Anderson v Hill

1. [1]

   HIS HONOUR: Michele Leonie Hill (“the deceased") died on 17 May 2015, aged 70 years, having made a Will on 6 March 2015. By that Will, and in the events that happened, she left the whole of the estate to her husband, George Edward Charles Hill, who is the Defendant in these proceedings.

2. [2]

   The Plaintiff, David John Anderson, is one of the deceased’s five children from her prior marriage, and her only son. He seeks provision, by way of a family provision order, out of the deceased's estate and notional estate, pursuant to the Succession Act 2006 (NSW) ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. The relief sought by the Plaintiff also includes an order that the costs of the proceedings be paid out of the estate of the deceased.

3. [3]

   As has been read, a family provision order may be made in relation to the estate of a deceased person, but may also be made in relation to property that is not part of the deceased person’s estate, if it is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63. At the commencement of the hearing, the parties agreed that the property sought to be designated as notional estate of the deceased is the deceased’s one half interest as joint tenant in real estate at Ulm Street, Ermington, (“the Ermington property”) a suburb of Sydney.

4. [4]

   There is no dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased), the Summons having been filed on 12 May 2016. An Amended Summons, naming the correct Defendant, was also filed on 12 May 2016. A Further Amended Summons was subsequently filed on 21 July 2017, nominating a tutor for the Plaintiff, since, by that date, as will be read, he had become a person under a legal incapacity, namely a protected person within the meaning of the NSW Trustee and Guardian Act 2009 (NSW). When new solicitors were appointed to represent the Plaintiff, they filed a Consent to Act as Tutor on behalf of the NSW Trustee and Guardian on 20 July 2017. (A Consent to Act as tutor had been filed on 1 February 2017 by the Plaintiff’s previous solicitor, but the basis for his doing so is not clear.)

5. [5]

   The NSW Civil and Administrative Tribunal made a Financial Management Order in favour of the NSW Trustee and Guardian, on 2 June 2017. There was clearly a sound basis for the making of the financial management order. Later in these reasons, I shall deal with the Plaintiff’s medical and psychological condition.

6. [6]

   At the commencement of the hearing, the parties agreed that there is no scope for the operation of the intestacy rules, so that it is only necessary, hereafter, to refer to the Will of the deceased.

7. [7]

   As will be read later, to obtain an order for provision, the Plaintiff must first satisfy the Court that he is an “eligible person”, in accordance with s 59(1)(a) of the Act. The Act defines “eligible persons” by reference to six categories. The relevant category relied upon by the Plaintiff is identified in s 57(1)(c) of the Act, namely that he is a child of the deceased. There is no dispute that he is an eligible person.

8. [8]

   If eligibility is established, the Plaintiff must then satisfy the Court that, at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the Will of the deceased: s 59(1)(c). If he is able to do so, the Court may make such order for provision out of the estate, or notional estate, of the deceased, as ought to be made for his maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made.

9. [9]

   Since there was no real estate, and virtually no personal estate, which the deceased died seised, or possessed of, or entitled to, in New South Wales, at the date of death (because the Ermington property was jointly held and passed to the Defendant by survivorship), a grant of administration of the deceased’s Will was not necessary in order to have property of the deceased vest in the executor: s 44 of the Probate and Administration Act 1898 (NSW).

10. [10]

    The parties agreed that the Defendant was the appropriate person to be named as the Defendant, and the proper contradictor, of the Plaintiff’s claim. He is now the sole registered proprietor of the Ermington property that the Plaintiff has asked the Court to designate as notional estate, and the person whose interests would be adversely affected by the making of an order in favour of the Plaintiff. In any event, without opposition, the Defendant has represented the estate of the deceased, since the commencement of the proceedings and appeared at the hearing by counsel and solicitor. I shall make an order that he be the representative of the deceased’s estate for the purposes of, and to conduct, the proceedings: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 7.8 and rule 7.10(2)(b).

Formal Matters

1. [11]

   The following outline of the factual background records my findings of fact based on unchallenged evidence, or where I am satisfied that the background fact is established on the balance of probabilities.

2. [12]

   The deceased was born in October 1944.

3. [13]

   The deceased was married to the Defendant in 1991, and they remained married at the date of her death 24 years later. There were no children of their marriage.

4. [14]

   The deceased, previously, had been married to John William Anderson, but they separated, and were subsequently divorced, on dates not clear on the evidence. There were five children of their marriage, namely Karen Yvonne Taverniti, Fiona Michele Harris, Leigh Blanche Wolki, Angelique Grace Elliot and the Plaintiff (who was born in February 1972, and who is 45 years old), none of whom, other than the Plaintiff, have been involved in these proceedings.

5. [15]

   The deceased’s first husband predeceased the deceased, having died in August 2014.

6. [16]

   The Defendant has four children from his prior marriage. He does not have a close relationship with any of them and says that he has not seen them for over 26 years.

7. [17]

   As stated, the deceased left a Will made on 6 March 2015 in which she named the Defendant as the sole executor and universal legatee of the whole of her estate. The Will provided that, in the event the Defendant did not survive the deceased, the whole of her estate was to pass to her five children equally, and if more than one, as tenants in common in equal shares.

8. [18]

   The Defendant has not sought Probate of the deceased’s Will and does not intend to do so. The parties agreed that if it were necessary to do so, (against the submissions of the Defendant) an order should be made under s 91 of the Act, which applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased, in relation to which administration has not been granted. Then, the Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased to the applicant, for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased left property in New South Wales.

9. [19]

   As I propose to dismiss the proceedings, for the reasons to which I shall come, it is not proper to make an order under s 91 of the Act.

10. [20]

    The deceased died leaving an estate in New South Wales. Although there is no Inventory of Property, the Defendant, in an affidavit affirmed on 4 July 2016, stated that the estimated, or known, value of the property owned solely by the deceased, in New South Wales, at the date of death, was $2,588. Her estate was said to consist of shares in IAG ($2,430) and money in a bank account ($158). (I have omitted any reference to cents.) I assume that it was unnecessary for the Defendant to obtain a grant of administration to sell, or transfer, the deceased’s shares, or withdraw the money in the bank account in her name.) The only identified debt of the estate was the amount owed for funeral expenses ($5,000).

11. [21]

    The Defendant also stated, in that affidavit, that there was property that he and the deceased owned jointly at the date of her death, being the Ermington property ($500,000), 314 shares in IAG ($894) and household furniture and effects ($2,500).

12. [22]

    The parties agreed that, at the date of hearing, there is no actual estate out of which any family provision order in favour of the Plaintiff can be made, and that if an order is to be made, a notional estate order will be required.

13. [23]

    The Defendant is now the sole registered proprietor of the Ermington property and, presumably, has had the shares transmitted into his name as well. The furniture and effects, I assume, remain in the Ermington property. (Since neither party referred to the value of the furniture and effects, I also assume that they are of nominal value.)

14. [24]

    At the commencement of the hearing, the parties agreed that, the total value of the Ermington property, at the date of the hearing, is between $1,300,000 and $1,350,000. It follows that the gross value of the deceased’s interest, if an order were made designating it as notional estate, at the date of the hearing, is between $650,000 and $675,000.

15. [25]

    (For the purposes of the Plaintiff’s claim, it would not make much difference whether it is the higher, or the lower, amount. For abundant caution, however, the Court was asked to treat the gross value of property that could be designated as notional estate as $662,500.)

16. [26]

    The parties also agreed that they and also the other four children of the deceased referred to earlier, are the only other eligible persons within the meaning of that term in s 57(1) of the Act.

17. [27]

    There is evidence that each of the siblings of the Plaintiff, other than Angelique Grace Elliott, has been served with notice of the Plaintiff’s application, and of the Court’s power to disregard her interests, in the manner and form prescribed by the regulations or rules of court: s 61(1) of the Act. Ms Elliott was sent a notice by express post and although subsequent efforts to serve her personally were made, it appears that she has refused to accept service, or respond to telephone, and other, requests, to contact the process server. I am satisfied that personal service of any such notice upon her is impracticable in the circumstances of the case.

18. [28]

    Thus, I propose to disregard the interest of each of the other children of the deceased, who has not made an application.

19. [29]

    As will be read, the Court, however, is not entitled to disregard the deceased’s freedom of testamentary disposition and her disposition, to the Defendant, as a beneficiary. The Act specifically provides that his interests, as a beneficiary, cannot be disregarded, even though he has not made a claim for a family provision order: s 61. (This aspect will be of less relevance in this case, bearing in mind that the sole asset of any value is the Ermington property, the deceased’s interest in which passed, by survivorship, to the Defendant.)

20. [30]

    Usually, in calculating the value of the deceased’s estate and notional estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. As Basten JA stated in Chan v Chan [2016] NSWCA 222 at [54]:

21. [31]

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

22. [32]

    The applicant, if successful, usually would be entitled to an order that his costs, calculated on the ordinary basis, would be paid out of the estate or notional estate of the deceased, whilst the defendant, as administrator of the estate, irrespective of the outcome of the proceedings, normally would be entitled to an order that his costs, calculated on the indemnity basis, should be paid out of the estate or notional estate.

23. [33]

    Mr I C Sinnadurai, the solicitor for the Plaintiff, estimated the costs and disbursements of the Plaintiff in respect of these proceedings, up to the conclusion of a one day hearing, calculated on the ordinary basis, was $51,614, inclusive of GST. (The estimate included costs and disbursements ($24,860, inclusive of GST, calculated on the indemnity basis) of a firm of solicitors that had previously acted for the Plaintiff.)

24. [34]

    What Mr Sinnadurai did not disclose, in any affidavit of costs relied upon in the proceedings, was that the Plaintiff had entered into a “conditional costs agreement” with his firm. This was only identified in an exchange between Bench and counsel for the Plaintiff following the long adjournment: T54.08 – T54.26

25. [35]

    As I understand it (since this was not disclosed to the Court until the Court raised a question during submissions, and even then a copy of the agreement was not produced to the Court), this type of agreement is of the type referred to in Part 4.3, s 181 of the Legal Profession Uniform Law Application Act 2014 (NSW), being “a costs agreement (a conditional costs agreement) may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate” and may, so far as I know, contain an “uplift fee”, which also was not referred to. A “costs agreement” simply means an agreement about the payment of legal costs.

26. [36]

    As I recently re-affirmed in Blacket v Barnett [2017] NSWSC 1032 at 258:

27. [37]

    It is equally unacceptable, when the deponent of the affidavit is an experienced solicitor, who regularly practices in the jurisdiction, and, who is, or ought to be, well aware that the Court requires disclosure of the costs of the parties, and, for example, whether those costs include any uplift factor.

28. [38]

    To simply state, as counsel for the Plaintiff did, when asked for an explanation, after taking instructions from the deponent of the affidavit, that “There's no explanation I can give you apart from the fact that it was just overlooked” (T55.10 – T55.11), is also unacceptable, even if accompanied, as it was in this case, by an apology to the Court.

29. [39]

    I have considered whether anything should be done about this aspect, but I accept that the Defendant’s legal representatives, whilst not expressly informed, “understood” that there may be a conditional costs agreement from matters discussed between the legal representatives at the mediation: T54.29 – T54.36, and that this information did not come as a complete surprise to the Defendant’s camp.

30. [40]

    Furthermore, I accept that “[C]onditional costs agreements also discharge an important utilitarian function in facilitating access to justice. Many potential litigants are deterred from enforcing their legal rights and entitlements due to inadequate economic resources. Conditional costs agreements allow for the re-allocation of risk among the litigant and the legal practitioner. In exchange, the legal practitioner is entitled to a modest uplift fee reflecting their assumption of a proportion of the risk by conducting the matter on a speculative basis”: Frost v Miller [2015] QSC 206 at [16] (Carmody CJ).

31. [41]

    (Of course, in reaching this conclusion, the Court should not be seen as condoning the conduct of the solicitor who swore the costs affidavits, or the conduct of counsel, who, presumably, was also aware that he would not be paid any fees unless the Plaintiff was successful, and who did not advise the solicitor to amend the affidavit to include, or otherwise inform the Court of, the conditional costs agreement.)

32. [42]

    The Plaintiff’s counsel submitted that in the event that the Plaintiff is successful, there may be a document relevant to the issue of costs. He submitted, on the other hand, that if the Plaintiff were unsuccessful, there should be no order as to him bearing the costs of the Defendant, principally because of the Plaintiff’s financial and material circumstances. He relied upon the principles that I had set out in Harkness v Harkness (No 2).

33. [43]

    Mr A Segal, the solicitor for the Defendant, estimated the Defendant’s costs, calculated on the indemnity basis, to be $70,330, if the case finished within one day (which it did). In the affidavit of costs, affirmed by him on 11 August 2017, and filed in Court, he stated that “[T]he agreement that both Counsel and myself have with the Defendant is that we will be paid on the sale of [the Ermington property]”.

34. [44]

    Counsel for the Defendant submitted that, in the event the Plaintiff was successful, the usual order for costs should be made, but that any order for costs payable out of the notional estate of the deceased should be upon the same basis as the Defendant’s costs and disbursements were to be paid, namely upon sale of the Ermington property.

35. [45]

    He also submitted, in the event that the Plaintiff was unsuccessful, that the usual order for costs should be made, namely that the Plaintiff should pay the Defendant’s costs, calculated on the ordinary basis, of the proceedings. He accepted, however, that even if that order were made, the Defendant might never recover those costs because of the financial and material resources of the Plaintiff.

36. [46]

    I shall return to the issue of costs at the conclusion of these reasons.

Acquisition of the Ermington Property

1. [47]

   The Defendant has lived in the Ermington property for about 45 years (since about 1972), having purchased the property with his former wife, and then having acquired her interest after their separation in about 1984. He made a payment of $50,000 to her for her interest and the Transfer of the property to him was dated 9 June 1989.

2. [48]

   It appears that the Defendant transferred the Ermington property to himself and the deceased, by Transfer dated 20 May 1993 (Ex. 1). The consideration shown on the Transfer is $56,500. The Defendant recollects that the deceased had the amount available and that, after payment, it was deposited into a joint account held in their names. He stated, and I accept, that the amount was subsequently used for “household improvements and living expenses” for them both.

3. [49]

   The deceased and Defendant also took out a loan of $16,000 for further improvements to the Ermington property, but there is no evidence of how this loan was repaid. At the time, apparently neither was employed.

4. [50]

   The Defendant gave evidence that the deceased also contributed about $80,000 towards the Ermington property in about 2004-2005, from an inheritance she received from her mother’s estate. He contributed about $120,000, which he inherited from a friend, and, then, in about 2006, an amount of $178,000, which he received from his mother. All of these amounts were put towards the cost of rebuilding, and improvements made to, the house on the Ermington property.

5. [51]

   (Although there was a suggestion in the Plaintiff’s submissions that the Defendant’s contributions were in issue, he was not asked any questions about them in cross-examination. In any event, there is no reason not to accept the Defendant’s evidence in this regard.)

6. [52]

   Following the death of the deceased, the Defendant was registered as the sole proprietor of the Ermington property, it appears, on about 24 July 2015. (I have taken this date from a copy of a Title Search at Land and Property Information New South Wales, printed on 14 July 2017, annexed to the affidavit of Ms M B Rice affirmed 19 July 2017.) The Defendant remains the sole registered proprietor of the property and it is, by far, his most valuable asset.

The Deceased’s Testamentary Intentions

1. [53]

   The deceased made a number of Wills during her lifetime, being on 16 March 2006, 20 February 2013, 6 March 2013, 29 August 2013 and 6 March 2015. A copy of each of these Wills was annexed to an affidavit affirmed on 9 August 2017 by Mr Sinnadurai.

2. [54]

   In the Will made on 16 March 2006, the deceased relevantly provided:

3. [55]

   (It is difficult to see how the provision made would take effect since, at the time, the Ermington property was held by the deceased and the Defendant as joint tenants. However, it is possible that if another property had been purchased, it would be held otherwise than as joint tenants.)

4. [56]

   In each of the deceased’s other Wills, relevantly, and in the events that happened, she left the whole of her estate to the Defendant absolutely, even though her children, including the Plaintiff, were identified as alternative beneficiaries. This demonstrates, in my view, that the deceased, herself, realised her primary obligation was to the Defendant, and only if he did not survive her, were any of her children to receive any part of her property.

5. [57]

   The Plaintiff gave evidence, in his first affidavit, of the deceased having told him, about two months before she died, that she was “going to look after you when I die. The house is worth a million. You and your sisters will be looked after. I would like to leave $200,000 each for you and your sisters. George’s mother lives next door and he will inherit that house”.

6. [58]

   The conversation, if it occurred, is difficult to reconcile with the known facts. The deceased died after suffering a long period of illness (cancer) and it is highly unlikely that she would have survived the Defendant. Accordingly, it was highly unlikely that the Ermington property would pass to her by survivorship.

7. [59]

   Furthermore, the Defendant, in any event, was a co-owner of the Ermington property, so, even if it had been held as tenants-in-common in equal shares, she would not have been entitled to more than $500,000 (half of the value she ascribed to it). Also, she had no other property to enable her to leave any, let alone to each, of her children, a legacy of $200,000.

8. [60]

   (I note, there was no evidence, and the Defendant was not asked any questions concerning any inheritance that he might expect to receive from his mother’s estate (assuming that she is still alive). Nor was there any evidence, by way of a title search, identifying the registered proprietor of any property “next door” to the Ermington property.)

9. [61]

   The Defendant gave evidence of a conversation between the deceased and the Plaintiff, about 6 months prior to her death, which was in the following terms:

10. [62]

    I have no reason to disbelieve the Defendant as his recollection is consistent with the deceased’s conduct. In addition, the conversation has the ring of truth to it, and, in any event, is consistent with the conduct of the Plaintiff in commencing, and maintaining, these proceedings.

Claim for a Family Provision Order

1. [63]

   I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these in many cases. For the benefit of the parties, I shall refer to part of what I have written. Where necessary, I shall add other relevant principles.

Eligibility

1. [64]

   The key provision of the Act is s 59. As stated, the Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). There is no dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person’s status, irrespective of age, as well as his, or her, relationship to the deceased.

Whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made in the Will

1. [65]

   Since eligibility is established, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased: s 59(1)(c). 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”: s 59(2).

2. [66]

   "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, with whom Allsopp P and Ipp JA agreed), 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".

3. [67]

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

4. [68]

   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 P, Lady Hale DP, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears:

5. [69]

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

6. [70]

   In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Murphy J wrote at 505:

7. [71]

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

8. [72]

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

9. [73]

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

10. [74]

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

11. [75]

    “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between these 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] 1 WLR 1808; [2008] UKHL 52 at [54]:

12. [76]

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

13. [77]

    I should mention what Parker J has written in Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 at [94]:

14. [78]

    Whilst I agree that s 60(2)(d), and therefore, “financial needs”, is simply one of the matters the Court may, but does not have to, have regard to, if the Court does so, as 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.

15. [79]

    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.

16. [80]

    The Act does not stipulate automatic provision. The Court has a discretion even if satisfied that adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made in the Will of the deceased. Rather the Will (or the intestacy rules if relevant) applies unless a specific application is made, and acceded, to, by the Court and a specific order for provision is made.

17. [81]

    Section 60 of the Act provides:

18. [82]

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

19. [83]

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

20. [84]

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

21. [85]

    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.

22. [86]

    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).

23. [87]

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

24. [88]

    The Court may order provision to be made in a variety of ways, including a lump sum, a periodic sum, or, as previously stated, “in any other manner the Court thinks fit” (s 65(2) of the Act). Any conditions, restrictions or limitations imposed by the Court must also be specified.

25. [89]

    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).

26. [90]

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

27. [91]

    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).

28. [92]

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

Notional Estate

1. [93]

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

2. [94]

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

3. [95]

   Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9” (2005) 27(2) Sydney Law Review 263 has commented on the notional estate provisions of the former Act:

4. [96]

   In Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was “a complex concept” but shortly described it as “property which would have become part of the deceased’s estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way and in particular circumstances, prior to his or her death”.

5. [97]

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

6. [98]

   Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).

7. [99]

   Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76. "Property" includes “any valuable benefit” (s 3).

8. [100]

   Section 75 of the Act provides:

9. [101]

   Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described in s 76(2)(b), arises:

10. [102]

    Any such circumstance is “subject to full valuable consideration not being given” (s 76(1)). Importantly, a distinction must be drawn between “valuable consideration” and “full valuable consideration”: see, for example, s 76(4) of the Act.

11. [103]

    Important also is the omission of the words “in money or moneys worth”, which had appeared after “full valuable consideration” in the equivalent provision (s 22) of the former Act.

12. [104]

    The expression “subject to full valuable consideration not being given”, in my view, has the effect of imposing a requirement, wholly separate from the result, which is property becomes, by operation of the right of survivorship, held by another person or subject to a trust.

13. [105]

    There did not appear to be a dispute that the non-severance, before the deceased’s death, of the joint tenancy, is a matter capable of giving rise to a designation of notional property: Cetojevic v Cetojevic [2006] NSWSC 431. As such, it is necessary to consider certain other sections of the Act.

14. [106]

    Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person, or subject to a trust, or as otherwise provided by the section. Sub-section (3) provides that a relevant property transaction consisting of circumstances described in s 76 (2)(b) or (e) is taken to have been entered into immediately before, and to take effect on, the person’s death, or the occurrence of the other event referred to in those paragraphs.

15. [107]

    Section 78 of the Act provides:

16. [108]

    Section 80(1) provides that the Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person, if the Court is satisfied that the deceased person entered into a relevant property transaction before his, or her, death and that the transaction is a transaction to which the section applies.

17. [109]

    Section 80(2) provides for the section to apply to the following relevant property transactions:

18. [110]

    (In this case, only s 80(1)(c) is relevant.)

19. [111]

    It is not essential that the applicant be able to rely upon the provisions of more than one of the sub-paragraphs identified. It is sufficient if he or she is able to establish the matters in any of them.

20. [112]

    Section 83 of the Act relevantly provides that the Court must not, merely because a relevant property transaction has been entered into, make an order under s 80, unless the Court is satisfied that the relevant property transaction, or the holding of property resulting from the relevant property transaction, directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death).

21. [113]

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

22. [114]

    The Court’s power to make a notional estate order is also circumscribed by other sections. Section 87 provides:

23. [115]

    In John v John [2010] NSWSC 937, Ward J (as her Honour then was), at [118] - [120], wrote:

24. [116]

    In reference to s 87(a) of the Act, Basten JA in Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4, at [125], wrote:

25. [117]

    I have no doubt that the Defendant is the person whose “reasonable expectations” should be considered since he is the widower of the deceased, and in the events that happened, the person who has come to hold all of the jointly held property by survivorship.

26. [118]

    The “substantial justice and merits” referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep).

27. [119]

    The position of all parties should be considered in respect of s 87(b) and (c).

28. [120]

    Section 89(1) of the Act, relevantly, provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.

Some Additional Principles

1. [121]

   There are some other general principles that should be identified, for the benefit of the parties.

2. [122]

   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.

3. [123]

   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]:

4. [124]

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

5. [125]

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

6. [126]

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

7. [127]

   In Vigolo v Bostin, Gleeson CJ, at [10], 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:

8. [128]

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

9. [129]

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

10. [130]

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

11. [131]

    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 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

12. [132]

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

13. [133]

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

14. [134]

    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] (Windeyer J). 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] (White J).

15. [135]

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

16. [136]

    I set out a very similar statement of the principles in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], in relation to a claim by a child. Those principles were referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), relatively recently, in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [62] (Sackville AJA, with whom Macfarlan and Ward JJA agreed).

17. [137]

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

18. [138]

    Even though not an applicant for provision, the Defendant does not have to prove an entitlement to the provision made for him in the deceased’s Will, or otherwise justify such provision.

19. [139]

    The following principles are relevant to the competing claim of the spouse of the deceased. Of course, most often, these principles have been stated in the context of an applicant who is a widow, rather than in a case where the widower is the party who is defending the claim for a family provision order made by an adult child of the deceased. (In Samsley v Barnes [1990] NSWCA 161, Kirby P noted that there was no different approach to widowers than to widows. In Re Bourke (dec’d) and the TFM Act [1968] 2 NSWLR 453, at 455, Street J considered that there was a high moral duty owed to a surviving husband.) I am satisfied that the principles should be taken into account in this case.

20. [140]

    I should mention that I referred to most of these principles in Camernik v Reholc [2012] NSWSC 1537, the correctness of which principles was not doubted by the Court of Appeal, most recently, in Smith v Johnson, at [62].

Qualifications on “Principles”

1. [141]

   As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440; [1980] HCA 14, Stephen J wrote:

2. [142]

   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” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. They may give some assistance and provide some guidance.

3. [143]

   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, fetter the Court’s discretionary power.

4. [144]

   It is necessary for the Court, in each case, after having 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 at [131]:

5. [145]

   The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox at [18]-[20] and at [66]-[67] (Basten, Barrett and Gleeson JJA); and in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84] – [85] (Ward JA, with whom Meagher and Emmett JJA agreed). They must be remembered.

Can an Order be made for provision which is to be paid in the future?

1. [146]

   Somewhat surprisingly, bearing in mind what I understood to be the Plaintiff’s submission, the Defendant was asked by counsel whether he was aware that “these proceedings by the Plaintiff have never been commenced with the intention of removing you from your home” to which the Plaintiff responded that he had not been so informed: T30.48 – T31.12.

2. [147]

   The written submissions by counsel for the Plaintiff had included:

3. [148]

   Of course, the only ways in which a lump sum could be paid to the Plaintiff would be from proceeds of sale, or if the Defendant obtained finance to enable such a lump sum payment to be made. However, precisely how the Defendant would be able to obtain finance was not the subject of any evidence. For example, there was no evidence served on the Defendant going to the issue of obtaining what was described as a “reverse mortgage”. After the reading of the affidavits, I rejected the tender of a document regarding the availability, and cost, of a reverse mortgage, because I considered that it was unfair to the Defendant to have to deal with it at that late stage of the hearing. Merely pointing to the opportunity to obtain a reverse mortgage, without any evidence of the Defendant’s ability to do so, does not assist the Court in this regard.

4. [149]

   In any event, the Defendant himself when asked, in cross-examination, whether he had sought any finance to enable provision to be made for the Plaintiff, he said he had not, and that he did not think that he should have the concern of having to pay substantial interest on funds borrowed to enable a payment to be made to the Plaintiff.

5. [150]

   In relation to the second alternative, reliance was placed on Stone v Stone [2016] NSWSC 605, in which case the plaintiff was a child of the deceased. The estate of the deceased included a half interest as tenant-in-common with the Defendant in their home unit at Vaucluse. The Defendant was the 87-year-old widow of a 37-year marriage (total 44 year relationship). Her contributions to the deceased’s estate and welfare – both financially and as a spouse and homemaker were found to have considerably exceeded those of any other person in the deceased’s life.

6. [151]

   The reason why the issue of the deceased’s interest being designated as notional estate arose was because prior to the commencement of the proceedings (about six weeks after the expiry of the twelve month limitation period but 11 days before the filing of the plaintiff’s Summons), the interest in the Vaucluse property had been transmitted to the defendant as beneficiary. (Brereton J was somewhat critical of the defendant’s conduct in transmitting the property when she knew of the Plaintiff’s claim.)

7. [152]

   Whilst his Honour considered that the deceased’s primary testamentary obligation was to the defendant, which obligation was supported by her age, the length of the relationship and marriage, and the defendant's need for secure accommodation and financial stability in the future, his Honour stated that the question was whether in the circumstances of this case – in particular, the deceased’s disregard of his parental obligations during childhood, and his failure to make any provision for the plaintiff at any stage – the deceased could discharge his obligations to the defendant consistently with making some provision for the plaintiff.

8. [153]

   At [64] – [65], Brereton J wrote:

9. [154]

   His Honour concluded, at [66]:

10. [155]

    Of course, in the present case, the deceased had no estate. She had no interest in the Ermington property upon her death. Other than by severing the joint tenancy, which she did not do, the deceased could not ensure that provision was made for the Plaintiff. This is not a case where the deceased had an interest as a tenant-in-common in the real estate at the time of her death. Furthermore, the deceased, herself, recognised, in the course of making a number of Wills before her last one, that the whole of her estate should pass to the Defendant.

11. [156]

    Even though, as a result of Brereton J’s orders, the plaintiff received provision as it were, in the future, following the defendant’s death, I do not find the reasons persuasive in determining the facts of the present case. To my mind, Stone v Stone is distinguishable and does not assist the Plaintiff in the present case.

Additional Facts

1. [157]

   I next 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. [158]

   The Plaintiff is a child of the deceased. He described an emotionally troubled adolescence and young adult life occurring against a background of growing up in a household marred by domestic violence and being physically abused by his alcoholic father. He described both his parents as rejecting him, and, as a teenager, being evicted from home and being forced to live on the streets.

2. [159]

   The Plaintiff maintained that his father was violent towards him and the deceased. The Plaintiff’s father repeatedly beat the Plaintiff, in front of the deceased, and he also assaulted the deceased in front of the Plaintiff. After the Plaintiff’s parents divorced, the Plaintiff was required to live with his father who continued to beat him badly and often. The Plaintiff then went to live on the streets.

3. [160]

   The Plaintiff lived with the deceased and the Defendant for a short period in about 1992, after the deceased and Defendant married. There was a dispute about the length of time that he did so, the Plaintiff saying that it was for several months, whilst the Defendant says that it was only for a few weeks. Whatever its duration, (and I tend to think that it was for no more than a few weeks), he was not given a key to the Ermington property and was required to enter and exit the residence through his bedroom window, the door to the room being locked in order to prevent him from gaining access to other parts of the property.

4. [161]

   Whilst he stayed at the Ermington property, he did not eat with the deceased and the Defendant, did not socialise with them, watch television with them, or otherwise converse together, “other than passing comments or what was necessary”.

5. [162]

   The Plaintiff accepted that he was asked to leave by both the deceased and the Defendant. Indeed, the Defendant gave evidence that it was the deceased who “straightaway found him a Housing Commission place”: T26.47 – T26.49.

6. [163]

   The Plaintiff describes his relationship with the deceased as a close relationship. I do not accept that it was as close as he maintained.

7. [164]

   The deceased visited him at his public housing unit, occasionally, and the Plaintiff visited the deceased at the Ermington property. I do not accept that the Plaintiff visited the deceased at the Ermington property about once a week, usually after he attended church on a Sunday. I tend to the view that it was less often, possibly about three or four times a year. I accept that during the visits, the deceased cooked a meal for the Plaintiff, sometimes gave him food when he left, and, sometimes, small amounts of money.

8. [165]

   There is evidence that in 2012, the deceased had an AVO against the Plaintiff. The Defendant says that the deceased often told the Plaintiff not to come over to the Ermington property.

(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. [166]

   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. [167]

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

3. [168]

   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. [169]

   Leaving aside any obligation, or responsibility, arising as a result of the 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. [170]

   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] (Rodney Hansen J); (2003) 22 FRNZ 1035; 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. [171]

   It should also be remembered that “[a]lthough the relationship of parent and child is important and carries with it a[n]… obligation reflected in the … Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives”: Vincent v Lewis [2006] NZFLR 812, at [81] (Randerson J). The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no “presumptive testamentary entitlement of an offspring”: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 at [73] (Basten, Macfarlan and Ward JJA).

7. [172]

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

8. [173]

   I have earlier referred to the obligation or responsibility owed by the deceased to her husband, the Defendant.

(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. [174]

   The Act does not mandate separate approaches depending upon the nature and extent of the deceased’s estate. Without deducting the costs of the proceedings, the estate is of a modest value (about $670,000). It would be reduced, by the incidence of costs if a costs order were to be made. However, as stated earlier, the size of the estate is but one factor that may be taken into account in determining whether to make a family provision order and the nature of any such order.

(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. [175]

   The Plaintiff resides in public housing, paying rent of about $218 per fortnight. He appears to have done so since about 1992. There is no evidence that his accommodation needs are not being met by the accommodation in which he lives.

2. [176]

   His assets are household effects ($5,000); cash savings ($1,000) and moneys in a bank account ($25). He has no liabilities. His sole income is the Disability Support Pension, including an Energy Supplement and a Pension Supplement, of about $888 per fortnight. The Plaintiff lives a modest life on the pension.

3. [177]

   The Plaintiff has been unemployed since about 1991. There is no indication that he will be able to undertake employment given his chronic condition, to which I shall refer. I am satisfied that he has an extremely limited earning capacity.

4. [178]

   Ms Lisa Battersby, an Occupational Therapist, prepared a report dated 15 March 2017 in which she recommended that “to optimise his level of function and achieve effective management of his mental and physical health” he requires:

5. [179]

   In cross-examination, Ms Battersby agreed that she had “made a list of the things that you think are necessary for Mr Anderson’s continued welfare and they were done, I take it, without reference to how those costs would be funded”: T47.09 – T47.12. She also agreed that her annualised costings came to $51,260 and that it was “an amount which you say should be required for Mr Anderson to have treatment in an ideal world”, which had been costed “at a corporate rate … so doesn’t consider rebates that might be from Medicare or private health and the like” and some of which “could very well be provided by the public sector”: T47.38 – T47.49.

6. [180]

   Ms Battersby was unable to indicate what services would currently be available to fund the services she stated the Plaintiff would require if he did not receive any provision out of the notional estate of the deceased.

7. [181]

   The Plaintiff seeks provision in the form of a lump sum of $200,000 or alternatively an interest in one-third of the deceased’s notional one half interest in the Ermington property. It is submitted that such provision would be adequate and proper to assist in meeting his needs which include a fund to protect against contingencies and/or assist in retirement; a fund to purchase the equipment identified by Ms Battersby (about $7,000), a fund to assist his need for future medical treatments, including a private psychiatrist, a private clinical psychologist and private case management; a fund for dental works ($7,494 for stage 1 and $14,834 for stage two; $22,328); a fund for a private health fund estimated ($301 per month, estimated, assuming he lives for say 35 years, to be $126,630); and a fund to enable him to consult with a pain specialist for chronic back pain.

8. [182]

   In his evidence, the Plaintiff acknowledges having received, in or about May 2015, following his father’s death, a lump sum of $41,265 out of his father’s estate. He stated that he had spent this inheritance in “making my home unit something I can be proud of, like my mother wanted”. He stated that he purchased furniture, a fridge, pots and pans, cutlery, a stereo system, a TV, wine and whiskey; three trips to Queensland, a watch and “other life expenses”. He does not appear to have spent any of the inheritance on the items for which he seeks provision out of the deceased’s notional estate.

9. [183]

   The Plaintiff accepts that the costs of these alleged “needs” exceed an amount which could be ordered in light of the value of the notional estate. These needs, it was submitted, are relevant when considering the quantum of any provision to be ordered, and are to be balanced against the competing claim of the Defendant.

10. [184]

    I do not accept that these are “needs” of the Plaintiff, particularly since his medical treatment is currently being covered, at least in part, by the public health system. The desire of the Plaintiff “is to receive funds sufficient to assist in covering costs of private practitioners where an ongoing relationship and continuity can be assured, in the hope that this will improve the Plaintiff’s condition”.

11. [185]

    The Defendant's only asset of significant value is the Ermington property. He also has a car ($10,000), shares in IAG ($3,000), an amount in bank ($100) and household and personal effects ($5,000). He has no liabilities other than the costs of the proceedings.

12. [186]

    The Defendant was born in November 1945 and will be 72 later this year. He is an old age pensioner, with an income of $808 per fortnight, plus a small amount by way of dividends on shares. He has lived in the Ermington property for about 45 years. He made the major contribution to the acquisition of the Ermington property which was owned by him and his former wife well before the deceased and the Defendant were married.

13. [187]

    The result of any order for provision for the Plaintiff would require the sale of the Ermington property, or, if it is not sold, at least a charge being imposed on it, if the submissions of the Plaintiff were to be accepted.

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

1. [188]

   The Plaintiff does not cohabit with another person.

(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. [189]

   The medical evidence, which was not the subject of any real dispute, reveals that the Plaintiff:

2. [190]

   The Defendant suffers from ill health. His medical problems include cirrhosis of the liver; inflammation of his pancreas; an enlarged prostate; emphysema; diabetes; gallstones and kidney stones; arthritis of both hands and legs; asthma; tinnitus; and dental problems.

3. [191]

   He has not worked for about 24 years and I accept his evidence that he will not be able to work in the future.

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

1. [192]

   The Plaintiff is 45 years of age.

(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. [193]

   The Plaintiff asserts that he assisted the deceased in renovating the Ermington property. However, the Defendant stated, and I accept, that the Plaintiff was paid for any work that he was asked to do. I also accept that any work that he did was fairly minimal. After the deceased was diagnosed with cancer, the Plaintiff took the deceased fruits, like raspberries, strawberries and mangoes. He does not assert any other contribution. I am satisfied that he did not make any substantial contribution to the welfare of the deceased.

2. [194]

   The Defendant, on the other hand, provided great assistance to her (to which I shall refer).

(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. [195]

   The Plaintiff says that the deceased made no contribution apart from small amounts of money, when he was living in “social housing” and money to help furnish his first unit.

2. [196]

   However, the Defendant gave evidence that about 3 to 4 weeks prior to her death, the Plaintiff said to the deceased that he wanted “the big vase” when she died. She agreed, but the next day the Plaintiff came to the Ermington property in a taxi, without prior notice and collected the vase (which is a about 5 foot high) and left in the same taxi. The value of the vase is not disclosed in the evidence.

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

1. [197]

   The statutory language permits the Court to take into account the deceased’s expression of testamentary intentions, even though not incorporated in a properly executed Will.

2. [198]

   I have earlier referred to the various Wills and the oral conversations said to have taken place involving 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. [199]

   The Plaintiff accepts that he was not being maintained either wholly or partly by the deceased before her death other than when he was a child and lived with his parents.

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

1. [200]

   Apart from the Commonwealth government’s responsibility to continue to provide him with a disability pension, there is no other person who is liable to support the Plaintiff.

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

1. [201]

   I am satisfied that there is nothing in the character and conduct of the Plaintiff that is otherwise relevant.

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

1. [202]

   The Defendant was a loving and dutiful husband to the deceased. He cared for the deceased during her 2.5 to 3 years of suffering with cancer. He always took her to her medical appointments. She did not wish to die in hospital and he ensured that she remained at home.

2. [203]

   The Defendant says that he wishes to remain living in the Ermington property and that he “carr[ies] the memory of [the deceased] in the home”. He does not wish to move into a home unit or smaller accommodation as “confined spaces make me feel very anxious”. In addition, there is a workshop in the Ermington property where he likes working “doing various little household projects, including metal work”. He would be “very distressed” if he was unable to continue doing that”.

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

1. [204]

   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. [205]

   There is no other matter that I consider relevant.

2. [206]

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

3. [207]

   As earlier stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act. There is also no dispute that the proceedings were commenced within the time prescribed by the Act.

4. [208]

   Judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for the Plaintiff’s proper maintenance or advancement in life has not been made by the Will of the deceased, in relation to the estate and notional estate of the deceased. But that is only one, among a range, of factors that needs to be taken into account. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant, and the claim of each on the bounty of the deceased, and the size of the estate and notional estate, are very relevant factors in determining the answer to the question whether the Court is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff.

5. [209]

   Such an assessment is necessary because of the relation between adequacy and propriety. 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.

6. [210]

   Whilst I tend to think that the Plaintiff exaggerated his contact with the deceased during the last years of her life, I am satisfied that the deceased loved him as evidenced by her continued, albeit occasional, visits to his home, and the fact that he, with his siblings were named, in different percentages, the substituted beneficiaries, in all of the deceased’s Wills (other than the 2006 Will, in which the Defendant was to receive a life interest) and in which they were remainder beneficiaries.

7. [211]

   I also accept, as submitted by his counsel, that the Plaintiff is in straitened financial circumstances. As submitted, also, he does not have any capital sum for exigencies of life. However, he is secure in his accommodation (in which he has lived for 9 years and which he has improved by using his inheritance to make it more comfortable) and his income, whilst modest, will continue into the future and is sufficient to meet his expenditure.

8. [212]

   However, the same can be said of the Defendant. His only asset is the Ermington property, in which he currently lives, wishes to continue to live, and in which he has lived for over four decades. He, too, only has a modest income from the pension (and a small amount from dividends), which is sufficient to meet his modest expenditure. He, also, has no fund for exigencies of life.

9. [213]

   It is to be noted that the Defendant’s and the deceased’s marriage was not of short duration. His presence in the deceased’s life, including his role as her carer whilst she was very sick (to which evidence there was no challenge) is another significant matter.

10. [214]

    Furthermore, by transferring an interest in the Ermington property to the deceased, and by using the consideration received for joint expenditure, the Defendant made a substantial contribution to the property of the deceased. Indeed, just before her death, she had virtually no other property. Finally, from the date of the transfer in 1993, the Ermington property had been held by the Defendant and the deceased as joint tenants.

11. [215]

    Furthermore, the claim of a child, in some cases, may well have to be relegated to a lower order of priority where there is another competing claim, such as that of a spouse, and where the estate is of insufficient value to meet the claims of both the spouse and the child, or where the only property that may be designated as notional estate is the matrimonial home of the Defendant and the deceased.

12. [216]

    All of these considerations lead me to be satisfied that there was not a failure, on the part of the deceased, to make adequate provision for the proper maintenance and advancement in life of the Plaintiff. Accordingly, the Plaintiff fails at the jurisdictional stage. It follows that the Court does not have jurisdiction to make an order for provision out of the notional estate of the deceased for the Plaintiff. That finding concludes the matter and must lead to the dismissal of the Plaintiff's proceedings.

13. [217]

    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 the Plaintiff, having regard to the facts known to the Court at the time the order is made.

14. [218]

    Similar considerations, as well as those that I summarise below, would, at this stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made. If there were an actual estate, or if there were sufficient funds available, otherwise than from the sale of the Ermington property, the Plaintiff might have obtained the benefit of an order for provision in his favour. However, the Court should not interfere with the Defendant's security of accommodation in order to make provision for the Plaintiff.

15. [219]

    On this aspect also, I cannot forget the testamentary intentions of the deceased as revealed by a number of Wills that she made in the two years before her death.

16. [220]

    Nor do I think that an order for a lump sum, which lump sum is charged on the Ermington property, should be made. Whilst the Defendant is not in good health, there is no evidence that his medical condition will result in his imminent death. It is only proper that, at his age, and stage of life, he should be able to enjoy his remaining years without any financial concerns, or worries, which might be imposed upon him by making an order for provision for the Plaintiff which affects, or might affect, his enjoyment of the Ermington property by having a charge placed upon it.

17. [221]

    Whilst I appreciate that the claim of a spouse does not necessarily take precedence over other claims, the deceased and the Defendant were married for over 20 years. What joint property they had, was obtained principally from the Defendant and the Ermington property was a property owned by him many years before his marriage to the deceased. Also, as stated, the Ermington property has been the Defendant's home for over 40 years and he wishes to remain living there. He made a significant contribution, after his marriage to the deceased, to improving that property.

18. [222]

    There is nothing to suggest that he will have to move from the Ermington property in the immediate future. His desire to remain living in the Ermington property, unencumbered by any charge, is, in all the circumstances, a reasonable one.

19. [223]

    In the circumstances, it is not necessary to consider the notional estate provisions of the Act further, since the court must not make a notional estate order unless it is satisfied that the deceased person's estate is insufficient for the making of a family provision order that should be made. Having regard to all of the circumstances of the case, since I do not consider that any family provision order should be made, I must not make a notional estate order since the jurisdiction to do so has not been enlivened.

20. [224]

    Again, in case I am in error, I should state, that in any event, I would not make a notional estate order. This conclusion is based upon a consideration of the importance of not interfering with the Defendant’s reasonable expectations in relation to the Ermington property and the substantial justice and merits involved in making or refusing to make the order.

21. [225]

    In my view, the fact that the Ermington property was owned solely by the Defendant, for many years prior to his marriage to the deceased, and then owned by him and the deceased, as joint tenants, from about the time of their marriage, for over 20 years, is likely to have founded a reasonable expectation in the Defendant that the property so held, would be enjoyed solely and absolutely by him, as the survivor, upon the death of the deceased, who was the other joint tenant. I consider that the reasonable expectation of the Defendant, despite any expectation of the Plaintiff, is an expectation that most members of the community would expect to be fulfilled.

22. [226]

    Any expectation of the deceased, that gave rise to the conversation which she allegedly had with the Plaintiff, was not reasonable since there is no evidence that the deceased did not know of the effect of holding property as joint tenants and because at the time of the alleged conversation she was unwell. In any event, each of the Wills that the deceased made after 2006, make it clear that she regarded her obligation to provide for the Defendant as more important than any obligation that she had to the Plaintiff.

23. [227]

    Furthermore, any expectation held by the Plaintiff, that he would inherit a share of the deceased’s estate was not a reasonable one either, since it was unlikely that the Defendant would accept being forced out of the home in which he had lived for about 45 years to make provision for the Plaintiff.

24. [228]

    Even in the 2006 Will, the deceased gave the Defendant a life interest in the residence in which they lived.

25. [229]

    As stated, I consider that the justice and merits of the case do not warrant the Defendant, at the age of nearly 75 years, being deprived of his absolute interest in the Ermington property, or having that property made subject to a charge in favour of the Plaintiff.

26. [230]

    Nor do the justice and merits considered from the point of view of the Plaintiff justify the making of a notional estate order. It is to be remembered that he made no financial contribution to the acquisition of the Ermington property. Any assistance given in its repair and renovation was minimal, and, if one accepts the evidence of the Defendant, as I do, was paid for.

27. [231]

    Accordingly, I would not have been prepared to make any order designating the deceased's share, or any part of it, in the Ermington property, which is now owned solely by the Defendant, as notional estate. Thus, even if satisfied that an order for provision should be made for the Plaintiff, his claim would fail because, by reference to the matters set out in s 87 of the Act, as a matter of discretion I would have declined to make an order designating the Ermington property as notional estate of the deceased.

28. [232]

    In all the circumstances, I order that the Plaintiff's claim be dismissed.

Costs

1. [233]

   I propose next to deal with the issue of costs. As earlier stated, I have dealt with the relevant principles in Harkness v Harkness (No 2). I shall not repeat what I wrote in that case other than to stress the importance of the following matters:

2. [234]

   In coming to my conclusion about costs, I bear in mind the following matters:

3. [235]

   In all of these circumstances, weighing up all of the matters upon which submissions have been made, together with the features to which I have specifically referred, and with some hesitation, I am of the view that the overall justice of this case, points against the application of the usual rule that costs should follow the event.

Orders

1. [236]

   In all the circumstances, the Court: