Sreckovic v Sreckovic

HIS HONOUR: In these proceedings, the Plaintiff, Ljiljana Sreckovic, who also goes by the name “Lillian”, seeks provision out of the estate and/or notional estate of her mother, Josipa Sreckovic (“the deceased”) pursuant to Chapter 3 of 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 It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.

As in so many cases, nowadays, which proceed to hearing, involving a claim by a mature, adult child, seeking provision, or additional provision, out of the estate of a parent, the major issues revolve, principally, around the character and conduct of the applicant and her, or his, relationship with the deceased, the deceased’s views of those things, as well as the relationship of the deceased with one, or more, of her, or his, other children, as reflected by the last Will that was made.

In the present case, a further issue is whether the Plaintiff’s application should be permitted to be made since it was not commenced within the time permitted by the Act. Although I do not suggest the solicitor for the Plaintiff was the cause of the failure to commence proceedings within time, the case serves as a further reminder that a legal representative acting for an applicant under the Act should ensure that instructions are obtained to, and that they do, file, and serve, the application within the period prescribed by the Act. A significant issue would have been avoided had that occurred.

As in so many other cases, the person seeking to uphold the testamentary wishes of the deceased, is a sibling of the applicant. Often, and regrettably, the cases heard by the Court also involve, as this one does, the somewhat acrimonious relationship of the siblings. Here, the Defendant is Gina Sreckovic, the only other child of the deceased.

Finally, in this case, also, is the unresolved sense of hurt, felt by the Plaintiff, in not appearing to not have been considered an important, positive, part of the overall life of the deceased, and not being recognised for what are said to be her contributions, by way of assistance to, and support of, the deceased, throughout most of the deceased’s life. Whilst an applicant’s feeling of hurt will not be a relevant consideration in the determination of a family provision claim, often it explains, at least partially, a driving motive in the cases that are not resolved other than by contested hearing.

The deceased, who was born in September 1925, died, a widow, on 20 December 2015, aged 90 years. Her only husband, Jezdimir Sreckovic, had predeceased her, having died in October 1996. There were only two children of their marriage, being the Plaintiff, who was born in November 1952, and who is aged almost 66 years, and the Defendant, who was born in June 1959, and who is aged 59 years.

The Plaintiff filed a Summons on 12 May 2017, in which she sought an order that the time for the making of her application be extended to the date of the filing of the Summons, the family provision order, and an order for her costs to be paid out of the deceased’s estate. 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 Defendant is the sole executrix and universal legatee appointed in the Will made on 24 January 2005, by the deceased, and the person to whom this Court granted Probate of the deceased’s Will on 1 April 2016.

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

Section 58(2) provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown, or the parties to the proceedings consent to the application being made out of time. (Relevantly, the Act was recently amended by the Justice Legislation Amendment Act 2018 No 4 (NSW), which was assented to on 21 March 2018. Section 58(2) of the Act commenced, as amended, on 2 July 2018.)

It is not in dispute that the Plaintiff did not commence the proceedings within the time prescribed by the Act. The time for making the claim is calculated from the date of death of the deceased to the date of filing of the Summons in the Court Registry: s 58(3). The Plaintiff’s Summons was filed about 5 months out of time.

As the Defendant does not consent to the time for the making of the application being extended, the Plaintiff must show “sufficient cause” for the Court to “otherwise order”.

It was also agreed by the parties that there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

A family provision order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean 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 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

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

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

Section 79 of the Act permits the Court, on application by an applicant for a family provision order, or on its own motion, to make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

There was evidence that the Defendant lodged a Transmission Application in order to transfer a property in Pagewood, a suburb of Sydney, (“the Pagewood property”), which was registered in the name of the deceased at the date of death, to the Defendant, “as beneficiary under the Will of the deceased registered proprietor”: Ex. D2.

There was no evidence that the Defendant had given notice, in the form approved under s 17 of the Civil Procedure Act 2005 (NSW), of any intention to distribute property in the estate after the expiration of a specified time: s 93(1) of the Act. Counsel for the Defendant acknowledged that the Transmission Application had been lodged less than 6 months after the death of the deceased.

The parties then agreed that there would not need to be a debate whether any part of the distributed property should be designated as notional estate. Counsel had read my decision in Soens v Rathborne [2018] NSWSC 302, at [39] – [48], in which I dealt with alternatives available to the Court in circumstances of a premature distribution of part of the estate. Counsel agreed that the Defendant would satisfy the orders for provision, and costs, if any, made in favour of the Plaintiff. The consequence of their agreement is that it is not necessary to deal with the notional estate sections of the Act in order to determine whether a notional estate order should be made.

Finally, in terms of the proceedings, the Plaintiff had caused to be filed a caveat on the title to the Pagewood property. During the course of the hearing, she agreed to withdraw, or cause to be withdrawn, that caveat within 7 days. The Court noted her agreement to do so: T96.08 – T96.26; T112.46 – T113.30. (There has been no application, since the hearing, to suggest that the agreement was not complied with.)

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

The deceased came to Australia, with her two children, in about June 1969 to join her husband (and their father). He had been living in Sydney, having arrived, in about 1968, from Serbia. Between their arrival and 1979, the family lived together, in different accommodation, in Sydney.

On two occasions, between 1976 and 1978, the Plaintiff had left her parents’ home, for about six to eight months, in total, to move in with a boyfriend. On each occasion, when the relationship ended, she returned to their home.

In about 1979, the deceased and her husband purchased the Pagewood property for about $64,000. The deceased, her husband, and the parties, lived in the Pagewood property thereafter.

In 1987, the Plaintiff moved from the Pagewood property to Canberra. She lived there with a man (she had hoped to marry), until about 1994, when they moved to Brisbane. The Plaintiff had a son, Benjamin Parry, in May 1991. Regrettably, the Plaintiff’s relationship ended and she, again, returned to live in the Pagewood property, with Benjamin, in about December 1997. They remained living there, with the deceased, and the Defendant, until February 2005. She and Benjamin left, then, following receipt of a letter from the deceased’s solicitors, to which I shall refer later in these reasons.

There is an issue, to which it will also be necessary to return, about the relationship of the Plaintiff and the deceased, after January 2005 and the death of the deceased. There is no dispute, however, that the Plaintiff moved back into the Pagewood property, for approximately six months, after the deceased was discharged from Prince of Wales Hospital on 21 October 2014. She moved out again after the deceased went to live in a nursing home in March 2015.

Relevantly, the deceased’s Will provided that:

The Plaintiff disputed some of the matters in Clause 6 and it will be necessary to return to her evidence on this topic.

In the Inventory of Property attached to, and placed with, the Probate document, the property owned solely by the deceased, at the date of her death, was the Pagewood property (E$1,500,000), and cash in bank ($36,000). The total gross value of the deceased’s estate was estimated to be $1,536,000. (I shall omit the reference to cents in the amounts to which I shall refer. This will explain any seeming mathematical errors.)

The Pagewood property is described as a single storey, detached brick veneer residence, with a garage and pergola. It includes three bedrooms and one bathroom. The Defendant, in cross-examination, accepted that it is a “rather large house for one person”: T95.01 – T95.03.

There were no liabilities disclosed in the Inventory of Property. However, in an affidavit sworn on 5 July 2017, the Defendant stated that $8,087 had been paid to her solicitors “to obtain the grant of Probate”; that $1,963 had been paid for the Supreme Court filing fee (for the Probate application); that $136 had been paid for the registration fee for the transmission of the Pagewood property into her name; and $2,730 had been paid to her solicitors in respect of costs and disbursements of these proceedings.

At the commencement of the hearing, the parties agreed that the deceased’s estate has an estimated current gross value of $1,500,000 and that it is made up solely of the Pagewood property. (As will be read, some of the remaining cash has been paid out of the estate on account of the Defendant’s costs of these proceedings.) They also agreed that if the Pagewood property is sold, there will be costs and disbursements of sale, which are estimated to be (no more than) $42,000: T6.33 – T7.41.

Counsel for the Defendant accepted that it was not certain that the sale would be necessary, as the Defendant will attempt to satisfy the orders of the Court, if any orders are made. On the second day of the hearing, the parties agreed that, in the event orders are made, the Defendant should be given 8 weeks to satisfy those orders for provision and costs before the sale of the Pagewood property is ordered: T111.42 – T112.43.

The only eligible persons identified and agreed are the two children of the deceased, namely the parties in these proceedings. Only the Plaintiff has made a claim for a family provision order.

The Plaintiff asserted, in the notice of eligible persons served upon the Defendant that her son, Benjamin, is also an eligible person, but this was disputed by the Defendant. There is no evidence that the notice of the Plaintiff’s application, and of the Court's power to disregard his interests, has been served upon Benjamin. He has not played any part in the proceedings.

Counsel for the Plaintiff informed the Court, without objection, that he had conferred with Benjamin, who is aware of the Plaintiff’s proceedings, and has informed counsel that he does not wish to make a claim for provision out of the deceased’s estate: T6.24 – T6.31.

In the circumstances, the dispute about eligibility does not matter, as I am satisfied that service of any notice upon Benjamin is unnecessary, and I shall disregard his interests as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application: s 61 of the Act. (However, I shall discuss his failure to give evidence, otherwise, in the Plaintiff’s case.)

The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61. She, or he, is entitled to rely, as a chosen object of the deceased’s testamentary bounty, upon the terms of the deceased’s Will. It is only her, or his, situation that needs to be considered as a competing claimant on the bounty of the deceased.

The Defendant raised her financial resources and needs, in the proceedings. She also gave evidence of the reasons why she has a legitimate claim on the bounty of the deceased. She was cross-examined. I shall return to her evidence later in these reasons.

In all the circumstances of this case, I do not propose to disregard the Defendant’s interest as the chosen object of the testamentary bounty of the deceased. I shall refer to her legitimate claim on that bounty.

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

Basten JA wrote in Chan v Chan [2016] NSWCA 222, at [54], that “[I]n considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

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

In an affidavit sworn on 15 August 2018, by Mr A G Hatsatouris, solicitor, the Plaintiff’s costs and disbursements, including a share of the costs of mediation, to the conclusion of a 2 day hearing, were estimated to be $73,104. Mr Hatsatouris did not state, in the affidavit, whether the estimated costs had been calculated on the ordinary, or the indemnity basis. He also did not state whether the Plaintiff had paid any amount on account of the costs and disbursements. (These are matters that should always be included in a solicitor’s affidavit as to costs relied upon at the hearing.)

At the commencement of the hearing, counsel for the Plaintiff, informed the Court, without objection, that the estimate had been calculated on the ordinary basis. Counsel for the Defendant accepted, for the purposes of the calculation of the estate which may be available for distribution, that the estimate should be used in order to determine the value of the estate out of which an order for provision may be made: T4.30 – T4.38.

On the second day of the hearing, the Court was informed, again, from the Bar table, without objection, that the Plaintiff had paid $16,342 on account of those costs and disbursements, with an additional $1,000 then being held the solicitors’ trust account: T113.32 – T113.44.

In an affidavit sworn on 15 August 2018, by Ms P Becker, solicitor, the Defendant’s costs and disbursements, including a share of the costs of mediation, to the conclusion of a 2 day hearing, calculated on the indemnity basis, were estimated to be $86,632. Ms Becker also stated that $34,610 had been paid on account of those costs and disbursements by the Defendant out of the estate of the deceased, and that $7,820, had been paid by the Defendant personally.

It will be for the Defendant to meet, from her other resources, the balance of the costs and disbursements ($44,220) if an order for costs is made unless the Pagewood property is sold.

The parties agreed that, whatever the result of the proceedings, what may be regarded as the usual order for costs should be made. Counsel requested that the Court resolve the issue of how the costs and disbursements of the proceedings should be borne as part of these reasons, as there are no documents that impact upon that issue.

Finally, it was agreed that if the estimate of the costs of each party proves accurate, and if an order for costs to be paid out of the estate is made, a total estimate of $117,324, on account of the costs, will need to be deducted from the estimated value of the estate: T5.39 – T5.50. The amount of $42,000 should also be notionally deducted as the costs and expenses of sale of the Pagewood property.

It follows, and counsel agreed, that the value of the net distributable estate, from which any order for provision could be made, is about $1.34 million: T7.35 - T7.45. It can be seen, therefore, that the estate of the deceased is of reasonable value.

In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which Will had made much more generous provision for the applicant, stated that “the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only Will that matters is the deceased’s last Will.”

Whilst the last sentence quoted is, undoubtedly, correct, so far as the principal questions for determination under the Act are concerned, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also important, particularly if there was a long standing testamentary intention revealed by earlier Wills, and where there has been an incident, or incidents, that have caused a change to those long held testamentary intentions.

An earlier Will of the deceased may also reflect the recognition by the deceased, at the time of the prior Will, of a degree of testamentary duty owed by her, or him, towards the applicant.

Also, as will be read, one of the matters to which the Court may have regard, is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”: s 60(2)(j) of the Act.

The deceased had made a Will on 10 March 1997 (“the 1997 Will”), in which she appointed both of her children to be executors and trustees and left the whole of her estate, upon trust, to sell, call in, and convert the same into money, with power to postpone sale, calling in, and conversion, and after the payment of all debts, funeral, and testamentary expenses, and all death duties and estate duties in respect of her estate, or by reason of her death, she left the balance for “such of my children as should survive me and if more than one, equally between them”. (The 1997 Will was the only prior Will of the deceased that formed part of the evidence in the proceedings.)

Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section “includes any representation of fact whether or not in writing” s 100(1).

Sub-section (5), (6), and (8) of s 100, provide:

Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2:

Apart from Clause 6 of the 2005 Will, the deceased made a statement to a solicitor, Ms Marilyn Rossides, which was typed, and then signed by the deceased on the same day as she made her Will (24 January 2005). Before it was signed, it was read, and translated, to the deceased, by a Serbian speaking interpreter.

Ms Rossides, who swore an affidavit on 29 November 2017, annexed a copy of the statement to her affidavit. Ms Rossides was not cross-examined.

Although it is lengthy, I shall set out the whole of the signed written statement, verbatim:

In addition, in her affidavit, Ms Rossides stated:

I shall not repeat the contents of the letter referred to but it reflects the instructions of the deceased that she wished the Plaintiff and Benjamin to leave the Pagewood property.

There was no dispute that, following receipt of the letter, the Plaintiff and Benjamin did vacate the Pagewood property on 2 February 2005.

In her signed written statement, the deceased appears to have weighed the testamentary claims upon her, in an apparently sensible way and by considering her only two children. It appears to be a case where the deceased did “expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle” or where she “felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate”: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.

While the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

Where the truth of the statement made by the deceased is admitted, or where the facts asserted in the statement are corroborated by other evidence, due weight should be given to the statement.

I have borne in mind, also, that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:

As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd, at 152):

Thus, a statement is made by the deceased does not mean, necessarily, that it 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].

In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that:

His Honour added, at [86]:

In Steinmetz v Shannon, Pembroke J repeated what he had written in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [32] – [33], that:

In this case, it should also be noted that the 2005 Will and the written statements were each made by the deceased at, or immediately after, a particular event that was, obviously, significant in the mind of the deceased. The deceased died 15 years later and there were some intervening events that may also reflect on their overall relationship.

The Plaintiff dealt with the statement made by the deceased in Clause 6 of the Will. She wrote:

It is difficult to accept that the relationship of the Plaintiff and the deceased repaired as quickly as the Plaintiff asserted, particularly when the deceased had viewed its cause as sufficiently significant to involve a solicitor. However, I think it more likely than not that their relationship was volatile and that it was not the same as the deceased’s relationship with the Defendant, which appears, overall, to have been much more stable and calm.

In RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270, Ward JA (with whom Meagher JA agreed), wrote, at [160] – [161], and at [165]:

One would have expected Benjamin to give evidence since he, as well, as the Plaintiff, is specifically referred to in the Will, and in the written, and other, statements, made by the deceased. He was also the person said to have called the police at the time of the incident in 2005, following which the deceased saw the solicitor who was instructed to write to the Plaintiff and Benjamin requesting that they leave the Pagewood property.

There were no reasons given why Benjamin was not called, although, as stated, he had conferred with counsel. Whilst I have borne the failure to call Benjamin as a relevant matter in considering the weight to be placed on the deceased’s statements, I have come to a clear view concerning the conduct of the Plaintiff with the result that no inference is drawn from his failure to give evidence.

In order to place into context the reasons for the Court’s decision, it is, next, convenient to consider the statutory regime and the legal principles that govern the circumstances in which the Court can exercise the discretion under the Act. The legal principles are not in dispute.

Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

As stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words “for the application not having been made within that period” are not included after the words “sufficient cause being shown“.)

If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application. Clearly, permitting the court to “otherwise order” was included in the legislation to avoid the section becoming an instrument of injustice.

Yet, “[T]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380, at [98]. (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.)

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

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

In Charles v Charles (Supreme Court (NSW), Young J, 25 March 1988, unrep) his Honour, at 7, wrote that “… there must be something more than mere incompetence or inattention by a solicitor before time can be extended under this Act”.

In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) observed, at [55], that Young J's statement was a rule of thumb which could not confine the statutory discretion.

In Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437, White J (as his Honour then was) said of Young J's statement, at [24]:

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

In Stone v Stone [2016] NSWSC 605 at [36], Brereton J (as his Honour then was) made the following observations about the operation of s 58(2) of the Act:

However, a slightly different view to that expressed in Stone v Stone seems to have been expressed in Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45, at [24], in the Court of Appeal, in which Meagher JA wrote that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

Although in another context, the High Court had written in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475; [1957] HCA 27:

With great respect, I respectfully agree that the meaning of “sufficient cause” is sufficient, in all the circumstances, to justify the granting of an extension of time.

Unlike the legislation in some other States, in New South Wales, the application for provision under the Act and an application for an extension of time within which to make an application are not discrete and separate applications. Thus, to refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant.

As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 at [31]:

Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].

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

Gillard J in Valbe v Irlicht [2001] VSC 53, had written, at [31]:

I repeated part of this statement in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]:

Thus, whilst it is clear that the burden imposed on the Plaintiff in regard to the issue of extending time is no triviality and that she must make out the case for the Court to exercise its statutory discretion to “otherwise order”, it seems to me that if there is a relatively short period of delay, no unconscionable conduct, and no question of prejudice if the indulgence is granted, an inadequate explanation for not bringing the proceedings within time should not stand in the way of a just result.

In Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, Basten JA, at [89], stated that the factor of prejudice:

Because I am satisfied, on a preliminary consideration, that the Plaintiff does have a reasonable claim for a family provision order, I do not propose to dismiss her application without a full consideration of the circumstances of the claim.

It is only if eligibility is found, and if sufficient cause for an order extending the time for the making of the Plaintiff’s application is shown, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made. 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”.

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

As I wrote in Dugac v Dugac [2012] NSWSC 192, at [29]:

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

This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, or him, out of the deceased’s estate, should be the only, or even, the dominant consideration. An applicant’s financial needs and the financial needs of other persons with claims on the deceased’s testamentary bounty are important, and often highly important, considerations. But, as Basten JA wrote in Chan v Chan, at [22]:

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

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

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

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

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

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012], at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, “may” does not mean “must”.

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

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

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

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

The relationship of the Plaintiff, and others, particularly the Defendant, with the deceased will be an important consideration. 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 refer to the Court’s power to refuse to make an order in favour of any person whose “character and conduct” is such as to disentitle him or her to the benefit of such an order: see, s 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) the predecessor of the former Act.)

In Re the Will of Gilbert (1946) 46 SR (NSW) 318, at 321:

In the same case, Maxwell J, at 326, wrote:

In Delacour v Waddington (1953) 89 CLR 117, at 127; [1953] HCA 64, the High Court said:

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

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

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

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).

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.

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

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.

Long before, in Handley v Walker (1903) 22 NZLR 932, at 933, Stout CJ had written “…the statute is not an Act to modify or set aside unjust wills, but is meant only to provide for maintenance of persons whom the testator was bound to maintain”. (In that case, his Honour considered that “there are very special features in this case”.)

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

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

Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

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

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

There can be no doubt, therefore, that it is a governing consideration that the deceased's intentions should be interfered with as little as possible consistent with the due regard of the object of the Act.

In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].

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

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

A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [21], and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [62].

The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

As I have mentioned, the other claimant on the bounty of the deceased, the Defendant, who is the only residuary beneficiary of the deceased’s estate, does not have to prove an entitlement to the provision made for her, in the deceased’s Will, or otherwise justify such provision. In this case, the deceased set out her reasons for making the provision that she did and pointed to the Defendant’s contributions to the deceased’s welfare.

On the topic of estrangement, in Underwood v Gaudron [2014] NSWSC 1055, I set out the principles at [230] – [233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.

That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53 at [21], by Holt AsJ, with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190].

I repeat what I wrote in that case:

Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal at [27].

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

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

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

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18] – [20], and by Barrett JA, at [66] – [67]; and, also, in Burke v Burke, at [84] – [85]. They must be remembered.

The statements may provide useful assistance in considering the statutory provisions the terms of which must remain firmly in mind. As Barrett JA said in Chapple v Wilcox, at [67], the guidelines “provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’” in family provision cases: also, see, Yee v Yee [2017] NSWCA 305, per McColl JA (with whom Gleeson and Simpson JJA agreed), at [172].

Until the hearing, the Plaintiff gave no evidence of the reasons why she had not commenced proceedings within the time prescribed by the Act in any of her three affidavits. On the first day of the hearing, counsel for the Plaintiff sought to file in Court, without objection, an affidavit sworn by the Plaintiff on 13 September 2018 (one working day before the hearing). The affidavit had annexed to it, a copy of a number of letters passing between the legal representatives of the parties, and the last 3 paragraphs state:

In an earlier affidavit, the Plaintiff stated that, at about the time of the deceased’s death, the Defendant had told her that there was no Will. However, the Plaintiff had retained solicitors to act on her behalf within a short time after the death of the deceased. Her current solicitors wrote a letter dated 3 February 2016, informing the Defendant’s solicitors, that they had received instructions from the Plaintiff to ask for a copy of “the Will of the deceased; copies of any previous Wills held by your office on behalf of the deceased; [and] an outline of the estate assets and liabilities as currently understood”.

The Plaintiff’s solicitors were provided with a copy of the grant of Probate, the Will, and the Inventory of Property, under cover of a letter dated 8 April 2016. (This, of course, was only about 4 months after the death of the deceased.) Accordingly, upon being provided with a copy of the deceased’s Will, the Plaintiff would have known that the deceased had made no provision for her in that Will, Probate of which had been granted.

On 9 May 2016, the Plaintiff’s solicitors wrote again to the Defendant’s solicitors stating that:

There was then correspondence passing between the solicitors, the substance of which was that the Defendant’s solicitors sought particulars of the Plaintiff’s claim, which she did not provide, other than to say in a letter dated 7 October 2016:

Importantly, the Plaintiff gave no evidence about:

There are two matters about which the Plaintiff did give evidence in her affidavit of 13 September 2018, namely (a) ignorance of her rights, or of the time, within which, to bring a claim throughout the whole of the period permitted by the Act for making the claim; and, (b) the negotiations to compromise the prospective proceedings, between the parties, or their legal representatives, that caused her not to bring the proceedings within time. These matters require consideration because of her oral evidence.

Having heard the Plaintiff’s evidence, I am not satisfied that she was not informed of the requirement to bring proceedings within 12 months of the date of the deceased’s death. I refer to the following evidence of the Plaintiff at T33.20 – T33.32:

At T34.41 – T34.46, she repeated:

However, when the Court raised the matter with her, at T39.23 – T39.47, her evidence was:

Importantly, in relation to this matter, the Plaintiff’s solicitor, Mr Hatsatouris, who had sworn two costs affidavits, the latter of which was read in the proceedings, and who was present in Court throughout the whole of the proceedings, did not give any evidence on the topic, even though he was the solicitor under whose hand the letter dated 3 February 2016 was written on behalf of the Plaintiff, and the solicitor to whom the letter dated 8 April 2016, from the Defendant’s solicitor, was addressed.

It seems implausible, in the extreme, to conclude that the Plaintiff did not seek, or was not given, any advice as to whether she had rights, and, if so, what those rights were, or whether they were required to be exercised within a specified period of time. Indeed, the claim that was ultimately commenced, was threatened during the period prescribed by the Act for making a claim.

In relation to the negotiations, there is evidence of one offer made by the Plaintiff in a letter dated 7 October 2016, although it may have been referred to again subsequently. The offer was not specifically rejected but was responded to by the Defendant’s solicitors stating, in a letter of the same date, that “we are not in a position to obtain instructions to resolve the matter”.

Subsequently, in a letter dated 15 November 2016, the Defendant’s solicitors added:

In any event, it should have been fairly obvious to those advising the Plaintiff that the offer made was unlikely to have been accepted since, if accepted, it would have required the Defendant to sell the home in which she had lived for the whole of her life.

It is fair to say that the period of delay, namely 5 months, is not that long. The Defendant gave no evidence of actual prejudice. Nor was any submission made in relation to presumptive prejudice. Nor did the Defendant give any evidence of unconscionable conduct on the part of the Plaintiff in not bringing the proceedings within time: T19.34 – T19.47. Had there been such evidence, it would be difficult to conclude that an “otherwise order” should be made.

I shall return to the question of the merits of the Plaintiff’s case later in these reasons.

The principal issue, on the topic of sufficient cause, relates to the Plaintiff’s failure to provide any real explanation for not having commenced the proceedings within time. Counsel for the Plaintiff, on this topic, simply submitted, in writing at [8] – [9]:

Counsel for the Defendant submitted in writing at [35] – [36]:

I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

The Plaintiff is one of the two children of the deceased. She gave evidence of what may be described as a, generally, good relationship with the deceased, and other members of the family, otherwise. The Plaintiff stated that her mother and father had during their joint lives, chosen to run the household “the traditional Yugoslavian way, which for parents meant that children were expected to be obedient and to comply”.

(As mentioned earlier, the Plaintiff lived with the deceased, her father and the Defendant for much of her early adult life, from about June 1969 to 1987. I also mentioned, in this time, she left the family home for only about six to eight months, in total, to be with a boyfriend.)

Then, between when she moved back into the Pagewood property, in 1997, and early 2005, the relationship between the deceased, the Plaintiff and Benjamin, started to deteriorate.

The Plaintiff worked at various places from when she arrived to Australia. She worked as a “Process Worker” at Telephones and Cables Pty Ltd, then, after various promotions, she was retrenched and moved to work for Nixdorf Computer Pty Ltd in about 1977. During the period that she lived at the Pagewood property, between 1969 to 1987, the Plaintiff contributed to the household by giving the entire of her “pay packet to mum and dad, no questions asked. My father would give back to me an [estimated] allowance of $15 per week for fares to and from work and sundries”. However, as time went on, she would retain funds from her pay in order to purchase personal items.

(The Plaintiff gave evidence, in her affidavit sworn 29 September 2017, that there was a period of time where she occasionally worked weekends and weeknights at “milk bars in Enmore and Newtown”. She received money from this employment in cash, which she did not provide to her parents, but rather kept for her own expenses.)

An affidavit sworn 14 March 2018, of Mr Zlatko Blajer, accredited translator, translated from Serbian an affidavit of Mr Zivorad Marjanovic. Mr Marjanovic was a friend of the deceased and a good friend of the Plaintiff’s father. He wrote he was aware that the Plaintiff “started working full time almost as soon as she moved to Australia in 1969”. He also gave evidence that he saw the Plaintiff give her pay packet to her father on several occasions, and that she said, on many occasions, words to the effect of, “I give my entire pay packet to my father. He gives me money back for buses and sandwiches”. He was not cross-examined and there is no reason, otherwise, not accept his evidence in so far as it corroborates the evidence of the Plaintiff.

The deceased and the Plaintiff’s father purchased the Pagewood Property in 1979, which they purchased by using the proceeds of sale from the Enmore property, as well as borrowing an unknown, but likely small, amount from the Commonwealth Bank. The Plaintiff gave evidence, in her affidavit in chief, that:

Although the Defendant accepted that her father required both children to contribute to the household expenses, when working, she asserted that she did not believe her father was “strict with money regarding allowances as [the Plaintiff] states”. She also asserted that such contributions were used for general household expenses, and, were “not saved or applied to specific things”.

I consider it highly unlikely that the Plaintiff would have contributed such a large amount in that period, bearing in mind her age during this time. There was no evidence advanced on the Plaintiff’s level of earnings in that period. Nor was there evidence that suggested how the estimate was calculated. When the suggestion was made to counsel that the amount was speculation on the Plaintiff’s part, he submitted, at T144.43 – T144.44:

Whilst I am prepared to accept there was at least, some, contribution made by the Plaintiff, determining the specific amount of that contribution is merely speculation. I also consider it relevant that the Plaintiff received a benefit for her contribution, as she lived in the Pagewood property.

Following the death of the Plaintiff’s father in 1996, the Plaintiff stated that the deceased would contact her, by telephone, stating words to the following effect:

When the Plaintiff and Benjamin moved back in with the deceased and the Defendant, in about December 1997, she gave evidence that she “commenced paying 50% of all the bills and doing housework, as well as continuing full-time work and caring for my child”. Such house work included, among other things, gardening, mowing the lawn and preparing dinner.

However, the Defendant gave evidence that:

The Plaintiff denied this, stating, in her affidavit sworn 22 February 2018 in reply:

The Plaintiff also gave evidence that whilst her son was young, he attended pre-school and after-school care at Pagewood Public School. He also attended vacation care at Eastlakes during the school holidays. She asserted that neither the deceased, nor the Defendant, offered to take care of her son during these times.

In response, the Defendant gave evidence that “the deceased did her best to assist with Ben’s care”. She also recalled the deceased on occasion would pick him up after school, which would cause the deceased stress as he would “run ahead”. Furthermore, as the Defendant worked full time, she was not in a position to care for the Plaintiff’s child.

There is no dispute that in January 2005, the deceased and the Plaintiff had a falling out, which as mentioned, was the subject of some dispute in this litigation. The circumstances surrounding the dispute are not the subject of agreement and, ultimately, it probably does not matter. I tend to the view that the Defendant’s evidence that “tension [between the Plaintiff and the deceased] had been building over time” is accurate.

In any event, as part of the incident, the Police were called. The Plaintiff said that it was Benjamin who called the Police. As stated already, Benjamin did not give evidence about what prompted him to do so.

After this incident, the Plaintiff returned the car and the mobile phone, which (previously) had belonged to her father and that was registered in the deceased’s name.

The Plaintiff gave evidence that she did not see, or speak to, the deceased for about 18 months. However, after unexpected interactions, in various shopping centres, the pair gradually reconciled their relationship.

The Plaintiff gave evidence that, in 2009, she and the deceased were “speaking on the phone almost every day” and that they had recommenced usual family relationships, which, included, events such as lunches, dinners, birthdays and holiday occasions. She also stated that she would visit the deceased on the way to work at least 2 to 3 times per week and every weekend until the deceased had a stroke, where, as will be read, the Plaintiff took various forms of leave, including, extended leave, to care for the deceased.

The Defendant gave evidence that the Plaintiff “was estranged from the deceased and me for over seven … years before communication recommenced about 18 months prior to my mother’s death”.

The Defendant also gave the following evidence:

In her affidavit, the Defendant also stated that the Plaintiff would not visit as frequently as two to three times per week, nor did she speak to the deceased “almost every day”. Her evidence on this topic seems more probable than that of the Plaintiff.

In response to what the Defendant had stated, the Plaintiff denied that her relationship with the deceased was strained, and asserted that any remaining sense of discord in the family was due to the strained relationship between the Plaintiff and the Defendant. Whilst they do not have a close affection for each other, the evidence of the Defendant, overall, suggested, in my view, accurately, that she did not wish to engage in conflict with the Plaintiff and removed herself if she believed that conflict might occur.

The Plaintiff also denied that the deceased asked her to leave the family home after August 2014 and gave the following evidence:

She also gave evidence that her mother, frequently, stated words to the effect “it is nice that you are here”.

In cross-examination, the Defendant accepted that “at some stage a relationship of a sort re-developed” between the deceased and the Plaintiff, stating that this had occurred “maybe 18, 20 months prior to mum falling ill”: T108.02 – T108.07. She confirmed her belief that the events leading to the reconciliation of their relationship “took place in late 2012 or early 2013”: T108.31 – T108.33.

When asked what her recollection was based upon, she answered “we were estranged for a number of years. I believe the Plaintiff said she made contact or resumed the relationship after 18 months after 2005 and that’s incorrect, totally”: T108.36 – T108.38. However, the Defendant then conceded that her estimate was “a guess”, and admitted that it was “possible” that the relationship may have recommenced earlier than 2012.

In response to a question from the bench, the Defendant then gave the following evidence (T108.48 – T108.50):

Furthermore, the following questions were put to the Plaintiff in cross-examination (T73.20 – T73.50):

Having read, and heard the evidence, I am of the view that the relationship between the Plaintiff and the deceased did not return to normal as quickly as was initially suggested by the Plaintiff, but was probably resurrected later. Although the deceased may have had some interactions through chance encounters before 2011, it was not until about that time that the relationship was resumed in any meaningful way. In this regard, I accept the Defendant’s evidence. It follows that the Plaintiff and the deceased were estranged for about 6 years.

I also tend to the view that the relationship between the Plaintiff and the deceased had previously been, and remained, somewhat volatile and it is more likely than not that there would have been disagreements between them even after 2011.

Yet, despite all of this, the Plaintiff did return to the Pagewood property and assist in the looking after of the deceased. Whilst I do not ignore the event of 2005, I consider that in their overall relationship, what occurred was not as extreme as might be initially thought.

In my view, there remained a familial bond between the deceased and the Plaintiff other than for the period of about 6 years immediately following the event in 2005.

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

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

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

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, once they became adults, imposed upon her by statute or common law.

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

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

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

I have earlier dealt with these matters. The value of the net distributable estate, even considering the costs of the proceedings, is on any view, reasonably large.

The Plaintiff gave evidence of her financial circumstances in her affidavit in chief. She is currently employed in the public service as an Executive Assistant. She had stated that her gross monthly income, including income from rent, was $5,270. However, in her oral evidence, the Plaintiff accepted that her present gross monthly income, currently, was $6,789, consisting of a salary of $4,964 and rental income of $1,825: T46.13 – T46.46.

There was some difficulty, on the evidence, and at hearing, during cross-examination, in coming to a clear figure, of what the Plaintiff’s monthly income was after tax: see, T45 – T48; T87.39 – T89.18.). In a document provided, on the second day of the hearing, as an aide memoire to the Court, by the Plaintiff, under cover “Summary of [P]laintiff’s income and expenditure”, her total weekly income after tax was said to be about $1,176 (or about $4,704 per month): T154.13 – T154.14. In all the circumstances, I am prepared to accept this estimate of her net income.

The Plaintiff gave evidence that her current assets comprise of an investment property in Flynn, located in the Australian Capital Territory, ($500,000), superannuation ($89,167), furniture ($1,000), shares ($25,766), a car ($7,950), funds in a joint term deposit held by the Plaintiff and her son ($13,787), and, also, solely owned cash in bank ($12,652).

In cross-examination, the Plaintiff accepted that the current balance of her superannuation has increased and comprises $119,348: T40.29 – T40.44; Ex. 3. She also accepted that the value of her property located in Flynn, in the ACT, was likely to have a value of between $500,000 and $540,000: T40.50 – T41.20.

She did not disclose any liabilities. As such, the Plaintiff’s net financial position consists of property with an estimated total value between $680,504 and $720,504: T41.33 – T41.37.

The Plaintiff also disclosed her monthly expenditure over various months, of which June 2016 was the latest completed month. (There was, also, annexed, her expenditure for July 2016, however, this entry appears incomplete.) Her total expenditure per month was January 2016 ($3,498), February 2016 ($3,639), March 2016 ($4,025), April 2016 ($4,001), May 2016 ($7,416) and June 2016 ($3,333). The Plaintiff’s average expenditure, omitting July 2016 from the calculation, as the entry was incomplete, was, therefore, about $4,319 per month. (In coming to this figure, I did not accept the figure provided by counsel for the Plaintiff in the aide memoire calculating the average weekly expenditure, as it appeared to be mathematically incorrect.)

She disclosed such expenses including; in regards to “weekly and monthly” expenses, rent, internet and mobile, phone land line, electricity; in regards to “everyday expenses”, household items, computer expenses, groceries, petrol, medicine prescriptions, haircuts and cosmetics, dentist, clothes and shoes, pocket money for her son, take away food, and presents and donations; and, in regards to “annual” expenses, car insurance, car registration and associated other car expenses, “quarterly tax”, home insurance, home maintenance, water, as well as land tax and rates.

The Plaintiff did not rely on an affidavit to update her financial and material circumstances. However, in cross-examination, the Plaintiff asserted that at the time of disclosing her financial circumstances, she was paying $420 in rent per week, and that, now, she is “paying $495 rent per week”, and the rest of her expenditure was “pretty much the same”: T47.44 – T47.48. (This reflects a rent increase of $75 per week.) Consequently, her net expenditure, after accommodating the increase in rent, is about $4,619, which is about $85 less than her average current monthly income.

(I have stressed, on numerous occasions, the need of an applicant for provision to disclose her or his financial circumstances at or about the time of the hearing. Indeed, Paragraph 17 of Practice Note SC Eq. 7 requires updating affidavits to be filed and served, and, invariably, when a matter is set down for hearing, a direction is made for such affidavits to be served a few days prior to the final directions hearing. Regrettably, more often than not, as in this case, the direction is not complied with.)

The Plaintiff gave evidence that she expects to retire in a few years and that she “may not be able to support [herself] and pay rent especially if anything unexpected were to occur, on [her] current means and assets”. She put that her current assets would not allow her to continue paying rent where she currently resides, nor would it allow her to maintain alternative accommodation within Sydney, so that she could remain in “close proximity with [her] son”.

The Defendant also disclosed her material financial circumstances. At the time of swearing her affidavit in November 2017 affidavit, she was working as an Accounts Administrator, earning a gross weekly income of approximately $1,200. The Defendant accepted that she, currently, makes $981 “after tax”: T125.26 – T125.42.

It was submitted that she had assets comprising of the Pagewood property ($1,500,000), cash in bank including “two redundancy payments” ($155,000), superannuation ($263,000), and a car ($8,300). However, in cross-examination, she gave evidence that her current bank balance has been reduced to “approximately $107,000” on account of legal costs that had been paid: T126.09 – T126.28.

Her superannuation has increased, since she swore her affidavit disclosing financial circumstances, and now comprises $295,625: T124.46 – T125.08.

The Defendant did not disclose any liabilities, with the result that the gross value of her property is approximately $1,910,925. It will be remembered, however, that if a family provision order and costs orders are made, the Defendant will have to meet the amounts out of that property.

The Defendant also disclosed her weekly expenditure, which was $462, and included, groceries, motor vehicle expenses (including petrol, insurance and on road costs), telephone (mobile and home), council rates, utilities, medical (including private health insurance), dental, household repairs and maintenance, internet, clothing, and entertainment. She accepted that this was her “total weekly expenditure, give or take $20 or $30 today”: T125.01 – T125.03. Consequently, she has a surplus of income, after paying tax and meeting her expenditure, of about $519.

The Defendant also did not serve, or seek to read, an affidavit to update her financial and material circumstances. (What has been written above in relation to Paragraph 17 of Practice Note SC Eq. 7 applies equally to any beneficiary who is putting forward her or his financial circumstances as a relevant fact to be considered by the Court.) In cross-examination, she stated that the only other update to her financial position was “my personal savings. They’re reducing drastically because of my legal bills”: T126.10 – T126.12.

Additionally, in her affidavit sworn 29 November 2017, the Defendant gave evidence that the Pagewood property is about 38 years old and “has had no major renovations because it was a brand new house when we moved in to the house in about 1979”. She stated that the house is in reasonable condition, but considers that it will need work in the near future.

In support of her assertion, a report, dated 18 November 2017, from Jim’s Building Inspections, and titled “Building and Timber Pest Inspection Report” was read without objection. It stated the inspector had found at least one of each of “safety hazard”, “major defect”, “minor defect”, “timber pest damage” and “conditions conductive to timber pest activity”. Recommendations included, replacing the electrical switchboard and installing a safety switch thereon, the installation of electrical junction boxes to “seal off and protect” wiring in the roof void/subfloor, and replacing storeroom tiles to prevent water penetration and subsequent water damage. The costs of future renovations to remedy the defects were not specified.

Although the Defendant has been a relationship for many years, she gave evidence that “we have always lived separately and maintained separate bank accounts”. Her evidence in this regard was not challenged and there is no reason, otherwise, to disbelieve her.

It is to be remembered that the Defendant has no dependants.

The Plaintiff gave evidence, in her affidavit in chief, that she lived with Benjamin, who was a full time student, and who is currently studying the degree of Juris Doctor of Law at the University of Technology Sydney. Benjamin was said to be completely dependent on the Plaintiff and she pays him “pocket money”.

However, in cross-examination, she stated that Benjamin will finish his law degree this year: T49.15 – T49.18. She gave further evidence, at T49.43 – T49.17, that:

However, whilst, initially, the Plaintiff did not accept that Benjamin was not dependent upon her, she also gave the following evidence at T51.22 – T51.30:

Consequently, I am satisfied that Benjamin is no longer living with, or dependent upon, the Plaintiff.

The Plaintiff suffers from a number of medical conditions. In a letter dated 28 September 2016, from her General Practitioner, Dr J Salmon, these conditions included “stress, high blood pressure and possible sleep apnoea and coronary artery disease”. She is also being treated by a cardiologist.

In cross-examination, the Plaintiff accepted that she was “relatively” healthy and that she takes “high blood pressure medication” for a heart condition: T52.09 – T59.16. It was put to the Plaintiff that this medication “doesn’t affect your ability to work”, to which she answered “No it doesn’t”: T59.12 – T59.20.

The Defendant is currently 59 years old and reports being in generally good health. However, she has also stated that she has “high blood pressure and [has] suffered from this condition for about 22 years. I am on Carvalside and Norvasc to control it”. She stated that although she had requested a letter verifying this condition from her General Practitioner, “he has not provided it to me”.

She also reported that she has issues with her teeth. She believes that some of her teeth “will need to be pulled out and replaced with a bridge or dentures in the near future as [she is] in some pain”. In support, the Defendant annexed a letter, dated 8 November 2017, to her affidavit sworn 29 November 2017, from Dr G Selia, her dentist, which stated that “[t]he likely budget for the next few years will be at least in the vicinity of $75,000 - $110,000. This is very hard to predict accurately”.

The Defendant was not cross-examined on the state of her health.

The Plaintiff is currently 65 years old.

I have earlier discussed some of the contributions to the family household between 1969 and 1987, and then, between 1997 and 2005.

In addition to this, the Plaintiff gave the following evidence, in her affidavit in chief, as to her financial contributions to the deceased’s estate, between 1997 and 2005:

The Plaintiff’s evidence in regards to the dining room chairs and the pergola was accepted by the Defendant. The Plaintiff estimated that the pergola cost approximately $500, whereas, the cost of reupholstering the chairs was approximately $1,200. She also noted that the washing machine cost about $1,000, however, she took it with her when she moved from the Pagewood property in 2005.

The Defendant also gave evidence that she had repaid the Plaintiff at least some of the cost of the re-upholstering. She annexed a copy of a cheque butt that referred to payment of $1,000 in which the payee was the Plaintiff. In cross-examination the Defendant accepted that the cheque butt referred to her payment towards the re-upholstering and that she “did not repay [the Plaintiff] for the pergola”: T104.25 – T104.50.

The Plaintiff’s contribution, in this regard, was a relatively small contribution, in all the circumstances.

It would appear that at least until 1997, the deceased regarded the Plaintiff favourably. She certainly did not distinguish between her two daughters in the 1997 Will. I have earlier noted that their relationship changed in the following years, until early 2005, and then they were estranged, thereafter, until about 2011. From then until about 2014, she would bring food to the deceased, on her way to work and would see her every weekend.

She also gave evidence that she attended multiple doctor appointments, as well as other health related appointments, with the deceased, in which she took time off work, because the deceased “had some difficulty understanding English and required assistance”.

On this topic, the Defendant stated, in reply, that the Plaintiff had attended some appointments and to her recollection this was “usually at a time when she had [an] … appointment also”. She also stated that the majority of the deceased’s medical appointments “were arranged by me, sometimes for both of us, and I accompanied the deceased to those appointments as well as to any referrals to specialists”.

The Defendant also advanced that the Plaintiff was reimbursed for expenses in relation to the deceased lunch, which was paid to her, or to her son as “pocket money”. The Plaintiff denied this allegation, although she accepted that she was aware of one occasion where the deceased asked the Defendant to give Benjamin money, which the Plaintiff later offered to repay.

When the Plaintiff was told about the deceased’s illness in 2014, she immediately took a two week period of leave, and, subsequently, took six months leave from her job in order to assist the deceased. This was not in dispute. There is other evidence that establishes that she took a leave of absence from work from 21 October 2014 until 8 April 2015. It seems that in doing so, she used all leave available to her, by taking her sick leave as Carer’s Leave, all her Annual Leave and all Long Service Leave. On her return to work on 8 April 2015, the Plaintiff had no leave left owing to her at all.

The Plaintiff also gave evidence, that, in order to care for the deceased, she moved back into the Pagewood property. This was put by the Plaintiff as coinciding with the deceased’s wishes of not being required to move to a nursing home. She retained her home unit which she was renting.

I accept her evidence on this topic which was not challenged. (Indeed, it was accepted by the Defendant, in cross-examination, that the Plaintiff “took six months off work in order to care for [the deceased]”; that the Plaintiff was at the Pagewood Property “most of the time … all day most days … caring for [the deceased]”; and that the Plaintiff was the deceased’s “primary carer during the day”, while the Defendant was at work, however, in the evening, both the Plaintiff and the Defendant cared for the deceased: T115.49 – T116.26.)

However, in her affidavit sworn 29 November 2017, in reply, at [70], the Defendant gave evidence that:

Whilst such a conversation, if it did occur, demonstrates some momentary frustration with the Plaintiff, the fact remained that having the Plaintiff there meant that the deceased was not required to leave the Pagewood property. It seems that by the end of the six months, the deceased was no longer able to live at home because of her medical condition, having sustained a broken femur as a result of a fall. Even then, for the last months of the deceased’s life, the Plaintiff continued to visit her daily, and on many of her visits, she brought dinner. In this regard, overall, I am satisfied that the Plaintiff made a contribution to the deceased’s welfare and particularly during the last years of the deceased’s life.

The Defendant alleged that the Plaintiff had taken approximately $35,000 from the bank account of her parents to “furnish a unit and buy a motor vehicle for her then partner”, as she recalled a conversation of her parents discussing this matter.

This was denied by the Plaintiff, who stated in her affidavit of 22 February 2018, at [5] and [21]:

In cross-examination, the Plaintiff, again, denied the accusation that she had taken money from her parents’ bank account: T54.45 – T55.04. In referring to what was stated by deceased in her testamentary statement, the Plaintiff could not offer any reason for the deceased having fabricated the assertion other than to blame the Defendant: T55.40 – T56.45.

Counsel for the Plaintiff also questioned the Defendant on this topic, in which there was the following exchange (T98.04 – T98.10):

In all the circumstances, and bearing in mind the limited evidence that would support such a finding, I am not prepared to conclude that $35,000 was given to, or taken by, the Plaintiff during the lifetime of the deceased.

I also bear in mind lived in the Pagewood property, effectively rent-free, for so many years.

I have earlier discussed the terms of the Will and the written statement the deceased made, in combination with the Will, as evidence of the deceased’s testamentary intentions. The terms of the 1997 Will, to which reference has also been made, should not be forgotten.

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

There is no person with any liability to support the Plaintiff.

I have discussed, already, that the deceased and the Plaintiff, were estranged between 2005 and about 2011. Yet, thereafter, to the credit of both, their relationship was resurrected. I have also considered the conduct of the Plaintiff in sacrificing her leave entitlements, in order to care for the deceased, following the deceased’s stroke and ensuring that she did not go into a nursing home.

The Defendant gave the following evidence in her affidavit sworn 29 November 2017 which was not the subject of any challenge:

After the deceased was discharged from hospital following her stroke, the Defendant continued to take time off work to attend appointments with the deceased. She also made various contributions to the deceased’s welfare, which included:

I am more than satisfied that the Defendant made a very significant contribution to the deceased’s welfare, both financially and emotionally, throughout their joint lives. This was not really the subject of any dispute and is amply demonstrated by the content of the deceased’s last Will and the written statement. It is not necessary to repeat the other evidence in this regard.

This factor is not applicable.

There are no other matters that I consider relevant.

Having established eligibility, and as the proceedings were not commenced within time, the question for consideration is whether the Plaintiff has established that an order should be made permitting her application to be made outside the period prescribed by the Act for the making of her application. This requires the Court to consider, amongst other things, the adequacy of any explanation for the delay, any possible prejudice to either party arising from that delay, any unconscionable conduct by either party and the merits of the Plaintiff’s substantive claim.

As stated, the Plaintiff did not provide any reason for not making the claim within time. For almost the whole of the 12 month period following the death of the deceased, she had legal representation, and I have not accepted her evidence that she was not aware of the time prescribed by the Act for the making of her application.

Yet, I do not regard her lack of action in commencing the proceedings by December 2016, as fatal, principally because the delay following that period was not inordinate, being a matter of 5 months. The Defendant did not give any evidence that she would suffer any prejudice, actual or presumptive, if the time were extended, or that there was any unconscionable conduct on the part of the Plaintiff in not bringing the application within time. Importantly, also, for reasons to which I shall come, I am satisfied that an order for provision, in favour of the Plaintiff should be made. A refusal to extend time would result in prejudice to the Plaintiff. The justice of the case, in my view, requires the Court to make an “otherwise order”.

In all the circumstances, the Plaintiff has satisfied me that there is sufficient cause, to which s 58(2) is directed, for allowing her application to be made out of time.

The next question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased.

What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.

There was no provision in the deceased's last Will made for the Plaintiff. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being “left without adequate and proper provision” even though no, or little, provision is made for her in the deceased’s Will.

Yet, judged by quantum, and looked at through the prism of her financial and material circumstances, adequate provision for the Plaintiff’s proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased.

As stated, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. Whether the deceased ought to have made provision for the Plaintiff is influenced by an assessment of the Plaintiff’s circumstances, including the nature and extent of her present and reasonably anticipated future needs, the size and nature of the deceased’s estate, the relationship between the Plaintiff and the deceased, including the Plaintiff’s conduct towards her, the competing claims of the Defendant, as the only other person with a legitimate claim upon the bounty of the deceased and the chosen object of the deceased’s bounty, and the Defendant’s circumstances and needs: see, for example, McCosker v McCosker, at 571–572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 at [70].

This is a case where, apart from a period of about 6 years of their joint lives, there was a reasonably close relationship between the Plaintiff and the deceased, although, at times during their relationship, they did not always get on. In this regard, it is also to be remembered that for the majority of the Plaintiff’s life, she lived in the same house as the deceased. In such circumstances, a wise and just parent will recognise that disharmony between parent and child is almost inevitable. In family relationships, hurts are inflicted or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life.

That their relationship deteriorated to the point where the deceased felt that she required legal assistance to have the Plaintiff vacate the Pagewood property, is, of course, a relevant factor, as is the fact that they had no, or little, contact thereafter for about 6 years. However, contact was resurrected, and then, for the last few years of the deceased’s life, the Plaintiff did make a contribution to the welfare of the deceased.

The Court should take into account, and evaluate, the whole of the circumstances regarding the relationship of the Plaintiff and the deceased. It should also be remembered that the last Will was made at the time of the event in 2005 that had caused their relationship to breakdown. The 1997 Will made equal provision for the Plaintiff.

One cannot, and must not, ignore the claim of the Defendant, who the deceased chose as the recipient of the whole of the estate. I am more than satisfied that the Defendant throughout her joint life with the deceased was a loving and dutiful daughter, and as a carer, who assisted the deceased to the best of her ability. She has a powerful competing claim and one that the deceased, herself, recognised.

Taking all of the circumstances into account, I am satisfied that adequate provision for the Plaintiff’s proper maintenance and advancement in life was not made by the Will of the deceased. Whilst her conduct in the period between 2005 and about 2011, may restrain the amplitude of provision, the Plaintiff’s conduct over the whole of her and the deceased’s joint lives is not such as to disentitle her, completely, to provision out of the estate of the deceased.

The more difficult question then arises, namely what provision “ought to be made for her maintenance, education or advancement in life”, having regard to the facts known to the Court. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

Having considered the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances, I am satisfied that the Plaintiff should receive a capital sum for exigencies of life. It seems to have been accepted by her counsel that a capital sum (submitted to be $150,000) should be the provision made for the Plaintiff.

In coming to the conclusion on the quantum of the provision to be made for the Plaintiff, the deceased’s entitlement to testamentary freedom, and the fact that she made a detailed statement setting out the reasons she had for making no provision for her are of course important and have been given significant weight.

In relation to the Defendant, who made a very substantial contribution, as a daughter, her claim upon the bounty of the deceased, and her competing financial claim on the deceased’s bounty, is very significant. Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child’s life and into retirement.

The provision for the proper maintenance and advancement in life of the Plaintiff that ought to be made, in my view, is by way of a lump sum of $100,000. In coming to this conclusion on quantum, I have taken into account, amongst other things, the value of the estate; the competing claim of the Defendant; the fact that the Plaintiff has no person who has responsibility to assist in maintaining her; and that whilst she does have the real estate in the ACT, which provides her with a rental income to supplement her earnings, and capital upon its sale, she really does not have any immediately available lump sum to meet the exigencies of life. The capital sum will, until spent, also provide some additional income to supplement her earnings and rental income.

The amount of the lump sum that is to be ordered is within the financial reach of the Defendant without having to sell the Pagewood property. Whilst, of course, the payment of the lump sum, and the costs, will have the practical effect of reducing the value of her current assets, the lump sum is modest, equating to less than 10 per cent of the current agreed value of the Pagewood property. The costs may have been avoided, in whole or in part, by serving an appropriate offer of compromise, or otherwise resolving the proceedings. As counsel stated, the Defendant wished to uphold the wishes of the deceased, which, of course, she was perfectly entitled to do. Regrettably, there are usually costs associated with doing so, in circumstances where a family provision order is made by the Court.

The Court: