Sariban v Pocock; Pocock v Peipman

1. [1]

   HIS HONOUR: In Bolger v McDermott [2013] NSWSC 919, at [1], I wrote:

2. [2]

   The disputes that the Court is required to decide have their roots in the life, and death, of Orlanda Amilde Peipman ("the deceased"), who was born in July 1925, who died on 27 December 2015, aged 90 years, and who left property, of modest value, in New South Wales.

3. [3]

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

4. [4]

   The combatants in the two proceedings, which were heard over two days, are three of the five children of the deceased, being Ruth Vivian Sariban, who is the Plaintiff in proceedings 2016/382014 (“the family provision proceedings”); Samuel Eskil Peipman, who is the second Defendant in the family provision proceedings and the only Defendant in proceedings 2017/180094, (“the possession proceedings”); and Ingrid Orlanda Amalie Pocock, who is the first Defendant in the family provision proceedings, and the Plaintiff in the possession proceedings.

5. [5]

   The two other children of the deceased, Michael Peipman and Andrew Peipman, were not parties in either of the proceedings. Michael was a witness in the family provision proceedings and his affidavit was read in the Defendant’s case. He was not cross-examined. Andrew was not a witness in either proceeding.

6. [6]

   Ward CJ in Eq, on 6 October 2017, made an order for the joinder of Sam as the second Defendant in the family provision proceedings. At that time, Sam was legally represented. On the same date, her Honour, again without opposition, ordered that the two proceedings should be heard consecutively, with the evidence in one being evidence in the other. This order, with respect, was clearly necessary, and appropriate, as much of the evidence to be read in one, is, or may be, relevant to both proceedings.

7. [7]

   Ingrid is one of the two executors named in the Will made by the deceased on 14 November 2007. On 9 September 2016, this Court granted Probate in common form of that Will to her. Leave was reserved to Sam, the other named executor in the deceased’s Will, to come in and apply for Probate, but he has not done so. The making of a grant expressed in that way is authorised by s 41 of the Probate and Administration Act 1898 (NSW).

8. [8]

   There was an issue raised by Sam about this aspect of the matter but nothing significant turns on it in either of the proceedings. He included a significant amount of correspondence and other documentation going to the matter. It is clear that he did not participate, in a meaningful way, in seeking the grant of Probate with Ingrid, and administering the deceased’s estate. As will be read, he ignored requests to vacate the only real property in which the deceased had an interest.

9. [9]

   It is not in dispute that he has not taken any step in exercise of the leave reserved since Probate of the deceased’s Will was granted to Ingrid.

10. [10]

    In the family provision proceedings, Ingrid and Sam both oppose Ruth’s claim, and seek an order that her claim be dismissed with costs (T7.03 – T7.14).

11. [11]

    In the possession proceedings, Sam opposes the relief sought by Ingrid.

The Family Provision Proceedings

1. [12]

   Ruth filed a Summons on 20 December 2016, in which she sought a family provision order out of the deceased's estate and/or notional estate pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”) and an order for costs. (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 one for the maintenance, education, or advancement in life, of an eligible person.

2. [13]

   Such an order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). The parties, initially, agreed that there was no property that could be designated as notional estate of the deceased. Subsequently, an issue was raised about an amount of $51,000, which was the deceased’s money, kept by her at home, which Sam said she had gifted to him. I do not really think that anything turns on the dispute as Sam has acknowledged that he currently has that amount available to him.

3. [14]

   In any event, the written submissions, by counsel for each party, made no reference to this aspect, although it was the subject of oral submissions. Hereafter, it is only necessary to refer to the estate of the deceased. (I shall refer to the manner in which the amount should be treated, later in these reasons.)

4. [15]

   Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Ruth is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

5. [16]

   It was also not in dispute that Ruth commenced the family provision proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

The Possession Proceedings

1. [17]

   The only asset, of real value, held by the deceased at the date of her death, was a one-third interest in real property situated at Ryde (“the Ryde property”).

2. [18]

   By Statement of Claim, filed on 16 June 2017, Ingrid asserted that she was the registered proprietor of the whole of the Ryde property “in her capacity as executor of the estate” of the deceased, pursuant to the grant of Probate. She also asserted, in an affidavit affirmed 19 May 2017, that she held the remaining two-thirds interest “as executor on trust for the five children of the deceased – including [Sam] and myself – as tenants in common in equal shares”. (I shall return to this aspect later in these reasons.)

3. [19]

   Ingrid also alleged in the Statement of Claim, that, on 29 April 2017, Sam had been personally served with a notice to deliver up vacant possession of the Ryde property and that he had refused to vacate. It was not in dispute that even at the date of the hearing, he was in sole occupation of the Ryde property.

4. [20]

   Sam, who, for the most part, has acted for himself during both proceedings, and who appeared, unrepresented, at the hearing, filed a document described as a “Defence” to the Statement of Claim on 28 July 2017. That document fails to conform to Uniform Civil Procedure Rules 2005 (NSW), rule 14.7, in that it does not contain only a summary of the material facts on which he relies and not the evidence by which those facts are to be proved. Additionally, it does not traverse, at all, the allegations of material facts asserted in the Statement of Claim and it does not reveal to Ingrid, or the Court, precisely how Sam puts his case.

5. [21]

   However, no application was made to strike out the “Defence” and the matter has proceeded using that document as the foundation for his defence of the possession proceedings. In the end, the course taken was to deal with the substance of the matters asserted, disregarding the formal defects, and attempting, as best as one could, to grapple with the matters to which Sam has referred.

6. [22]

   The written Outline of Submissions, delivered by Sam, stated:

7. [23]

   Leaving aside the first allegation of “illegality and falsehoods”, about which there was no evidence, Sam asserted that the deceased was entitled to a greater proportion of the Ryde property, she having paid off a mortgage debt secured on the title, at the date of the death of her husband, Eskil, who was the sole registered proprietor thereof, and at the time she became the registered proprietor. As such, Sam contended that his share of the Ryde property is greater than the one third share of which the deceased was the registered proprietor, that was devised to him under her Will. He also seemed to suggest, apparently in the alternative, that the money she had contributed “must be accounted for, the fact she put money in. It just can’t disappear”: T7.27 – T7.28.

8. [24]

   In his oral submissions, Sam asserted that the deceased’s interest in the Ryde property was anywhere from 33 per cent to 100 per cent: T83.26-T83.28.

9. [25]

   Sam did not file any Cross-Claim seeking a declaration, or any other relief, that the Ryde property, or any greater proportion of it, was held on trust for the deceased. The defect in the pleadings was ignored by the parties and the matter proceeded. By virtue of s 90 of the Civil Procedure Act 2005 (NSW) and UCPR rule 36.1, the Court has the power to give any judgment that the nature of the case requires, including, in this case, whether any part of the share of the Ryde property passing to the five children on intestacy was held in trust for the deceased.

10. [26]

    As to the attack made upon Ingrid, and her solicitors, as the basis for his refusal to vacate possession of the subject property, much of Sam’s evidence was rejected. How his remaining evidence provided a defence to the claim for possession was not explained in the submissions that he made.

11. [27]

    During the course of the hearing, Sam orally admitted that he had received a request, from Ingrid, to vacate the Ryde property, to enable its sale (T10.42 - T11.03), and also, a request that he pay rent, or an occupation fee, whilst he remained in occupation, all of which requests he ignored: T54.18 - T54.41.

12. [28]

    As there had been discussions, during the course of the family provision proceedings, between counsel for Ingrid, and Sam, in which, as I have written, their interests were aligned, another counsel (Ms J Merkel) was retained to cross-examine him. This was done “as cost effectively as possible…it was seen to be preferable [to avoid] any suggestion that might arise at any time that there was unfairness or a forensic advantage…”: T1.38 – T1.40. Counsel agreed to appear at a time in the case when Sam was to be cross-examined and withdraw thereafter, thereby limiting the fees that would be charged by her.

13. [29]

    As Sam was a party to the family provision proceedings, he was cross-examined by Ruth’s counsel. Counsel for Ingrid only sought to ask him one question (with leave).

Litigant in Person

1. [30]

   At the commencement of the hearing, having confirmed that Sam was not a lawyer and that he did not have any legal training or experience, the Court confirmed its duty to ensure that the trial is fair, and that it is determined in accordance with the law, stressing the need to consider the interests of all of the parties. Of course, this duty applies whether a party has been unable to obtain legal representation, or if he appears self-represented by his own choosing, or where the party is represented: MacPherson v R (1981) 147 CLR 512, 546-547; [1981] HCA 46. The Court confirmed that this did not mean that to dismiss one’s lawyers, or to retain none, should be an advantageous procedural step.

2. [31]

   Sam was also told that, as he was appearing unrepresented, the Court’s duty was not to advise him of how to conduct his case; nor to advise him of how his rights should be exercised; nor to become his advocate, or stand in the shoes of his previous legal representatives. Nor would the court unduly interfere with the conduct of the trial on his behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to him as a self-represented litigant: Tomasevic v Travaglini (2007) 17 VR 100 per Bell J, at 130; [2007] VSC 337; Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), Samuels JA, 16 June 1986, unrep, at 27); Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130].

3. [32]

   He was also informed that the Court would not permit him to give evidence from the bar table without oath or affirmation. The limited guidance to which the Court referred, then went to explaining to Sam how the case would proceed, commencing with the reading of the affidavits onto the Court record; informing him of his right to object to any part of the affidavit evidence relied upon by Ruth, or by Ingrid, that he might regard as inadmissible; an explanation of the order of calling witnesses; informing him of his need to enter the witness box to be cross-examined (as he had been asked to attend for cross-examination); his right to cross-examine the deponent of any affidavit read by Ruth or by Ingrid; and providing an explanation of the consequences of not cross-examining a witness. The guidance would not extend to advising him of how any of these rights should be exercised.

4. [33]

   The Court also suggested that he watch the cross-examination, conducted by counsel to try to understand the way in which it should be done. He was informed that he would only be allowed to cross-examine Ruth on matters not cross-examined upon by counsel for Ingrid.

5. [34]

   Finally, the Court confirmed that he had received the Outline of Submissions that had been received from counsel, and he confirmed that he had a copy of the Submissions, as well as the Court Books.

6. [35]

   I have no doubt that Sam is extremely intelligent. He had no difficulty understanding what was said to him. I found that he displayed an insight into the case that he was presenting.

7. [36]

   In addition, throughout the proceedings, he was polite, calm, and he acted with appropriate respect to the Court, to Ingrid, to Ruth, and to counsel. Similarly, as would be expected, both counsel, where appropriate, seemed to assist Sam to understand procedural points and where necessary, assisted him to locate documents being dealt with.

8. [37]

   Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the Court’s duty given to Sam who is clearly without any legal knowledge. Overall, I am satisfied that he understood the nature of the proceedings and that he conducted them as well as he could. It was clear that he had prepared for the hearing upon the basis that he would represent himself. He appeared to have no difficulty responding to questions, or to answering matters raised by the Court.

9. [38]

   Unfortunately for Sam, the evidence, overall, did not assist him in establishing that the deceased was entitled to a greater share of the Ryde property, or that he should have an accounting of the moneys paid by the deceased. Overall, he was unable to convince the Court, on the balance of probabilities, of the case that he mounted.

Background Facts

1. [39]

   In claims such as these, factual context is necessary. It is convenient to begin with a short statement of some of the background facts, since these provide the context in which the issues arise. Many of these facts are taken from the affidavits read in the proceedings, or in evidence given during the case, which are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.

2. [40]

   The deceased was born in the Republic of Estonia. On a date not disclosed in the evidence, she moved to Germany, where she worked as a draft person. She escaped Germany during the Second World War and migrated to Australia in about 1948. Here, she met Eskil Vaino Peipman, and they were married in May, 1950.

3. [41]

   Eskil, also, was born in Estonia (in about 1918). He had been living in Australia, for about 24 years, at the time of his marriage.

4. [42]

   There were five children of the marriage of the deceased and Eskil, being Sam, who was born in February 1951, and who is now 67 years old; Ruth, who was born in April 1952, and who is now 66 years old; Ingrid, who was born in September 1954, and who is now 63 years old; Michael, who was born in May 1956, and who is now 62 years old; and Andrew, who was born in April 1959, and who is now 59 years old: T11.

5. [43]

   Eskil died in a motor vehicle accident on 3 October 1958. At the time of his death, he was a legally qualified medical practitioner, employed by the Commonwealth Government as a specialist thoracic surgeon.

6. [44]

   On 6 March 1959 this Court issued Letters of Administration of Eskil’s intestate estate to the deceased, a copy of which was tendered at the hearing (part of Ex. 1D1).

7. [45]

   In the Affidavit “D”, filed with the application for administration, sworn by the deceased on 16 February 1959, a copy of which affidavit formed part of Ex. 1D1, the nature and value of Eskil’s estate, available for distribution, less such expenses, debts and liabilities, as may have been payable out of that estate in the course of the administration, disclosed that the total value of his estate was estimated to be £7,665. At the date of his death, he was the sole registered proprietor of the Ryde property (£6,500). In addition, Eskil’s property included furniture (£393), a car (£600), money in current accounts (£156) and shares (£6). There was a debt, secured by mortgage, of about £2,990, a hire purchase debt (relating to furniture) (£227) and water rates in respect of the Ryde property (£19). The final estimated balance of Eskil’s estate was said to be about £4,426. (In these amounts, I have omitted the reference to shillings and pence and shall omit a reference to cents in the amounts to which I shall refer. This will explain any seeming mathematical errors.)

8. [46]

   Eskil had become the sole registered proprietor of the Ryde property pursuant to a Transfer dated 31 October 1950, which had been registered on 29 August 1951: Ex 2D1.

9. [47]

   At the date of his death, the operation of the rules of distribution on intestacy resulted in the whole of Eskil’s estate being held on trust, subject to the payment of all such funeral and administration expenses, debts and other liabilities as were properly payable out of the estate, as to one third, for the deceased, as Eskil’s spouse, and the balance to be shared equally between the five children of Eskil and the deceased: s 2 of the Administration of Estates Act 1954 (NSW) amended s 50 of the Wills, Probate and Administration Act 1898 (NSW).

10. [48]

    It follows that the deceased would bear the burden of one-third of the mortgage debt and that the children, who shared equally the remaining two thirds interest, would bear the burden as to the remaining two-thirds of the mortgage debt: T13.

11. [49]

    In December 1959, Manning J, in this Court, without a jury, heard proceedings in which the deceased sought to recover damages, on behalf of herself and the five children, pursuant to the Compensation to Relatives Act 1897-1953 (NSW), for the financial loss suffered by them as a result of Eskil’s death. His Honour found a verdict for the deceased and concluded that £24,000 represented the measure of financial loss that had been suffered by them. His Honour, however, entered a verdict, in favour of the deceased, for £15,000, the difference (£9,000) representing his Honour’s assessment of the benefits that the family would receive by way of superannuation as a result of Eskil’s death.

12. [50]

    The deceased appealed on the ground that the verdict was too small and the Defendant, in the proceedings, cross-appealed. The decision of the Full Court of the Supreme Court is reported as Peipman v Turner [1961] NSWR 252. The appeal was upheld, with the verdict of £15,000 being set aside, and a verdict entered for £25,000.

13. [51]

    At 258 of the report, the Full Court wrote:

14. [52]

    There was no evidence of the date of the distribution to each of the five children, or of the amount that each received. However, Sam accepted that at the age of 21, he had received his share of the damages, together with the interest that had accrued thereon: 2T33.43 – 2T33.49. It can be inferred that each of the other children received her, or his, share upon attaining the age of 21 years.

15. [53]

    On 6 July 1959, re-declared on 25 July 1962, the deceased lodged an application to be registered under s 94 of the Real Property Act 1900-1956 (NSW), as Proprietor by Transmission to transmit the title to the Ryde property into her name as administrator of Eskil’s estate.

16. [54]

    The Mortgage registered on the title to the Ryde property was discharged, by the deceased, on 20 November 1961: Ex. 2D1.

17. [55]

    On 27 July 1962, the particulars of the transmission into the name of the deceased were entered on the title to the Ryde property: Ex. 2D1.

18. [56]

    A Mortgage, dated 19 May 1971, to Gordon Douglas Pegler, was registered on the title to the Ryde property on 29 June 1971. (A copy of the Mortgage is not in evidence.) The registered Mortgage was discharged on 19 January 1977: Ex. 2D1. The circumstances surrounding the granting of this Mortgage, which must have been taken out by the deceased, are not disclosed in the evidence.

19. [57]

    On 14 November 2007, the deceased appointed Ingrid and Sam as her joint enduring guardians and attorneys.

20. [58]

    The deceased was admitted to the Royal North Shore Hospital on 27 August 2015. She was diagnosed with “severe Alzheimer’s dementia”. On 8 September 2015, the Guardianship Division of NCAT received an application seeking the appointment of a guardian and financial manager for the deceased. The applicant was Ms P Lynch, an aged care social worker, who expressed concerns for the deceased’s safety should she return to live in the Ryde property.

21. [59]

    (Part of the exhibit to Ruth’s first affidavit contained documents relating to the NCAT proceedings. In addition, a copy of the whole of the Transcript of the proceedings is exhibited to Sam’s affidavit. Counsel did not refer to this material, apparently appreciating that it was not really relevant to the issues in either proceedings. Sam asked questions in cross-examination of Ingrid about some matters, most of which questions were objected or otherwise disallowed.)

22. [60]

    In November 2015, Ingrid, by solicitors, lodged a Real Property Act caveat on the title to the Ryde property, in which she claimed a 2/15ths interest therein.

23. [61]

    By Transmission Application, dated 22 September 2016, Ingrid sought to be registered as proprietor on the title to the Ryde property “as executor of the will of the deceased registered proprietor (who died on 27 December 2015 pursuant to probate) …granted on 9 September 2016…”.

24. [62]

    On 31 January 2017, pursuant to s 6 of the Trustee Act 1925 (NSW), Ingrid signed a Deed in which she was appointed as the Trustee of Eskil’s estate, which Deed was registered on 1 March 2017: Ex. 1D2.

25. [63]

    The Ryde property was vested in Ingrid, on her obtaining Probate of the deceased’s Will, pursuant to s 44 of the Probate and Administration Act 1898 (NSW). The vesting of the property in her, as executrix, was subject to any trust or equity affecting the same: s 45 of the Probate and Administration Act.

26. [64]

    On 7 March 2017, Ingrid re-lodged an Application to record herself as a new registered proprietor of the Ryde property as “a beneficiary of the estate of the late Eskil Vaino Peipman and the appointed Executor of the Estate of the late Orlanda Armilde Peipman”.

27. [65]

    The deceased’s Will, relevantly, provided, in Clause 3:

28. [66]

    (It was agreed that the list of items of furniture and effects referred to had not been located by either Ingrid or Sam.)

29. [67]

    Clause 4 of the Will, relevantly, provided that in the event Sam predeceased the deceased, her estate was “to be divided equally between such of my children as are living at my death”.

30. [68]

    The deceased left a handwritten letter dated 5 November 2007 (“the Will letter”). The letter, as writtenm provides:

31. [69]

    (Naturally, Sam relied heavily upon the Will letter, particularly in relation to the deceased’s statements regarding her having repaid the debt secured on the title to the Ryde property. There are documents which support some of what the deceased wrote, which documents have provided more detailed information in respect thereof.)

32. [70]

    The prior Will, to which the deceased referred in the Will letter, was one that she made on 27 May 1998. In that Will, the deceased appointed Ingrid and Sam as the executors and divided the whole of her estate between “such of my children as are living at my death in equal shares”. This Will was revoked by the last Will of the deceased.

33. [71]

    In the Inventory of Property attached to, and placed inside, the Probate document, the property owned solely by the deceased, at the date of her death, comprised the one-third interest in the Ryde property (estimated value $466,000) and cash in bank ($11,806).

34. [72]

    In an affidavit affirmed by Ingrid on 23 March 2018, the deceased’s estate was said to consist of the one-third interest in the Ryde property (between $533,333 - $593,333) and cash in bank ($201).

35. [73]

    At the hearing, the parties agreed, subject to Sam’s claim, that the estate should be taken to consist of the deceased’s one-third interest in the Ryde property, the total estimated value of which was $1,700,000. The one-third interest therein was agreed to have a value of $566,666: Ex. 1D3. The cash in bank remained ($201). It follows that the total value of the deceased’s estate was $566,867.

36. [74]

    The parties also agreed (Ex. 1D3) that the estimated current liabilities of the estate, excluding the costs of the proceedings, total $29,142 and that the estate should bear one-third of house insurance premiums that were said to be payable ($1,162). If the Ryde property is sold, the costs and expenses of sale would be about $30,000, of which one third (subject to Sam’s claim) amounts to $10,000, would also be borne by the estate.

37. [75]

    It follows, without any costs of the proceedings being deducted from the estate, that the net value of the estate would be $526,563. (The parties also agreed that the two-thirds interest in the Ryde property which is shared between the five children, will yield about $220,000 to each of them.)

38. [76]

    Whether it is property of the estate, or property that may be designated as notional estate, it was accepted that Sam had received cash that the deceased had retained at the Ryde property ($62,495), part of which ($11,495) had been spent by him in purchasing a car, leaving about $51,000, which he currently had available.

39. [77]

    (Although Sam said that the suggestion made by his siblings was to the effect that he had stolen the money, no suggestion was made by counsel for Ruth, or for Ingrid, to that effect. Nor was it put to Sam, in cross-examination, that he had done so. Thus, any such suggestion, even if it had been made previously, must be disregarded. In any event, I have no reason to disbelieve Sam’s evidence that the deceased gave him the moneys to which reference has been made. Bearing in mind the evidence overall, I think it more likely than not that she did so.)

40. [78]

    The only eligible persons are the children of the deceased. Ingrid, Ruth, Sam and Michael are either parties in the proceedings, or witnesses in the family provision proceedings. There is also evidence that on about 30 January 2017, each of Sam, Michael, and Andrew were served with a notice of Ruth’s application, and of the Court's power to disregard his interests, in the manner and form prescribed by the regulations or rules of court. Only Ruth has made a claim for a family provision order.

41. [79]

    Sam is the only beneficiary named in the Will of the deceased. He has raised his financial circumstances as a competing beneficiary. In any event, the Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to him as the beneficiary, regardless of his financial position or needs, respectively: s 61 of the Act. In reaching the conclusion reached, the Court has not disregarded his competing interest as a claimant upon the bounty of the deceased.

Costs and Disbursements of the Proceedings

1. [80]

   Usually, in calculating the value of the deceased's estate available from which an order may be made, the costs of proceedings involving the estate should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, Ingrid, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate.

2. [81]

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

3. [82]

   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 all 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.

4. [83]

   In this case the question of the costs of the possession proceedings should also be considered. In those proceedings, Ingrid sought an order that Sam pay her costs of those proceedings, whilst Sam also sought an order that his costs be paid. There may still be some costs that should be paid out of the estate, even if that order were made, as Sam would only be required to pay Ingrid’s costs, calculated on the ordinary basis.

5. [84]

   In an affidavit sworn on 14 March 2018, Ms A Drayton, Ruth’s solicitor, revealed that a conditional costs agreement had been entered into with Ruth “in the sense that if the claim is dismissed the Plaintiff will not have to pay any professional costs. The Plaintiff will still have to pay the disbursements estimated at about $8,000. There is no uplift factor.”

6. [85]

   Ms Drayton also stated that the “conditional costs and disbursements, on the ordinary basis, up to and inclusive of the hearing are $58,000, inclusive of GST”. She estimated Ruth’s “conditional costs and disbursements, on the indemnity basis, up to and inclusive of the hearing are $88,000, inclusive of GST”. No amount has been paid by Ruth on account of her costs and disbursements.

7. [86]

   At the hearing, counsel for Ruth stated that the legal representatives for Ruth agreed that if she were successful and a cots order in her favour is made, her solicitors would not seek to claim from Ruth more than the amount, calculated on the ordinary basis, recovered from the estate: T70.32 – T70.34.

8. [87]

   Mr I C Miller, solicitor, in an affidavit sworn on 6 March 2018, stated that the costs and disbursements, including counsel’s fees, calculated on the indemnity basis, of Ingrid, as the Defendant in the family provision proceedings, up to and including the hearing, were estimated to be $109,386, inclusive of GST. He estimated Ingrid’s costs and disbursements, including counsel’s fees, calculated on the indemnity basis, of the possession proceedings, to be $12,154 (being one third of the total costs and disbursements of $36,462). It follows that Ingrid’s costs and disbursements of both proceedings, total $121,540.

9. [88]

   Sam did not provide an affidavit that dealt with his costs and disbursements. However, at the hearing, enquiries having been made of his former solicitors, Ruth and Ingrid were prepared to accept that the amount of $8,428 was the amount of costs and disbursements of those solicitors incurred in acting for Sam in the family provision proceedings. (Sam stated that he did not accept that estimated amount.)

10. [89]

    The general rule is that a litigant in person, who is successful in the litigation, is entitled to recover disbursements, but is not entitled to claim costs for time spent in the conduct of litigation: Cachia v Hanes (1994) 179 CLR 403, at 412-3; [1994] HCA 14. (There is no suggestion that Sam is a legal practitioner who is self-represented in the proceedings brought against him so that the exception to the general rule applies: London Scottish Benefit Society v Chorley (1884) 13 QBD 87.)

11. [90]

    The parties agreed (Ex. 1D3) that, in the event all of the estimates prove accurate, and in the event all of the costs are payable out of the estate of the deceased, the value of the estate, out of which an order could be made would be about $328,149. (Of course, this agreement was subject to whether Sam’s claim is successful.)

12. [91]

    In the event that Ruth’s claim for a family provision order is unsuccessful, Ingrid and Sam both seek orders that the proceedings be dismissed and that Ruth pay Ingrid’s and Sam’s costs of those proceedings. Ingrid seeks an order, in the event that she succeeds in the possession proceedings, that Sam pay her costs of those proceedings.

13. [92]

    The parties requested that the Court not deal with the costs of the proceedings as there may be relevant documents that impact upon how the costs of the proceedings should be borne.

14. [93]

    Unless the parties agree, more Court time and costs will be incurred. Upon delivering these reasons, I shall set down the costs argument for hearing. One would hope that the parties reach some agreement on the issue of costs so that the estate is not diminished, even more, by legal costs.

The Credibility of Witnesses

1. [94]

   There were many factual issues raised in the affidavits read in both proceedings. It is impossible to identify all of the factual disputes that existed on the affidavits. What follows are some of the more important features of evidence. It is necessary to express some views on the credibility of the witnesses.

2. [95]

   Only four witnesses gave oral evidence at the hearing: Ruth, Ingrid, her husband Nicholas, and Sam. For the most part, Ruth and Sam based her, and his, case, respectively, upon her, and his, own testimonial evidence. There were, of course, documents relied upon, to which reference has been, or will be, made.

3. [96]

   As stated, Michael, whose affidavit was read, was not cross-examined. Similarly, each of the solicitors who gave evidence about the respective costs and disbursements of the party represented was not cross-examined.

4. [97]

   I was somewhat unimpressed with Ruth as a witness. I formed the view that she had been advised that she would need to establish, at least, that she had some “needs”. Her oral evidence left me with the firm impression that she was endeavouring to establish “need” by asserting that she would like to move to Tasmania to live, and that, even with her entitlement on intestacy out of Eskil’s estate, she would have insufficient to purchase accommodation there, to purchase a car, and to have a capital sum for exigencies of life. Overall, on this topic, I found her evidence unconvincing. There was some documentary evidence that does not support some of her assertions.

5. [98]

   My reasons for expressing this conclusion are as follows.

6. [99]

   There is no suggestion in the affidavits that she had informed any of her siblings, or anyone else, of her desire to move to Tasmania prior to the commencement of these proceedings. Her apparent desire to relocate to private housing, somewhere in Tasmania, is not disclosed in her first affidavit (16 January 2017), but in her affidavit, mostly in reply, of 14 August 2017, at [84].

7. [100]

   In that August affidavit, Ruth annexed a copy of advertisements for the sale of different properties, not in one particular area, but in areas including, Mount Direction (central north), Pyengana (north-east), Crabtree (south), Midway Point (south-east), Wattle Grove (far south), and Arthur River (west coast) of Tasmania.

8. [101]

   Ruth repeated her assertion regarding relocation “to somewhere quiet and peaceful, like Tasmania at the conclusion of these proceedings” (my emphasis), in her affidavit sworn 23 March 2018. She annexed “search results for properties that are suitable for my needs. All of these properties are in Tasmania in semi-rural locations…which are not too remote”. Again, different locations were identified.

9. [102]

   Ruth gave evidence that she has never been to Tasmania; she does not know anyone who lives there, although she said her art teacher travels there on occasions; and in answer to a question from the Bench, that whilst she did not have a large circle of friends in Sydney, she had more friends than she would have if she moved to Tasmania: T71.13 – T71.22.

10. [103]

    Ruth has lived in the same Department of Housing accommodation for the last 18 years (since March 2000). She stated that she had been “fortunate to secure” this accommodation and agreed that her accommodation was secure, saying that “it is hard to get evicted. You have to be really bad to get evicted”: T61.18 – T 61.20; T62.34 – T62.38. She also said that even though there were “a lot of problems that are hard to cope with in a Housing Department …ours is one of the best, like we don’t have drug problems at least”: T62.24 – T62.26.

11. [104]

    Yet, she complained about the nature of the accommodation, suggesting that it was too small and that she needed a garden area for her "large collection" of potted plants, there being insufficient space in her unit. However, in cross-examination, she stated that she does not keep her plants inside the home unit in which she lives, and that there is a “concrete area in the back and the front … with a veranda” in which she keeps the plants: T63.33. (There was no suggestion that this concrete area was too small to house the potted plants.) She also admitted that she had a “shade house”, which Sam had erected for her, in which she housed her potted plants: T63.38 – T63.40.

12. [105]

    She also complained about the neighbours saying “there were a lot of social problems”. She said that she was bothered “by a man with Tourette’s who yells non-stop, day and night, and there is a man who has had a breakdown and yells at everything and people behind have built a granny flat right up close to where my bedroom is”: T62.21 – T62.24.

13. [106]

    Her complaints about the neighbours were not referred to in any of Ruth’s three affidavits that were read in the proceedings. (The only reference, to a noisy and disturbed neighbour, named Julie, was in her first affidavit at [96].) One might have thought that if the complaints about the neighbours were genuine, or were serious, some reference would have been made to them in one, or other, of the affidavits upon which she had relied.

14. [107]

    Nor was there any evidence of the nature of her complaints being provided to the Department of Housing.

15. [108]

    The Plaintiff gave a detailed interview to Aideen Gallagher, an Occupation Therapist, in which she answered questions about her social environment. There was no mention of any noise, or other, nuisance caused to her by neighbours. Indeed, Ms Gallagher recorded (Ex. 1D4/23):

16. [109]

    In the same document, there is a reference to her describing “good social support in terms of health workers and NDIS staff that come in to support her. She describes NDIS as her family and she is highly satisfied with this”.

17. [110]

    In the Plaintiff's NDIS Plan, approved on 28 October 2016 (Ex. FPP1/162) and her NDIS Plan dated 30 October 2017 (Annexure “F” to the Plaintiff's affidavit sworn on 23 March 2018), respectively, there is a section entitled "Where I live and the people who support me" and one entitled "My daily life". In neither Plan, under the relevant heading, is there any record that the Plaintiff is concerned by the behaviour of any of her neighbours, or any complaint recorded about any of them.

18. [111]

    In fact, her complaints under this heading relate to feelings of isolation caused by the medical conditions from which she suffers. One of the goals recorded was “to have support to access the community more often”.

19. [112]

    In answer to Sam’s only question to her, Ruth conceded that during the period in which she has been living in her current residence, she had not made any enquiries about alternative public housing in Sydney: T70.45 – T71.04. Nor had she made any enquiries about the availability of public housing in Tasmania if she decided to move there, saying that she had not done so because it was “another State”: T73.22 – T73.28.

20. [113]

    It is also clear from Ruth’s evidence that she has had a long-term psychiatric and medical support network in Sydney. For example, she has been a patient of Dr Patricia Burke since about 2000. She described the relationship with Dr Burke as “something miraculous”, saying that the doctor had been wonderful and that seeing her regularly had improved her well-being. (Indeed, Ruth’s mental health has been described as “stable for some time and she has many supports around her. She…engages successfully in her community with the assistance of a new Housing support worker”: T69.04 – T69.09.)

21. [114]

    Ruth’s explanation in regard to being prepared to give up these medical and other professionals, if she moved to Tasmania, was that one was, or more of them were, going to retire in the not too distant future. However, there was no evidence about when any of the medical, or support, practitioners might retire.

22. [115]

    Ruth acknowledged that she had not carried out any research in relation to the psychiatric and medical support networks available in the parts of Tasmania to which she had referred: T67.08 – T67.13.

23. [116]

    Ruth no longer drives a car, having not held a driver licence for many years. It may be difficult for her to live in parts of Tasmania, described as “not too remote” without a car. She said that she was hoping to buy a car and regain her driver licence.

24. [117]

    Despite these matters, there was no suggestion that she had given inaccurate evidence about her financial circumstances or state of health. Some of Ruth’s evidence regarding her relationship with the deceased was corroborated.

25. [118]

    Ingrid is a witness whose evidence I accept. In cross-examination, she acknowledged that during Guardianship Tribunal proceedings involving the deceased, she had inspected bank records that showed withdrawals of money from the deceased’s account whilst the deceased had been in hospital, and said that she had not carried out investigations as she knew that the withdrawals had been made by Sam.

26. [119]

    Ingrid explained her concerns surrounding the withdrawal of funds from the deceased’s bank account shortly before her death. She said that she did not agree that the moneys had been withdrawn in anticipation of the deceased returning home from the hospital. She also said, in answer to a question from the Bench, that she did not make a claim for moneys that may have been wrongfully withdrawn by Sam from the deceased’s bank account, as the deceased’s estate passed to Sam under the Will and that it would be his money in any event: 2T26.34 – 2T27.02.

27. [120]

    Ingrid accepted, without hesitation, that Ruth would visit the deceased weekly and that she had had a “very good relationship” with the deceased. She also accepted that, perhaps, one of the reasons that Ruth lived in the Ryde area was because it was close to the Ryde property where the deceased lived: 2T07.35 – 2T07.46.

28. [121]

    Sam asked Ingrid questions about an answer to a question about how often she had visited the Ryde property after the death of the deceased. Ingrid accepted that her answer that she had visited once was incorrect and that she had visited several times: 2T11.16 – 2T11.38. This correction did not impact upon my acceptance of Ingrid as a witness of truth.

29. [122]

    Finally, Ingrid said that she thought that a claim against Sam for unpaid rent, or an accommodation fee, had been made in the Statement of Claim. Such a claim had not been made. This error also does not affect my assessment of her credibility.

30. [123]

    Nicholas Pocock, Ingrid’s husband, was cross-examined by counsel for Ruth. He was asked whether he remembered any conversation with Ruth in 2017, in which she had said to him that she wanted to move to Tasmania. He responded that he did not remember any such conversation. (Ruth did not give evidence of having had such a conversation with Mr Pocock.)

31. [124]

    Sam gave evidence, which, broadly speaking, I accept. When assessing his reliability, I do find it to be a matter of concern that he ignored, completely, the requests made for him to vacate the Ryde property or, if he did not vacate, to pay rent or an occupation fee. He had, however, paid water rates and council rates: 2T47.45 – 2T48.06.

32. [125]

    Sam provided no adequate, or proper, explanation for him not paying any rent or occupation fee. With no disrespect intended, his submissions on this topic were somewhat difficult to follow.

33. [126]

    Yet, I do think that, in giving his evidence, he was endeavouring to assist the Court. Whilst many of his concerns relate to personal matters between him and one, or more of his siblings, or concerns about what he believed to be unfounded criticism of some of his conduct, these were matters which were peripheral, and mostly irrelevant to the disputes which the Court must decide.

34. [127]

    He admitted, for example, without prevarication, that he and the deceased survived, for the most part, out of her income; that the deceased had a habit of withdrawing amounts of cash which she kept at home; that there was about $50,000, which had been kept at the Ryde property, which was the amount that he had retained; that the source of that amount was the deceased but that “[she] had virtually told me that it was mine. And I didn't want to use it, you know, until she died. But she virtually told me it was. She made it very clear”: 2T43.10 – 2T47.20.

35. [128]

    He also admitted that he had used money ($11,495) (Ex. FPP3), the funds for which came “from savings that my mother had, sort of, given me”, to purchase a car: 2T51.27 – 2T51.31.

36. [129]

    Furthermore, he agreed that Ruth had visited the deceased weekly. He also accepted that he had received a substantial benefit in continuing to live in the Ryde property, stating that he had contributed to the welfare of the deceased whilst doing so. He added that he “did make contributions. I'm the one that helped my mother with everything she did. I helped with the gardening, and helped with the house. You know, as I said in one of my affidavits, we were virtually life partners. So any problem in that area, you know, my mother had full authority if she wanted rent or anything like that, and she never asked for it”: 2T48.43 – 2T48.50.

37. [130]

    There cannot be any real dispute about his contribution to her, as the deceased, herself, recognised those contributions in the Will letter and in her Will.

38. [131]

    Of course, until Ingrid became the trustee of the two-thirds interest in the Ryde property in 2015, it was the deceased who had been the trustee. In this regard, I accept that whilst Ruth, and her siblings, did not seek to obtain her, or his, share, respectively, of their interest in the Ryde property, and permitted the deceased (and Sam, a sibling) to remain living there, rent and occupation fee free, that was a contribution made by each of them to the welfare of the deceased: s 60(2)(h) of the Act.

39. [132]

    Michael gave unchallenged evidence by affidavit dated 10 July 2017, in which he stated that he has lived in the United States of America since 1977. He visited Australia once a year, and during the final year of the deceased’s life he visited on four occasions. When he visited he would stay with both the deceased and Sam, usually for “two to three weeks at a time”. He disclosed that during his visits, he observed, at least initially, that the deceased would “look after Sam by doing all of the cleaning, cooking and other day-to-day duties”. However, during the final years of the deceased’s life, Michael observed Sam take on “more and more of the day-to-day household duties and provided care to my mother in various forms”. He also observed that, from about 2012, “the job of looking after [the deceased] was becoming more and more difficult for Sam”. He also stated that he “never saw Sam treat my mother in any manner other than that of a loving and dutiful son” and that his mother appeared to him to be “content and happy”.

The Possession Proceedings

1. [133]

   It is necessary to determine the claims made in the possession proceedings because the determination of Sam’s claims in those proceedings will affect the family provision proceedings. If Sam succeeds in his claim that the share of the Ryde property is held for the deceased, the value of the deceased’s estate will be greater.

2. [134]

   At the time of the commencement of the possession proceedings, Ingrid, as the executrix of the deceased’s estate, was the registered proprietor of the Ryde property. Legal title to the Ryde property, thus, was established. She acknowledged that she held the land on trust, as to two-thirds, for the intestate beneficiaries of Eskil’s estate, and also acknowledged that she held one third of the Ryde property, for Sam, as the sole beneficiary of the deceased’s estate.

3. [135]

   In Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7, at [55]-[56], Gleeson CJ, Gummow and Hayne JJ wrote:

4. [136]

   In circumstances where Ingrid was the executor of the deceased’s estate to whom Probate was granted, as well as being the sole trustee of Eskil’s estate and one of the beneficiaries of that intestate estate, and where Sam was the sole beneficiary entitled to the whole of the deceased’s estate (subject to Ruth’s claim for a family provision order), I am satisfied that Sam has standing to bring the claim as against Eskil’s estate on behalf of the deceased’s estate. I am satisfied that there are special circumstances such that Sam has standing to sue. No submission to the contrary was made by counsel. That, of course, does not mean that Sam is entitled to the relief that he seeks.

5. [137]

   As stated above, there is no dispute that the title to the Ryde property was registered in Eskil’s sole name at the date of his death. There was no assertion that the deceased had any interest in the Ryde property at the date of Eskil’s death.

6. [138]

   Whilst the deceased did set out the circumstances in which she repaid the mortgage debt on the Ryde property following Eskil’s death in the Will letter, quoted above, there is no direct evidence that she did so. However, it is more probable than not that she did, since, at the time of his death, all of their children were minors. None of them gave evidence that she, or he, had contributed to the repayment of the mortgage debt.

7. [139]

   Yet, no claim, formal or informal, was made by the deceased, following Eskil’s death or after her repayment of the mortgage debt, that she had any interest in the share of the Ryde property that passed to the five children of the deceased on intestacy. She, herself, obtained her share of the Ryde property pursuant to the operation of the intestacy rules following the distribution of his estate and she became registered as the holder of that interest upon the basis that the balance would be held on trust for her five children.

8. [140]

   The repayment of the children’s two third share of the debt secured by the mortgage did not give rise to the deceased coming to hold an increased interest in the Ryde property. A person who pays off a mortgage debt is entitled to preserve the security (of the mortgage) for her, his, or its, own benefit: Ghana Commercial Bank v Chandiram [1960] AC 732; Paul v Speirway Ltd (in liq) [1976] Ch 220.

9. [141]

   In Cochrane v Cochrane (1985) 3 NSWLR 403, Kearney J explained the principle, in this way, at 405:

10. [142]

    (As to a recent discussion of this case, and subsequent cases, see Barber v De Prima [2018] NSWSC 601.)

11. [143]

    Whether the children concurred in the deceased paying off the mortgage debt does not matter because what would have occurred is that they would have owed their share of the mortgage debt to the deceased instead of to the original creditor: Re Dalma No 1 Pty Limited (in liq) [2013] NSWSC 1335, at [30]. Had she chosen to do so, the deceased’s remedy may have been to seek contribution from the children. This, of course, she never sought to do.

12. [144]

    Furthermore, the intention of the deceased, in paying off her children’s share of the mortgage debt, may be significant, where it is for some reason clear that she, as the payer, did not intend to seek contribution from them. I am satisfied that the deceased had no intention to seek contribution. No claim was made by her, or on her behalf, during her lifetime, claiming that the children owed her a share of the money which she had repaid. Nor did she ever assert that having paid off the whole of the mortgage debt, she was entitled to a greater share of the Ryde property. Indeed, the deceased, herself, acknowledged that her interest in the Ryde property was limited to the one-third interest. It was upon the basis of that limited interest, and the interest of each of the children to an equal share of the two-third interest, that she determined to make the Will leaving the whole of her one-third interest to Sam.

13. [145]

    There is no reason to doubt the admission made by the deceased in regard to the extent of her interest in the Ryde property. It was, after all, an admission against her own interests.

14. [146]

    Counsel for Ingrid submitted that there is a presumption of advancement in respect of the contributions made by the deceased on behalf of the children. It was submitted that there was no evidence to displace this presumption. It was noted that in McCoy v Caelli [2010] NSWSC 1233, at [74], White J (as his Honour then was) wrote that “there was no issue that the presumption of advancement applies as between a mother and son”.

15. [147]

    It was also submitted by Ingrid that the repayment of mortgage debt, even if made with no intention to benefit the children, did not give rise to a resulting trust, but instead a right to an accounting or an allowance: Ryan v Dries [2002] NSWCA 3 at [14] (per Giles JA). It was further submitted that “the deceased and the Defendant had sole occupation of the property without payment of occupation fee for decades”.

16. [148]

    Finally, it was submitted that even if a larger equitable interest in the Ryde property were asserted by the deceased, immediately prior to her death, because she had repaid the mortgage debt on behalf of the children, relief would be barred because of her laches, in combination with the decades where each equitable co-owners refrained from exercising their legal rights in respect of the Ryde property.

17. [149]

    Even if the deceased had been entitled to a greater share of the children’s interest in the Ryde property, and Sam was entitled to the interest held on her behalf, this would not provide a defence to the claim for possession which was being made by Ingrid as the legal owner of the Ryde property.

18. [150]

    In Re Transphere Pty Ltd (1986) 5 NSWLR 309, McClelland J analysed whether under the Companies (NSW) Code a receiver could be appointed of property held upon trust for other persons. His Honour observed, at 311:

19. [151]

    Hope JA in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510, at 519 – 520 [17], also wrote:

20. [152]

    It follows, even if Sam’s contention that the two-thirds interest in the Ryde property was subject to a trust in the deceased’s favour, to which greater interest he was entitled, Ingrid would still be entitled to possession, unless perhaps, the interest was as to the whole of the interest held for the children. Since I am not satisfied that the deceased had any greater interest, the right to possession has arisen and Sam’s claim is not such as to defeat that right.

21. [153]

    In all the circumstances, the claim by Sam, on behalf of the deceased’s estate, to a greater share of, or interest in, the Ryde property does not succeed. Nor does his claim for an accounting. In my view, Ingrid is entitled to an order for possession.

22. [154]

    I have considered any hardship that Sam might suffer by having to vacate the Ryde property. However, he has enjoyed occupation for nearly two and a half years, since the death of the deceased, making no monetary payment to Ingrid, which payments, after deduction would have been held for the five children of the deceased.

23. [155]

    There has been ample warning of the need for him to make alternative arrangements. He appears to have taken no steps taken to that end.

24. [156]

    In answer to some questions from the Bench, Sam stated that, whilst “it would be unfortunate”, he could vacate possession of the Ryde property if it was found that his claim was not successful in one or two months. He agreed that he could vacate within 6 weeks: 2T56.29 – 2T56.43. As it has been about 5 weeks from the conclusion of the hearing, if he is allowed another 6 weeks to vacate, he will, in my view, have had sufficient time to do so and that time will allow him to vacate in an orderly manner.

The Statutory Scheme – the family provision proceedings

1. [157]

   Next, I shall discuss the statutory scheme that is relevant to the facts of the family provision proceedings. As Ruth’s eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine is 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: s 59(1) of the Act. Once that power is enlivened, the court may make “such order for provision ... 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” (s 59 (2)).

2. [158]

   There is no automatic entitlement to provision stipulated by the Act and the deceased’s Will applies unless a specific application is made and acceded to by the Court.

3. [159]

   The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases, one of the most recent of which is Penninger v Penninger [2017] NSWSC 892 at [114] – [148].

4. [160]

   For the benefit of the parties, I shall repeat the relevant principles.

5. [161]

   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 applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

6. [162]

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

7. [163]

   The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).

8. [164]

   Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “‘an evaluative determination of a discretionary nature, not susceptible of complete exposition’ and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].

9. [165]

   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. This does not mean, however, that considerable weight should not be given to the assessment of a capable testatrix, who has given due consideration to the claims on her estate.

10. [166]

    Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, out of the estate, should be the only, or even, the dominant consideration. An applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan, at [22]:

11. [167]

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

12. [168]

    In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

13. [169]

    In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]:

14. [170]

    Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14] – [15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears:

15. [171]

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

16. [172]

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

17. [173]

    The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

18. [174]

    These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476:

19. [175]

    Their Lordships went on to state, at 478:

20. [176]

    Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

21. [177]

    In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

22. [178]

    In Goodman v Windeyer, Gibbs J wrote, at 502:

23. [179]

    In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote:

24. [180]

    Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:

25. [181]

    In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”

26. [182]

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

27. [183]

    In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:

28. [184]

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

29. [185]

    Of course, “need” is 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 (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:

30. [186]

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

31. [187]

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

32. [188]

    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.

33. [189]

    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.

34. [190]

    Section 60 of the Act provides:

35. [191]

    It can be seen that s 60(2) enumerates 16 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 purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

36. [192]

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

37. [193]

    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 are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

38. [194]

    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.

39. [195]

    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).

40. [196]

    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.

41. [197]

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

42. [198]

    The order 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).

43. [199]

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

44. [200]

    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).

45. [201]

    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.

46. [202]

    Practice Note SC Eq 7, which applies to claims for a family provision order, currently provides, in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act 2005 (NSW). Also, see Baychek v Baychek [2010] NSWSC 987, per Ball J, at [10]-[20]; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50] - [52].

Some Additional Principles

1. [203]

   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. [204]

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

3. [205]

   Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

4. [206]

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

5. [207]

   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 re-work a Will according to its own notions of fairness. His Honour added:

6. [208]

   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:

7. [209]

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

8. [210]

   Recently, in Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan, at [127], namely, that:

9. [211]

   White JA added, at [86]:

10. [212]

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

11. [213]

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

12. [214]

    The size of the estate and/or notional estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].

13. [215]

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

14. [216]

    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]; and at [65]-[67]; 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) 14 ASTLR 175; [2015] NSWCA 297 at [62].

15. [217]

    The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep). Nor is it the role of the Court to provide reparations to the Plaintiff in respect of what might be regarded as poor parental behaviour by means of a monetary order: Williamson v Williamson [2011] NSWSC 228 at [124]-[127].

16. [218]

    The other claimant on the bounty of the deceased, Sam, who is the sole beneficiary, does not have to prove an entitlement to the provision made for him in the deceased’s Will, or otherwise justify such provision. In this case, however, he has provided a deal of evidence demonstrating his contribution to the deceased’s welfare.

Qualifications on “Principles”

1. [219]

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

2. [220]

   As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

3. [221]

   It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar at [131]:

4. [222]

   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]; in Burke v Burke [2015] NSWCA 195, at [84]-[85] and Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.

The receipt of the pension

1. [223]

   I have earlier noted that Ruth receives, and has received for many years, a pension, and has lived in Department of Housing accommodation for over 18 years. Those facts are relevant to the Court’s considerations.

2. [224]

   Young J (as his Honour then was) in Parker v The Public Trustee (Supreme Court (NSW), 31 May 1988, unrep) said:

3. [225]

   However, in Thom v The Public Trustee (Supreme Court (NSW), McLaughlin M, 2 April 1992, unrep) it was said:

4. [226]

   In Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep) his Honour wrote:

5. [227]

   In Taylor v Farrugia, at [59], Brereton J referred to a number of the authorities and concluded:

6. [228]

   In reading the Will letter, it does seem that the deceased took into account Ruth’s eligibility for a pension and her secure accommodation in the Department of Housing property in which she had lived for many years, in deciding how her estate should be shared between her children.

Additional Facts

1. [229]

   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 at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. [230]

   Ruth is a child of the deceased. She attests to having had a good relationship with the deceased throughout her life. There was no dispute about the closeness of her relationship with the deceased.

2. [231]

   She moved out of the family home when she was 23.5 years of age. She left to live in a Christian Community, which she thought would improve her well-being, both spiritually and mentally. She lived there for about 5 years. Whilst there, she maintained regular and close contact with the deceased.

3. [232]

   Ruth left the Christian Community in unhappy circumstances. She was “expelled” because she attempted to commit suicide by eating oleander leaves. She returned to live with the deceased (and Sam). She lived there for a period of time, but was persuaded to move out and move back to a Christian Community house in Cronulla.

4. [233]

   Subsequently, in about 1980, she moved to Queensland where she lived in a facility called “The New Life Centre” in Ipswich. She lived there between 1980 and 1982.

5. [234]

   Ruth gave evidence that whilst living at the Centre, she was sexually abused and assaulted by the Pastor. There is evidence of her complaint, made in December 2014, to the Royal Commission into Institutional Responses to Child Sexual Abuse the receipt of which was acknowledged by letter dated 5 February 2015. (It is not necessary to repeat the details of her allegations which are set out in the complaint.)

6. [235]

   In about 1997, Ruth became seriously mentally ill and was hospitalised twice in Brisbane. The deceased was aware of Ruth’s medical condition as she pleaded with her to return to the Ryde property.

7. [236]

   In 2000, Ruth did return to live in the Ryde property with the deceased and Sam, but she remained there only for about one year. She says that whilst living there, she contributed approximately $50 every fortnight to cover her share of the cost of food and utilities, and other household expenses. She left at the insistence of Sam, then moving into the Housing Department one bedroom home unit that she currently occupies.

8. [237]

   Whilst living in the home unit, she continued to visit the deceased, and whilst her health permitted, the deceased visited her. This continued when the deceased went into hospital. When she became a resident at a nursing home in Lindfield, she was only able to attend once, because of the geographical distance from Ryde, where she lived, and because of Ruth’s “poor physical and mental health”.

9. [238]

   I am satisfied that Ruth had a close and loving relationship with the deceased throughout their joint lives. Indeed, the deceased, in the Will letter, wrote that she had given “much thought and loving feel[ings] for each and every one” of her five children.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate

1. [239]

   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.

2. [240]

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

3. [241]

   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.

4. [242]

   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.

5. [243]

   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:

6. [244]

   The boundaries of the obligation or responsibility are not amenable to rigid definition. Importantly, there is no “presumptive testamentary entitlement of an offspring”: Underwood v Gaudron [2015] NSWCA 269, at [73].

7. [245]

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

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. [246]

   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, modest.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate

1. [247]

   Ruth does not work and is in receipt of a disability support pension from Centrelink, and her income is said to be $814 per fortnight. In addition, she receives an “Energy Supplement” ($14) and a “Pension Supplement” ($66) per fortnight

2. [248]

   She pays rent for the home unit in which she lives of $219 per fortnight which is deducted from the income she receives. In addition, there appears to be an additional $92 per fortnight deducted by way of a “Lump Sum Advance Repayment”. Amounts deposited to her bank account, in the last 6 months, by way of pension, are in the order of $580 per fortnight.

3. [249]

   In November 2016, Ruth obtained approval for assistance under the National Disability Insurance Scheme (“the NDIS”). Her most recent NDIS Plan is one identified in a letter dated 30 October 2017 from the NDIS to Ruth. This document reveals the “NDIS reasonable and necessary supports budgets”, which includes a budget of $31,343 for “Assistive technology”, including for a motorised scooter, a shower support, walking aids, orthoses, a power bed and a pressure care cushion; $1,395 for “Improved life choices”; $9,854 for “Improved daily living”; $1,606, for transport; and $40,037 for “Core supports”.

4. [250]

   Ruth’s assets include her two-fifteenths interest in the Ryde property (no less than $200,000 and perhaps $220,000), personal effects (nominal value), and a harp ($900). In March 2018, her debts included a credit card debt of $105.

5. [251]

   As stated, Ruth continues to reside in Housing NSW rental accommodation, and she has been a public housing tenant since about 2000. I have earlier referred to her evidence that she wishes to move to Tasmania.

6. [252]

   Leaving aside my conclusions about her evidence about wanting to move to Tasmania, in her March 2018 affidavit, she has asserted that the search results (a copy of which are annexed to that affidavit) reveal that the further four suitable properties in “semi-rural locations” in Tasmania are advertised for between $145,000 and $180,000. Taking the mid-point of these estimates ($162,500), she would have about $30,000 left after the payment of stamp duty, legal costs and the costs of moving there.

7. [253]

   In addition, she asserts a need for the costs of sound-proofing a piano room, for cataract surgery, for dental work, for body hair removal (laser), for additional podiatrist and psychologist visits, for the regular replacement of orthopaedic shoes, for the purchase and regular replacement of spectacles, possibly a car and a contingency fund for future medical and/or financial expenses. She also mentions the need for a mobility scooter but conceded, in cross-examination, that “I can’t bring myself to use a scooter at the moment” and that if she needs one, it would be provided through the NDIS Plan: T64.43 – T65.05. (In her March 2018 affidavit, Ruth noted that she had experienced “great difficulty in obtaining approval for specific services” for her NDIS Plan. In reference to requests made by her occupational therapist to the NDIS, she stated in cross-examination “but often they refuse your request”: T65.08 – T65.09.)

8. [254]

   There was no evidence presented that her request for a scooter would be refused; nor was there evidence of past requests being refused. In addition, there was no estimate included for any of these so-called “needs”.

9. [255]

   In the event that Ruth does not move to Tasmania, she will have a capital amount of no less than $200,000 and perhaps, $220,000, which will provide capital and a small additional income. (Of course, this is subject to any order for costs.)

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person

1. [256]

   Ruth is single and lives alone.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated

1. [257]

   Ruth suffers from a number of medical conditions, including, but not limited to, chronic schizophrenia, migraines, anxiety, hyperacusis (a debilitating hearing disorder characterised by an increased sensitivity to certain frequencies and volume ranges of sound), low blood pressure, psoriatic eczema, irritable bowel syndrome, fibromyalgia, hypercholesterolaemia (elevated amounts of cholesterol in the blood), asthma, angina, coronary heart disease, renal impairment, bilateral carpal tunnel syndrome, generalised joint hypermobility syndrome and chronic pain. She takes a range of medication.

2. [258]

   I accept that Ruth has a very limited, if any, earning capacity.

3. [259]

   Sam is in good health. He does not assert any physical, intellectual or mental disability. However, periodically, he requires “expensive dental work”. He also has problems with his eyesight, requiring him to have high-index lenses. He may require eyelid repair.

(g) the age of the applicant when the application is being considered

1. [260]

   Ruth is 66 years old.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. [261]

   I have referred to Ruth’s contribution by not seeking the sale of the Ryde property to obtain her share of the property that passed to the five children as a result of Eskil’s death. In addition, I am satisfied that by having a close and loving relationship with the deceased, she contributed to the welfare of the deceased.

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate

1. [262]

   It is clear that by paying off the whole of the mortgage debt secured on the Ryde property, after the death of Eskil, for two-fifteenths of which Ruth would have been liable, the deceased did make some provision for her (and the other children) during the deceased’s lifetime.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. [263]

   I have already referred to the testamentary intentions of the deceased.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

1. [264]

   There is no evidence that Ruth was being maintained by the deceased in the years prior to the deceased’s death.

(l) whether any other person is liable to support the applicant

1. [265]

   Apart from the Commonwealth government’s responsibility to continue to provide her with the disability pension, the housing provided by the NSW Government, and the NDIS provision, there is no other person who is liable to support Ruth.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. [266]

   I am satisfied that there is no specific conduct to which I have not referred.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. [267]

   Sam gave evidence of his competing financial claim, asserting that any order for additional provision for the Plaintiff would necessarily require the sale of the Ryde property with the consequence that he would be left without employment or accommodation.

2. [268]

   Sam’s assets are his one-third interest in the Ryde property which he inherits from the deceased (estimated to be $566,666) as well as the two-fifteenths interest (no less than $200,000 and perhaps $220,000). In addition, he has retained the $51,000 and the car ($11,475) referred to earlier.

3. [269]

   The deceased described her relationship with Sam as her son. That relationship is referred to in the Will letter and is evidenced by the terms of the deceased’s Will and the provision made for him during the lifetime of the deceased.

4. [270]

   There is more than enough evidence of his conduct towards the deceased during her lifetime. I have also referred to his conduct in remaining in occupation of the Ryde property since the deceased’s death.

(o) any relevant Aboriginal or Torres Strait Islander customary law

1. [271]

   This factor is not applicable.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered

1. [272]

   There is no other matter that I consider relevant.

Determination

1. [273]

   Having established eligibility, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Ruth, has not been made by the Will of the deceased.

2. [274]

   As I have written in other cases, one of which is Morier v Liem [2016] NSWSC 582, at [247], the fact that no bequest is made in the deceased’s Will for the applicant does not, of itself, bespeak inadequacy. A person may fail to satisfy the description of being "left without adequate provision" even though no provision is made for her in the deceased’s Will. But as stated, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. Whilst the inquiry as to what is “adequate” directs particular attention to the needs of the applicant, what is “proper” requires a consideration of all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries.

3. [275]

   Importantly, as stating previously, in considering the question, it is erroneous to treat it as confined only to an assessment of Ruth’s material needs. Rather, the Court is required to have regard to not only her financial position, but also to the size and nature of the estate, the totality of the relationship between her and the deceased, and the relationship between the deceased and others, particularly, Sam, with claims upon her bounty. To consider her financial needs only, would elevate Ruth’s financial needs over what the deceased regarded as her obligation to Sam.

4. [276]

   It is clear that Ruth had been financially independent of the deceased for many years prior to her death, whereas Sam had been, at least partly, dependent upon the deceased throughout his lifetime, a matter that the deceased seems to have acknowledged.

5. [277]

   I have borne in mind the fact that Sam has had the benefit of accommodation in the Ryde property both before, and since, the death of the deceased and that he ignored Ingrid’s reasonable request to vacate, or to pay rent, or an accommodation fee, so long as he lived there. Whilst these matters do not portray him in the best light vis-a-vis his siblings, the deceased did have in mind that his accommodation should be ensured.

6. [278]

   I have also taken into account the fact that Sam has received the money which he currently has, and a car, the source of each of which was the income, or capital, of the deceased. Again, however, he was the chosen object of the deceased’s testamentary bounty and the person she wished to inherit the whole of her estate.

7. [279]

   Earlier, I have quoted what White J (as his Honour then was) said in Slack v Rogan; Palffy v Rogan, at [127]. The passage is important in the present case and should not be forgotten. The deceased in her Will explained the reasons, relevant to Sam, why she wished to leave the whole of her estate to him. She specifically identified “the care and support” that she had received from him; the fact that he had lived with her for the whole of his life; and the desire to “ensure his accommodation” if the Ryde property was sold (as it will be). She also referred to her other children, referring to each having “adequate accommodation” and having no need “to rely on my estate for their future welfare”. She considered the provision that each would receive from the proceeds of sale of the Ryde property following her death.

8. [280]

   In addition, the fact that the deceased stated that she would have, and then did, have her signature on the Will letter witnessed by a Justice of the Peace, signifies that she considered its contents to be a matter of importance and solemnity. Whilst it is not part of the Will, it should still be regarded as an important indication of the deceased’s testamentary intentions, which did not change at any time thereafter.

9. [281]

   In the Will letter, in relation to Ruth, she identified her being “independently cared for” and referred to “Centrelink support”. Whilst she could not have known about the NDIS Plan, made in 2016 and 2017, she was aware that Ruth was secure in her accommodation from the Housing Department and that she was receiving a disability pension.

10. [282]

    Furthermore, there appears to have been no significant deterioration in Ruth’s financial circumstances, or state of health, after the deceased’s death, or, for that matter, after the deceased made her Will. The deceased appears to have been well aware of both of those factors, as well as the support that might be available to Ruth bearing in mind both her medical conditions and her financial circumstances.

11. [283]

    Whilst the Court readily appreciates that Ruth may feel hurt and upset that the deceased has chosen to provide the whole of her estate to Sam, in the circumstances of this case, an order for provision for Ruth cannot be made. The legislation does not justify orders to remedy perceived unfairness or hurt feelings.

12. [284]

    The consideration of all of the matters that the Court is required to consider leads me to find that there was no failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life for Ruth. It follows that the Court does not have jurisdiction to make an order for provision out of the estate of the deceased for her and the proceedings should be dismissed. In this regard, I have not forgotten the statement quoted above, made by White JA, in Sgro v Thompson, at [86].

13. [285]

    However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the notional estate of the deceased for the maintenance, education or advancement in life of Ruth, having regard to the facts known to the Court at the time the order is made.

14. [286]

    As a matter of discretion, having regard to the matters identified in s 60(2) referred to above, as well as other matters to which I have referred, I would make no provision for Ruth. There is no suggestion that Ruth expressed, to the deceased, any intention to move from her home unit at Ryde, let alone any intention to move to Tasmania. Furthermore, the Court was not persuaded by her evidence on the topic of moving to Tasmania. I have set out the reasons for reaching this conclusion earlier.

15. [287]

    However, even if it is her intention to move to Tasmania, then, taking into account the provision that she will receive from the proceeds of sale of the Ryde property, as a result of Eskil’s intestacy, she will be able to purchase accommodation within the purchase price range that she has recently identified.

16. [288]

    If, on the other hand, she did not move to Tasmania, or if she did but did not purchase accommodation there, she will have available a capital sum of no less than about $200,000, and perhaps, $220,000 available to her, which, until spent, will provide a small income from interest.

17. [289]

    At this time, it is not possible to anticipate the economic consequences for the parties of the dismissal of the family provision proceedings, and an order being made in the possession proceedings, other than to note that the amount of the distributable estate may be diminished as a result of the costs orders that will be made, or that Ruth’s and Sam’s share of the proceeds of sale of the Ryde property may each be diminished. But the possibility of that occurring is a risk that each appears to have been prepared to take. At least Ruth will not have to pay her own legal representatives as a result of the conditional costs agreement entered into with them.

18. [290]

    In relation to the possession proceedings, I have already stated that the matters raised by Sam do not provide a basis for him remaining in possession of the Ryde property and that he should vacate that property within 6 weeks of the making of the orders.

19. [291]

    Section 7A of the Sheriff Act 2005 (NSW) provides:

20. [292]

    I note Kingelty v Stockley [2017] NSWSC 671, at [12] – [14], in which Bellew J wrote:

21. [293]

    Whilst Sam did not agree to vacate possession of the Ryde property, his evidence was:

22. [294]

    As more than 5 weeks have passed since the conclusion of the hearing and an order is to be made that the writ of possession not be executed until the day after 6 weeks of the date of these orders, I am satisfied that the Sheriff need not give a further 30 days notice to Sam to vacate the Ryde property.

23. [295]

    (Although the orders set out below do not bear the whole of the particulars of title to the Ryde property, the orders as entered will do so. The orders have been made as if the full particulars of title have been included.)

24. [296]

    In proceedings 2016/382014, the Court:

25. [297]

    In proceedings 2017/180094, the Court:

26. [298]

    In view of the request of the parties that the question of costs of the proceedings be determined following these reasons being published, any argument as to costs of the proceedings and how those costs are to be borne, will be listed on a date to be arranged when these reasons are published.