Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Evans v Levy [2011] NSWCA 125
• Hearing dates: 27 April 2011
• Decision date: 24 May 2011
• Before: Campbell JA at [1]; Young JA at [2]; Sackville AJA at [79]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: WILLS AND PROBATE- Family Provision Act s 9- purpose of section- factors warranting the making of provision- whether the primary judge erred in finding there were not sufficient factors by not taking into account the contributions of the appellant and the relationship between the appellant and the deceased- the principles in House v The King are the test for whether the judge erred- appellant failed to demonstrate error in the judge's reasons.; WILLS AND PROBATE- Family Provision Act s 32- the making of a s 32 statement by a testator referring to a person is not an implicit acknowledgment of a legitimate claim by that person on his or her bounty- such a statement only indicates that the testator expected the person to make a claim.; WILLS AND PROBATE- Family Provision Act- who is claimant on testator's bounty?- testator left estate to remote relatives and nothing to step daughter- step daughter asset rich but on partial pension- the protection of public funds is not a purpose of Family Provision legislation although the Court should not disregard the interest of the public in public funds- the testator's views should be respected unless they are contrary to community expectations.
• Legislation Cited: Family Provision Act 1982, ss 6, 7, 9, 32
• Cases Cited: Allen v Manchester [1922] NZLR 218; Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389; Durham v Durham [2011] NSWCA 62; Foley v Ellis [2008] NSWCA 288; Hill v Buckley [2008] NSWSC 1374; House v The King [1936] HCA 40; 55 CLR 499; Palmer v Dolman [2005] NSWCA 361; Re Fulop (dec'd) (1987) 8 NSWLR 679; Walker v Walker (Young J, 17 May 1996, unreported); Whitmont v Lloyd (Bryson J, 31 July 1995, unreported)
• Category: Principal judgment
• Parties: Maria Evans (Appellant); Francis Laurence Levy (Respondent)
• Representation: Counsel: G P McNally SC (Appellant); J P Lo Schiavo (Respondent); Solicitors: Matthews Dooley & Gibson (Appellant); Forbes-Smith & Company (Respondent)
• File Number(s): CA 2009/288018

Decision under appeal

• Jurisdiction: 9111
• Citation: Evans v Levy [2010] NSWSC 504
• Date of Decision: 2010-05-21 00:00:00
• Before: McLaughlin AsJ
• File Number(s): SC 1951/09

Judgment

1 CAMPBELL JA : I agree with Young JA.

2 YOUNG JA: This is an appeal from a decision of Associate Justice McLaughlin in an application brought by the present appellant in respect of the estate of the late Willem Mooy ("the deceased"), a claim made under the Family Provision Act 1982.

3 The basal facts are that the deceased died on 27 February 2008 aged 84 years. His last will and testament, bearing date 8 February 2005, was granted probate by this Court on 4 July 2008 to the present respondent, a solicitor, the executor named in the will.

4 Essentially the deceased had two assets: (a) a house property at Homebush; and (b) money on term deposit or current account.

5 As at the date of trial, the estate had been reduced to cash and there was $911,000 held on term deposit.

6 The Associate Justice accepted for the purposes of deciding matters of quantum that it was appropriate to deduct about $91,000 for costs so that he was considering an estate of $820,000 available for distribution.

7 The appellant was born overseas in 1938 and is thus presently 73 years of age. She is the step-daughter of the deceased.

8 The appellant and her mother came to Australia in 1950 and the appellant's mother married the deceased on 5 January 1951. At that stage the appellant was aged 12 and she remained a member of the same household as her mother and the deceased until her own marriage in 1965, some 15 years later. Indeed, the appellant and her husband continued to live with the appellant's mother and the deceased until they moved into their own residence in 1966.

9 The appellant adopted the surname "Mooy". She gave evidence that she addressed the deceased as "Papa" and that the deceased introduced her to others as his daughter. When the appellant married, the deceased gave her away at her wedding.

10 The appellant appears to be the only person who could be considered to be the intimate family of the deceased at the date of his death. His wife (the appellant's mother) had predeceased him in 2004.

11 The deceased's will made no provision for the appellant. It gave the totality of the estate as to one-quarter to Rebecca van Geel and three-quarters to Angelique Smeding. Both these ladies were great nieces of the deceased resident in Holland.

12 Section 32 of the Family Provision Act 1982 ("the Act") provides that notwithstanding the ordinary rules against hearsay, a statement made by a deceased person in a document may be admitted to evidence by production of the document and stands as evidence of any facts stated therein of which direct oral evidence by the deceased person would have been admissible.

13 When making his will and doubtless on the advice of his solicitor, the deceased made what was described by counsel as a s 32 statement. It is set out at p 144 of the Blue Appeal Book. The material parts of the statement are as follows:

"2. I have made the decision to omit my said step-daughter from any gift bequest or devise in my Will on the basis and for the reason that my late wife prior to her death in September 2004 and myself have been having difficulties and arguments with my said step-daughter since making Wills in October 2002, being arguments and strained relations with not only my step-daughter but with her husband ... as well. I perceive my said step-daughter to be a greedy person who has been only concerned about the monies she might receive from the assets of my late wife and myself, although she already owns three (3) parcels of real estate in New South Wales being at Kings Langley, at Toukley and a flat at Norahville [sic]. My step-daughter is in a very good financial situation; she is still employed and earning good wages. Her husband has recently sold a business for a large consideration and has more than adequate monies for himself and his wife.

3. I have decided to leave my assets to members of my family in Holland, who are in less favourable financial circumstances.

4. In view of the facts and circumstances set out in paragraph 2 above, I believe that my said step-daughter ... has been adequately and properly provided for in the monies that she has herself and in the assets that she and her husband have built up during their married life."

14 Clause 5 of the will is as follows:

"I have omitted to make any provision or gift for my daughter, Maria Evans because of the difficulties I have been experiencing with her since October 2002 and in the circumstances and more particularly set out in the Statement Pursuant to the Provisions of Section 32 of the Family Provision Act which has been signed by me on the date of this my Will."

15 The learned Associate Judge heard evidence from the appellant, her daughter Ms Brown, Ms Smeding and Ms van Geel as well as other formal evidence and the affidavit of the respondent. The s 32 statement was admitted into evidence without objection.

16 It is clear and it was clear to the primary judge, that the s 32 statement contained a number of inaccuracies, though most of these were minor.

17 One example of the s 32 statement's inaccuracy is its reference to the appellant's husband's "recent" sale of business. In fact, the sale occurred about 14 years previously and the proceeds were spent, inter alia, on paying for an overseas holiday for the deceased.

18 The learned Associate Judge analysed the case by considering:

(1) whether the appellant was an eligible person;

(2) whether she had been left without adequate provision;

(3) whether there were factors warranting the making of an order; and

(4) if an order was to be made, what order should be made.

After considering those matters, his Honour held that the application should be dismissed with costs.

19 I will briefly review his Honour's determinations of these four matters.

20 As to (1), there was no dispute that the appellant was an "eligible person" within the meaning of s 6(1)(d) of the Act.

21 As to (2), the judge determined that the appellant's then present annual income was $30,320 and that she had given evidence of her outgoings of an amount of $34,400. He found at [31] that the appellant was living in a commodious residence and noted that when the appellant was asked in cross examination whether there was "anything you are planning on doing which you cannot fund out of the money you have" the appellant responded "No". He said that, whilst that was not necessarily fatal to the appellant's claim and whilst the evidence showed that she would very much like to have $12,500 to maintain her residence and swimming pool, "it can hardly be said that the plaintiff, owning three unencumbered pieces of real estate, with a total value of almost $1,000,000, and having an income totalling in excess of $30,000 a year, has been left without adequate provision for her proper maintenance. I am not satisfied that she has been so left" ([34]).

22 As to (3), the primary judge determined that there were no factors warranting the making of an application, vide s 9(1) of the Act. I will return to this matter.

23 As to (4), his Honour accordingly determined that the appellant was not entitled to any order but that, if he were wrong on this, he would not award more than "a modest legacy, which would essentially enable the plaintiff to effect what she asserts is necessary maintenance to her residence and to her swimming pool. Any such legacy would certainly be no more than $20,0000" ([63]).

24 The appellant appeals against that decision. The appeal was heard on 27 April 2011. Mr G P McNally SC appeared for the appellant and Mr J P Lo Schiavo appeared for the respondent.

25 Although it was clear that most of the matters decided by the primary judge were discretionary judgments or were reviewable on appeal only by reference to criteria applicable to discretionary judgments, there was some initial controversy as to whether the principles in House v The King [1936] HCA 40; 55 CLR 499, 505, applied to the determination under s 9 of the Act that there were no factors warranting the making of the claim. However, at the commencement of the argument it was conceded that House v The King also applied to this matter.

26 Although those of us who deal with these matters constantly can almost recite the words of the plurality in House v The King by heart, it is useful to state the test that we must apply for the benefit of the litigants in this case. The Court of Appeal does not reverse a decision below because the majority of the judges might feel that, had they been the trial judge, they would have come to some different conclusion on the same facts. Rather, to use the language of the plurality:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

27 The notice of appeal is not the most informative document. In view of the fact that this Court's expectations as to what should appear in a notice of appeal has recently been so clearly stated (see Durham v Durham [2011] NSWCA 62 per Campbell JA at [57]), it is unnecessary to do so again. Mr McNally, in his submissions, really made six points. I will list these in summary and then note some miscellaneous points which also need to be considered before giving the result of the appeal.

28 A. The primary judge failed to take into account that the testator, by his s 32 statement, implicitly acknowledged that the appellant had a claim on his bounty.

B. The primary judge failed to take into account that the relationship between the appellant and the deceased continued up to his death.

C. The primary judge overlooked the contributions made by the appellant to the testator's accumulation of assets.

D. The primary judge also overlooked the fact that the deceased regarded the appellant as his daughter, not only while she was living in the same household, but also thereafter.

E. The primary judge should have taken into account as a relevant factor that one purpose of the Act is to shift the burden of support of an eligible person from the public purse to the deceased's bounty.

F. The decision of the primary judge to dismiss the application was so unreasonable that it bespoke error, albeit no such error could be specifically identified.

29 I then need to deal with:

G. Other relevant aspects; and

H. The result of the appeal.

30 I will deal with each of these matters in turn, using the appropriate identifying letter, but before doing so I need to briefly set out some of the factual material.

31 The appellant's principal affidavit is that sworn on 6 March 2009. It is not a particularly helpful document. It contains 257 paragraphs, but the great majority of those paragraphs contain only one sentence. While there is nothing necessarily wrong with brevity, the affidavit did not address important issues with the detail that might have been expected. I will give examples and return to some of them later:

"59. In 1960, when I was 21, Mooy, my mother and I all moved to ... Homebush.

60. To be able to purchase the property, I lent 400 pounds to my mother and Mooy to enable them to have enough savings to borrow money to buy the property.

...

63. My mother repaid the loan I had made as and when she was able to.

64. There was no interest paid on the money I lent to my mother and Mooy.

65. We moved into the property, which we then operated as a licensed boarding house.

66. I helped my mother with cleaning the rooms, making beds, ironing, and preparing meals.

67. The work I did at the boarding house was unpaid.

68. At the same time, I was working with the PMG as a telephonist.

69. I continued to work as such from 21 until I was 27 years old.

...

89. After I moved out of Homebush, my mother was not able to keep up the care of the boarding house at the same level as we had run it before.

90. Initially we had up to 7 boarders.

91. After I moved out that number dropped to 3 or 4.

...

99. My husband John carried out painting work on the ceiling of the Homebush property during the time that Mooy went to Holland for a holiday.

...

101. While Mooy was in Holland as well, John mowed the grass on a couple of occasions.

...

112. We would visit Mooy at Homebush probably every month or at three week intervals to the time when he passed away.

113. Along with John, we used to take food to Mooy's home, such as chicken curry and cake, things that could be frozen if not eaten at first.

...

121. The last time I met with Mooy was between a week and a month before he died.

122. I wasn't even aware until after Mooy had passed away, that he had gone into hospital and passed away while in hospital.

...

254. The 'recent' business sale that Mooy referred to in his statement took place in 1987, some 18 years before.

255. All the funds from that were used on our own expenses, and on sending Mooy overseas for a holiday and other expenses in that time."

32 At the time of the deceased's death, the appellant was married, but her husband died on 8 October 2009. As at that date, the appellant, together with her husband, were the joint owners of three properties: (a) their home at Kings Langley; (b) a house at Noraville; and (c) a unit at Noraville. These appear to have had, respectively, a value of $520,000, $260,000 and $210,000.

33 The appellant's income was $30,350 per year, mainly rental income, but included a pension of $6,130 and her total estimated expenses were $32,683 (Blue 34).

34 The respondent read affidavits by the two beneficiaries. Ms Smeding deposed to the fact that she had a son, Damien, on 19 December 2009 and that the father was not living with her. He had left her and did not want to have anything to do with her or his son and had also left her with debts. She was living with her mother who was going through divorce proceedings. She had no assets other than a car valued at AUD$1,200 which she shared with her mother. She received sickness and child endowment benefits from her government of about AUD$1,200 per month and her expenses ate virtually all of that up.

35 Ms van Geel described herself as a housewife. She said she did not work but her husband earned $2,248 per month most of which was spent on living expenses though she gave no indication of her assets or liabilities.

36 The only person cross examined at the hearing before the primary judge was the appellant. She was mainly asked questions about her pension and her assets. Mr Lo Schiavo, however, obtained one statement from the appellant upon which he placed considerable store. When he asked her: "At this stage of your life is there anything you are planning on doing which you cannot fund out of the money you have?" she answered "No". Mr McNally put that that was not the triumph that Mr Lo Schiavo thought it might be because it was clear from the evidence, which the primary judge accepted, that the appellant did need some funds, perhaps up to $20,000 to repair her house and maintain her swimming pool and that she also needed to have a contingency fund available for unexpected expenses that can easily occur to a septuagenarian. He submitted such in his written submissions to the primary judge.

37 Before dealing with items A to H, I should make a comment about the way in which the appellant's case was presented below.

38 I have said, both as an Equity Judge and as an Appellate Judge, and most of the other judges who have served in the Equity Division in the last 20 years have also said this on many occasions, that the Court has to be presented with adequate evidence before it can make an order under the Act. Time and time again the Court has been denied what would appear to be very basic material required to support a claimant's case. Sometimes these cases generate fees that may be difficult to justify.

39 The present case, unfortunately, seems to fall into this category. For a simple one day case, the evidence of which occupied only 19 pages of transcript, the appellant's legal bill was estimated to be $45,000 plus GST, ie $49,500.

40 The appellant wished the primary judge and wishes us, to find that she made considerable contribution to the deceased's assets. However, her affidavit merely says (at para 66): "I helped my mother with cleaning the rooms, making beds, ironing, and preparing meals". One would have expected that, if this was a serious claim by the appellant to have made significant contributions to the deceased's household, she would have provided details of what she did and how her contribution assisted the deceased. However, she did not.

41 Again, there is vagueness about the appellant's contact with the deceased. Her affidavit merely says that she would visit him every three weeks or monthly. The affidavit does not explain why she was apparently not aware that the deceased had gone to hospital until after his death. In her second affidavit the appellant exhibited some postcards and Christmas cards, but that did not take the evidence very far.

42 Mr McNally sought to defend the appellant's position at the trial by saying that no questions were asked in cross examination on these matters. But that is not surprising. A cross examiner's job is not to make out the plaintiff's case for her. If the evidence is insufficient, it may be perfectly sensible for a cross examiner not to provide an opportunity for the appellant to overcome the deficiencies.

43 Indeed, the problem goes deeper than merely giving insufficient details. The Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she did: Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA. This is because, if the witness could have gone further and provided relevant details, then the most obvious reason for not doing so was that those details could not be provided. In the instant case, the primary judge did not draw such an inference but it could have been drawn. Again, it must be said that if plaintiffs in these cases are to be properly served, the Court must be given sufficient details of the claim and sufficient evidence to back up that claim.

44 Additionally, although the primary judge did not "penalise" the appellant for this, it was clear that there were some matters stated in her affidavit which were not accurate. For example, the appellant claimed that she had lent her mother or her mother and the deceased 400.0.0. towards the purchase of the Homebush house. Contemporaneous documents showed that the amount lent was 255.0.0. It might have been thought that matters of this kind could have been verified before the affidavit was sworn, as required by good pr actice.

45 I now turn to deal with matters A to H.

46 A. I do not find it at all possible to read the s 32 statement in the way in which Mr McNally suggests. It would be clear to the most casual observer that the reason for the statement was that the deceased anticipated that his step-daughter would be making an application. He wished to defend his estate against such an application. The mere fact that someone suspects a person will make a claim in no way suggests that that person has a valid claim or was entitled to make a claim. To my mind, the fact that the deceased made the statement goes no further than that. Accordingly, I reject the first attack on the primary judge's decision.

47 B. I have already noted the paucity of the evidence as to the closeness of the relationship between the appellant and the deceased. However, she was not cross examined on this material so that it probably should be accepted that up to near the end of his life the appellant did see the deceased every three weeks or so and that on visits she may have brought him curried chicken or the like.

48 It is a bit odd because there seems little doubt that there was an issue between the deceased and the appellant's daughter (now aged 39), the daughter having complained to the appellant that the deceased had been behaving in a sexually inappropriate manner towards her. However, to a great extent this issue was a red herring. The primary judge found that he did not have material on which he could have made a determination of the facts behind the allegation and indeed, neither party asked him to do so. The existence of the allegation may be a factor which influenced the deceased to change his will, but that is as far as this matter went.

49 Perhaps I should digress here by saying that whilst the deceased's wife (the appellant's mother) was alive they made mirror wills in which each provided for the other and then for 50% to go to the woman's children or grandchildren and 50% to the man's relations. It does not appear they were mutual wills in the strict sense, but they were mirror wills. After the wife died it may be that the deceased considered that he was free to break the previous arrangement, or it may be that the allegations of the appellant's daughter affected his mind, or it may be that his view of the appellant diminished. Whatever it was really does not take one very far though the primary judge was clearly aware of the matter.

50 I return then to the question of continuity of relationship.

51 I do not consider that it is a fair assessment of the primary judge's reasons to suggest that he overlooked this matter. In [46] of his reasons, the primary judge noted that the appellant still maintained a cordial relationship, indeed one of respect, with her step-father, despite her daughter's allegations. The fact of continuity of relationship was firmly put by the appellant's counsel in his written submissions at the trial (para 27 - see Black Appeal Book p 28) and it is clear that his Honour was aware of the relationship. It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so. Apart from the provision of food and a little lawn mowing, no details were given to the Court as to the nature or depth of the relationship and it does not seem to me that the primary judge can be shown to have fallen into error on this matter.

52 C. As to contributions made by the appellant , I have already quoted from her affidavit as to the very sparse nature of the allegations as to contribution. So far as the loan, allegedly of 400.0.0. but found in fact to be 255.0.0. towards the purchase of the Homebush property, it was repaid (thoug h without interest). As to her work, there are just no sufficient details provided as to what work the appellant did. Moreover, there is nothing on the other side of the ledger - that is, the Court was not told whether the appellant paid any money to the deceased or her mother in consideration for her board and lodging. If these details are not supplied, then the Court does not draw inferences in favour of the appellant. The evidence here was not sufficient to enable the primary judge to find that the contributions that the appellant made, when considered in their net worth, did assist in building up the deceased's estate.

53 D. The reading of the judgment as a whole indicates that the primary judge was well aware that the deceased regarded the appellant as his daughter well beyond the age of 27 when she left home. The submission that the primary judge failed to take this matter into account must be rejected simply because his judgment shows that he did take it into account. The appellant's real complaint appears to be that it was given insufficient weight. Even if this were correct, it would not establish an error of the kind that vitiates the exercise of the primary judge's discretion.

54 E. It is an interesting proposition that the Family Provision Act has as one of its objects the relief on the public purse where pensioners can be provided for out of their relative's estate.

55 Mr McNally cited some dicta to support his proposition. In Whitmont v Lloyd (Bryson J, 31 July 1995, unreported), Bryson J said (at 14-15):

"The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for protection of public interests and serves public policy ... In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant to throw burdens off public funds and onto private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interests of the public in public funds ... ".

I cannot, with respect, see anything in that statement with which I would disapprove, but it does not go anywhere near a support of Mr McNally's proposition. Moreover, the proposition does not take into account at all the fact that there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates.

56 In any event, it is not an argument I find convincing that by awarding the appellant a legacy such as she seeks that therefore she would be removed from the pension. There was no evidence given by the appellant as to the precise steps she proposed to take to ensure that she would no longer receive a pension. She has been perfectly entitled to organise her affairs so as to maximise her entitlement to the pension. But there is nothing in her conduct to suggest that she would not continue to take advantage (as she is entitled to do) of the opportunities available under the Commonwealth income maintenance programs.

57 F. The argument that the result was manifestly unreasonable really amounts to no more than repeating the first five arguments and asserting there must have been an error.

58 One can see that the lay person on the Bondi bus who was told that a testator who had a daughter with over a million dollars in capital assets, who was receiving both property income and the pension and who had no dependants would think that the daughter was reasonably put to one side by a testator in favour of less fortunate relatives. It may be, one will never know, that had the appellant put before the judge details of how she assisted the deceased both in contributing to his assets and to his comforts and how close their relationship actually was, that that may have influenced that lay person and indeed, the judge, to another decision. The judge was however under no obligation to make the appellant's case out for her. She did not put those details before the court and on the details that she did deign to put before the court, the judge's decision could not be considered to be capricious or unreasonable.

59 G. The Court only deals with the way in which cases are presented to it. I have dealt with the six points that Mr McNally made as to why the judge's decision should not stand and, in my view, none of them lead to that result. It is really not necessary to go much further, but some points were raised during the argument which deserve some comment.

60 The first is the significance of s 9(1) of the Act. This subsection provides that where an application is made by a person who is an eligible person only because of para (c) or (d) of the definition, "the court shall first determine whether, in its opinion, having regard to all the circumstances of the case ... there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors."

61 In the present case, for some reason which is not clear to me, the primary judge first considered whether this was an appropriate case to make an order and then went to s 9 as a backup reason for his decision. In my view it should have gone the other way around, but that is probably of no great moment.

62 It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

63 However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.

64 On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time. That learned judge at p 681 described the draftsman's approach as poorly conceived and clumsily expressed, noting that the subsection formed no part of the draft bill produced by the Law Reform Commission. M McLelland J said at 681 that "the factors" referred to in s 9(1) are: "factors which when added to facts which render the applicant a 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased."

65 In Hill v Buckley [2008] NSWSC 1374, I said at [12] that:

"I think there is just enough evidence to get it over the barrier [ie the barrier of s 9(1)] that the plaintiff was treated like a daughter and so there are factors warranting the making of the application."

That has been quoted back at us by Mr McNally as "the fact that a step-daughter was treated like a daughter is a sufficient factor alone warranting the making of a claim: Hill v Buckley ... at [12]" (Orange Appeal Book p 12).

66 I should say two things about that submission. First, this is a prime illustration (another one is from my decision in Walker v Walker with which I will deal shortly) of taking a sentence out of an unreported decision (usually a sentence that was uttered in a fact specific decision) and elevating it into some general maxim. That is not, with respect, a logical method of proceeding.

67 Secondly, what I said in Hill v Buckley is merely an aspect of the wider proposition which is of general application and that is that if one can see that a class (d) eligible person is very close to a class (b) person, that is, that there is a relationship in loco parentis , then that goes a long way to satisfying the test in s 9(1).

68 The argument in the present case after the first few minutes, did not distinguish between propositions that were put as to why the primary judge had erred in his determination under s 9 as opposed to erring under s 7. It may be that, had there been sufficient material as to the closeness of the relationship between the deceased and the appellant so that not only did he call her "daughter" but also they behaved towards each other as father and daughter, that the judge would have found that there were factors warranting the making of the application. Indeed, he could have so determined on the material before him. The problem that the appellant has is to show that he made an error in not so determining which, on the way in which the case has been presented to us, has not occurred.

69 The other prime illustration of elevating an utterance into a maxim occurs with my decision in Walker v Walker (17 May 1996, unreported) where I am reported as saying at p 34:

"It must be remembered that the testator was far more likely to have in his mind all the details relevant to the respective claimants on his bounty than the Court which is only given such details as the parties have chosen to put before it."

70 It would have been more accurate to have put the whole of that paragraph before the Court because before the sentence which I have quoted (and Mr Lo Schiavo quoted three times) I said:

"The way in which a testator evaluated these matters is, of course, not binding on the Court when it is making a decision under the Act, but when the Court can see that there is a testator who has put his mind to the problems, and has apparently evaluated the claims carefully, the Court should respect his views and his freedom of testation unless his decision is contrary to community standards."

71 That then leads to the point that the s 32 statement contains a series of inaccuracies. That it does so cannot be gainsaid. However, it does not seem to me that any of these inaccuracies is so major as to indicate that the deceased made an operative mistake going to the core of his evaluation of his family situation.

72 So far as the beneficiaries are concerned, Mr McNally said time and time again that, with respect to one of them, there was no information at all about her assets and liabilities, accordingly, she had not demonstrated any need. This was advocate's licence. Certainly there was no evidence as to her assets, but the evidence that was there showed that she and her husband had very limited income and certainly had far less than the appellant.

73 Finally, I should mention the discussion during argument regarding the phrase "claimants on the bounty" of the deceased. This came up in argument when Mr Lo Schiavo quoted my decision in Walker v Walker at p 34: the fact that the testator was far more likely to have the details "relevant to the respective claimants on his bounty" than the Court. The phrase has a long history. There is the well known passage of Salmond J in Allen v Manchester [1922] NZLR 218 at 220 where his Honour referred to a testator considering "the relative urgency of the various moral claims upon his bounty".

74 Again, in this Court in Palmer v Dolman [2005] NSWCA 361 at [115], Ipp JA said that, apart from two people, "none of the other beneficiaries nominated in the deceased's will had any claim on his bounty or demonstrated need". Sackville AJA picked this up in Foley v Ellis [2008] NSWCA 288 at [88] where his Honour spoke about the fact that one cannot assess an applicant's case "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 ".

75 These cases seem to say that "the claimants on the deceased's bounty" which he or she should take into account when making a will (and the Court should take into account when making an order) include those who have a moral claim on his or her bounty. To put it in a more secular fashion, that is in language not dependent on evaluation explicitly by moral standards, they are those whom the community would expect the deceased to take into account when contemplating making a will. I do not think that it necessarily follows that a named beneficiary is disqualified from being a "claimant on the bounty" just because he or she was named as a beneficiary for subjective reasons by the testator. For instance, the person may have done the deceased a favour or, as in this case, may be a distant relative seen to be living in humble circumstances and for this reason, was in fact considered by the deceased to be a person who had a claim on his or her bounty. It is probably unwise to take this thought any further.

76 H. This Court must assess this case on the basis of the arguments put before it as to whether the primary judge committed such errors as would entitle this Court to interfere with his decision under the principles of House v The King . For the reasons given above, it is my view that the appellant has not so demonstrated error and accordingly, the appeal must be dismissed with costs.

77 I regret this decision in some respects. Here we now have a 73 year old lady who may well be faced with a bill of over $100,000 in legal costs when it is possible that, had more detailed evidence been adduced on her behalf at the trial, a different result may have ensued. I must add that this Court does not have the material available to make a clear judgment on why the case was presented in the way it was.

78 However, in the result, in my view, the appeal must be dismissed with costs.

79 SACKVILLE AJA : I agree with Young JA.

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Decision last updated: 24 May 2011