Chapman v Ingold; Estate of the Late Eleanor Merle Ingold

HIS HONOUR: This is a claim made by Shirley Ann Chapman and by Valerie June Mawdsley, now, only for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”) out of the estate of their mother, Eleanor Merle Ingold (“the deceased”). A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person. (In this case, there is no estate which is sought to be designated as notional estate.)

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009.

The Plaintiffs commenced the proceedings by one Summons filed on 13 August 2014, which is within the time prescribed for the making of an application (not later than 12 months after the date of the death of the deceased). There was a third Plaintiff named in the Summons, Joy Emiley Millership, another daughter of the deceased, but she died before the proceedings were heard. At the pre-trial directions hearing, on 20 July 2015, the court was informed of her death and that the proceedings were being continued only by the first and third Plaintiffs. Her affidavit was not read in the proceedings.

There is no Defendant named in the Summons. Robert George Ingold, a grandchild of the deceased is named as the executor and the sole beneficiary in the deceased’s last Will. Probate of that Will has not been granted. He is the appropriate Defendant and consented to represent, and has represented, the estate throughout the proceedings. I shall make an order, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b) that he be appointed to represent the deceased’s estate for the purposes of these proceedings.

The court was informed that “once the proceedings happened the grant of probate was just put in abeyance until the proceedings”: T2.06-T2.07. (It is clear that the Defendant will need to obtain a grant of Probate so that he can deal with the estate of the deceased.)

The parties agreed that if a family provision order is made, in favour of one, or both, of the Plaintiffs, a grant under s 91 of the Act should be made: T2.10-T2.15. That section, relevantly, provides that the Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person left property in New South Wales. (I have dealt with the requirement for administration in Wheat v Wisbey [2013] NSWSC 537, at [29]-[60]. I shall not repeat what I wrote in that case.) In the result, this will not be necessary as the Plaintiffs’ Summons is to be dismissed.

Without any undue familiarity, or disrespect, intended, and for convenience, I shall hereafter refer to the Plaintiffs, the Defendant, and any other witness, who is identified, after introduction, either by her, or his, given name, or, where apt, by the role each plays in the proceedings.

I wish to make clear that it is impossible to reach clear findings on all of the issues, some of which could not be tested because they involve events that occurred many years ago, and others that involve conversations said to have occurred with the deceased at which the other party was not present. The Court can never know all the circumstances. I remember, as well, that the fact a statement is said to have been made by the deceased does not mean, necessarily, that the statement must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].

The following facts are uncontroversial and provide a useful background.

The deceased died on 14 June 2014. She was then aged 87 years, having been born in March 1927.

The deceased was married to George Albert Ingold. He predeceased the deceased, having died in August 2011. There were four children of their marriage, namely Valerie, who was born in November 1956, Shirley, who was born in November 1946, Fay Lorraine Ward, who died in August 2013, and Joy (whose date of birth is not revealed by the evidence that was read in the proceedings).

Robert is a child of Fay. He was born in July 1967.

The deceased left a duly executed Will that she made on 16 January 2010, which, relevantly, provided:

At the commencement of the hearing, the parties agreed that the gross distributable estate, at the date of the hearing, was estimated to be $205,090. The estate was said to consist of an undivided one‑half share of real estate at Lake Illawarra (“the Lake Illawarra Property”) ($185,000), cash in bank ($9,235), jewellery and personal effects ($580), cash on hand and rent received ($10,075), and furniture ($200). The only disclosed liability was one half of outstanding council rates ($429): T2.23-T2.33.

The registered proprietor of the other half of the Lake Illawarra Property is Robert.

The funeral expenses ($6,237), a probate filing fee ($685) and some costs associated with ascertaining the property of the deceased ($706) have already been paid from the estate.

However, in calculating the value of the estate of the deceased that is available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since the Plaintiffs, if successful, normally, would be entitled to an order that their costs and disbursements, calculated on the ordinary basis, be paid out of the estate, whilst the executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (In stating this, I do not forget that “the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute” or that “[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order”: Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].)

Ms K M Austin, the Plaintiff’s solicitor, estimated the Plaintiffs’ costs and disbursements, and solicitor’s and counsel’s fees, calculated on the ordinary basis, to be $24,000, inclusive of GST, and upon the basis of a 1 day hearing (T3.13-T3.32).

Mr P F Mansfield, the Defendant’s solicitor, estimated the Defendant’s costs and disbursements, and solicitor’s and counsel’s fees, inclusive of GST, calculated on the indemnity basis and on the basis of a 1 day hearing, to be $29,000.

It can be seen that if the estimates of costs ultimately proved accurate, and if all of those costs were ordered to be paid out of the estate, the net estate available to meet the provision to be made for the Plaintiffs, is about $152,090. The size of the estate, even if not deducting the costs of the proceedings, is very small.

Counsel for the Defendant, initially, submitted that, if an order is made in favour of one Plaintiff, or both Plaintiffs, the Lake Illawarra Property would not have to be sold as Robert would borrow money to satisfy any order of the Court (T3.44-T3.49). He then conceded that it would “depend on the size of the decision” and the Lake Illawarra Property would need to be sold if the provision made to one or both Plaintiffs was “substantial” (T4.06-T4.19). The parties agreed that if the property were to be sold, an order should be made based upon a percentage of one half of the net proceeds of sale.

The Plaintiffs identified Robert as the only other person who is, or who may be, an eligible person. As he is a party to the proceedings, a prescribed form of notice did not need to be served upon him. However, as he is the sole beneficiary named in the deceased’s Will, the court is not entitled to disregard his interests: s 61 of the Act.

The following narrative represents the Court’s findings in relation to certain background facts which have been established.

On 16 January 2010, the deceased and her husband, George, executed mirror wills, devising the whole of her, and his, estate, respectively, to Robert absolutely. On the same day, the deceased and George severed their joint tenancy of the Lake Illawarra Property by transferring it to themselves as tenants in common in equal shares. The Transfer, a copy of which is in evidence, appears to have been signed by the deceased and by George.

On 25 November 2011, following George’s death on 22 August 2011, Robert, as the sole beneficiary of George’s estate, made a transmission application to be registered as the registered proprietor of George’s one half interest in the Lake Illawarra Property. At the date of the deceased’s death, he was so registered.

On 22 November 2012, Robert and the deceased, as “Borrowers” and “Mortgagors”, entered into a Home Loan Contract, with IMB Ltd, as creditor, for the amount of $109,631. The debt was secured by mortgage registered over the whole of the Lake Illawarra Property on 29 November 2012. However, Robert stated that the mortgage was only applied to his half share in the property (T63.21-T63.23). The Mortgage, a copy of which is in evidence, appears to have been signed by the deceased and by Robert.

The purposes of the loan were identified as “for home improvements”, “motor vehicle expenses” and “debt consolidation”. The document also provides:

Robert accepts that he is solely responsible for repayment of the remaining debt secured by the mortgage and that no part of this liability is payable out of the deceased’s estate. He accepts also, that the money borrowed was not for the benefit of the deceased but was to benefit him: T63.20-T63.21. (For this reason, I have not deducted any part of the amount secured by mortgage from the value of the deceased’s estate.)

Each of Shirley and Valerie gave evidence in the proceedings and was cross-examined. Their evidence relating to the number of times that each visited the deceased in hospital and in the nursing home, was unclear, and at times, contradictory.

Shirley admitted in cross-examination that whilst she had stated in her affidavit that she would “regularly” visit her parents at the family home, and then after January 2010, at the nursing home, she had, in fact, only visited the deceased in the nursing home twice after the death of George, whilst the deceased was a resident there. Each occasion was in early 2013 (T21.23-T22.09).

In answer to some questions from the Bench, Shirley stated that she had not visited the deceased in the nursing home between 2009 and 2010 (before the death of George) (T31.30-T31.35). She then said that she visited the deceased three times at the nursing home following George’s death and once in the hospital: T31.50-T32.10.

Shirley accepted that she did not see the deceased between January (or perhaps March) 2013 and late May 2014 when she visited the deceased in hospital: T23.48-T24.05. She had last seen the deceased 4 days before she died (T30.46-T30.47).

There was to be another occasion when the four children of the deceased were to visit to discuss the deceased’s Will, and to discuss a change to the Power of Attorney, but this visit was cancelled as it was reported the deceased was upset.

A document titled “Progress Notes”, dated 8 January 2013 “11:55 hrs”, created by a staff member from the Mayflower Retirement Village, states:

The document further provides, by reference to the time “17:26 hrs”:

Valerie also gave evidence that after George’s death, she had visited the deceased, on average, at least once a month and then, in the period closer to the deceased’s death, at least once a week. In the two weeks before her death, she saw the deceased daily and spent the whole day with her on the day before she died (T43.27-T43.32).

Valerie admitted in cross-examination that in late December 2013, she had obtained a title search of the Lake Illawarra Property and had found that Robert was named on the title (T41.42-T41.44). She denied that she had “confronted” the deceased about that, but simply that the topic “came up in conversation” (T41.46-T41.47). I found this evidence difficult to accept bearing in mind other evidence in the proceedings.

Robert was cross-examined also. He was taken to an assertion in Joy’s affidavit (otherwise not read) that the deceased had told Joy that she was afraid of Robert. He denied that he was present during such a conversation; denied that the conversation had been reported to him; or that he had ever given the deceased any reason to be afraid of him (T57.33-T58.19).

In cross-examination, it was put to Robert that he had arranged for Mr Mansfield, the solicitor who had prepared George’s, and the deceased’s, Wills, to do so. Robert responded that the solicitor had been contacted as a result of the discussion between George and Arthur Ingold (George’s brother). Mr Mansfield had been a family friend of the Ingolds, in Ulladulla, for many years, and Robert had only been made aware of him by George.

Robert accepted that he had spoken to Mr Mansfield in 2009, but said that he had only done so at the request of George, in order to arrange for Mr Mansfield to speak to George and the deceased about the preparation of an Enduring Power of Attorney and Appointment of Enduring Guardian (T60.16-T60.41).

Robert was asked whether he had “influenced” the deceased and George in relation to changing their Wills. He denied that he had done so, stating that the last Will of the deceased had been prepared in his absence, and that he “was simply a conduit to bring about the advice and information that they required to get it done”: T63.01-T63.02. I accept his evidence as it is clear that the deceased did not need to be influenced to make provision for Robert.

Sue Bardon had known the deceased for 56 years. Her family had lived next door to the deceased for the entire time that Sue had resided there. From when she moved out of home at age 22, she visited her parents several times per week and would chat to the deceased whenever she saw her. Since 1982, she had lived in the same suburb as the deceased. She had also worked at the Mayflower Retirement Village from 1990 to October 2010. She visited the deceased and her husband when they were admitted to Kiama Hospital in 2009.

Sue accepted that the deceased did not speak badly of her children to her but the deceased did raise concerns that they did not visit her often enough. Before 2005, Sue said that she would see Valerie about twice a year at the Lake Illawarra Property. From 2005 she noticed, and was told by the deceased, that Valerie did not visit regularly. She had never seen Valerie at the nursing home whilst she was working there (for about 11 months after the deceased was admitted).

Sue had worked the night shift at the nursing home, which may explain why she never saw Valerie visit. However, in the last few months before the deceased died, the deceased told Sue that the visits by Valerie had increased.

Before 2005, Sue would often see Shirley at the Lake Illawarra Property. From 2005, Sue noticed, and the deceased told her, that Shirley and her children did not visit regularly and that the deceased was disappointed by them not visiting.

Sue gave evidence that the deceased would appear upset after a visit from one, or other, of her daughters. She based this evidence on what the deceased had told her. In this regard, the deceased did not identify Valerie as a daughter who had caused her to be upset, but had identified Shirley as such a daughter: T48.27-T48.50.

Kim Boersma was the deceased’s niece and she had known the deceased for the duration of her life (54 years). She described herself as being “very close” to the deceased. She assisted the deceased in 2005 after her husband was recovering from an operation. During this time, Kim visited every day and only saw their daughters at the hospital on one occasion. Kim had less contact with the deceased from 2009, following the deceased’s move to the Mayflower Retirement Village. She visited the deceased at Shellharbour Hospital on several occasions after 2009.

During these visits, they spoke about the deceased’s relationship with her daughters. The deceased said to Kim that she never saw Valerie, or her other daughters, and that she was scared of Shirley and the others. On one particular occasion, Kim took the deceased to see her doctor and overheard the deceased telling the doctor “my girls are evil a [sic] wicked, they have been terrible for years”. The deceased cried throughout the meeting. There is no specific evidence about what caused the deceased to express this view.

Before 2005, Kim did not see Valerie or Shirley at the Lake Illawarra Property and she cannot recall the deceased saying that Valerie visited much. From the time the deceased moved to Mayflower Retirement Village, Kim was not aware of Shirley visiting much at all.

Mr Mansfield, solicitor for the deceased and George, and for Robert in these proceedings, annexed to his affidavit of 13 July 2015 several file notes transcribed between September 2010 and about November 2012. He was cross-examined.

The diary notes that were produced supported Robert’s evidence that Mr Mansfield had significant contact with George and with the deceased. He attended on them at various times and had taken instructions directly from them. In fact, one file note confirms that Mr Mansfield had expressly told Robert that he “would rather see them alone for instructions”.

The file notes also reveal some conversations with Robert, but these appear to be conversations conveying instructions, rather than Robert giving instructions, to Mr Mansfield directly. (The circumstances surrounding the granting of the mortgage falls into a different category, but since Robert accepts that he is to be solely responsible for the repayment of the loan secured by the mortgage, it is unnecessary to address the file note further.)

There was also an affidavit of Dr V Turnbull read. He was not cross-examined. I shall refer to his evidence later in these reasons when setting out matters regarding Robert.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although on many occasions, I have collected the principles generally applicable, in view of the importance of this case to the parties, and despite the admonition of Basten JA in Underwood v Gaudron [2015] NSWCA 269, at [11], that “the recitation of statements of principle from other cases, at a level of abstraction from the circumstances of the particular case” is not warranted, I shall repeat the principles that I consider relevant to this case.

In dealing with family provision matters, at trial, it is important that the parties are provided with an outline of the principles that are being considered relating to the issues raised by their legal representatives; that they are able to follow the reasoning of the trial judge, and be satisfied that the court has considered the evidence and the submissions made by counsel.

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

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system. Relevantly, in this case, the Plaintiffs rely upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that Shirley and Valerie is each a child of the deceased.

The language of the relevant sub-section is expressive of the person’s status, as well as her relationship to the deceased. There is no age limit placed on an eligible person making an application.

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

Relevantly, other than by reference to the provision made by the Will 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 each applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of each applicant.

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 by the eligible person or persons.

“Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

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

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

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said:

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

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

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

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

Their Lordships went on to state (at 478):

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J wrote, at 502:

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

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

Having established eligibility, as stated earlier, the first question to be determined under s 59(1)(c), 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. This has been described as “the jurisdictional question”: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. If the court is not so satisfied, then it is precluded from making a family provision order.

In answering this question, the court has regard to, among other things, each applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between that applicant and the deceased, and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].

Whether an applicant has a “need” or “needs” is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether “adequate” provision has been made for the “proper” maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.

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

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

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

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

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

“Need” may be assessed by considering each applicant’s financial position, lifestyle, and general expectations in life and health: Stewart v Stewart [2015] QSC 238, at [11].

In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that each applicant, is an eligible person, and that adequate provision for her proper maintenance, education or advancement in life has not been made), then, pursuant to s 59(2), the Court may make such order for provision out of the estate of the deceased person as it thinks ought to be made for the maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made.

Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at this stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

Section 60 of the Act, at least in part, is new. It provides:

Section 60(2) provides:

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWSCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [123], as “a valuable prompt” to which the court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

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

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

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

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

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

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

As the deceased made a will, any family provision order under the Act takes effect, unless the court otherwise orders, in a codicil to the will (s 72(1) of the Act).

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

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

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

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

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

The purpose of the jurisdiction conferred by the Act is not to correct the hurt feelings, or sense of wrong, felt by each applicant. Rather, the court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.

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

Of testamentary freedom, Callaway JA wrote in Grey v Harrison [1997] 2 VR 359, at 366:

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

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

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

How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James [2014] NSWCA 4, at [113]:

Thus, “there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment”: Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [125]:

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

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

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

In Re Buckland, (dec’d) [1966] VicRp 58; [1966] VR 404, at 412-413 the Court recognised that, in a case of a small estate, the notion of what provision was adequate would need to be adjusted accordingly:

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

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

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

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

In Foley v Ellis [2008] NSWSC 288, Sackville AJA, at [88], noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

In Salmon v Osmond [2015] NSWCA 42, at [103], Beazley P stressed the relevance of having regard to the deceased’s obligations to all other claimants and concluded, in that case, that even “without regard being had to the costs ordered to be borne by [the beneficiary’s] share of the estate, the legacy ordered in [the Plaintiff’s] favour is disproportionate to any rightful claim she may have when regard is had to [the beneficiary’s] rightful claim to the deceased’s bounty”.

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

It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]:

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

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

Shirley and Valerie is each a child of the deceased. Accordingly, the relationship of each with the deceased was for the whole of her lifetime.

Shirley lived at the family home until 1966, when, at 19 years of age, she married her husband. She says that she “would regularly visit [her] mother and [her] father at the family home after [her] marriage carrying out many simple chores for them, particularly in their later years of life including shopping, accompanying them on visits to the doctors and generally helping with the cleaning of the family home.”

Robert gives evidence, which I accept, that Shirley did visit regularly from when she moved out of the family home, attending functions and general visits, as well as assisting the deceased. She also assisted the deceased, sometimes, with shopping between 2006 and 2009.

Robert said that he was not aware of Shirley visiting the deceased between 2009 and 2011. He recalls Shirley visiting the deceased in May 2014 at the Shellharbour Hospital. I have dealt with Shirley’s evidence regarding the frequency of visits to the deceased from 2010 onwards.

I tend to the view that Shirley’s relationship with the deceased changed after the death of George. Even accepting her evidence of the number of visits that she had to the deceased, I had the firm impression from her oral evidence, that the relationship that she had with the deceased, thereafter, was not a particularly close one.

Valerie left the family home in 1972 at 16 years of age, when she married her husband. She gave evidence that:

Robert said that from the time when Valerie moved out of the family home in 1972 up until 2010, from conversations he had with the deceased, he believed that Valerie visited the deceased about 2 or 3 times per year. From 2010 to 2013, Robert was not aware of Valerie visiting the deceased at all.

I have dealt with Valerie’s evidence about her visits to the deceased more regularly, in the period leading up to the deceased’s death in 2014. Valerie says that she visited the deceased “most days”.

Valerie assisted Robert in the funeral arrangements and attended the funeral of the deceased.

Whilst I am of the view that Valerie tended to slightly exaggerate the closeness of her relationship with the deceased, perhaps, her relationship with the deceased seems to have been closer than the relationship of Shirley and the deceased. It was certainly not as close as the relationship of Robert and the deceased.

There is no definition of the “obligations” or “responsibilities” to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any social, domestic, legal or moral obligations or responsibilities. The sub-section requires the consideration of obligations or responsibilities as between different applicants, and as between applicants and any beneficiaries, of the deceased’s estate.

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

I am satisfied that, in the circumstances of the present case, the deceased did have an obligation, or responsibility, arising under the Act, as the sole surviving parent of Shirley and Valerie. However, the deceased did not have any legal, or financial, obligation to each imposed upon her by statute or common law.

In relation to Robert, I am of the view that the deceased had some obligation to him even though he is a grandchild. Robert was brought up by the deceased and George, and their relationship was more like that of parent and child than of grandparent and grandchild. She, herself, described him as a person “who I have always treated as my son”.

Yet, the deceased did not have any legal, or financial, obligation to Robert imposed upon her by statute or common law.

I have dealt with this earlier in this judgment. In calculating the value of the net estate, the liabilities or charges to which the estate is subject, including the costs of the proceedings, have been accounted for. On any view, it is a tiny estate. (This is so, even without deducting the costs of the proceedings.)

This sub-section, if considered, calls for a comparison of the financial resources (including earning capacity) and financial needs, both present and future, of applicants and the beneficiaries of the deceased’s estate.

Basten JA in Neale v Neale, at [22], described the sub-section as involving “an essentially evaluative exercise. The past and present can be established by evidence, although the level of detail must bear a reasonable relationship to the amount at stake. Prognostication is not, in this context, a science. It will inevitably involve some assessment of what an individual has done in the past as a basis for speculation as to the future.”

As at 10 July 2015, Shirley’s assets were a motor vehicle ($8,000), a property, in Dapto, jointly held with her husband ($430,000) and furnishings and fittings of said property ($20,000), savings ($16,000) and a motor vehicle jointly owned ($15,000). Shirley’s husband also has superannuation ($347,000).

Shirley does not give any evidence of liabilities.

Shirley’s and her husband’s monthly expenditure is $2,169. Although Shirley had an income of $1,124 in September 2014, she currently has no income. Her husband’s monthly income is $3,803 received by way of an allocated pension and aged pension. She accepted that the current surplus of their income over their expenditure is $1,634 per month: T28.21-T28.30.

In an affidavit dated 31 July 2015, Shirley lists her future needs, namely:

As at 10 July 2015, Valerie’s assets were cash in bank accounts ($6,500), a motor vehicle ($23,000), superannuation ($119,000), a property at Longbeach held jointly with her husband ($560,000), furnishings and fittings ($12,000), a motor vehicle and caravan owned jointly with her husband (with a total value of $88,000) and cash in a jointly held bank account ($40,000). The Longbeach property was said to have decreased in value by $60,000 since its purchase in 2009. However, there was no written valuation confirming this, Valerie saying in her oral evidence that she had obtained a verbal valuation from a real estate agent (T42.15-T43.11).

Valerie’s husband also has superannuation ($66,000).

Valerie’s only liability is disclosed as being “GE Money” ($1,300).

Valerie’s and her husband’s monthly expenditure is $3,828. Valerie’s monthly income is said to be $400, received by way of an allocated pension. The source of this allocated pension was disclosed in her oral evidence as being paid from her superannuation: T38.40-T38.44. Her husband’s monthly income is $4,800. It follows that they, too, have a surplus of monthly income over expenditure of about $1,370.

In an affidavit dated 3 August 2015, Valerie lists her future financial needs as potentially including:

Valerie also refers to her husband’s superannuation as not being “enough to keep us in reasonable circumstances for any considerable time”. She would also like to accompany her daughter on holiday but has “declined to so do as it would involve eating into money that… [they] will need in the future”.

The court may also consider the financial resources, including earning capacity, and the financial needs, both present and future, of the beneficiary of the deceased’s estate.

Robert’s assets, as at the hearing date, were cash in bank accounts ($3,200), 2 motor vehicles ($43,000), superannuation ($270,000) and a half share in the Lake Illawarra Property ($180,000). His liabilities include a car loan ($48,000), the debt secured by the mortgage ($97,000) and what is described as “Credit Corp” debt ($4,500).

His monthly expenditure is $5,050 and his monthly income is $4,681. He has had considerable difficulty maintaining employment due to his Bipolar Disorder which is referred to below. He currently works 27 hours per week on a permanent part time arrangement. Whether his working hours increase or stay the same will depend upon the medical advice he receives.

Robert currently lives in rented accommodation. He shares this accommodation and the persons with whom he shares pay half of the rent. His share of the rent is $200 per week.

One of the persons with whom Robert lives is a person he described in his oral evidence as his “partner”. He did not mention her in his affidavits, or disclose her financial and material circumstances until this was raised in cross-examination.

He explained the omission saying that “we moved in together only three weeks ago… and that’s the first time we have lived together and co-habited”: T65.10-T65.42. However, he accepted that they have had a relationship for about 4 or 5 months.

When further questions were asked, Robert disclosed that she worked as an executive officer in a local Council and earned $1,170 per week, gross; she was “currently waiting to settle a house for a divorce, but at this stage the house remains for sale. And other than that, she does not have any liquid assets other than a motor vehicle until her divorce settles… She would have some super, but I can’t give you an exact amount”: T66.06-T66.30.

Valerie refers to three properties purchased by Robert between 1992 and 2001. Robert has since sold the properties, claiming that the combined profit made for the sales was $16,500. In relation to the last property bought in 2001, Robert borrowed $8,000 from the deceased and George and repaid the amount in instalments from September 2001 to July 2002.

Valerie also alleged that Robert borrowed $20,000 for the property he purchased in 1992, a claim that is denied by Robert, a denial which I accept.

Each of the Plaintiffs presently live with her husband. I have set out his financial circumstances above.

Valerie underwent an arthroscopic procedure to her left knee cartilage in August 2014.

In July 2015, an optometrist explained to her that she “would require cataract surgery… sometime in the future.” She believes that further medical procedures may be required in the future. Her husband suffered from Guillain-Barre Syndrome, a paralysing auto-immune disease. He was then diagnosed with aggressive prostate cancer in 2009 and he underwent surgery. Further treatment was carried out in 2012.

Shirley suffers from arthritis, which may require treatment in the future.

Robert was diagnosed with Bipolar Disorder in 2004 and has been hospitalised on 3 occasions as a result. Since his hospitalisation in August 2014, he has been unable to work as he used to. I have set out his current employment earlier.

Dr V Turnbull, a Psychiatrist, first saw Robert in May 2013 for assessment and management of his Bipolar Disorder, when he had had a severe episode of major depression. Dr Turnbull next saw Robert in November 2014. On that day, “he presented with depressed affect with melancholic features, had marked impairments in his sleep and appetite as well as concentration, with a constant sense of inner tension. Suicidal thoughts had also been severe”. Robert’s rating on a MADRS Rating Scale for Depression was “extremely high”.

Dr Turnbull’s affidavit states:

Valerie is now 58 years old, having been born in November 1956. Shirley is now 68 years old, having been born in November 1946.

Valerie commenced working as a checkout operator for Flemings Supermarket in November 1971, at the deceased’s request, to support the family. She gave evidence that her weekly income of about $19 per week was taken by the deceased to be used for household expenses. She only retained an allowance of $3 per week. She continued to work at Flemings Supermarket up until moving out of the family home in November 1972.

Shirley writes that she “made numerous contributions to the conservation and improvement of the estate of the deceased, including providing assistance with maintenance of the family home, being painting and general maintenance, as well as assisting with cleaning of the family home”.

Robert says that the deceased had a cleaner who attended weekly in mid-2000 and that he was never told by the deceased that Shirley assisted in cleaning. Shirley also says that she accompanied the deceased “on fortnightly shopping trips and when she required to attend her doctor”. In about 2008 or 2009, Shirley and her husband took the deceased to various hospitals and doctors in relation to her bowel condition. For about 3 or 4 years, Shirley looked after their bank books, organising the withdrawals and paying bills as requested.

I am of the view that Shirley exaggerated the assistance provided to the deceased. For example, in 2009, she attended Kiama Hospital to discuss the future needs of her parents and stated she “didn’t have sufficient time” to look after her parents permanently: T19.34-T19.42; T20.25-T20.42.

I have earlier set out the contribution made by Valerie to the welfare of the deceased.

The deceased did not make any provision for each of the Plaintiffs during the deceased’s lifetime, except, presumably, whilst the Plaintiffs were children living at the family home. This may not be surprising in view of the fact that each left home and married many years ago. Neither was financially dependent upon the deceased for many years.

As previously stated, Valerie and Shirley received no provision under the last Will of the deceased.

There was tendered in evidence a copy of a Will made by the deceased in April 1997. In that Will, the deceased left the whole of her estate to George provided he survived her by not less than 30 days, and in the event that he did not, then after payment of debts, funeral and testamentary expenses, “to divide and distribute the balance then remaining equally amongst such of my children and Robert… as survive me…”

Valerie refers to “various conversations with the deceased regarding her Will and the property at xxx Lake Illawarra South.” She specifically refers to an occasion in about January 2013 after her husband obtained a title search of the Property:

Valerie refers to a similar conversation in about the same time:

It is hard to accept that the deceased did not remember what had been done in respect of the Lake Illawarra property and in relation to the borrowing. However, this is not to say that there is a basis to disbelieve Valerie’s evidence on this topic. It may be that the deceased did not wish to explain her reasons for doing what she had done.

Robert was aware of the 1997 Will and was informed that he would be an executor of that Will. He did not know the contents of this Will until 2009 when he was asked to obtain the original wills from the deceased’s and her husband’s solicitor.

Neither Plaintiff was being maintained by the deceased before the deceased’s death. Indeed, it seems to be that each had not been maintained by the deceased for many years prior to the deceased’s death.

There are no other persons liable to support each Plaintiff, except, perhaps, her husband.

An evaluation of “character and conduct” may be necessary, not for the sake of criticism, but to enable consideration of what is “adequate and proper” in all the circumstances. The Act does not limit the consideration of “conduct” to conduct towards the deceased. Nor is it limited to character or conduct of the applicant such as to disentitle him, or her, to the benefit of any provision. In referring to character and conduct of an applicant, the Act also contemplates good conduct as it would constitute an injustice if such a factor were not taken into account.

Whilst it is clear that there is no love lost between the parties themselves, I do not think that there is any conduct of either Plaintiff that is relevant to which reference has not been made.

Robert is a grandchild of the deceased. He resided at the family home from birth to 1990, during which time he was “cared for and dependent on the deceased” and her husband, whom he regarded as his own parents. Shirley gave evidence that Robert was initially cared for by Fay until she left the family home in about 1970 when Robert was about 3 or 4 years old.

From 1990 to 2005, Robert was largely independent. He again resided at the Property for 6 months when he became ill and was “totally dependent” on the deceased and George.

In his affidavit dated 28 November 2014, Robert writes that he “was maintained by the deceased over the past two years in accommodation only… due to… being unable to work due to illness for twelve of the last 24 months. The deceased allowed me to reside at my house rent free during this period.”

He assisted in general household duties during his school years. From 1983 to 1990, he was employed and paid board of 25 per cent of his weekly earnings. He continued to assist with household duties in this period and after moving out (except from 2000 to 2003 when he worked in Griffith), especially with tasks that the deceased and her husband could not complete due to their age. From 2005, he also took the deceased to numerous medical appointments, to visit her friends and to visit her husband when he was in hospital.

Shirley gave contrary evidence that the deceased had few friends, and would prefer to stay at home due to anxiety attacks. On this aspect, I prefer the evidence of Robert.

Robert renovated the bathroom at the Lake Illawarra Property. He organised various services for the deceased including meals on wheels, community nursing contacts and subsidised transport.

Shirley deposes to a conversation she had with Joy who told her that she had organised meals on wheels for her parents. Shirley “personally made arrangement for home care… to carry out domestic chores such as cleaning and washing… in around 2008.” Robert agrees that they may have been involved in organising these services, but they did not administer them.

From 2009 until the deceased’s death, Robert says he was “solely responsible for all the needs of the deceased, including financial management and medical appointments”.

In January 2010, Robert was asked to be the Enduring Guardian, Power of Attorney and Executor of the Will for each of the deceased and her husband.

Robert assisted both the deceased and her husband in their move to the Mayflower Retirement Village, including completing the necessary documentation and seeking financial advice on their behalf. He continued to visit them weekly at the nursing home to assist with groceries, providing cash for activities and transporting both to medical appointments. After George’s death, Robert continued to provide the same support to the deceased. In the week leading up to the deceased’s death, Robert says he visited her daily, although Valerie contends that she only saw Robert twice in the last 10 days leading up to the deceased’s death.

Valerie refers to a conversation she had with an aged care worker who sometimes attended on the deceased, who said that she did not know who Robert was. Robert contends that this is because the aged care worker had only been working at the nursing home for a short period of time and only worked on weekdays; Robert would visit the deceased mainly on Sundays and sometimes on Wednesdays. Robert also says that his name appears several times on the register at the nursing home, which must be signed when a resident is taken from the site. There were no documents produced to confirm this.

The longest period between Robert’s visits to the Mayflower Retirement Village was 3 weeks, when he was ill.

Robert arranged the funeral, with “minimal assistance” from Valerie and no assistance from Shirley, and attended the service of the deceased.

In about June 2014 Valerie recalls Robert saying to her, in reference to the deceased, “I do not love her… and only visit because I promised Dad.” Unsurprisingly, Robert denies that he said this. I accept the evidence of this denial.

I have no doubt that Robert was a close, loving and supportive grandson of the deceased and despite the fact that he was a grandchild, he played more of a role as a loving and dutiful child of the deceased, as she appears to have recognised.

I have earlier referred to the cross-examination of Mr Mansfield and of Robert on the steps that were said to have been taken by Robert to have Mr Mansfield prepare the deceased’s Will. The Plaintiffs’ submission was that such conduct did “not rise as high as undue influence… It may rise as high as behaviour by a person within the meaning of s 60 in connection with the testator”: T71.05-T71.23.

I do not accept this submission. As I noted during the submissions, it seemed clear on all of the evidence that the deceased wished Robert to inherit her entire estate; she told Mr Mansfield that; she made a Will reflecting that intention, a Will that was similar to the Will made by George, who, also, wished Robert to inherit the whole of his estate.

As counsel for the Plaintiffs conceded, correctly in my view, “the evidence overall is that the Will evidences what, at the date of her death, [the deceased] wished to do”: T71.44-T71.47. Clearly, by making him the sole beneficiary of her estate, the deceased regarded him as the person to whom she owed the greatest obligation.

This is not relevant in the present case.

This sub-section provides a wide discretion to look beyond the specific matters set out in the immediately preceding sub-paragraphs.

I have not forgotten that Robert inherited a one half interest in the Lake Illawarra property from George.

Being an “eligible person” is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute that each Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

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

I have written that neither Plaintiff receives any provision out of the estate. However, that fact, alone, does not automatically lead to the result that inadequate provision for her proper maintenance, education and advancement in life, has been made. In this regard, as stated previously, the adequacy of the provision made for each applicant depends upon all the relevant circumstances, including the age, capacities, means and competing claims of all potential beneficiaries and “proper”, in this context, means proper in all the circumstances, in the light of all competing claims upon the bounty of the deceased and their relative urgency, and the deceased’s ability to meet such claims having regard to the size of her estate.

Based upon the matters I am required to consider, I am not satisfied, at the time when the Court is considering the application of each Plaintiff, that adequate provision for her proper maintenance, education or advancement in life was not made by the Will of the deceased. Importantly, in the case of each Plaintiff, she is secure in accommodation, which is unencumbered; taken with the income of her spouse, they have an income that exceeds their monthly expenditure; and Valerie has some superannuation. In the case of Shirley, she and her husband have been married for 50 years, whilst Valerie and her husband have been married for about 43 years. There is no suggestion that either marriage is in any way unstable.

In the case of Shirley, the total value of her, and her husband’s, assets and superannuation is $836,000. In the case of Valerie, the value of her, and her husband’s, assets and superannuation, is about $913,200, taking into account liabilities. In my view, neither has demonstrated any need for provision out of such a small estate.

When one compares the value of Robert’s assets, and taking into account his liability for the repayment of the mortgage debt, it is clear that each of the Plaintiffs is in a superior financial position.

(I have not forgotten the financial circumstances of Robert’s “partner”. However, they have been in a relationship for about 4 or 5 months and have only been living together for a short time. It is difficult to treat her financial and material circumstances in the same way as one treats the financial circumstances of each Plaintiff’s spouse.)

I have also not forgotten Shirley’s evidence that she wishes to benefit her children. Whilst, undoubtedly, that is most commendable, in an estate of this size, it is not a matter which should be regarded as a “need”. Importantly, on this topic, there is no evidence about the financial resources of either of her children, other than that each has a mortgage.

In this case, any provision the Court makes in favour of either Plaintiff has to be made at the expense of Robert to whom the deceased believed sole provision ought to be made, and whose claim for provision from the deceased’s estate appears far more compelling than the claim of each Plaintiff. It is hardly surprising that the deceased felt that way, bearing in mind the closeness of their relationship.

I must also remember that the task of the court is to make a determination “according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself”: Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was not a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.

It follows that the Summons must be dismissed.

Even if contrary to my conclusion that I am not satisfied that inadequate provision for each Plaintiff’s proper maintenance or advancement in life was made by the Will of the deceased, as a matter of discretion, I would not make an order for provision out of the estate of the deceased person for the maintenance, education or advancement in life of either Plaintiff, having regard to the facts known to the Court at this time. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison.

I have identified the matters in s 60(2), the factual matters, to which regard may be had in reaching this conclusion. Considering all of these, I am not satisfied that any order for provision out of the estate of the deceased ought to be made for the maintenance, education or advancement in life of either Plaintiff.

It follows, therefore, that the Plaintiffs’ proceedings must be dismissed.

Robert’s primary submission (in the written submissions) is that the proceedings should be dismissed and that each party is to bear their, or his, own costs of the proceedings. No doubt, the order proposed by him would be accepted by the Plaintiffs in the circumstances. However, during submissions, I was requested not to deal with the question of costs, so I shall not do so.

However, unless either party wishes to propose a different costs order, and although I do not wish to encourage the proposition that an order of the type proposed by Robert would be made as a matter of course in a case where a claim by an applicant, or applicants, is dismissed, I appreciate that there is a familial relationship between the parties. If Robert is prepared to bear the burden of his own costs, and if there is no other relevant matter, I would be prepared to make that order.

The Court: