Supreme Court

New South Wales

Case Name: Page v Hull-Moody

Medium Neutral Citation: [2020] NSWSC 411

Hearing Date(s): 24 and 25 February 2020

Date of Orders: 20 April 2020

Decision Date: 20 April 2020

Jurisdiction: Equity

Before: Hallen J

Decision:

Orders that the Summons be dismissed. Directs, in the event that the issue of costs is not resolved between the parties, the matter is to be re-listed, for the purpose of hearing argument on whether the issue of the costs of the proceedings should be determined other than in accordance with the usual order for costs

Catchwords: SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – One of the Defendants is also an adult child of the deceased whilst the other is an adult grandchild of the deceased – Will of the deceased made some provision (one-quarter of the estate) for the Plaintiff – Estate of reasonable value – Provision also had been made for Plaintiff during lifetime of the deceased – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made – Summons dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 60Family Law Act 1975 (Cth), s 90DFamily Provision Act 1982 (NSW)Probate and Administration Act 1898 (NSW), s 86Succession Act 2006 (NSW), ss 3, 18, 57, 58, 59, 60, 61, 63, 65, 66, 72, 84, 88, 99, Ch 3Uniform Civil Procedure Rules 2005 (NSW), r 10.2

Cases Cited:

Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308Bartlett v Coomber [2008] NSWCA 100Bkassini v Sarkis [2017] NSWSC 1487Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86Bondelmonte v Blanckensee [1989] WAR 305Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35Bosch v Perpetual Trustee Co Ltd [1938] AC 463Bowditch v NSW Trustee and Guardian [2012] NSWSC 275Bowyer v Wood (2007) 99 SASR 190Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195Butcher v Craig [2009] WASC 164Carey v Robson (No 2) [2009] NSWSC 1199Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392Christie v Manera [2006] WASC 287Crossman v Riedel [2004] ACTSC 127de Angelis

v de Angelis [2003] VSC 432Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54Foley v Ellis [2008] NSWCA 288Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195Geoghegan v Szelid [2011] NSWSC 1440Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31Goodsell v Wellington [2011] NSWSC 1232Gorton v Parks (1989) 17 NSWLR 1Hall v Hall (2016) 257 CLR 490; [2016] HCA 23Harkness v Harkness (No 2) [2012] NSWSC 35Hawkins v Prestage (1989) 1 WAR 37Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2Hunter v Hunter (1987) 8 NSWLR 573Kleinig v Neal (No 2) [1981] 2 NSWLR 532Kohari v Snow [2013] NSWSC 452Liprini v Liprini [2008] NSWSC 423MacGregor v MacGregor [2003] WASC 169Marks v Marks [2003] WASCA 297McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82McGrath v Eves [2005] NSWSC 1006McKenzie v Topp [2004] VSC 90Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52Robinson v Tame (Court of Appeal (NSW), Kirby P, 9 December 1994, unrep)Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473Sgro v Thompson [2017] NSWCA 326Shannon v Steinmetz [2019] HCASL 332Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297Squire v Squire [2019] NSWCA 90Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114Stern v Sekers; Sekers v Sekers [2010] NSWSC 59Stott v Cook (1960) 33 ALJR 447Sung v Malaxos [2015] NSWSC 186Taylor v Farrugia [2009] NSWSC 801Verzar v Verzar [2012]

NSWSC 1380Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)White v Barron (1980) 144 CLR 431; [1980] HCA 14Yee v Yee [2017] NSWCA 305

Texts Cited: Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5

Category: Principal judgment

Parties:

Julie-Anne Page (Plaintiff)Cathy Mae Hull-Moody (First Defendant)Jayde Hull-Moody (Second Defendant)

Representation:

Counsel:Mr P R Glissan (Plaintiff)Mr L J Ellison SC with Ms C Newman (Defendants) Solicitors:Robert Napoli & Co (Defendants)

File Number(s): 2018/388670

JUDGMENT1 HIS HONOUR: These proceedings involve the estate of Gay Estelle Page (the

deceased) and a claim brought by one of her, now adult, children, Julie-Anne

Page, for a family provision order, under Chapter 3 of the Succession Act 2006

(NSW) (the Act).

2 The deceased died on 18 December 2017, leaving a Will dated 14 April 2016.

This Court granted Probate of that Will, on 15 March 2018, to Cathy Mae Hull-

Moody, another, now adult, child of the deceased, the younger sister of the

Plaintiff, and to Jayde Hull-Moody, a, now adult, grandchild of the deceased,

and a child of Cathy.

3 Without intending to convey undue familiarity or disrespect, and for clarity and

convenience, I shall refer, hereafter, to the parties, and family members, after

introduction, by the name used by the family members.

4 By Clause 3 of her Will, the deceased, after payment of debts, funeral and

testamentary expenses, left one-quarter of her estate to Cathy, one-quarter of

her estate to Julie-Anne (on certain terms referred to below), one-quarter of her

estate to Bianca Jade Labarte, who is Julie-Anne’s daughter, and one-quarter

to be divided between Jayde and her brother, Blake Hull-Moody, in equal

shares as tenants in common.

5 (It should be noted that while the Will of the deceased referred to “Bianca Jade

Labarte”, Bianca’s affidavits were sworn under the name “Bianca Jade Page”.

Moreover, it appears that the surname of Bianca’s husband and children is

“Labarthe”. Nothing turns on the spelling error in the Will.)

6 In Clause 3(d) of her Will, the deceased directed that, before distributing Julie-

Anne’s one-quarter share to her (or to the Public Trustee of Queensland, if it

was managing her financial affairs), Cathy and Jayde should discharge any

mortgage, or debt, which may be secured against Julie-Anne’s home at the

time of the deceased's death.

7 From the summary of the terms of the Will, it can be seen that the deceased,

effectively, divided her estate equally between her two daughters, with one half

going to one daughter and her child, and the other half going to the other

daughter, and her two children.

8 Although, for a time, the Public Trustee of Queensland was appointed as

administrator for Julie-Anne’s financial matters, at the date the deceased made

her Will, at the date of her death, and at all other times (including at the date of

hearing), Julie-Anne’s financial affairs had ceased to be managed by the Public

Trustee. The circumstances surrounding the removal of the financial manager

will be referred to later in these reasons. Also, as will be referred to later, there

is a current debt, secured by mortgage on Julie-Anne’s home.

9 I should mention that this is another very sad case, once again involving adult

siblings, children of the deceased, who were prepared to incur a significant

amount, by way of costs, rather than coming to a resolution of the proceedings.

Whilst it may not be an important aspect of the case, if Julie-Anne’s motive in

bringing the proceedings was to obtain a larger part of the estate, she has

failed entirely, and she may now be subject to an order for Cathy’s and

Jayde’s, as well as for her own, costs. A realistic assessment of the possible

provision that might have been made for her, when compared to the costs of

the proceedings, might suggest that it was not her sole motive. One had the

sense that Julie-Anne considered that she had an entitlement to, rather than

the deceased having an obligation to make, further provision for her.

10 It should not be thought that this is meant as a criticism of the legal

representatives of either party. For the most part, they have endeavoured to

manage the hearing, bearing in mind the object of resolving the issues

between the parties in such a way that the cost to the parties was proportionate

to the importance and complexity of the subject-matter in dispute: Civil

Procedure Act 2005 (NSW), s 60. The hearing was set down for two days and

was completed within that time, even though it did not commence until

approximately 11:35 a.m. on the first day because of Julie-Anne’s failure to

arrive at Court. (The Court, with the agreement of the legal representatives,

came to the view that even formal matters, such as dealing with objections to

affidavits, should not be dealt with in her absence.)

11 At the hearing, Mr P R Glissan of counsel appeared for Julie-Anne.

Mr L J Ellison SC, with Ms C Newman of counsel, appeared for Cathy and

Jayde. I am grateful to the legal representatives, particularly to counsel for

Julie-Anne, for the manner in which he conducted the hearing (even though the

balance of the first day of the hearing, after Julie-Anne’s arrival, was spent

dealing with objections to affidavits).

Some formal matters not in dispute

12 The Plaintiff commenced the proceedings by Summons filed on 18 December

2018. The proceedings were commenced within the time prescribed by the Act

(not later than 12 months after the date of the death of the deceased): s 58(2)

of the Act.

13 Relevantly, the Act applies in respect of the estate of a person who died on, or

after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW)

(the former Act), which was repealed, effective from 1 March 2009. A family

provision order is one for the maintenance, education, or advancement in life,

of an eligible person.

14 Section 57(1) of the Act provides that “eligible persons” may apply to the Court

for a family provision order. As a child of the deceased, Julie-Anne is an

eligible person within s 57(1)(c) of the Act. The language of the subsection is

expressive of the person’s status, regardless of age, as well as her, or his,

relationship to the deceased. It is not necessary that the child be a dependant

at the time of the deceased’s death in order to be an eligible person under this

head of eligibility (as dependency is not an element of the definition of an

“eligible person” in s 57(1)(c)).

15 However, under s 60(2) of the Act, relevantly for the purposes of the present

case, the Court may consider, on the question whether to make a family

provision order and the nature of any such order, “… (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 …”. This factor,

however, will not be relevant, in the case of a child of the deceased, to whether

the applicant is an eligible person.

16 As the deceased dealt with all of her estate in her last Will, there is no scope

for the operation of the intestacy rules, with the result that it is only necessary,

hereafter, to refer to the Will of the deceased.

17 A family provision order may be made in relation to property that is not part of

the deceased’s estate, but is designated as “notional estate” of the deceased

by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a

deceased person is defined in s 3(1) of the Act to mean property designated by

a notional estate order as notional estate of the deceased person. “Notional

estate order” means an order made by the Court under Ch 3 of the Act,

designating property specified in the order as notional estate of a deceased

person. A person’s rights are extinguished to the extent that they are affected

by a notional estate order: s 84 of the Act.

18 Initially, counsel for Julie-Anne raised the possibility that the proceeds of sale

of the deceased’s car ($6,500), which were distributed to Jayde and Blake,

may be able to be designated as notional estate. However, he accepted that

the Court must not make a notional estate order unless it is satisfied that (a)

the deceased person left no estate, or (b) the deceased person's estate is

insufficient for the making of the family provision order, or any order as to

costs, that the Court is of the opinion should be made, or (c) provision should

not be made wholly out of the deceased person's estate because there are

other persons entitled to apply for family provision orders or because there are

special circumstances: s 88 of the Act. Mr Glissan said (Tcpt, 24 February

2020, p 10(03–04)):

“It’s de minimis. It’s just theoretically designable [sic] as notional estate. That’s all”.

19 However, neither counsel made any submissions, after that time, on the issue

of notional estate. I propose to ignore the sale proceeds of the car as notional

estate although it will be part of the provision that each of Jayde and Blake

have received out of the estate of the deceased.

20 The only eligible persons, about whom there is no dispute, are Julie-Anne,

Cathy and their father, Lawrence Walter Page, the spouse of (albeit separated

from) the deceased, at the date of her death. There was a suggestion, made by

counsel for Julie-Anne, that Bianca may be an eligible person, being a person

who was, at any particular time, wholly or partly dependent on the deceased

person, and who is a grandchild of the deceased. She has not commenced

proceedings. She, also, had filed and served evidence of her financial

resources and financial needs. Only Julie-Anne has made a claim.

21 Each of the persons who is, or who may be, an eligible person (other than

Julie-Anne) and both Jayde and Blake, as beneficiaries, has been served with

notice of Julie-Anne’s application, and of the Court's power to disregard her or

his interests, respectively, in the manner and form prescribed by the

regulations or rules of court. Jayde and Blake, also, have put on evidence of

her and his financial resources and financial needs.

22 Cathy has not commenced proceedings under the Act, but she, too, has given

evidence of the bases of her claim on the bounty of the deceased as one of

beneficiaries named in the Will of the deceased. She has raised her financial

circumstances.

23 For reasons referred to later, Lawrence has not made a claim and it is

accepted by the parties that he will not do so as he and the deceased entered

into a property settlement reflected in a Financial Agreement made between

them. I am prepared to disregard his interests as an eligible person.

24 Each of Jayde, and Blake, whilst not an eligible person within the meaning of

that term in s 57(1) of the Act, as a beneficiary named in the Will of the

deceased, has given evidence of the bases of her, and his, claim, respectively,

on the bounty of the deceased.

25 The Act specifically provides that the interests of a beneficiary cannot be

disregarded, even though each has not made a claim: s 61(1). Each is entitled

to rely upon the terms of the deceased’s Will and her, or his, competing claim,

respectively, as a chosen object of the deceased’s testamentary bounty. I shall

refer to the situation in life of each of the beneficiaries later in these reasons.

26 Cathy and Jayde, as executors, do not seek any commission, or percentage,

for their pains and trouble as is just and reasonable, out of the estate of the

deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Some background facts

27 It is next convenient to set out some facts that are not in dispute. To the extent

that any of them are identified as being in dispute, the facts stated should be

regarded as the findings of the Court.

28 The deceased was born in January 1936 and she died in December 2017 aged

80 years. She married Lawrence Walter Page, who is the father of the Julie-

Anne and Cathy, in July 1960, and remained married to him at the date of

death, although they separated in February 2016. (There are some minor

inconsistencies in the date of the marriage and of the separation, but nothing

turns on these inconsistencies.)

29 Although the deceased and Lawrence were not divorced at the date of the

deceased’s death, they had entered into a Financial Agreement, made on 2

June 2016, “pursuant to s 90D [sic] of the Family Law Act 1975 (Cth)”. So far

as these proceedings are concerned, Lawrence gave a family provision release

(albeit not approved by the Court as no application for that approval was

brought).

30 The deceased and Lawrence owned a property at Asquith, a suburb of Sydney

located on the Upper North Shore (the Asquith property), as tenants in

common in equal shares. There was some evidence that the deceased and

Lawrence, initially, held the Asquith property as joint tenants and that the joint

tenancy that was severed in 2016. Pursuant to the Financial Agreement:

“4.   (a)   The husband shall have the right to live in the property known as … Asquith … as long as he wishes, provided that he pays the rates, taxes and other outgoings, including insurance premiums, in respect of the property and keeps it in reasonable repair …”

31 Lawrence was born in October 1936, and is currently aged 83 years old. He

had lived in the Asquith property since separation. For part of the time, Julie-

Anne also lived in the Asquith property with him. Indeed, she has continued to

do so and was staying there at the date of the hearing.

32 In August 2018, Lawrence was taken to Hornsby Hospital. On 23 August 2018,

he was transferred to Macquarie Hospital as he had been diagnosed with a

heart condition. A week later, he was transferred to Mt Wilga Private Hospital,

for rehabilitation, where he remained until 26 September 2018, at which time

he returned to the Asquith property. On 1 January 2020, Lawrence vacated the

Asquith property and was taken to Hornsby Hospital where he remained until

13 January 2020, when he was transferred to Longueville Private Hospital.

33 It was accepted that Lawrence is unlikely to return to live at the Asquith

property. Pursuant to Clause 4(b) of the Financial Agreement, the Asquith

property is now to be sold and the net proceeds divided pursuant to Clause 5,

which provides:

“5.   Division of proceeds of sale of property

On completion of the sale of the property, the proceeds of sale shall be paid in the following manner and priority:

   (a) in payment of the agents’ commission and selling costs;

(b) in payment of each party’s legal costs of the sale;

(c) in payment to the wife of such amount as is arrived at by deducting five hundred and twenty-eight thousand dollars ($528,000.00) (being the total amount of the moneys referred to in clause 3 hereof) from the amount equivalent to fifty percent (50%) of the total of:

(i) the balance of the proceeds of sale;

(ii) the sum of five hundred and twenty-eight thousand dollars ($528,000.00); and

(iii) the amount of five hundred and eighty thousand dollars ($580,000.00) currently remaining in the husband’s North Personal Pension Account; and

(d) in payment of the remainder thereof to the husband.”

34 Lawrence has made a Will dated 22 May 2017, a copy of which was tendered:

Ex D3. The Will appoints two non-family members as executors; provides for

two pecuniary legacies, one of $10,000 to the executors “to be applied … to

the care of my rabbit, Gigi …”, and the other of $60,000, to Cathy, if she

survives him, but if she does not, to her children; and the whole of the residue

of his estate is to be divided, equally, between Julie-Anne and Cathy if she

survives him and, if not, to her child or children respectively.

35 (There is a direction to the executors, regarding the share to which Julie-Anne

is entitled, which relevantly requires them to apply her share to discharge any

mortgage, or debt, secured against the property in which she resides before

the remainder is paid to her: Clause 6.)

36 The parties agreed that, currently, Lawrence’s estate consists of his interest, as

a tenant-in-common in equal shares, in the Asquith property (estimated to be

$516,375) and cash investments of about $326,955. There was other evidence

of an additional $33,000 held in a bank account: Affidavit, Cathy Mae Hull-

Moody, 3 February 2020 at par 65.

37 It was also accepted by them that Lawrence is not able to revoke the Will as he

has lost capacity. The only way the Will can be changed is by an approach to

the Court and the Court making another will for him: Tcpt, 24 February 2020,

p 73(39–43). There was no suggestion that an application will be made by any

person, seeking an order from the Court, authorising a will to be made or

altered, in specific terms approved by the Court, or a will, or part of a will, to be

revoked, on behalf of Lawrence as a person who lacks testamentary capacity:

s 18 of the Act.

38 Julie-Anne was born in March 1963, and is 57 years of age. Cathy was born in

September 1965 and is 54 years of age. Bianca was born in December 1982,

and is 37 years of age. Jayde was born in July 1993, and is 26 years of age.

Blake, who is Cathy’s son, was born in June 1995, and is 24 years of age.

39 It is clear from the evidence, that neither Cathy, nor any of the grandchildren of

the deceased, supports Julie-Anne’s claim for additional provision out of the

estate of the deceased. It was submitted by Cathy and Jayde that her

Summons should be dismissed.

40 In May 2010, the deceased had made an application to the Queensland Civil

and Administrative Tribunal for the appointment of a guardian and the

appointment of an administrator in regards to Julie-Anne. On 8 September

2010, the Tribunal ordered that the Public Trustee of Queensland be appointed

as administrator for her for all financial matters until further order of the

Tribunal.

41 In May 2011, Julie-Anne brought an “[a]pplication for administration

appointment or review” to the Tribunal, seeking to manage her own financial

affairs. (There were other applications made in 2011 by the deceased and also

by Bianca, but these are not particularly relevant.)

42 On 4 October 2011, the Tribunal delivered Reasons for Decision. Relevantly,

the Tribunal ordered that the order dated 8 September 2010, made by the

Tribunal, appointing the Public Trustee of Queensland as administrator for

Julie-Anne should be revoked to the extent of that appointment.

43 The deceased spent a period of time in hospital until, in January 2016, she was

discharged. For a period of about 6 months, she lived with Cathy, following

which she moved into a retirement unit in The Cotswolds Village at Turramurra

(the Turramurra property).

44 Despite efforts, the Turramurra property has not been sold. The parties

seemed to agree that it is uncertain when it will be able to be sold.

45 Lawrence made two payments of $30,000 and $60,000 in June, and July,

2017, respectively, to reduce the amount due under the mortgage secured on

Julie-Anne’s property: Ex P3 (Statement No 24). (I shall return to the provision

made by the deceased during her lifetime for Julie-Anne.)

46 Julie-Anne accepted that the debt secured by the mortgage could have been

paid out of the provision that she would receive under the Will of the deceased.

However, she explained that she would wish to leave some part of the debt

($10,000) because she “may need to do further repairs and if I keep a line of

credit open, on the pension, I’m able to go to the bank and get their

assistance”: Tcpt, 25 February 2020, p 103(21–28).

47 In January 2019, Julie-Anne made a request of Westpac Banking Corporation,

which Bank is the mortgagee shown on the mortgage securing a debt

($111,841) registered on the title of her real property in Queensland. The

request made was “to review repayments on the grounds of hardship”. The

Bank reduced the mortgage repayments, between 5 February 2019 and 5 July

2019, to $200 per month. Thereafter, between 5 August 2019 and 5 January

2020, the repayments were to be $770 per month “until further notice” provided

she complied with the repayment schedule. Thus, if all but about $10,000 of

the debt secured by the mortgage were repaid in accordance with the terms of

the deceased’s Will, the income available to Julie-Anne would be increased:

Tcpt, 25 February 2020, p 104(15–22).

The estate of the deceased

48 On 10 December 2019, the Court directed the parties to provide, in hard and

soft copy, an agreed schedule that contained:

(1) the assets and liabilities of the estate at the date of death;

(2) the assets and liabilities of the estate at the date of the schedule;

(3) the estimated costs and expenses of any property that is to be sold;

(4) the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and

(5) any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.

49 I have taken what follows from the Agreed Schedule, which was marked,

without objection, Ex JS1 in the proceedings and from the other evidence

which is not the subject of dispute. (Ex JS 1 was, in part, ambiguous so what

follows corresponds with the discussion with counsel at the commencement of

the hearing.)

50 In the Inventory of Property, a copy of which was attached to, and placed

inside, the Probate document, the deceased’s estate was disclosed as having

an estimated, or known, value of $1,225,000. The estate was said to consist of

the deceased’s sole interest in the Turramurra property ($575,000) and the

deceased’s interest, as tenant in common in equal shares, with Lawrence, in

the Asquith property ($650,000). In Ex JS 1, cash from a closed bank account

($5,000), was also disclosed as an asset at the date of the deceased’s death. It

follows, that, at the date of her death, the value of the deceased’s gross estate

was $1,230,000. (I have omitted, and shall continue to omit, a reference to

cents.)

51 The deceased’s estate, as at 7 February 2020 (the date of Ex JS1), was said to

consist of the deceased’s interest in the Turramurra property ($575,000), and

the deceased’s interest in the Asquith property ($568,375), (neither of which

had been sold at the date of hearing). As at 3 February 2020, no offers to

purchase the Turramurra property had been received. The parties agreed that

the gross value of the estate, at the date of hearing, was estimated to be

$1,143,375.

52 Cathy, as one of the deceased’s executors and one of Lawrence’s Attorneys,

has given Julie notice that she intends to sell the Asquith property as soon as

she is able. For her part, Julie-Anne agreed that she would vacate possession

of the Asquith property by 28 February 2020. For some time, she has known

that she will have to vacate the Asquith property. She agreed that when she

left, she would leave all of Lawrence’s furniture and possessions there; she

would properly clean the property, including the fridge; that she would leave

Lawrence’s family photos and the photos of himself and other people; and that

she would take all of her possessions with her: Tcpt, 25 February 2020,

p 87(46) – p 88(33).

53 However, in the Defendants’ Additional Submissions, at par 11 (the purpose of

which is discussed further below), senior counsel for Cathy and Jayde

submitted:

“As at the date of these submissions, the plaintiff has not vacated the Asquith unit. It is unclear whether she has taken any significant step to vacate the unit. Prior to the filing of any submissions in reply, the defendants will serve a short affidavit by which the first defendant deposes to the continued occupation of the Asquith unit.”

54 Whether or not Julie-Anne had vacated the Asquith property by 28 February

2020, as she had assured the Court, is an aspect of her conduct that will be

relevant to her claim.

55 On 9 April 2020, senior counsel for Cathy and Jayde provided further

Additional Submissions in Reply. So far as is relevant to this issue, senior

counsel submitted at pars 10–11:

11.   The defendants seek to file and read the short affidavit (Cathy Hull Moody, 7 April 2020) from the first defendant. The Asquith realty was vacated by the plaintiff no later than 13 March 2020. On 17 March 2020 it was visited by the first defendant who took photos. The condition of the realty does not seem to have changed in any significant way from the time it was occupied by the plaintiff. The affidavit has been served.

12.   Further, the Court was advised (26 February 2020, T7.48) it would be informed if either of the Turramurra or Asquith properties had been sold. As at the date of these submissions, neither of the properties has been sold.

56 I had not, prior to the receipt of the Defendants’ Additional Submissions in

Reply, granted leave to Cathy and Jayde to file further evidence in the

proceedings. Indeed, counsel for Julie-Anne, by his reply submissions,

opposed any application by Cathy and Jayde to reopen the evidence. He

further provided specific objection to the proposed Affidavit in the following

terms at par 9:

9.   It is submitted that this affidavit contains no evidence of any significant probative value, and would be prejudicial to the Plaintiff unless she had an opportunity to answer it, by narrating her significant logistical and physical difficulties in vacating the Asquith property, including her need for assistance from a number of other persons.

57 In view of no application having been made to the Court, by notice of motion, or

otherwise, other than in written Additional Submissions, I do not propose to

grant leave to rely upon the affidavit and I have ignored it. I have not taken into

account the fact that Julie-Anne may have continued to occupy the Asquith

property after 28 February 2020 in the determination of her claim. However,

her occupation of the Asquith property, rent free, as at, and prior to, the date of

the hearing is a relevant matter that I have taken into account.

58 There was no dispute that there were liabilities of the estate at the date of

hearing, comprising the levies due on the Turramurra property ($28,575), an

amount to be reimbursed to Cathy for electrical works carried out on the

Turramurra property ($831), and also the legal costs and disbursements of

administration of the deceased’s estate ($15,000). It was also agreed that the

costs and expenses of sale of the Turramurra property were estimated to be

$16,875 and that one-half of the costs and expenses of sale of the Asquith

property were estimated to be $15,250. It follows that the total of the liabilities

and the estimated costs and expenses of sale of the real estate, is $76,531.

59 Thus, the net value of the estate of the deceased, at the date of hearing,

without the deduction of any costs of the proceedings, is estimated to be

$1,066,844.

60 As will be read, the total of the costs of the parties is estimated to be $150,000.

It follows, if the estimates prove accurate, that the value of the estate out of

which a family provision order could be made for Julie-Anne will be about

$916,844. Each quarter share provided for in the Will of the deceased would

then be $229,211.

61 It is likely that the deceased’s share of the proceeds of sale of the two

properties will not be available, for distribution, to the beneficiaries named in

the deceased’s Will, until completion of the respective sales, and completion of

administration of the deceased’s estate.

The Costs of the Proceedings

62 Section 99(1) of the Act provides that the Court may order that the costs of

proceedings under Ch 3, in relation to the estate or notional estate of a

deceased person (including costs in connection with mediation), be paid out of

the estate, or notional estate, or both, in such manner as the Court thinks fit.

The section confers a discretion in respect of costs that is no more confined

than the general costs discretion.

63 Usually, in calculating the value of the deceased’s estate available from which

a family provision order may be made, the costs of the proceedings should be

considered with circumspection. Unless the overall justice of the case requires

some different order to be made, the applicant for a family provision order, if

successful, normally would be entitled to an order that her, or his, costs and

disbursements, calculated on the ordinary basis, should be paid out of the

estate of the deceased; while the defendant, as the person representing the

estate of the deceased, irrespective of the outcome of the family provision

proceedings, normally will be entitled to an order that her, or his, costs,

calculated on the indemnity basis, should be paid out of the estate. The size of

the deceased’s estate, and the conduct of a party, may justify a departure from

what is said to be the usual rule.

64 As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016)

15 ASTLR 317 at 330; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

65 However, this statement does not mean that parties should assume, in all

cases, that this type of litigation can be pursued, safe in the belief that all costs

will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at

[21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010]

VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v

Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many

times, in the context of a claim for a family provision order, particularly in

relation to estates with a small value.

66 Julie-Anne’s costs and disbursements, calculated on the ordinary basis, were

estimated to be $60,000: Ex JS1.

67 On the first day of the hearing, senior counsel for Cathy and Jayde set out an

undertaking that they had given to the former solicitors who had been acting for

Julie-Anne. Before it was tendered, a copy of the inter partes undertaking, in

writing, was provided to her and her counsel. The undertaking, a copy of which

was provided to the Court (Ex D2), was in the following terms:

“We hereby undertake to hold the sum of $48,288.69 from Julie Page’s share of the estate until such time as:

1. We receive a joint request from Julie Page or her barrister Paul Glissan to release the funds to your firm;

2. An order of the court is made to release the funds to your firm or otherwise;

3. Armstrong Legal releases us from the undertaking to hold the monies in trust.

In the event that court proceedings arise between your firm and Julie Page regarding the monies held in our trust account, we will pay the monies into court.”

68 Ms J M Napoli, the solicitor with the carriage of the matter on behalf of Cathy

and Jayde, in an affidavit sworn on 3 February 2020, disclosed that their costs

and disbursements, up to and including the conclusion of the proceedings,

were $90,000 (of which $40,000 were fees of counsel), and which estimate

was inclusive of GST and calculated on the basis of a two day hearing. No

moneys have been paid on account of those costs and disbursements.

69 At the commencement of the hearing, the parties agreed that the Court could

deal with how the burden of costs should be borne as part of these reasons.

They agreed, also, that there were no documents that would, or might, be

relevant to this issue and that what might be regarded as the usual order for

costs could be made, whatever the result of the proceedings.

70 The parties were encouraged to agree on the costs of each, calculated on the

ordinary basis, and also, so far as Cathy and Jayde were concerned, their

costs, calculated on the indemnity basis. By doing so, the court could make an

order, before costs were referred for assessment, to the effect that the party to

whom costs are to be paid is to be entitled to a specified gross sum instead of

assessed costs: Civil Procedure Act, s 98(4)(c). This would avoid any further

delay in the administration of the estate.

71 On the second day of the hearing, the Court was informed that the parties had,

in fact, agreed that the costs of Julie-Anne, calculated on the ordinary basis,

were $60,000 (including GST); that Cathy’s and Jayde’s costs, calculated on

the indemnity basis, were $90,000 (including GST); and that Cathy’s and

Jayde’s costs, calculated on the ordinary basis, were $82,500 (including GST).

72 The Court, on many occasions, has emphasised the necessity for parties to

bear in mind the proportionality of costs, the importance of making appropriate

settlement offers, and that if one wishes, or both wish, to adopt an approach

that may have the effect of reducing the value of the estate, then they should

not proceed on the basis that all of the costs and disbursements will

necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440

at [21]–[24].

73 Furthermore, s 60 of the Civil Procedure Act, which applies equally to a claim

for a family provision order, refers to “the object of resolving the issues

between the parties in such a way that the cost to the parties is proportionate

to the importance and complexity of the subject-matter in dispute”.

74 As Meagher JA (Macfarlan JA and Simpson AJA agreeing) in Squire v Squire

[2019] NSWCA 90 said of the disproportionate costs in that case at [40]:

“… the costs incurred by the parties exceed the amount of the provisions to be ordered. That is a wholly unsatisfactory outcome, having regard to the legislated objective that the parties and their advisors, as well as the court, strive to maintain proportionality between the importance and complexity of the subject matter of the dispute and the legal costs incurred in determining or resolving it. For the parties to the present proceedings, that outcome means that a significant part of the subject matter of their dispute will ultimately find its way to the lawyers. Looking at the position from the perspective of the parties, it is unfortunate and perhaps short-sighted that they have been unable to reach a resolution which would have likely meant that a significant part of those legal costs remained available to them.”

75 The problem in this is case is exacerbated even further as, at the conclusion of

the second day of the hearing, the following exchange occurred between

counsel for Julie-Anne and the Court (Tcpt, 25 February 2020, p 166(03–21)):

“HIS HONOUR: But what do you say should be the additional provision?

GLISSAN: Well, treating the future fund for private health insurances and taking that out of the equation, and if the burden was to be borne by the first defendant, it's the most logical submission I can make.

HIS HONOUR: Well I don’t know what I--

GLISSAN: 50,000 your Honour, 50,000, legacy of 50,000.

HIS HONOUR: $150,000 has been spent in legal costs to achieve a $50,000 result. That's effectively what you're putting to me.

GLISSAN: Well, your Honour--

HIS HONOUR: Anyway--

GLISSAN: --that's what I'm putting. I wish I had a different case but I don't. The evidence is as it is and I'm confined to the case as it is.”

76 It would certainly be a “wholly unsatisfactory outcome”, to use the words of

Meagher JA, if the legal costs that were incurred in the proceedings proved to

be three times the amount of provision to be ordered.

77 Yet, in the instant case, the problem is much greater. Had there been no claim

and no hearing, Julie-Anne would have received approximately $266,711 out of

the estate (being about one-quarter of the net value of the estate at the date of

hearing). In circumstances where she has proceeded with her claim, and, for

the moment, assuming that she were successful and an order made for costs

to be paid out of the estate, she would receive $229,211 out of the estate and

an additional $50,000 pursuant to an order under the Act. In such

circumstances, even if she received $50,000, by way of additional provision,

she would only be $12,500 better off than she would have been if no

proceedings were commenced.

78 That would be a simply astonishing outcome. It is rendered even more

astonishing when one considers the situation where Julie-Anne is unsuccessful

and is ordered to pay Cathy and Jayde’s costs on an ordinary basis ($82,500)

and is liable to pay her own costs ($60,000 on the ordinary basis). Julie-Anne’s

share of the estate in those circumstances is reduced to $86,711.

79 The effect of the disproportionate amount of legal costs incurred in these

proceedings was a matter of significant concern to me, and one to which I will

return below.

The rejection of the affidavit of Ms Meadows

80 On or about 24 January 2020, Cathy and Jayde filed, and served, an affidavit

of Ms M Meadows, a person with whom Julie-Anne had come in contact.

Counsel for Julie-Anne objected to the affidavit being read as it had not been

served in accordance with the Court’s earlier directions, and, in any event, had

not been served not later than a reasonable time before the occasion for using

it arose: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 10.2(1). He

submitted that he had not had a reasonable opportunity to take instructions, or

to prepare any affidavit in response. He also submitted that the contents of the

affidavit were not relevant to the issues to be determined in the case.

81 Without going into details, the affidavit related to the conduct of Julie-Anne

towards Ms Meadows.

82 I was not persuaded by counsel’s reliance on UCPR r 10.2, although it was a

matter upon which Julie-Anne was entitled to rely. In my view, and in the

circumstances of this case, one month was a reasonable time before the

occasion for using the affidavit had arisen. As to the failure to comply with

directions, arguably it had been filed in accordance with the directions, but

served one day late.

83 However, leave to read the affidavit was not granted because it raised issues

of Julie-Anne’s conduct towards Ms Meadows, which conduct, it seemed to

me, was not relevant to the issues that the Court needed to determine. While I

accept that the character and conduct of the applicant, before and after the

date of the death of the deceased person is one of the matters to which the

Court may have regard for the purpose of determining, relevantly, whether to

make a family provision order and the nature of any such order (s 60(2)(m) of

the Act), in this case, the conduct complained of, would not assist in

determining those two issues.

84 In addition, to allow the affidavit to be read, would have required Julie-Anne to

respond to it and would have necessitated her, and Ms Meadows, being cross-

examined on what each had averred respectively. Cross-examination, bearing

in mind the nature of her evidence, was likely to have been of some length,

with the consequence that it would have unduly prolonged the hearing.

85 In all the circumstances, and in accordance with the overriding purpose to

which the Court must give effect in s 56 of the Civil Procedure Act, the affidavit

was not permitted to be read.

Events prior to the hearing

86 The matter was listed in the Family Provision List (as it was then called), for the

first time, on 15 February 2019. Directions were made on a number of

occasions thereafter, until, on 17 May 2019, the matter was listed for a private

mediation which was to take place on 29 May 2019. On each of the occasions

that the matter was before me, Julie-Anne had appeared by legal

representative.

87 On 7 June 2019, Julie-Anne appeared in person and the matter was stood over

until 12 July 2019. On the next two occasions, when the matter was listed for

directions, Julie-Anne did not appear personally, or by a legal representative.

88 On 6 September 2019, whilst I was on leave, the matter came before Kunc J,

in order to deal with a notice of motion, filed on 14 August 2019, by Cathy and

Jayde, in which they sought dismissal of these proceedings for want of due

despatch. When the matter was called, there was no appearance by Julie-

Anne, and as there was evidence of service of the notice of motion, his Honour

proceeded to deal with it. He made orders as sought in the notice of motion.

89 Subsequently, at 11:55 a.m., Julie-Anne appeared. It is not necessary to

rehearse what she told his Honour on that date, but, after further discussion,

his Honour stayed the orders that he had made until 27 September 2019 or

further order. His Honour also ordered that the matter be listed for Court-

annexed mediation at 2:00 p.m. on 25 September 2019.

90 The matter was again listed before Kunc J on 13 September 2019, on which

occasion Julie-Anne appeared, albeit late, in person. His Honour stood the

matter over until 27 September 2019.

91 The mediation was listed before Senior Deputy Registrar Bellach. The

proceedings did not settle.

92 On 27 September 2019, Kunc J made directions for further evidence and stood

the proceedings over to his List on 30 October 2019. On that date, Julie-Anne

appeared, as did senior counsel for Cathy and Jayde, and his Honour vacated

the order dismissing the proceedings and dismissed the notice of motion. The

matter was then referred immediately to my List. When the matter came before

me, it was set down for hearing.

93 During the course of the hearing, without expressing any final view of the

result, the Court raised with counsel for Julie-Anne, the risks that she faced if

her Summons was, ultimately, dismissed and the usual costs orders were

made. The Court was informed that he believed that she had understood the

risks: Tcpt, 25 February 2020, p 80(27) – p 81(15).

94 It is clear, from the above history, that every effort was made by the Court to

enable the parties to resolve the proceedings.

Events after the hearing

95 Following the completion of the hearing, I formed the view that because

counsel for Julie-Anne had only been acting for her from 10 December 2019,

he may not have known of the chronology of events that had occurred before

that date as set out above.

96 I also formed the view that I should raise a matter that had not been the subject

of submissions, namely that it was not until early January 2020 that the Asquith

property was able to be sold, as Lawrence only then had vacated that property.

97 For those reasons, I listed the matter again on 26 February 2020, and both

senior counsel and counsel appeared. Subsequently, I caused a copy of the

transcript of the matters raised during the mention on that day to be provided to

each of them. In my view, it was necessary to take this unusual step because I

considered that each party should be given the opportunity to make further

submissions on the matters that I had raised and because the time available

for submissions had been extremely limited.

98 I allowed further written submissions on the basis that they would be limited to

the two aspects of the matter I had raised with counsel, first, the impact of the

inability to sell the Asquith property on the question of the costs of the

proceedings, and second, the consequences that would follow were the

Summons dismissed and Julie-Anne ordered to pay the agreed quantum of

costs namely that her provision under the Will of the deceased would be

eroded by her liability to pay the costs of the proceedings.

99 In accordance with the directions then made, counsel for both parties delivered

written submissions on 13 March 2020.

100 Senior counsel for Cathy and Jayde noted that the Defendants had offered an

inter partes undertaking to Julie-Anne on 28 February 2020 — an undertaking

ostensibly given in response to the concerns I raised with counsel on 26

February — which was in the following terms:

“The defendants undertake to the plaintiff that in the event her Summons for provision out of the estate of her late mother is dismissed and the defendants obtain an order the plaintiff pay their costs, the defendants will not seek to enforce that order until the after [sic] death of Lawrence Page and at a time when administration of his estate has reached a stage when a distribution of the entitlement of the plaintiff under the Will of Lawrence Page is due to take place. In this regard, the defendants will inform the executors named under the Will of Lawrence Page of their undertaking to the plaintiff and of the plaintiff’s obligation to pay the defendants’ costs from her entitlement under that Will.”

101 To an extent, this would improve Julie-Anne’s financial position (at least

temporarily) in the event that her claim is wholly unsuccessful. As senior

counsel for Cathy and Jayde observed, the effect of the undertaking would be

that “… the plaintiff will have more than sufficient to fulfil her intent to reduce

her residential mortgage”.

102 Counsel for Julie-Anne made an attempt to withdraw the agreement within Ex

JS1 to the value of the Turramurra property. In support of this submission, he

annexed a copy of an email sent by him to the solicitors for Cathy and Jayde. It

appears from that email that Cathy and Jayde had recently received an

appraisal of the Turramurra property that valued it at $550,000. (As is

discussed further below, senior counsel for Cathy and Jayde opposed the

placing of this email before the Court: Defendants’ Additional Submissions in

Reply at par 3.)

103 (It will be recalled that Ex JS1 reflected the agreement of the parties (at least at

that stage) that the value of the Turramurra property was $575,000. The

annexed email from counsel for Julie-Anne proposed that the parties agree to a

decrease in the value of the property.)

104 There is no evidence that any agreement was reached prior to the delivery of

submissions and no attempt has been made, on behalf of Julie-Anne, to re-

open her case in this regard. Nor was there any application seeking leave to

withdraw what was, in effect, an admission as to the value of the Turramurra

property.

105 At the time when the Court is considering Julie-Anne’s application (the date of

the hearing), the parties had agreed to the value of the Turramurra property. It

was inappropriate, and also beyond the scope of the envisaged supplementary

submissions, for counsel for Julie-Anne to attempt, after the hearing and

without the consent of the Defendants, to withdraw an admission in

submissions.

106 Furthermore, Julie-Anne receives a percentage share of the deceased’s

residuary estate, with the result that even if the value of the Turramurra

property has decreased, the other beneficiaries will receive a reduction in the

quantum of the provision made by the deceased for each of them.

107 In the circumstances, I propose to ignore the assertion made in the

submissions and continue to treat the value of the Turramurra property as

$575,000, as agreed by the parties at the hearing.

108 Additionally, counsel for Julie-Anne, by his submissions, attempted to seek

leave for Julie-Anne to withdraw from her agreement as to costs in the event

that she were unsuccessful. It had been agreed that, were Julie-Anne

unsuccessful, the usual costs order could be made: see [69] above. Counsel’s

submission was on the basis that, at the time of the commencement of the

proceedings, when the Asquith property was unable to be sold “her claim for

additional provision was then extremely strong and likely to succeed”: Plaintiff’s

Supplementary Submissions at par 7. He further submitted that, now that the

Asquith property could be sold:

“This event doubles the size of the Plaintiff’s mother’s estate and, therefore, to some extent, decreases the strength of the Plaintiff’s claim for additional provision.”

109 He also submitted, at par 10, that:

“A further event potentially affecting the strength of the Plaintiff’s claim was the tender by the Defendants, during the hearing, of a copy of the Plaintiff’s father’s Will, under which the Plaintiff receives provision. The Plaintiff had no prior access to this document, and there is no evidence that she had any prior knowledge of its contents.”

110 Finally, he concluded, at par 12, that:

“Accordingly, it is submitted that, in view of these unforeseeable events, save for the previous costs order made, the Plaintiff should not be ordered to pay the Defendants’ costs if her claim is unsuccessful, and she should have an order that her costs be paid out of the estate in that unhappy event.”

111 Senior counsel for Cathy and Jayde in his Additional Submissions in Reply

opposed any attempt by counsel for Julie-Anne to set aside the agreement

regarding costs: Defendants’ Additional Submissions in Reply at par 2.

112 Senior counsel for Cathy and Jayde also made additional submissions,

essentially reaffirming the submissions that he made at the hearing regarding

Julie-Anne’s claim for provision and the question of the burden of any provision

to be made: Defendants’ Additional Submissions in Reply at pars 4–6.

113 He also submitted that the agreement reached between the parties at the

hearing as to costs should stand. The only circumstance in which senior

counsel for Cathy and Jayde considered that the “point may be arguable” was

if Julie-Anne was to consent to a dismissal of her claim: Defendants’ Additional

Submissions in Reply at par 8. As no such consent was forthcoming, it is not

necessary for me to engage with this contention.

114 Senior counsel for Cathy and Jayde also took issue with counsel for Julie-

Anne’s submission that Lawrence’s vacation of the Asquith property effectively

doubled the size of the deceased’s estate: Defendants’ Additional Submissions

in Reply at par 9.

115 Counsel for Julie-Anne also filed Reply Submissions on 9 April 2020. For the

most part, his submissions essentially reasserted the submissions made in his

earlier supplementary submissions. To the extent that it was necessary to do

so, he made an application to reopen the evidence in order, presumably, to

tender the email between the solicitors for Cathy and Jayde and himself:

Plaintiff’s Submissions in Reply to Defendants’ Additional Submissions in Reply

at par 5.

116 As will be apparent from the length of the passages above, the supplementary

and reply submissions provided by the parties went far beyond what I had

envisaged. The submissions, particularly those of counsel for Julie-Anne,

raised a number of new issues that ought properly to have been raised by way

of an application to re-open supported by a notice of motion and affidavit in

support.

117 In allowing counsel and senior counsel the opportunity to provide further written

submissions, I had envisaged that the legal representatives would consider

certain issues that had been troubling me and that they would assist the Court

in the resolution of those issues. Instead, the parties took the opportunity to

engage in disputes about separate, and distinct, issues at a cost to the parties.

118 As stated above, there has already been a completely disproportionate amount

of costs spent in this matter. I do not propose to allow any further costs to be

incurred by an additional day, or part of a day, of hearing.

119 As I am considering making an order that neither of the legal representatives

should be permitted costs for the supplementary submissions, which as I have

written, were, virtually of no assistance, I shall relist the matter for the

determination of the costs of the written submissions and to allow an argument

on costs.

Claim for a Family Provision Order — The Statutory Scheme

120 The principles to be applied are well known and I have dealt with them in many

cases. For the benefit of the parties, I shall repeat the relevant principles.

121 Section 59(1) of the Act confers jurisdiction on the Court to make a family

provision order in relation to the estate of a deceased person if, relevantly, the

Court is satisfied as to matters, namely that:

(a) The applicant, the person in whose favour the order may be made, is an eligible person; and

(b) …

(c) At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased.

122 Thus, to justify an order for provision under the Act, the Court, relevantly, must

be satisfied that the deceased has not made “adequate provision for the proper

maintenance … or advancement in life of the person in whose favour the order

is to be made …”: s 59(1)(c). If that is established, the Court is empowered to

order such provision out of the estate as the court “thinks ought to be made” for

the identified purposes: s 59(2).

123 Importantly, the question of the inadequacy of provision is to be assessed at

the time when the Court is considering the application. This does not mean,

however, that considerable weight should not be given to the assessment of a

capable testator, who has given due consideration to the claims on her, or his,

estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis

upon which the evaluative judgment is to be undertaken is unrestricted. There

is no automatic entitlement to provision stipulated by the Act, and the

deceased’s Will applies unless a specific application is made and acceded to

by the Court.

124 Relevantly, other than by reference to the provision made by the Will of the

deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court

must determine whether the provision, if any, is inadequate for an applicant’s

proper maintenance, education and advancement in life. The question would

appear to be answered by an evaluation that takes the Court to the provision

made for the applicant in the Will of the deceased, on the one hand, and to the

requirement for maintenance or advancement in life of the applicant on the

other. No criteria are prescribed in the Act as to the circumstances that do, or

do not, constitute inadequate provision for the proper maintenance or

advancement in life of the applicant.

125 The question whether the deceased has made adequate provision for an

applicant is a question of objective fact, the determination of which involves an

evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211;

[1994] HCA 40 at [20]–[24] (Mason CJ, Deane and McHugh JJ); White v

Barron (1980) 144 CLR 431 at 434–435, 443; [1980] HCA 14 at [5]

(Barwick CJ, albeit in dissent in the result), [8] (Mason J).

126 “Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2

ASTLR 89 at 97; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA

agreeing), 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”.

127 The word “adequate” connotes something different from the word “proper”.

“Adequate” is concerned with the quantum, described by Rosalind Atherton in

“The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical

Understanding?” (1999) 5(1) Australian Journal of Legal History 5, 10, as

reached upon “a purely economic and objective basis”, whereas “proper”

prescribes the standard of the maintenance, education and advancement in

life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], 145–146

[77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which

seems to invite more subjective criteria.

128 In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR

9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing), at 19, pointed out that the

words “adequate” and “proper” are always relative and that what the testator

regarded as “superior claims or preferable dispositions” is a relevant

consideration:

“The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning.”

129 In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 at [18], Gibbs J

(as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502:

“… the 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.”

130 In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114],

Callinan and Heydon JJ wrote:

“… the use of the word ‘proper’ … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here … The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

131 The word “maintenance”, and the phrase “advancement in life”, are not defined

in the Act.

132 In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented

“‘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.”

133 In Alexander v Jansson (2010) 6 ASTLR 432 at 440 [18]; [2010] NSWCA 176,

Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]:

“‘Proper maintenance’ is not limited to the bare sustenance of a claimant … 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.” (citations omitted)

134 In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at [9], Dixon CJ

and Williams J wrote, at 575:

“The presence of the words ‘advancement in life’ in the ... Act in addition to the words ‘maintenance and education’ is not unimportant ... ‘Advancement’ is a word of wide import.”

135 In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA

agreeing) wrote:

“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 … at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams …).”

136 White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85

NSWLR 253 at 283–284 [123]; [2013] NSWSC 522, wrote, at [123]:

“The question of what level of maintenance or advancement in life is ‘proper’ depends on all of the circumstances of the case ‘including the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty’ (Singer v Berghouse (1994) 181 CLR 201 at 210).”

137 Whether the disposition of the deceased’s estate is not such as to make

adequate provision for the proper maintenance, education or advancement in

life of the applicant will always, as a practical matter, involve an evaluation of

the provision, if any, made for the applicant on the one hand, and the

applicant’s “needs” that cannot be met from her, or his, own resources on the

other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA

agreeing). This statement is not intended to suggest that an applicant’s

“needs”, when compared with the provision made for him or her, out of the

estate, should be the dominant consideration. The existence, or absence, of

“needs” which an applicant cannot meet from her, or his, own resources, will

always be highly relevant, and quite often decisive: Singer v Berghouse at 227

(Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC

1487 at [296]–[297] (Robb J).

138 As was written in Devereaux-Warnes v Hall (No 3), at [81]–[84], Buss JA (as

his Honour then was) wrote:

“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].”

139 However, as will be read, s 60 of the Act invites the Court to have regard to

various matters, including, but not limited to, financial need: s 60(2)(d). If the

Court does so, as will also be read, one of the purposes for which that is done

is for determining “the nature of any [family provision] order”: s 60(1)(b) of the

Act.

140 No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier;

William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih

Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at

[147], that “… the need a claimant must demonstrate is a need for ‘proper’

maintenance, education and advancement in life”, but that does not mean that

“… adequate provision for proper maintenance and advancement in life implies

no more than provision for the necessities of life, irrespective of the size of the

estate and the effect, if any, of an order for provision on others …”.

Respectfully, I agree.

141 Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC

432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply

mean “demand” or “desire”. The latent difference between the words was

stated by Lord Neuberger (the former President of the Supreme Court of the

United Kingdom), in the House of Lords decision, R (on the application of M) v

Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at

[54]:

“‘Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.”

142 In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at

[41], David J added:

“‘Need’ is not so synonymous with ‘want’ such that the two are interchangeable.”

143 However, no narrow view of what is encompassed by the concept of “need” is

to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 at 8, Bryson J (as his

Honour then was) commented that “[i]t does not seem possible to give a

complete or exhaustive statement of the concept”.

144 Yet, as Basten JA wrote in Chan v Chan, at [22]:

“…it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs required determination of the size of the estate and the claims of others on the beneficence of the testator.”

145 Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of

the adequacy of the provision made by the deceased “is not to be decided in a

vacuum, or by looking simply to the question whether the applicant has enough

upon which to survive or live comfortably”. The inquiry is not confined only to

the material circumstances of the applicant. Adequacy is a broader concept,

which requires consideration of matters necessary to guard against unforeseen

contingencies. The whole of the context must be examined.

146 Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v

Johnson (2015) 14 ASTLR 175 at 194 [84]; [2015] NSWCA 297, at [84], that:

“… the assessment of an applicant’s needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [12], Allsop P observed that “[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)”. That observation applies to the concept of “financial needs” embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person’s age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person’s financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act.”

147 If the Court is satisfied that, at the time when the Court is considering the

application, adequate provision for the proper maintenance, education or

advancement in life of the applicant has not been made by the Will of the

deceased, it determines whether to make an order for provision and what

provision ought to be made.

148 Section 60 of the Act 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.”

149 It can be seen that s 60(2) enumerates 15 specific matters, described by

Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012]

NSWCA 308 at [37], as a “multifactorial list”, and by Lindsay J in Verzar v

Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court

may have regard, together with “any other matter the Court considers relevant”,

for the purpose of determining whether the applicant is an “eligible person”,

whether a family provision order should be made, and if so, the nature of any

such order.

150 In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at

[7], Basten JA wrote:

“Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant ‘is an eligible person’ and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the ‘nature of any such order’, which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b).”

151 The section does not prioritise the catalogue of matters that may be taken into

account. No matter is more, or less, important than any other. The weight of

each of the matters specified in the section, which may be taken into account,

will depend upon the facts of the particular case. There is no mandatory

command to take into account any of the matters enumerated. None of the

matters listed are, necessarily, of decisive significance, and none differentiate,

in their application, between classes of eligible person. Similarly, there is no

distinction based on gender. The sub-section makes clear, since other matters

may be taken into account, that the jurisdiction is not exclusively needs-based.

Ultimately, it is for the Court to determine what weight should be given to

relevant factors.

152 Furthermore, the section also does not say how the matters listed are to be

used to determine the matters identified in s 60(1). Considering each of the

relevant matters does not prescribe a particular result, and whilst there is likely

to be a substantial overlap in the matters that the Court may take into account

when determining the answers to what is posed in s 60(1), those matters are

not identical.

153 A reference to some of the matters in s 60(2) not only permits, but requires, a

comparison to be made between the respective positions of the applicant and

any other eligible person, as well as of any beneficiary, whilst others do not.

Importantly, also, many of the matters in sub-section (2), of themselves, are

incapable of providing an answer to the questions posed in s 60(1).

154 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.

155 The Court should, and does, give considerable weight to the deceased’s

wishes in recognition of the better position in which he was placed. Of course,

this is subject to the qualification that the Court’s determination under s 59(1)

(c) and s 59(2) is to be made having regard to the circumstances at the time

the court is considering the application, rather than at the time of the

deceased’s death or will: Slack v Rogan; Palffy v Rogan at [127] (White J).

156 In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation

did not confer new rights of succession and did not create legal rights of

inheritance. Rather, his Honour explained:

“It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification.”

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

“Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”

158 As was written by White JA (McColl and Payne JJA agreeing) in Sgro v

Thompson at [86]:

“I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is ‘proper’. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.”

159 This passage confirmed that the Act is to be applied according to its terms, and

is not confined by notions of reluctance to interfere with freedom of testation.

As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon

(2019) 99 NSWLR 687 at 708 [97]; [2019] NSWCA 114 at [97]:

“The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom.”

Some Additional Principles

160 Accepting that no two cases will be exactly alike, there are some general

principles that may be stated. Whilst most of these principles were stated in the

context of the former Act, they are equally apt in a claim brought pursuant to

the Act. Other judges, and I, have repeated them in many cases under the Act.

161 The Court’s discretion in making an order is not untrammelled, or to be

exercised according to idiosyncratic notions of what is thought to be fair, or in

such a way as to transgress, unnecessarily, upon the deceased’s freedom of

testation: Pontifical Society for the Propagation of the Faith v Scales at 19

(Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

162 Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour

to achieve “an overall fair” division of the deceased’s estate. It is not part of the

court’s function to achieve some kind of equity between the various claimants.

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

“Fairness and equality are not touchstones for relief under the Succession Act.”

164 In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting

in his determination of the case, observed that the Court did not have a

mandate to re-work a Will according to the Court’s 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.” (emphasis in original)

165 Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19,

commented upon the consideration that was to be given to the deceased’s

wishes:

“The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”

166 Of course, 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 (Dixon CJ);

Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30–

31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274]

(Ward J).

167 In all cases under the Act, what is adequate and proper provision is necessarily

fact specific.

168 The size of the estate is a consideration in determining an application for

provision. However, its size does not justify the Court re-writing the deceased’s

Will in accordance with its own ideas of justice and fairness: Bowyer v Wood

(2007) 99 SASR 190 at 202–203 [41]; [2007] SASC 327 at [41] (Debelle J,

Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at

110 [67]; [2013] VSC 35 at [67] (Hargrave J).

169 The role of the Court is not “to address wounded feelings or salve the pain of

disappointed expectations” that the applicant might feel: Heyward v Fisher

(Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.

170 In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA (Beazley and

Basten JJA agreeing) noted that Singer v Berghouse:

“… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

171 However, none of the other beneficiaries named in the deceased’s Will have to

prove an entitlement to the provision made for her, or him, or justify, otherwise,

such provision. Nor does each have to explain the decision by the deceased to

make the provision that she did for each in the Will.

172 Section 65(1) of the Act requires a 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.

173 The Court’s order may require the provision to be made in a variety of ways,

including a lump sum, periodic sum, or “in any other manner the Court thinks

fit”: s 65(2) of the Act. If provision is made by payment of an amount of money,

the order may specify whether interest is payable on the whole, or any part, of

the amount payable for the period, and, if so, the period during which interest is

payable and the rate of interest: s 65(3) of the Act.

174 Section 66 of the Act sets out the consequential and ancillary orders that may

be made.

175 Unless the Court orders otherwise, any family provision order made under the

Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the

Act. As was written by Brereton J (as his Honour then was) in Liprini v Liprini

[2008] NSWSC 423 at [14], a family provision order is:

“… a unique [one] which in effect, is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect

manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such.”

Claim by an adult child

176 I have, in many cases, referred to some general principles in relation to a claim

by an adult child of the deceased. I repeat the principles that I have set out:

(a) The relationship between parent and child changes when the child attains adulthood. 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, and 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, child up in a position where she or he 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”: Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]–[110]; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing).

(c) Generally, also, “… the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime 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 parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58] (Brereton J).

(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ,

Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58].

(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). 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 at [74]–[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M).

(f) 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 (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.

177 A very similar statement of these principles, which I set out in Bowditch v NSW

Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in

Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent

disapproval (although in that appeal there was no challenge to the correctness

of those principles), in Smith v Johnson at [62] (Sackville AJA).

Qualifications on “Principles”

178 As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

“… this jurisdiction is pre-eminently one in which the trial judge’s exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.”

179 As I have stated in many cases (see, for example, Bowditch v NSW Trustee

and Guardian at [117]), I do not intend what I have described as “principles” or

“general principles” to be elevated into rules of law, propositions of universal

application, or rigid formulae. Nor do I wish to suggest that the jurisdiction

should be unduly confined, or the discretion should be constrained, by

statements of principle found in dicta in other decisions, or by preconceptions

and predispositions. Decisions of the past do not, and cannot, put any fetters

on the discretionary power, which is left largely unfettered. I do not intend what

is provided as a guide to be turned into a tyrant.

180 It is necessary for the Court, in each case, after having had regard to the

matters that the Act requires it to consider, to determine what is adequate and

proper in all the circumstances of the particular case. In addition, in each case,

a close consideration of the facts is necessary in order to determine whether

the basis for a family provision order has been established. Every case is

different and must be decided on its own facts. Cases involve different classes

of eligible person, different factual circumstances, and different competing

claims by others upon the estate of the deceased.

181 As Lindsay J wrote in Verzar v Verzar at [131]:

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

182 The importance of the qualifications to which I have referred have been

stressed in Chapple v Wilcox at [18]–[19] (Basten JA), [66]–[67] (Barrett JA,

Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329

[84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA

agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and

Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They

must be remembered.

183 But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]–[108]:

“As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox:

[19] … the real provenance of the ‘principles’ is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance

Similarly, Barrett JA explained:

[67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’ in cases of the present kind.

Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency.”

184 (In relation to Steinmetz v Shannon, I should mention that an application for

special leave to appeal the Court of Appeal decision, made to the High Court,

was dismissed upon the basis that “[t]he appeal proposed by the applicant

would enjoy insufficient prospects of success to warrant the grant of special

leave”: Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and

Keane JJ).)

185 In addition, the formulation of principles, whilst not intended to “constitute a

fetter upon the discretion not intended by the legislature”, may assist in

avoiding arbitrariness and may serve the need for consistency that is an

essential aspect of the exercise of judicial power under the Act.

Additional Facts

186 I next set out some facts, by reference to s 60(2) of the Act. Where necessary,

I shall express the conclusions to which I have come in relation to areas of

dispute between the parties. I have taken this course, not “to dwell on particular

matters as if they were, in themselves, determinant of the broad judgments

required to be made under s 59”: Verzar v Verzar, 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

187 Julie-Anne is one of two children of the deceased. The relationship was

sometimes volatile between them. In regard to Julie-Anne’s conduct, I shall,

later in these reasons, refer to her medical condition, which may, in part,

explain some of her conduct.

188 (At times in her evidence, Julie-Anne was critical of the deceased. For her part,

Cathy rejected those criticisms. However, nothing turns on this conflict. Having

read the admissible evidence given by each, and seen each give her evidence,

I tend to the view that Cathy’s description of the deceased is likely to be the

more accurate.)

189 There is evidence that Julie-Anne has used drugs and alcohol, although she

states that she did so as it “provided a temporary relief [from the] constant

pain” and that she has not used drugs or alcohol “for the past 8 years”.

190 Julie-Anne gave evidence of Bianca telling her that the deceased wished to

“make peace” before she died with Julie-Anne. Julie-Anne says that she “made

a few telephone calls to [the deceased] to her mobile. I recall these calls were

warm”.

191 Overall, I am satisfied that the relationship between them was reasonably

close, although I accept Cathy’s evidence that in the last two years of the

deceased’s life, when the deceased was unwell, Julie-Anne contacted her only

once: Tcpt, 25 February 2020, p 143(04–09).

192 As Sackville AJA noted in Foley v Ellis at [102]:

“Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time.”

193 Some time was spent on the issue of the relationship between the deceased

and Julie-Anne, but, in my view, ultimately, nothing turns on the nature of the

relationship, because in her Will, the deceased treated her two daughters the

same way. Cathy described the deceased as “a very fair mother”, who “treated

us all the same”: Tcpt, 25 February 2020, p 143(04–09).

194 The deceased clearly evinced an intention to effectively divide her estate four

ways, so that her two children, and the child, or children, of each, each

received one quarter.

(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

195 Julie-Anne asserted that the deceased “owed me the obligation of a mother to

her daughter”. I have dealt with the general principles on this topic.

196 The deceased did not have the same obligation to her grandchildren, although

it is clear that her relationship with each of them was close, loving and

supportive.

(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

197 As discussed earlier in these reasons, the value of the estate out of which an

order could be made, taking into account the costs of the proceedings, will be

in the order of $916,844. It is an estate of reasonable value.

(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

198 Julie-Anne receives a disability pension of $933 per fortnight. She says that

she receives no other income. She estimates her fortnightly expenditure at

$799, which suggests that she has surplus income of about $134 per fortnight.

199 She says, and I accept, that she has no capacity for employment.

200 Julie-Anne has assets, including her property at Tewantin, Queensland

($495,000), two cars ($2,500 and $1,000), a small amount of cash ($236) and

furniture, household and personal effects ($3,000). Of course, but for these

proceedings, she would also have had a one-quarter share of the value of the

deceased’s estate, which if the estimates prove accurate, and if there had been

no costs of these proceedings, would have had an estimated value of about

$266,700.

201 The Tewantin property is described by a real estate agent who was retained to

provide a valuation as providing “challenges from a marketing perspective”.

There is, apparently, a significant “amount and volume of ‘stuff’ in and around

the home”. However, the home “appears to be in good overall condition”. Some

work, however, is required. (Tewantin is a rural town in the Shire of Noosa,

Queensland.)

202 In addition, her financial resources include her interest as a beneficiary in

Lawrence’s estate. In Hall v Hall (2016) 257 CLR 490 at 506–507 [54]–[55];

[2016] HCA 23, French CJ, Gageler, Keane and Nettle JJ held, at [54]–[55]

(albeit in the context of family law) that:

“The reference to ‘financial resources’ in the context of s 75(2)(b) [of the Family Law Act] has long been correctly interpreted by the Family Court to refer to ‘a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency’. The requirement that the financial resource be that ‘of’ a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support …

Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.”

203 I refer to the benefits that Julie-Anne is likely to receive from Lawrence’s estate

as a financial resource because it is accepted that Lawrence cannot change

his Will. Of course, it is not known when any entitlement under his Will may

crystallise.

204 Julie-Anne has liabilities, including the amount secured by mortgage over the

Tewantin property ($111,841 as at 6 January 2020), outstanding council rates

($4,153), outstanding water rates ($2,199), what are described as “clean-up

costs” ($5,510), outstanding speeding and parking fines ($2,300) and a debt

due to Ann Campbell ($29,099). These liabilities total $155,104.

205 Julie-Anne states that her “needs” include funds to purchase spectacles

($250), an amount to pay the debt secured by mortgage ($111,841), an

amount to meet her current liabilities ($155,104, an amount that includes the

mortgage debt), an amount to carry out repairs to the Tewantin property

($77,828) an amount for dental treatment ($54,000), a lump sum to pay for

private health insurance (at $289 per month for the remainder of her life) and “a

further lump sum for future contingencies” (submitted to be about $30,000).

The total of these claimed “needs” is estimated to be $412,662.

206 Cathy gave evidence, in one of her affidavits sworn 3 February 2020, of her

financial and material circumstances. She was cross-examined on a range of

matters including her, and her husband’s, financial circumstances. In the

course of cross-examination, counsel for Julie-Anne showed her, and

subsequently tendered, a number of documents. Upon my inquiry as to the

relevance of such cross-examination, counsel submitted that it was relevant to

the issue of where the burden of any provision to be made for Julie-Anne

should lie: Tcpt, 25 February 2020, p 148(22–41). The submission made was

that the burden of any family provision order should be borne substantially, if

not wholly, by Cathy because all of the grandchildren beneficiaries are not as

materially well off as she is.

207 Cathy and her husband currently reside in a property they own in North

Turramurra. Their joint weekly income is $3,100 (gross) including

superannuation. It would appear that, at the present time, most of that income

has been generated by Cathy’s husband in the course of operating his

business. Cathy deposed that while she ordinarily works full time with her

husband in the business, she has been unable to do so of late. She was asked

questions about income that she earned from her book-keeping company, but

it was not suggested that her evidence was inaccurate.

208 The property that Cathy and her husband own in North Turramurra has a value

of $1,650,000, but is subject to a mortgage debt of $294,000. They own an

investment property in Ettalong, which has a value of $625,000, but which is

subject to a mortgage debt of $481,153, they have a joint superannuation fund

($829,000). The value of her husband’s business was not disclosed, and Cathy

was unable to provide a precise value.

209 It was also revealed, in cross-examination, that Cathy and her husband,

relatively recently, had purchased another investment property in Woy Woy.

Although Cathy was unable to provide a precise value of the Woy Woy

property, she accepted that the purchase price was about $360,000: Tcpt, 25

February 2020, p 147(16–39). It was unclear from the cross-examination

whether Cathy and her husband had taken out additional liabilities in order to

finance the purchase of the Woy Woy property.

210 In addition to the mortgage liabilities on the properties, Cathy also disclosed an

equity loan taken out against the North Turramurra property ($757,536).

211 Cathy and her husband’s annual expenditure (including mortgage repayments)

is approximately $105,560.

212 Bianca made two affidavits, in one of which she disclosed her financial

resources and needs. She was not required for cross-examination.

213 Bianca is 37 years old and currently resides in Alkimos, a suburb of Perth,

Western Australia, along with her husband and their three children. Currently,

she is studying Pilates at The Pilates Klinic in Joondalup, in Western Australia,

and additionally volunteers there one day per week. She does not currently

earn an income, however her husband earns approximately $2,300 net per

week.

214 Bianca lists, as one of her assets, the family home in Alkimos ($446,364) albeit

subject to a mortgage ($364,371). It is unclear whether she solely owns that

property, her husband solely owns it, or they own it jointly. She also discloses

that she owns a car ($38,000 with $28,000 owing), a motor bike ($6,000), a

“Reformer Pilate’s [sic] bed” ($6,000), house contents ($20,000), monies in a

bank account ($3,377), a savings account ($1,100), and has superannuation

($6,000). She also disclosed her husband’s superannuation ($60,000).

215 Bianca does not separately state her liabilities, but it is clear that there is at

least the debt secured by the mortgage over the family home, and the amount

owing on the car.

216 The annual expenditure of Bianca’s family as a whole amounts to

approximately $118,000.

217 Jayde gave evidence of her financial resources and needs. She was not

required for cross-examination. She is 26 years old and currently resides in

rental accommodation in Wollstonecraft, a suburb of Sydney, with one

housemate. She is employed as a Merchandise Assistant at a Petbarn store.

She receives an hourly rate of $24.50 and deposed that she may work

between 38 and 45 hours per week. If one assumes that Jayde works 40 hours

per week, her annual income would be in the order of $51,250 gross. Jayde’s

annual expenditure is approximately $44,000 although it is not clear whether it

allows for income tax. If it does not, then it is unlikely that her income exceeds

her expenditure.

218 Jayde owns a car (purchased for $12,250) and has approximately $469 in her

bank account. She also has monies in a superannuation account totalling

about $27,498. It is doubtful, bearing in mind her age, that her superannuation

is immediately accessible.

219 Jayde took out a personal loan ($8,159) to finance studies in an Advanced

Diploma of Business with Statement of Attainment in Fashion Design Industry

Practice. At the date of the swearing of her affidavit, Jayde had ceased these

studies and was not in a position to recommence them. Additionally, Jayde has

monies owing on a credit card ($4,476).

220 Jayde hopes to use the share to which she is entitled to pay off her liabilities

and, in the future, purchase an investment property with Cathy and Blake.

221 Blake gave evidence of his financial resources and needs. He, like Jayde, was

not required for cross-examination. He is 24 years old and resides in rented

accommodation, in Tempe, a suburb of Sydney, with three housemates.

222 Blake is currently employed on a casual basis in the entertainment industry.

His average weekly income (after tax) is $650. Additionally, he is attempting to

start his own business as a lighting technician. It does not appear that this

business, at least at the time of the swearing of his affidavit, was generating

any significant income. He gave evidence that he would like to make several

purchases for his business, including a computer and a van. Further, he would

like to travel and purchase a property but does not currently have the financial

capacity to do either.

223 Blake estimates that his annual expenditure is approximately $28,150.

However, he expects that his weekly rent will increase by about $60–$80 in the

near future.

224 Blake’s assets are limited to shares ($4,000) and superannuation ($11,526). It

is doubtful, bearing in mind his age, that his superannuation is immediately

accessible.

225 Blake has a HECS debt of $48,000 but has not yet reached the income

threshold for repayments to be made.

(e)   if the applicant is cohabiting with another person — the financial circumstances of the other person

226 Julie-Anne is not cohabiting with any other person. For a short time, she lived

in the Asquith property, with Lawrence, until his hospitalisation in January

2020.

(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

227 Julie-Anne sets out details of her medical condition. She says “I suffer from

bipolar disorder, general anxiety disorder, attention deficit hyperactivity

disorder [and] post-traumatic stress disorder”. She also admits to “a collecting-

clutter problem”. Other evidence reveals that she has “had long term

involvement with mental health services, since childhood”.

228 Many of the medical reports relied upon were from 2010 or 2011: Ex P1. The

most recent report is one dated 24 February 2020, from Dr John Smart, who

opines that she “has attended this practice intermittently since her childhood …

suffers from longstanding anxiety and is having panic attacks …”: Ex P2.

229 Another report, dated 10 March 2019, from Dr D A Kirkman, a general

practitioner, confirms the diagnosis of Adult Attention Deficit Hyperactivity

Disorder “which she has had since birth. This is a life-long psychiatric condition

which will require Julie-Anne to have life-long supervision by treating

physicians and regular supply of medication …”.

(g)   the age of the applicant when the application is being considered

230 Julie-Anne is 57 years old.

(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

231 Julie-Anne gave evidence about the transfer by her to the deceased and

Lawrence, in November 2002, a part of the Asquith property. A copy of the

Transfer, dated 15 November 2002, discloses a consideration of $200,000.

There would appear to be no dispute that at least $134,000 was paid into Julie-

Anne’s account on 15 November 2002. There is other evidence of about

$180,000 of the consideration being paid (albeit this included amounts other

than cash payments to Julie-Anne’s account).

232 Cathy gave evidence about the subdivision of Julie-Anne’s property and that

the deceased and Lawrence “saw it as a way to maximise the value” for Julie-

Anne’s benefit.

233 Subject to one matter, I am satisfied that Julie-Anne did not contribute, in any

material way, to the estate of the deceased, financially or otherwise. I am also

satisfied that she did not contribute, in any meaningful way to the welfare of the

deceased. She states, however, that she “gave up the prospect of a continued

career with Budget Rent-a- car [sic] to return home to help care for my father,

who had been diagnosed with cancer, at my mother’s request”.

234 I am satisfied that Julie-Anne has provided some assistance in caring for

Lawrence, although it is fair to say that her involvement in that care has been

relatively recent. Cathy, also, has assisted Lawrence.

235 It is clear that Cathy played a far greater role, and in the welfare of the

deceased, in the deceased’s life than did Julie-Anne.

(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

236 Julie-Anne acknowledges in par 105 of her affidavit affirmed on 9 February

2019, that between 1982 and 2015, she received provision from the deceased,

which she estimates to be $124,000.

(j)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

237 The deceased had made a Will dated 18 December 2013. In that Will, she left

the whole of her estate to Lawrence if he survived her by 30 days. (In the event

that he did not, the terms of the Will were the same as the deceased’s last Will

in relation to the distribution of her estate.) There is no evidence of any prior

Will.

238 As has been discussed earlier in these reasons, the deceased did make

provision, in her Will, for Julie-Anne. She says that the deceased said to her:

“I recall my mother had on many occasions spoken of how her assets would be distributed after she died. Some examples are as follows.

a. In 2011, Gay came to visit me in Queensland after the flooding had occurred, Gay said to me: “You and your sister will get $1 million each.”

Similar statements were made when she left my father and moved into 27A Royston Parade, Asquith in 2005.

b. In 2012, Gay said to me: “I will pay for your medical insurance for the rest of your life.”

c. In 2015, when I visited Gay in North Shore Hospital after one of her treatments for breast cancer, Gay said: “I will get your teeth attended to, and your burst breast implant sorted.” She would also make similar comments from time to time.

d. In 2016, while at Sydney airport, Gay said to me: “You will have my car, and I will clear your name for the accident. It will be good for you. Small, automatic, and hatchback for the dogs. But you must keep it clean.”

239 I have referred to the 2013 Will of the deceased.

240 It is difficult to accept these assertions of conversations with the deceased

when one reads the different Wills made by the deceased, the contents of

which provide a much clearer view of the deceased’s long held testamentary

intentions.

(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

241 Julie-Anne was not being maintained by the deceased before her death.

(l)   whether any other person is liable to support the applicant

242 There is no other person liable to support the Plaintiff. However, she is entitled

to, and does, receive the disability pension.

(m)   the character and conduct of the applicant before and after the date of the death of the deceased person

243 The details of Julie-Anne’s conduct, and the nature and quality of her

relationship with the deceased, have been discussed earlier in these reasons.

(n)    the conduct of any other person before and after the date of the death of the deceased person

244 There was no criticism of any of the other beneficiaries, or of the nature and

quality of her, or his, relationship, respectively, with, and behaviour towards,

the deceased. It is not necessary to discuss, in detail, the character and

conduct of the other beneficiaries as each is the sole chosen object of the

deceased’s bounty.

245 Julie-Anne described the deceased’s relationship with Bianca as “very close”

and says that the relationship was important to each of them, with the

deceased providing “wonderful support for Bianca”. Cathy agrees and states

that the deceased “helped Bianca financially until [the deceased’s] death”.

246 It is clear that each of Cathy, Bianca, Jayde and Blake had a close and loving

relationship with the deceased.

(o)   any relevant Aboriginal or Torres Strait Islander customary law

247 This is not applicable.

(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

248 In her affidavit in reply, affirmed on 25 October 2019, Julie-Anne lists further

provision made for her in 2016 and 2017, totalling $109,795. That provision

was made, principally, by Lawrence. (I have referred to $90,000 of this amount

paid by Lawrence in June and July 2017.)

Determination

249 Having established eligibility, and that the proceedings were commenced within

time, relevantly, the Court must determine whether, at the time the Court is

considering the application, adequate provision for the proper maintenance or

advancement in life, of Julie-Anne, has not been made by the Will of the

deceased.

250 What is written below should be read as a continuation of what has been

written above. In addition, I have had regard to the factual matters, so far as

they are relevant to the circumstances set out below.

251 When the Court approaches the question for which s 59(2) of the Act provides,

it should place itself in the position of the deceased, and consider what she

ought to have done in all the circumstances of the case. This consideration

occurs in light of the facts known at the time when the Court is considering the

application. The Court treats the deceased as wise and just, rather than as a

fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at

478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of

the Faith v Scales at 19–20 (Dixon CJ). The Court should also make allowance

for current social conditions and standards: Andrew v Andrew at [34]

(Basten JA) and, where it is considered relevant to do so, have regard to the

matters set out in s 60(2) of the Act to determine whether to make a family

provision order and the nature of any such order.

252 Having considered the matters I am required to consider, I have come to the

view that Julie-Anne has failed to establish that the deceased’s Will did not

make adequate provision for her proper maintenance, education, or

advancement in life. The test established by s 59 of the Act has regard not only

to what is “adequate” by reference to the applicant’s needs, but also to what is

“proper” in all the circumstances of the case. Furthermore, as I must, I have

regard to, and respect, the deliberate scheme of testamentary dispositions

made by the deceased as a capable testatrix is entitled to respect: Slack v

Rogan; Palffy v Rogan at [127] (White J), approved in Sgro v Thompson at

[83]–[87] (White JA, McColl and Payne JJA agreeing). As stated above, the

deceased’s decisions reflected in her Will should not merely have a prima facie

effect, the real dispositive power being vested in the Court.

253 Provision was made for Julie-Anne in the Will of the deceased meaning that

this is not a case where a child of the deceased has been entirely excluded

from participation in a parent’s estate. The provision that was made is the

same provision as the deceased made for Cathy, her other child. The

deceased also made provision for her grandchildren as set out above, with

each of whom she had a close relationship. In Cathy’s case, in particular, the

claim upon the deceased’s bounty was greater because of the nature of their

relationship and Cathy’s contribution to the deceased’s welfare. I have earlier

mentioned the relationship of each of the grandchildren with the deceased.

Accordingly, this is also not a case in which the deceased discriminated

against the Plaintiff by reason of their relationship, or otherwise.

254 The provision that was made for Julie-Anne, but for these proceedings and any

costs orders that are made, by the Will of the deceased, would enable her,

when the estate is able to be converted to cash, to pay off her debt secured by

the mortgage on her property. That would increase her disposable income and

also provide an additional sum for the exigencies of life.

255 The deceased complied with any obligation that might be said to exist to

provide a capital sum, for Julie-Anne’s maintenance and advancement in life.

By so doing, she was also ensuring that Julie-Anne would be secure in her own

accommodation, have a capital fund for exigencies of life, and also, an

increased income. In my view, the deceased was not obliged to do more.

256 Now, as a result of the proceedings that she commenced, subject to further

submissions on the question of costs, Julie-Anne may have a significant debt

which will relate to the costs that have been incurred in these proceedings. It is

difficult to conclude that the Court should make a family provision order out of

the estate of the deceased in order to ensure the payment of the costs of the

proceedings. One asks rhetorically why a wise and just testatrix, or the

application of contemporary community standards, would reasonably require

that the deceased’s Will should be altered in favour of an adult child for whom

she provided, in order to further provide for, amongst other things, the

expensive costs consequences of the adult child’s decision to bring

proceedings to effectively challenge that Will?

257 It has also been written, many times, that the purpose of the jurisdiction under

the Act is not the correction of the hurt feelings, or the sense of having been

wronged: Heyward v Fisher at 7 (Kirby P); Robinson v Tame (Court of Appeal

(NSW), Kirby P, 9 December 1994, unrep) at 13. The jurisdiction is designed to

provide for an eligible person where inadequate provision is made for her, or

his, maintenance, education or advancement in life: Permanent Trustee Co Ltd

v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).

258 In my view, this is not a case where the community would expect the deceased

to have made even greater provision than she did for Julie-Anne in all the

circumstances. Even utilising the indeterminate and unreliable concepts of

“fairness or equality”, the deceased’s Will appears to have been one that the

community would regard as a fair distribution of the deceased’s estate amongst

her children and grandchildren.

259 That conclusion does not alter even when Julie-Anne’s financial resources and

needs are taken into account. When the Court takes into account the degree to

which Julie-Anne would have been capable, by reasonable means, of providing

adequately for her own proper maintenance and advancement in life by the use

of what she had been given, one does not come to a different view.

260 Accordingly, I am not satisfied that Julie-Anne has established that adequate

provision for her maintenance and advancement in life has not been made by

the Will of the deceased. It follows that her proceedings must be dismissed.

261 Even if I were wrong in considering that the Plaintiff failed at the jurisdictional

threshold, I would not, as a matter of discretion, make any provision for her. It

cannot be forgotten that she received provision from the deceased during her

lifetime, and on her death, as well as from Lawrence, during his lifetime, and is

likely to receive additional provision on his death. There is simply no basis for a

finding, under s 59(2) of the Act, that provision “ought to be made for [her]

maintenance, education or advancement in life” beyond the provision available

to her under the deceased’s Will. In other words, the Court ought not to make

an order for additional provision out of the estate of the deceased.

262 In the circumstances, the Court orders that the Summons be dismissed.

263 I would encourage the parties to not incur further costs arguing about costs

and, if possible, to try to reach agreement on the issue. The court directs, in the

event that the issue of costs is not resolved between the parties, the matter is

to be re-listed for the purpose of hearing argument on whether the issue of the

costs of the proceedings should be determined other than in accordance with

the usual order for costs.

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