Supreme Court New South Wales

• Medium Neutral Citation: Lawrence v Martin [2014] NSWSC 1506
• Hearing dates: 22 and 23 October 2014
• Decision date: 31 October 2014
• Jurisdiction: Equity Division
• Before: Hallen J

Decision

(i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive, out of the estate of the deceased, a lump sum of $350,000.

(ii) Order that the lump sum provision made for the Plaintiff be paid out of the residuary estate.

(iii) Order that no interest be paid on the lump sum if it is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment.

(iv) Order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

(v) Liberty be granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

(vi) Order that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

(vii) Directs that the Court Books be returned.

• Catchwords: SUCCESSION - FAMILY PROVISION - Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendants are children of the deceased by a prior marriage to whom administration of the deceased's Will granted - No provision made in the Will of the deceased for the Plaintiff - Whether family provision order should be made and, if so, the nature and quantum of the provision to be made
• Legislation Cited: Family Provision Act 1982 (NSW); Probate and Administration Act 1898 (NSW); Statute Law Amendment Relationships Act 2001 (Vic); Succession Act 2006 (NSW); Succession Amendment (Family Provision) Act 2008 (NSW); Uniform Civil Procedure Rules 2005 (NSW); Wills Probate and Administration Act 1898 (NSW)
• Cases Cited: Alexander v Jansson [2010] NSWCA 176; Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959; Allen v Manchester [1922] NZLR 218; Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656; Aubrey v Kain [2014] NSWSC 15; Auckland City Mission v Brown [2002] 2 NZLR 650; Bartlett v Coomber [2008] NSWCA 100; Belfield v Belfield [2012] NSWSC 416; Bladwell v Davis 2004] NSWCA 170; Boettcher v Driscoll [2014] SASC 86; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Butcher v Craig [2009] WASC 164; Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928; Chen v Lu [2014] NSWSC 1053; Clifford v Mayr [2010] NSWCA 6; Collins v McGain [2003] NSWCA 190; Cooper v Dungan (1976) 50 ALJR 539; Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201; de Angelis v de Angelis [2003] VSC 432; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127; Diver v Neal [2009] NSWCA 54; (2009) 2ASTLR 89; Flathaug v Weaver [2003] NZFLR 730; Foley v Ellis [2008] NSWCA 288; Forsyth v Sinclair [2010] VSCA 147; Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep); Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435; Goodman v Windeyer (1980) 144 CLR 490; Goodsell v Wellington [2011] NSWSC 1232; Gorton v Parks (1989) 17 NSWLR 1; Graham v Graham [2011] NSWSC 504; Grey v Harrison [1997] 2 VR 359; Hampson v Hampson [2010] NSWCA 359; Hillman v Box (No 4) [2014] ACTSC 107; Horton v Simmons (Supreme Court (NSW), McLaughlin M, 30 July 1997, unrep); Hyland v Burbidge [2000] NSWSC 12; In the Estate of the late Anthony Marras [2014] NSWSC 915; Kay v Archbold [2008] NSWSC 254; Kembrey v Cuskelly [2008] NSWSC 262; Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep); Luciano v Rosenblum (1985) 2 NSWLR 65; Marcuola-Bel Estate, Re; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182; Marinis v Jeweller [2000] NSWCA 282; Marshall v Carruthers [2002] NSWCA 47; Mayfield v Lloyd-Williams [2004] NSWSC 419; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; McKenzie v Topp [2004] VSC 90; O'Loughlin v O'Loughlin [2003] NSWCA 99; Palaganio v Mankarios [2011] NSWSC 61; Phillips v James [2014] NSWCA 4; Pogorelic v Banovich [2007] WASC 45; Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9; Puckridge, Deceased, In the Estate of, (1978) 20 SASR 72; R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808; Re Meier (deceased) [1976] 1 NZLR 257; Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425; 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; Schmidt v Watkins [2002] VSC 273; Sellers v Scrivenger [2010] VSC 320; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; Sitch (deceased), Re the Will of; Gillies v Executors of the Will of Sitch [2005] VSC 308; Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59; Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep); Stott v Cook (1960) 33 ALJR 447; Szypica v O'Beirne [2013] NSWSC 297; Taylor v Farrugia [2009] NSWSC 801; Tobin v Ezekiel [2012] NSWCA 285; Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56; Verzar v Verzar [2012] NSWSC 1380; Verzar v Verzar [2014] NSWCA 45.; Vidler v Ivimey [2013] NSWSC 1605; Vigolo v Bostin (2005) 221 CLR 191; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); West v France [2010] NSWSC 845; West v Mann [2013] NSWSC 1852; Wilcox v Wilcox [2012] NSWSC 1138; Williams v Aucutt [2000] 2 NZLR 479
• Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths); Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5
• Category: Principal judgment
• Parties: Julie Anne Lawrence (Plaintiff); Antonio Feliciano Martin (first Defendant); Daniel Martin Rodriguez (second Defendant)
• Representation: Counsel: Mr R Wilson SC (Plaintiff); Mr H Altan; Mr N Avery-Williams (Defendants); Solicitors: L Rundle & Co Solicitors (Plaintiff); Atkinson Vinden (Defendants)
• File Number(s): 2013/268422

Judgment

The Claim

1 HIS HONOUR: These reasons relate to proceedings in which the Plaintiff, Julie Anne Lawrence, seeks a family provision order pursuant to the Succession Act 2006 (NSW) ("the Act"), upon the basis that she is a person who was living in a de facto relationship with Jose Averol Martin-Rodriguez ("the deceased"), at the time of his death. 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 an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. (The Plaintiff does not seek to designate any property as notional estate of the deceased.)

2 The Plaintiff commenced the proceedings by Summons filed on 4 September 2013, that is, within the time prescribed by the Act (within 12 months of the deceased's death).

3 The Defendants are Antonio Feliciano Martin (referred to as "Tony") and Daniel Martin Rodriguez, each of whom is a child of the deceased by his prior marriage. They are the administrators of the deceased estate to whom Letters of Administration with the Will annexed were granted.

4 Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, and any other persons to whom reference is made, after introduction, by her, or his, name as identified in the proceedings.

One preliminary matter

5 I should mention that the affidavits filed by each of the parties are littered with criticisms of the opposing party, or parties, and the repetition of incidents involving one, or other, of them. The Court Book, which included a copy of the affidavits, contained over 500 pages (not all of which were narrative affidavits).

6 Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]:

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

7 It has been said, more than once, that it is inappropriate that proceedings under the Act should be used as a vehicle to satisfy personal emotions or to criticise the conduct of other members of the family: Horton v Simmons (Supreme Court (NSW), McLaughlin M, 30 July 1997, unrep). In particular, the court is not assisted by voluminous affidavits which traverse, often irrelevantly, the minutiae of what is alleged as the conduct of the parties, towards each other and to the deceased.

8 As Wild CJ observed in Re Meier (deceased) [1976] 1 NZLR 257, 258:

"Though conduct and family relationships may in some cases well have relevance I think it appropriate in this case to recall that from the early days of the family protection jurisdiction the court has disapproved attempts by litigants to blacken each other's character - See, for example, Hoffmann v Hoffmann (1909) 29 NZLR 425, 428, per Sim J. Allegations and counter-allegations about petty incidents which occurred years before the date of death are generally unlikely to advance anyone's case and when, as in this case, it is sought to support them by affidavits from neighbours they may merely deepen rifts in the family and dishonour the memory of the testator. Counsel and solicitors bear a responsibility to their clients as well as the court in this respect."

9 In addition, in Williams v Aucutt [2000] 2 NZLR 479, at [71]:

"It is a comparatively rare case where denigrating the character and motives of a family member will assist the cause of another in the eyes of a Judge trying a family protection proceeding."

10 Each of these passages were cited, with approval, in Auckland City Mission v Brown [2002] 2 NZLR 650. Also see my reasons for judgment in Graham v Graham [2011] NSWSC 504.

11 There was, in this case, as said, much evidence about alleged incidents, many of them petty, which did little to advance either side's case. While, in all probability, it would not have been necessary to burden these reasons by traversing the allegations and counter-allegations, the time spent on taking instructions for, and preparing, these affidavits, undoubtedly, would have increased costs.

12 Mercifully, at the commencement of the hearing, when this matter was raised, the legal representatives, sensibly, agreed that it would not be necessary to cross-examine on these aspects of the affidavits, because each of the parties was now prepared to accept, for the purposes of the hearing, that the deceased's relationship with each party was a close and loving one.

13 The hearing then proceeded with the reading of the evidence filed. There were only a few objections to parts of the affidavits that needed to be ruled upon. The cross-examination of each of the parties then occurred. Neither of the solicitors, whose affidavit, or affidavits, of costs was read, was cross-examined. Finally, counsel for each of the parties made oral submissions speaking to his outline of written submissions, which are retained in the court file. The estimated duration of the hearing was one day plus, and the proceedings were concluded within one day.

Formal Matters

14 The following facts are uncontroversial.

15 The deceased died on a date between 31 May and 1 June 2013. He was then aged almost 63 years, having been born in July 1950.

16 The deceased married Maria Do Rosario Martin-Rodriguez in 1971. They remained married until September 1999 when the decree nisi of the dissolution of their marriage, granted in early August 1999, became absolute. There were two children of their marriage, being Tony, who was born in January 1974 and Daniel, who was born in November 1979.

17 The deceased left a Will that he made on 2 June 1978. By that Will, the deceased left the whole of his estate to Maria but, in the event of her predeceasing him, to such of his children as survived him and attained the age of 20 years.

18 Section 13(1) of the Act revokes beneficial dispositions to a testator's former spouse. However, although the section applies to a will made before 1 March 2008, it does not apply if the decree absolute of dissolution of the marriage occurred before that date. In this regard, Clause 3(9) of Sch 1 of the Act provides that s 13 "extends to a will made before the commencement of this clause, if the divorce or the annulment of the marriage occurs on or after the commencement [of the Act]". As the decree absolute of dissolution of the marriage between the deceased and Maria occurred in September 1999, s 13 of the Act has no application.

19 However, s 13 of the Act corresponds with s 15A of the former Wills Probate and Administration Act 1898 (NSW), which section has been repealed. That section applies to a will made before 1 March 2008, whether the testator died before, on, or after that date, and the marriage was terminated before that date: Clause 3(6) of Sch 1 of the Act.

20 The effect of s 15A is that the will takes effect as if the former spouse had died before the testator: s 15A(1)(c). There being no evidence of intention not to revoke or republish the deceased's Will, by a will or codicil, after termination of his marriage, the deceased's estate passes to Tony and Daniel in equal shares.

21 On 30 August 2013, this court granted Administration with the deceased's Will annexed, to Tony and Daniel, as beneficiaries under the Will, the marriage between the deceased and Maria, the instituted executor, having been terminated by the Family Court of Australia, and Luis Soares, the substituted executor, having renounced Probate.

22 The Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was attached to the Administration document, stated that the property owned solely by the deceased, in New South Wales, at the date of his death, had an estimated (or known) gross value of $1,667,617. The deceased's estate was said to consist of real estate in Belfield, Sydney ("the Belfield property") ($715,000), an amount due under a contract for sale of another property at Belfield ($756,000), monies in banks, or financial institutions, on deposit ($54,174), two cars ($4,250 and $5,050 respectively), an amount due under a workers' compensation claim lodged in December 2012 ($24,044) and proceeds of a claim for fire damage ($109,099). (I have omitted, and shall continue to omit, any reference to cents, which explains what may appear to be mathematical errors.)

23 There was jointly held property in New South Wales, in which the deceased held an interest, at the date of his death, also disclosed in the Inventory of Property, being the deceased's interest as joint tenant, with Julie, in land at Ashbury, New South Wales, and moneys in a bank account held by the deceased and Daniel ($10,416) which was said to be beneficially owned by Daniel.

24 Liabilities of the deceased's estate, at the date of death, were disclosed at $305,081. There were two secured debts over the Belfield properties owned by the deceased ($101,543 and $200,197 respectively), the outstanding cost of repairs to one of the Belfield properties ($968), and motor vehicle registration expenses of each car ($1,418 and $955 respectively).

25 There was also identified, in the Inventory of Property, another property held outside New South Wales, on the island of La Palma, Canary Islands, Spain, being real property which the deceased owned with a person thought to be his brother-in-law, Maximo Rodriguez Rodriguez. That property has been valued at approximately 20,000 Euros (AUD$30,000).

26 The deceased also held two superannuation policies, one with C-Bus ($98,850) and one with Colonial First State Wholesale Pension and Superannuation ($362,465). At the hearing, there was no dispute that Julie received, by way of death benefit, $229,061 (although the figure provided in her affidavit was $229,053). Similarly, there was no dispute that each of Tony and Daniel received $129,498 from the proceeds of the superannuation policies.

27 Because of the size of the actual estate, the parties agreed that it is unnecessary to designate the proceeds of the superannuation that has been disbursed as notional estate, but that those amounts should be taken into account as property received by each of the parties, respectively, following the death of the deceased.

28 In relation to the property overseas, counsel for the Defendants submitted, in writing:

"Property owned jointly by the deceased with another person in the Canary Islands in Spain has been the subject of some correspondence between the parties. That property has been valued at approximately 20,000 Euros (AU$30,000). However, it is established law that property situated overseas is in any event governed by the lex situs. The Canary Islands property is therefore clearly not an asset of the estate for the purposes of these proceedings."

29 However, the existence of property of the deceased overseas "may nonetheless inform the extent to which those having claims on the deceased's testamentary bounty have received, and will receive, provision, and thus what order should be made in respect of assets within the jurisdiction [cf Taylor v Farrugia [2009] NSWSC 801, [26]]. They also provide an asset to which [the executor] can resort to meet the estate's costs, and thus can be relevant to what order is made in respect of costs [cf Taylor v Farrugia, [26], [74]]": Chen v Lu [2014] NSWSC 1053, per Brereton J, at [75].

30 At the commencement of the hearing, the parties agreed that the gross value of the deceased's estate in Australia, at the date of the hearing, was $1,292,559. That value was calculated by reference to the estimated current gross value of the Belfield property ($875,000), cash held ($373,875), two cars ($9,250), shares ($4,434) and the balance of the proceeds of the workers' compensation claim ($30,000).

31 The parties also agreed, as the Belfield property must be sold, that the costs and expenses of sale ($20,500), being real estate agent's commission ($13,000), advertising expenses ($5,000) and legal costs ($2,500), should be taken into account.

32 They also agreed that there is a contingent liability of the estate ($28,500), claimed in respect of the Belfield property owned by the estate, which should be considered in determining the net value of the property in Australia.

33 In calculating the value of the actual estate, finally available for distribution, the costs of the present proceedings should also be considered, since Julie, if successful, normally, will be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendants, as the persons representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

34 The Plaintiff's solicitor, Ms P G Suttor, in an affidavit sworn on 17 September 2014, estimated Julie's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the ordinary basis, to be about $94,551 (inclusive of GST and upon the basis of a two day hearing). At the hearing, it was put that those costs would be $5,000 less in the event that the case finished within one day.

35 It is acknowledged, in the written submissions filed on behalf of Julie (but not in the affidavits), that Julie has paid $63,489 on account of her costs and disbursements to her solicitors. If an order for her costs is made, some, or all, of the costs and disbursements that she has paid will be reimbursed to her, with the result that her financial and material circumstances will be improved. In this case, the payment will increase the capital amount that she has available to her to meet exigencies of life.

36 Julie's submissions did not take into account the likelihood of the reimbursement. I shall take into account the likely reimbursement of some part of that amount in considering her financial and material circumstances.

37 The Defendants' solicitor, Ms C Watson, in an affidavit affirmed on 19 September 2014, estimated the costs and disbursements of the Defendants of the proceedings, including counsel's fees, calculated on the indemnity basis, to be $91,010 (inclusive of GST and upon the basis of a two day hearing).

38 In another affidavit, affirmed on 21 October 2014, Ms Watson stated that a substantial amount of work had to be done to prepare the case for hearing since her previous affidavit. She stated that the Defendants' costs of the proceedings which had been paid totalled $97,172. She estimated that an additional amount of $10,000 was yet to be paid. This estimate was, subsequently, acknowledged to be incorrect.

39 In a third affidavit, also affirmed on 21 October 2014, Ms Watson stated that the costs and disbursements were $112,200 (based upon a one day hearing) and $118,700 (based upon a two day hearing). She then stated that the Defendants had paid $82,739, and not $97,172, as previously stated in the earlier affidavit affirmed on the same day. (She provided no explanation for the errors in her previous affidavit.)

40 (The amount that has been paid on account of the Defendants' costs and disbursements has been paid out of the deceased's estate.)

41 At the commencement of the hearing, the parties agreed that the correct amount yet to be paid by the Defendants on account of their costs and disbursements is $29,461 ($112,200 less $82,739).

42 The parties then agreed that, in the event that Julie is successful, the usual order for costs may be made. Naturally, if the parties are unable to reach agreement on the quantum of costs to be paid out of the estate, it will be for an assessor to determine the appropriate quantum.

43 It follows that, if, from the gross estate ($1,292,559), costs are to be paid, and if the costs estimates prove accurate (in total being $119,012), and if the costs and expenses of sale of the Belfield property ($20,500) and the contingent liability ($28,500) are also deducted, the net value of the deceased's estate in Australia, available for distribution, will be about $1,124,547. It is, on any view, an estate with a value of modest, but not inadequate, proportions.

44 The parties agreed that the only eligible person who has commenced proceedings under the Act is the Plaintiff. Of course, Tony and Daniel, as a child of the deceased, is each an eligible person. Neither has commenced proceedings in New South Wales. However, together, they are entitled to the whole of the deceased's estate. Accordingly, the court will not disregard the interest of each as a beneficiary.

45 Maria, the former wife of the deceased, is also an eligible person. It is accepted that property settlement orders were made in the Family Court pursuant to which the deceased and Maria agreed to share, equally, the proceeds of the sale of their family home at Clontarf, Sydney. That property was sold in 1997 and the proceeds of sale shared in accordance with their agreement. She is, of course, the mother of Tony and Daniel.

46 There is the suggestion that two of Julie's children, Benjamin John Lawrence and Kristy Anne Lawrence, are also eligible persons, but there is no evidence that either was wholly, or partly, dependent upon the deceased. (Julie suggests that each was a member of a household of which the deceased was also a member.)

47 There is evidence that, in November 2013, each of Maria, Benjamin and Kristy was sent, by registered post, a notice of Julie's application and of the court's power to disregard her, and his, interests, respectively. In the circumstances, I propose to disregard the interests of each, since she and he has not made an application for a family provision order.

48 Annexed to one of the affidavits of Tony is a copy of a typed document, dated 24 August 2012, the original of which was signed by the deceased. It appears to have been created for the purposes of a workers' compensation claim that the deceased then had. There are a number of assertions in the statement to which reference should be made:

(a) "I am in a de facto relationship and have two independent children. My partner is independent."

(b) "I was born in Spain... I migrated to Australia in 1969 at the age of 19."

(c) "On 27.9.11 I was terminated from my employment because [my employer] did not have any more light duties."

(d) "I felt depressed and under a lot of stress. I was concerned about my health and my future."

The Statutory Scheme - The Act

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

50 The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

51 The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

52 Relevantly, in this case, Julie relies upon the category of eligibility referred to in s 57(1)(b) of the Act. There is no dispute that she is a person with whom the deceased was living in a de facto relationship at the time of his death. Accordingly, she has the status to bring proceedings under the Act.

53 Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

54 Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [6]:

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

55 Basten JA, at [26], put the differences this way:

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

56 Barrett JA, at [82] - [86], said:

"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.

First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.

Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person 'either during the person's lifetime or out of the person's estate' was to be examined upon the initial inquiry into adequacy.

Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.

The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

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

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

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

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

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

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

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

63 The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

64 In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated:

"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

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

"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

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

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."

67 Master Macready (as his Honour then was), in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep), said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

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

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

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

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

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

"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."

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

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

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

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

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

74 In Pontifical Society for the Propagation of The Faith v Scales (1962) 107 CLR 9, Dixon CJ at 19 commented:

"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."

75 In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

76 In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:

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

77 Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He said, at 12:

"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied..."

78 In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

79 His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

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

80 Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70].

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

82 In Collins v McGain, Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

83 In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

84 "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

"'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'."

85 In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added:

"'Need' is not so synonymous with 'want' such that the two are interchangeable."

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

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

88 In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

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

90 However, Basten JA, in Andrew v Andrew, said of the two stage process referred to:

"29. The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was 'inadequate', followed by a discretionary exercise of determining what would be adequate and what should in fact be done.

...

41. As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

91 In Andrew v Andrew, Allsop P, at [6], said:

"Whether the process engaged in by the Court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."

92 Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:

"65. This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.

...

79. First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was 'satisfied' in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'.

80. Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), 'such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.

81. Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:

(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws;

(b) to form an opinion of the adequacy of that provision;

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and

(d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2).

...

94. As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

93 I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2014] NSWCA 45.

94 (Also, since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew. I also refer to what has been written by Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)

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

96 Section 60 of the Act, at least in part, is new. It provides:

"(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

97 It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

98 Beazley P, in Phillips v James, at [51], described s 60(2) as involving:

"... a statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focussed direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the Court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."

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

100 In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote:

"Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.

Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'".

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

102 It does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.

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

104 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).

105 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.

106 This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210:

"... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

107 And by the comments of Callinan and Heydon JJ, in Vigolo v Bostin, at 230-231:

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

108 As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]:

"... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws.

It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."

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

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the court.

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

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

112 Thus, the practical effect of an order is to alter the provisions of a deceased person's will.

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

114 Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

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

Other Applicable Legal Principles - Substantive Application

116 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.

117 Bryson J noted, in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.

118 In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

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

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

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

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

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

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

123 Of testamentary freedom, in Grey v Harrison, at 386, Callaway JA said:

"... It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take properties from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the widest terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."

124 In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], 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."

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

"The court does not simply ride roughshod over the testator's intentions. The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."

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

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

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

128 How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36].

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

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

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

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

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

134 In relation to a claim for a family provision order by a person living in a de facto relationship with the deceased at the date of his, or her, death, the following principles are also relevant.

135 In Luciano v Rosenblum (1985) 2 NSWLR 65, at 69-70, Powell J (as his Honour then was), wrote:

"It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."

136 The "broad general rule" may be applicable a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182, per Palmer J, at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6, at [142]-[144].

137 However, in Marshall v Carruthers, at [73] - [74], Young CJ in Eq (as his Honour then was), commented:

"It must be remembered that Powell J put his proposition as a 'broad general rule'. However, there is in fact no 'standard former spouse' to which one can just apply that proposition as a rule of thumb.

Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue."

138 In Bladwell v Davis [2004] NSWCA 170, Bryson JA, who had reviewed the authorities stated, at [19]:

"In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits."

139 Ipp JA added, at [2]:

"I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."

140 Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there also remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers at [63]; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]; West v France [2010] NSWSC 845, at [66]; Vidler v Ivimey [2013] NSWSC 1605, at [125].

141 Ward J (as her Honour then was) referred to many of the authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added:

"Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: 'Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and 'regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts' (para 19)".

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

143 In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]:

"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]."

144 Naturally, making comparisons of the quantum of orders in different cases provides little, if any, assistance in the determination of this case.

Further Additional Facts

145 I set out the additional facts I am satisfied are either not in dispute or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], 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

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

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

148 In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928, at 931, agreed:

"Granted that 'family' is not limited to cases of a strict legal familial nexus... It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-', or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

149 As stated, Julie was living with the deceased in a de facto relationship, at the time of his death. They had met in 1994 and formed a friendship. They began a relationship in August 1994. Each was then married. Julie and her husband separated in January 1995. The deceased separated from Maria in 1996 and the dissolution of their marriage was finalised in 1999. Throughout this time, the relationship between the deceased and Julie continued.

150 The deceased and Julie moved in together in September 1996. They remained living together until the deceased's death about 16.5 years later. There is nothing to suggest that, but for his untimely death, the relationship would not have lasted indefinitely into the future.

151 With the proceeds of her, and his, respective property settlement, Julie and the deceased, in 1998, purchased, as joint tenants, a home at Croydon Park for $296,000. It appears that he contributed about $216,000 whilst she contributed $100,000.

152 In 2002, the Croydon Park property was sold for $440,000 and the Ashbury property was purchased by them as joint tenants for $590,000.

153 Both contributed financially to their joint expenses although it is clear that, in relation to personal expenses, each paid from his, or her, own income.

154 I am satisfied that Julie and the deceased enjoyed a close and loving relationship as de facto partners. They travelled extensively both within Australia and overseas.

155 In his later years, the deceased suffered from ill health, particularly in his legs. He suffered an episode of deep vein thrombosis in 2000. Julie provided significant care and support during his ill health. In 2007, for example, she took three months off work to assist the deceased following an operation on his leg.

(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

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

157 This matter may require a balancing of potentially competing obligations as between different applicants or, as here, as between an applicant and the other beneficiaries named in the Will of the deceased.

158 As Julie was living in a de facto relationship with the deceased at the time of his death, an obligation or responsibility to make adequate provision for her proper maintenance or advancement in life is recognised: see, for example, Forsyth v Sinclair [2010] VSCA 147, per Neave JA, at [89]. The obligation or responsibility naturally arises from the de facto relationship.

159 As Harper J, in Schmidt v Watkins [2002] VSC 273, at [22], concluded (quoting Statute Law Amendment Relationships Act 2001 (Vic) s 1(2)):

"Generally speaking ... a 'domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner' would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility."

160 In relation to Tony and Daniel, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a child (whether natural or adopted). In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation that underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

161 In comparing the respective obligations, Davies AJA, in O'Loughlin v O'Loughlin [2003] NSWCA 99, delivered the leading judgment and observed, at [20]:

"Courts give more attention to the needs of a widow than they do to the needs of the children, if the children are adult and well able to support themselves. This point was made clear by the remarks of Lord Romer in Bosch v Perpetual Trustee Company Limited which I have cited above. There are many dicta to the same effect. In Worladge v Doddridge (1957) 97 CLR 1, Williams and Fullagar JJ said at 11:

It is clear that the claim of a widow, where the estate is of considerable value, and there are no competing claims of children, should not be disposed of in any niggardly manner. She is entitled to such a provision for her maintenance and support as the court or judge thinks proper and 'proper' is a word which, as the Privy Council pointed out in Bosch's Case lets in all the considerations there adverted to."

162 In this case, there is a real question of the competing claim, particularly, of Daniel. I shall refer to the reasons why he has a competing claim, which is a real one, later in these reasons. This is not to say that Tony, also, does not have a competing claim. It is just that the parties appeared to agree that Daniel's claim was the more significant one of the two adult sons of the deceased.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

163 I have earlier identified the nature and extent of the deceased's estate and the liabilities or charges to which the estate is subject.

(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

164 At the present time, Julie's assets may be set out as follows:

(a)	The Ashbury property	$1.5 - $1.55 million
(b)	Investment Unit at Belfield	$490,000 - $575,000
(c)	Cash at Bank	$ 18,409
(d)	Superannuation	$168,257
(e)	2006 Toyota Corolla	$ 8,200
(f)	Household contents	$ 5,000
(g)	Shares	$ 4,010

165 I have earlier referred to the amount ($63,489) that Julie has paid her solicitors, some portion of which should be recovered if a costs order in her favour is made (as it will be). Whilst there will be some difference between her indemnity costs and the ordinary costs that she recovers, a reasonable part of the amount that she has paid should be reimbursed to her.

166 As to Julie's liabilities, there are two secured debts, one on the Ashbury property ($78,054) and one on the investment property ($431,344). In addition, Julie has other unsecured debts ($5,898).

167 Currently, Julie works full time as a payroll manager earning $7,400 per month gross. She is concerned that her employment is not secure. Her current employer has recently acquired a business and 50 extra staff including payroll staff. She is concerned about her ability to continue working full time into the future. She has recently, unsuccessfully, sought to reduce her working hours. In addition, Julie receives rent from the investment property ($1,863 per month). Thus, her gross monthly income is $9,263.

168 Julie's estimated total monthly expenses, which include the mortgage repayment on the Ashbury property ($1,391) and the costs and expenses of the investment property ($2,974), are $9,823. Thus, there is a shortfall of about $559 per month.

169 (There was no cross-examination of Julie on her expenditure. However, I note that her monthly expenditure includes "salary sacrifice" ($200), costs of clothing and shoes ($303), "grandchildren's activities" ($130), entertainment ($433) and income tax ($1,807).)

170 The evidence suggests that, during the lifetime of the deceased, he did not contribute to any of Julie's personal expenditure.

171 Julie seeks a sum sufficient to discharge the mortgage on each of the Ashbury property ($78,054) and the investment property ($431,344). She also seeks a fund to enable her to take early retirement and to provide her with an income until she becomes eligible for the aged pension. Senior counsel did not submit how the lump sum should be calculated, although he stated that such an amount would enable her to seek assistance with household duties, 2 to 4 hours per week, which her physical limitations prevent her from performing properly.

172 She also seeks a sum to enable her to carry out what she asserts are necessary repairs to the Ashbury property, the estimated cost of which she outlined as follows:

(a)	Painting	$13,750
(b)	Repair/sand floors	$ 5,280
(c)	Ceiling insulation	$ 4,285
(d)	Termite treatment	$ 3,700
		$27,015

173 She also stated that she needed to replace her current car ($35,506) as she has difficulty driving a manual transmission due to her ongoing neck and shoulder pain.

174 Finally, she seeks a sum to be available to her to provide a buffer or as a contingency fund ($150,000).

175 Senior counsel rounded these "needs" to a lump sum of $660,000, which he submitted would provide adequate and proper provision for Julie.

176 Tony is married to Carolina Olivares-Martin. They have two young children. Carolina works part time as a teacher receiving a total package of $31,022 per annum including superannuation. He is a civil engineer and qualified project manager. On 31 March 2014, he was made redundant from his then employment. Until a week or so ago, he was receiving a NewStart allowance of $468 per fortnight.

177 Tony gave oral evidence that he has recently obtained work under a three-month contract as a project manager. He earns $65 per hour gross and works no more than a 35 hour week. (He is only paid for the number of hours he actually works.) He is employed casually, which he says means that he is not entitled to holiday pay, sick leave, or any loadings, although his employer does contribute to his superannuation.

178 Tony and his wife jointly own a home unit at Dee Why, which is subject to a mortgage ($174,002). On 14 November 2013, the mortgage was $301,574 but it was reduced using the superannuation payments received from C-Bus and Colonial First State. (Some renovations were done to the home unit as well.)

179 There was a dispute about the current value of the Dee Why unit. He asserted that it had a value of $515,000, but other evidence tendered by Julie, being a notification of the sale of a comparable unit in the same building for $671,000, suggests that it may have a greater value.

180 Tony has superannuation of $109,419. His wife has superannuation of $8,025.

181 There is a HECS debt of $81,738 (although some, or all, of it may be owed by Carolina).

182 Tony says that any provision made for him, from the deceased's estate, would be used to carry out further renovations to his home and to support his family. (Relevantly, Tony's daughter, Ada, has a speech impediment for which she receives specialist treatment.)

183 Daniel is a tradesman who, for the last ten years, has been repairing and installing blinds. He lives in rented premises close to Tony in Dee Why.

184 As at 28 February 2014, Daniel had disclosed assets of $18,075 but he has since received payments from C-Bus and Colonial First State Super estimated to be, after tax, about $129,498. He has spent a very small part of this amount. (Daniel did not swear any affidavit setting out his current financial and material circumstances, but there was no suggestion that those had changed in any material way.)

185 As at 28 February 2014, Daniel had no liabilities.

186 Daniel has a history of bi-polar disorder. This, however, has not prevented him from maintaining his long term position as a blind installer and repairer. In addition, he has other medical conditions, the symptoms of which fluctuate. It is fair to say that he cannot be regarded as fully able-bodied, although he has been able to work. He says that his medical "incidents have affected [his] work from time to time". He also states "...[a]t times, I have been absent from work for up to 2 months at a time" but says "my employer has always supported me". It is to his credit that he has been able to hold down steady employment.

187 Daniel says that provision from the deceased's estate would be used to enable him to secure accommodation including, perhaps, towards a deposit on a home.

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person

188 Julie is not cohabiting with any 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

189 Julie appears to be in reasonable health although she does have some medical problems. She suffers from some disabilities in her left shoulder, following a dislocation, in 2009, which was treated surgically. There is nerve root entrapment in her cervical spine, at C3/C4. She also has back pain, due to arthritis, and ongoing neck pain, for which she wears a neck brace. She is claustrophobic. Her doctor suggests that treatment might be with anti-inflammatory medication but does not recommend such medication at the present time.

190 Julie also sees an ear, nose and throat specialist regarding severe nosebleeds. She may require surgery to treat this condition.

191 Julie says that, since the death of the deceased, she has also suffered from depression and anxiety. Since February 2014, she has had regular counselling with a clinical psychologist.

192 There is no suggestion that Tony suffers from any physical, intellectual or mental disability.

193 In October 2013, Daniel was diagnosed as suffering from rheumatoid arthritis. He suffers, also, from "widespread polyarthritis at MCP, PIP joints, both wrists, both shoulders, both knees, both ankles and the MTP joints of his feet". He is prescribed a variety of arthritis medications however he has suffered side effects including "skin rashes, blurred vision, nausea, diarrhoea, mouth sores and headaches".

194 Daniel has asthma and is short-sighted.

195 I have earlier referred to Daniel's history of bi-polar disorder. The evidence is that his disorder can be "characterised by grandiose delusions, poor sleep, agitation and elevated mood". However, his last admission to hospital for bi-polar was in early 2011.

(g) the age of the applicant when the application is being considered

196 Julie was born in January 1955 and is almost 60 years of age.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

197 The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor. In Goodman v Windeyer, Gibbs J wrote, at 497 - 498:

"One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon CJ in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided."

198 Contributions are broadly defined to include monetary, as well as non-monetary, contributions. The Act does not suggest that a financial contribution is of greater value than a contribution to the welfare of the deceased or his, or her, family.

199 I am satisfied that Julie made a significant contribution to the welfare of the deceased. It is acknowledged that, during their relationship, she provided care and companionship to the deceased. In addition, they were clearly interdependent financially, at least so far as their joint expenses were concerned, and it is unlikely that either could have accumulated the property that he, and she, did whilst they were in a relationship without the other.

200 The manner in which they contributed is also important. Julie gave evidence of them conducting a joint bank account from which most of their joint expenses would be paid. However, each had a separate bank account in her, and his, own name from which personal expenses were paid.

201 Importantly, it seems to me, the evidence given by Julie makes it clear that the costs and expenses of the investment property, or properties, which each solely owned, were paid by each individually. I infer that neither contributed to the costs and expenses of the other so far as it related to the investment properties.

(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

202 There was some provision made for Julie as a result of the deceased's death. I have referred to the amount that she received from the proceeds of his superannuation ($229,061). In addition, as a joint tenant, she survived to his interest in the Ashbury property. Currently, as stated, it has a value of about $1.5 million. It follows that, flowing from the death of the deceased, Julie has received property, which, in other circumstances might have formed part of the estate of the deceased, with a value of almost $1.0 million.

203 In addition, Julie accepts that, on their first trip to Spain together, the deceased paid the expenses. (However, Julie paid for some of their holidays in Australia. Since death, she has also paid about $3,000 to enable the cars owned by the estate to be registered.)

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

204 The deceased expressed an intention to leave his estate to Tony and Daniel which intention he communicated directly to each of them. He told each that he wished to leave them with "a house each" and that, if something happened to him, "you boys will have something to help you out."

(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

205 I have identified the way in which Julie and the deceased conducted their financial affairs. Whilst it may not be that the deceased directly maintained Julie, I do consider that there was financial interdependence between them, at least so far as joint expenses were concerned.

(l) whether any other person is liable to support the applicant

206 There is no other person with a liability to support Julie.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

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

208 I am satisfied that there is nothing in Julie's conduct not already referred to, before, or after, the death of the deceased, which is relevant. I have earlier referred to the concession made by Tony and Daniel regarding Julie.

(n) the conduct of any other person before and after the date of the death of the deceased person

209 In relation to the deceased, I am satisfied that there is nothing in the conduct of either Tony or Daniel that is relevant. I have earlier referred to the concession made by Julie regarding Tony and Daniel.

(o) any relevant Aboriginal or Torres Strait Islander customary law

210 This is not relevant.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

211 There is one other matter that I consider relevant. It appears that Julie may have been a victim of a fraud which resulted in her making payments totalling $88,740 to a stranger. Her investigations, to date, have led her to conclude that she is unlikely to recover any of the amounts that she paid to him.

212 This is a relevant circumstance that the court should take into consideration because her financial and material circumstances have been worsened because of the alleged fraud. It is not necessary to rehearse the circumstances in which the alleged fraud was perpetrated but Julie's own involvement in enabling it to occur should not be ignored.

Determination

213 Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person.

214 In this case, there is no dispute that Julie was living in a de facto relationship with the deceased at the time of his death. Accordingly, she is an eligible person under s 57(1)(b) of the Act.

215 There is also no dispute that Julie commenced the proceedings within the time prescribed by the Act.

216 Having established eligibility and that the proceedings were commenced within time, relevantly, the first question for determination is whether, 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.

217 Even though Julie was left with no provision out of the estate of the deceased under the Will, that, on its own, does not, automatically, lead to a finding of inadequacy: Allen v Manchester [1922] NZLR 218, at 221-222. However, the fact that no provision has been made by the Will would enable the court more readily to find that adequate provision had not been made: Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56, at [8]; Hillman v Box (No 4) [2014] ACTSC 107, at [352].

218 Counsel for Tony and Daniel maintained, throughout the proceedings, that adequate and proper provision had been made for Julie. It is a submission which I have no hesitation in rejecting.

219 Taking into account all the matters, including such matters as the length, nature and quality of the relationship between the deceased and Julie; her character and conduct; circumstances relating to what once was called the "station in life" of the parties and the expectations to which that has given rise, or in other words, reciprocal claims and duties based on how the parties lived and might reasonably have expected to live in the future; her present and reasonably anticipated future needs; her own capacity and resources for meeting those needs; the size and nature of the estate and any relevant distributions of property that may have been designated as notional estate; the nature and relative strengths of the competing claims for testamentary recognition; and any contributions made by Julie to the property or to the welfare of the deceased, I am satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of Julie.

220 Age and state of health are factors to which, under the Act, the court may have regard. At the date of hearing, the Plaintiff is not an "able-bodied adult" in the sense that the expression is usually used in connection with family provision litigation. She is not, in this respect, someone who will be able to earn enough by her own exertions to provide for her needs into the future: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82]. She has no reasonable prospect of improving her income now or in the future; her health is somewhat precarious; and she may face the prospect of increasing costs of living associated with ageing and ill health. She is also likely to stop working in a few years with the result that her income will be significantly reduced.

221 Furthermore, the court cannot decide the question of the adequacy, or inadequacy, of the provision made in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. The word "proper" in the collocation of words in the section of the Act is of considerable importance.

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

223 Yet, I must not forget that in Marinis v Jeweller [2000] NSWCA 282, the Court (comprising Mason P, Giles JA and Rolfe AJA), wrote, at [26]:

"... We would reject the appellant's submission that adequate provision by a deceased person requires the deceased to ensure that an eligible person must be provided for to such a level as would ensure that his or her available assets are not reduced in consequence of the death and that the eligible person should not be obliged to re-arrange or re-organise his or her available assets."

224 I turn then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the applicant having regard to the facts known to the court. The order should be no more than is necessary to make adequate provision for her proper maintenance and advancement in life. Furthermore, I must take into account the right of the deceased to dispose of his property as he did in his Will, as well as the position of the chosen objects of the testamentary bounty of the deceased, namely Tony and Daniel, each of whom is his son.

225 As stated, the submission made by senior counsel for Julie was that she should receive a capital sum of $660,000. I have earlier identified his submission regarding what such a lump sum would provide.

226 On the other hand, counsel for Tony and Daniel submitted that, even if the court did not accept the principal submission (which I have stated I do not), I should dismiss the Summons bearing in mind what Julie has already received and what she currently has. Alternatively, counsel submitted that the repayment of the mortgage due on the Ashbury property would be adequate and proper since it would ensure an additional income of $1,391 per month. She would also have a solely owned home that was unencumbered.

227 I do not accept either counsel's submission on the quantum of the provision that would be adequate and proper. For example, senior counsel's submissions require the estate to bear a burden that the deceased himself did not bear during his lifetime. He simply did not contribute to Julie's personal expenditure or the expenditure on Julie's investment property. Furthermore, the provision sought ignores what Julie has already received following the death of the deceased, and, if made, would also significantly impact on the available funds to meet the obligations owed by the deceased to Tony and to Daniel.

228 As importantly, the submissions of counsel for Tony and Daniel do not take into account the fact that the relationship of Julie and the deceased was a reasonably long one, that they had a close and loving relationship, and that Julie is coming towards the end of her working life.

229 I am satisfied that some provision should be made for Julie out of the estate of the deceased and that the provision should be expressed in terms of a lump sum. In my view, having considered all of the circumstances, Julie should receive, out of the estate of the deceased, a lump sum of $350,000. She may use that lump sum in any way that she chooses. For example, she could use $78,000 to repay the debt secured on the Ashbury property. That will immediately reduce her monthly expenditure by about $1,391. The balance, taken with the other assets she has, or will have after reimbursement of the costs that she has paid, (say, $320,000 in total), invested at about 3.5 per cent per annum (the rate identified by her senior counsel) would increase her income by about $935 (gross) per month.

230 Alternatively, if so advised, she could repay a part of the amount secured on her investment property with the result that her monthly payments might be reduced. There would be sufficient to carry out the repairs to the Ashbury property that she says are necessary.

231 Because there is sufficient cash in the estate to enable the payment of the lump sum, the lump sum should be paid within 14 days; otherwise, interest calculated from that date, at the rate prescribed by s 83A(3) of the Probate and Administration Act is to be paid.

232 There was no dispute that the usual costs order for each party should be made.

233 I make the following orders:

(i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, that she receive out of the estate of the deceased, a lump sum of $350,000.

(ii) The lump sum provision made for the Plaintiff shall be paid out of the residuary estate.

(iii) No interest be paid on the lump sum if it is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment.

(iv) The Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, shall be paid out of the estate of the deceased.

(v) Liberty be granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

(vi) The Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

(vii) The Court Books be returned.

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Decision last updated: 31 October 2014