no explanation why the annexure note bore a reference to an affidavit that would have been sworn 3 months earlier. When asked in cross-examination whether she had sworn an affidavit in April 2016, Alba said she could not remember.

Alba was cross-examined about events concerning meeting with her solicitor. She accepted that she went to see the solicitor about the deceased’s estate, that he had discussed with her bringing a claim in respect of the estate, and that the solicitor mentioned the claim was out of time and that it needed to be put on promptly: T22.33 – T22.44.

John’s counsel asked the Court to infer that there had been such an affidavit. He also submitted that there had been no explanation for the failure to commence the proceedings between January 2016 and July 2016.

Alba says that she cannot remember making any enquiry about the deceased’s estate, or her entitlement to any share of that estate, in the years following the deceased’s death in 2010 other than the one email to which she did not receive a response. However, there is no basis for rejecting her evidence that she did not do so. It was accepted by John’s counsel that he had no evidence to contradict Alba’s evidence on this topic.

One can well understand not making any enquiries about a Will immediately after the deceased’s death. To do nothing for over four years thereafter, is less understandable, and, in the circumstances of this case, bearing in mind the apparent relationship of the parties, as demonstrated in the conduct of the proceedings, even less explicable.

There is no basis, however, for rejecting Alba’s evidence that she did not know of her rights to make a claim, or that she did not see a solicitor about her rights until January 2016. Yet, whilst that may explain the delay in the period between the date of death and mid-January 2016, it does not explain the delay between that time and 18 July 2016, when the proceedings were commenced.

However, the explanation for the delay is not the only matter that must be considered. All of the evidence must be considered to determine whether there is sufficient cause for extending the time for the making of the plaintiff’s application.

John gave a significant amount of evidence to the contributions made by him to “the family businesses operated under the company, Mirzain Pty Limited…” both before, and after, the death of the deceased.

He stated that “the effects of an order for provision for my sister in these proceedings will mean that I am forced to sell the Merriwa property and liquidate the family business that I have work[ed] in since 1970’s… If I am forced to sell the Merriwa property, and liquidate the businesses, I will be left without secure accommodation, and I will be left without a job.”

The Court raised the accuracy of the last statements at T45 – T46:

This prompted some further cross-examination by counsel for the Plaintiff:

In his written submissions, counsel for John pointed to the delay between 25 January 2016 and the date of commencing the proceedings six months later, stating there is no explanation for the delay and that “the failure to make a prompt application after retaining solicitors to act ought to be fatal to the extension of time”. He also asserted that “the Plaintiff’s case is weak”.

Counsel for John stated, in his oral submissions:

I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. 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.

The Plaintiff is a child of the deceased. She attests to having had a good relationship with the deceased throughout her life. She is the youngest of the three children of the deceased.

The Plaintiff moved out of the family home when she was 17 years of age. She left school to enter the workforce against her parent’s wishes, and was asked to leave. Despite this, the Plaintiff kept in regular contact with the deceased by telephone.

When the Plaintiff was 18 years old, she married her first husband (Andrew). Neither the deceased nor the Plaintiff’s father attended the wedding.

When her first child was born in 1977, the deceased travelled to Bathurst, where the Plaintiff was then living, in order to meet her grand-child.

In 1978, the deceased and the Plaintiff’s father bought the property in Merriwa. An offer was then made to Andrew to run the farm, in exchange for which the deceased and the Plaintiff’s father offered to “build a house for [us] on the property.” The Plaintiff states the deceased said to her at the time “This is your only opportunity to get back into the family.”

The Plaintiff and Andrew accepted the offer, resigned from their respective employment, and moved to Merriwa. Whilst the house was being built, they lived in rented accommodation in Merriwa which was paid for by the family business.

In 1979, after the Plaintiff’s second child was born, and prior to moving into the house that had since been built, Andrew was dismissed from his employment in the family business, due to allegations by the Plaintiff’s father that Andrew had been unfaithful to the Plaintiff. The Plaintiff declined an offer by her father to move into the property, with the children, but without Andrew. Instead, she and Andrew moved to other rented premises.

In about 1980, Alba separated from Andrew. At the end of 1980, she moved to Bathurst with her children. For many years thereafter, she seemed to have lived a somewhat peripatetic lifestyle, moving to various places that enabled her to be employed.

In 1995, Alba stated that she bought a car and that she “began visiting my mother regularly including on special occasions”. She says that after 2006, when the deceased was moved into the nursing home she would visit her there.

John does not dispute Alba’s version of her relationship with the deceased.

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

The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at [478]-[479]:

Yet, the Act does not expressly refer to, or identify, any “moral duty”. However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.

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 any of her children, once they became adults, imposed upon her by statute or common law.

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

It should also be remembered that “[a]lthough the relationship of parent and child is important and carries with it a[n]… obligation 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. However, there is no “presumptive testamentary entitlement of an offspring”: Underwood v Gaudron [2015] NSWCA 269 at [73].

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

I have earlier dealt with these matters. The value of the net distributable estate, even without considering the costs of the proceedings, is on any view, very small.

Alba is in receipt of a Newstart Allowance from Centrelink, and her income is said to be $290 per week. She supplements her income with part-time work as an Advance Child Care Worker, which at the time she swore her first affidavit was said to be about 11 hours per week, earning an additional $320 per week, but was revised in her affidavit sworn 18 May 2017, to only an additional 3 hours per fortnight. Her income meets her expenditure, which expenditure is estimated to be $1,385 per month. She also gave evidence that when she cares for her 6 year old grandson during the school holidays, her daughter will pay her up to $120 per week.

Alba has assets of $25,297 which includes cash in bank accounts ($110), superannuation ($3,187), personal effects ($10,000), and a car ($12,000). In July 2016, her debts included a credit card debt of $1,000 and a personal loan of $5,000. Her updated evidence on the topic of her liabilities was rejected.

Alba resides in Housing NSW rental accommodation, and she has been a public housing tenant since the 1990s. At the hearing she gave evidence that she is presently residing for extended periods of time with her son, in Port Macquarie, although she continues to pay the rent on her housing in Sydney. She explained that she does so whilst she is awaiting a transfer of her public housing to the Port Macquarie area, which, she expects, will occur within the next 6 months (T26.33 – T26.39). She pays subsidised rent of $58 per week (T27.2).

Alba is single and usually lives alone. However, at the hearing she gave evidence, in cross-examination, that she resides with her son in Port Macquarie on a full-time basis for 6 weeks at a time, and then returns home to Sydney (for an undisclosed period of time), in order to comply with the requirements of Housing NSW in retaining her public housing accommodation. She does not pay any rent or board to her son, or contribute to the costs of the meals she shares with his family, during the periods she lives with him (T28.6 – T28.12). However, she states that she receives no further financial assistance from her children, and did not disclose the financial circumstances of her son in her evidence.

Alba stated that she has been unable to continue in full-time employment since 2012, after suffering a fall on the train whilst travelling home from work in 2006, and undergoing a shoulder operation in 2009. She states she underwent a Disability WorkCover medical assessment in December 2013, which found she had a 16% Whole Person Impairment with capacity to work 8 to 12 hours per week. However, no further evidence of an updated assessment of her capacity to work was not provided (updating medical evidence was excluded).

I accept that Alba has a limited earning capacity.

Alba is 61 years old.

Alba gave evidence that, as a teenager, she, occasionally, worked in the family business without being renumerated.

She also referred to the contribution made by her then husband in running the family farm. She conceded that, during this time, the business paid for the rent on their house.

John asserted that Alba “did not contribute funds to the family business in any meaningful way that I am aware”.

Alba gave evidence that from time to time, the deceased provided her with financial assistance, by giving her some money. In particular, in the mid 1980’s, when her marriage to Andrew ended, and he did not provide her with child support, the deceased also provided assistance with groceries and gifts of clothing. The deceased also provided assistance with child-care whilst Alba worked in the evenings in the 1980’s. The deceased also gave financial assistance to Alba in order to purchase a second hand car to allow her to drive to work.

In cross examination, Alba stated that the deceased gave her small amounts of money (usually $20), whilst she was a single parent, up until her second marriage in 2003 (T20.10 – T20.24). However, otherwise, Alba appears to have been financially independent of the deceased for at least the last 15 years of the deceased’s life.

John gave evidence in his affidavit sworn 13 April 2017 that the deceased had told his wife, Margaret, that she had “left a letter explaining the reason for the gift to Alba in her will.” He also stated that following the death of the deceased, this letter could not be found amongst the deceased’s possessions.

Alba was not cross-examined about whether she had ever seen such a letter.

Thus, other than the Will itself, there is no evidence of the testamentary intentions of the deceased.

I have dealt with the periods during which some money was given to Alba by the deceased. Alba was clearly not being maintained by the deceased in the 7 or 8 years prior to the deceased’s death.

Apart from the Commonwealth government’s responsibility to continue to provide her with the Newstart Allowance, and housing provided by the NSW Government, there is no other person who is liable to support Alba.

I have earlier dealt with Alba’s conduct.

John gave evidence of his competing financial claim, asserting that any order for additional provision for the Plaintiff would necessarily require the sale of the Merriwa property (T62.17), with the consequence that he would be left without employment or accommodation. Alba, who did not accept this assertion, was unable to offer any cogent reason why this would not be the case (T31.10- T31.43).

However, I have earlier referred to the terms of the deceased’s Will and that it will be necessary for John and Walter to come to some arrangement regarding the Merriwa property if it is to be retained by John. Clearly, no such arrangement has yet been made.

John’s assets are his one-third interest in the farm (estimated to be $179,166) which is subject to a share of the debt secured by the Mortgage to Margaret. He also has shares in Mirzain Pty Ltd which he estimates to be “between nominal to $100,000.” He has personal effects to the value of $4,000. He has a nominal amount of money in his bank account (said to be $190) and no savings or superannuation.

He stated that he had drawn down on his superannuation (said to have been $33,000) to pay off some debts owed by Mirzain.

John only draws from the business what he requires to live on, which in the last financial year was about $16,764. His income just meets his expenses of about $315 per week. His only liability is the share of the mortgage debt to Margaret secured on the Merriwa property.

John deposed that over the last 10 years, the family business has taken a down turn in profit or return as a result of loss of market share, a reduction in volume production and management decisions that have not yielded results. He stated that turnover has reduced from a high of $2.4 million per annum in the early 2000’s, to $250,000 per annum.

John also gave evidence that if he is forced to sell the Merriwa property and liquidate the business, this will not generate much net return, as the businesses have significant long term debts to staff and other creditors. As a result, he stated he will not be left with much to show for his 40 years of labour on the Merriwa property and in the family business.

Although John and Margaret remain married to each other, they no longer consider themselves to be in a marriage relationship, and Margaret resides in a property in Lilli Pilli, in which she is said to own a one-half share. John stays with Margaret about twice a week (although they do not share a bedroom), as they share parenting responsibilities for two foster boys they are raising. John contributes about $100 per month to assist with expenses relating to the foster children. He deposed that he and Margaret have separate finances and no combined assets. There has not been, however, a property settlement between them.

John gave evidence that he was diagnosed with prostate cancer about 4 years ago, for which he underwent treatment. He states that recent test results indicate he is likely to need to undergo further treatment within the next 2 years.

As has been earlier dealt with, following the death of the deceased, no application for a grant of probate was made. John has remained in control and occupation of the Merriwa property and operates his business from there. The company, Mirzain Pty Ltd, was incorporated by the deceased and John in 1986. He gave evidence that Mirzain notionally pays rent to him.

John has worked the Merriwa property and businesses since the 1970s and has lived on the property since 1993. The Merriwa property was purchased as tenants in common in equal shares between the deceased, John, and the deceased’s late husband.

Reference has earlier been made to what is said to be Mirzain’s contribution to the Merriwa property, which includes setting up and installing a three phase power supply to the farming property, the purchase of two kit homes, and the installation of an irrigation system.

John deposed that he, the deceased and his father, rarely received any dividends from the family business, and that most of the profits went back into developing or expanding the business.

John had a close relationship with the deceased as her son, and also as her business partner since the 1970s. This is evidenced by the terms of the deceased’s Will and the provision made for John during the lifetime of the deceased.

This factor is not applicable.

There is no other matter that I consider relevant.

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

Because the proceedings were not commenced within the time prescribed by the Act, the Plaintiff sought an order that the time in which to commence the proceedings be extended up to, and including, the date of the filing of her Summons.

The onus is on the Plaintiff to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by John and/or Walter.

I shall return to this after dealing with the next question; that is, whether the provision made for the Plaintiff by the deceased, in leaving her the residue of the estate, bespeaks inadequacy. As previously stated, a precondition to a family provision order being made is that the Court must be satisfied that the deceased has not made “adequate provision for the proper maintenance ... or advancement in life of the person in whose favour the order is to be made”.

The size of the actual estate is very small. Because of its nature, the provision of residue to Alba means that she will not receive anything.

The fact that the Plaintiff does not actually receive any provision made for her under the Will of the deceased, of itself, does not bespeak inadequacy. In determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the Plaintiff’s overall financial position, the totality of her relationship with the deceased, the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.

Claims for a family provision order present particular difficulties where the actual estate is small and where there is a significant competing claim 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.

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

John and Walter are the only other persons who have any relevant claim on the deceased’s bounty. Only John has raised his financial and material circumstances and his competing claim upon the bounty of the deceased. The Court must not ignore his claim as a beneficiary, being the principal chosen object of the deceased’s testamentary bounty. I am satisfied that his competing claim is founded upon his significant contributions to the deceased, and to the estate property, during the deceased’s lifetime. These matters are relevant on the issue whether the provision made for Alba is inadequate.

This is a case of an applicant adult child who has lived quite independently of her parent, the deceased, for many years, but who is nonetheless, in straitened circumstances.

It is to be noted, also, that the Plaintiff has, for some time, whilst receiving an income by way of pension, supplemented by casual work, been living within her means. The Court is entitled to take into account pension benefits as part of the resources of the Plaintiff, and to consider that they will continue to be received in whole or in part. In addition, the Plaintiff has the continuing financial resource of housing accommodation provided to her by Housing NSW.

However, I must also consider the fact that John has remained living on the Merriwa property and appears to have treated it as his own since the death of the deceased. This is a substantial benefit that he has received since the death of the deceased.

Consistent with prevailing community standards, I am satisfied for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of Alba has not been made by the Will of the deceased.

I then turn to the provision, if any, that ought to be made for Alba. Because of the size of the estate, and the competing claim of John, any provision for her, must be extremely modest.

I do not accept the submission of counsel that Alba should receive a lump sum of $50,000. The estate is simply not large enough to enable that amount to be regarded as “adequate and proper” in all the circumstances. It also does not give due regard to the deceased’s testamentary intentions as expressed in the Will and to the significant competing claim of John.

In my view, a lump sum of $17,500 should be made for Alba out of the deceased’s estate. This lump sum will enable her to pay off her debts and leave an extremely modest capital sum for the exigencies of life.

Whilst it is true that Alba has not provided an explanation for not having commenced proceedings immediately upon, or even shortly after, seeing a solicitor, by that stage, the time for making the application had well and truly expired. Furthermore, in ending the retainer of his prior solicitors, without appointing someone to act for him, or otherwise acting for himself, John did not assist in enabling all of the information necessary to enable Alba to consider whether to make a claim during this period, to be made available.

John’s conduct, as an executor, in doing nothing to administer the estate until about 6 years after the death of the deceased, does not assist him in the Court’s consideration of Alba’s delay in commencing proceedings. In addition, in that period, he did not act even-handedly between beneficiaries. To the contrary, it seems to me that he has treated the deceased’s estate, from the date of death, as his own, to do with as he pleases, despite the fact that it was not his property in law or given to him, alone, under the terms of the deceased’s Will.

Having found that Alba has a reasonable claim, and should receive some provision, as a matter of justice, I am of the view that sufficient cause has been shown for the making of her application. Thus, the time for the making of her application should be extended to the date of the filing of the Summons.

Thus, the Court: