Fulton v Fulton

HIS HONOUR: This is a sad and a regrettable case. It demonstrates, once again, that contentious proceedings involving an estate and family members, "where the drama of the family rifts unfolds with all the ill-feelings, resentment and animosity between the protagonists climaxing on public display, are unavoidably destructive of what is left of the deceased's family. Win or lose, the family will most likely be torn further apart irretrievably": Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [1].

The Plaintiffs, Graham Fulton, Peter Fulton and Douglas Fulton are three of the adult children of Reginald Clive Fulton ("the deceased"). The first and second Defendants are their brother, Allan Fulton, and his wife Georgina. The third and fourth Defendants are two companies, Motorcycle Accessory Warehouse Pty Ltd (to which I shall refer as "MAW") and Lynchstone Pty Ltd ("Lynchstone"), both of which are controlled by the first and second Defendants.

Throughout these reasons, I shall refer to the family members, where necessary, after introduction, by his, or her, first name. This is for convenience and to avoid confusion, since each member of the deceased's family has the surname "Fulton", and I hope it will not be thought discourteous.

The Statement of Claim was filed on 30 March 2012. The Plaintiffs seek an accounting from, and the payment of monies found to be due to the estate of the deceased by, Allan and Georgina, and from MAW and Lynchstone, together with consequential relief. Broadly speaking, the Plaintiffs assert that Allan and Georgina each withdrew various amounts out of the bank accounts of the deceased for their own benefit and without the knowledge and approval of the deceased.

All four Defendants filed one Defence on 15 May 2012. In that document, they made some admissions of background factual matters to which I shall return. However, the Defendants did not admit that each is, or any are, liable to repay moneys to the estate of the deceased. They stated, amongst other things, that the deceased "conferred authority by direct verbal instructions or signed instructions or directions to the financial institution" pursuant to which various amounts were withdrawn and used. They also stated that the deceased gave instructions, either oral, or in written form, "on a regular basis", to have money withdrawn for uses other than paying bills and that there was no limit on the authority given.

The case was listed for 6 days commencing on 7 April 2014. Prior to that date, there were several interlocutory skirmishes between the parties that are not necessary to detail. In addition, a number of pre-trial directions hearings were held, in one of which I directed the parties to prepare a document, like a Scott Schedule, which identified the different amounts said to have been withdrawn from each of the deceased's accounts, and the use to which the amounts were put by Allan and Georgina.

I made the direction because I was informed that a schedule identifying amounts said to have been withdrawn from various accounts and paid for certain purposes (identified in alphabetical order) had been prepared by Georgina on behalf of the Defendants; had been updated; and had been served upon the Plaintiffs. (I shall return to the original schedule prepared by Georgina later in these reasons.)

I directed the Plaintiffs to respond, by stating whether they sought to press the recovery of all of the amounts identified on that schedule or only some. I did this in the hope, and the expectation, that it would narrow the nature, and extent, of the amounts in issue and would limit the cross-examination to those amounts. At the hearing, I admitted the joint Schedule, which had been prepared in compliance with the direction, as Ex. P3.

Only partial success was achieved, initially, in the use of the Schedule. In discussions with leading counsel for the Plaintiffs, at the commencement of the hearing, I stated that I was unable to understand what amounts in the Schedule the Plaintiffs continued to claim, and whether Allan and Georgina agreed that they had used some, or all, of the amounts for the benefit of anyone other than the deceased.

However, on the second day of the hearing, it became clear, by the express statement of leading counsel, that the amount of the Plaintiffs' claim was limited to $524,287. For their part, at this time, the Defendants conceded that $452,402 had been used for a number of purposes not associated with the deceased, and were amounts that had benefited one, or more, of them. However, they maintained that the amounts withdrawn for such purposes were authorised by the deceased and were used with his knowledge and consent. (I have omitted, and shall continue to omit, any reference to cents, which will explain what may appear to be mathematical errors in the calculations that follow.)

During the course of the cross-examination of Georgina, I asked some questions relating to amounts disclosed in the Schedule that seemed, clearly, to be amounts that had been paid out of one, or other, of the deceased's accounts, for the benefit of one, or more, of the Defendants. Georgina conceded that 12 specific line items had been so paid (Ex. P3, 54 ($5,500), 55 ($6,862), 66 ($40,000), 67 ($5,500), 68 ($10,667), 69 ($9,692), 70 ($100,000), 71 ($79,381), 72 ($61,000), 73 ($40,000), 108 ($60,000) and 223 ($72,000), making a total of $490,602.

(It was also accepted that the only amount that Allan had caused to be withdrawn from an account of the deceased was $72,000 (Ex. P3.223). In addition, in the submissions filed on his behalf, it was accepted that between 4 December 2009 and 11 January 2010, he had withdrawn five amounts, each of $500.)

The Plaintiffs, through leading counsel, then conceded that Ex. P3.55 ($6,862) was paid with the authority of the deceased, with the result that $483,740 was accepted by the Defendants as having been paid for the benefit of one, or more, of the Defendants out of one, or other, of the deceased's accounts.

Leading counsel for the Defendants then acknowledged that the earlier concession as to amount, made on behalf of the Defendants, was incorrect and that the conceded correct amount should be $483,740. (This left remaining the question whether the amounts had been withdrawn on the bases alleged by Allan and Georgina.)

The parties were unable to reach agreement on the difference ($40,547) between the amount claimed by the Plaintiffs ($524,287) and the amount conceded by the Defendants ($483,740). It was accepted that the Plaintiffs would bear the evidentiary onus in relation to those amounts, and that if they satisfied that onus, it would be for the Defendants to establish that the deceased had authorised them, in one or other of the ways asserted, to use the amounts for the purposes to which they were put.

On the fourth day of the hearing, during submissions, leading counsel for the Plaintiffs said that, after further consideration of oral and other evidence, the Plaintiffs' claim had been further reduced to $502,451. Bearing in mind the difference between the parties was then reduced to $18,711, I encouraged them to see if they could agree upon how that difference should be treated.

They were able to do so, following the short adjournment and it was agreed, by way of compromise, that the amount sought by the Plaintiffs, and accepted by the Defendants, as having been withdrawn from the accounts of the deceased, was $495,000. (In all these circumstances, it is unnecessary to go through, in detail, how the amount ultimately agreed upon is calculated. This left as the principal issues whether the amounts were withdrawn and used on the bases alleged by Allan and Georgina, and if not, whether the whole amount, or any part of it, should be repaid.

That is the first of the issues that will need to be decided.

At a pre-trial directions hearing held in March 2014, Allan and Georgina sought leave to file a Cross-Claim, in which each made a claim for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), out of the estate of the deceased. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW), effective from 1 March 2009 (s 2(1) Succession Amendment (Family Provision) Act and Government Gazette No. 38 of 20 February 2009, page 1036). A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide, from that estate, for the maintenance, education, or advancement in life, of an eligible person.

Despite the fact that Allan and Georgina sought leave to file the Cross-Claim more than 12 months after the death of the deceased, there was no order pursuant to s 58(2) of the Act, extending the time for the making of the application, sought in the Cross-Claim filed on 24 March 2014. Nor was there any claim seeking to designate property as notional estate of the deceased (perhaps then relevant).

I raised this matter with counsel for Allan and Georgina at the commencement of the hearing and they agreed that an amended Cross-Claim would be required. On the second day of the hearing, they sought to file an amended Cross-Claim in which further relief including an order under s 58(2) of the Act (to which I shall refer in more detail) and an order designating certain identified property as notional estate. Without objection, I granted leave to file the amended first Cross Claim.

On the fourth day of the hearing, the Plaintiffs filed, without objection, an amended Defence to the amended first Cross-Claim.

Counsel for Allan and Georgina acknowledged that, in the event the court found they were not liable to repay the amount to the estate that had been agreed, they would not proceed with the claims for a family provision order and that the amended Cross-Claim should be dismissed.

Ultimately, it was also accepted by all parties, that it would only be necessary to designate property as notional estate if the amount that the court found should be repaid by the Defendants, or any of them, to the estate was insufficient to satisfy an order for provision made in favour of Allan and/or Georgina, and any costs orders that were made. As will be read, the designation of notional estate will be unnecessary.

Whether the court should extend the time for the commencement of the proceedings, whether a family provision order should be made in favour of Allan or Georgina, and the nature and quantum of any order, is another group of issues that will be necessary to decide.

At the commencement of the hearing, the Defendants also sought leave to file in court an amended Defence, on behalf of all Defendants, in which the principal amendment was in the following terms: "25. In answer to the whole of the Plaintiffs' claim the Defendants say that the Plaintiffs and/or the estate of the late Reginald Fulton had no authority, cause or justification in commencing and continuing these proceedings because the Testator in his Final Will of 26 November 2010 made no provision for the First or any of the Defendants on the basis the First and other Defendants had been given or had taken or had used with or without authority the monies referred to in paragraphs 7(a)-(f) of the Will and the Testator did not propose to make any further provision to the First and other Defendants but waived or did not require any return or refund of the said monies and as a consequence the Plaintiffs ought not be allowed to continue with the proceedings."

The Plaintiffs opposed the amendment being made because of its lateness. However, upon the basis that no additional evidence to that already filed (that is, extrinsic evidence going to the construction of the deceased's Will) was to be relied upon by the Defendants, I permitted the amended Defence to be filed and to be relied upon. (Counsel for the Plaintiffs did not point to any prejudice to the Plaintiffs in allowing the amendment on this basis.)

I also considered that the amendment partially echoed an assertion made in the Defence that withdrawals made pursuant to the deceased's authority were "[e]xpress gifts that [the deceased] wanted made to family members so that they could purchase a business or by way of gift in advance of any inheritance". (The other matters raised in the Defence to which I have referred above were also included in the amended Defence.)

The construction of the deceased's Will is another of the issues to be decided.

Finally, it may be necessary to determine, later, how the burden of the costs of the proceedings, generally, will be borne. The parties requested me to not determine this question as part of the judgment, until after these reasons were published, upon the basis that there may be matters that could otherwise be relevant on the issue of costs. I am prepared to abide the request made by them. I shall leave the issue of costs to be argued, unless otherwise agreed, on a convenient date after the delivery of these reasons.

I shall return to this topic shortly.

On Friday, 4 April 2014, one of the Defendants' counsel, Ms L Evans, forwarded to my Associate, by email, and subsequently had delivered to my Chambers, an original notice of motion and a lengthy affidavit in support thereof. The notice of motion sought an order for "the appointment of a referee". (Earlier in the week, she had sought, by letter, to have the matter restored to my List for that purpose, but I was not prepared to accept the letter as sufficient to make the application.)

At the hearing, leading counsel for the Defendants, Mr C Evatt, sought leave to file the notice of motion. Upon the undertaking given by Mr Evatt, on behalf of the Defendants' solicitors, to pay the filing fee, I granted the leave to file it in court. I then heard submissions from the Defendants' leading counsel. (I stated that I did not need to hear from leading counsel for the Plaintiffs who opposed the relief being sought.) I then made an order that the notice of motion be dismissed with costs.

I reasoned, orally, that I had made that order, bearing in mind (in no particular order of importance) that the Defendants' application had formally been made on the Friday before the case was to start; that the matter had been listed before me, many months before, for 6 days; that the amount of judicial time that could be wasted if such an application were granted was significant; that there would be delay to other litigants, whose cases had not been listed during the time allocated to this case; that the parties had endeavoured to comply, albeit in some instances, later than directed, with the directions I had made; the additional costs and delay, to the parties, that would be incurred in presenting their case before a referee; and that the whole of the matters in dispute, in any event, could not be determined by a referee, with the result that the matter would have to come back before this court.

I also had in mind, of course, s 56 of the Civil Procedure Act 2005 (NSW) and the authorities dealing with late applications that were likely to cause delay in the determination of proceedings.

Having determined to dismiss the notice of motion, the substantive hearing then continued with the reading of the affidavits and dealing with the objections (which took nearly the whole of the balance of the first day of the hearing). I do not say this critically because I am very grateful to all the legal representatives for the practical approach taken, not only to the objections to the affidavits once a few objections had been dealt with, but also for the way in which the hearing, otherwise, was conducted. The case, which had been set down for 6 days, was completed in 4 days.

The following facts are uncontroversial and provide a useful background.

The deceased died on 15 May 2011, aged 81 years. He had retired from his employment, as an engineering advisor for the Electricity Commission, in July 1990. Prior to that time, he had been a fitter and turner and then an engineering inspector for the Electricity Commission.

The deceased was married to Yvonne. She predeceased the deceased, having died in about March 1994. There were four children of their marriage, being Douglas, who was born in July 1960 and who is currently 53 years of age; Peter, who was born in November 1962 and who is currently 51 years of age; Graham, who was born in March 1965, and who is currently 49 years of age; and Allan, who was born in May 1972 and who is currently almost 42 years of age.

The deceased left a formally executed Will that he made on 26 November 2010 ("the 2010 Will"). This court granted Probate in common form of that Will to Graham, Peter and Douglas, as nominated executors, on 10 June 2011.

By the 2010 Will, the whole of the deceased's estate was given to the executors "on trust for those of my said sons, Douglas Fulton, Peter Fulton and Graham Fulton who survive me by thirty (30) days, and if more than one, in equal shares".

The 2010 Will went on to provide, in Clause 7: "7. I have not made provision for my son Allan Fulton because:- (a) (i) in or about 1996, I paid about $40,000.00 shortfall under the mortgage of his Quakers Hill property; (ii) in or about 2000, I paid about $60,000.00 to stock and renovate his mower shop at Douglas Road, Quakers Hill; (iii) in or about June 2004, I paid about $20,000.00 to discharge his and his wife Georgina Fulton's indebtedness to her mother Jan Ashended [sic] and have otherwise financially assisted him (b) (i) on or about 18 February, 2010, he withdrew the sum of about $72,000.00 from my Maritime Credit Union account, and (ii) on or about 14 May, 2009 and 27 May, 2009 he withdrew sums of about $9,000.00 and $6,862.50 respectively from my passbook account no [411] with Commonwealth Bank of Australia (CBA) without my authority, consent or knowledge and applied the moneys for his own use and benefit and contrary to my interests thereby causing loss to me and distress, pain and suffering to me and my family. (c) between on or about 23 June 2009, and 14 January, 2010, his said wife Georgina Fulton withdrew sums totalling about $41,505.80 from my said passbook account no [411] with CBA; (d) between on or about 26 September, 2009 and 27 January, 2010 his said wife Georgina Fulton withdrew sums totalling about $95,600.00 from my passbook account no [720] with CBA; (e) between on or about 16 July, 2009 and 16 February, 2010 his said wife Georgina Fulton withdrew sums totalling about $457,406.77 from my cash investment account no [516] with CBA without my authority, consent or knowledge and applied the moneys for her and his own uses and benefits and contrary to my interests thereby causing loss to me and distress, pain and suffering to me and my family; (f) for some months prior to in or about February 2010, he and his said wife, Georgina Fulton, endeavoured to make arrangements to have me admitted to a Nursing Home for no good reason, medical or otherwise, and contrary to my best interests without my authority, consent or knowledge thereby causing me distress and anxiety."

In the Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death was disclosed as consisting of real estate at West Pennant Hills ("the West Pennant Hills property") ($1,000,000), shares in IAG ($2,800), cash in bank ($35,927), proceeds of two Life Policies ($86,681) and a car ($20,000). The estimated, or known, gross value of the deceased's estate, at that time, was $1,145,408.

There were no liabilities at the date of death disclosed in the Inventory of Property. However, in an affidavit sworn 3 April 2014, Graham disclosed that funeral expenses and estate liabilities and debts paid out of the deceased's estate were $22,911.

In the same affidavit, Graham swore that the gross value of the deceased's estate, at that time, was $1,271,238 and that, after the payment of the debts, funeral and testamentary expenses ($22,911), the net value of the estate was $1,248,327. (Naturally, this estimate did not include any amount found to be repayable by any of the Defendants to the estate.)

Graham also stated, in that affidavit, that the whole of the then known deceased's estate had been distributed to Peter, Douglas and Graham. (There was also one distribution, of $20,000, made to a trust account in relation to the payment of legal expenses in this litigation). The first distribution ($32,296) was made to each of Peter, Douglas and Graham on 27 July 2011 and then a second distribution was made, in differing amounts, in October 2012. In total, it appears that Peter has received $523,014; that Douglas has received $182,296; and that Graham has received $523,015.

Each gave evidence, on which he was not cross-examined, of what he had done with the proceeds of the distribution. Because of these distributions, it was said that there is no actual estate out of which any order for provision may be made, although it appeared to be accepted that there could be property able to be designated as notional estate, out of which property, an order for provision may be made in favour of Allan and/or Georgina (if she is an eligible person and if there are factors which warrant the making of her application).

In stating this, leading counsel made clear that the Plaintiffs were opposing an order designating any distributed property as notional estate. He submitted, in my view correctly, that, if an order for the repayment of money by the Defendants to the estate is made, the amount repaid will form part of the actual estate of the deceased. It is that amount which could be used to satisfy any orders for provision and costs that may be made for either or both of Allan and Georgina.

In calculating the value of the deceased's estate, actual and notional, finally available, the costs of the present proceedings should also be considered, since, if successful, normally, applicants for a family provision order will be entitled to an order that his and her costs and disbursements, calculated on the ordinary basis, be paid, whilst the administrators representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate and/or notional estate, of the deceased.

In this case, the costs of the proceedings, so far as they relate to the Plaintiffs' claims for an accounting, and repayment, of funds to the estate of the deceased, will also be relevant, since, if the Plaintiffs are successful in that respect, unless a different costs order is made, they may be able to recover costs from the Defendants, with the result that there will remain the difference between costs calculated on the ordinary, and costs calculated on the indemnity, basis, that will be borne by the estate. If they are unsuccessful, unless a different costs order is made, the estate will be liable to pay the Defendants' costs, calculated on the ordinary basis. Their own costs of those proceedings, calculated on the indemnity basis, will also be payable out of the estate.

The Defendants' solicitor, Mr M Joukhador, in an affidavit sworn on 9 April 2014, estimated the Defendants' costs and disbursements of the whole proceedings, including counsels' fees, calculated on the ordinary basis, to be about $139,400 (inclusive of GST).

The Plaintiffs' solicitor, Ms V Rowlandson, in an affidavit sworn on 10 April 2014, estimated the Plaintiffs' costs and disbursements of the proceedings seeking a family provision order, including counsels' fees, calculated on the indemnity basis, to be $12,000 (inclusive of GST). She estimated their costs of the balance of the proceedings, calculated on the ordinary basis, at $128,678 (inclusive of GST). The total costs of the Plaintiffs of the whole proceedings are $140,678.

It may be necessary for an assessor to determine, unless the parties are able to agree, what proportion of costs should be treated as costs of the Plaintiffs' proceedings and what amount should be referable to the claims made by Allan and Georgina for a family provision order. This will not be an easy task since much of the evidence is relevant to both aspects.

I ask the parties to consider this aspect, and costs generally, in due course, in the hope that further costs and disbursements will be avoided. That over $280,000 has already been incurred in costs demonstrates the good sense of doing so.

The parties agreed that the only eligible person who has commenced proceedings under the Act is Allan. (The Plaintiffs disputed Georgina's eligibility.) Of course, each of the Plaintiffs, as a child of the deceased, is also an eligible person, but none has made any application for a family provision order. Accordingly, I may disregard his interests. However, as a beneficiary named in the Will of the deceased, the court will not disregard his interests. Later in these reasons, I shall refer to his competing claim as a beneficiary.

(There was a reference to the children of Allan and Georgina, who also lived in their home whilst the deceased lived there, but it was accepted that they were not eligible persons within the meaning of the Act. In any event, and without this concession, there was no evidence to satisfy me that each was, or may be, an eligible person within the meaning of the Act.)

To the extent that any of what follows is subject of dispute, I am satisfied of the following additional background facts.

Allan is married to Georgina. She was born in July 1973 and is currently 40 years of age.

Graham is married to Anna. They were married in October 1988.

Peter was married in 1992 and divorced in 1997.

Douglas is married to Wendy. He has lived in Queensland since about 1992 and continues to live there with his family.

Following Yvonne's death, the deceased lived alone at the West Pennant Hills property until about 1998, or stayed with his mother on occasions, in her home. In about 1998, Peter moved into the West Pennant Hills property with the deceased. The deceased lived there continuously, until about mid-2009, and returned to live there in February 2010, although, on occasions during this, and other, periods, prior to February 2010, he stayed with Allan and Georgina.

Peter continued to live in the West Pennant Hills property until the deceased's death and thereafter. More recently, it was necessary for him to vacate the West Pennant Hills property so that it could be sold (which it was, for a sale price of $1,138,206).

Between about July 2009 and February 2010, renovations were carried out to the West Pennant Hills property, particularly to the bathroom, the laundry and the kitchen. A newer, larger, and quieter, split system air conditioner was installed in the lounge room as well. All of the deceased's sons assisted with the renovations, although some appear to have done more than others.

(There was a dispute about how the costs of the renovations to the West Pennant Hills property were paid, but it is no longer necessary to decide that dispute in light of the agreed amount claimed by the Plaintiffs and accepted by the Defendants as having been withdrawn from the deceased's accounts and used for the benefit of one or more of them.)

It was during the period of the renovations that the deceased moved in with Allan and Georgina, first to their home in Schofields, and then to their home in Quakers Hill. He did not stay with them all the time but moved between their home, and the West Pennant Hills property. Allan estimated that, between May 2009 and February 2010, the deceased spent about 85 per cent of the time at his, and Georgina's, home.

When the renovations to the West Pennant Hills property were mostly completed, the deceased moved out of Allan and Georgina's home back to his own home. This occurred on about 16 February 2010. (I shall return to the circumstances surrounding the deceased's return to the West Pennant Hills property.) He did not again return to visit, or to stay at, their home. In fact, he appears to have had no contact with either of them after about 20 February 2010 until his death about 15 months later.

MAW is a registered Australian proprietary company, limited by shares. Allan and Georgina is each a director of MAW. The share structure of MAW is disclosed as having 40,006 issued ordinary shares, for which $396,005.94 has been paid. Lynchstone owns all of these shares.

Lynchstone is a registered Australian proprietary company, limited by shares. Allan and Georgina is each a director of Lynchstone. The share structure of Lynchstone is disclosed as having 100 issued ordinary shares, for which $100 has been paid. Allan and Georgina each, legally and beneficially, owns 50 ordinary shares in Lynchstone.

In about September 2009, Allan and Georgina purchased MAW.

Lynchstone used to trade as Motorcycle Accessory Warehouse and All Seasons Mower Barn. The name of the business has been changed. However, they remain businesses conducted by, or on behalf of, Allan and Georgina.

Only the Financial Statements for the years ended 30 June 2009, 2010 and 2011 of Lynchstone were tendered (Ex. D5).

By Transfer dated 7 August 2008, Allan and Georgina purchased, as joint tenants, a property at Quakers Hill for $262,500. As stated above, in about April 2009, the deceased went to live in their home.

In June 2009, the deceased was an account holder in a number of different accounts (which I shall identify simply by the last three digits of the account number), being, relevantly, account no. 411, account no. 538, account no. 720, account no. 645 and account no. 616. He was also the holder of an account with a Credit Union, being account no. 044.

On 4 December 2009, the deceased executed a General Power of Attorney in which he appointed Peter and Allan to be his Attorneys and permitted them to "exercise the authority conferred on them by Part 2 of the Powers of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do". The attorneys' authority was subject to any additional details specified in Part 2 of the General Power of Attorney.

Importantly, the General Power of Attorney also provided that: (a) It was given with the intention that it would continue to be effective if the deceased lacked capacity through loss of mental capacity after its execution (Clause 2); (b) It was to operate immediately (Clause 3); (c) The attorneys could act jointly and severally, so that they "may act together or may act separately" (Clause 4); (d) The attorneys were authorised "to give reasonable gifts as provided by section 11(2) of the Powers of Attorney Act 2003" (Clause 5); and (e) The attorneys were authorised "to do any act which confers a benefit on my attorneys, including, but not limited to, meeting the attorney's reasonable living and medical expenses as provided by section 12(2) of the Powers of Attorney Act 2003" (Clause 6).

Clas Olaf Einberg, a solicitor, provided the Certificate under s 19 of the Powers of Attorney Act 2003 (NSW). He confirmed, in the Certificate attached to the Power of Attorney, that he had explained its effect to the deceased who "appeared to understand".

Each of Peter and Allan accepted his appointment as an attorney and as an enduring guardian on 4 December 2009. It is not suggested that Peter involved himself as an attorney in the conduct of the affairs of the deceased thereafter. (It is not necessary to set out the contents of the Appointment of Guardian given under Regulation 4 of the Guardianship Regulation 2000 (NSW), which Regulation has now been repealed and replaced by the Guardianship Regulation 2010 (NSW).)

On 19 June 2009, the deceased provided to Georgina a written "Authority to Operate Accounts" 411, 538, 720 and 645. (While accounts 411 and 538 had been typed onto the form, the reference to accounts 720 and 645 appears to have been added in handwriting, presumably by a bank officer.) The Authority permitted Georgina to operate the accounts using electronic equipment, and directed the Bank to recognise, and act upon, the authority until written notice was received by the branch of the Bank at which the accounts were conducted, of the cancellation thereof, or of the death of the deceased. The Bank was not "obliged to enquire into the circumstances of any instructions given to it" in accordance with the Authority.

In about February 2010, the deceased instructed Coleman & Greig Lawyers, at Parramatta, to act on his behalf. (The firm had acted for the deceased in relation to other matters for a number of years prior to that time.)

On 17 February 2010, the deceased wrote to the Bank at which he held some accounts in the following terms: "Please supply my Son Graham Fulton with statements on saving accounts April '09 to Feb '10 and any investments I may have with ### Bank. I would request you cancel Internet Banking."

On 20 February 2010, the deceased signed a document headed "Revocation of Power of Attorney", pursuant to which he "revoked the Power of Attorney dated 'unknown' appointing Peter Fulton and Allan Fulton". The attesting witness to the deceased's signature on this document was Anna.

(It appears that the draft of these documents was obtained from Wendy, and it was Douglas who brought the draft documents with him when he drove from Queensland and gave them to Anna on about 20 February 2010. In this regard, it appears that paragraph 28 of the deceased's affidavit, which was read, is incorrect.)

The Revocation of Power of Attorney and the Revocation of Guardianship was delivered to Georgina on the afternoon of 20 February 2010. Allan was not there at that time, but Georgina gave him the documents when he returned later in the day.

On the evening of 20 February 2010, a meeting took place between the Plaintiffs and Allan at the West Pennant Hills property. Although the deceased was present at the time, he did not participate in the meeting but remained in the next room. (I shall return to the evidence of the discussions at this meeting later in these reasons.)

Allan sent a letter dated 21 February 2010 to Mr Einberg, the solicitor, which letter was in the following terms: "Please find attached the papers that were handed to my wife on Saturday night, revoking power of attorney and guardianship on behalf of my father Reginald. Please also find a copy of the letter issued by Dr Angus Cottee on 17th February 2010 determinating [sic] my father incapable of making correct decisions due to his dementia deteriorating. I seek your guidance to remove me from being Power of Attorney and Guardianship as signed early December 2009, and also my wife from the papers attached, I would presume that these papers are not a legal or binding document as the letter from Dr Cottee states he is incapable of making correct decisions. My father only signed these papers and did not fill them out. There has been an accusation made against me that you have $70,000 against my name on the will (trust account) from a matter in 2002-2004. Could you clarify this for me as I do not understand and have never been informed by my father of this statement. Could you also clarify for my Father and Brothers that there is indeed no money or trust account being held with Coleman & Greig. My primary concern is for my father's well being as discussed with you prior to you going on holidays. I await your return from holidays to discuss this and other issues that have been raised. Please do not hesitate to contact me on xxx xxx xxx."

Anna drafted a letter dated 22 February 2010, which the deceased sent to the Bank at which the four bank accounts were held, in the following terms: "My family is trying to organise my finances. I would appreciate if you can supply all copies of bank accounts, statements or term deposits (past and present) from January 2009 to present. Please provide these to my son Graham Fulton. DOB xx/03/65. I have attached a copy of the bank statements (Acc No. [616]) you provided my son Graham with on Friday 19 February, and request traces to be put on all the amounts I have highlighted, so we can provide these to my Solicitor Coleman and Greig as soon as possible. Also attached is a legal document for Revocation of Power of Attorney. New Power of Attorney papers will be drawn and provided to you by my Solicitors. Would you please check all accounts have the correct correspondence details being myself, Reginald Clive Fulton, xxx xxxx Road, West Pennant Hills, NSW 2125. Please make these changes accordingly. If you need to question any of these requests, please do not hesitate to contact my son Graham on xxx xxxx/xxx xxxxx xxx."

A letter, in similar terms, was also prepared by Anna and taken by her to another Bank and the financial institution at which the deceased held accounts.

By letter dated 24 March 2010, Coleman & Greig responded to Allan in the following terms: "As you know we act for your father who has asked that we respond to your letter of 21st February, 2010. Firstly our client has asked us to advise that your suggestion that he is incapable of revoking the Power of Attorney which he signed some time ago is refuted. In response to your letter our client has undergone further medical assessment and we have specific advice and certification to the effect that your father is capable of revoking or making a new Power of Attorney whereby your brothers jointly will have Power to manage his affairs. The new Power will be capable of being exercised by any two of your three brothers. Our client also intends to amend his Will. Your father is aware that considerable funds have been withdrawn from his accounts at various institutions. He now asks that you provide (within 14 days from the date of this letter) a complete accounting of all monies taken from his accounts by you or with your consent. When that accounting is to hand your father will consider what steps should be taken in relation to repayment of the amounts taken. If the accounting is not made available within 14 days our client will have no alternative but to take further action in relation to the matter."

Allan sent a letter dated 6 April 2010 to Coleman & Greig, which letter was (relevantly) in the following terms: "In [r]esponse to your letter dated 24 March 2010, I have attached... an accounting record for the information that I still have available or can recall as I have handed several documents already to Douglas, Peter and Graham on 20th February 2010 when I attended a meeting at my father's home. At that meeting my father did not attend but was sleeping in the next room. I was indeed there for several hours and he did not want to sit and discuss the matters at hand. At that meeting many receipts and paperwork were handed over for purchases made for my father or by my father, whilst living with us. On many occasions he would go home with $5000 - $6000 cash as requested by dad. The last such withdrawal was done to my knowledge on the afternoon of 18th February 2010 when he indeed called me and asked me where he had left it. Many purchases were also made by Peter and Graham and they were either reimbursed by me or my father and I presumed he would have given them the money. I at no stage would have had any of those receipts as my father had his own collection of receipts for expenses. My father's attitude towards daily bills eg phone, electricity, council rates, house insurance, water bills... was relaxed e.g electricity bill notification of intended disconnection was evident in 2009. Peter can certainly clarify this matter for you. The agreement between us was for the interest to be paid 12 monthly at a rate of 6.6% and paid in October each year. This agreement was not formally written but agreed that it be discussed at a later time. I never had any intentions that the incorrect thing would be done by my other siblings at any stage, instead I have been accused of so many incorrect things and would like to take this time to clarify these matters: (a) I have attached my mortgage documents from my bank showing my loan amount on my land and construction loan, I previously explained to Douglas, Peter and Graham my repayments and they did not believe me... (b) as requested in my previous letter to you it indeed need[s] to be clarified that there is no Money held in trust with Coleman & Greig as my father had previously told Douglas, Peter and Graham. (c) $70,000 that is being held against my name with your firm. ... On many occasions the money and spending habits were indeed discussed with Peter, my father would get into arguments with him or myself if we did indeed not buy him what he wanted. When Peter and myself both told him that there was no need for the many things that he wanted, as previously discussed with you, he would then turn to Graham to help him."

(Allan gave evidence that the agreement referred to in the letter was an agreement between him and Georgina of the one part, and the deceased of the other. It related to the payment of interest on the amounts, which totalled $280,000, withdrawn from the deceased's bank account, which were used by Allan and Georgina to purchase the motorcycle business. It was acknowledged that they paid no interest, at any time, to the deceased in accordance with the alleged agreement.)

Coleman & Greig responded to Allan's letter dated 6 April 2010 by letter dated 20 April 2010 in the following terms: "You will recall that Mr Fulton asked for a complete accounting of all monies taken from his accounts by you or with his consent. Regrettably your letter does not provide that accounting. It appears from investigations carried out on your father's behalf that the following amounts have been withdrawn from his accounts. Amounts withdrawn by Allan Fulton Amounts withdrawn by Georgina Fulton Documentary evidence as to the withdrawal of these amounts by you is available. There have been a number of other withdrawals but to-date there is no evidence as to by whom the amounts were withdrawn. In relation to the amount referred to above my client now seeks the following:- a. An acknowledgment of your indebtedness in relation to these amounts; b. A proposal for payment of interest on the amount outstanding so that he can be compensated for the ongoing loss in this regard. That interest should be capitalised from time to time; c. A proposal for repayment of the amount owning or at least a significant proportion thereof; d. That you provide adequate security for the debt so that he can be certain that it will be repaid in due course; and e. That you pay all legal costs incurred in connection with these matters. Mr Fulton has no desire to commence proceedings for recovery but will have no alternative but to do so if a proposal satisfactory to him in relation to the matters referred to above cannot be negotiated quickly. As Mr Fulton has no real understanding of your present financial situation he will leave it to you to make the first suggestion as to how these matters might be addressed. Please let us have a response within fourteen (14) days from the date of this letter."

The next letter was one dated 8 June 2010 from MJD Legal, solicitors then acting for Allan and Georgina, in the following terms: "Upon review of the correspondence presented by your firm on behalf of your client and addressed to Allan and Georgina Fulton it appears that your client is making a claim for money. Firstly, it would be of benefit to understand what amount you claim to have been 'taken from his accounts' (your letter of the 20th April 2010). It would be encumbered [sic] upon you to avoid generalisation and provide details of the account that you refer to, and to the amounts that Allan and Georgina Fulton had completed this task having done so with whatever information that was available to them at the time. You are aware that your client has access to all the records. Unexplainably, in response, you make the assertion that Allan and Georgina Fulton did 'not provide that accounting' (your letter of the 20th April 2010). As you would no doubt be aware, a Court would insist that an account be undertaken in this situation. I would suggest, in light of the situation so far, that an independent accountant be appointed to complete a full audit and trace of the accounts and money in question. I suggest that this person be given the unrestricted power to complete the brief and within a reasonable period of time. It would be only fair and proper that the cost be borne equally. If there is no acceptance of this arrangement then clearly there is opposition to the request and or to the sharing of the costs. I shall allow no more than 48 hours for a response in respect of this aspect. Time is of the essence. Secondly, I note that your client admits to giving 'his consent' to drawing down money from his accounts (your letter of the 20th April 2010). Your client also gave authority by way of a Power of Attorney (your letter of 24th March 2010). What is puzzling is that your client now makes the claim for money without explaining why. Kindly note that the Power of Attorney was not returned to Allan and Georgina Fulton as requested through my office. I am sure you understand that it is odd for any person to give authority to access their account and then claim a return of that money. It is possible that your client is questioning what happened to that money (whatever that total may be)? If that is the issue then all the more reason why a full audit should be conducted. Is your client electing not to admit or instruct you of the existence of an agreement reached between him and his son Allan? Thirdly, there is the issue regarding the mental capacity of your client. I am of the view, based on the information presented to me by Allan and Georgina Fulton, and which I understand is supported by medical documents in their possession (copies of which you have retained), that your client may not have had the capacity to revoke the Power of Attorney and nor to execute a new Power of Attorney. This concern, in my view, gives rise to the possibility that other members of the family (refer to your letter of the 2nd June 2010) may be creating undue friction by raising unjustifiable claims when in fact the Guardianship Board should be controlling the financial affairs of your client."

Coleman & Greig responded in a letter dated 24 June 2010. Importantly, on behalf of the deceased, they agreed to the appointment of an independent Accountant, jointly instructed to complete an audit of the accounts in question to trace the funds as far as possible.

Then, in a letter dated 1 July 2010, MJD Legal, relevantly, wrote: "It has come to my attention that the core dispute between the family members relates to that which can be referred to as the 'inheritance received in advance'. If that is the case then it is fair to assume that the claim can be limited to that amount which I understand is $280,000.00."

It is unnecessary to go into further details relating to the appointment of the independent Accountant except to say that it did not occur. On 14 October 2010, Coleman & Greig wrote, relevantly, stating: "Your clients have had ample time to consider the proposed brief and their delay in responding is unacceptable. In the circumstances, my client has instructed me to commence legal proceedings. Please advise if you have instructions to accept service of court documents."

There is other correspondence passing between the lawyers to which it is not necessary to refer.

The deceased did not commence proceedings against Allan and Georgina prior to his death.

On 17 September 2010, the deceased signed an Enduring Power of Attorney in which he appointed Graham and Douglas to be his attorneys. Otherwise, the Enduring Power of Attorney was in the same terms as the Power of Attorney executed in favour of Peter and Allan in December 2009, other than it being necessary for the attorneys to act jointly.

John Joseph Cotter, a solicitor, provided the Certificate under s 19 of the Powers of Attorney Act. He confirmed, in the Certificate attached to the Power of Attorney, that he had explained its effect to the deceased who "appeared to understand". There is no evidence of Graham and Douglas exercising any powers as attorneys of the deceased subsequently.

Also, on 17 September 2010 the deceased appointed Peter, Graham and Douglas as his guardians in the event that he became incapable of managing his affairs. Each accepted his appointment on the same date. There is no evidence that any of them exercised any powers of guardianship over the deceased subsequently.

In Paragraph 7 of the amended Cross-Claim, which was not admitted by the Plaintiffs in their amended defence to the amended Cross-Claim, the Defendants state: "7. Under the terms of a will that existed prior to June 2009 there was to have been a distribution of the deceased's estate such that cash or the proceeds of any bank accounts were to go to the first and third cross-defendants, and any property remaining was to be distributed to the first cross-claimant and the second cross-defendant. By the terms of the earlier will, the first cross-claimant and the second cross-defendant were appointed the executors of the deceased's estate."

A copy of the Will referred to in that Paragraph was produced on the fourth day of the hearing. It was one made by the deceased in November or December (the month is indecipherable) 1998 (Ex. P4) and did, indeed, provide a devise of the West Pennant Hills property to Peter and Allan as tenants in common in equal shares, and bequeathed the residue of the estate to Douglas and Graham as tenants in common in equal shares.

The deceased had also made a Will on 4 December 2009 ("the 2009 Will"). Relevantly, it appointed Peter and Allan as executors and trustees and then gave "the whole of my estate to my executor on trust to be divided into four equal parts to be held as four separate trusts which collectively are to be called 'Fulton Trusts'". Each trust identified one son as "the Primary Beneficiary" and included family members of that Primary Beneficiary as other beneficiaries. The identified son was to be the trustee of the trust. What followed was, in general terms, standard clauses for a testamentary discretionary trust, including one which provided that at any time up to the Vesting Date (as identified), the trustee had power to "pay to, or apply for the maintenance, education or benefit of, any of the beneficiaries of that trust then living or in existence, the whole or any part of the capital of each separate trust, or of the income for any financial year for each separate trust, as my trustee thinks fit": Clause 3(f) of the 2009 Will.

However, Clause 4 of the 2009 Will provided: "IN spite of the forgoing provisions as to the formation of the Fulton Trusts, my executors may with the consent of the person named as Primary Beneficiary of any of those trusts transfer that part of my estate which would otherwise have been held under that trust or any asset forming part thereof to the person named as Primary Beneficiary absolutely."

It follows, relevantly, in the case of Allan, that he and Peter could exercise the power in Clause 4 of the 2009 Will, and transfer to Allan, with his consent, an equal one-quarter share of the deceased's estate. I shall return to the significance of the 2009 Will later in these reasons.

There is no dispute that Georgina attended with the deceased at the office of the solicitors at the time the 2009 Will was prepared. She accepted that she had been present for part of the time during which discussions between the solicitor and the deceased took place. I shall return to her evidence on this topic later in these reasons.

In most disputes involving estates, the state of mind, desires and prejudices of the central figure, the deceased himself, his relationship with family members and the reasons for changes in testamentary dispositions, are all crucial matters that the court needs to examine carefully. Usually, the evidence of those matters is not available and the court is left to examine those matters by way of second hand and, often, partisan evidence.

In this case, even though the deceased is dead, there is evidence of some of those matters in an affidavit that the deceased made on 24 December 2010. The Defendants' leading counsel objected to me reading that affidavit but I overruled the objection and allowed it to be read.

It is clear that an affidavit may be used if the deponent is unavailable for cross-examination because he is dead: Uniform Civil Procedure Rules 2005 (NSW), rule 35.2(3). The affidavit is also admissible under s 100 of the Act in relation to the claims for a family provision order to which I shall refer later in these reasons.

However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886, per Hamilton J, at [5].

Relevantly, the deceased's affidavit included: "8. In about June 2009, I went to the West Pennant Hills sub branch of the Commonwealth Bank, where I banked, and asked if I could get someone else to go in to the bank for me because it was becoming more and more inconvenient for me to attend the bank to do my banking 9. I spoke with a gentleman bank officer (whose name I cannot recall) who said to me words to the effect, 'You can delegate the authority out' and then he gave me a form called 'Commonwealth Bank Authority to Operate' to complete and return 10. My discussion with the bank officer included a conversation in words to the effect, Bank officer: 'The authority allows the person you nominate to stand in your place and authorise payment of your bills and debts.' Me: 'Would only the person I nominate be the one who could draw money from my account?' Bank officer: 'Yes, only the person nominated as being authorised to draw on your money could access the money your account'. 11. On or about 19 June 2009, I completed the Authority to Operate in favour of Georgina, so she could pay my bills ... 12. At the time I gave Georgina authority to operate my account and pay my bills I was living with her and Allan. This was because my wife had died and my mother had recently died, and I though I should live with family. I asked Georgina to operate my account as I considered it was convenient for her to have the authority and I trusted her and Allan. 13. After the Authority had been signed, I would pass on to Georgina the bills I wanted her to pay on my behalf. On some occasions, I received reminders in the mail to pay overdue utility bills, that I thought had already been paid by Georgina, but had in fact not been paid. ... 24. Once I was back at my own home, Graham came over to my house to pay a visit. Although I cannot recall the exact words he used, I recall that Graham explained to me that Georgina and Allan had taken my money. Whilst I did not believe him at first, after a couple of days I started to see the logic in what Graham was saying. I invited him to come over to my house again (although it is possible I went to his place because I still drove at the time) and we had a further discussion in words to the following effect: Graham: 'Every time I tried to see you Georgina would try and get rid of me.' Me: 'Why?' Graham: 'Because I know what's going on' Me: 'What do you mean?' Graham: 'She was knocking your bloody money off'. 25. It took me a while to work out what was going on but once I put two and two together and Graham's neighbour, who I think is an accountant, helped trace where all my money had gone, I realised Georgina and Allan had stolen my money. 26. Around this time, I was at home and I recall Georgina coming over to my house. We had a conversation to the following effect: Me: 'Now that I am back home and looking after myself, I think I can manage my own money and so I am going to cancel the bank authority.' Georgina: 'Why are you doing this, don't you trust me?' Me: 'I know what is going on, I don't like it so I'm stopping it. You only had access to my money to use it for my benefit. So the money you've spent that hasn't been spent on me, I want it bank.' Georgina: 'No, fat chance, you won't get it back, it was spent on you.' Me: 'No it wasn't, not all of that money was used on me, I'm going to go to my solicitor.' Georgina: 'Fine, I will go see my solicitor too'. 27. I then started to worry about what had happened. After I thought it all over, and once it had all sunk in, it really broke me up so I decided to talk to my solicitor. I called Coleman & Greig and arranged an appointment with Clas Einberg. 28. Clas subsequently prepared a Revocation of Power of Attorney and a Revocation of Power of Guardianship ... 29. Clas also wrote to Georgina and Allan to let them know that I had instructed him to revoke the Power of Attorney. 30. Around the same time, Graham or Peter (I cannot recall who exactly) took me to the Commonwealth bank to cancel the Authority. 31. Had I known or suspected at the time that I granted the Authority in favour of Georgina, and the Power of Attorney in favour of Allan, that Georgina and Allan had previously accessed money from my bank account and used it for their own use, or that they would or might use the Authority or Power of Authority to benefit themselves, I certainly would not have given Georgina the Authority to operate my bank accounts and I would not have made Allan my attorney."

Parts of what has been quoted, as well as other parts of the affidavit, are not seriously in dispute between the parties and I have referred to such matters earlier. To the extent that there is a dispute about what is alleged by the deceased, for example, in respect of paragraph 31 of the affidavit, I shall weigh it with the other evidence, remembering that the deceased has not been cross-examined about what he has alleged.

I turn now to the credit of each of the parties, as there remain some important factual matters in dispute between them. In this regard, it is necessary for me to state my views on the credit of each of the witnesses to enable me to then set out the disputed evidence that I accept.

In this case, some of the evidence is in the form of conversations, said to have been had, with the deceased. That evidence, relied upon by both parties, is admissible and material. Of course, it is necessary to bear in mind the inherent shortcomings of such hearsay evidence. I have borne in mind that the court must exercise caution in determining whether to accept that evidence, and, if accepted, carefully consider the weight to be attached to it. Also, as stated, the version of events spoken of by the deceased to the deponent cannot be tested by cross-examination.

Thus, I keep in mind the need for careful scrutiny to which evidence should be subjected in such circumstances (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931, at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, at [20]).

Bryson AJ, in Zahra v Francica [2009] NSWSC 1206, said: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]: ... in a claim based on communications with a deceased person the court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available."

Although in a different context, what was written by Whelan J in Webb v Ryan [2012] VSC 377, at [22], referring to the difficulties in assessing evidence, in such circumstances as the present, is apt: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."

I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57.

I have also found what Lord Pearce, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep. 403, at 431, useful: "Credibility involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

Also, I refer to what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315, at 319: "Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Section 140 of the Evidence Act 1995 (NSW) should also be considered. It provides: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."

Ordinarily, the more serious the consequences of what is contested in litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion. As was stated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, at 449-450, which was decided before the Evidence Act was enacted: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

However, as has recently been reaffirmed by the Court of Appeal in Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37, at [205], s 140(2) provides for no new principle but simply reflects the principles stated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that there should be clear and cogent proof of serious allegations. The section does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct.

I also remember the following statement in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, at 521, per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ: "Proof of fraud should be clear and cogent such as to induce, on a balance of probabilities, an actual persuasion of the mind as to the existence of the fraud".

The allegations made by the Plaintiffs against Allan and Georgina are serious. Essentially, they amount to dishonesty.

With these principles in mind, I turn to the evidence of specific witnesses.

I found each of the Plaintiffs to be an honest and straightforward witness. Each gave his recollection of events, in my view, truthfully and clearly. Each was specific about what he could, and what he could not, remember, and did not depart, in his oral evidence, from the account, given in his affidavit(s). I accept the accuracy, and reliability, of the evidence of each.

Graham, with his wife Anna, seems to have had most to do in investigating what occurred. I find that he made the investigations, at least initially, without any preconceived notion of what had happened. That view changed and he communicated his concerns to the deceased.

Following the investigations, he requested the brothers to meet to discuss what he had found and to enable Allan to explain what had occurred. At the conclusion of the meeting, Graham said: "You need to go and think about what you have done and get back to me on how you are going to pay the money back."

By way of example of his truthful evidence, Graham was cross-examined about moneys that he had deposited into the deceased's bank account in April 2010 at different times. He explained that these were the proceeds of sale of the deceased's car and that the reason the amounts were paid in increments of $5,000 or less, was because that was the maximum amount able to be transferred out of the bank account into which the proceeds of sale had been deposited. (After the cross-examination, leading counsel for the Defendants, fairly, did not submit that Graham should not be believed on this aspect of his evidence.)

I also found Graham's wife, Anna, to be an impressive witness. She was frank and honest. She had obviously played a significant part in the investigation of the banking transactions and I found that she was, genuinely, trying to give her best recollection of events at the relevant time accurately and fairly. This task was made easier by the contemporaneous banking records that had been obtained.

Unsurprisingly, when asked about whether she had tried to convince the deceased about what he should do regarding his estate, she said that she did not, because "it was not my place". I accept that she genuinely believed that proposition.

In contrasting the evidence of Allan with the evidence of others, I have also relied, particularly, upon the evidence of Peter of his conversations with Allan, since Allan accepted, in cross-examination, that Peter had "no particular axe to grind" with him before February 2010 and that he "was close to Peter and had spent a lot of time with him" (T 154.45 - 155.03).

For example, Peter gives evidence of asking Allan, prior to the events of February 2010, about how he had paid for the motorcycle shop. Allan did not mention the deceased but said "We have done a deal with the owners and we are going to pay it back over 5 years from the profits". It was subsequently revealed that Allan told Peter that he had used some of the deceased's money ($260,000) to purchase the motorcycle shop. Allan's further response to Peter, "What's done is done and I can't change it", hardly demonstrates that the deceased knew about the use of that money to purchase the motorcycle shop.

Peter also gives evidence that Georgina told him that the deceased "owes around $70,000 to $100,000 in tax" and that she would sort it out for him. Subsequently, in February 2010, when Peter raised the question of the deceased's tax with Allan, he was told by Allan: "It's been taken care of".

I have confidence in the accuracy of the recollections of each of the Plaintiffs and of Anna. Cross-examination did not affect his, and her, evidence. Essentially they speak with one voice as to the events that occurred. In circumstances where there is a conflict of evidence between each and Allan or Georgina, I prefer the evidence of each of the Plaintiffs.

There are many conversations with the deceased in the affidavits of each of Graham, Anna, Douglas and Peter, which satisfy me that the deceased repeated that he was not aware that the large withdrawals of funds had been made from one, or other, of his accounts. There was simply no reason to say he did not know of the withdrawals, if, in fact, he did. After all, it was his money to do with as he pleased and he could simply have stated, if it were the fact, that advances had been made to Allan, with the result that Allan would receive less on the deceased's death.

It is difficult to accept that the deceased did not want the Plaintiffs to know what he was doing if he was, as is asserted by Allan and Georgina, advancing money to them. What appeared to be of concern to the Plaintiffs was not the advance of money by the deceased, but the fact that the deceased did not appear to be aware that significant amounts had been withdrawn from his accounts.

For example, Douglas gave the following evidence: "Q. If Allan had asked for some of this inheritance in advance to buy the motorcycle shop you probably would have agreed to that, is that right? WITNESS: Yeah, I wouldn't have had a problem with that. If we'd sat down together and worked it out there wouldn't have been a problem with the whole thing."

I did not find either Allan or Georgina to be an impressive witness. I treat his and her evidence with some degree of caution. I set out additional examples of evidence that confirm this view.

One telling reason for concern is the evidence by each of Allan and Georgina that the withdrawals made were to be regarded as "an advance on Allan's inheritance".

Allan gave the following evidence in his affidavit: "Some time in June the discussion with dad about his will came up. He agreed to meet with Coleman Greig to have it changed so that it went four ways. However, with the understanding that I would stay on as executor to help Peter and that I would say I have already received my share".

Yet, in cross-examination, he said: "Q. And you are saying during that time he was aware that you owed him 6.6 per cent interest? A. Yes. Q. And that he knew that he had advanced to you $280,000 for the purchase of the Bike Shop? A. Yes, after the final sum was done for the Bike Shop purchase. Q. Yes and do you say that this was in anticipation of your inheritance? A. Yes. Q. And this was something that your father had said to you? A. Yes."

Before leaving Allan's evidence, I should add a reference to what followed: "Q. And yet he attended the solicitors to make a new will at the end in December 2009, in which the estate was divided up four ways between four testamentary trusts of which you had an equal trust to each of your brothers? A. Yes. Q. There is no reason why your father wasn't aware that he had given you these substantial amounts of money in advance of your inheritance when he made his new will? A. No, because everything was accounted for as we borrowed it."

This last answer (part of which is highlighted) is inconsistent with an advance of Allan's inheritance and with the assertion that the deceased had gifted the moneys withdrawn to Allan and Georgina.

In my view, the concept of the amounts withdrawn by each of Allan and Georgina being designated as an advance on Allan's inheritance was one created by them and not what the deceased intended. I have earlier referred to the 2009 Will executed by the deceased where, in effect, his estate was divided into four equal shares. Even though Allan said he was not present when the deceased attended upon the solicitor to discuss this Will, Georgina was present for part of the discussion. None of the Plaintiffs was present. In those circumstances, had the deceased, in fact, intended to an advance on inheritance as asserted, he would not have been likely to divide his estate into four equal shares leaving it to Allan to disclose, if he chose to, that he had received advances on his share.

The 2009 Will is inconsistent with an advance on inheritance being made for Allan by the deceased.

In a conversation with Peter referred to above, at the time it was admitted using $260,000 for the purchase of the motorcycle shop, it was Allan who said: "Well, we will just have to sell the vacant half of Dad's property and use that money to pay for Dad's expenditure. If there is any money left over from the sale of the vacant property that can be my inheritance."

Subsequently, at the family meeting, Allan repeated the concept of the advance on his inheritance, stating that the money he had taken to purchase the motorcycle shop "can be part of my inheritance". That statement also does not suggest that the concept had been discussed with the deceased.

In respect of Georgina, the banking records reveal that she played a significant role in the withdrawal of funds from one, or other, of the deceased's bank accounts. To do so, she used the Authority to Operate. As I have stated, the only amounts that appear to have been withdrawn by Allan were the amount of $72,000 and the five amounts of $500. Therefore, in circumstances in which the parties have agreed on the quantum, the balance of $420,500 was withdrawn by Georgina using the Authority to Operate signed by the deceased and by Georgina on 19 June 2009.

The deceased's affidavit contained the statement that the deceased "completed the Authority to Operate in favour of Georgina so she could pay my bills" (Paragraph 11). In her affidavit in reply, Georgina does not specifically respond to Paragraph 11 other than to say "As to Paragraph 8 to 11, this did not happen" and that the deceased asked her to "get the correct forms so that I could operate his accounts".

Georgina said nothing, otherwise, about the circumstances surrounding the execution by the deceased of the Authority to Operate. Importantly, she does not give any evidence that she was authorised by the deceased, at the time he executed it, to use the Authority to Operate to withdraw funds for her own, and/or for Allan's, benefit. Yet, that is, precisely, what she did.

I accept Graham's evidence that Georgina never told him that the deceased had given her an Authority to Operate his bank accounts. He found out, from the deceased, after the investigations revealed that moneys had been withdrawn from the deceased's accounts. Even then, the deceased told Graham that he had given Georgina authority to use his accounts to pay his bills and for his amenities.

Significantly, Georgina also asserted an alleged agreement regarding interest to be calculated at 6.6% per annum that was to be paid by her and Allan to the deceased. She agreed that neither had paid the interest. She sought to justify the non-payment in the following exchange in cross-examination: "Q. You made reference to in the schedule of interest of 6 per cent; that was on page 23 of the schedule? A. Yes. Q. To be paid interest only at 6.6 per cent yearly? A. Correct. Q. Now, did you make any payments of interest - A. No. Q. - to the deceased? A. The money was withdrawn in September '09 and then February 2010 the family discussions started. Q. Did you pay any money to the deceased's estate in respect of this interest? A. I was never asked to. Q. Did you volunteer it? A. We tried to in the early discussions between solicitors before it came to this point. Q. Did you just sent them a cheque for 6.6 per cent of $280,000 at any point? A. No, I didn't. Q. There is also a reference to dividends in the evidence of 6.6 per cent yearly. I take it that is a reference to the same amount, the same rate? A. Who stated it? Q. I think it is in Allan Fulton's affidavit? A. To do with dividends? Q. It says 'dividends', yes? A. That would have been referring to the interest, yes. Q. You said you didn't pay any interest because it was within one year after the moneys were paid from the deceased's account for the purchase of the bike shop that the family discussions started. Why was it that you didn't pay the 6.6 per cent at the end of the next 12 months? A. I was not asked to. We were receiving letters back and forwards from the solicitors and at no stage were we asked to. Q. But, of course, the knowledge of the 6.6 per cent was, until it was put in the evidence, exclusive to you; wasn't it? A. The 6.6 per cent? Q. Yes? A. It was between my father and my father in law and Allan. Q. Who knew to ask? A. Reginald did. Q. Yes and you are saying he didn't ask? A. That's correct."

As I have said, the payment of interest does not seem consistent with an advance on Allan's inheritance and is inconsistent with a gift of those funds to Allan and Georgina.

Also, Georgina's suggestion, repeated by Allan, that no request for interest was made is not correct. In this regard, I refer to the letter dated 10 April 2010, quoted above, in which "a proposal for the payment of interest" was referred to. In any event, the failure of the deceased, or others, to request the payment of interest should not have prevented Allan and Georgina paying the interest on amounts said to have been borrowed by them when it was due. Each acknowledged the obligation to do so.

In the first Schedule prepared by Georgina, there are a number of references to amounts paid for tax for the deceased. Georgina gave evidence, as did Allan, in the affidavits, that a reference to the amount of $100,000 for "outstanding tax" was "a reference to the money to pay Chiha Constructions and Reginald had told me not to tell the family about that money". (The money was paid into the trust account of Cor Cordis, the accountants for Chiha Constructions.)

However, by the time the first draft of the Schedule was prepared by Georgina, the deceased was, himself, making a claim for the repayment of money. There was no reason to perpetuate the charade as against him. In this regard, presumably the first draft of the Schedule was prepared in response to the deceased's claims.

Yet, there is no evidence that either Allan, or Georgina, subsequently referred the deceased to any conversation in which he had told him, her, or them, not to tell the family about the withdrawal of money used to pay Chiha Constructions. The reference to "Taxation Bill to be finalised - 10 years of tax - Accountant - $100,000" should not have been included as such in the first draft of the Schedule. In my view, this further demonstrates that the moneys were withdrawn without the deceased's authority and informed consent.

It was not until the second day of the hearing that an express acknowledgement that slightly more than $450,000 had been received by Allan and Georgina out of the bank accounts of the deceased. That acknowledgement should, and could, have been made much earlier in the proceedings.

In any event, the amount acknowledged was inaccurate, as demonstrated by the subsequent evidence provided, when questions were asked as to the specific line items referred to, and when it was accepted, by Georgina, that the correct figure should be $483,740. There was no explanation of how the error had been made by either Allan or Georgina. (The increase of the amount does suggest, either that detailed consideration had not been given to the amounts that had been withdrawn and used by Allan and Georgina for their own purposes, or that they were not prepared to make an express admission of the true facts.)

There was criticism of the Plaintiffs for not making an allowance for amounts that must have been known by them to have been used for the benefit of the deceased. In this regard, it must be remembered that they were endeavouring to ascertain what amounts, and the purposes for which those amounts, had been withdrawn. I do not accept the criticism is entirely warranted.

Georgina gave evidence in relation to how a cheque for $79,381 was obtained. In particular, she gave evidence of the events at the Bank involving the deceased and a request by him to a teller to obtain a bank cheque made payable to Mr Dale Harris. The bank teller was not called to give evidence of his, or her, conversation with the deceased. Nor was there any evidence of unsuccessful attempts to locate the bank teller. Any favourable evidence from the bank teller might have gone some way to corroborating Georgina's version of this withdrawal.

Allan was cross-examined about what documents were contained in a plastic bag that he gave to the Plaintiffs on the evening of 20 February 2010. He was also asked about a written document prepared and given to them at that time. When asked why there was no note in the written document, by reference to a particular item, to a receipt if he had one, his answer was "Just a mistake that I made". He later said, in answer to some additional questions from leading counsel for the Plaintiffs that "yeah, it possibly would have been natural [to make a note of the receipt] but I didn't do it. An honest mistake".

In circumstances where he was being asked to account for large sums of money said to have been withdrawn from the deceased's bank accounts, I found these answers to be rather glib and unconvincing.

Another aspect of Allan's evidence that I found puzzling occurred in the following exchange: "Q. You were asked some questions about attending on the credit union and taking with you a power of attorney and a letter that you say your father had written? A. Yes. Q. My note is that you said that the lady at the credit union gave you the documents back, was I wrong about that? A. No. Q. Where is the letter to which you refer, which she gave you back? A. I didn't keep it. I don't even know where the Power of Attorney form has gone. Q. And this event occurred at or about the time that you were having discussions with one or other of your brothers about what they believed was money being taken from your father's account, is that right? A. It's possible, yes. Q. Well, is it right or am I wrong? A. What was that around the Q. I thought you said it was the 18th of February, 17th? A. I think it was around the 17th. Dad went in for his operation, pre op, on the 18th. Yes. Q. And you didn't keep the letter? A. No, yeah."

Why the letter to which reference was made, was not produced was not otherwise explained. Had the letter existed, one would have thought it would have been retained very carefully by Allan and Georgina and would have been produced to the Plaintiffs, particularly as it went to the withdrawal of $72,000 by Allan. There is no suggestion that Allan and Georgina had produced the letter referred to, or a copy thereof, to the Plaintiffs at any time prior to the hearing. It was not produced to the court as part of their evidence.

I would add, as a further matter, that the deceased's instructions to revoke the Power of Attorney and to terminate the Authority to Operate as soon as he learnt of the events involving the withdrawal of funds is relevant to the assertions made by Allan and Georgina about his knowledge and approval of those withdrawals. Those instructions are inconsistent with the case being advanced by them.

Neither Allan nor Georgina included in his, or her, affidavit setting out financial resources, the value of the businesses that were conducted by them through Lynchstone. On the last day of the hearing, the Financial Statements of Lynchstone were produced and tendered without objection. Even then, the most recent one produced was for the year ending 30 June 2011.

Allan admitted that the name "Motor Cycle Accessory Warehouse" was a valuable name. However, no value was attributed to the name in any of the affidavits identifying the financial resources of Allan or Georgina.

Jeanette Clare Ashenden, the mother of Georgina, swore an affidavit on 2 April 2014. Due to ill health, she was not available to be cross-examined, although her affidavit was read, without objection.

Jeanette stated that she and the deceased were friends. She states that, in 2002, the deceased offered to lend her $20,000 to buy stock and spare parts and to allow the business of selling and repairing lawn mowers under the name "All Seasons Mower Store", which she conducted at Castle Hill, to pay its debts. She says that he did so upon the basis that she did not have to repay the principal but only interest.

Although she does not state it expressly, the deceased made the loan to her. She says that she "made approximately six to eight payments of $100 to him, after which he said that he did not require her to make any more repayments.

Jeanette also gives evidence of conversations that she had with the deceased about the renovations being carried out to the West Pennant Hills property. She says that he said that he was excited and enthusiastic about carrying out those renovations.

Importantly, she gives evidence of a conversation with the deceased in which he said that he wanted Georgina to stop work so that she could look after him. He acknowledged to her, subsequently, that Georgina had done so and that "[S]he will be able to stay at home and look after me. We can go shopping all the time now."

In relation to the purchase of the motor cycle business, Jeanette gives evidence of the deceased raising the topic with her and subsequently, the following conversation having taken place: "34. At around this time I recall that Rex and I had a conversation to the following effect: Me: 'Are they getting finance?' Rex: 'No no no no. I'm taking care of it for Als.' Me: 'Oh okay. It's a big purchase.' Rex: 'I can handle it okay?' 35. I do not recall precisely when but after that conversation Rex and Gina visited me at All Seasons and Rex said words to the effect of: 'We're going to the bank to get the money for Dale Harris. So it's a start.'"

The last occasion when Jeanette saw the deceased was on 25 December 2009. She did not see, or speak with him, after that day. There is no explanation why she did not do so.

Other evidence that I have read, being a copy letter dated 17 June 2004 from Coleman & Greig to the deceased (Ex. P5), reveals that the deceased "loaned Jan... $20,005.40 to assist her to pay her bills for All Seasons Mower Store and Quakers Hill Mower Store"; that "[t]o date, the amount of $2,300 has been paid back by monthly instalments of $100 into your bank account no [411]"; that "[y]ou are prepared to release Jan Ashenden from payment of the outstanding balance on the condition that she does not pursue Allan and Georgina Fulton for any money relating to the partnership".

In relation to Jeanette's evidence, I shall weigh her evidence in the context of all of the other evidence given in the proceedings, remembering that she, too, was not cross-examined.

(There was a draft letter addressed to Jeanette attached to Ex. P5, but I have not given it any weight since there is no evidence that it was sent to her.)

Finally, Ross Warburton, a self-employed plumber, affirmed an affidavit on 2 April 2014. He had been an employed plumber in April or May 2009, when he received a telephone call from Allan who asked him to attend at the West Pennant Hills property to "[g]ive me an estimate of how much is it going to cost to put in a drainage connection". He says that he attended a few days later and had a conversation there with the deceased and Peter. Peter told him that he would "be digging the trench myself to save money".

Subsequently, he provided a quote to Allan, which quote ($4,200) was accepted. Shortly afterwards, Allan paid a deposit, in cash of $1,200. At the completion of the work, the deceased paid him the balance in cash.

He also did some work at the West Pennant Hills property being plumbing for the ensuite. Peter told him that, before that was done, the waterproofing and tiling needed to be completed. Following that work being completed, Mr Warburton returned and carried out the plumbing work, for which he charged $680. He recollects that Peter paid him for that work in cash.

Mr Warburton was not cross-examined. There is no reason to not accept his evidence, which, broadly speaking is not substantially in dispute. (To the extent that Peter said that he did not pay Mr Warburton, I do not think that anything turns on that.)

Georgina swore an affidavit on 14 March 2014 which relevantly provided: "3. My father in law Reginald Fulton (Reginald) passed away on15 May 2011. The executors of Reginald's will are the plaintiffs in these proceedings ... 4. In April 2012 Allan and I discussed with our lawyers the bringing of a Family Provision Act claim against the estate of Reginald. In March 2012 we were served with the statement of claim in these proceedings. By April 2012 we were busy preparing the evidence for the freezing orders against myself, Allan and our company (which is the third Defendant in these proceedings). I estimate that it took approximately a week of my time to prepare the accounting evidence for all of the defendants. Since that time the question of bringing a Family Provision Act claim has been overlooked. 5. I believe that Allan and I will be prejudiced if we were unable to bring a Family Provision Claim. We would like the opportunity to offset any money we may be entitled to under the Family Provision Act claim against any amount the plaintiffs might recover against us in their case. I believe that this may have the effect of reducing the amount that is genuinely in dispute in these proceedings. The documents will be required for the cross-claim are the same documents that are relevant to the plaintiffs' claim."

There was no other affidavit evidence going to the issue of the extension of time for the making of the claim under the Act by either Allan or Georgina.

Georgina gave some evidence in cross-examination about this topic: "You and Mr Fulton are aware that to commence proceedings for a Family Provision order under Succession Act, proceedings have to be commenced within 12 months, unless the Court gives an extension of time to do so? A. I was not aware of that, no. Q. You have said lawyers advising you in respect of these proceedings from well before the first anniversary of the deceased's death? A. We had one letter, I believe, or two letters that came, but the Family Provision Act wasn't spoken about. Q. You went and saw lawyers concerning these proceedings when they were commenced? A. These proceedings? Q. These proceedings? A. Yes. Q. Did you see a lawyer about commencing any proceedings for Family Provision prior to these proceedings being commenced? A. No. Q. Were you and Mr Fulton made aware of your entitlement to bring proceedings for Family Provision? A. No. ... Q. When were you first aware of an entitlement to bring a claim for family provision? A. About four or five weeks ago. HIS HONOUR Q. Is that right? A. Yes. Q. Could I just remind you that in your affidavit of 14 March 2014 you stated that in April 2012 you discussed with your lawyers the bringing of Family Provision Act claim? A. They didn't want to bring the claim. I didn't - Q. No, I am not asking you about that. A. Okay. Q. You told Mr Tregenza that the first time you became aware of your right to make a claim was four or five weeks ago, I am just asking you about what you said in paragraph 4 of your affidavit of 14 March 2014, which seems inconsistent with that answer? A. Paragraph 4, of 2014? Q. Yes. A. I haven't got it here. HIS HONOUR: Mr Tregenza, would you show this witness her affidavit of 14 March 2014, please? (Shown to witness) TREGENZA Q. It is open at page 834. I have handed up the Court Book turned to the page 2 of your affidavit of 14 March 2014, is that right? HIS HONOUR Q. Is that inconsistent with the answer that you have just given? A. The four or five weeks ago was when we started the proceedings. Q. Not when you first realised you could? A. No, that's right. Yes. TREGENZA Q. Sorry, your answer when his Honour asked you that question, it was only for about four or five weeks before you started the proceedings, which proceedings? HIS HONOUR: No, I think you have misunderstood. The answer was, when she gave you the answer that she understood that she could bring the proceedings four or five weeks ago for the first time, she was referring to the proceedings actually having been commenced for a family provision order, I think that's what she said, Mr Tregenza, but you clarify it in any way you wish. TREGENZA: I won't dwell on it. I will just ask another question. HIS HONOUR: Well, it is important, the answer. TREGENZA: Yes. Q. Firstly, when did you become aware of an entitlement of people who are eligible persons to bring proceedings under the Succession Act under family provision? A. In 2012. Q. Is that in April 2012? A. Correct. Q. That was when you received advice from your lawyers? A. That was in a discussion with our lawyers at the time. Q. You decided not to bring those proceedings? A. Correct. Q. You did so in the knowledge of these proceedings having been commenced? A. Pardon? Sorry? Q. Sorry, of the proceedings the subject of the statement of claim being heard this week being commenced? A. Go again, sorry. I haven't had very much sleep, sorry. Q. The statement of claim in these proceedings was filed on 30 March 2012 and you received it very shortly after that? A. Correct. Q. And because there was reference to a freezing order you went to see lawyers pretty promptly? A. About the freezing order, yes. Q. It was in connection with that conference with your lawyers, or one shortly afterwards, that you were told about the family provision provisions of the Succession Act? A. Correct. Q. You made the decision not to bring any proceedings for family provision having received advice from your lawyers at that time? A. We made the decision not to proceed. We were informed that mediation would happen within six months. Of which it was set down for October 2012. Q. And then there was a mediation? A. Not in October 2012. Q. Sorry, there was a mediation in these proceedings? A. October 2013. Q. Now earlier in your evidence, correct me if I am wrong, you said you only became aware of family provision proceedings two or three weeks ago, as I recall your evidence, is that correct? A. Not in accordance - no. Two or three whenever, I don't know what the date was. HIS HONOUR: I think you said four or five. TREGENZA: Four or five. Q. Four or five weeks ago? A. That's when we actually lodged the paperwork for it. Q. When you say 'lodged the paperwork', filed the cross claim in these proceedings? A. Correct. Q. Were you told when you saw your lawyers in April 2012, told about the availability of a claim for family provision, were you told that there was a 12 month limit for bringing such proceedings? A. No, I was not. Q. The decision not to bring proceedings for family provision had nothing to do with the expectation of a mediation in October 2012, did it? A. We were expecting mediation was going to take place in October 2012. Q. But you can't have a mediation in respect of a family provision claim without having a claim being brought? A. I was not aware of that. As far as I knew the mediation was going to be going to be with regards to what we are actually here for. Q. That's right. And you were aware of there being an entitlement to bring family provision at that time? A. Not the time limit, no. Q. So you are saying that you were going to take the view that if it didn't settle at mediation you would bring family provision proceedings after that? A. Correct. Q. Now, as you rightly point out, there was no mediation in October 2012, no mediation in October 2012, why didn't you bring proceedings for family provision after that? A. We changed solicitors. Q. And you were still aware of the right to claim as being an eligible person to bring family provision, weren't you? A. It never came up again. We were too busy trying to prepare work, getting the paperwork together and prepping the new solicitors. We were under the impression we were going to mediation the following week after we engaged new counsel. Q. When you say when you 'engaged new counsel', when was that? A. About the 12th of October, I believe, 2012. Q. 2012? A. 2012, yes. Q. Did you think of asking specifically for advice concerning any family provision rights you might have? A. No, we were trying to get the paperwork together thinking we were going to mediation the following week. Q. You worked hard to assemble the papers for a mediation you anticipated to occur in October 2012, it didn't go ahead, and there was another twelve months that expired between then and October 2013 when there was a mediation? A. Correct. Q. And you didn't think of seeking advice concerning your family provision rights at that point? A. We were actually busy personally. We had personal things. Q. And you were aware at that time the estate was being distributed? A. No, I was not. Q. You were aware that the deceased's house had been sold? A. No, I was not. Q. Well, you would have expected the house would have been sold; wouldn't you? A. We don't go that way. I don't know what was going on. We were not contacted by anybody. Q. You had no reason to believe that the house wasn't going to be sold? A. Correct. Q. And you would have expected, in the ordinary course of events, the house to be sold? A. I wasn't aware of what was going to happen to the house."

Allan's evidence, in cross-examination, about this topic: "Q. Now, when did you first become aware that you had an entitlement and a right to bring proceedings for Family Provision? A. Realistically, it was only with Louisa [Evans, junior counsel for the Defendants], so I would have probably said in the last couple of months. Q. That is during 2014? A. Yeah. Q. Were you and Georgina Fulton informed by your solicitors in about April of 2012 of your right to bring Family Provision? A. They mentioned something about it, but it was pretty vague. Q. But you knew that it was an entitlement? A. No. Q. What were you told about it? A. There was not much mentioned about it. Q. What do you remember being said? A. We were too busy trying to get the paperwork together to get this underway. Q. They said you have a right to bring Family Provision? A. No, they just mentioned that it is there, but they didn't say we had a right to it. Q. Didn't you enquire? A. Well, no. Q. Wasn't it important? A. No, because at the time I wasn't interested. Q. Well, you regard these amounts as being an advance on your inheritance? A. Yes. Q. You were aware at that time that you had been cut out of the will by your father? A. 2010? Q. No, in 2012, April? A. Well, yes, I believe. Q. And you knew that proceedings were now on foot claiming hundreds of thousands of dollars against you and Georgina Fulton in connection with the withdrawals made by - A. Yes. Q. - both of you. Wasn't it an important matter to pursue with the solicitors, any matter that they raised, allowing you a right at law to participate in your father's estate? A. I left it to the solicitors to organise. Q. Well, didn't you want to know? A. Well, no, I thought I was getting the best advice at that time. Q. You see, you say you were not getting any advice concerning Family Provision? A. No, they mentioned it, but that was it. Q. What did they mention? What did they say to you; do you remember? A. No, I don't really recall what they said. Q. So, the first time you say it was ever mentioned to you in substance was this year; is that right? A. Yeah, it certainly could have been explained a lot better."

Despite the fact that the Plaintiffs had made clear, prior to the hearing, that they opposed the time for the making of the application by Allan and Georgina being extended, there was no evidence of the solicitor who provided advice in April 2012. No explanation for failing to call such evidence was adduced.

Neither was there any documentary evidence tendered on this topic, such as any correspondence from the solicitors who had advised Allan and Georgina, which might have supported the assertion that no advice had been given concerning the time within which proceedings were to be commenced. No explanation for failing to tender such evidence was adduced.

I turn now to relevant legal principles, which are applicable to the issues to be decided.

There was no dispute that the giving and acceptance of the Power of Attorney created a relationship of principal and agents between the deceased and Allan and Peter.

Similarly, there was no dispute that by signing the Authority to Operate, a relationship of principal and agent was created between the deceased and Georgina. It would also have created a fiduciary relationship.

In regard to the responsibilities of a fiduciary, it is necessary only to refer to Bristol and West Building Society v Mothew [1998] Ch 1, in which Millett LJ, at 18, noted, in summary: "A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary."

In relation to the Power of Attorney, I have earlier noted that the Attorneys were authorised to do any act that conferred a benefit on the attorneys. Even so, when an attorney has, or attorneys have, the power to confer benefits on themselves, this is limited by his or her fiduciary duty to the principal: Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326; (2008) 13 BPR 25,435, per Austin J, at [83].

Yet, Allan does not give evidence that he withdrew the amount of $72,000 relying upon the Power of Attorney, in the belief that he was entitled to use the Power of Attorney to benefit himself and Georgina. To the contrary, he says that he relied upon the express authority of the deceased, given in a letter, not produced to the Plaintiffs or to the court, to withdraw that amount. (In this regard, I remember what Lord Mansfield said in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, at 65, that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted" (see also Craig v Silverbrook [2013] NSWSC 1687, per Sackar J, at [124])).

In those circumstances, it is not necessary to consider the authorities discussed in cases referred to, for example, by Rein J in Vitek v Estate Homes Pty Ltd [2013] NSWSC 1764 and in Perpetual Trustee Co Ltd v Gibson [2013] NSWSC 276 or by White J in Perochinsky v Kirschner [2013] NSWSC 400.

The Plaintiffs did not assert that Allan and Georgina borrowed the amounts withdrawn from the deceased's accounts. That question arose because of the evidence I have quoted above. It is clear that when there is a payment of money by A to B, and the sole question for decision is whether that payment is a loan or a gift, the onus of proving it is a loan lies on the person who so asserts White v Shortall [2006] NSWSC 1379 at [16]).

The object of a will construction suit is to ascertain the intention of the deceased as expressed in his, or her, will, or codicil, when it is read as a whole. The intention of the maker of the testamentary instrument has been referred to as the "pole star" in the construction of wills: Thomson v Thomson [2008] VSC 375.

Campbell JA, in Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68, at [2], wrote, in another context, that construction is a process of coming to understand the meaning of a text, which meaning is disputed. It involves a consideration of the disputed text in itself, both as a whole, and in its constituent parts.

Recently, in Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213, a decision of the Supreme Court of the United Kingdom, which involved the rectification of wills, Lord Neuberger (with whom Lord Clarke, Lord Sumption and Lord Carnwath agreed), wrote at [19] - [25]: "When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn at 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21-30. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, 'No one has ever made an a acontextual statement. There is always some context to any utterance, however meagre.' To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that '[c]ourts will never construe words in a vacuum'. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts - see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H-780F. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should 'place [itself] in [the testator's] arm-chair', is consistent with the approach of interpretation by reference to the factual context. However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act ('section 21'). Section 21 is headed 'Interpretation of wills - general rules as to evidence', and is in the following terms: '(1) This section applies to a will - a) in so far as any part of it is meaningless; b) in so far as the language used in any part of it is ambiguous on the face of it; c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. (2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.' In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that 'evidence' is admissible when construing a will, and that that includes the 'surrounding circumstances'. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator's intention is admissible, in order to interpret the will in question. Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator's actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared)."

Of course, in New South Wales, in relation to the estate of a person who dies after 1 March 2008, it is necessary to consider the Act, which, so far as is relevant, by s 32, provides: "32 Use of extrinsic evidence to construe wills (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will: (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances. (2) Despite subsection (1), evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will."

What has been described as the ten 'incontestable principles' for the construction of wills described by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273-275 should be remembered: "1. 'Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence as is necessary in order to enable us to understand the words which the testator has used'... 2. 'The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained'. But you must look at the whole instrument, and inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it... 3. 'If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has, on the whole will, sufficiently declared'... 4. An inference cannot be made 'that did not necessarily result from all the will taken together'... A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed... 5. The court 'cannot give effect to any intention which is not expressed or plainly implied in the language of' the 'will'... 'You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication'... 6. 'If the contents of a will show that a word has been undesignedly omitted, or undesignedly inserted, and demonstrate what addition by construction, or what rejection by construction, will fulfil the intention with which the document was written, the addition or rejection will by construction be made'... 7. 'When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy'... 8. 'There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity following the law in this respect (for it is a rule of common sense...), that you should rather lean towards that construction which preserves, than towards that which destroys'... 9. If on reading the will you can see some mistake must have happened, 'that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself'... 10. 'The mind never inclines towards intestacy: that is a dernier resort in the construction of wills'..." (Omitting citations)

Finally, in Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep), Powell J said, in a passage approved by Bryson J in Perpetual Trustee Co Ltd v Wright; Re Will of James Paul Gee Cox Junior, Deceased (1987) 9 NSWLR 18, at 33, and repeated again by Hamilton J in Hatzantonis v Lawrence [2003] NSWSC 914, by Gzell J in Peoples v Simpson [2005] NSWSC 355 and by Campbell JA in Fairbairn v Varvaressos [2010] NSWCA 234, at [19]: "... It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect of the scheme so revealed."

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case in relation to the claims for a family provision order made by each of Allan and Georgina.

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

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

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, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, Allan relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased and an eligible person within the meaning of that term in the Act.

The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application.

Relevantly, in this case, Georgina relies upon the category of eligibility referred to in s 57(1)(e), and also the category of eligibility referred to in s 57(1)(f) of the Act, namely that she was: "(e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who... was, at that particular time or at any other time, a member of the household of which the deceased person was a member" or "(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death."

(It is clear sub-paragraph (f) cannot be relied upon, since Georgina was not living in a close personal relationship at the time of his death. At that time, he had not seen Allan or Georgina for about 15 months. It is unnecessary to say any more about this ground of eligibility.)

It can be seen, from sub-section (e), that there are two limbs. The first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". The language in the sub-section is reflective of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on such a person making an application.

The Act does not state any requisite period of time during which an applicant must be a member of the household of which the deceased person was a member. However, for some period, the applicant and the deceased must have been members of the same household.

There is no doubt that Georgina was a member of the household of which the deceased was a member during the period between about May 2009 and February 2010, when he lived with her and Allan. The more difficult question is whether she was wholly or partly dependent upon the deceased at any particular time. It is clear that the dependency does not have to be at the same time as the applicant was a member of the household of which the deceased was a member.

Neither the former Act, nor the Act, contains any definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)): "45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of 'dependants' does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a 'dependant' is a member of the workers' family who was 'wholly or partly dependent for support upon the worker at the time of his death'. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote, at [85]: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough."

In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA: "The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that ''Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop (dec'd) or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J, at [42], said: "Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."

In Tobin v Ezekiel [2012] NSWCA 285, at [109], Meagher JA wrote that dependency "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and at [110], that it "may exist irrespective of whether the dependent person is financially or physically able to support himself or herself".

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[c]ommon sense requires that certain trivial activities should be disregarded".

A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176, at [13].

Whether dependency, wholly or partially, exists, is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177, at 189.

Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. (Consent is no longer referred to.)

Clearly, permitting the court to "otherwise order" was included in the legislation to avoid the section becoming an instrument of injustice. It also makes the decision to extend time a discretionary one.

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

In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J, at [23] - [24], put it more strongly: "...Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."

Section 58(2) is in terms similar to s 16 of the former Act, except that the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".

In Moore (by her tutor the NSW Trustee & Guardian) v Randall [2012] NSWSC 184, White J, at [39], said that the expression "sufficient cause" "means sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period". That is to say, the sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time: Verzar v Verzar, per Macfarlan JA at [24].

In another context, the High Court wrote in Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469, at 475: "... it is a mistake to attempt to reduce the expression 'sufficient cause' to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal Defendant has or may have suffered because of that failure."

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84] - [90], I set out the applicable legal principles relating to an application to extend the time, as follows: "The decision of the court to extend time is a discretionary decision. Other than 'sufficient cause being shown', there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of 'unconscionable conduct' referred to above was 'directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security'. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]."

My decision was followed, by Nicholas J, recently, in Twomey v Mcdonald [2012] NSWSC 22, at [8], and by Ball J in Donaldson v Lawless [2013] NSWSC 861, at [27]. I maintain the views expressed in that decision.

By way of example, ignorance of the right to apply for relief may constitute a sufficient explanation for delay as can financial constraint: Verzar v Verzar, at [103] - [104].

In Verzar v Verzar, at [33] - [35], Macfarlan JA noted: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2).... The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996).... Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."

More recently, in Zannetides v Spence [2013] NSWSC 2032, Young AJA wrote, at [15]: "The subsection that I have set out says that the Court may 'otherwise order', but only if sufficient cause is shown. One cannot confine a statutory discretion, but the cases which have been decided on section 58(2) or its predecessors show that the courts have focused on a number of factors, namely: (a) The excuse for not filing the claim in time. (b) The knowledge of the plaintiffs of their rights. (c) The strength of the plaintiffs' case. (d) Negligence of the solicitor involved. (e) Prejudice to the defendant. (f) Any unconscionable conduct."

I should mention that one of the issues specifically raised by the Plaintiffs was the prejudice that would be suffered if the application were allowed. Leading counsel referred to "presumptive prejudice", which term was taken from Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, per McHugh J, at 544. That term means no more than prejudice inferred from the delay alone. Whilst that prejudice may not readily be identified, where there is delay, the quality of justice available to the opposing party deteriorates. Obviously, the longer the delay in commencing proceedings the more likely will be prejudice from lost witnesses or fading recollections: Brisbane South Regional Health Authority v Taylor, at 551; Axford v Gray [2013] VSC 664, at [10].

McHugh J said (at 552-553): "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. ... The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost . Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them . Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: 'The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.' In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

As I said in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117] "[U]ltimately, justice is the paramount consideration in determining whether to extend the time for making an application ....".

In determining what is just, as well as taking into account the reasonableness of the conduct of the applicant(s) as set out above, it will also be necessary to take into account the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the Will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate: Harrison v Harrison [2011] VSC 459, at [292].

In the case of an applicant who, relevantly, falls within s 57(1)(e), as Georgina says she does, the court must next consider, and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

The Act does not specify the "factors which warrant the making of the application". As Pembroke J, in Wilcox v Wilcox [2012] NSWSC 1138, noted, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".

However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop, Deceased (1987) 8 NSWLR 679, at 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

In Re Fulop, M McLelland J also said, at 683: "In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."

In Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep), Cohen J, in dealing with an application by stepchildren, said, at 8 - 11: "There is nothing in the section to indicate what is meant by 'factors', or how far the Court has to take the matter in order to warrant the making of the application .... ... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: "[7] This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. [9] ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ('there are factors') is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: "[8] As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to 'proceed with the determination of the application'. In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are 'regarded as natural objects of testamentary recognition', whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681."

In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of 'eligible person' and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

In Sassoon v Rose [2013] NSWCA 220, an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed), at [15], noted: "In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those 'factors' are ones which, when added to the facts which render the applicant an 'eligible person' (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said it is wrong. Even so, as Slattery J has noted in Lumsden v Sumner [2012] NSWSC 1440, at [89], "[t]he authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting".

With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Meagher JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann; Russell v NSW Trustee and Guardian [2013] NSWSC 370; Hamilton v Moir [2013] NSWSC 1200. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox, at [16]; Lumsden v Sumner, at [88]; Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166, per Slattery J, at [145]; Vo v Lai [2013] NSWSC 1639, per Windeyer AJ at [57]; Skarica v Toska [2014] NSWSC 34; Milewski v Holben [2014] NSWSC 388, per Lindsay J; and Hart v Van Son [2014] NSWSC 585, per Kunc J.

It is only if eligibility, and if necessary, factors warranting the making of the application is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (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".

Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."

Basten JA, at 662-3 [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."

Barrett JA, at 677-8 [82] - [86], said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person 'either during the person's lifetime or out of the person's estate' was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the 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 in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and 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: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], 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 recently 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] per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)).

Under s 59(1)(c) of the Act, 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, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

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

The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In Alexander v Jansson, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

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: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon C.J. at p. 128."

Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995)... notes... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, 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 145 [72], [77].

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: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

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: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Goodman v Windeyer, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

In Palaganio 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 there are no definite criteria by which the question can be answered.

His Honour further observed in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."

In Hansen v Hennessey [2014] VSC 20, at [36], Lansdowne AsJ recorded that "[W]hat is "proper" maintenance and support will depend on the claimant's situation in life, and what is "adequate" provision will depend on his or her financial needs, and capacity to meet those needs."

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].

Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).

In Collins v McGain, Tobias JA said, at [42] and then at [47]: "Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 (at 10-11) per Bryson J. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P. 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, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."

"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45].

As Callinan and Heydon JJ emphasised in Vigolo v Bostin, 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": at 231 [122]. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), 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.

The second stage of the process 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 the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes [to the legislation] requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was 'inadequate', followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse (1994) 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [93]."

Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying, at [65], [79] - [81], and then at [94]: "This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was 'satisfied' in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'. Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), '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'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person 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; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... As stated in Keep v Bourke, the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar.

(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew.)

Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order).

Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

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

It was said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court 'may have regard to', but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's 'proper' maintenance, education or advancement in life".

In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'".

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

The Act 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. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.

There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit."

In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property".

Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

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.

This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209 - 210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

It is also supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230 - 231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made 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. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."

Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court.

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).

Any family provision order under the Act takes effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased or (in the case of intestacy), as in a Will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.)

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.

Section 100 of the Act provides, in subsection (2), that, in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.

Section 100(5) and s 100(6) provide: "(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it."

Also, Gibbs J said in Hughes v National Trustees Executors & Agency Company of Australasia Ltd, at [18]: "Nevertheless in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."

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

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.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. 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 Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be "vigilant in guarding against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Cooper v Dungan, at 543 (Murphy J) (citing Pontifical Society for the Propagation of the Faith v Scales, at 19).

The court is given not only a discretion as to the nature and amount of the provision it directs but, even more importantly, a discretion as to making a provision at all. All authorities agree that it was never meant that the court should re-write the will of a testator: Pontifical Society for the Propagation of the Faith v Scales, at 19.

In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453 - 454, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification". Thus, testamentary freedom is not absolute.

White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."

Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the Court to "connect the general but value-laden language of the statute to the community standards which give it practical meaning" (at 204).

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]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and s 59(2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the court is considering [an application for a family provision order] and the facts then known to the court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the court."

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).

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

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164, at [21].

Where the court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, at [45] (White J).

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].

The size of the estate is a significant consideration in determining an application for provision.

In relation to Allan's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179] - [182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) There is no obligation upon the deceased to have treated all of his, or her, children equally in making provision in the Will. Nor is there any obligation on a parent to equalise distributions made to his, or her, children so that each child receive benefits on the same scale as the other. There is no standard measure for the extent of the duty owed by a parent to a child. The Act does not permit a principle of equality between children that does not differentiate between children according to gender, character, conduct or circumstances. To the contrary, it specifically provides that conduct, circumstances, and financial resources, including earning capacity, may play a part in the court's determination of the applicant's case.

These principles have recently been referred to, with approval, by McMillan J in Brandon v Hanley [2014] VSC 103, at [20], by Kunc J in Toth v Graham [2014] NSWSC 393, at [53] and by White J in Friend v Brien [2014] NSWSC 613 at [32].

One could not say, where the son of the deceased is alive and remains married to the daughter-in-law of the deceased, that, generally, the community expectation would be to make provision for both. However, the matters enumerated in s 60(2) and the particular facts and circumstances applicable to the applicant, the deceased, the beneficiaries, and the size of the estate may be relevant in determining whether such a community expectation exists.

I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 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 has been established.

As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

I respectfully agree, also, with the statement of White J in Slack v Rogan, at [126]: "The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the 'evaluative judgment'."

I now set out the additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

There is no definition of "family" in the Act. Its popular meaning is not fixed and, undoubtedly, over time, has changed. It is not a technical term or term of art with a specific meaning. It is a word in ordinary usage, with a flexible meaning. Generally, it is a word that may be used in a number of different senses, some wider, some narrower.

In this sub-section, I consider that the word is used in the narrower sense, because of the use of the word "other" before the word "relationship". The language of the sub-section plainly indicates a distinction. It follows that in this sub-section, "family ... relationship" depicts a legal relationship (of blood, by legal ceremony of marriage, by legal adoption) or a de facto relationship. It may also include persons where the link is "step-", or where the link is "in-law" or by marriage.

In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928, at 931, agreed: "Granted that 'family' is not limited to cases of a strict legal familial nexus ... . It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-', or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

Also, in my view, the word "family" does not have the same meaning as the term "member of the household".

Georgina had known the deceased since about 1989. In fact, she stayed with the deceased and Yvonne for three months in 1989. She says, and I accept, at least until the events to which I have referred, that they always had a close relationship.

I am satisfied that Allan and Georgina each was part of the deceased's family. I am also satisfied that, prior to about February 2010, the relationship of each of them and the deceased was a close one. In this regard, there was no cross-examination of either on what he and she had described in his, and her, affidavits, respectively, about the nature of the relationship prior to the events that led to the dispute between the deceased and them. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

This factor requires a balancing of potentially competing obligations as between each applicant and beneficiary.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his sons, as an adult, imposed upon him by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

The deceased did not have any legal obligation to Georgina, as a daughter-in-law, imposed upon him by statute or common law. However, it may be that such an obligation or responsibility would arise from Georgina's dedication as the wife of the deceased's son, and as mother to the deceased's grandchildren by his son, or by what she did to assist the deceased over many years prior to the death of the deceased.

However, as stated earlier, it is difficult to conclude, that such an obligation or responsibility would arise where the marriage of the son and daughter-in-law subsisted at the date of death, and in circumstances of provision being made for the son of the deceased. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

I have earlier dealt with these matters. The maximum gross value of the undistributed actual estate would be the amount found to be repayable to the estate by one or more of the Defendants, including interest thereon. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

The joint financial position of Allan and Georgina appears as follows: Schedule of Assets Schedule of Liabilities Each receives an income of $3,900 per month and the family's monthly expenditure as is follows:

It follows that they appear to have a surplus of income over expenditure.

It is clear that each has an earning capacity.

Georgina asserts their "needs include" the legal fees payable in these proceedings; costs and expenses associated with looking after their son, Aaron, who is aged 14 years and to provide for their daughter, Vanessa, who wishes to join in the family business and who is currently pursuing a career in business management; and to provide for exigencies of life.

Of course, it is to be remembered that the legal fees have been incurred as a result of the institution of the proceedings and by reason of their defence of those proceedings.

Graham gave evidence of his assets as follows:

While Graham's average net income, as a truck driver, between March 2010 and December 2012 was approximately $1,500 per week, he gave evidence that he has been unable to work since December 2012 as a result of being diagnosed with, and receiving treatment for, aneurisms and haemochromotosis. Between December 2012 and about October 2013, he said that he "lived off [his] savings".

In about October 2013, he began receiving Centrelink benefits of approximately $463 per fortnight.

Graham says that he is "no longer able to obtain employment as a ... truck driver" as he has "not been certified as suitable for a licence". I accept that his earning capacity has diminished and that he is unlikely to obtain work as a truck driver in the foreseeable future. Overall, however, perhaps he retains some earning capacity.

Graham gave evidence that he owes $15,650 in credit card debt and that he has weekly liabilities as follows:

He also gave evidence that his financial position is affected by having "three dependants", namely, his wife, Anna, and two daughters aged 18 years and 13 years respectively.

Anna is currently not employed and has not been employed since 2003. She receives approximately $463 per fortnight in Centrelink benefits, together with approximately $264 per fortnight in Family Tax Benefit Part A and B entitlements for the younger of their two daughters.

I accept that Anna's earning capacity is limited.

Peter works as an electrical fitter and has been employed by his current employer for 35 years. He gives evidence that his gross weekly income is $1,140 and his net weekly income after tax ($200), child support repayments ($179) and club membership ($2), is approximately $757.

There is no evidence that Peter lacks earning capacity.

Peter's assets include his home, in Riverstone (about $500,000), contents, (about $10,000), and motor vehicles (about $10,500). He has no liabilities.

Peter gives evidence that his additional weekly outgoings total approximately $503, as follows:

Douglas is a mechanic. He owns his own business, which was purchased, in 2012, for $80,000. He gives evidence that his "income is variable". He says that, before October 2012, he was earning approximately $2,000 per week but that since January 2014, his earnings have been "approximately $200 to $250 per week".

Douglas gives evidence that rental obligations for his business are $1,844 per month, that "in order to make a profit, [he] need[s] to take at least $1,000 per week", and that he is currently "trading at a loss". He says that "if [business] does not pick up soon, [he] will probably need to close the bike shop and find alternative employment".

During the course of the hearing, Douglas was offered some casual contract work in Queensland.

I accept that, notwithstanding the concerns for the viability of his business, Douglas retains an earning capacity.

Douglas' wife, Wendy, is employed on a part-time basis and earns approximately $300 per week.

Douglas' assets were disclosed as follows:

Douglas gave evidence that he has current debts of approximately $256,000 comprising:

Douglas also disclosed ongoing liabilities as follows:

Of course, the position of each of the Plaintiffs has been improved by the distributions made to him. In the case of Douglas, there will be further distributions to be made to him. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person

Allan and Georgina are cohabiting. I have dealt with their financial circumstances. (It is unnecessary to consider the financial circumstances of their children.) (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

There is no evidence of any physical, intellectual or mental disability of either Allan or Georgina.

I have earlier referred to the medical condition of Graham. That is set out in more detail in a letter dated 31 October 2013 from Dr Mark Dexter which includes: "...Mr Fulton was recently admitted to Westmead Public Hospital to undergo a neurointerventional stenting procedure to treat his left frontal recurrent aneurysm. Unfortunately it was not possible to treat the aneurysm in this way. Mr Fulton will now require major open brain surgery to repair the aneurysm, that being a craniotomy, repair of the aneurysm and a reconstructive cranioplasty, by myself. I have organised for Mr Fulton to be admitted to Westmead Private Hospital on the 19th November to undergo the surgery. It should be noted however that this is major intracranial surgery which carries with it risk of death. I understand that Mr Fulton drives large vehicles in his line of work and he will not be able to drive any vehicle for a full 12 months post surgery. In addition he will not be fit for duties in any capacity for 3-6 months post surgery which will be assessed during his recovery."

There is no evidence of any physical, intellectual or mental disability of either Douglas or Peter. (g) the age of the applicant when the application is being considered

I have earlier noted that Allan was born in May 1972 and is currently almost 42 years of age whilst Georgina was born in July 1973 and is currently 40 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

Allan and Georgina give evidence of the contribution of each to the conservation and improvement of the West Pennant Hills property and otherwise to the welfare of the deceased (and previously to the welfare of Yvonne). Overall, there is no need to disbelieve this evidence, as there is no substantial dispute about it. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

Georgina gives evidence of the following provision made for Allan and her during the deceased's lifetime. Omitting amounts referred to as in dispute in these proceedings, that provision included: (a) In 1996, the repayment of a "substantial amount" towards the mortgage debt secured on their Schofields property; (b) In 2001, the payment of "several thousand dollars" for stock in a shop at Quakers Hill; (c) The amount lent to Jeanette, which he did not seek to be repaid upon the basis that Jeanette did not seek to recover any amounts from Allan and Georgina. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

I have earlier referred to the three Wills of the deceased and to the deceased's affidavit. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

Whilst the deceased's funds may have been used to assist in maintaining Allan and Georgina, I am not satisfied, other than in respect of amounts specifically admitted as having been paid by the deceased for their benefit, that each was being maintained, either wholly or partly, by the deceased.

I do not consider that using the deceased's funds for maintenance, without his approval, constitutes "being maintained by the deceased". (l) whether any other person is liable to support the applicant

There is no person who is liable to support Allan or Georgina, other than, perhaps, each other. (m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

In In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 318, Jordan J, at 321, wrote (in relation to the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)): "Section 3(2) of the Act provides that the Court may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order. I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default."

More recently, in Collicoat v McMillan [1999] 3 VR 803, at 817, Ormiston J wrote in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "... Ordinarily each of the persons who have a statutory right to make application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except insofar as a testator might properly take exception to their behaviour."

In Hampson v Hampson [2010] NSWCA 359, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

I am satisfied, having regard to the totality of their relationship, that, but for the conduct of Allan and Georgina in the period from about August 2009 to February 2010 in withdrawing funds from the deceased's accounts, Allan was a loving and dutiful son and that Georgina was a loving and dutiful daughter-in-law.

There was no criticism of either so far as his, or her, conduct related to the deceased, other than in respect of the matters the subject of the Plaintiffs' claims.

However, the conduct of each, in relation to funds withdrawn from his account, in my view, is a very relevant matter as conduct that the deceased was properly entitled to take into account.

Allan and Georgina had no contact with the deceased after 20 February 2010 until his death. I have no doubt that this was because of the events the subject of the Plaintiffs' claims. It is also a matter to be taken into account, as is their conduct in putting the deceased to some cost in having to retain lawyers to recover the funds. In the events that occurred, no proceedings were instituted before the deceased's death, but as has been observed, there was significant correspondence between the lawyers relating to the moneys that had been withdrawn.

The relationship of the party siblings, as I indicated at the outset, is clearly such that they no longer get on with each other (although there is no suggestion of conflict between the Plaintiffs). (n) the conduct of any other person before and after the date of the death of the deceased person

Although there was some criticism of each of the Plaintiffs, in his treatment of the deceased by Allan and Georgina, I am satisfied that the conduct of each towards the deceased was satisfactory. In relation to Peter, I do not forget that he lived in the West Pennant Hills property from 1998.

There is no evidence that the deceased considered the conduct of each as such to restrain the amplitude of provision that he made. In this regard, I have earlier mentioned that, until the 2010 Will, the deceased divided his estate, broadly speaking, equally between his four sons. (o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

There is no other matter that I consider relevant.

In my view, subject to what I shall say hereunder in regard to the claims for provision, the Plaintiffs have satisfied me that the whole of the amount of $495,000 should be repaid to the estate. I am not satisfied that the deceased conferred authority to Allan, or to Georgina, to use any of these funds for his, her, or their, own benefit. Nor do I accept that he gave instructions orally, or in writing, in respect of these amounts or that he made a gift of the amounts to one, or both, of them. To the contrary, I find that he did not do so. I cannot accept the evidence of Allan or Georgina when taken with the evidence overall.

In particular, I cannot be satisfied that the deceased authorised Allan to withdraw the amount of $72,000 from his account in the way stated by Allan. There is simply no satisfactory basis to come to the conclusion contended for by Allan on this topic. Of particular significance is Allan's failure to bring forward corroborative evidence that was, or ought to have been, available, namely the authority letter to which he made reference.

In relation to the amounts withdrawn by Georgina, I note that the Authority to Operate did not contain any power to confer a benefit. I am not satisfied that the deceased, otherwise, authorised her to withdraw any of the amounts totalling $420,500 that she did. The deceased's affidavit contained the statement that the deceased "completed the Authority to Operate in favour of Georgina so she could pay my bills". I have earlier referred to the specific lack of responsive evidence by Georgina on this topic. It is also logical that he might do so in the circumstances.

Taking all of the evidence into account, I accept the statement of the deceased that he provided the Authority to Operate the accounts to Georgina so that she could pay his bills or to enable her to withdraw amounts he asked for, from which he could pay his bills or other expenses. None of the amount of $420,500 was used for those purposes.

Thus, I am satisfied that all of the withdrawals and distributions made by Allan or Georgina to themselves, or for their benefit, were made without the informed consent of the deceased. I am not satisfied that the amounts were gifts by the deceased to Allan or Georgina. In this regard, I refer, in particular, to Allan's evidence regarding the amounts "we borrowed".

Subject to what I shall now turn, Allan and Georgina should repay the whole amount of $495,000 to the estate.

In relation to the terms of the 2010 Will, on its proper construction, I find that the deceased did not intend to waive, or to not require, the return of the amounts to which he referred. Rather, his intention was to explain that he was not making provision for Allan because of Allan's conduct, which conduct, so far as the deceased was concerned, was unfilial.

Nor am I satisfied that the deceased intended to provide an advance on his inheritance to Allan by the contents of the 2010 Will. Nor did he intend to waive, or not require, the return, or repayment of the money as suggested in the amended Defence. To the contrary, I consider that the deceased's intention, until he made the 2010 Will, was to divide his estate, broadly speaking, equally between his four sons. His testamentary intention changed as a result of Allan's, and Georgina's, conduct in withdrawing funds from his accounts, which withdrawals I am satisfied he did not consent to or otherwise authorise.

In other words, the deceased was identifying, in the 2010 Will, what he regarded as conduct disentitling Allan to the benefit of any provision from his estate. Clearly, the conduct to which he referred had an important influence on the manner in which he was leaving his estate. He was also endeavouring to explain, in the 2010 Will, the reasons for the change of testamentary intentions from the 2009 Will.

The 2010 Will and the affidavit that he made, thereafter, in my view, explained the deceased's motives in doing what he did. Each also explained his state of mind so far as Allan and Georgina were concerned. The relevant paragraph of the 2010 Will was not intended to be a dispositive provision to either Allan or Georgina. To construe an explanation providing reasons why provision is not made as constituting a form of provision is not a tenable reading of Clause 7 of the Will.

I turn then to the claims for a family provision order.

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Allan, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is a dispute that Georgina is an eligible person. Whilst she was a member of the household of which the deceased was a member, I am not satisfied that she was wholly, or partly, dependent upon the deceased. As I have stated, the unauthorised withdrawal of funds used for her, or her family's, benefit, does not make her dependent, wholly or partly, upon the deceased.

In the case of Georgina, not being satisfied that she is an eligible person, means that her claim for relief under the Act must be dismissed.

Had I been satisfied that she was an eligible person, I would not have found factors warranting the making of her application. In this regard, I note that she was not identified, by the deceased, in either of the 1998 Will or in the 2009 Will as a beneficiary, although in the latter, as a spouse of Allan, she may have been a discretionary object.

Nor was she a substitute beneficiary named in the 1998 Will.

I note also that in the Will, Clause 7 commences: "I have not made provision for my son Allan Fulton because ...". This, too, demonstrates that the deceased did not regard Georgina as a natural object of testamentary bounty. Had he done so, one would think that she would have been included in this opening paragraph.

A daughter-in-law is not, usually, regarded as a natural object of testamentary bounty, particularly in circumstances where the marriage of the son and daughter-in-law subsists at the date of death and in circumstances where the benefit of provision made for the son will, at least indirectly, assist the daughter-in law. It may be different if the applicant is a widowed daughter-in-law: see, for example, Petrucci v Fields [2004] VSC 425.

Thus, having not found Georgina to be an eligible person, and, in any event, no factors warranting the making of her application, her claim must be dismissed. There is no need to consider whether there should be an order extending the time for the making of her application.

In relation to Allan, I next turn to the order seeking an extension of time. Although the evidence on this issue is weak, particularly on the question of not knowing of the period prescribed by the Act for making the application, I am satisfied that sufficient cause to extend the time for the making of Allan's application for a family provision order has been established.

Had Allan been told about the period prescribed by the Act for the making of the claim, there would have been no reason not to file a Cross-Claim, making that claim. The costs of filing the Cross-Claim and for producing the affidavit in support thereof would not have been sufficiently great to prevent him doing so. As the case has proceeded, comparatively little time has been spent on this aspect.

In circumstances where I propose to order the repayment of the agreed amounts withdrawn, there will be actual estate out of which provision may be made. Then, no specific prejudice has been pointed to by any of the Plaintiffs (each limiting the prejudice to the circumstances surrounding the making of an order designating distributed property as notional estate).

I do not regard the "presumptive prejudice" relied upon as being relevant. None of the Plaintiffs suggested that the quality of justice available had deteriorated, or that any witness had been lost, or that recollections had faded. To a great extent, the Plaintiffs have produced a volume of contemporary banking records to establish the substantive case against the Defendants.

Nor do I consider that the there is any unconscionable conduct, in the relevant sense, on Allan's part. His explanation regarding other issues being of concern to him, to Georgina, and to their legal representatives, is I think an understandable one and I accept it.

Finally, since I consider that a family provision order, in favour of Allan, should be made, the strength of his claim is relevant. On balance, I consider that justice would be best served by extending the time and, in all the circumstances, I propose to make an order, sufficient cause having been shown, extending the time for the making of Allan's application for a family provision order.

Having established eligibility and that the time for the bringing of the proceedings should be extended to the date of the filing of the amended first Cross-Claim, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of Allan has not been made by the Will of the deceased. Whether such provision has been made requires an assessment of his financial position, the size and nature of the deceased's estate, the relationships between him and the deceased and other persons who have legitimate claims upon his bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; and Vigolo v Bostin, at [16], [75] and [112].

Using the yardstick of prudent and intelligent conduct on the part of Allan, his claim would have to be dismissed. However, I have considered all of the matters I am required to consider, and I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life of Allan by the 2010 Will. No provision was made in the 2010 Will for him. Whilst his and Georgina's conduct after mid 2009 does not paint either in the most favourable light, the deceased should not have ignored the nature and extent of their relationship in the many years prior thereto.

Also, I am required to consider the question at the date of hearing. If an order is made requiring Allan and Georgina to repay the amount of $495,000, at least part of the reason for omitting Allan entirely from his testamentary beneficence, will be eroded (albeit that this was not achieved during the lifetime of the deceased).

In coming to this conclusion, I also have taken into account the legitimate claims upon the bounty of the deceased of Graham, Douglas and Peter and the obligation and responsibility that the deceased felt, to provide for each.

It is also clear that Allan has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance and advancement in life. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.

Allan and Georgina's financial position will alter significantly upon the repayment of $495,000. In effect, the value of their assets will not exceed their liabilities. The repayment of the whole amount will probably require the sale of their home. In this regard, I cannot forget that they have a child who resides with, and who is dependent upon, them. Thus, judged by quantum and looked at through the prism of Allan's financial and material circumstances, it can be seen that adequate provision for his proper maintenance or advancement in life was not made by the 2010 Will, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both.

Had I concluded that Georgina was an eligible person and that there were factors warranting the making of her application, I would have found, as a matter of discretion, that no provision ought to be made for her out of the estate of the deceased. In this regard, I have considered all of the matters to which I have referred as well as the competing claims of the Plaintiffs and, also, of Allan.

The more difficult question then arises, namely what provision "ought to be made for the maintenance or advancement in life" of Allan, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight". It is not a scientific, or arithmetic, exercise.

I must also consider, in coming to the determination of adequate and proper provision, Allan's conduct and the fact that he did not see the deceased for the last 15 months of his life. I must also consider the competing claims of the Plaintiffs. In my view, these matters reduce, but do not extinguish entirely, the obligation of the deceased to make some provision for Allan.

Doing the best I can, and taking into account all of the matters that I am required to consider, having considered that I should order Allan and Georgina to repay the amount to the estate of $495,000, from the amount repaid, Allan should receive a lump sum of $320,000. (That amount, but for the repayment that must be made, would have enabled Allan to pay his share of the existing joint debts that have been identified and some part of the costs and disbursements that he will, undoubtedly, be required to bear.)

Subject to the agreement of all of the Plaintiffs and of Allan in respect of whom a family provision order is made, the lump sum by way of provision may be set off, as it were, with the result that the amount to be repaid to the estate should be $175,000 together with any interest to be paid. If agreement cannot be reached, the whole amount should be repaid to the estate before the lump sum is paid to Allan.

As stated, Georgina's claim should be dismissed.

In relation to interest, I am of the view that some interest on the amount repayable by Allan and Georgina should be paid. But as a matter of discretion, I consider that interest should be calculated only on the lump sum of $175,000, from the date of the deceased's death, until the date of repayment. The rate of interest should be agreed upon, or if not agreed, I shall decide the issue. (I have taken into account, as a form of indirect provision for Allan, that no interest is to be paid between early 2010 and the date of death of the deceased.)

No interest should be paid on the lump sum payable to Allan by way of family provision order since its payment will be dependent upon the repayment of $495,000 plus interest by Allan and Georgina to the estate.

I shall allow the parties an opportunity to consider these reasons and to make further submissions on the form of orders, the rate of interest and the burden of costs if agreement cannot be reached. I direct the parties to prepare Short Minutes of Order giving effect to these reasons, and if they are not able to agree, to provide competing versions thereof within 14 days. I shall stand the matter over to a date convenient to the parties and the court for the making of orders and determining the question of the rate of interest and costs.

If possible, agreement should be reached on the calculation of interest, at least up to the date of the making of orders, and costs and, if it is at all possible, perhaps, agreement could be reached on the quantum of costs also. This may avoid further disputes at a later time. I shall stand the proceedings over for any argument as to costs to a convenient date.

There should also be an order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings.