Estate of Kallidis; Kallidis v Kallidis

Judgment

1. [1]

   HIS HONOUR: These reasons relate to three different proceedings, two of which were referred to me by White J, on 30 August 2012, for hearing, pursuant to Part 60 rule 1A of the Supreme Court Rules. The third, which is a family provision matter, did not need referral by order of his Honour but as it was connected with the matters referred, it was also referred to me.

2. [2]

   At the commencement of the hearing, with the agreement of the parties, I made an order that the three matters be heard together, with the evidence in one being the evidence in the other. This was clearly necessary, and appropriate, as some of the evidence to be read was relevant to one, or more, of the proceedings.

3. [3]

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

4. [4]

   The proceeding, first in time, was commenced by Summons filed on 4 June 2010, and an amended Summons filed on 13 September 2012, in which the Plaintiff is Thomas Kallidis, one of the seven children of Mihail (also known as "Michael") Kallidis. The claim is for a grant of administration with the Will dated 1 July 2008 ("the Greek Will") of Michael, annexed, to him. The application takes that form because the Greek Will does not name an executor. I shall refer to these proceedings as "the administration proceedings". There is no Defendant named in these proceedings. (I shall refer later to a further amended Summons filed, without objection, following the conclusion of part of the case.)

5. [5]

   At the hearing, there was no opposition to a grant of administration, to Thomas, of the Greek Will. In fact, consent to the grant to Thomas, had been given, in writing, by all of the children of Michael except Asimina. However, by her counsel, during the hearing, she stated that she also consented. Subsequently, Asimina filed a written consent to the grant on 22 October 2012.

6. [6]

   During the course of the hearing, the parties requested me to make an order for a special grant of administration pendente lite to Thomas, to enable the sale of real property situated at Copeland Street Alexandria ("the Alexandria property") in which the estate of Michael has an interest (to which I shall return). I made orders, and noted agreements, between the parties, in accordance with short minutes of order that were provided to me. (Those orders and notations were entered on the Court's computerised court record system on 3 October 2012.)

7. [7]

   The proceeding, second in time, was commenced by Summons filed on 7 June 2011, by Asimina Kallidis, and by her, as tutor for her son, also called Michael. (I shall refer to him as "Asimina's son" since he bears the same name as his grandfather.) Each seeks a family provision order out of the estate of Styliani (also known as "Stella") Kallidis, pursuant to the Family Provision Act 1982 ("the former Act"), and also out of the estate of Michael pursuant to the Succession Act 2006 ("the Act"). A family provision order, under each Act, 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.

8. [8]

   Because the proceeding in respect of each estate was not commenced within the time prescribed by the former Act, or by the Act, each seeks an order that the time for the making of her, and his, application be extended until the date of the filing of the Summons. I shall refer to these proceedings as "the family provision proceedings".

9. [9]

   By agreement also, the claims against both estates were heard together reading the common affidavit evidence. It was in respect of the family provision proceedings that the position of Asimina and Asimina's son, on the one hand, and her siblings, on the other, were polarised.

10. [10]

    Pursuant to an order made by consent of the parties, Thomas and his sister, Maria Tsiougos, are the Defendants named in the family provision proceedings and they represent the estate of each of the deceased persons, Stella and Michael, out of whose estates Asimina and Asimina's son seek the family provision orders.

11. [11]

    The proceeding, third in time, was commenced by Statement of Claim, filed 4 November 2011, in which Thomas and Maria, are the Plaintiffs and Asimina is the Defendant. It involves an application to revoke the grant of probate of Stella's Will, made to Asimina, and for the appointment of Thomas and Maria as joint administrators and trustees of that estate. Other relief is also sought, including possession of the Alexandria property, which remains registered in the names of Stella and Michael as tenants in common in equal shares. I shall refer to these proceedings as "the revocation proceedings".

12. [12]

    In light of the special grant of administration and the consent of all of the children, including Asimina, to the final grant of administration to Thomas, it was not necessary to spend any time on the revocation proceedings and I shall refer to it, in a summary way, later in these reasons. At the hearing, on 23 November 2012, the parties agreed that these proceedings should be dismissed. The sole issue remaining relates to the costs of these proceedings.

13. [13]

    The matters proceeded with the reading of the evidence filed in the three proceedings; then the objections to affidavits; and finally the cross-examination of the various witnesses, all being the children of Stella and Michael. Counsel then made submissions. I then adjourned the proceedings for a short period because of an issue concerning the construction of the Greek Will. I shall refer to what followed the adjournment later in these reasons.

Uncontroversial Facts

1. [14]

   The following facts are uncontroversial.

2. [15]

   Michael was born in Piraeus, Greece, in January 1923. He died in March 2009, aged 86 years. He came to Australia in 1969, with his family, but returned to Greece in late 1984, never to return.

3. [16]

   Stella was born, also, in Piraeus, Greece, in October 1925.

4. [17]

   Michael married Stella, in September 1947. There were seven children of their marriage namely, Thomas, who was born in April 1951, Helen Dedes (Eleni Kallidis), who was born in June 1952, Maria, who was born in September 1954, Andriani Kallidis, who was born in August 1958, Asimina, who was born in August 1962, Soumela Saroukos, who was born in September 1964, and Dimitra Bourel, who was born in May 1971.

5. [18]

   Some of the family came to Australia, from Greece, in about 1960. Thomas and Helen came later.

6. [19]

   A divorce order was made in respect of Michael and Stella's marriage, in May 1995, at the Athens First Instant Court.

7. [20]

   Asimina's son was born in September 1997.

8. [21]

   Stella died on 11 August 2008, aged 82 years.

9. [22]

   Stella left a will dated 26 February 2003. Asimina obtained Probate of Stella's Will on 12 December 2008, from this Court, to give effect to her appointment as the sole executrix. That Will provided for Stella's estate, of whatever kind, and wherever situated, after payment of just debts, funeral and testamentary expenses, and all duties payable under the Will, to be divided between her seven children as tenants in common in equal shares.

10. [23]

    At the date of her death, Stella's estate, in NSW, comprised an equal share, as tenant in common, with Michael, in the Alexandria property ($200,000 being the estimated value of that one half share), household and personal effects (no commercial value), and cash ($10,946) in two different bank accounts.

11. [24]

    Stella also owned a small apartment in Korydallos, Piraeus, Greece ("the Korydallos property"), and a small plot of land with a dwelling house also in Salamina, Piraeus ("the Salamina property"). There was also said to be cash in a bank account in Greece, the amount not being disclosed in the evidence.

12. [25]

    The costs and expenses of Stella's funeral, to which a number of her children contributed, were about $20,724. Asimina says that she, initially, paid $4,194 and a few days later, $1,112; Dimitra and her husband, Alan, paid $4,112; Emilie (Andriani's daughter) paid $4,194; Michael Saroukos, on behalf of Soumela, paid $4,112; and Maria paid $3,000.

13. [26]

    Michael married his second wife, Triantafilia Lazaridou, in about 1997 or 1998. She predeceased Michael, having died in about 2001. There were no children of their marriage. Michael was a beneficiary of a part of her estate situated in Greece.

14. [27]

    Michael married his third wife, Ludmila Beltsikova (also spelt Lyudmyla Belchykova), on 11 December 2006. They remained married, and living together, at the date of Michael's death. There were no children of their marriage.

15. [28]

    Ludmila was born in Dresden, Germany, in 1949.

16. [29]

    Michael made a Will, in Australia, on 24 January 1980 ("the Australian Will"). In the Australian Will, in the events that happened, he appointed Stella as sole executrix of his Will and left the whole of his estate to her, but if she did not survive him, he appointed Asimina as executrix and trustee of his Will and after payment of just debts, funeral and testamentary expenses, and all duties payable under the Will, he left his estate to be divided equally between all of his children who survived him and who attained their majority, as tenants in common.

17. [30]

    Since Michael remarried after the Australian Will was made, that Will was revoked by law: s 15 Wills Probate & Administration Act 1898. (Section 15 applies in relation to wills made before the commencement date of s 12 of the Act (1 March 2008) where the testator's marriage was solemnised before that date. A will revoked by s 15 remains revoked.)

18. [31]

    Michael made the Greek Will, in Greece, on 1 July 2008. As translated from the Greek language into the English language, it provided: "I, Michael Kallidis, parents' names Thomas and Maria, I make my will and I state that the house/one quarter to my wife Beltsikova (rest of name ineligible) Selinia Salamina, Amaliados x Street. The remaining will go to my children and (ineligible) I leave them my blessing. (Ineligible) I want that my will be respected. Salamina 1-7-2008"

19. [32]

    The Greek Will, which was handwritten, apparently by the deceased, was published under Greek Law in the First Instance Court of Pireaus - Will section No. xxx/2009 by way of a Hearing held on 12 June 2009. It appears to bear Michael's signature. There is no signature of any attesting witnesses to his signature on the Greek Will.

20. [33]

    A witness to the creation of the Greek Will, as disclosed in the translated documents from the First Instance Court, appears to have been Nikoleta Avgoustinou, a neighbour and friend of the deceased for 21 years. She deposed that she recognised, and authenticated, Michael's handwriting and his signature even though her signature does not appear thereon as an attesting witness.

21. [34]

    Michael's estate in NSW, at the date of his death, comprised, only, an equal share, as tenant in common, with Stella, in the Alexandria property.

22. [35]

    The nature and value of Michael's estate in Greece is not precisely known, but the parties seemed to accept that it consisted of a one-quarter share of a house in Salamina (referred to in the Greek Will), the estimated value of which is €20,000 (estimated to be AUSD$24,897) only. It was in this house that Michael and Ludmila lived at the date of the Greek Will and at the date of his death.

23. [36]

    Apparently, Michael's second wife devised the interest in that property to him.

24. [37]

    The funeral expenses for Michael, which were paid by Thomas, initially, were said to be €4,800 (euros) (AUSD$5,951). However, at the hearing, the parties agreed that the costs and expenses associated with Michael's funeral were, in fact, AUSD$7,646.

25. [38]

    Thomas has obtained a formal valuation of the Alexandria property, which reveals that the current value, in its present state and condition, is $850,000. (Its value at the date of death of Stella, or at the date of death of Michael, is not disclosed other than in the Inventory of Property in Stella's estate.)

26. [39]

    The valuation obtained by Thomas also reveals that in 2008 and 2009, the rental that would have been able to be achieved was $500 per week; that in 2010, it would have been $600 per week; in 2011, it would have been $650 per week; and in 2012, it would have been $700 per week. (There is no contrary evidence advanced by Asimina.)

27. [40]

    As the parties have agreed that the Alexandria property must be sold, the costs and expenses of selling that property have been estimated to be $25,000 (being $18,700 for agent's commission, $3,300 for advertising and $3,000 for legal costs). Steps are in train to have the Alexandria property prepared for sale so that it can be sold as soon as is reasonably possible.

28. [41]

    (In the amounts to which I have referred and shall refer, I omit any reference to the cents. This may result in what might appear to be minor mathematical miscalculations in the figures set out below.)

29. [42]

    In an affidavit sworn on 24 September 2012, Richard Villari, the solicitor acting for Thomas in the family provision proceedings, deposes to service of the prescribed notice in respect of the claims of Asimina and of Asimina's son on each of the children of Michael and Stella and also upon Ludmila. He also deposes to service of a notice on a grandchild of the deceased (also named Stella).

30. [43]

    Mr Villari also annexes to his affidavit, a copy of a valuation of the Salamina property, which is described as a small parcel of farmland and some buildings, with electrical power and water supply connected, with no view of the sea and being some distance from the beach and the shops. The valuer estimates the current value of the Salamina property at €75,000 (calculated to be AUSD$93,322).

31. [44]

    There is also annexed to Mr Villari's affidavit, a copy of a valuation of the Korydallos property, which is described as a first floor apartment, comprising a hall, kitchen bathroom, one bedroom, and lounge with a verandah, constructed in about 1977. It is located nearby to three squares, schools, shops and public transport. The valuer estimates the current value of the Korydallos property at €43,000 (calculated to be AUSD$53,504).

32. [45]

    At the hearing, it was revealed that the two parcels of real property owned by Stella in Greece have been, or are about to be, transmitted into the names of the seven children. It was also agreed that since her death, Thomas and/or some of his siblings have spent a total amount of $8,449 on those Greek properties (including legal costs to enable the transmission into the names of Stella's seven children).

33. [46]

    At the hearing, there was no dispute that Asimina, since Stella's death, has spent the cash in the estate at the date of death on some of Stella's debts and testamentary expenses.

34. [47]

    It would appear, then, that Stella's estate, both in New South Wales and in Greece, at the date of hearing, has an estimated gross value of $571,826.

35. [48]

    Assuming a repayment of funeral expenses ($20,724) to some of the children out of the estate, the payment of one half of the selling costs of the Alexandria property ($12,500) and the repayment of expenses incurred on the Greek properties ($8,449), the net value of her estate (other than to the extent that the costs, or part of them, of the proceedings are to be paid out of Stella's estate) will be $530,153.

36. [49]

    It would appear that Michael's estate, both in New South Wales and in Greece, has an estimated gross value, at the date of hearing, of $449,897. Assuming a repayment of funeral expenses (AUSD$7,646) to Thomas, as well as one half of the selling costs of the Alexandria property ($12,500), out of Michael's estate, the net estate (other than to the extent that the costs, or part of them, of the proceedings are to be paid out of Michael's estate), at the date of hearing, has an estimated gross value of $429,751.

37. [50]

    Despite s 11(1) (b) of the former Act and s 64 of the Act (to which sections I shall later briefly refer), the parties agreed that the Court should consider only Stella's, and Michael's, property in New South Wales, respectively, for the purposes of determining the family provision proceedings. This was a sensible approach to be adopted. Of course, the interest of each of the seven children in Stella's properties in Greece can be considered as part of the financial resources of each (subject to the deduction of the agreed expenses that have been paid).

38. [51]

    Stella's estate in New South Wales has a current gross value of $425,000, from which one half of the costs and expenses of sale ($12,500) would be deducted, as would the costs and expenses of Stella's funeral ($20,724), which would be reimbursed to the children who contributed to those costs. Thus, the estimated net value of Stella's estate would be $391,776 (excluding costs). (Presumably, the expenses incurred on the Greek properties will be, if they have not already been, paid from those properties.)

39. [52]

    Subject to costs, it would follow that the entitlement of Asimina and each of her six siblings is to about $55,968 out of Stella's estate, being one-seventh or 14.28 per cent, thereof.

40. [53]

    Michael's estate in New South Wales has a current gross value of $425,000, from which one half of the costs and expenses of sale ($12,500) would be deducted, as would the costs and expenses of Michael's funeral ($7,646), which would be reimbursed to Thomas. Thus, the estimated net value of Michael's estate would be $404,854 (excluding costs).

41. [54]

    The entitlement of Asimina and her siblings out of the estate of Michael depends upon the construction of the Greek Will. If "the remaining will go to my children" in the Greek Will, refers to property wherever situated, then, subject to costs, they would each receive about $57,836, being one-seventh or 14.28 per cent thereof.

42. [55]

    If, however, the rules of intestacy apply to Michael's property in New South Wales, then, subject to costs, pursuant to s 61B(3) of the Probate & Administration Act 1898, Ludmila would receive the prescribed amount ($200,000) and one half of the estate (excluding the prescribed amount), or $302,427, and Asimina and her six siblings would share the balance ($102,427) each receiving $14,632. (There is no suggestion that any of the household chattels in the Alexandria property belonged to Michael.)

43. [56]

    On that basis, Ludmila would receive 74.7 per cent and each child would receive 3.61 per cent of Michael's estate.

44. [57]

    In calculating the value of the two estates, finally available for distribution, the costs of the three proceedings should also be considered. There has been no differentiation, by the legal representatives of the parties, between the different proceedings or between the two estates. Perhaps, this does not matter greatly, since all of the evidence was read, principally, in the family provision proceedings.

45. [58]

    If Asimina and Asimina's son is, or are, successful, normally, each will be entitled to an order that her, and his, costs should be paid out of the estate, or estates, whilst Thomas and Maria, as the representatives of each of the estates, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate, or estates. It is, therefore, necessary to take the costs of all of the proceedings into account.

46. [59]

    Asimina's costs and disbursements of all of the proceedings, including counsel's fees, calculated on the ordinary basis, were estimated to be about $100,758 (inclusive of GST and upon the basis of a three day hearing). (This estimate includes Asimina's current solicitors' costs and disbursements ($37,800) as well as the costs and disbursements of her two previous solicitors ($3,850 and $59,108 respectively).) I was informed, from the bar table, without objection, that the estimate of these costs has been calculated on the ordinary basis.

47. [60]

    There is a dispute between Asimina and her previous solicitors about costs. That dispute cannot be determined until after judgment is delivered. The parties agreed that another hearing on the question of costs will probably be required, notice of which hearing should be given to the previous solicitors who should appear if they wish.

48. [61]

    Thomas' and Maria's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a three day hearing), are estimated to be about $139,544. (This estimate includes Thomas' current solicitor's costs and disbursements as well as the costs and disbursements of his previous solicitors.)

49. [62]

    There is a dispute between Thomas and his previous solicitors about costs. Similarly, these costs issues will also be determined following judgment and their former solicitors should also be informed of that hearing so they may appear if they wish.

50. [63]

    (There is no evidence that the costs and disbursements of Asimina's son will increase Asimina's costs or that Maria's costs and disbursements will increase Thomas' and Maria's costs and disbursements.)

51. [64]

    Of course, depending upon the result of the claims and any order made as to costs, the costs and disbursements, if payable out of one, or both, of the estates, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the current value of each estate is an estimate only.

52. [65]

    The parties submitted, because of the difficulty in precisely determining what might be available in each estate following the sale of the Alexandria property and the determination of the burden of costs, that if any order for provision is made for either Asimina or Asimina's son, it should be by way of an order that she, or he, receive a percentage of the net proceeds of the estate, or estates, after the payment of specified expenses including costs.

53. [66]

    I am of the view that this is a sensible and appropriate approach and I shall determine the matter in this way.

54. [67]

    Whether any party's costs should be capped shall also be determined following the delivery of these reasons. Needless to say, every effort should be made by the parties' present, and former, legal representatives to reach agreement on the costs issues bearing in mind the size of each estate and the additional costs that would be incurred if there is a hearing on that issue.

55. [68]

    The eligible persons, in respect of Stella's estate include her seven children. There is a dispute whether Asimina's son is an eligible person.

56. [69]

    The only eligible persons, in respect of Michael's estate, are Ludmila, and Michael's seven children. There was no dispute, during submissions, that Asimina's son is not an eligible person as he was never wholly, or partly, dependent upon Michael.

57. [70]

    Only Asimina and Asimina's son have commenced proceedings in respect of Stella's and Michael's estate, although each of her siblings has filed at least one affidavit, read in the proceedings, in which he, or she, has given evidence about his, or her, financial and material circumstances, and has advanced a case that he, or she, is a competing claimant, financially, and otherwise, upon the bounty of each of Stella and Michael. As will be seen, even though none of them has made a claim, the Court is not entitled to disregard his, or her, interest as a beneficiary of each estate.

58. [71]

    I shall refer to the evidence of the beneficiaries later in these reasons.

Service of initiating process in the administration and family provision proceedings

1. [72]

   Because the interests of Ludmila will, or might, be affected by the result of the administration proceedings and the family provision proceedings, when the matters were listed before me for pre-trial directions, I directed that a copy of certain documents (not the affidavits) in respect of Michael's estate be provided to her as soon as possible.

2. [73]

   In an affidavit sworn by Mr Andreas Politis, a trainee lawyer, a member of the Athens Bar Association and a person who is employed in a law office in Athens, Greece, he deposes to service, upon Ludmila, on 20 September 2012, of various documents, being a letter dated 14 September 2012 enclosing documents, a prescribed notice of claim relating to the family provision orders sought out of Michael's estate, and the amended Summons for administration, translated into Greek.

3. [74]

   Ludmila did not appear in any of the proceedings herself, or by any legal representative. Nor has she provided any evidence that was read in any of the proceedings.

4. [75]

   However, the parties accepted that the evidence of Ludmila's financial position, prior to the death of Michael, was that she was unable to afford to pay €35 per day for hospital accommodation for Michael. She may currently receive a pension, but whether she does is not known with certainty.

5. [76]

   The parties accepted, also, that I was entitled to draw an inference, which I do draw, that she may not be particularly well off financially. Admirably, none of the parties submitted that any interest that she has in the Greek property should be affected by a family provision order, if one is made for Asimina out of Michael's estate.

The administration proceedings

1. [77]

   The relief sought by Thomas in an amended Summons was: "1. Thomas Kallidis claims that administration of the estate of Michael Kallidis late of Perama, Greece, Pensioner, be granted to him, no executors being named in the Holograph Will dated the 1st July, 2008 of Michael Kallidis of Perama, Greece, Pensioner... 2. In the alternative, a declaration pursuant to Section 8 of the Succession Act 2006 that the document, a copy of which is annexed hereto, constitutes a Will of Michael Kallidis late of Perama, Greece. 3. That Probate of the said document dated the 1st July, 2008 and the said documents, be granted to him."

2. [78]

   In support of the claim for relief in the administration proceedings, Thomas relies upon an affidavit of Andreas Voltis, a lawyer practicing in Greece and an associate of a firm of lawyers in Athens, Greece.

3. [79]

   Mr Voltis refers to the handwritten Will and the judgment of the First Instance Court and says: "By virtue of this Judgment, the Will of the late Michael Kallidis dated July 1, 2008 has been probated by the court, at the request (court petition) of Mrs. Lydmyla Belchykova. Remark: it should be noted that the court has not interpreted the Will... The question of "acceptance" of the Will by the court also requires further clarification by virtue of the current court proceeding, the Judge reviews the Will, hears a witness (who attests to it, that the Will appears to have been drafted by the testator's hand) and rules on the Will's probate (it is sufficient for the Judge to speculate this event - full legal proof is not required). The question of whether the Will is truly genuine or not can be in fact contested by virtue of a different court proceeding. Therefore, insofar as there are no objections and/or no adverse court filings by anyone claiming legal standing to contest the Will, the current court proceeding merely serves the purpose of "reviewing" the Will and declaring it as a valid (in principle) probate record, so that the heirs named therein may proceed to claim the estate assets as per the Will. As a result, assuming that the Will is genuine and will not be contested on any ground, the above court Judgment is already "sufficient" towards claiming (e.g. by Acceptance of inheritance proceedings) the estate mentioned in the Will by the nominated heirs (always assuming that the said estate exists and is part of property owned by the deceased at his time of passing)."

4. [80]

   In relation to the entitlements under the handwritten Will, Mr Voltis states: "As to the rights of Mrs. Belchykova: assuming that the Will states that the testator leaves "¼ of the house to Mrs. Belchykova", Mrs. Belchykova's rights are as follows: a. She may claim (accept as an inheritance) this ¼ share in the house (i.e. in the house property that was owned by the deceased). b. If the deceased left no other assets (i.e. the house was his only property owned at his time of passing), then, by application of the Greek law and assuming that the deceased left children as his closest living relatives, Mrs. Belchykova has been adequately provided for. By combination of Art. 1825 and 1820 of the Greek civil code, the spouse has a forced-share right of a minimum of 1/8 in the estate; therefore, in that she has been bequeathed a share of 1/4, she has no recourse to claim a greater portion. c. Things will be different if it turns out that the deceased held other/further substantial assets; then, by the Will's wording, the remaining ¾ of the house and - most likely - the remaining assets too, will go to the children. If the overall value of the estate assets (going to the children) is such that it could be argued that Mrs. Belchykova got less than 1/8 of the full assets' value, she may file a claim for the remainder (up to 1/8 of the estate's total value). d. However: there is a third scenario that might apply: if the Will states (to be determined by a graphologist) that the children are to receive the remaining shares of the house (only) and not the remainder of the estate whatsoever, and it turns out that there are further assets as well, then, by interpretation of the Will, it may so be that the rest of the estate assets (not included or governed by the Will) will go to the heirs "in intestacy"; if that applies, then Mrs. Belchykova would likely get another ¼ share in any and all further assets of the deceased (Art. 1801, 1802 Greek civil code)."

5. [81]

   Finally, Mr Voltis was instructed: "Michael Kallidis' second wife, Triantafillia Lazaridou predeceased Michael Kallidis. We understand she may also have had children of her own. We refer to attachment 'B'. We understand the documents contain a title search for a property in Salamina which is still under the second wife's name. We further understand there is a Court document purporting to verify that the second wife did not leave a will."

6. [82]

   He responded: "Attachment "B", 1st page is an "extract" from files kept with the National Cadastre office of Salamina (Ktimatologio); it references a specific registration code (KAEK) and a property in Salamina which appears to be registered in the name of Mrs. Triantafyllia Lazaridou. However, this document is neither a "Title search report" nor an indication as to the current ownership status of the specific property (I note on the top of the page a fax-date indication which is of 2007) - much less since the purported owner has passed away and the ownership may have already reverted to her heirs. Second page of the same attachment is indeed a court-issued certificate of "intestacy"; this document does not verify that the deceased left no Will; it merely states that no Will has been PROBATED (in the name of the deceased) up until August of 2012. Assuming that the estate situation of Triantafyllia remains "as is" (no Will) and also assuming that she passed away married to Michael Kallidis with children, then Michael Kallidis should be entitled to ¼ share (in intestacy) in the above property held by his (then) spouse. If the said property's legal status has not been affected (e.g. conveyed or otherwise dealt with by Michael Kallidis during his lifetime), then yes, this property forms a part of the late Michael Kallidis' Will - assuming that this is the house that he refers to in his Will. It would appear that the late Triantafyllia's children have a claim upon the remaining ¾ share of their mother's estate."

7. [83]

   I accept the evidence of Mr Voltis.

8. [84]

   Counsel for Thomas, in the light of this evidence, submitted: "The deceased's Holograph Will conforms to the internal law of Greece and has been probated by a Greek Court. It is submitted that the Holograph Will of the deceased is properly executed within the meaning of Sections 47 and 48 of the Act. Letters of Administration CTA should be granted to the Plaintiff pursuant to Section 63 of the Probate and Administration Act 1898."

9. [85]

   None of the children of the deceased opposes the relief sought by Thomas. Asimina's counsel referred to the submissions made by counsel for Thomas and "respectfully adopts the outline of submissions dated 25 September 2013 (sic)".

10. [86]

    Because of the delay arising because of the issue of construction of the Greek Will, the parties agreed that, to enable the Alexandria property to be sold, there ought to be a special grant of administration to Thomas for the purpose of joining in, with Asimina, on its sale. Accordingly, I made consent orders to enable that to occur on the third day of the hearing. I did so because I was satisfied that it would not prejudice Ludmila to make these orders, because, on application of the intestacy law, if applicable, she could only receive a share of the net proceeds of sale of Michael's interest in the Alexandria property.

The Law relating to a Will executed in a foreign place

1. [87]

   There is no dispute that the Greek Will was made by Michael in Greece.

2. [88]

   Because Michael died after 1 March 2008, the Act applies to the issue of the execution of the Greek Will. Section 48 of the Act provides: "(1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place: (a) where it is executed, or (b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death, or (c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death. (2) The following wills are also taken to be properly executed: (a) a will executed on board a vessel or aircraft in conformity with the internal law in force at the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration and other relevant circumstances, (b) a will, to the extent that it disposes of immovable property, executed in conformity with the internal law in force in the place where the property is situated, (c) a will, to the extent that it revokes: (i) a will, or a provision of a will, that has been executed in accordance with this Act, or (ii) a will, or a provision of a will, that is taken by this Act to be properly executed, if the later will has been executed in conformity with any law under which the earlier will or provision would be taken to have been validly executed. (3) A will to which this section applies is not, to the extent that it exercises a power of appointment, to be taken to have been improperly executed only because it has not been executed in accordance with the formalities required by the instrument creating the power."

3. [89]

   Section 47 of the Act defines 'internal law', in relation to a place, as meaning the law applying in a case where no question of the law in force in any other place arises. Section 47 applies to a will whether made before, on, or after 1 March 2008, if the testator dies on, or after, that date: see Clause 3(3) of Schedule 1. The term "place" in the definition of internal law is not defined, but, obviously, includes another country.

4. [90]

   The section contemplates a number of "places" of which the internal law shall be the applicable law for the purposes of "proper execution" of a will. These include, relevantly, the place where it is executed, or the place that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death. In each instance, that place, in the present case, was Greece. Thus, each of the alternatives relevantly prescribed by s 48 requires a consideration of the law of Greece, the substance of which law has been set out above.

An informal testamentary document

1. [91]

   Thomas, in the alternative, submits that the Greek Will is "a document that purports to state the testamentary intentions of a deceased person", and one which has not been executed in accordance with Part 2.1 of the Act (s 8), in that the signature made by Michael was not made in the presence of two or more witnesses present at the same time, and at least two witnesses who attested and signed it in the presence of Michael (but not necessarily in the presence of each other) (s 6(1) of the Act).

2. [92]

   Thus, Thomas seeks an order, in the alternative, that the Court should dispense with the requirements for execution and declare that the Greek Will forms Michael's Will and should grant administration of that informal will to him.

3. [93]

   Section 4(1) of the Act defines "will" as including "a codicil and any other testamentary disposition".

4. [94]

   Section 8 of the Act provides: "(1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State."

5. [95]

   It has recently been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594: "[77] There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J. [78] The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph."

6. [96]

   There can be no doubt, and the parties agree, that the Greek Will: (i) is a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them. (ii) was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. (iii) purports to state the testamentary intentions of the deceased.

7. [97]

   In regard to the last matter, reference should be made to Re Broad, Smith v Draeger [1901] 2 Ch 86 at 9192, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, said: "What is the meaning of the expression 'purporting to be' a will or codicil? ... T[]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in the legal sense, is or is not a document which 'purports', to be a will... This document... is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, that I must hold that this document... is one which 'purports' to be a will."

8. [98]

   In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, at 452, Hill J in dealing with the Corporations Law, said: "The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as:- '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.' In some contexts the word may merely mean 'has the effect of': c/f. Joseph v Joseph (1967) Ch 78."

9. [99]

   In Hill v Plummer; In The Estate of Masters (1994) 33 NSWLR 446, Priestley JA pointed out, at 469, that: "A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person."

10. [100]

    In Yazbek v Yazbek, Slattery J said, at [83]: "Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems...to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestly JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA.

11. [101]

    Michael describes, in the body of the Greek Will, the document as "my will", not once, but twice, and its terms purport to distribute Michael's estate, namely "the house/one quarter to my wife" and the "remaining will go to my children and ...".

12. [102]

    Thus, it is submitted that even if the Greek Will were not one that was properly executed in conformity with the law of Greece, it would be an informal testamentary document under s 8 of the Act.

13. [103]

    The real question is whether Michael intended the Greek Will to deal only with his Greek property or whether he intended it to deal with all of his property wherever situated.

Construction of the Greek Will

1. [104]

   At the completion of the evidence and the submissions, I stood the proceedings over to enable the parties to take steps to contact Ludmila to see if they could agree upon the construction issue, or at least to give her notice of the further argument relating to the construction of the Greek Will.

2. [105]

   Thomas filed a further amended Summons, with leave granted on 24 October 2012. The further amended Summons was returnable on 23 November 2012.

3. [106]

   In that further amended Summons, the additional relief sought by the Plaintiff included: "4. Further, a determination of a question arising under the Holograph Will of the late Michael Kallidis dated the 1st July 2008 whether on the true construction of the said Will, and in the events which have happened, the gift "The house one quarter to my wife Beltsikova Silinia Salamina, Amaliados x Street. The remaining will go to my children ...", means:- a. A quarter of his house situate in Greece to his wife and the rest and residue of his estate equally to his children; or b. A quarter of his house situate in Copeland Street, Alexandria, NSW, and the rest and residue equally to his children which includes his one quarter share in his house in Greece; c. If it means a quarter of his house situate in Copeland Street, Alexandria, NSW, does it mean a quarter of his interest in such house; or d. Some other meaning, and if so, what."

4. [107]

   In an affidavit sworn on 30 October 2012, Mr Politis deposed to service of the further amended Summons, upon Ludmila, on 30 October 2012, together with letters dated 11 and 14 September 2012, respectively, from Villari Lawyers, the latter of which stated the date on which the matter was next before the Court and went on: "... This Further Amended Summons is returnable before the Supreme Court of New South Wales on Friday, the 23 November 2012. On that date it will be argued on behalf of Thomas Kallidis that the handwritten Greek Will of Michael Kallidis (copy attached) refers to the Deceased's house in Greece and does not refer to the share of the deceased's house in Australia. Furthermore, it will be argued by Thomas Kallidis that his father intended in his Will to leave all other property, wherever situate, including his interest in a property in Copeland Street, Alexandria to his 7 children equally. If you do not agree with what will be argued on behalf of Thomas Kallidis, you or your Legal Representative should appear before the Court on Friday the 23 November 2012."

5. [108]

   A number of these documents had been translated into the Greek language.

6. [109]

   There was no appearance by Ludmila, or on her behalf, on 23 November 2012. The matter was called outside the Court three times. There was no suggestion by counsel for Thomas that she, or anyone on Ludmila's behalf, had contacted Thomas' solicitors to request that the balance of the proceedings should be adjourned to enable Ludmila to appear or so that she could be represented.

7. [110]

   At the adjourned hearing, counsel for Asimina and Asimina's son did not appear. On this occasion, Ms A M Kennedy, solicitor, appeared. She indicated that Asimina adopted the submissions made on behalf of Thomas on the construction of the Greek Will.

8. [111]

   Even though there was no appearance by, or on behalf of, Ludmila, I decided to proceed to deal with the issue of the construction of the Greek Will. Whilst I cannot ignore the right of a person who is, or who may be, affected by the making of an order, to be informed, or, at least, to be made aware, of a trial date, in all the circumstances of this case, it is highly unlikely that Ludmila would ever appear herself, or through a legal representative, to argue any contrary position.

9. [112]

   Additionally, in my view, the construction of the Greek Will is tolerably clear.

10. [113]

    To proceed enables the efficient dispatch of Court business, whilst to not proceed to determine the issue would further delay the finalisation of the proceedings, delay the administration of Michael's estate, and incur further costs in an estate that is, already, very small.

11. [114]

    It was submitted by Thomas that the Greek Will was intended by Michael to relate to the "house" in Greece in which he and Ludmila lived at the date of his death, rather than to his interest in the Alexandria property, and that whilst the Greek Will did not refer to the Alexandria property specifically, its disposition was governed by the words "the remaining will go to my children". If this construction were correct, then the deceased's interest in the proceeds of sale of the Alexandria property would be shared, equally, between the children of Michael.

12. [115]

    In support of this construction, Thomas submitted that the deceased held only one-quarter share of the house in Greece and that it was in that house that Michael and Ludmila lived. Also, there is the address of the house in Greece specifically referred to in the Greek Will.

13. [116]

    Thomas also submitted that the words "the remaining", since Michael had no other property in Greece, could only mean the rest and residue of his estate situated elsewhere.

14. [117]

    Neither counsel referred to s 32 of the Act, which section relates to the use of extrinsic evidence to construe wills. Perhaps, this was because there was no available extrinsic evidence, including evidence of Michael's intention to assist in the interpretation of the language used in the Greek Will.

15. [118]

    Counsel for Thomas pointed to the following statement of Lord Esher M.R. in In Re: Harrison (1885) 30 Ch D 390, at 393 - 394: "There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a Will in solemn form you must assume that he did not intend to make it a solemn farce, - that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule. I do not deny that this will may be read in two ways, or that it requires that a blank should be filled up. But it may be read in such a way as not to amount to a solemn farce."

16. [119]

    That judgment, of course, is part of the majority reasoning in the High Court in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, at 273, being part of the more general principle expressed by Isaacs J: "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."

17. [120]

    In further support of the principle, I refer to Helen Rowena O'Brien as Executor of the Will of Jeffrey Charles Hogan v Warburton [2012] WASC 82, in which E M Heenan J stated, at [63] - [64], the principle this way: "Partial intestacy There is a presumption in the construction of wills which is rebuttable and which may be weak in the face of the particular terms of testament to the effect that the court should, in doubtful cases, incline against concluding that the testator intended a partially intestate distribution of his assets. Two extracts from leading texts will suffice to describe this presumption, its varying strength and application and effect. In Halsbury's Laws of England (4th ed) vol 50 par 494, omitting footnotes, the learned authors write: A testator may well intend to die partially intestate for, when he makes a will, he is testate only so far as he has expressed himself in his will. Accordingly, there is no reason for the court in all cases to lean too heavily against a construction which involves a partial intestacy. Where, however, the construction of the will is doubtful, a court acts on the presumption that the testator did not intend to die either wholly or even partially intestate, provided that on a fair and reasonable construction there is no ground for a contrary conclusion. Where the will shows an intention of the testator to dispose of the whole of his property, but, as regards the interests created, two constructions are possible, according to one of which the will effects a complete disposition of the whole, but according to the other the will leaves a gap, the court inclines to the former construction. The second extract is to be found in DM Haines QC, 'Construction of Wills in Australia' (2007) Butterworths, at 3.3, 3.5, 3.6 and 3.7. 3.3 The Golden Rule of construction of wills stipulates that a court should adopt an interpretation which will not lead to an intestacy or partial intestacy and which will lean towards a construction which preserves rather than destroys the gifts under a will. If a gift fails for any reason, a resulting trust arises in favour of the testator and it falls as on an intestacy. The presumption that a testator having executed a will does not wish to die intestate or to leave a partial intestacy may be used as an aid to construction if there is an ambiguity in a will. The expression 'Golden Rule' in respect of this principle was coined by Lord Esher MR in Re Harrision; Turner v Hellard (1855) 30 Ch D 390 at 393 4. The rationale behind the rule is simple. Where a person executes a will in solemn form, it must be assumed that he or she did not intend to die intestate. Courts have taken a firm view in this regard. A court 'never inclines towards intestacy; it is a dernier ressort in the construction of wills': Lightfoot v Maybery [1914] AC 781, at 802. This proposition has the status of a presumption but may be rebutted by the context. It is rebuttable because 'the guiding principle [is] always to construe the will in accordance with the wishes of the testator' Thomas v Strickland [2001] WASC 156. ... 3.5 The presumption against an intestacy has been the source of judicial criticism. It has been said that it involves speculation as to the intention of a testator. Some persons die intestate deliberately and it is very dangerous to place too much reliance on the supposed wish of a testator not to die intestate. 3.6 If, however, there are two possible constructions, one of which would result in an intestacy and the other which would not, a court should adopt the latter. A presumption is said to arise in favour of a testacy rather than an intestacy because a testator went through the act of making a will. 3.7 Moreover, if it is clear from the whole of the will that the testator had attempted to dispose of his or her entire property to persons who would be expected to inherit the bounty of the estate, that fact is sufficient to invoke the presumption. (footnotes omitted)"

18. [121]

    However, I note that these statements cannot be used to rewrite the will to save the estate from intestacy if on a proper construction of the will an intestacy does arise: Thomson & Anor (as trustees of the trusts established pursuant to the will of Shine (deceased)) [2010] QSC 167, per Atkinson J, at [16] - [18].

19. [122]

    Thomas seemed to submit that whether the Greek Will is construed by reference to the law of Greece, or the law of Australia, the result would be the same, namely that Ludmila would receive the deceased's share of the property in Greece and the children would receive the residue of the estate, wherever situated. (Since the parties agreed that Michael had no other property in Greece other than his share in the house, this meant, in effect, that Ludmila would receive his property in Greece, and his children would share his property in Australia.)

The revocation proceedings

1. [123]

   Even though, at the hearing, the parties did not spend much time on this case, it is necessary to say something about it since there will, or may, be an issue of the costs of the proceedings.

2. [124]

   There is no dispute that the Court has an inherent power to revoke a grant of probate. The relevant principles were stated in Bates v Messner (1967) 67 SR (NSW) 187, at 189 and 191-192. Also see Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80, at 101-102.

3. [125]

   In Bates v Messner, Asprey JA said: "... that the essential basis of the exercise of the court's inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P., namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as 'abortive', 'inefficient', 'useless' or 'ineffectual', are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that 'he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his administration' has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other mattes which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant."

4. [126]

   Thomas and Maria complain that Asimina and Asimina's son, since the death of Stella, have lived in the Alexandria property without the consent of the beneficiaries of each estate, and that, regardless of consent, that she has not paid any rent, or occupation fee, for so doing, at any time. Thus, as executrix of Stella's estate, she was not entitled, without the informed consent of the beneficiaries, to use her office as a means of profit or benefit to herself. This principle, it is submitted applies to an executor, whether or not she has assumed the office of trustee.

5. [127]

   They also complain that she has failed, or neglected, to sell the Alexandria property; that she has unreasonably delayed in placing it on the market for sale; and otherwise has hindered its sale. (They make similar complaints in relation to the sale of Stella's properties in Greece.)

6. [128]

   In this regard, as early as 28 October 2008, the solicitors acting for Asimina's siblings wrote to her solicitors requesting "advice as to your client's intentions in relation to the sale of the [Alexandria property]" and "your client's intentions in relation to vacating the property". The letter concluded: "In the meantime, our clients reserve all their rights including the right to claim a licence fee in relation to [Asimina's] occupation of the property".

7. [129]

   As well, the siblings complain that the funeral expenses have not been reimbursed, as they should have been. In broad terms, their complaints are to the effect that Asimina has placed her own interests ahead of the interests of the beneficiaries of the estate.

8. [130]

   Asimina did not dispute that she and her son have lived in the Alexandria property. However, she asserted an entitlement to do so. She also denied any obligation to pay any rent, or occupation fee, to the estate of either Michael or Stella. She also submitted that she and her son had a claim for a family provision order, part of which might have provided for the continued occupation of the Alexandria property.

9. [131]

   Asimina also submitted that, prior to the death of the Michael in March 2009, s 44 of the Wills Probate & Administration Act 1898, provided that, upon the grant of probate of the will, or administration of the estate, of any person, all real and personal estate which any such person dies seised or possessed of, or entitled to, passes to and becomes vested in the executor to whom probate had been granted or in the administrator. However, under s 61 of that Act, which applies because Michael died in March 2009, from and after the death of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee and Guardian in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England.

10. [132]

    Her counsel submitted, therefore: "25. These proceedings should be dismissed for two reasons. First, it was not possible to sell the Alexandria property until such time as the grant of administration is made in [Michael's] estate. Second, the inevitable consequence of these proceedings is that the Alexandria property will need to be sold."

11. [133]

    In view of the agreement of the parties to the making of the special grant of administration to Michael, and because there is now agreement upon a procedure for selling the Alexandria property, the proceeding to remove Asimina does not have the same significance than it would have had otherwise.

12. [134]

    However, as was accepted by counsel for Asimina, her occupation of the Alexandria property, with her son, is a matter that should be taken into account in the family provision proceedings.

13. [135]

    As stated, an order dismissing the revocation proceedings will be made in due course.

Requirement for grant of administration

1. [136]

   Under the former Act, there must have been a grant of administration in respect of the estate, before an order could be made, even though proceedings under the former Act could be instituted (as distinct from determined): Leue v Reynolds [1986] 4 NSWLR 590; Taylor v Farrugia [2009] NSWSC 801, per Brereton J, at [21].

2. [137]

   Stella is a deceased person in respect of whose estate administration has been granted. It follows, that, in relation to her estate, the requirement is met.

3. [138]

   A different position applies in relation to Michael's estate in respect of which at the commencement of the hearing, there was no grant of administration. However, under the Act, an application for a family provision order, and an order, may be made whether or not administration of the estate of the deceased person has been granted: s 58(1) of the Act.

4. [139]

   In Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931, I dealt with the need for a grant of administration before a family provision order could be made under the Act. I said, at [106] - [113]: "As has been noted above, whilst there has been a grant of administration in respect of the deceased's estate for the purpose of Pauline making a claim under Chapter 3 of the Act, no such grant was sought, or made, in Linda's case. A preliminary question, namely whether it is actually necessary for there to be a grant of administration, was raised, briefly, at the commencement of the hearing. An application for a family provision order may be made in respect of the estate of a deceased person. In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act is different from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted". Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 4 of the Act, "administration" is defined by reference to s 55 of the Act. The latter section provides that "administration" is granted in respect of the estate of a deceased person in certain specified events including "where letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes": s 55(1)(b). Recently, in Hitchcock v Pratt [2010] NSWSC 1508, Brereton J noted: "... I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order." Respectfully, I agree that a grant of administration is not required before the commencement of proceedings under the Act. Leaving aside the decision of Leue v Reynolds (1986) 4 NSWLR 590, s 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted. In Cabban v Cabban [2010] NSWSC 1433, Macready As J discussed the principles on this topic. I shall not repeat what his Honour said at [54] to [58]. In this case, which is slightly different to each of Leue v Reynolds and Cabban v Cabban, I have come to the view that a separate grant is not necessary in Linda's case. I shall refer to s 59(1), which provides when a family provision order in relation to the estate of a deceased person may be made. Whilst, strictly, it may be possible to make a further grant (s 91(3) of the Act), that is not required. A limited grant has already been made, and although it was not "for the purposes of permitting the application concerned (i.e. Linda's application) to be dealt with", the deceased is a person in respect of whose estate administration (albeit for a limited purpose) has been granted."

5. [140]

   In the present case, the parties had agreed that Thomas was to represent the estate of Michael in the family provision claim. When the order for a grant of administration pendente lite, referred to above, to allow the sale of the Alexandria property was made, a grant of administration was also made to Thomas under s 91 of the Act, because I was satisfied that it was proper to grant administration in respect of the estate of Michael to him for the purposes of permitting the application of Asimina and Asimina's son to be determined.

6. [141]

   In the circumstances, there is now a grant of administration.

Eligibility

1. [142]

   In each claim for a family provision order, under the former Act and the Act respectively, the Court must be satisfied, first, that each applicant is an "eligible person". In the former Act, as well as the Act, it 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 various categories of persons by, or on whose behalf, an application may be made.

2. [143]

   Relevantly, one category is "a child of the deceased" (s 6(1)(b) of the Act and s 57(1)(c) of the Act). Clearly, the language, in the former Act and in the Act is expressive of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on a child making an application.

3. [144]

   Another category of eligibility is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 6(1)(d) of the former Act and s 57(1)(e) of the Act).

4. [145]

   The second part of that category describes the person's status. Again, there is no age limit placed on a grandchild making an application in the former Act or in the Act.

5. [146]

   In the case of Asimina's son, there is no dispute that he is a grandchild of each of Stella and of Michael. However, because the test of eligibility is twofold, he must also establish, in relation to each grandparent, that there was a relationship of dependence, whether wholly or partial, at any particular time, (depending upon the estate out of which provision is being sought).

6. [147]

   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.

7. [148]

   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): "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.'"

8. [149]

   In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote: "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."

9. [150]

   In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA: "I would respectfully disagree with the Master in both respects. 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."

10. [151]

    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."

11. [152]

    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".

12. [153]

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

13. [154]

    The question of dependency, whether whole or partial, is a question of fact.

Factors warranting the making of the application

1. [155]

   The Court, if satisfied of each applicant's eligibility, in the case of Asimina's son (but not in the case of Asimina) must, in respect of Stella's estate, first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors. In Michael's estate, it must 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.

2. [156]

   Neither the former Act nor the Act specifies the "factors which warrant the making of the application". Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted, at [16], that "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".

3. [157]

   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 Dec'd (1987) 8 NSWLR 679, at 681 (approved in substance by the Court of Appeal in Churton v Christian (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.

4. [158]

   Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, said: "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."

5. [159]

   In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, 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.

6. [160]

   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, at [9]: "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."

7. [161]

   In Diver v Neal [2009] NSWCA 54 (also (2009) 2 ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act, at [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."

8. [162]

   More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed said at [62] - [64]: "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. 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. On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

9. [163]

   It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. Other judges have done so: 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]. I have done so also: see, for example, Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535; Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129.

10. [164]

    Slattery J in Lumsden v Sumner [2012] NSWSC 1440, recently commented: "88 This conflict has been commented on in the Court of Appeal, in Evans v Levy [2011] NSWCA 125, and in Porthouse v Bridge by Bryson J. I agree with Hallen AsJ's view that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said that Brown v Faggoter is wrong. 89 It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant."

Inadequacy of Provision

1. [165]

   The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. 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.

2. [166]

   The key provisions are sections 7 and 9 of the former Act and sections 59 and 60 of the Act.

3. [167]

   The Court of Appeal has recently highlighted a number of differences between these sections. In Andrew v Andrew [2012] NSWCA 308, Allsop P, at [6], said: "I agree with Basten JA that 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 terms of the new Act are to be applied. 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."

4. [168]

   Basten JA, at [26] - [28], said: "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. The second difference is of a different kind. Under the former scheme the statute identified a non-inclusive list of considerations which might be taken into account in determining what provision (if any) ought be made, a step only to be taken once the prohibition had been lifted. That is not to say that the listed considerations were not relevant at the first stage of the inquiry, but only that the earlier statute did not address the issue. The Succession Act, by contrast, states that the listed factors may be taken into account in determining "whether to make a family provision order and the nature of any such order". The intention of a two-stage process is no longer apparent in the structure of either s 59 or s 60 of the Succession Act. 28 The third difference is to be found in the expanded list of permissible considerations. While the earlier list was non-exhaustive, as indeed is the new list, the multiplicity of factors now identified gives greater direction to the courts and, consistently with the second change, invites consideration of a broader range of factors than were formerly considered. (How these considerations work is a separate question which will be explored below.)"

5. [169]

   Barrett JA said at [72] - [81]: "The court's power under the former legislation In a case of the kind under discussion where the applicant was a child of the deceased (so that no question of "eligible person" status arose) and no previous order for provision had been made, the court's power under s 7 of the Family Provision Act was a power to order "that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person". The power was, however, regulated by s 9. This was the effect of the opening words of s 7, "Subject to section 9". The qualification imposed by s 9 operated at two levels. First, s 9(2) precluded the making of an order in favour of the eligible person unless the court was satisfied that the provision (if any) made in favour of the eligible person either during the deceased's lifetime or out of the estate was, at the time the court was determining whether or not to make an order, "inadequate for the proper maintenance, education and advancement in life of the eligible person". Second (and if the court had become "satisfied" in the way stated in s 9(2)), s 9(3) came into operation. The effect of s 9(3) was to empower (but not require) the court to take specified matters into consideration 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". Under s 9, therefore, the task of the court, in a case of the kind under discussion, was: (a) to determine the extent of the provision made in favour of the eligible person during the deceased's lifetime; (b) to determine the extent of the provision made in favour of the eligible person out of the deceased's estate (whether by will or by operation of the intestacy laws); (c) to form an opinion as to the adequacy, as at the time of the court's determination, of the provision determined under (a) and (b) for the proper maintenance, education and advancement in life of the eligible person; (d) if that opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought, having regard to circumstances at the time of the making of the order, be made out of the estate or notional estate for the maintenance, education or advancement in life of the eligible person; and (e) in forming that evaluative opinion, to take into account, as discretionary factors, the matters in paragraphs (a) to (d) of s 9(3). The court's power under the present legislation In a case of the kind under discussion where the applicant is a child of the deceased (so that no question of "eligible person" status arises) and no previous order for provision has been made, the court's power under s 59 of the Succession Act is a power to make a "family provision order", that is, according to the s 3 definition: "an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.". The power to make such an order is constrained by both s 59 itself and s 60. As with the former provisions, the constraint operates at two levels. 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)."

6. [170]

   Despite these differences, other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both, s 9 of the former Act, and s 59(1)(c) of the Act, each leaves undefined the norm by which the court must determine whether the provision, if any, made is inadequate for the applicant's proper maintenance, education or advancement in life. (Although the former Act refers merely to provision "out of the estate" it is clear that provision may be made "out of the estate" by the operation of the intestacy laws: Smilek v Public Trustee [2008] NSWCA 190.)

7. [171]

   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, as well, in the case of the former Act, to the provision made during the deceased's lifetime, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the former Act, or in the Act, as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant.

8. [172]

   It was said in the Court of Appeal (per 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".

9. [173]

   Under s 9(2) of the former Act and 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, that is when the court is determining whether or not to make an order for provision.

10. [174]

    The Court has regard to the facts known to the Court at the time the order is made.

11. [175]

    "Provision" is not defined by the former Act or 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".

12. [176]

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

13. [177]

    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."

14. [178]

    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 CJ at 128."

15. [179]

    Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported; BC 9606087) 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.'"

16. [180]

    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."

17. [181]

    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)."

18. [182]

    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 or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.

19. [183]

    Each of the words was 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."

20. [184]

    Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 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 if life must be considered in the light of 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."

21. [185]

    In Goodman v Windeyer (1980) 144 CLR 490, 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."

22. [186]

    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 a 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 use 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."

23. [187]

    Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported; BC9802209), that "adequate" and "proper" are independent concepts. He 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 ..."

24. [188]

    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.

25. [189]

    Until recently, it was unanimously thought that there are two stages to be determined. The first stage of the process provided for by s 9(2) of the former Act and 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.

26. [190]

    Whether the applicant has a 'need' or 'needs' is a relevant factor at the first stage of the enquiry.

27. [191]

    In Collins v McGain [2003] NSWCA 190, Tobias JA (with whom Beazley and Hodgson JJA agreed) said at [42] and [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 focused. 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."

28. [192]

    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 per Gaudron J at 227. '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 per Bryson J at 10-11. 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 per Kirby P at 575. 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 per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

29. [193]

    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 on which to survive or live comfortably". The inquiry is thus not confined to the material circumstances of the applicant. The whole of the context must be examined.

30. [194]

    In the event that the court is satisfied that the power to make an order is enlivened (ie it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, 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.

31. [195]

    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.

32. [196]

    Basten JA, in Andrew v Andrew, said of the two stage process referred to, at [29] and [41]: "The combination of changes 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. ... 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."

33. [197]

    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] HCA 40; 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 The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]."

34. [198]

    Barrett JA, in Andrew v Andrew disagreed with Basten JA, saying at [65], [79] - [81] and [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 (above), 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."

35. [199]

    I note also that in Verzar v Verzar [2012] NSWSC 1380, Lindsay J, at [92] - [93] said: "I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

36. [200]

    It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any order.

37. [201]

    Section 9(3) of the former Act provides: "(3) 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, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances. (4) Nothing in subsection (3) (a) limits the generality of subsection (3) (b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3) (a) or of a different nature in so far as it considers it relevant under subsection (3) (b), (c) or (d)."

38. [202]

    Section 60 of the Act is more detailed. 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."

39. [203]

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

40. [204]

    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 sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant.

41. [205]

    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."

42. [206]

    "Financial resources" is a term not mentioned in the former Act. There is no definition in the Act of "financial resources" (which term is referred to only in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, 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."

43. [207]

    Nor was "earning capacity", which is a term in s 60(2)(d). This term means no more than the capacity to find employment to earn or derive income.

44. [208]

    Unlike s 9(3)(a) and (b), which deal with the "eligible person", consideration of 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 of other eligible persons, as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

45. [209]

    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.

46. [210]

    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. I am comforted in reaching this conclusion 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."

47. [211]

    And 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."

48. [212]

    Section 20 of the former Act and s 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (in the case of the Act, other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

49. [213]

    Section 11 of the former Act provides: "(1) An order for provision out of the estate or notional estate of a deceased person (whether or not an order made in favour of an eligible person) may: (a) require the provision to be made in any 1 or more of the following manners: (i) by way of a lump sum, (ii) by way of a periodic sum, (iii) by way of specified existing or future property, (iv) by way of an absolute interest, or a limited interest only, in property, (v) by way of property set aside as a class fund for the benefit of 2 or more persons, (vi) in any other manner which the Court thinks fit, (b) be in respect of property which is situated in or outside New South Wales at the time of, or at any time after, the making of the order, whether or not the deceased person was, at the time of death, domiciled in New South Wales, (c) specify the manner in which a sum of money or other property is to be paid or made available to the person in whose favour the order is made, (d) where provision is required to be made by way of a sum of money, specify that the whole or any part of the sum shall bear interest at such rate as the Court thinks fit for such period as the Court thinks fit, and (e) be made subject to such conditions as the Court thinks fit."

50. [214]

    Section 64 provides that a family provision order may be made in respect of property situated in, or outside, New South Wales, when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales.

51. [215]

    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.

52. [216]

    The order for provision out of the estate of a deceased person 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).

53. [217]

    As Stella died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will.

54. [218]

    In the case of Michael, the order will be dependent on whether the Greek Will deals with his property in Greece only, or his property wherever situated. If it relates to his property in Greece only, then the operation of the intestacy rules will have to be considered. If it relates to his property wherever situated, then, his estate will include all property that would, on a grant of probate of the Will, vest in the executor of the Will.

55. [219]

    Any family provision order under the former Act, or under the Act, will take effect, relevantly in this case, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased (s 11(1)(a) of the former Act and s 72(1)(a) of the Act) or if Michael died intestate in the will of the deceased (s 11(1)(b) of the former Act and s 72(1)(b) of the Act).

56. [220]

    Section 15 of the former Act, and s 66 of the Act, each sets out the consequential and ancillary orders that may be made.

Extension of time

1. [221]

   In each estate, since the proceedings were not commenced within time, a threshold issue is raised. (I shall deal with the extension of time later in the reasons at a different point. I have included the principles here even though, as will be seen, an issue for consideration is the applicant's chances of success.)

2. [222]

   The former Act provides that an order shall not be made unless the application for the order for provision is made within "the prescribed period" (eighteen months from the date of death) or "within such further period as the Court may, having regard to all the circumstances of the case, but subject to sub-sec (3), by order, allow": s 16(2).

3. [223]

   As stated above, Stella died on 11 August 2008. Asimina's, and Asimina's son's, proceedings should have been commenced on, or before, 10 February 2010. An order extending the time for bringing the application by approximately 16 months needs to be made in order for the application to proceed.

4. [224]

   Sub-section (3) of s 16 of the Act provides that the court shall not make an order under sub-section (2), allowing an application in relation to a deceased person to be made after the expiration of the prescribed period, unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) "sufficient cause" is shown for the application not having been made within that period.

5. [225]

   In this case, since consent to the application by Asimina and by Asimina's son, being made after the end of the prescribed period, has not been given, it is necessary to consider whether "sufficient cause" is shown for the application of each not having been made within that period

6. [226]

   In Grace v Grace [2012] NSWSC 976, Brereton J, at [299], usefully summarised the case law on this topic as follows: "The factors that inform the exercise of discretion under Family Provision Act, s 16(2), to extend the time for bringing an application are, first, the sufficiency of the explanation of delay in making the claim; secondly, whether any prejudice would be occasioned to beneficiaries; thirdly, whether there has been any unconscionable conduct by the applicant; and fourthly, the strength of the applicant's case for final relief [Warren v McKnight (1996) 40 NSWLR 390 at 394 (Hodgson J); Hatton v Hatton (NSWSC, Powell J, 6 September 1977, unreported); Massie v Laundey (sic) (NSWSC, Young J, 7 February 1986, unreported); Re Guskett [1947] VLR 212; Lewis v Lewis [2001] NSWSC 231 [82]; Ebert v Ebert [2008] NSWSC 1206, [39]-[43]].

7. [227]

   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.)

8. [228]

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

9. [229]

   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".

10. [230]

    Since Michael died on 10 March 2009, the date by which Asimina was required to bring the proceeding was on or before 9 March 2010. An extension of time of approximately fifteen months is sought in order to enable the application by Asimina to be brought.

11. [231]

    In Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572, I set out, at [84] - [90], the principles that apply 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 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]."

12. [232]

    In this case, Asimina has submitted that one of the reasons for not making her claims under the former Act and under the Act, within time, was because of the conduct of her then solicitors. I shall return specifically to her evidence later in these reasons but now I shall set out some of the authorities that deal with making an order extending time for the making of an application in such circumstances.

13. [233]

    In Charles v Charles (NSWSC, 15 March 1988, unreported) Young J had said "... there must be something more than mere incompetence or inattention by a solicitor before time can be extended under this Act".

14. [234]

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

15. [235]

    In Kalmar v Kalmar [2006] NSWSC 437, White J said of his Honour's statement, at [24]: "His Honour's statement that inattention or incompetence by a solicitor is an insufficient ground to warrant an order extending time does not mean that an application for extension must be refused if the limitation period expired through the fault of the solicitor. Contrary to the impression conveyed in the passage quoted from De Groot and Nickel, Family Provision in Australia, it was not held in Charles v Charles that the extension ought not to be granted in that case. In fact, an extension of time was granted as notice of intention to apply had been given before the limitation period expired and the beneficiaries were not prejudiced by an extension."

16. [236]

    In Moore (by her tutor the NSW Trustee & Guardian) v Randall, White J on this issue said, at [48], after referring to Charles v Charles and Kalmar v Kalmar: "In Re Estate of Nichos (dec'd); Grigoriou v Nitsos [1999] WASCA 42 Ipp J said (at [17]): "[17] In my opinion, where delay in making an application in terms of s 7(1) is due to the conduct of an applicant's solicitors, the "justice of the case" requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435; [1948] SASR 248 and Re Traeger dec'd, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act. In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant. See also Bourke v Kecskes [1967] VR 894 (which was an application for the dismissal of an action for want of prosecution), where Lush J examined the question whether "it is fair to place on the facts the interpretation that the plaintiff was passively accepting a situation which he ought to have realised was wrong" (because of unreasonable delay on the part of his solicitor)."

17. [237]

    Recently, in Madden-Smith v Madden (Estate of the Late Doris Linda Madden) [2012] NSWSC 146, Pembroke J, at [23] - [25], and [27], said: "The solicitor's oversight in this case in failing to cause proceedings to be commenced within 12 months of the date of death of the testator does not by itself qualify as a "sufficient cause": Cetojevic v Cetojevic [2006] NSWSC 431 at [54]; Charles v Charles (unreported, NSWSC, 25 March 1988). There must be something more than inattention by a solicitor before time can be extended. 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 s 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. In this area of the law, as in some other areas, I think that it is often better policy to leave claimants to their remedies against their solicitor, rather than to undermine the purpose of the statutory provision: cf Re Salmon [1981] Ch 167 at 176 E-H. To do otherwise would compromise the effectiveness of the legislative intention while ignoring the fault of the plaintiff's own agent against whom she has separate remedies. I do not however suggest that oversight or negligence by a plaintiff's solicitor will never constitute "sufficient cause". For example where the estate is already on notice within the statutory time period that the plaintiff intends to make a claim, the solicitor's failure to commence proceedings within time will not usually have caused prejudice and should not be fatal: Cetojevic v Cetojevic (above) at [55]; Kalmar v Kalmar [2006] NSWSC 437 at [24]; Re Salmon (above) at 174 C-E. But as a matter of general principle, and taken alone, I regard the proposition that a solicitor's oversight is a sufficient cause for the purpose of s 58(2) as one that is open to sound rational and logical objection. ... I should add one final note on the question of prejudice. The primary enquiry when considering whether to extend time pursuant to s 58(2) is as to the reasons why the claimant has failed to comply with the time limit. Prejudice is not by itself the relevant touchstone but it is a factor. The statutory discretion is unfettered and no guidance is given as to its exercise. However, the fact that an estate has been distributed will often be significant. As Sir Robert Megarry VC explained in Re Salmon (above) at 176A-D, there is a real difference between depriving beneficiaries of the prospect of receiving a benefit under the will and taking money off them which they have already received and begun to enjoy."

Other Applicable Legal Principles - Substantive Application

1. [238]

   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 previous legislation, they are equally apt in a claim brought pursuant to the Act.

2. [239]

   Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a "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 of, 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.

3. [240]

   In Cooper v Dungan (19760 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": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

4. [241]

   However, as was noted in Vigolo v Bostin, Gleeson CJ said, at [10], the legislation "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".

5. [242]

   In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, 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."

6. [243]

   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 (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

7. [244]

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

8. [245]

   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.

9. [246]

   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, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

10. [247]

    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 simply by adding up all of those 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, any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams.

11. [248]

    What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J, at [46], should be remembered: "There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Omitting citations)

12. [249]

    In relation to 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 moral obligation, or 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. (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. (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 to whom the applicant, however reasonably, wishes to support, where there is no obligation 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 per Nicholson J at 45. (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 (28 August 2003) at [181], [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 [2009] WASC 164 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) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court's determination of an applicant's case.

13. [250]

    In Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: "The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

14. [251]

    In relation to a claim by a grandchild for a family provision order, the following general principles are, in my view, relevant and should be remembered, whether the claim is under the former Act or under the Act: (a) As a general rule, a grandparent does not have an obligation or responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. (b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes a surrogate parent, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created, in a particular case, by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d) It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e) The fact that the grandparent occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the grandparent for the purposes of the Act. (f) The grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the deceased providing support and maintenance for his, or her, own adult child, and thereby, incidentally, benefiting the deceased's grandchildren who are directly dependent on that child. (g) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. Yet, the obligation of a parent to provide for his, or her child does not, necessarily, negate, in an appropriate case, the moral obligation of a grandparent to make provision for the maintenance, education or advancement in life of a grandchild out of her, or his, estate. (h) The fact that the parents, or either of them, of a grandchild have, or has, predeceased the grandparent may be a relevant factor in support of the claim made by a grandchild.

15. [252]

    The authorities that provide the basis for the above summary, include Tsivinsky v Tsivinsky; Sayer v Sayer [1999] NSWCA 340; Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95; O'Dea v O'Dea [2005] NSWSC 46; Re Estate of Hakim; Simons v Permanent Trustee Co Ltd. I set these principles out, recently, in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [113]. Also see Scarlett v Scarlett [2012] VSC 515 where many authorities are referred to.

16. [253]

    By way of example, relevant to the present case, in Pearson v Jones [2000] NSWSC 799, there were grandchildren who lived with their parents in part of the house that was owned by the grandparents. From time to time, the grandparents made various gifts to the grandchildren. Master McLaughlin (as his Honour then was) concluded, at [24] - [25], on this aspect: "It was submitted on behalf of the Plaintiffs that practical and financial assistance by the Deceased of the nature which I have herein described constituted partial dependency by each Plaintiff upon their grandparents and, after the death of their grandfather, upon the Deceased. However, I am of the view that where, as here, the Plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the Plaintiffs, the mere facts that gifts or benefits were given, either occasionally, or even on a regular basis, by the grandparents is not sufficient to establish that the Plaintiffs were partly dependent upon their grandparents."

17. [254]

    In Shaw v Lambert (NSWSC, 9 October 1987, Unreported; BC 8701079), Young J said, at 8: "In Clinch v Swift, 13 October 1986 unreported, I dealt with the situation of a daughter-in-law who lived in her mother-in-law's home I there said: "Generally speaking if a lady lives with her husband and they have their own family and pay their own way, then the mere fact that the lady lives in her husband's mother's home without payment does not of itself indicate a dependency." In the case where a daughter comes into her father's house to look after him and, with his concurrence, brings her children with her, then it seems to me that whilst the children are dependent upon the mother and the mother may be dependent upon the father unless there are some other facts there is insufficient to show that the grandchildren are directly dependent upon their grandfather. In the instant case there are no further facts and accordingly I do not find that the grandchildren were dependent upon the testator."

18. [255]

    I make clear that I do not intend what I have described as "applicable principles" or "general 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 in the hope that a reference to them will diminish the risks of inconsistency and capricious and arbitrary adjudication, but remembering that the terms of the statutory provisions must remain firmly in mind.

Asimina's Evidence regarding commencement of the family provision proceedings

1. [256]

   Asimina says that in late November 2008, she had a conversation with Thomas about the Alexandria property in which he said that he did not wish to sell it, and that he wanted Asimina and her son to continue to live there. Thomas denies such a conversation.

2. [257]

   She also says that following the death of Stella, and then Michael, she was suffering from grief and depression, which was exacerbated by the conduct of her siblings towards her.

3. [258]

   It was only in July 2009 that she organised a meeting with a firm of solicitors, David Begg & Associates, "in relation to a claim for family provision" and that she attended a conference with, the principal of the firm, Mr Begg, and a senior solicitor, on about 13 August 2009.

4. [259]

   There is a letter dated 28 July 2009, from David Begg & Associates to Asimina confirming discussion that day about "an 18 month timeframe (from the date of your mother's death ...) during which you could make a family provision application" and that "we would encourage you to consider this course of action sooner rather than later". There was then a request for instructions.

5. [260]

   Asimina's immediate response relevantly is "I would be pleased to come in ... Let me know what day best suits ...". A similar request was made again in an email of 5 August 2009. There is also a reference to Asimina believing that her son "might have a strong claim".

6. [261]

   In a diary note dated 13 August 2009, of Asimina's then solicitors, there is a reference: "We to write JA re FPA. Claims by A and Michael". (JA is a reference to Thomas' solicitors.)

7. [262]

   There is also an email, dated 29 August 2009, from Asimina to the solicitors, in which she states: "In relation to the threats of eviction and levy Michael and I are thinking of making a claim under the Family Provision Act. I think it is very important that we notify them now that we are thinking of making a claim because of the time frame left."

8. [263]

   There is no evidence of any letter having been written, or sent by her solicitors, or by her, to Thomas' solicitors, or to any of Asimina's siblings, about family provision proceedings to be commenced by Asimina and Asimina's son.

9. [264]

   Asimina was well aware of the time periods prescribed by the former Act and by the Act for commencing proceedings before the expiration of those time periods. I have referred to the letter dated 28 July 2009, from David Begg & Associates to Asimina. In another letter, dated 3 September 2009, she was specifically advised of the date by which the claim in respect of Stella's estate should be made and was also told that, in respect of Michael's estate, a claim should be made within 12 months of the date of his death.

10. [265]

    The letter dated 3 September 2009 also included the following: "... With regard to your questions about your continued occupation of the Copeland Street property, we advise as follows: 1. Your siblings clearly do not have a right to forcibly remove you from the property. Obviously, you would have to leave at such time that the property was sold in order to make the distribution of both of your parents' estates to all of the beneficiaries. 2. Prior to that time, technically it would be reasonable for you to be paying a licence fee for your continued occupation of the property. You have instructed us that you do not intend to pay any 'rent' or 'levy'. On that basis, rather than you actually paying out any funds, it might be that your siblings could be persuaded to continue to have any rent due taken into account and later deducted from the quantum of your eventual distribution. This would be a matter for negotiation by us on your behalf. Also, please remember, that the fact that you and Michael have lived there rent-free, paid all of the rates and insurance, and it has always been your home, is part of the basis of your family provision claim. 3. In order to placate your siblings, we advise that it would be prudent to obtain market and rental appraisals at your earliest convenience. This does not commit you to listing the property for sale, but would help to clarify the basis of any negotiation that we enter into regarding your continued occupation. Also, an accurate market value is required for your affidavit, whether as executrix or administrator. D. Family Provision claims 1. Clearly, if an FPA claim is not settled by negotiation and has to go to Court, the costs are high. A rough estimate of costs in a usual FPA claim is $20,000 - $25,000 up to and including the first mediation. A fresh estimate is provided if the claims are not settled at that stage. All legal costs are paid out of the estate. As David is concerned that the estate is reasonably modest (based on the Copeland Street property and without knowing the value of the Greek properties), we will discuss further with you the advantages and disadvantages of making the FPA claims, once the position regarding the value and disposition of the Greek properties is clearer. 2. David has offered to undertake your family provision claims on a 'conditional' basis, which means that if you make these claims, you would not have to pay any legal professional fees unless and until David was successful in securing a benefit for you and / or Michael. The only costs that you would be required to pay before settlement of the FPA claims would be disbursements, eg. filing fees. 3. We will advise you further about the timing and consequences of family provision claims for yourself and Michael. One of the consequences might be that, in order to make an FPA claim, you would be advised to renounce your executorship of your parents' estates. From what you have consistently said to us about how seriously you take your executorial obligations, we doubt that would be a satisfactory option for you. There are options about the 'timing' of any such renunciation and making the family provision application that we will consider further when the situation with regard to your father's estate is clearer."

11. [266]

    On about 22 September 2009, Asimina was informed that counsel's advice was to be obtained.

12. [267]

    On 2 October 2009, counsel was briefed. The brief, which was in terms of a letter included, in respect of the claims for a family provision order, the following: "... B. Family provision applications Our client wishes to make family provision applications on behalf of herself and her son. If Michael Kallidis died intestate because of his marriage, then, clearly, any such family provision claim would only be against the state of Styliani Tatarakis (Kallidis). 1. If our client was to make family provision applications for herself and her son, would she have to resign as executrix of her mother's estate? 2. If she resigns as executrix of her mother's estate, would the NSW Trustee become the executor or could one of the other siblings become executor? 3. Our client is an 'eligible' person as the daughter of Styliani Kallidis. Please advise whether, in your opinion, our client's son would be an eligible grandchild, on the basis that he lived with his mother and grandmother all of his life and that his grandmother did not charge rent for our client and her son's occupation of the Alexandria house. We are instructed that other household expenses, such as food were shared by our client and her mother. Utilities were paid by our client's mother."

13. [268]

    Asimina was provided with no written, or oral, advice from counsel and it would appear that despite raising the matter with the solicitors, she received no further advice from the firm of solicitors at any time between October 2009 and May 2010.

14. [269]

    On 28 May 2010, Asimina sent an email to Ms Ellis, the senior solicitor of David Begg & Associates with whom she had been dealing, which email included the following passages: "... I would also like to ask you and David is it too late to file an application under the Family Provision Act? I have tried to do the right thing by all members of the family but they are continuing to intimidate and harass me."

15. [270]

    There is no written response to this email and Asimina says in her affidavit that she did not receive a response to her enquiry. She says that she "was now under the impression that I could not now make any application and ... was not aware that an application for provision could be made out of time".

16. [271]

    From that time, until early 2011, Asimina acted for herself and for her son.

17. [272]

    In January 2011, Asimina contacted David Begg & Associates and in a conference subsequently arranged, she says that Mr Begg told her that she could not make a claim out of time.

18. [273]

    Subsequently, on 27 February 2011, Ms D Hogan-Doran of counsel, known to Asimina as a parent of a child who attended Asimina's son's school, contacted her and offered to assist on a pro bono basis. Ms Hogan-Doran informed Asimina that she could, in fact, make a claim even though the prescribed period, in each case, for making a claim had passed.

19. [274]

    Thereafter, Asimina collated and provided various financial and medical records to Ms Hogan-Doran for review and for preparing affidavits in support of her applications for a family provision order. She says that her ability to prepare evidence and provide instructions was affected by her state of health and also because of the medication she was taking.

20. [275]

    On 18 April 2011, Ms Hogan-Doran, whilst appearing in the administration proceedings, foreshadowed that it was likely that there would be a claim for a family provision order by Asimina and by Asimina's son following her review of the documents provided to her by Asimina.

21. [276]

    Asimina filed the Summons seeking the family provision relief for her and for her son on 7 June 2011.

22. [277]

    There is no evidence of any actual prejudice suffered by any of the siblings of Asimina by the delay in commencing the family provision proceedings. What was put during submissions was that there had been "a loss of capital". However, the value of the Alexandria property appears to have increased from the date of death of Stella, if one accepts the estimate of $400,000 (being the total value of that property) stated in the Inventory of Property.

23. [278]

    What is also submitted, on their behalf, is that Asimina deliberately delayed the bringing of her claim to enable her to use the estates' asset, namely, the Alexandria property, for her own advantage and that because of her conduct, the time for making her claim, in each estate, should not be extended.

Credit of the Witnesses

1. [279]

   It is clear that there was real animosity between the siblings.

2. [280]

   There were many issues raised in the affidavits. The resolution of this unfortunate family dispute, between siblings, has not been assisted by some of those affidavits, which explored, in parts, quite irrelevantly, the minutiae of the family's relationships. In fact, many affidavits go to the relationship of Asimina and some of her siblings, rather than to matters that would assist in determining what is really in issue in proceedings for a family provision order.

3. [281]

   By way of example, Asimina's affidavit sworn 21 October 2011, comprises 69 pages and 244 paragraphs; Dimitra's first affidavit comprises 37 pages, including annexures, and 160 paragraphs; Andriani's affidavit comprises 19 pages and 115 paragraphs. (I mention only these affidavits. There were many others not of such length but longer than each should have been.)

4. [282]

   I am reminded, in this case, of what Campbell J (as his Honour then was) said in Cairns v Cairns [2006] NSWSC 364, at [13]: "In the present case, the ambit for dispute about matters which are fundamental to the plaintiff's claim does not strike me as great. The fundamental facts about the family relationships and the financial and domestic circumstances of the family members are not in dispute. There are some matters which are traversed in affidavits, but they do not seem to be at the core of the case. They provide another example of the practice, encountered far too often in both Family Provision Act 1982 cases and claims under the Property (Relationships) Act 1984, of affidavits setting out the deponents' versions of small details of the domestic virtues or shortcomings of each other. Where the truth lies concerning such matters very often does not help the Court at all in deciding whether to make an order, and if so what order. Very often, one finds that such detail is not referred to at all by counsel in written submissions or oral address. Putting that sort of detail into affidavits has no effect but to increase costs unnecessarily. For example, in the present case, I doubt that I will be assisted in reaching a conclusion by finding whether the plaintiff did, or did not, refuse to clean the bathroom and toilet."

5. [283]

   As I recently said in Malone v Runge [2012] NSWSC 1032 and in Battersby v McIvor [2012] NSWSC 1137, it is impossible, in a case such as the present, to reach clear findings on all of the issues, some of which could not be tested because they involve events that occurred many years ago. The Court can never know all the circumstances. Nor can this judgment hope to identify all of the detail of the affidavits filed, or to reconcile the many contradictory expressions of fact and opinion that are revealed by those affidavits: Kirby v Sims [2011] NZHC 935, at [77].

6. [284]

   I have so far, and shall hereafter, record my findings on what I regard as the most important issues. What I have dealt with is all that is necessary and appropriate to record in this particular case.

7. [285]

   There are three aspects of Asimina's evidence that require specific comment. First, she had given evidence that she had borrowed $10,000 in the early 1990s to assist in paying the costs to repair termite-infested floorboards in the Alexandria property. It was put to her, in cross-examination, that Stella had, in fact, repaid $10,000. A document that Asimina had signed, acknowledging the receipt of $7,000, was put to her. She accepted that it was genuine and that she had received the amount of $7,000. She also accepted that the balance had subsequently been paid.

8. [286]

   Yet, she maintained that the amounts repaid, despite totalling $10,000, were not repayments of the amount that she had borrowed.

9. [287]

   Ultimately, she gave the following evidence: "Q. Is this the position: That you borrowed ten thousand dollars which was used for fixing up the Alexandria property? A. Yes. Q. Sometime later your mother gave you ten thousand dollars in two instalments it would appear; one of seven thousand dollars and one of three thousand dollars which was in effect for the benefit of Michael? A. That's right. Q. And, it was clear that from her point of view, she was repaying you the ten thousand dollars that you had used for the property, isn't that what the document seems to suggest? A. That is what it seems to suggest but I was trying to show Mum that I gave that money. I didn't want to get repaid for that but if she wanted to give me the money for Michael I would accept it because that was fifteen years. Q. The effect of it was you advanced ten thousand dollars for the house and? A. That's right. Q. And she repaid you ten thousand dollars which she put into an account for Michael? A. That's right."

10. [288]

    I am satisfied that Asimina knew that the amount that she had borrowed was, in effect, repaid to her by Stella, although many years later. Her failure to acknowledge this in her affidavit, and in her evidence, does not do her credit.

11. [289]

    The second matter relates to Asimina's attempts to obtain accommodation following the death of Stella and Michael. She gave the following evidence: "You were allowed two choices before you were relegated off the list is that correct? A. That's right. Q. Did you not ask them that you wanted that first choice to not count? A. Yes. Q. And, what happened after that? A. I think they have accepted there were two choices left. Q. What have you done about it? A. They haven't contacted me. Department of housing. ... Q. ... you were asked some questions about the opportunity given to you to inspect a property at Waterloo into which you could move from the Department of Housing. Do you remember being asked some questions about that? A. Yes, I was, your Honour. Q. And you were taken to some documents that demonstrated that you rejected the form of accommodation offered at that time, for reasons that you explained? A. Yes, your Honour. Q. And then you were asked about other opportunities to obtain accommodation, and your response was, "They never contacted me". That is, "The Department of Housing never contacted me"? A. That's right, they hadn't. Q. Did you take any steps to contact? A. Yes, I did. Q. Where do I find that evidence of any steps you've taken to contact the Department of Housing, to chase up housing accommodation through that department? A. Only through telephone calls, your Honour. Q. Is there any evidence of any steps that you took in regard to those telephone calls? A. I don't have any evidence to show that, but the department may have evidence. I don't know if they've kept records of my calls. Q. But you haven't put forward any evidence that you even made any telephone calls? A. No, no."

12. [290]

    I find the evidence that she telephoned the Department of Housing difficult to accept bearing in mind the lack of evidence about that matter in any of her lengthy affidavits. Because of the significance of the potential availability of alternative accommodation to her from the Department of Housing if she had made such telephone calls, I would have expected it to be in her evidence. Furthermore, no attempt was made to seek leave to re-open to establish, by other means, what she had asserted.

13. [291]

    The third matter related to whether she had specifically instructed her former solicitors to commence proceedings before the prescribed period, in each case, expired. She said that she thought she had done so "in my emails".

14. [292]

    However, the documents relied upon by her do not demonstrate any such direct instruction. Nor do other documents. For example, a letter dated 24 July 2009, which set out the work that the solicitors were required to do referred to "Advise you in relation to potential family provision claims on behalf of yourself and your son" as well as "Advise you in relation to your rights regarding [the Alexandria property".

15. [293]

    Whilst there are a number of requests in the documents for advice and for an opportunity to discuss her wish to make a claim, there is no document that reveals such an instruction, and no document in which she asks whether any proceedings have been commenced.

16. [294]

    She does however refer to one conversation, on or about 23 October 2009, with Mr Begg, in which she said, "What is happening with the FPA claim?" and he responded, "I think it is a very small estate." This statement by her, read in the light of the answer from the solicitor, is equivocal.

17. [295]

    In a series of emails concluding with one dated 28 May 2010, Asimina asked her solicitors: "I would also like to ask you and David, is it too late to file an application under the Family Provision Act? I have tried to do the right thing by all members of the family, but they are continuing to intimidate and harass me."

18. [296]

    This does not suggest prior instructions to commence proceedings. Had those instructions been given, it is likely that a different question would have been asked.

19. [297]

    There was no evidence of notice being given to any of Asimina's siblings, or Thomas's solicitor, that she, or her son, were considering making a claim for a family provision order.

20. [298]

    Secondly, one of the matters about which Asimina was concerned related to costs of any proceedings that she might commence. As one of the conversations referred to above reveals, her solicitor appeared to be concerned about the value of Stella's estate.

21. [299]

    In the circumstances, I do not accept her evidence that she gave instructions to her former solicitors to commence the family provision proceedings in respect of either estate.

22. [300]

    However, this does not mean that she made a conscious decision not to commence proceedings. In fact, she denied having made such a decision and I accept that denial.

23. [301]

    Despite what I have said, I do not accept the submission, made on behalf of Thomas, that Asimina did not commence proceedings because she wished to remain in occupation of the Alexandria property. She appears to have been of the belief, since there had been no grant of administration in Michael's estate, that there was no person, to join with her, as executrix of Stella's estate, to sell the Alexandria property. In this regard, she had been given that advice, which was correct.

24. [302]

    In a letter dated 2 September 2009 from David Begg & Associates to Jordan Antonopoulos, the solicitor for Thomas, the following passage appears: "3. We have advised our client that it is not appropriate to list the property for sale until the position in relation to Michael Kallidis' estate has been clarified. Indeed, if Michael Kallidis did re-marry, there is no prospect of any immediate crystallisation of this asset. Our client's executorial obligations in this regard are clear."

25. [303]

    In a letter dated 16 March 2010, from Asimina to Thomas, the following appears: "I am writing to see if you have had a chance to file dad's will in the Supreme Court of New South Wales for probate appointing you as administrator of his estate. After the will has been filed under probate you will need the updated Title Deed, which I have in my possession and which I will give to you once you have the probate document. After the probate document has been filed in the Supreme Court of New South Wales, you will need to take it to the Land Titles Office to place your name on the estate as Administrator in trust for the beneficiaries of dad's estate. You can do that yourself saving you solicitors fees. It is roughly about $90.00. Once you have done that, we can start getting the house ready to go on the market for sale. If you would like to appoint your own agents to come and look at the house, I would be most happy for them to do so. They can contact me on xxx xxx xxx. I would be happy for them to come and see the house at a convenient time for them to give you a quote on what the house is worth. I think it would be better if you and any other member of the family could nominate at least three agents. That way everybody will feel at ease. I am happy to communicate with you and the other beneficiaries direct thus not burdening the estate of solicitors fees. Once you have been appointed Administrator of dad's estate, we will only need a solicitor to prepare the conveyancing documents upon sale of the property which roughly costs about $1500 and real estate agent fees, which, I believe can be quite high. At the moment, all I need to do is paint the bathroom and change the vanity as it has been falling apart. I shall do that once I have saved enough money to replace it. I would also like to paint the front room as that room has been closed for six years. I cleaned the walls as they had built mould on them because no air was circulating in that room. I have since opened the windows and aired the front room and removed a lot of things that were just taking up space like an old filing cabinet and an old broken stereo etc. I have kept Jenny's things for her as well as her couch ..."

26. [304]

    A letter dated 17 May 2010, from Asimina to Jordan Antonopoulos, the content of which it is not necessary to repeat, refers again to the need for Thomas to obtain letters of administration.

27. [305]

    Furthermore, counsel for Thomas accepted that there was no evidence of any request made to Asimina to consent to him obtaining a special grant to enable the Alexandria property to be sold.

28. [306]

    In respect of other matters upon which she was cross-examined, Asimina appeared to be endeavouring to provide truthful answers.

29. [307]

    In relation to the other children who were cross-examined, each seemed to be endeavouring to assist the Court. In any event, there was very little cross-examination of each.

30. [308]

    There was no cross-examination of Stella Magoulias, the daughter of Dimitra. However, her evidence related more to the relationship of the Asimina and Dimitra than with issues in the case. Other witnesses gave evidence only of formal matters.

Additional findings of Fact

1. [309]

   I shall now set out 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 remember, in doing so, that some of these matters may, or may not be, relevant to the claim under the former Act by Asimina and Asimina's son in respect of Stella's, estate. 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

2. [310]

   Asimina is the daughter of Stella and of Michael. She lived with Stella from her birth until Stella's death, except when either travelled overseas, or when Stella stayed with one of her other children. They remained in contact, by telephone, or by letter writing, when they were not together.

3. [311]

   For example, Asimina spent six months in Canada in 1989, four months in Greece in 1994 and one month in 1996. In 1990, Stella went to Greece between about 1990 and 1993. Between mid-2003 and Stella's death, Asimina, Stella and Asimina's son lived in the Alexandria property together.

4. [312]

   Asimina's son also lived with Stella and Asimina. She says that he "had a very close and loving relationship since his birth" with Stella, who spent a lot of time with him, teaching him to speak Greek and otherwise educating him from a young age.

5. [313]

   There is no dispute that Stella had a close relationship with Asimina and with Asimina's son. The real dispute, between the children, appeared to relate to whether it was closer than her relationship with each of her other children and grandchildren. In this regard, one pointer may be that Stella named Asimina as the sole executrix of her Will. (Asimina was also named as the substitute executrix in Michael's Australian Will to which I have referred.)

6. [314]

   Asimina lived with Michael in Greece, and then in Australia, until he left for Greece in 1984. She described Michael as a strict disciplinarian who was physically and verbally abusive. Whilst the other children agree that he was strict, each denies that he was physically and verbally abusive.

7. [315]

   However, even after he returned to Greece, Asimina says that she kept in contact with him and visited him in 1986, 1989, 1992, 1994, and on the last occasion in July 1996. She says that Michael returned to Australia in about 2005 but that she did not see him on this occasion because Thomas refused to allow her to see him. (Thomas denies this.)

8. [316]

   There is an issue whether Stella was living in the Alexandria property with Asimina and Michael between 2003 and 2008. A number of her siblings give evidence that she was, while Asimina says that she would go over to Dimitra's home for periods of about two weeks at a time.

9. [317]

   I tend to think that each is partly correct in her evidence. Stella regarded the Alexandria property as her home, but tended to spend periods of time, perhaps more than two weeks, with Dimitra, during this period.

10. [318]

    In 2009, Asimina telephoned Michael, but spoke to Ludmila who stated that he was bed-ridden, that he was too sick to come to the telephone, that he could not walk, and that he was eating through a tube. She continued to be in contact with both Ludmila and with doctors whilst Michael was in hospital.

11. [319]

    Asimina was unable to attend Michael's funeral because of her health and her financial position. (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

12. [320]

    There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased because of their relationship as child and parent.

13. [321]

    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 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."

14. [322]

    In this case, there are six other children of each of Stella and Michael to whom a similar obligation, or responsibility, was also owed.

15. [323]

    Leaving aside the obligation, or responsibility, arising as a result of their relationship as parent and child, neither Michael nor Stella had any legal, or financial, obligation to Asimina, imposed upon him and her by statute or common law.

16. [324]

    To the extent that there is any obligation, or responsibility, arising as a result of their relationship as grandparent and grandchild, neither Michael nor Stella had any legal, or financial, obligation to Asimina's son, imposed upon him and her by statute or common law. There is no suggestion that either assumed any particular obligation, and responsibility, towards Asimina's son. (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

17. [325]

    I have dealt with the nature and extent of the estate. Each of Stella's, and Michael's, estate is a small one. (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

18. [326]

    Asimina gives evidence of her current financial and material circumstances as follows. Her Public Sector Superannuation Scheme preserved benefit was valued, as at 30 June 2011, at $100,766. These funds can be accessed when she turns 65. She remains unemployed and receives workers compensation benefits of approximately $1,639 (net) per fortnight. Her workers compensation benefits will cease when she turns 60, at which time she will go onto a government pension.

19. [327]

    Her appeal from the decision of the SSAT in relation to her challenge to its assessment of child support was heard by the Federal Magistrates Court but was adjourned, part-heard, to another date before the hearing of this matter commenced. There was no evidence of what occurred then or what has occurred subsequently.

20. [328]

    She states that she has no real property, other assets and only personal effects of minimal value. She does not own a car and has not driven a car since she got her licence in 1995.

21. [329]

    Her personal liabilities exceed $75,000 (excluding any liability for legal costs to her former solicitors). She has continued to make regular small payments towards her credit card debts and outstanding school fees according to agreed payment arrangements.

22. [330]

    She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($5,306).

23. [331]

    Asimina states her future needs and those of her son as follows: (a) Accommodation for her and Michael; (b) A new four-door automatic hatchback motor vehicle; (c) Tuition and school related expenses for Michael's education; (d) Private Tuition on musical instruments; (e) Tuition with private teacher in voice; (f) Tertiary education for Michael; (g) A sum for contingencies, including medical care; (h) Musical instruments; (i) Medical and dental/orthodontist fees for Michael; (j) Dental work for herself; (k) An operation for her vascular varicose veins.

24. [332]

    She estimates that the cost of a two-bedroom unit in Alexandria and/or the surrounding areas is between $450,000 and $535,000, and that the cost of a two-bedroom house in Alexandria and/or the surrounding areas is $800,000 or above.

25. [333]

    There is evidence that Asimina has applied to the NSW Government for housing assistance. There is a letter dated 25 July 2011, from "Bridge Housing" stating that she has been "approved for general housing" and that her name has been "added to the NSW Housing Register from 4 June 2010, for a property that suits your household" in the inner City.

26. [334]

    There is also evidence that Asimina was offered accommodation in Waterloo in July 2011. She rejected this accommodation upon the basis that she suffered posttraumatic stress disorder and because she had "noticed a lot of police patrolling the area as well as entering the lifts" as a result of which she suffered a "panic attack". Although she admits that two other alternative accommodation offers may be made, the Department had not offered them and she had not sought them.

27. [335]

    Asimina's counsel acknowledged the obvious futility of seeking provision out of each estate for the "needs" and in the amount referred to. During submissions, he indicated that Asimina should receive about 31.5 per cent of each estate if it were that the estate, in each case, was to be divided equally between the children of Stella and Michael.

28. [336]

    Thomas has not worked since 2006. He says his annual income, since 2006, has been approximately $4,000, limited to interest from moneys in an investment account.

29. [337]

    Thomas' assets are:

30. [338]

    He says he had an original investment of $100,000, but that this amount has been reduced over the years by his need to withdraw monies to fund living expenses and to travel to Greece to attend to various issues relating to Michael's funeral and estate. He has had to travel to Greece on two occasions. He has privately funded the airfares for these trips to the sum of $6,000. He has also contributed $1,850 from his own funds for lawyers' fees in respect of the finalisation of Michael's estate.

31. [339]

    His investment has now been reduced to about $28,000. He said he had used what had been spent on living expenses, including, I infer, on his children and grandchildren.

32. [340]

    He says his home is unencumbered, and that he has no superannuation. He should receive, upon the sale of the Alexandria property, the reimbursement of the amount he contributed for Michael's funeral ($7,646).

33. [341]

    He did not disclose that he had a block of land in Greece with a value of $25,000. He intended that his children should inherit this block of land and had no intention to sell it.

34. [342]

    He has the following liabilities:

35. [343]

    Thomas details his weekly expenses, which total $502.

36. [344]

    He says he has had to be frugal and selective in his spending habits because of his financial position. He says he cannot afford car insurance, holidays.

37. [345]

    Maria outlines her assets and liabilities as follows:

38. [346]

    She has been in receipt of workers compensation benefits since a work accident in 1998. She received approximately $311 per week in the financial year 2010/2011. She also receives about $40 per week interest from her St George Bank account. She and her husband receive approximately $500 per week from the rent from the Belmore property. Her husband is her carer and does not work. He does not receive any carer's pension.

39. [347]

    She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($3,000).

40. [348]

    Maria details her joint weekly expenses, which total $783.

41. [349]

    Her husband owns a car.

42. [350]

    Andriani sets out her financial resources as follows:

43. [351]

    Andriani says that her total monthly income is $3,120 net. She details her monthly expenses, which total $1,090 and what she describes as her "fixed monthly expenses", which total $2,034. She states that in the future she would require:

44. [352]

    In her updating affidavit of 23 February 2012, Andriani states that she owes $288 to Energy Australia, and $390 to Telstra.

45. [353]

    She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($4,194).

46. [354]

    Dimitra says that she lost her employment contracts at the end of March 2012. However, she is currently assisting her husband in his new business venture. In about April 2012, her husband started a business of the sale and marketing of computer consumables and cleaning chemicals. The company, through which the business operates, now has about 10 employees and a monthly turnover of about $50,000. She says that the company is making a loss. Although her position is part time, she hopes it will become a full time position.

47. [355]

    Her husband is a director of the company and he owns it. (She denied having any shares in the company.)

48. [356]

    Dimitra stated that her current net weekly income, paid by the company, is $600, as is her husband's. She and her husband operate their home, assets and liabilities jointly and share expenses.

49. [357]

    She states she has the following joint assets with her husband:

50. [358]

    She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($4,112).

51. [359]

    When asked about superannuation, she said that she thought that both she and her husband had some, but was unable to provide even an estimate of the amount held for either of them.

52. [360]

    She states she has the following joint liabilities with her husband:-

53. [361]

    She details her and her husband's joint weekly expenses, which total $2,738. She does not explain the source of the amount of the expenditure in excess of income.

54. [362]

    Dimitra sets out her "needs" and concludes that the estimate of some of those "needs" total $409,500.

55. [363]

    Soumela has three children aged 23, 18 and 13. Her oldest child is a primary school teacher working on a part time/casual basis, However, Soumela and her husband continue to support her financially. Her middle child is a member of the Australian Defence Force but is yet to be deployed. Her youngest child is in his first year of high school.

56. [364]

    Soumela works as an executive assistant and earns $1,027 per week. Her husband is a self-employed consultant finance broker.

57. [365]

    She gave evidence that she and her husband are separated under the one roof and that they stay together for the benefit of the children. She does not know anything about her husband's current financial position. (Through lawyers, they are discussing a property settlement, but no agreement has yet been reached.)

58. [366]

    The joint assets of Soumela and her husband are:

59. [367]

    She should receive, upon the sale of the Alexandria property, the reimbursement of the amount that her husband contributed for Stella's funeral ($4,112).

60. [368]

    Their joint liabilities are:

61. [369]

    It is clear, from her cross-examination, that some of the debts stated to be joint, are, in fact, the debts of her husband.

62. [370]

    She details their combined weekly expenses, which total $3,547.

63. [371]

    She does not explain the source of the amount of the expenditure in excess of income.

64. [372]

    She gave evidence that her husband has recently been served with a demand from the mortgagee of the former matrimonial home. Her husband gave evidence that he is currently attempting to refinance their loans, although if they are unable to do so, the home (in which she and her children live) will have to be sold.

65. [373]

    Her oldest child, who now works as a teacher, does not pay board.

66. [374]

    Soumela gave evidence that she wishes to keep her youngest child at the private school that he is attending.

67. [375]

    Soumela sets out her "needs" and concludes that the estimate of some of those "needs" total $385,000.

68. [376]

    Helen is paying $270 rent per fortnight. She receives a Disability Support Pension of $466 per fortnight, which is her only source of income.

69. [377]

    Helen details her weekly living expenses, which total $454.

70. [378]

    She states that her living expenses exceed her income and that she often goes without. She also relies on friends for assistance at various times.

71. [379]

    Helen outlines her assets as follows:

72. [380]

    She states her liabilities are as follows:

73. [381]

    Helen outlines the following future needs as follows:

74. [382]

    Each of the children has an interest in Stella's Greek property to which I have earlier referred. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

75. [383]

    Asimina lives with her son in the Alexandria property. He is a student. (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

76. [384]

    Asimina states her health is very poor and she suffers from:

77. [385]

    She obtains some emotional support from representatives of the Salvation Army. In particular, she has received regular support from a "Money Care counsellor" since late 2008.

78. [386]

    She has seen a registered psychologist who has provided a report dated 18 May 2011, in which she confirms that Asimina suffers from Generalised Anxiety Disorder as well as Post Traumatic Stress Syndrome "as a result of her difficult childhood, bullying in her workplace and continual harassment from her siblings" and that "her stress has been exacerbated by financial insecurity and the threat of eviction from her family home". The report concludes: "If these problems were addressed, she may be able to move on in her therapy and eventually rejoin the workforce".

79. [387]

    There is also a medical report dated 23 May 2011, from Asimina's treating doctor (since 1986), which confirms the medical conditions set out above.

80. [388]

    Finally, there is a report of a surgeon relating to her varicose vein condition and whether, and if so, when, surgery should be performed.

81. [389]

    Thomas suffered a work injury in about 1976, following which he has suffered from epileptic fits. In March 1983 he underwent an operation to remove a tumour on his brain.

82. [390]

    Helen sustained a fall in November 2003, which led to pain in her neck and both knees. She suffers from severe depression. She has been diagnosed with osteoarthritis in the neck and both knees which prevents her from working and carrying out activities of normal living.

83. [391]

    She continues to take painkilling medication, including Mobic and Celebrex, as well as Neurofen, Aspro and Panadol Osteo. She also has a number of cortisone injections on a weekly basis in both knees. She has also experienced a build up of fluid in both knees, which has required her admission to hospital for fluid extraction on four (4) occasions.

84. [392]

    Her doctor has advised her that she should have both knees replaced but she has been putting this off. She does not have any money available to pay for such surgery, as she is entirely dependant on the public health system.

85. [393]

    Her quality of life is severely affected. She states that she is in constant pain. She finds it difficult to get in and out of the seated position. She states that it is very painful for her to walk up and down stairs. Her apartment is on the first floor and she is not sure how much longer she will be able to continue to live there as it is becoming increasingly difficult to climb the stairs.

86. [394]

    Because of her circumstances and the pain she has from her knees, she feels anxious and depressed. She had been prescribed an anti-depressant medication some time in 2003, she has now gradually come off that medication.

87. [395]

    Andriani was involved in a motor accident in about 2008 and suffered injuries to her neck and right shoulder, she also suffered facial injuries, including broken teeth. She resumed work until February 2009. She has had time away from work due to depression and anxiety, for which she has been hospitalised on a number of occasions.

88. [396]

    She continues to suffer from anxiety, depression, constant lethargy, skin irritations, body sweats, hot flushes, headaches and constant fatigue.

89. [397]

    She takes Avanza and Cortizone creams for her skin.

90. [398]

    Maria has been in receipt of workers compensation payments since a work accident in 1998. She describes her husband as her "carer". She does not state her current medical condition. (g) the age of the applicant when the application is being considered

91. [399]

    Asimina is currently aged 50 years, having been born in August 1962 .

92. [400]

    Asimina's son is currently aged 15 years, having been born in 1997. (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

93. [401]

    Asimina asserts the following financial assistance made for Stella and other family members: "32. ... (a) Payment of Dimitra's engagement dress which cost approximately $300, the wedding bands which cost approximately $1,000 and contribution towards the wedding fees and bonbonnieres in the approximate amount of $1,500; (b) Payment of half the household bills and utilities including electricity, water, council rates, telephone, home and contents insurance, food and groceries. I attended to payment of all the household bills and utilities from 2003 onwards; (c) Purchase of baby clothes and baby furnishings for my niece and goddaughter Stella; (d) Payment of the Christening costs and birthday parties for my niece Stella; (e) I also gave my mother: (i) $50 each week to help support Dimitra, her daughter Stella and her husband Michael as her husband Michael was not working at the time and attending technical college; and (ii) $20 each week to my mother to support Emelie (my sister Andrianni's daughter) who had moved into the Alexandria Property after running away from home. (f) Payment of enrolment and other associated fees for my niece Stella in a Talent School for jazz, tap dancing and drama for approximately seven-(7) years. Yearly fees commenced at $1,000 and increasing. (g) Travel expenses and airfares and accommodation to Greece for my mother, Dimitra and me in or about 1986 ... (h) Travel expenses and airfares to Greece for my mother, Dimitra and my nice Stella in or about 1992 including travel between various Greek Islands and shopping in the amount of approximately $10,000; (i) Enrolment, school fees and other associated educational fees for my niece Stella in a Private Girls School, SCEGGS Darlinghurst for approximately two-(2) years in the amount of approximately $20,000; (j) School uniforms, clothes, contributions towards school fees and educational books and aids for Stella from birth until 15 years of age to the total approximate amount of $30,000; (k) Nail Course for my sister Dimitra in or bout 1993 in the approximate sum of $1,500; and (l) Travel expenses and airfares to Greece for my mother, Dimitra and my niece Stella and me in or about early 1994 to visit my father who had fallen ill with pneumonia, in the amount of approximately $10,000; (m) $100 per week to my niece, Emelie to collect Stella from afterschool care in 1996 and onwards as I was pregnant and suffering from Sciatica and unable to walk at the time as I would ordinarily and otherwise collect Stella from school myself. Emelie was a single mother who was not employed, who had a car and I offered her the extra money to help her out; and (n) Approximately $250 per month to my mother since in or about 2003 to 2008 and in addition purchase of clothing and personal items; and (o) Purchase of household furniture and general household items."

94. [402]

    She says that even when she went to Canada, where she worked, she continued to provide financial assistance to Stella of $200 per month as well as purchasing clothes for Stella, Dimitra and Dimitra's daughter.

95. [403]

    She also said that from 2003, she paid all of the household's utility bills.

96. [404]

    Asimina says she provided some financial assistance to Michael also. She says: "111. Each time I visited my father in Greece, I assisted my father financially with household/living expenses and groceries and I bought him clothes and gifts from Australia. I also gave money (cash) to my father. I recall: (a) in about 1992, I also gave him AUD$500; (b) in about early 1994, I paid for the food and groceries while my mother, myself, my sister Dimitra, my niece Stella and I stayed with my father while he was recuperating from pneumonia and I gave him AUD$1,000; and (c) in about July 1989, I gave my father AUD$1,000 to assist him with food and other items he needed and to pay for a council fine as he had spent a lot of money refurbishing our house. 112. Prior to returning to Australia in 1989 from Canada, I stopped over in Greece to visit my father who was living alone in our property in Selinia, Salamina. I bought my father clothing, food, groceries, toiletries and other gifts from Canada. During my stay with my father for a period of three-(3) weeks: (a) I took my father to the Australian Embassy in Greece to have his passport replaced which I paid for and cost approximately AUD$200; and (b) We went out for lunch and dinner. 113. Between in or about 1986 and 2006, I sent between $200 and $300 to my father and I also purchased gifts and clothing for him from Australia which I sent to him in Greece. ... 156. In or about 1993, after discussions with and at the direction of my mother, I engaged the services of George Conomos & Associates in relation to renovations to the Alexandria Property. I paid the approximate sum of $2,500 to George Conomos & Associates for the work completed in relation to drawings, measurements, design costs and council approval."

97. [405]

    Asimina says that she also contributed to the maintenance and repair of the Alexandria property. She says: "156. In or about 1993, after discussions with and at the direction of my mother, I engaged the services of George Conomos & Associates in relation to renovations to the Alexandria Property. I paid the approximate sum of $2,500 to George Conomos & Associates for the work completed in relation to drawings, measurements, design costs and council approval. 157. Throughout the years, I have also paid for or contributed to the following renovations / improvements to the Alexandria Property: (a) Repair of termite invested floorboards (valued at $10,000); (b) Wall to Wall wardrobes (valued at approximately $5,000); (c) Security bars on windows (valued at approximately $2,000); (d) Cementing the backyard (valued at approximately $1,000); (e) Rebuilding brick fence at the back and side of the property (valued at approximately $2,000); (f) Fix roof on property with galvanized iron (valued at approximately $2,000); (g) Painting and maintenance work including plumbing and electricity (valued at approximately $2,000) ..."

98. [406]

    I have earlier dealt with the payment of $10,000 for the repair of termite- infested floorboards. In these other respects, her evidence was not the subject of significant challenge.

99. [407]

    Asimina does not suggest that her son made any financial contribution to the estate of either Stella or Michael. (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

100. [408]

     By providing accommodation at a reduced, or no rent, each of Stella and Michael, during her and his lifetime, made provision for Asimina and Asimina's son. The provision of that accommodation extended over many years. The value of such subsidised accommodation, during the lifetime of Stella and Michael, cannot be calculated, but bearing in mind its duration, it was a valuable benefit provided by each to Asimina and Asimina's son.

101. [409]

     Similarly, by virtue of having remained in possession of the Alexandria property, since the death of Stella, provision has been made since 2008 for each of them. Based upon the evidence of value of notional rent of the Alexandria property since the death of Stella, the value of such subsidised accommodation is estimated to be in excess of $100,000.

102. [410]

     Asimina says that Michael gave her a piece of jewellery, a gold cross and a gold chain.

103. [411]

     As previously stated, Asimina receives 14.28 per cent of the estate of Stella. For the reasons to which I shall later refer, she will receive the same percentage of Michael's estate or if there is an intestacy, about 3.6 per cent of it.

104. [412]

     As previously stated, Asimina's son receives nothing out of the estate of the deceased, unless a family provision order is made. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

105. [413]

     While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.

106. [414]

     I have referred to the only documents that reveal the testamentary intentions of Stella and of Michael.

107. [415]

     There is evidence of a will made by Stella on 19 February 2003, in which she appointed Dimitra as the substitute executrix and gave her interest in the Alexandria property to her seven named children who survived her, in equal shares. She gave the rest and residue of her property, in Australia, also to her seven children in equal shares.

108. [416]

     There is no evidence of any earlier Will dealing with Stella's property in Greece.

109. [417]

     I have referred to Michael's Australian Will. (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

110. [418]

     There is no evidence that either Asimina or Asimina's son was being maintained, either wholly or partly, by Stella, or by Michael, immediately before her, and his, death respectively, other than as previously referred to. (l) whether any other person is liable to support the applicant

111. [419]

     Other than the Commonwealth government's responsibility to provide Asimina with a pension, at the time she becomes entitled to it, there is no other person with a liability to support Asimina.

112. [420]

     The father of Asimina's son does have an obligation to support Asimina's son. (m) the character and conduct of the applicant before and after the date of the death of the deceased person

113. [421]

     The conduct referred to by Thomas is the failure to vacate the Alexandria property. I have dealt with this earlier.

114. [422]

     Otherwise, counsel for Thomas acknowledged that there was no conduct of a disentitling nature, or of a nature that reduced provision before or after the death of the deceased that was otherwise relevant. (n) the conduct of any other person before and after the date of the death of the deceased person

115. [423]

     I am satisfied that there is nothing in the conduct of any of the other children of Stella and Michael. Each had a close and loving relationship with his, and her, parents and each is a chosen object of testamentary bounty. (o) any relevant Aboriginal or Torres Strait Islander customary law

116. [424]

     This is not relevant in the present case. (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

117. [425]

     There are no other matters that I consider relevant.

1. [426]

   In respect of the administration proceedings, I have earlier set out the parties' agreement in respect of the administration of Michael's estate in Australia. In the circumstances, and as there will be little to do other than distribute that estate, there should be a grant of letters of administration to Thomas.

2. [427]

   I am satisfied that the Greek Will is a valid foreign Will and that letters of administration with that Will annexed should be granted to Thomas. The proceedings should be referred to the Deputy Registrar in Probate to complete the grant.

3. [428]

   In relation to the construction of the Greek Will, I am satisfied that the deceased intended the gift of the one quarter share of "the house", to which I have referred, to mean the share of the house in Greece, which he had inherited, in which he and Ludmila lived, to Ludmila absolutely, and that he intended his Australian property, being "the remainder", to be divided equally between his seven children.

4. [429]

   In circumstances where there is no suggestion that he had any other property in Greece (that is that he only had a one quarter share of the Greek house and no other property, real or personal), the reference to "the remainder" can only be to his interest in the Alexandria property. There is nothing in the Greek Will that satisfies me that he had any intention to leave any share of his interest in the Alexandria property to Ludmila.

5. [430]

   I of the view that he would not have intended to die intestate in respect of the Alexandria property.

6. [431]

   The revocation proceedings, brought by Thomas and Maria, in the events that have happened, should be dismissed.

7. [432]

   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.

8. [433]

   There is no dispute that Asimina, as a child of Stella and of Michael, is an eligible person.

9. [434]

   Whilst there is no dispute that Asimina's son is a grandchild of each of Stella and of Michael, there is a dispute whether he was wholly or partly dependent upon Stella at any particular time. (It is conceded that he was not dependent upon Michael.)

10. [435]

    On this issue, I am satisfied that Asimina's son was not wholly or partly dependent upon Stella. To the contrary, I find he was dependent on Asimina. There is no evidence that might lead to a finding of dependency, other than the fact that he was living with Asimina in a property co-owned by Stella, and that he had a close relationship with Stella. In my view, that is not enough. Accordingly, he is not an eligible person in respect of Stella's estate.

11. [436]

    There was also a significant dispute, in the event that I found Asimina's son to be an eligible person in respect of Stella's estate, that there were factors warranting the making of his application.

12. [437]

    Even if I am wrong in relation to my conclusion that Asimina's son is not an eligible person in respect of Stella's estate, I would not find that there were any factors warranting the making of his application. Overall, I am not satisfied that Stella had come to assume, for some significant time in the life of Asimina's son, a position more akin to that of a parent than a grandparent, with direct responsibility for his support and welfare, or else, that she had undertaken a continuing and substantial responsibility to support him financially or emotionally. There is very little to suggest that their relationship was closer than what might be suggested to be a usual grandparent and grandchild relationship.

13. [438]

    It is unnecessary to consider this question in relation to Asimina's son's claim in respect of Michael's estate, since it was acknowledged that Asimina's son is not an eligible person in respect of Michael's estate.

14. [439]

    Also, in my view there are no factors which warrant the making of his application in relation to Michael's estate.

15. [440]

    His claim for a family provision order, in respect of each estate, must be dismissed.

16. [441]

    The next question I must determine relates to an extension of time for the making of Asimina's applications.

17. [442]

    In my opinion, sufficient cause has been established which, in all the circumstances, justifies an order for the extension of time. In so deciding, I have not overlooked Asimina's evidence that she was aware of the time period for making each application, but I do not regard her knowledge as fatal: Taylor v Farrugia, at [23], per Brereton J). I do so because I have come to the view that I express below.

18. [443]

    In relation to her reasons for not making a claim, I am satisfied that there may have been some misunderstanding about whether her claim, in relation to each estate, had, in fact, been, and then after the time had expired, whether it could be, made.

19. [444]

    I am also satisfied that she was not given advice, in express terms, upon whether she should, or should not, make a claim.

20. [445]

    When she became aware that a claim for a family provision order could be made, albeit outside the time prescribed by the former Act and the Act, she moved relatively quickly to make the claim in each estate.

21. [446]

    I have earlier referred to a lack of prejudice suffered by any of the beneficiaries. To the extent that they have not received any share of any rent or occupation fee, I shall take into account the benefit received by Asimina in occupying the Alexandria property following the death of Stella and then following the death of Michael.

22. [447]

    For the further reason that follows, an order extending time for the making of Asimina's application should be made. To do otherwise, as will be seen, would prevent a family provision order, in her favour, in each case, being made.

23. [448]

    The former Act requires 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 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).

24. [449]

    It is necessary to bear in mind the subtle difference of wording in the two Acts.

25. [450]

    In the circumstances, I shall make specific findings on the questions posed by Barrett JA in Andrew v Andrew, at [76], in relation to Stella's estate and, at [81], in respect of Michael's estate.

26. [451]

    In relation to Stella's estate, I have earlier referred to the extent of the provision, by way of accommodation, made in favour of Asimina during Stella's lifetime. Similar provision was not provided to any of her other children. Permitting her to remain rent/occupation fee free for the time that she did, was, in my view, substantial provision.

27. [452]

    I have also identified the extent of the provision made in favour of Asimina out of the estate by Stella's Will. (The operation of the intestacy laws does not apply since Stella left a Will that disposed of the whole estate of her estate.) As stated, Asimina receives 14.28 per cent of that estate.

28. [453]

    I am of the opinion that the provision made during her lifetime, and under Stella's will, for the proper maintenance, education and advancement in life of Asimina, is inadequate, bearing in mind all of the matters that should be considered. I note that, whereas each of the children, other than Helen owns a home, Asimina does not. Whereas none of the other children, other than Soumela, has any minor children to support, Asimina does. Furthermore, each of the others, with the exception of Helen, and perhaps, Soumela, seem to be better off, financially, than does Asimina. In the case of each of the daughters, other than Helen, and perhaps, Soumela, she has the support and assistance of a spouse. (Soumela's husband is trying to assist in ensuring that the home in which she lives with their children is not sold. They have not yet had a property settlement.)

29. [454]

    In view of my conclusion regarding inadequacy, I turn then to the evaluative judgment, being what provision, if any, ought, having regard to circumstances at the time of the making of the order, to be made out of Stella's estate for the maintenance, education or advancement in life of Asimina. In reaching my conclusion, I take into account the discretionary factors, referred to in s 9(3)(a) to (d) of the former Act and the competing claims of each of Asimina's siblings. I must also take into account the fact that Asimina has made a claim in respect of Michael's estate.

30. [455]

    In my view, Asimina, instead of receiving 14.28 per cent of Stella's estate, should receive 25 per cent of that estate. By way of example, that would mean the share of each of her six siblings, if he and she bear the burden of that additional provision equally, will be reduced by about 2 per cent. Using the gross estimate of $391,776, that percentage will yield about $97,944 out of Stella's estate. (Of course, it will be less after the deduction of costs.)

31. [456]

    In relation to Michael's estate, I have earlier referred to the extent of the provision made in favour of Asimina during his lifetime in regard to accommodation. That provision was not made for his other children. Permitting her to remain rent/occupation fee free for the time that she did, was, in my view, substantial provision.

32. [457]

    I have also noted the extent of the provision made in favour of Asimina out of the estate by Michael's Greek Will. (The operation of the intestacy laws does not apply for the reasons expressed previously.) As stated, she receives 14.28 per cent of that estate.

33. [458]

    I am of the opinion that the provision made during his lifetime and under Michael's Greek will for the proper maintenance, education and advancement in life of Asimina, is inadequate, bearing in mind all of the matters that should be considered. I have referred to the matters under s 60(2) of the Act.

34. [459]

    I must, however, remember the provision that I have made for Asimina out of Stella's estate. That will improve her financial resources. I also remember the competing financial and other claims of Asimina's siblings upon Michael's estate.

35. [460]

    In my view, Asimina, instead of receiving 14.28 per cent of Michael's estate, should receive 21 per cent of Michael's estate. By way of example only, that will mean the share of each of her six siblings, if he and she bears the burden of that additional provision equally, will be reduced by about 1 per cent. Using the gross estimate of $404,854, that percentage will yield about $85,019 out of Michael's estate. (Of course, it will be less after the deduction of costs.)

36. [461]

    The total of the amounts that she receives will enable her to repay her debts and will leave a modest capital sum for exigencies of life.

37. [462]

    It will be appreciated that the estimates of amount provided can, at this stage, be no more than estimates only, since the Alexandria property has not been sold and the burden of costs has not been determined.

38. [463]

    There was a suggestion that Thomas, Dimitra and Maria, should bear a greater share of the burden of provision, than should Adriani and Helen, and that Soumela should bear no share of that burden. I am prepared to hear further short submissions on how the burden of the provision should be borne in the event that Asimina's siblings are unable to reach agreement. I would hope, however, that they will be able to reach agreement and I shall give them an opportunity to do so.

39. [464]

    Provided the amounts to which Asimina is entitled out of each estate is paid to her within 28 days of the settlement of the sale of the Alexandria property, or such other time as the Court orders, or the parties agree, no interest is to be paid; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.

40. [465]

    The issue of the costs of all parties shall be determined after further submissions, unless agreement is reached between them.

41. [466]

    The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

42. [467]

    In view of the fact that the Alexandria property is to be sold, and because there may be a dispute as to costs, I direct the parties to bring in short minutes that reflect the conclusions to which I have come.

43. [468]

    I shall stand the matter over to a convenient date to the parties and the Court. 14 December 2012 - Dates removed Amended paragraphs: 327