Smith v Smith

HIS HONOUR: The Court is concerned, yet again, with a family dispute regarding the disposition of the estate of a deceased parent, he being the father of all of the parties to the proceedings. The case provides another example of the high level of emotion that is generated in relation to the distribution of the property of a parent. Despite various opportunities given to the parties to resolve the proceedings, they did not do so, and instead conducted the proceedings, the hearing of which lasted 2 days, at a combined estimated cost of about $125,000. (The hearing would have been longer, and the costs greater, but sensibly, after some encouragement, only the parties were cross-examined.)

In relation to some of the affidavit evidence that was read, one cannot help but remember, and now repeat for the benefit of the legal profession, what Pembroke J wrote in Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, at [19] and at [22], which, in my view, is particularly apt for those acting in claims for a family provision order:

The passages quoted refer to the duty of counsel. In my view, the duty extends equally to solicitors, who also must exercise professional judgment in determining the relevant, and necessary, information to be included in the affidavits to be read in the proceedings.

The Plaintiffs, Mark Sonny Smith, and Leanne Cara Smith, are two of the three children of Ross Gilbert Smith (“the deceased”). Each makes a claim for a family provision order out of the estate and/or notional estate of the deceased pursuant to the Succession Act 2006 (NSW) (“the Act”), by way of greater provision than was made by his Will. They also seek an order that their costs of the proceedings be paid out of the estate.

The Defendant named in the proceedings is Lucas Matthew Smith, their brother, who is the sole executor named in the Will of the deceased to whom Probate was granted. His principal submission was that the Plaintiffs’ proceedings should be dismissed with costs.

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 The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. 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 and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. At the hearing, it was agreed that there was no notional estate. Hereafter, I shall simply refer to the estate of the deceased.

There is no dispute that the Plaintiffs’ application for a family provision order, made by Summons filed on 3 July 2015, was brought within the time prescribed by the Act (within 12 months after the date of the death of the deceased) and that each Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

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

It is appropriate to record certain matters which were not in issue, or which I find to have been established on the balance of probabilities.

The deceased died on 4 July 2014, at the age of 71.

The deceased married Margaret Leslie Smith. They had three children, namely Mark, who was born in March 1970, Leanne, who was born in March 1973, and Lucas, who was born in May 1977. Sadly, Margaret died in March 1987. At the time of her death, each of the Plaintiffs was a teenager and Lucas was 9 years of age.

Generally, the picture presented of the family’s lives appears fairly consistent. Each of the children described the deceased in terms that portrayed him as “hard”, “very emotional and unpredictable”, “angry… and stubborn but extremely hard working”, and as a “very strict parent”. Each gave evidence of what he and she, at a young age, was required to do to assist in the daily lives of the family.

Mark is married to Melissa. They have two children, Jesse Robert Smith, who was born in April 1998 and Tyler Jason Smith, who was born in October 1999.

Leanne is not married or in a relationship. She has no children.

Lucas is married to Rebecca. They have one child, Bahlie Evlyn, who is now 7 years old. Lucas has a step-daughter, Jordan Ebony Herbert-McMurray, who is now 19 years old, and who does not reside with them.

The deceased made his last Will on 20 June 2014. On 2 December 2014, this Court granted Probate of that Will to Lucas.

The deceased in the Will:

The deceased had made a prior will dated 6 July 2007. In summary, in that Will, he devised the Turondale Road Property, as to one-third, to Leanne, as to one third, to Jesse and Tyler, and the remaining one third, to Jordan and any other children that Lucas might have. He devised the Box Ridge Property to Mark, Lucas and Leanne, “as joint tenants in equal shares or the survivors of them for their own use and benefit absolutely”. He left the residue of his estate to Lucas absolutely.

There was also in evidence a video recording, the transcript of which was Ex. A. The transcript is in the following terms (with slight amendment):

The deceased purchased the Turondale Road Property in 2001. He lived there, with Lucas, until Lucas left in about 2004.

In 2001, the deceased was diagnosed with cerebellar degeneration idiopathic late onset. Shortly after he was diagnosed with that condition, he suffered a hand injury in a farm accident. In 2014, he was diagnosed with bowel cancer, from which he died 6 weeks later. As will be detailed later, during these periods, Lucas was his primary carer.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the value of the deceased’s estate was estimated to be approximately $806,641.

The Turondale Road Property was sold, privately, in accordance with the direction in the deceased’s Will, in February 2016, for $605,000. The net proceeds of sale, after adjustments and the payment of legal costs of sale, were $602,592.

At the hearing, the deceased’s estate consisted of cash held in bank ($600,503) and in a controlled moneys account ($23,817), and the Box Ridge Property (with an estimated value of $90,000). If it is necessary to sell the Box Ridge Property, the costs and expenses of sale are estimated to be $6,710. Thus, the gross distributable value of the deceased’s estate was agreed to be $714,320.

Lucas was hopeful of retaining the Box Ridge Property, although he conceded in oral evidence that there was “technically” no reason to do so. The Court was informed, without objection, that it is vacant land; that there is currently no potential to build on it; and that it is, otherwise, not income producing: T172.17 – T172.42.

The parties, at the hearing, also agreed that the legacy to Jordan should not bear part of the burden of the additional provision, if any, made in favour of Mark or Leanne. Accordingly, she will receive the whole of that legacy.

Usually, in calculating the value of the deceased’s estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. The Plaintiffs, if successful, normally will be entitled to an order that his and her costs, calculated on the ordinary basis, should be paid out of the estate of the deceased, whilst the Defendant, as administrator of the estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that his costs, calculated on the indemnity basis, should be paid out of the estate.

How the burden of the costs of the proceedings will be borne cannot be determined as part of these reasons as counsel informed the Court that there are documents that may be relevant on the issue, depending upon the result of the proceedings. When these reasons are published, the parties will be given an opportunity to provide any further evidence and submissions on costs based upon the documents if any of the documents are then relevant.

The total of the Plaintiffs’ costs and disbursements of the proceedings, calculated on the indemnity basis, to completion of hearing, were estimated to be $63,568. At the hearing, and from the bar table, those legal costs and disbursements, calculated on the ordinary basis, were estimated to be $56,655. (Counsel for the Defendant, whilst not accepting the estimate as an agreed costs figure, was content for the Court to use that estimate as a guide in determining the value of the net estate available for distribution if a costs order in favour of the Plaintiffs were made.)

The total of the Defendant’s legal costs and disbursements of the proceedings, calculated on the indemnity basis, to completion of hearing, were estimated to be $62,160.

For the purposes of the hearing, the parties agreed that the value of the net estate available for distribution, if the legacy to Jordan is paid ($30,000), if the usual costs orders are made and if the estimate of those costs prove accurate ($118,815), and if the costs and expenses of sale of the Box Ridge property are required to be paid ($6,710), will be $558,795. (If, as was submitted by Lucas, the Box Ridge property is counted as part of the distributable estate but retained by him rather than being sold, the parties agreed that the net distributable estate will be about $565,000. However, if the Box Ridge property is excluded from the distributable estate and retained by Lucas, the net value of the estate will be about $475,000.)

There was no dispute that the only eligible persons, within the meaning of that term in s 57 of the Act, are the parties in the proceedings.

The other matter to mention at this point is the submission made by Lucas on how the burden of the provision, if any, for each Plaintiff should be borne. He submitted:

Counsel for Lucas stressed that there is no testamentary duty or obligation to grandchildren where, as here, the grandchildren were not members of the household of, nor wholly, or partly, dependent upon the deceased: Chapple v Wilcox [2014] NSWCA 392.

At the end of the first day of the hearing, the following exchange took place between the Bench and counsel for the Plaintiffs:

(I should mention that Tyler and Jesse were in Court, although their mother, Melissa, was not, when this statement was made by counsel for the Plaintiffs.)

On the morning of the second day of the hearing, what had been said was raised again:

Section 65(1) of the Act provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application. Whilst each of Tyler, Jesse, and Bahlie, is not a person by, or in respect of whom, an application for a family provision order may be made, each is a beneficiary named in the deceased’s Will, and the Court is not permitted to disregard his and her interests as such. Lucas, of course, is an eligible person who has not made an application, but he, too, is a beneficiary.

In the circumstances, I shall bear in mind what has been submitted as to how the burden of the provision made for the Plaintiffs is to be borne. However, as will be seen later, I prefer to follow the scheme of the deceased’s Will in determining the question.

Because a considerable amount of time was spent on this issue, and because the principal submission made by Lucas was that the relationship of each of Mark and Leanne was such that he, and she, should be regarded as having been estranged from the deceased, I shall deal with this issue next.

The context which gave rise to the relationship of each of the parties with the deceased, some of which I have set out earlier, is relevant.

Mark’s evidence about his relationship is that, at least until 2007, he was “always a loving and loyal son”. Although there is a dispute about the regularity of his visits to the deceased, I am satisfied that his relationship with the deceased until about 2007, was a reasonably close one.

He admits that he became estranged from the deceased in 2007 “for reasons unbeknown to myself”. He describes the incident which prompted him not having further face to face contact with the deceased, in the following terms:

It was put to Mark, in cross-examination, that the reason for the deceased’s conduct was that he had heard that Mark said that the deceased did not love his grandsons. Mark denied that he had made any such statement and reiterated that he did not know why the deceased had acted in that way. I accept his denial, as Lucas was not present at the incident involving the deceased and Mark. Also, Lucas did not suggest that the deceased had told Mark of the reason.

Lucas also admitted that he did not raise the relationship of the deceased and Mark again because he did not want his relationship with the deceased to change, realising, if he tried to intervene, that the deceased might become upset.

Mark admitted that, thereafter, he did not see, or speak to, the deceased, although he did send him, and Lucas, some text messages “for several years with wishes on their birthdays and Father’s Day”. He says that the total number of texts messages sent to the deceased, over the following 4 or 5 years, were between 10 and 15. No mobile telephone records to corroborate his assertion were tendered.

Mark admitted that he did not receive any acknowledgement, or response to the text messages, from the deceased. I formed the impression that he considered, perhaps with some justification in the circumstances, any attempt at reconciliation would be fruitless.

Lucas disputed the number of text messages that he had received from Mark, and did not know whether Mark had sent any text messages to the deceased.

Leanne said that from a young age, she and the deceased did not always see eye to eye, and they would have disputes, which Margaret would be required to mediate. After Margaret’s death, her life became more difficult with, and she experienced isolation from, the deceased. Her relationship with him deteriorated to the point that the deceased told her that she was to live with her grandparents, which she did for a short period of time. She returned home, but a few months later, in about December 1989, she left the deceased’s home, never to return.

The precise event or events that caused her to leave was not disclosed in her evidence or investigated during cross-examination. Nor was it made clear whether her leaving home, initially, was intended by her to be temporary or permanent. However, that probably does not matter much since it crystallised into a permanent situation. That she had no contact with the deceased for about 19 years before his death was not in dispute.

I formed the impression from her written, and oral, evidence that she felt a strong sense of grievance towards the deceased in regard to his treatment of her, particularly following the death of Margaret. No doubt, at this time, each was dealing, in her, and his, own way, with Margaret’s death, and perhaps, neither comprehended the sense of loss felt by the other.

Although Leanne did not specifically mention it in an affidavit, there is evidence from Melissa Lonergan, a friend of Mark and Leanne, who stated that in around 1990 or 1991, whilst at the Chittaway Tavern, she encouraged Leanne to greet the deceased who was also there. Ms Lonergan observed Leanne to do so as he walked by the table at which they were sitting, and that the deceased did not respond to Leanne’s greeting.

Leanne next spoke to the deceased in 1995 when she was about 22 years old, at the wake of the deceased’s mother, but, again, he did not respond to her greeting. Thereafter, neither she, nor the deceased, made any attempt to contact the other. I consider the following passage of oral evidence given by Leanne as instructive (editing transcript errors):

Lucas maintains that Leanne’s decisions to leave, and to not return, to the deceased’s home had been her decision alone and not one forced upon her by the deceased. However, he says that he and the deceased never discussed the deceased’s relationship with Leanne.

Lucas had the closest relationship with the deceased. As I have stated, he lived with the deceased for all of his life until he left home to live with Rebecca. He admitted that living at home with the deceased had benefitted him because he had not had to pay any rent, but he said that he did pay some of the expenses whilst he was living there.

Lucas looked after the deceased for the last 6 weeks of the deceased’s life, resigning from his full-time employment to do so.

Lucas admitted that he did not inform either Mark or Leanne of the deceased’s terminal illness, or tell either of the deceased’s death. He said that he “respected [the deceased’s] wishes on all matters” and that had the deceased asked to see either of them, he “would have taken the appropriate steps”. He added that “if Dad told you to do something you do it”.

Other evidence given by Lucas made clear that he does not now have, and since 2007, has not had, a relationship with either Mark or Leanne. He said that he does not regard them, any longer, as his family. He said that he would like to resurrect his relationship with his nephews, Jesse and Tyler, but realises the proceedings have not helped that to occur.

The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”. (Although the reference to conduct does not expressly refer to the conduct of the deceased, “that must be a relevant factor in assessing the relationship of the deceased and any other person”: Poletti v Jones [2015] NSWCA 107, per Basten JA, at [25].)

The nature of the relationship and the acknowledged estrangement complicates the assessment of the obligation owed by a deceased parent to an adult child. However, in this case, its significance, particularly to the deceased, should be remembered. I refer to the evidence of what the deceased said, as transcribed in Ex. A, in 1994, and the provision made by him for each of Mark and Leanne in the 2007 Will, the nature of which provision was not altered until a few weeks before the deceased’s death.

The event in 2007, which is said to have prompted the breakdown of the deceased’s relationship with Mark, occurred prior to the date the deceased made the 2007 Will. In that Will, the deceased made some provision for Mark. That Will was not revoked, despite there being no contact between them for about 7 years thereafter.

By 1994, the deceased had not seen, or spoken to, Leanne for about 5 years. By 2007, he had not spoken to her for about 18 years. Yet, by his 2007 Will, he made significant provision for her.

The deceased’s intention to benefit each of his three children was expressed to a friend of the deceased, Mr P K Skamperle. The deceased also spoke to Mr B F McInnes, another friend, about that intention. Each was not cross-examined on his affidavit. The deceased also said something similar to Melissa. (I accept that in each case, the statements appear to have been made many years prior to the deceased’s death.)

I tend to the view that the breakdown in the relationship with each of Mark and Leanne had more to do with the personality of the deceased than with any desire of each of them to sever, completely, all ties with him. Each of the children of the deceased described the deceased in terms that suggest that forgiveness for faults, or perceived faults, did not come easily to him. Certainly, the deceased does not appear to have exercised any ability, or taken any responsibility for trying, to heal the rift that existed between himself and two of his three children.

No doubt, each of Mark and Leanne could have made greater efforts to resurrect his, and her, relationship, but that might have been difficult for fear of further rejection. Yet, each cannot be absolved completely from responsibility for the estrangement that continued. In the case particularly of Leanne, it does not provide a complete excuse for not trying at all to contact the deceased through Lucas, or otherwise trying to communicate with him in writing.

The virtual lack of provision for each of Mark and Leanne, as demonstrated by the terms of the deceased’s last Will, does not appear to have been a long held testamentary intention of the deceased to deny each, because of his, and her, conduct, respectively, a greater share of his estate. (Perhaps less so for Mark, bearing in mind the terms of the 2007 Will).

There was a suggestion that Lucas may have encouraged the deceased to change his Will. He admitted that he had taken a document said to have been written by him in the presence of, and with instructions from, the deceased, to the solicitors who then prepared the last Will for the deceased. A call for the document referred to (bearing in mind the same solicitors represented Lucas at the hearing) did not result in its production.

Even if the allegation were relevant, there had been no challenge to the validity of the last Will, and Probate was granted of that Will. Therefore, counsel was not permitted to persist with the cross-examination of Lucas on this topic.

Finally, it is to be noted that the deceased did not provide any statement about the reasons for making the dispositions made by his last Will or for changing the 2007 Will. Nor did he tell Lucas of his reasons.

In my view, the estrangement that existed between the deceased and each of Mark and Leanne does not result in disentitling either to additional provision from the deceased’s estate. The conduct of each was not callous or unfeeling. Each did not demonstrate ill-temper or violence towards the deceased. That each was unavailable to make amends at the end of the deceased’s life may be explained by the fact that each was not informed, by Lucas, that the deceased was dying.

The conduct of each does, however, as I shall demonstrate later, by reference to authority, restrain, somewhat, the amplitude of the provision that ought to be made for him and her, respectively, from the deceased’s estate.

Mark is a member of the Royal Australian Navy, holding the rank of a Sailor, taking a position as a Dental Supervisor.

Mark says the value of his assets, including superannuation is $463,250. Of that estimate, approximately $408,528 is said to be his superannuation balance. Treating that amount as a financial resource, because it is said to be unavailable, he has property with a value of $54,721, of which about $35,000 is held as cash in bank. This amount is the balance of his Australian Defence Force Retention Bonus, which he would have to repay if he leaves the ADF prior to June 2019. (There is no suggestion that he intends to do so. To the contrary, he gave evidence that he intends to remain in the ADF and hopes to progress in rank.)

Mark and his family do not own any shares and do not have any interests in any company or corporations. He does not have any liabilities.

Mark’s current gross annual income is $85,382. His fortnightly net income is approximately $1,810 (making a monthly net income of approximately $3,621). He states that his family’s monthly expenditure is approximately $5,417. Part of the shortfall between Mark’s net income and the family’s expenses is made up by Melissa’s income as a personal trainer. She earns approximately $10,000 per annum.

Jesse and Tyler are both in high school. Each works part time and makes what contribution he can to household expenditure. The contribution by each is unlikely to be financially significant.

Tyler hopes to attend university. Jesse does not know what he wants to do in the future but enlisting in the Navy is a possibility. At least in the immediate future, it is likely that each will continue to be dependent on Mark and Melissa.

Mark suffers from displaced and protruding discs in his spine, requiring podiatry orthotics, and has deteriorating vision. There was no suggestion that his medical conditions affect his earning capacity.

Mark conducted his case upon the basis that he and his wife do not own, and have never owned, real estate. He says that if additional funds were provided to him, he would use the funds as a deposit on a home. He says that he is willing to move to a more remote area (Taree, NSW or a more affordable area in Western Australia) in order to purchase a very modest home and continue living as a family unit.

He gave evidence that the costs of a house would be about $500,000. He did not give any evidence of having inspected any particular houses that were available for sale. Nor did he give evidence of what amount he might be able to borrow to fund such a purchase if he and Melissa do decide to do so.

I confess to having some doubt that the purchase of a house is a “need”. Currently, the accommodation in which the family has lived for about 8 years, which he admitted was “comfortable”, and the rent for which is subsidised, is secure, so long as Mark remains in the Navy. If he were to relocate to Western Australia (which he described as “a dream”), he could live “on base”, with no accommodation costs. If Melissa and their children did not go with him, they would be permitted to remain living in his current accommodation, albeit that if either of Jesse or Tyler were no longer dependant, the rent might increase.

There is no suggestion of any significant benefits being provided to Mark during the deceased’s lifetime. (He was given $500 by the deceased many years ago.) There was a period of time when Mark was living with the deceased with his family when he may have lived occupation fee free, but it was only for a few months. During this time, Melissa took the role of the housewife and supported the household in that manner.

Leanne was described, by her counsel in submissions, as “a wayfarer, who has kept the odd job from time to time”.

She has property with a value of $162,440, of which $97,340 comprises contributions to superannuation. She has cash in bank of about $50,000. Otherwise, she owns no shares, property, or any other valuable assets. She has no liabilities.

She has recently (from about February/March 2016) gained employment at Rottnest Island, an island off the coast of Western Australia, a short distance west of Fremantle, as a casual store-person. She receives an average gross monthly income of approximately $4,281, with a net monthly income of approximately $3,458. Her monthly expenditure is estimated to be approximately $1,998. (In her previous position as a kitchen hand, she was earning an income of approximately $79,000 per annum.) It can be seen that, currently, she has a surplus of income over expenditure ($1,460).

Leanne’s employment is by no means secure (being dependent on seasonal change) and her pay varies, depending on her rostered shifts. Because she lives on the Island, she is rostered to work shifts totalling 38 hours per week. She does not pay rent for her accommodation.

Leanne lives alone and has no dependants.

Leanne suffers from a number of medical conditions. Most significantly, at the date of hearing, she refers to an overactive thyroid (diagnosed in 2006), which will require her to take medication for life. There are various side effects of the medication, including weight loss, irritability and agitation. She also, until recently, suffered from contact dermatitis (eczema rash over hands and face) requiring wearing of gloves if working in a kitchen and limiting water contact that causes sensitivity. (This condition has improved since she left her last job.) She also suffers from deteriorating eyesight.

Leanne gave some evidence that her medical conditions did make her current job harder, although, to date, they do not appear to have affected her earning capacity.

Leanne conducted her case, also upon the basis that she does not own, and has never owned, any real estate. She says that if additional funds were provided to her, she would use the funds as a deposit on a home. She gave evidence of 4 bedroom homes, in Fremantle, available for purchase, which would cost in excess of $440,000. She explained that she needed such a large home to house friends and family who might visit. She gave no evidence of having inspected any properties for sale. Nor did she give evidence of what amount she might be able to borrow to fund such a purchase.

Again, I confess to having some doubt that the purchase of a house is a “need”. Even if it were a “need”, she does not require accommodation of the type she identified. Also, she admitted that her savings ($50,000) and the bequest in the deceased’s Will ($30,000), together, would provide sufficient to pay a deposit for a home.

Whilst she said that a home might provide “some stability into my life”, she gave evidence that she had “lived in more than 30 different places - houses, flats, caravans, car and tent and … had more than 20 different jobs. If I am unhappy I move on. I cannot help this. It is who I am. I learnt a long time ago that life is too short".

She was really unable to say where she might choose to live more permanently, saying that she had not yet found the place to settle down.

In my view, Leanne’s history, and her evidence, does not suggest that she has any real desire to establish roots in any particular place. Indeed, she gave evidence that she did not intend to remain working where she is, although she might stay there for a couple of years; that she used the employment as a “stepping stone” to get into the tourism industry; and that she did not know where, or when, her next employment would be because “I haven't looked that much into it. I take one step at a time.”

Leanne admitted that once the deceased had placed $500 in her bank account without any request by her. However, she stated that she returned it to him. Otherwise, the deceased did not provide any benefits to her after she left home.

Lucas was employed full-time as a hardware sales assistant with a gross income of $3,642 per month. He has recently changed jobs, but as he had not disclosed any of the changes by serving an updating affidavit, and as counsel for the Plaintiffs asserted prejudice because of an inability to investigate late evidence, counsel did not persist with the application for leave to adduce this evidence.

Rebecca, his wife, works for the Department of Family and Community Services as a caseworker earning approximately $4,202 per month.

Lucas has assets with a total net value of $279,683. These assets include a recently constructed home said to be worth about $450,000 to $500,000, but subject to a mortgage of $362,542. He and his family live in the home.

As stated earlier, he and Rebecca have a dependent child. He gave evidence that he and his wife “make ends meet to get by”.

Lucas admitted that he had received a number of benefits from the deceased during the deceased’s lifetime, including occupation fee free accommodation for many years, as well as a gift of between $30,000 and $34,000, to enable him to purchase previous accommodation. Whatever amount it was that the deceased gave to him, Lucas admitted that it was a significant benefit.

There was really no issue about the principles that apply to this claim. I have set out the principles in many cases and I set out what follows for the benefit of the parties.

Because there is no dispute about eligibility or that the proceedings were commenced within time, under s 59 and s 60 of the Act, the task of the Court, in this case, is:

The mandatory legislative imperative that drives the ultimate result is the Court’s satisfaction of the inadequacy of provision made by the deceased’s Will. 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 other words, it is the union of inadequacy of provision made by the Will of the deceased, and the Court’s determination that an order for provision out of the estate of the deceased ought to be made, that gives rise to the success of each applicant for additional provision.

Other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

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

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

Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

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

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

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

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

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

In Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114], White J noted:

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

In Hay v Renwick [2016] NSWSC 1048, Brereton J, at [17], noted that “advancement … envisages not merely maintaining the standard or status of an eligible person, but in an appropriate case, improving and enhancing it”.

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

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

Their Lordships went on to state, at 478:

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

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

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

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

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

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

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

In Collins v McGain [2003] NSWCA 190, at [42] and [47], Tobias JA, with whom Beazley and Hodgson JJA agreed, said:

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

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

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

Although the existence or absence of “needs” which the claimant cannot meet from his, or her, own resources will always be highly relevant and often decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for his or her proper maintenance or advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 1 at 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at 816 [38], 820 [47] (Ormiston J). It follows that “the jurisdiction is not an exclusively needs-based one”: Hay v Renwick, per Brereton J, at [15].

Yet, in referring to the concept of “need”, it should also be noted that the statutory formula makes no reference to “need”, but rather to “adequate provision for the proper maintenance, education or advancement in life”. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that “the need a claimant must demonstrate is a need for ‘proper’ maintenance, education and advancement in life”, but that does not mean that “adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others”. Respectfully, I agree. Consideration of “needs” must be in the context of the statutory formulation.

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

As was recently repeated by Ferguson JA (with whom Whelan and Kaye JJA agreed) in Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178, at [66]:

In the event that the Court is satisfied that the power to make an order is enlivened, then the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made.

This part of the determination arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. The inclusion of the last sub-section extends to any fact or circumstance which, in the opinion of the Court, is considered relevant. Like some of the other sub-sections, a matter to which regard may be had, may have occurred before, or after, the death of the deceased.

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

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.

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

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

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) of the Act).

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

Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit. The section, whilst providing a general power as to costs, does not apply to costs as between party and party, as opposed to costs to be paid out of the estate: Chapple v Wilcox [2014] NSWCA 392 at [25]-[26].

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst some of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks 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. The Court’s role is not to reward an applicant. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.

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

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

Of the freedom, in Grey v Harrison, Callaway JA said, at 366:

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:

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

White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]:

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

As Allsop P said in Andrew v Andrew, at [16]:

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

Thus, “there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment”: Williams v Aucutt [2000] 2 NZLR 479 at [44]. As Emmett JA wrote in Burke v Burke [2015] NSWCA 195 at [124]:

In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added:

Barrett JA, at [64], wrote:

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

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

A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased as his, or her, parent having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113 at [30]; Savic v Kim [2010] NSWSC 1401, at [82].

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

Because of the way in which Lucas was cross-examined, it is necessary to repeat what was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, at [46], by Kelly J:

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

In relation to the claim of Mark and Leanne, being a claim by an adult child, the following principles are also useful to remember:

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

Acrimony or estrangement between an applicant and the deceased is a consideration that has been at the forefront of Lucas’ case in opposition to the claim by each of Mark and Leanne.

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]:

I have discussed the topic of estrangement in a number of cases. Most recently, in Underwood v Gaudron [2014] NSWSC 1055, I set out the general principles which I repeat. (Although my judgment was the subject of an appeal, which was dismissed, the Court of Appeal did not indicate any disapproval of what I had written on this topic: Underwood v Gaudron [2015] NSWCA 269.)

In Andrew v Andrew, Basten JA at [40] endorsed what I had said about estrangement, much of which is set out above, as follows:

His Honour added at [49]:

Also see the analysis of Ward JA in Burke v Burke [2015] NSWCA 195 at [89] – [95].

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. 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.

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

The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; Burke v Burke [2015] NSWCA 195 at [84] – [85]. They must be remembered.

Claims for a family provision order present particular difficulties where the actual estate is modest and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiaries who have had to defend the claims and who are the chosen objects of the deceased's bounty.

Being an “eligible person” is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, each of Mark and Leanne, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

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

The fact that a small bequest is made in the deceased’s Will for each Plaintiff does not, of itself, bespeak inadequacy. The Court is required to consider more than that. The totality of the relationship of each Plaintiff and the deceased, the age and capacity of the Defendant and any other beneficiaries, the claim of each on the bounty of the deceased, and the size of the estate, are very relevant factors in determining the answer to the question whether the Court is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of each Plaintiff.

The consideration of all of the matters I am required to consider leads me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of each of Mark and Leanne respectively. It follows that the Court has jurisdiction to make an order for provision out of the estate of the deceased for him and her.

I turn next to consider the nature and quantum of any provision that should be made. In my view the deceased had no legal obligation to maintain either Plaintiff prior to his death. It is clear that each Plaintiff had been financially independent of the deceased for many years prior to his death. Nor did the deceased have any obligation to treat his three children equally.

I do not accept the submission made by Mark’s counsel that “[a]s an absolute minimum award of provision for Mark, the Court could consider an order that he receive a lump sum out of the deceased’s estate equivalent to what the deceased clearly intended he receive, being 1/3 of the estate”.

Nor do I accept his similar submission that, “as an absolute minimum award of provision, the Court would order that Leanne receive a lump sum out of the deceased’s estate equivalent to what the deceased clearly intended she receive, being 1/3 of the estate”.

In my view, the submission, in each case, does not take into account all of the matters that are required to be considered, and in particular the period of time, in each case, during which there was no contact between each of Mark and Leanne, respectively, and the deceased.

But this does not mean that I accept the Defendant’s principal submission that each of the claims should be dismissed, because, in the case of Mark, he has “failed to demonstrate any significant need which would justify further additional provision being awarded out of the estate” and in the case of Leanne, that the legacy given to her in the Will ($30,000) is adequate and proper provision in all the circumstances.

I tend to the view that the deceased’s obligation to each extended to making provision of a modest capital sum for exigencies of life, which can be used, if necessary, as a deposit on a home, or in any other way that Mark and Leanne, respectively, wishes to use it.

In my view, having regard to all of the matters that I am required to consider, Mark should receive, in lieu of his entitlement under the deceased’s Will, a legacy of $90,000. Leanne should receive, in lieu of her entitlement under the deceased’s Will, a legacy of $100,000.

In my view, Leanne should receive slightly more because her employment is less stable and because she does not have the support of a spouse or partner, in the event that her current financial circumstances change. The difference is not significant because she has no dependants to support, whereas, at least currently, Mark does have two teenage children. In addition, her lack of contact with the deceased was significantly longer than was Mark’s.

In each case, the provision made, without reference to the savings that each has, should be sufficient to provide a reasonable sum for a deposit to be paid on the purchase of a home, if that is how each uses it, or alternatively, when added to his, and her, savings, respectively, a reasonable capital sum as a buffer for contingencies.

Having considered the quantum of the provision to be made, I shall next consider how the burden of the provision should be borne. I have considered the parties’ submissions, to which reference has been made previously.

It seems to me that the legacy for each of Mark and Leanne should be borne in the same manner as each legacy was to be borne under Clause 4(a)(i) and (ii) of the deceased’s Will. In this way, the deceased’s intentions (except as to the quantum of provision for each of Mark and Leanne), will not be subverted to a greater extent than is necessary to make proper provision for each of Mark and Leanne.

It will also be remembered that under s 72(1) of the Act, 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 person, if the deceased person made a will.

In view of the agreement between the parties as to the legacy for Jordan, that should be paid also, in accordance with Clause 4(a)(iii) of the deceased’s Will.

Thus, from the net proceeds of sale of the Turondale property ($600,503), the legacies to Mark, Leanne and Jordan should be paid first ($220,000). Then, subject to any further submissions, the costs of the proceedings should be borne (say $118,000, or whatever sum is ultimately ordered to be paid for the costs of the proceedings). Then, the balance of the proceeds of sale should be divided in accordance with Clause 4(a)(iv) of the deceased’s Will.

Using the estimates, an amount of about $260,000 will be left to be divided equally between Lucas, Bahlie, Jesse and Tyler, with the result that each will receive about $65,000. In addition, Lucas will retain the residue ($23,817) and the Box Ridge Property ($90,000). It follows that he will receive property in the estate with a total value of $178,817. That is significantly more (bearing in mind the net value the estate) than any of the other beneficiaries receives. The greater provision reflects his competing claim upon the bounty of the deceased.

I have referred to what was said on behalf of Jesse and Tyler in regard to a reduction of their shares. Properly invested, the share of the estate passing to Bahlie, will be reasonably large when it is paid to her. I have not disregarded the interests of any of these beneficiaries, but I consider that the obligation of the deceased to each of his children is greater than his obligation to his grandchildren.

As there is available cash, there is no reason why each legacy should not be payable within 14 days. If it is not paid then, interest at the rate prescribed in the Probate and Administration Act 1898 (NSW), on unpaid legacies should be paid calculated from the date of payment until it is paid. As the only beneficiary who can cause the payment of each legacy to be made is the Defendant, if interest is payable, it should be paid out of his share of the estate.

I shall reserve the question of how the burden of costs should be borne.

The Court orders: