Stanford v Stanford

These proceedings concern the estate of Edward John Stanford (the deceased) and the claim brought by one of his two, now adult, children, Brendan John Stanford, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act) and for his costs of the proceedings. The Plaintiff also seeks an order that “any relevant property be designated as notional estate available to meet the plaintiff’s claim”. It is another sad example of an unfortunate legal battle, waged between the living over the property of the dead in a family context.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. This type of legislation has been described as having been “enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded”: Barns v Barns (2003) 214 CLR 169; [2003] HCA 9, at [2] (Gleeson CJ).

The deceased died on 17 October 2020, aged 74 years, leaving a Will dated 25 November 2005. There has been no grant of Probate of the deceased’s Will, and, apparently, there is no intention to seek a grant, because, apart from the property that is sought to be designated as notional estate, to which reference will be made, the estate, at the time of the deceased’s death, consisted of the refund of an accommodation bond of $231,009, which was, then, already held in a bank account conducted by the Defendant. It will be necessary to say more about each of these matters later in these reasons.

The Plaintiff’s Summons was filed on 16 March 2021, within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

The Defendant named in the Summons is Dulcie Stanford (incorrectly named Dolcie Stanford in the Summons and in some of the affidavits), the widow of the deceased.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

Dina Griffith is the only other child of the deceased and is the sister of the Plaintiff. She was a witness whose affidavit was read in the Plaintiff’s case. She does not make a claim for provision out of the estate of the deceased. She was not cross-examined.

The only other eligible person is the deceased’s first wife, Susan Frances Jones, who is the mother of his two children. She was not identified as an eligible person, either by the Plaintiff, or by the Defendant. Counsel for the Defendant accepted that notice of the Plaintiff’s application, and of the Court's power to disregard her interests, had not been served on her, in the manner and form prescribed by the regulations or rules of court. The Court may not disregard her interests unless it determines that service of any such notice is unnecessary, unreasonable, or impracticable, in the circumstances of the case: s 61 of the Act.

In this case, there is evidence that Ms Jones and the deceased separated in about 1987 and that there was a property settlement entered into by them. In addition, the Plaintiff gave evidence that his mother was aware of these proceedings: Tcpt, 19 October 2021, p 45(26-31). In all the circumstances, I am satisfied that service of the notice upon her is unnecessary and I make that determination.

The Defendant has not commenced proceedings under the Act, but she has given evidence of the bases, financial, and otherwise, of her claim upon the bounty of the deceased as the sole beneficiary named in the deceased’s Will. 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(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I shall refer to the Defendant’s situation in life, later in these reasons.

The Defendant has two children from a previous marriage, being Heath Long and Marni Surgeoner. Neither played any part in the proceedings. Neither is an eligible person, as each never resided with, or never had been, at any time, wholly, or partly, dependant, upon the deceased.

As the deceased dealt with all of his estate in his last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

As stated, a family provision order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) 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 Ch 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.

The Defendant, as she was obliged to do, identified property that may be designated as notional estate, being the deceased’s interest, as joint tenant, in the matrimonial home at Woonona (the Woonona property) ($375,000), in which she currently lives; one half of the proceeds of superannuation with Mines Super ($95,000); and a half share of the amount in a joint bank account held in her name and that of the deceased ($47,079).

There is a question whether any property should be designated as notional estate, as the actual estate of the deceased consists of the refund of the accommodation bond (currently $211,950), which was paid, in November 2020, directly to the Defendant. Section 88 of the Act provides that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

The matter was listed for a one day hearing to commence on 19 October 2021. Mr M Galvin of counsel appeared for the Plaintiff and Mr H Morrison of counsel appeared for the Defendant.

The hearing was not a live hearing, with the parties, the witnesses, and their legal representatives being present in Court. It was conducted remotely, through the use of the audio-visual technology, “Microsoft Teams”, a video-communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility.

There was no informality during the hearing, as counsel, and I, were wigged and robed throughout. The location and appearance of the AVL facility also was sufficiently formal, with each witness giving her, or his, evidence, without any other witness being present in the room. Each counsel provided written submissions prior to the commencement of the hearing. The hearing was completed within one day.

The Court is grateful for the way in which each party presented his, and her, case, respectively, and the assistance provided by all of the legal representatives, even though there were a number of aspects of the case that were dealt with orally because they were not the subject of written submissions.

In view of the nature of the estate and the claim for a notional estate order, it is necessary to determine, first, whether it is necessary for there to be a grant of administration in this estate, to enable the Plaintiff's application to be dealt with.

Section 59 of the Act simply states that the Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person upon being satisfied of certain things to which I shall turn later in these reasons. For present purposes, it need only be said that there is no requirement, in s 59, that a grant of administration is a pre-condition of the power to make an order.

In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act differs from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted". The wording in the former Act meant that the Court had no power to make an order under the section unless and until there had been a grant of administration.

“Estate” is not defined in the Act, although under s 6 of the former Act, it was defined “in relation to a person dying leaving a will, [as] property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant”. There is no reason to think that the definition would not be equally applicable to the Act.

Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 3 of the Act, "administration" is defined by reference to s 55 of the Act. That section provides in sub-s (1), that "administration" is granted in respect of the estate of a deceased person in certain specified events including where “probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107(1) of the Probate and Administration Act 1898" or where “letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes".

A grant of administration is not required at the time an application for a family provision order is made. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). (However, there is a note to s 58(1) that administration may be granted for the purposes of an application for a family provision order under s 91.)

Section 91 of the Act, in fact, provides:

Thus, under s 91, the Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person for the purposes only of permitting the application concerned to be dealt with (my emphasis). The application referred to is for a family provision order or for a notional estate order.

Section 91 does not provide for the making of a grant for the purposes of an application for a family provision order or for a notional estate order before such an application is made. In this regard, s 91 is different from s 41A of the Probate and Administration Act 1898 (NSW), which provided for a grant to be made “in order to permit an application to be made under the Family Provision Act 1982”.

Thus, it seems that the Act differentiates between “when an application is made” (the date of the filing of the Summons) and “when the application … is dealt with” (the date of making a family provision order or notional estate order, whether by agreement of the parties or after a contested hearing, or when it occurs, the dismissal of the proceedings).

The use of the word “permitting” in the section, in my view, is important. The word usually means “authorising”, “allowing” or “not preventing”. What follows in the sub-section avoids the need for there to be real and personal estate which the deceased died seised, or possessed of, or entitled to, in New South Wales, a pre-requisite to the Court having jurisdiction to grant administration: s 40 Probate and Administration Act.

In Wheat v Wisbey [2013] NSWSC 537 at [29] – [60], I dealt with s 91 and whether it was always necessary to grant administration in order to deal with an application for a family provision order. I shall not repeat all of what I wrote in that case. However, at [45] – [49] and [57] – [58], I wrote:

It seems to me that, even if a Plaintiff’s claim is to be dismissed, the Court, in an appropriate case, may make an order under s 91, since the application concerned is to be “dealt with”.

Section 91(2) of the Act provides that the Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person to any person the Court considers appropriate for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales. I have come to the view that the appropriate person in this case, is the Defendant. It is to her that a grant of administration in respect of the estate of the deceased should be made for that purpose.

There was no dispute between the parties that an order should be made under s 91 and I shall make that order for the abundance of caution and in circumstances where the Defendant has participated in the conduct of the proceedings.

It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.

The deceased was born in February 1946. At the time of his death, in October 2020, he was 74 years old. There is virtually no evidence about his life before he met the Defendant.

The Defendant was born in November 1943 and is now 78 years of age. The Court also knows nothing about her first marriage, other than it was dissolved, and that there was a property settlement: Tcpt, 19 October 2021, p 04(14-19). As stated, there were two children of the marriage.

The Defendant met the deceased, first in about 1965. The friendship was resurrected in the late 1980’s. It became a more serious, and romantic, relationship in about 1992 and they commenced to live together in 1994. They were married in 1996. At the date of his death, they had been married for about 24 years.

During the marriage, the deceased worked as an electrician and the Defendant worked as a factory hand and at a squash court.

It was not suggested that the marriage of the deceased and the Defendant was other than close and loving. Even though the marriage was not one involving the raising of children, the nature of their relationship, and the financial and non-financial contributions, by the Defendant, to the welfare of the deceased, and otherwise, is amply demonstrated by the evidence.

By way of example, when she met the deceased, the Defendant had savings of approximately $30,000 and a motor vehicle. Shortly after she moved in with the deceased, he finalised his property settlement with his first wife. In order to keep a property which he had owned at Thirroul (the Thirroul property), and in which he then lived, the deceased used shares and other assets to satisfy his obligations under a property settlement with his first wife. The Defendant contributed approximately $20,000, to discharge a mortgage registered on title to the Thirroul property and, thereafter, it became their matrimonial home.

In about 2011, the deceased was diagnosed with dementia. His condition was not sufficiently bad to require him to move into assisted living accommodation, so, until about 2018, the Defendant was his sole carer. She stated, and it was not disputed, that the Plaintiff did not provide any assistance to her to care for the deceased. (He provided an explanation for limited contact with the deceased to which I shall later return and I do not mention this fact as a criticism.)

Until March 2018, the Defendant and the deceased lived in the Thirroul property. In March 2018, the deceased moved into a nursing home, due to his deteriorating health. The Defendant sold the Thirroul property to pay a reduced nursing home accommodation bond. From then, until the deceased’s death, his pension, and part of the Defendant’s pension, were used to pay his accommodation expenses at the nursing home. She gave evidence that she only had about $300 per fortnight remaining on which to live. During this period, she was required to draw upon her savings.

The Defendant used the remaining proceeds of sale of the Thirroul property to purchase the Woonona property, in joint names, for $600,000. She currently lives in the Woonona property which passes to her by survivorship.

The deceased left a Will dated 25 November 2005, in which appointed the Defendant as the sole executor and, in the events that have happened, left the whole of his estate to her. As stated, Probate of this Will has not been granted.

Clause 5 of the deceased’s Will provided:

Clause 7 of the Will provided:

There is undisputed evidence that the Defendant also executed a Will dated 25 November 2005, a copy of which is in evidence. It is in reciprocal terms: Affidavit of the Defendant sworn 22 April 2021 paragraph 11, annexure “B”.

Relevantly, the Defendant’s Will provides:

There is also a copy document headed “Contract to make Mutual Wills” in evidence. It is dated 25 November 2005, is signed by the deceased and by the Defendant and it provides:

There is a second copy document headed “Contract to make Mutual Wills” in evidence, in slightly different terms to that set out above. It is also dated 25 November 2005, signed by the deceased and by the Defendant and it provides:

I shall return to the effect of the Will made by the deceased and by the Defendant, respectively, later in these reasons.

The Act makes clear that there is a distinction between the estate of the deceased and the notional estate of the deceased. They are different and to bring property within the definition of notional estate requires a certain type of transaction, or circumstance, affecting property (ss 74 – 76), an absence of valuable consideration (s 77), a time frame within which the transaction took effect (s 80), disadvantage to the estate (s 83) and certain identified discretionary considerations (ss 87 – 89).

On 20 August 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

I have taken what is said below from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The actual estate of the deceased comprised, at the date of the hearing, $211,950, being the proceeds of the deceased’s CBA account.

I have earlier referred to the property that is said may be the subject of a notional estate order. At the hearing, counsel for the Plaintiff accepted that the actual estate was sufficient to satisfy the claim of the Plaintiff and the costs of the proceedings: Tcpt, 19 October 2021, p 07(30-38). In the circumstances, it is unnecessary to say more about the notional estate although I have referred to the jointly held property in the Defendant’s financial and material circumstances.

The other liabilities of the estate, being cremation and burial fees ($16,460) and legal fees of $510, have already been paid.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the 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, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendant, as the entity representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally, will be entitled to an order that its costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

The Plaintiff's costs, calculated on the ordinary basis, of the proceedings to the conclusion of the hearing, were estimated to be $53,000. If those costs are calculated on the indemnity basis, they are estimated to be $60,000.

There is evidence that the Plaintiff has a conditional costs agreement with his solicitor. The conditional costs agreement is not in evidence, but at the hearing, counsel for the Plaintiff stated that there is no uplift factor included in reaching the estimates of costs set out above: Tcpt, 19 October 2021, p 10(41).

The Defendant's costs, calculated on the indemnity basis, to the conclusion of the hearing, were estimated to be $29,897. The Defendant has paid $5,225 on account of her costs.

Assuming, without deciding, that the estimates for the costs and disbursements are accurate, and that the costs of each of the parties, in the event that the Plaintiff is successful, are to be paid out of the estate, the total amount of costs and disbursements of the proceedings, left to be paid out of the estate, will be $77,672.

Accordingly, the value of the deceased’s estate, if the estimated costs of each of the parties, and the other liabilities referred to above are deducted, will be $134,278.

At the commencement of the hearing, the Court asked whether how costs are borne could be determined as part of these reasons, to which each counsel replied that the usual orders as to costs could be made, that is, if the Plaintiff is successful, he should receive his costs calculated on the ordinary basis and, if the Plaintiff is unsuccessful, that he should pay the Defendant’s costs calculated on the ordinary basis: Tcpt, 19 October 2021, p 15(27-49)

The Court encouraged the parties to agree on her, and his, costs, respectively, calculated on the ordinary basis for the Plaintiff, and calculated on the indemnity, and the ordinary, basis for the Defendant. By doing so, the Court could make an order, before costs were referred for assessment, to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs: Civil Procedure Act 2005 (NSW) s 98(4)(c). This would avoid any further delay in the administration of the estate.

It may be, if agreement is not reached, that the Court, of its own motion, will consider making a specified gross sum costs order instead of assessed costs in respect of the costs of the proceedings: s 98(4) Civil Procedure Act. The power to award a specified gross sum instead of assessed costs is exercised whenever circumstances warrant its exercise, the purpose of the rule being to avoid the expense, delay and aggravation arising out of taxation: Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119; McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No. 2) [2021] NSWSC 1356 at [21] – [28] (Slattery J).

The Court might also consider whether the amount of those costs should be paid out of the share of the Defendant’s estate to which the Plaintiff will become entitled on her death.

There was little dispute about the nature of the Plaintiff’s relationship with the deceased.

The Plaintiff stated that, growing up, he had a close relationship with the deceased. The deceased would regularly attend sporting events in which the Plaintiff competed.

After the deceased remarried, the Plaintiff said that he had “found it difficult to have time with [the deceased] as his new wife, the executor, did not wish for [the Plaintiff] to be involved in his life”: Affidavit, Brendan Stanford, 22 February 2021 at par 7.

The Plaintiff stated that he continued to contact the deceased regularly. This continued after the Plaintiff had moved to Queensland in July 2005. The deceased is said to have told the Plaintiff that the Defendant discouraged him from having any contact with the Plaintiff and the Plaintiff observed that the deceased was often uncomfortable speaking with him in the presence of the Defendant.

The Plaintiff’s sister, Dina, corroborated that the deceased usually had to ask the Defendant if he wished to spend time with his children.

The Plaintiff stated, and the Defendant disputed, that he and his sister were rarely invited to family events such as Christmas and birthday parties.

The Defendant denied that she took any steps to discourage a relationship between the deceased and the Plaintiff. Indeed, without hesitation, she accepted that the Plaintiff and the deceased had a close relationship; that they showed affection to one another; and that the Plaintiff did not upset the deceased on any particular occasion: Tcpt, 19 October 2021, p 49(29-46). She stated that the deceased and the Plaintiff spoke on the telephone and that the Plaintiff visited the deceased whenever he was in Sydney: Tcpt, 19 October 2021, p 50(29-41).

According to the Plaintiff, after the deceased was placed into care, he continued to visit the deceased whenever he could. However, he was unable to do so for lengthy periods as a result of COVID-19 restrictions. The Defendant stated that she was only aware of one occasion on which the Plaintiff visited the deceased whilst he was in care.

According to the Plaintiff, the deceased had told him, on more than one occasion, “I have provided in my will money for you. Do not worry about your position as I have provided for you”: Affidavit, Brendan Stanford, 22 February 2021 at par 25.

Although there is a factual dispute, nothing really turns on the dispute because of the Defendant’s acceptance of the close relationship that the deceased had with the Plaintiff. Whilst one of the matters to which the Court may have regard is “any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship…”, it is just one of the matters identified in s 60(2) of the Act.

The Plaintiff is employed as a permanent part-time driver and earns approximately $1,500 per fortnight. The Plaintiff’s current gross monthly income was estimated to be $6,000, whilst his current net monthly income is estimated to be $4,500.

However, in response to questions from the Bench, the Plaintiff accepted that in each of the two months before his affidavit of 22 September, 2021, in which he had stated the income of $1,500 per fortnight, his income had exceeded that amount: Tcpt, 19 October 2021, p 43(23-26). When asked how he had reached the stated fortnightly income of $1,500, the Plaintiff stated (Tcpt, 19 October 2021, p 43(46)-44(02)):

The Plaintiff denied choosing the lowest of the three months in order to give the Court an inaccurate estimate of his average income: Tcpt, 19 October 2021, p 44(21-23).

During cross-examination, the Plaintiff was also asked about a number of cash deposits made to his bank account and not referred to in his affidavit evidence. The Plaintiff was unsure about the origin of these deposits, stating that they could either have been from a tenant living in his rented property, or from his clothing enterprise he had recently sold: Tcpt, 19 October 2021, p 29(38-42) and 30(03-04).

The Plaintiff stated that he no longer has sub-tenants in his property because he wished to live on his own and because the owner of the complex no longer allowed him to sub-let: Tcpt, 19 October 2021, p 35(45-49). When asked why he did not disclose that he previously had tenants who paid rent to sub-let his apartment, the Plaintiff stated (Tcpt, 19 October 2021, p 40(43-44)):

In cross-examination, the Plaintiff also stated that he performed casual construction work for approximately two weeks: Tcpt, 19 October 2021, p 33(05-08). He stated that he did not disclose this because (Tcpt, 19 October 2021, p 40(38-39)):

The Plaintiff also provided approximately five swimming lessons to a friend for $50 (it was unclear whether this was the total cost or the cost per session): Tcpt, 19 October 2021, p 33(15-19). When asked why this was not disclosed in his affidavit evidence, the Plaintiff stated (Tcpt, 19 October 2021, p 34(04-07)):

I did not find the explanations particularly persuasive. However, none of the undisclosed amounts are large, and there was no submission that the Plaintiff was substantially better off than he had stated.

The Plaintiff’s fortnightly expenditure is as follows:

During cross-examination, the Plaintiff accepted that he has enough income to enable him, occasionally, to spend money on non-essential items, such as tickets to sporting events and air fares to go on holidays: Tcpt, 19 October 2021, p 37(32-35). In addition, his largest monthly expense, by far, is for the rent of a three bedroom apartment. As a single person with no dependants, this seems like an expense that might be curtailed, bearing in mind what is said to be his weekly income.

The Plaintiff’s assets and liabilities are as follows:

Neither of the repayments, which total almost $200 per fortnight was disclosed as an expense.

The Plaintiff, somewhat unrealistically, seeks provision to enable him to purchase a new motor vehicle, pay a deposit for a home, and have a buffer against the contingencies of life. The Plaintiff also seeks provision to purchase a modern push bike.

He wishes to purchase a one-bedroom home to have secure accommodation. He estimates the cost of such a purchase to be at least between $300,000 and $350,000. However, the Plaintiff provided examples of suitable homes which had sold for between $515,000 and $799,000: Affidavit, Brendan Stanford, 21 June 2021.

The Plaintiff did not provide any reasons why rented accommodation was unsuitable for his needs. He gave no evidence of having owned real estate, during the lifetime of the deceased, or any reasons why there ought to be imposed, upon the deceased, in circumstances where his wife of a very long marriage had survived him, an obligation to provide a deposit for him to purchase such accommodation.

Nor did the Plaintiff provide any evidence demonstrating that he had approached any financial institution to ascertain his capacity to borrow.

As stated, the marriage of the deceased and the Defendant was a long one. The Defendant cared for him after he was diagnosed with dementia in 2011, until he was admitted to assisted accommodation in March 2018.

The Defendant visited the deceased every second day when in the nursing home, although there were periods when she was unable to do so due to COVID-19 restrictions.

There was no suggestion that their relationship was an unhappy one, although the Defendant did refer to having some problems with the deceased after he had consumed alcohol. I did not form the view that this had impacted, significantly, on how the Defendant had viewed their relationship. In any event, the Defendant is the chosen object of the deceased’s bounty so she does not have to justify the provision made for her by the deceased.

The Defendant has the following assets:

The Defendant has no liabilities.

The Defendant receives income of $720 per month, comprising $60 per fortnight in Centrelink payments and $300 per fortnight in superannuation.

The Defendant has the following annual expenditure:

The Defendant uses her savings to cover the discrepancy between her income and her expenses.

The Defendant suffers from psoriasis and has regular appointments with a specialist. At times, she develops the condition of plantar fasciitis and requires specialist attendances. In October 2021, the Defendant was diagnosed with skin cancer, however she is unsure of the cost of treatment.

The Defendant wishes to be in a position to be able to pay for any future medical treatments she will require.

If the Defendant accesses her lump sum capital from her superannuation, her fortnightly income will be reduced. She stated that if she were required to pay any money from her estate, she would be placed in financial hardship. Once the Defendant’s savings and investment portfolios are depleted, she expects she will have to draw on her lump sum superannuation.

The Defendant may need to enter a nursing home, in which case she will be required to sell the Woonona property and pay a bond (otherwise she will incur interest).

The Defendant stated that she and the deceased had prepared mutual wills and stated that she does not intend to change her Will: Tcpt, 19 October 2021, p 56(09-12).

The Plaintiff acknowledged that the mutual wills of the deceased and the Defendant evidenced a clear intention that the deceased and the Defendant would leave his, and her, estate, respectively, to each other, with a view to ensuring that upon the death of both, the remaining property would be divided, equally, between the four children of each of them.

He submitted that the mutual will position does not preclude his right to bring a family provision claim and the deceased’s Will, in which no provision is made for him, fails to provide for his present needs.

The Plaintiff also submitted that he had enjoyed a loving and caring relationship with the deceased throughout his lifetime. Whilst COVID-19 restrictions towards the end of the deceased’s lifetime prohibited the Plaintiff from having contact in person, this was beyond the Plaintiff’s control. Even during this period, they had kept in contact.

Due to his living expenses, the Plaintiff is unable to purchase his own home. He also lacks a financial reserve for any contingency that may arise in his life or provision for the future and has only modest superannuation. Given his low income, limited education and limited ability to advance in any career that could increase his earning capacity, the Plaintiff has no realistic potential to increase his assets or accumulate an emergency fund.

Further, the Plaintiff submitted that the Defendant has sufficient assets to safeguard her future, given that she lives in an unencumbered home, has approximately $190,000 in superannuation and cash and receives a pension.

Ultimately, the Plaintiff submitted that a modest order for provision would greatly assist him, in circumstances where his needs arise now, whilst not unduly impinging upon the welfare of the Defendant. In the circumstances, he submitted that lump sum provision of about $80,000 ought to be made.

The Plaintiff did not submit that his application for a family provision order was motivated by a concern that the Defendant would not adhere to her agreement to divide her estate equally amongst the four children or that if she changed her Will, he would be unable to make a family provision claim in relation to her estate since he would not be an “eligible person” within s 57(1) of the Act.

For her part, the Defendant submitted that the Plaintiff’s claim should be dismissed, on the bases that:

The Defendant submitted that it was the deceased’s testamentary intention that she receive, and have use of, the whole his estate, whilst she lived and what was left, on her death would be divided equally between all four children. According to the Defendant, the mutual wills acknowledged the Defendant’s primacy, as the main object of the deceased’s testamentary intentions, and catered for her ongoing needs, whilst also ensuring that each of the deceased’s, and also the Defendant’s, children, ultimately, will receive provision upon her death.

Neither party referred to what effect, if any, the making of a family provision order would have upon the mutual will agreement. In this regard, it is to be noted that s 72(1)(a) of the Act provides that a family provision order takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the will of the deceased, if the deceased person made a will.

Nor was there any specific reference to Barns v Barns, in which Gleeson CJ had noted, at [7], that “…contractual obligations undertaken by a deceased during his lifetime, which bind an estate, may affect the property available to meet an order under the Act” or that “[O]bligations incurred by a deceased, and binding upon a legal personal representative, must be taken into account in determining the extent of the estate out of which provision may be made”.

It is next necessary to say something about the mutual wills entered into by the deceased and the Defendant. Whilst there is no evidence of the circumstances surrounding the instructions for the Will of either the deceased or of the Defendant, or how the “Contract to make Mutual Wills” was created or executed by each of them, there was no dispute that it was a valid contract made by them with the intention of having legal effect.

The Wills are what may be termed “mutual wills”, and were made in fulfilment of a mutual arrangement, the origin of which is probably immaterial, except that it was the outcome of discussions between the deceased and the Defendant about how, ultimately, to benefit the children of each of them.

The nature of the arrangement reached by them is made clear by the nature of the testamentary provisions in each Will, the document headed “Contract to make Mutual Wills”, the fact that the two Wills were simultaneously so made, and the fact that they remained unaltered. The evidence of the arrangement between them is not only uncontradicted, it was not even made the subject of cross-examination, though other matters were.

One of the matters to which the Court may have regard under s 60(2) of the Act is the nature and extent of any obligations or responsibilities owed by the deceased to any beneficiary of the deceased person's estate: s 60(2)(b) of the Act. In this case, this is a matter of significance since there is evidence of the “Contract to make Mutual Wills”.

There is also no dispute that, on the deceased’s death, the Defendant has taken, subject to the result of these proceedings, and thereafter, will take the benefits she was given by his Will and as a result of her survivorship.

A contract or arrangement for mutual wills “means a contract for testamentary disposition at death, the consideration on each side being the actual disposition. Revocation by either party is permissible if communicated to the other with opportunity also to revoke”: Hudson v Gray & Ors (1927) 39 CLR 473 at 488 (Isaacs J); [1927] HCA 31.

In Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52, the High Court held that where a husband and wife agreed to make mutual wills and not to revoke them, such that after the wife died the husband received her estate under her will (as intended by the mutual wills agreement) and the husband subsequently made a new will with different provisions, the husband’s estate should be distributed in accordance with the first will. In other words, the intended beneficiaries would be able to enforce a constructive trust arising from the agreement and the fact that testamentary decisions upon the faith of the agreement had taken effect by the death of the first of the will-makers.

In Aslan v Kopf [1995] NSWCA 26, Gleeson CJ (Kirby P and Priestley JA agreeing) observed that “although a will is, by its nature, revocable, a testator may enter into a binding contract not to revoke a will, and breach of such a contract will give to the other contracting party a right of action for damages, and, depending upon the circumstances, a possible claim for equitable relief.”

In Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 489, Handley AJA (Allsop P and Giles JA agreeing) noted at [31]:

In du Maurier v du Maurier [2021] NSWSC 83, Parker J observed, at [19]:

In the present case, that the deceased and the Defendant intended to, and did, enter into legally binding relations, and made an agreement not to revoke his, and her, Will, respectively, has been established and has been accepted by the parties. It follows, since the deceased died without having revoked his Will, the Defendant, as the survivor, is affected by a trust to give effect to her agreement with the deceased.

In Birmingham v Renfrew, Latham CJ put it, at 680, that the case concerned "a trust which is declared by the law to affect the conscience of his executor and of the volunteers who are devisees or legatees under his will". Dixon J, at 683, described what occurred as operating “to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will which he undertook would be his last will”. His Honour added, at 689, that:

In Ford and Lee’s The Law of Trusts (4th ed, 2019, Thomson Reuters), the learned authors, at 22A.220, discuss mutual wills in the context of a notional estate order:

In an article by Rosalind Croucher titled “Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263, the learned author discusses the impact of Barns v Barns in New South Wales:

In Baird v Smee [2000] NSWCA 253, Mason P wrote, in the context of mutual wills, at [19]:

Next, I shall discuss, relatively briefly, the statutory scheme that is relevant to the facts of the present case. There was really no dispute about the general principles that apply.

The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category based eligibility system. There are six categories of persons by, or on whose behalf, an application may be made.

Since the Plaintiff’s eligibility is not disputed, the Court must determine whether adequate provision for his proper maintenance, education or advancement in life has not been made by the Will of the deceased: s 59(1)(c). 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".

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

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

In the Court of Appeal, Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], wrote that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].

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 (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

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” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

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

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) at 7.

In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:

The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court 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] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J).

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

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

In Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], White J wrote:

In Sgro v Thompson [2017] NSWCA 326, White JA (with whom each of McColl JA and Payne JA agreed) wrote (at [86]):

Section 60 of the Act identifies matters to which the Court may have regard for the purpose of determining, relevantly in this case, whether to make a family provision order and the nature of any such order. I shall not repeat the 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as a “multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [121] - [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.

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

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 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(2) of the Act provides that the Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order. In this case, the other child of the deceased and the two children of the Defendant are persons who would be affected by the making of an order in favour of the Plaintiff. It follows that it could be necessary to make an order under this sub-section.

In this regard, the Plaintiff accepted that if he received provision by way of an order, he would disclaim any interest under the Defendant’s Will: Tcpt, 19 October 2021, p 66(28-33). As stated, neither counsel made any submissions on the effect of an order, operating as it may, as a codicil to the deceased’s Will.

In Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474, at 473-474, I repeated the principles that apply in a claim by an adult child:

The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased’s Will or otherwise justify such provision.

The following principles are relevant to the competing claim of the spouse of the deceased:

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

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, at [131]:

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox [2014] 87 NSWLR 646, by Basten JA at [18]-[20], and by Barrett JA at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and very recently, by White JA, in Steinmetz v Shannon [2019] 99 NSWLR 687 at [37]. They must be remembered.

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified should not lead to the conclusion that they have not been fully considered.

Judged by quantum, and looked at through the prism of his own financial resources and needs, adequate provision for his proper maintenance or advancement in life might be seen as not having been made by the Will of the deceased for the Plaintiff. However, as stated above, 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.

In this case, the Plaintiff's claim substantially rests on two limbs only, namely that he is a son of the deceased with whom there was a bond of natural love and affection, and that although he is an adult, able bodied child, in employment and capable of maintaining himself, his current financial circumstances leave him little, or no, margin for expenditure.

When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what he ought to have done, and in this case, actually did, in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd [1938] 2 All ER 14 at 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19–20 (Dixon CJ).

The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

In reaching my determination, I have considered all of the circumstances of the case, but the following factors may be regarded, of some significance, whilst not, on their own, determinative of the Plaintiff’s entitlement to a family provision order:

I make clear that the prospect of the Plaintiff receiving a one-quarter share of the Defendant’s estate on her death is not solely determinative of his entitlement to a family provision order. It is just one element in the evaluation assessment that I have weighed, with all of the other elements to which reference have been made, in reaching my conclusion.

In all the circumstances, I am not satisfied that the Plaintiff has established that adequate and proper provision has not been made for him by the Will of the deceased. It follows that the court’s discretion to make a family provision order has not been enlivened. In any event, for the same reasons, in the exercise of discretion, I would not make an order for provision for the Plaintiff. Accordingly, his proceedings should be dismissed.

The Court: