Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Andrew v Andrew [2012] NSWCA 308
• Hearing dates: 14 June 2012
• Decision date: 28 September 2012
• Before: Allsop P at [1]; Basten JA at [22]; Barrett JA at [62]

Decision

(1)Allow the appeal and set aside the orders made in the Equity Division on 4 and 11 March 2011.

(2)In lieu thereof -

(a)order that further provision be made for the plaintiff out of the estate of Rita Melba Andrew deceased such that the plaintiff has, in lieu of the legacy of $10,000 provided for in the will of the deceased, a legacy of $60,000, with the additional $50,000 to be provided:

(i)as to $35,000 out of moneys to which Michael Robert Andrew would otherwise be entitled under the will;

(ii)as to $5,000 out of moneys to which Jennifer Annette Smith would otherwise be entitled under the will;

(iii)as to $5,000 out of moneys to which Lisa Gae Andrew would otherwise be entitled under the will; and

(iv)as to $5,000 out of moneys to which Tracey Lee Andrew would otherwise be entitled under the will;

(b)order that the defendant pay the plaintiff's costs.

(3)Order that the respondent pay the appellant's costs in this Court.

(4)Grant liberty to the respondent to seek an order from the trial judge that his costs be recoverable out of the estate of Rita Melba Andrew deceased.

(5)Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

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

• Catchwords: SUCCESSION - application for family provision order under Part 3 Succession Act 2006 - comparison of that legislation with former Family Provision Act - whether new legislation requires departure from approaches adopted under former legislation - testatrix with five children gives small legacy only to one daughter and makes more extensive provision for other children - long estrangement between testatrix and daughter concerned - evaluative decision to be made by the court - observations on need for order to reflect community values
• Legislation Cited: Administration and Probate Act 1958 (Vic), s 91; Anti-Discrimination Act 1977 (NSW); Family Provision Act 1982 (NSW), ss 7, 9; Inheritance (Family and Dependants Provision) Act 1972 (WA).; Succession Act 2006 (NSW), ss 57(1), 59, 60; Supreme Court Act 1970 (NSW), ss 75A, 101(2)(r); Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW); Testator's Family Maintenance Act 1916 (NSW)
• Cases Cited: Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471; Andrew v Andrew [2011] NSWSC 115; DAO v The Queen [2011] NSWCCA 63; 278 ALR 765; Coates v National Trustees, Executors and Agency Co Ltd [1956] HCA 23; 95 CLR 494; Collicoat v McMillan [1999] 3 VR 803; Diver v Neal [2009] NSWCA 54; Durham v Durham [2011] NSWCA 62; Evans v Levy [2011] NSWCA 125; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89; Foley v Ellis [2008] NSWCA 288; Ford v Simes [2009] NSWCA 351; Golosky v Golosky [1993] NSWCA 111; Goodman v Windeyer [1980] HCA 31; 144 CLR 490; Hampson v Hampson [2010] NSWCA 359; Hastings v Hastings [2010] NSWCA 197; Hertzberg v Hertzberg [2003] NSWCA 311; House v R [1936] HCA 40; (1936) 55 CLR 499; In re Allen; Allen v Manchester (1921) 41 NZLR 218; In Re Hodgson, deceased (1955) VLR 481; Kearns v Ellis (New South Wales Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unreported); Keep v Bourke [2012] NSWCA 64; Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1; McCarthy v McCarthy [2010] NSWCA 103; Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27; Palmer v Dolman [2005] NSWCA 361; Permanent Trustee Co Ltd v Fraser (1995) 38 NSWLR 24; Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales [1962] HCA 19; 107 CLR 9; Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100; Singer v Berghouse [1994] HCA 40; 181 CLR 201; Smilek v Public Trustee [2008] NSWCA 190; Stott v Cook (1960) 33 ALJR 447; Vigolo v Bostin [2005] HCA 11; 221 CLR 191; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; Wheatley v Wheatley [2006] NSWCA 262
• Texts Cited: A Dickey, Family Provision after Death (Sydney: Law Book Co, 1992); Benjamin N Cardozo, The Nature of the Judicial Process (New Haven; Yale University Press, 1921); New South Wales Law Reform Commission in Report 110 - Uniform Succession Laws: Family Provision (May 2005); paragraph 2.61; R Pound, The History and System of the Common Law (New York: Collier, 1939)
• Category: Principal judgment
• Parties: Lynne Christine Andrew - Appellant; Michael Robert Andrew - Respondent
• Representation: Ms E A Cohen - Appellant; Mr L J Ellison SC/Mr D Liebhold - Respondent; Camden Haven's Local Lawyer - Appellant; MCW Lawyers - Respondent
• File Number(s): 2010/00059123

Decision under appeal

• Citation: Andrew v Andrew [2011] NSWSC 115
• Date of Decision: 2011-03-11 00:00:00
• Before: Hallen AsJ

Judgment

1 ALLSOP P: This is a difficult case. The difficulty arises from the need to apply a statutory test couched in evaluative language embodying human values and norms of conduct deeply personal to those involved and often incapable of clear expression. The human expression of will concerning the disposition of property flowing from considerations of emotion (including love and disappointment), reason and societal and family obligation cannot often be fully understood.

2 The facts are fully set out in the reasons of Basten JA and Barrett JA. Their comprehensive discussion of the primary judge's reasons and the facts enable me to direct myself solely to my reasons for agreeing with the orders proposed by Basten JA.

3 The history of testator's family maintenance legislation need not be described here. It is sufficient for present purposes to understand that the formulation of a uniform succession law throughout the Australian states and territories was considered by the Law Reform Commissions of New South Wales and Queensland for the Standing Committee of Attorneys General ("SCAG") in the late 1990s and early years of this century. The Queensland Law Reform Commission accepted responsibility for co-ordination of the uniform succession laws project. I will return to parts of this work in due course.

4 It would be remiss of me to commence these reasons without an acknowledgement of the detail, thought and care embodied in the primary judge's reasons. Notwithstanding my respectful view that his Honour erred in one respect, the care and skill of the expressed reasons made agreement with Barrett JA, who finds no error in the primary judge's approach, an initially attractive course. Nevertheless, like Basten JA, I do perceive an error in his Honour's approach. In respect of the re-exercise of the evaluative exercise in the nature of a discretion, I would make the orders he proposes.

5 An illumination of, and warning about, the correct approach to the meaning and application of the Succession Act 2006 (NSW), Chapter 3 and in particular ss 59 and 60, can be drawn from what was said by Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 at 76,304, to which both the primary judge and Basten JA have referred.

6 I agree with Basten JA that the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character. Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]. The terms of the new Act are to be applied. The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59.

7 The estrangement of the appellant and her parents, relevantly, for present purposes, her mother, lies at the heart of this case. It is unexplained on the evidence. Sometimes such distance is easily explicable; here it is not. How a parent deals with an adult child in such circumstances will lead inevitably to the relevance or not of notions of moral duty or claim. Inevitably in such a case, the rhetorical question is asked: Why should a mother leave anything to an adult daughter who has drifted away over a long period and become estranged? The word "should" in the question embodies various suppressed premisses based on parental, filial and moral duties. If no articulation can be made as to why any parental duty recognised by society has been breached, why should the Court intercede and interfere with the expressed testamentary wish? This is especially so if the statute is to be construed or, perhaps more accurately, applied in a manner described by Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71] and by the primary judge at [149], as set out in Basten JA's reasons.

8 The relevance or helpfulness of "moral duty" and "moral obligation" and of the well-known statement of Salmond J in In re Allen; Allen v Manchester (1921) 41 NZLR 218 at 220-221 was doubted by Mason CJ, Deane J and McHugh J in Singer v Berghouse at 209 in respect of the Family Provision Act 1982 (NSW), ss 7 and 9. Such expressions, their Honours said, "may well be understood as amounting to a gloss on the statutory language." That view has been the subject of criticism, both judicial: Collicoat v McMillan [1999] 3 VR 803 at 815-824 per Ormiston J and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at 202 [21] per Gleeson CJ, and non-judicial: A Dickey, Family Provision after Death (Sydney: Law Book Co, 1992) at 77-78. It has also received support: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29-31 (per Kirby P), at 45-47 (per Sheller JA), but see Handley JA at 36; and Vigolo at 212-219 [56]-[75] (per Gummow and Hayne JJ).

9 If we were dealing with the Family Provision Act, the statement of a majority of the High Court in Singer v Berghouse, even if obiter dicta, would be viewed as binding and to be followed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 150-51 [134].

10 The controversy generated by the above passage from Singer v Berghouse was discussed by the Law Reform Commissions. In its report in December 1997 to SCAG on Family Provision, the National Committee for Uniform Succession Laws (inaptly named given the participation of the New Zealand Law Commission) directed itself to "moral duty and moral claim" in Chapter 4. That chapter was concerned with "adequate provision" for "proper maintenance". At pp 56-61, the Committee surveyed the debate arising out of this part of Singer v Berghouse. At pp 65-67, the Committee set out its decision on adequate provision for proper maintenance. As to "moral claim" and "moral duty", the Committee referred at p 66 to its drafting instructions which in this respect were as follows:

"The moral claim and moral duty, which are the bases of the family provision scheme, should not be spelt out in the model legislation although they are reflected in the list of matters which the National Committee has recommended should be taken into account in determining whether the deceased person owed the applicant 'special responsibility' and whether adequate provision has been made by the deceased person for the applicant.

There may be a danger in further legislating the duty/claim factor, in that courts may feel restricted in their application of their very wide discretion because of the wording of the provision. Further, it would not be possible to legislate for the circumstances in which the Court should consider a moral claim - most cases will be different, and common perceptions of what gives rise to a moral claim for provision may change over time.

There is no longer any need to have a separate provision in family provision legislation to enable the Court to take character and conduct into account. The character and conduct of the applicant both before and after the death of the deceased person may be relevant to the Court's determinations relating both to 'special responsibility' and to whether or not adequate provision has been made for the eligible person by the deceased person. For those reasons the issue of character and conduct has been included in the list of matters that the National Committee has recommended the Court take into account when deliberating on these issues".

11 Thus, the Committee's views were that moral notions infused and informed the Court's task. So much can be accepted from the words "proper" and "ought" and the legislative, social and judicial history of this type of legislation. As the Committee implied, reducing or distilling such moral and community values that infuse the whole evaluation to a discrete expression of "moral duty" might be to risk distraction from the broader evaluative statutory task by a restrictive focus upon duty and co-relative right. In this respect, the reasons of Gummow and Hayne JJ in Vigolo at 214-215 [59]-[61] illuminate by reference in particular to Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 at 20; Windeyer J in Stott v Cook (1960) 33 ALJR 447 at 455; and Fullagar J in Coates v National Trustees, Executors and Agency Co Ltd [1956] HCA 23; 95 CLR 494 at 522-523, the danger of linguistic distillation of permeating considerations into a "moral duty".

12 Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular "proper" and "ought". That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted. Customary morality develops "silently and unconsciously from one age to another", shaping law: Benjamin N Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at 104-5. The relationship between law and morals or morality depends, of course, on the context of the enquiry: see for example R Pound, The History and System of the Common Law (New York: Collier, 1939) at 16-21. As Gleeson CJ said in Vigolo at 204 [25], the language of the statute is "general but value-laden", operating in connection with "community standards" that will see it given "practical meaning", that is, to the people and community who and which the law serves.

13 The values or morality of a civil society underpin or inform, at different levels and in different degrees of abstraction, law at all levels including interpretation of legal (including statutory) rules, evaluative assessment of standards (legal and factual) and discretionary judgments. To the extent that values are expressed by Parliament, they are interpreted and given limits and contours by the courts. Parliament may prescribe relevant factors to be taken into account, but community values are not the monopoly of Parliament. Ultimately they belong to civil society itself, to be ascertained or discerned by courts, whether by interpretation of statute or by the expression of the general law, when the application of judicial power requires it: cf Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27 at 42. Such does not obtain only in homogeneous or static societies. Diverse, tolerant and democratic societies governed by law and justice must, even more so, reflect the binding coherence of shared values and assumptions. Difficulty from time to time in accurate contemporaneous expression of such values and assumptions lessens not the need for the values or assumptions to be recognised or applied.

14 In a broad evaluative judgment based necessarily upon community values, the task should be expressed broadly and not by precise rules, lest particular rules or duties expressed by reference to one age's values come to distort later evaluative assessments by the imposition of the earlier age's rules and values.

15 The list of considerations in s 60(2) encompasses many, if not most, considerations likely to be of relevance to the resolving of the broad evaluative task.

16 If I may respectfully paraphrase Sheller JA in Fraser at 46, 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 perceived prevailing community standards of what is right and appropriate, ought be made. This, Sheller JA said, referring to Mahoney JA in Kearns v Ellis (New South Wales Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unreported), 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 the application 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 is another consideration which 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.

17 In my view, the learned primary judge introduced a consideration that does not lie within the words or purpose of the relevant provisions. The notion expressed by the primary judge at [149] that the Act should be administered in a way to "maintain the integrity of the process", if elevated to an operative principle, does not find its source in the Act. Of course, as Dixon CJ said in Pontifical Society v Scales at 19 and as Bergin CJ in Eq said in Ford v Simes at [71], there may well be cases where a testator is entirely justified in making no provision for an adult child. To express the matter, however, as an operative consideration as "maintaining the integrity of the system" would be to deflect consideration from the circumstances of the case at hand and the application of the words of the statute. I do not read Bergin CJ in Eq in Ford v Simes at [71] as doing more than emphasising the evaluative choice made in that case, or introducing any principle of entitlement or right of the parent and justification by the offspring.

18 In [149]-[152] of his reasons, the learned primary judge appears to have approached the matter by recognising a species of legal right ("the entitlement") of the testator to make no provision if love and support are withheld "unjustifiably" over a period of many years. This is to concentrate or distil a complex life-long relationship into encapsulated rights of testamentary power and the need of the claimant to justify her conduct. To the extent that it is derived from Pontifical Society v Scales it is the impermissible formation of principle or rule from a particular factual assessment of circumstances by reference to human and societal values. Even accepting it as an approach, like Basten JA, its fulfilment in this case is more than doubtful.

19 That is not to say that in conducting the assessments in ss 59(1) and (2) estrangement, the reasons therefor, an absence of love, hostility, resentment, and carelessness of the hopes and wishes of another are not all apposite matters for consideration. That enquiry should not, however, be structured or approached by reference to justification in order to displace a testamentary "entitlement" or right in respect of an adult child.

20 It is necessary in these circumstances that the Court make its own evaluation for the purposes of s 59.

21 The circumstances of the appellant are set out in the reasons of Basten JA and Barrett JA. It can be inferred that the testator knew that the appellant was not well-off. It cannot be concluded, however, that she knew of her daughter's particular circumstances which reveal a chronic lack of funds, the undertaking of human and social responsibilities for the care of a child in need of family, the inability to see her son because of lack of money and the lack of ability to fund her own medical and health needs. Her need for assistance was real, and able to be met to some degree from a modest estate otherwise shared by siblings in more secure circumstances in a way that would not cause hardship to them. Given the fact of estrangement and not hostility, it is not to be supposed that if the testator had known and appreciated all the circumstances of the appellant, including the detail of the appellant's lack of means, her responsibilities to a young foster child and her inability to see her own adult son through lack of funds, that she would have closed her bounty to her daughter, even if estranged. I would make the orders suggested by Basten JA.

22 BASTEN JA: On 9 March 2009 the testator died, being survived by her five children, of whom one was the appellant. From an estate valued at $800,000 (after allowance for expenses) the appellant was to receive a legacy of $10,000. The balance was to be divided between the appellant's four siblings.

23 Claiming that her mother had made inadequate provision for her in the will, the appellant sought a family provision order pursuant to s 59 of the Succession Act 2006 (NSW). She was unsuccessful before Hallen AsJ: Andrew v Andrew [2011] NSWSC 115. The appeal to this Court is by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW).

24 There was no doubt that the appellant was (and is) in financially straitened circumstances, being circumstances which were significantly less secure than those of her siblings. It is also clear that greater provision could have been made for her out of the estate. The primary asset in the estate was the testator's family home. Her son, Mr Michael Andrew, received 40% of the value of the home in recognition of work done by him to improve its value. If the balance had then been divided equally between all five siblings, each would have received 12%, or approximately $96,000. In fact the balance was divided between the other four siblings, each receiving 15%, or $120,000. In purely monetary terms, the provision for the appellant can appropriately be described as "inadequate"; the question is whether the Court should have been satisfied that it was "not adequate", having regard to the almost total absence of contact between the testator and the appellant for some 35 years.

25 Before addressing the substantive issue, it is necessary to consider two preliminary questions, namely:

(a)whether the regime for family provision orders under the Succession Act gives rise to differences in approach to that under the previous legislation, namely the Family Provision Act 1982 (NSW), and

(b)whether the changed legislative scheme affects the approach of this Court to an appeal.

Change in legislative provisions

26 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.

27 The second difference is of a different kind. Under the former scheme the statute identified a non-inclusive list of considerations which might be taken into account in determining what provision (if any) ought be made, a step only to be taken once the prohibition had been lifted. That is not to say that the listed considerations were not relevant at the first stage of the inquiry, but only that the earlier statute did not address the issue. The Succession Act, by contrast, states that the listed factors may be taken into account in determining "whether to make a family provision order and the nature of any such order". The intention of a two-stage process is no longer apparent in the structure of either s 59 or s 60 of the Succession Act.

28 The third difference is to be found in the expanded list of permissible considerations. While the earlier list was non-exhaustive, as indeed is the new list, the multiplicity of factors now identified gives greater direction to the courts and, consistently with the second change, invites consideration of a broader range of factors than were formerly considered. (How these considerations work is a separate question which will be explored below.)

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.

30 The second consequence derives from the new list of possible considerations. Many are factors which one would not expect a testator to address explicitly, nor be criticised for not addressing. However, the difficult question remains as to the criteria by which the court's judgment is to be guided. Although the provision of a "list" of factors tells one little as to how individual factors are to be applied, it is necessary to consider whether they require a different evaluative exercise to that undertaken under the Family Provision Act and its precursor, the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW).

31 The third consequence, which follows from the first, relates to the manner in which an appellate court should approach its task on appeal by way of rehearing under s 75A of the Supreme Court.

32 Each of these potential consequences requires further consideration. It is convenient to begin with the nature of the evaluative process (the second consequence) and then address the structural (first and third) consequences together.

The evaluative exercise

33 The primary judge reminded himself of the warning given by Kirby P in respect of the novel provisions in the then reasonably recently enacted Family Provision Act that "where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, ... lawyers will approach the construction of the Act affected by the previous law": Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 at 76,304, set out by the primary judge at [29].

34 A second point of importance is that even where the language of the statute has not changed, "[t]here 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", as stated by Gibbs J in Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502, citing Sholl J in In Re Hodgson, deceased (1955) VLR 481 at 491-492. The passage from the judgment in Goodman v Windeyer was cited with approval by Mason CJ, Deane and McHugh JJ in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 211, in discussing the nature of the value judgment required by the legislation. The language of "current social conditions and standards" was preferred to the language adopted in earlier cases of "moral duty" and "moral obligation": at 209. Even if the language of 'moral duty' is retained - a matter as to which differing views were expressed in Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [25] (Gleeson CJ); [64]-[73] (Gummow and Hayne JJ) and [113] (Callinan and Heydon JJ) - the importance of current standards remains. Thus even where the language may be unaltered from earlier legislation, its operation may vary.

35 There are, of course, numerous areas of the law where the courts are expected to identify and apply widely held community standards. The tests for reasonable apprehension of bias and defamatory imputations provide examples, as does the duty of care which forms the basis of the tort of negligence. The vagueness of the standards and the uncertainty as to the material upon which the court can rely are rarely commented upon in those situations because, of necessity, what is applied is a standard intended to reflect the expectations of the general community. In one sense, that is true also in respect of adequate provision for close family. The intervention of the court must resolve a tension of general consequence between the autonomy of the testator to dispose of his or her property on death and the perceived claims of family members for adequate provision. However, whether a sample of the general community would readily find consensus in resolving that tension in particular cases may be doubted. Further, there will undoubtedly be differences of opinion as to the appropriateness of excluding or limiting the provision for a particular person, resulting from perceptions and beliefs derived from cultural, religious and moral values. Judgments are littered with references to "disentitling conduct" (being a statutory concept in some jurisdictions), although community views about such conduct will undoubtedly vary considerably.

36 The only guiding light, consistent with the rule of law, is the identification of community standards as reflected in current legislation. Thus, although the Anti-Discrimination Act 1977 (NSW) and similar Commonwealth legislation does not apply to a testamentary disposition, being a private sphere of life, guidance may be obtained from the prohibited grounds as applied in relation to public activities. Since the recent inclusion of the statutory powers in the Succession Act, guidance should also be obtained from the list of permissible considerations in s 60.

37 Many of the criteria identified in s 60(2) are matters which the Court would have taken into account under the prevailing case law at the time of the enactment of s 60, in ways which may or may not have been controversial, but if they were, such controversies have not been resolved. In some respects, more assistance could have been given. For example, reference is now permitted to "any relevant Aboriginal or Torres Strait Islander customary law": s 60(2)(o). The multifactorial list in s 60(2) was adapted from the Administration and Probate Act 1958 (Vic), s 91. Paragraph (o) was, however, an addition recommended by the New South Wales Law Reform Commission in Report 110 - Uniform Succession Laws: Family Provision (May 2005). The Report stated at paragraph 2.61:

"This item is not included in the Victorian provision. In adding consideration of 'any relevant Aboriginal or Torres Strait Islander customary law or other customary law', the National Committee 'considered it important to enable the Court to take into account the deceased person's and the applicant's membership of a particular community and the customary practices and customary laws which help define that community in determining whether the deceased person owed the applicant a [relevant] responsibility'. However, the National Committee did not consider it appropriate to specify 'what customary practices and customary laws should be taken into account by the Court when determining a person's eligibility to apply for family provision from the estate of a deceased member of a particular community', especially bearing in mind that customary practices and laws will vary within and between communities, and not every member of a community will feel bound by its customary practices and laws."

38 Without the explanatory note, it would have been unclear whether the court was intended to have regard to the practices and customs which might affect the actions of the testator or those affecting the expectations of the applicant and, possibly, other beneficiaries. Nor is the issue resolved by the explanatory note itself, although both appear to have been considered relevant. Importantly, the National Committee on Uniform Succession Laws, whose recommendations were the basis for the deliberations of the New South Wales Law Reform Commission, proposed (and the Commission accepted) that such a consideration should not be limited to Aboriginal and Torres Strait Islander customary law but should extend to "other customary law". The extension, which would form a firm basis for the court taking into account evidence of the customs and mores of particular groups in the community (possibly including Sharia law) was not adopted by the legislature in s 60(2)(o), which is limited to the customary law of Indigenous Australians.

39 The family relationship between the appellant and her mother was a key factor in the assessment of her claim (s 60(2)(a)), as were the obligations or responsibilities owed by the testator to the appellant: s 60(2)(b). Although there is frequent reference in the case law to the "natural" love, affection, care and responsibility existing between family members, common experience confirms that indifference, irritation or even outright hostility are also "natural" characteristics of some family relationships. In the present case there was estrangement.

40 As explained by the primary judge, the term "estrangement", which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties: at [74](a). It is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.

Structural changes

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.

42 The outcome of the present appeal will not, however, be affected by considering whether the primary judge applied a two-stage inquiry or simply followed the language of the Succession Act. The more important issue for present purposes concerns the consequences for appellate intervention. Because the first or "jurisdictional" stage of the previous legislation involved a binary choice, although based upon an evaluative assessment, it was not, strictly speaking, a discretionary decision: Foley v Ellis [2008] NSWCA 288 at [3]. Nevertheless, appellate intervention was limited to the more restrictive principles applicable to discretionary judgments because of the similarity in the considerations and consequences applicable to the second stage, which could properly be identified as involving an exercise of discretionary power: Singer v Berghouse at 210-212. Although that approach was adopted by reference to important policy considerations, such as the need for finality of litigation "in a troublesome area" and the reduction of "a burden of costs upon the estate" - see Golosky v Golosky [1993] NSWCA 111 at 8 (45) (Kirby P) - rather than the language of s 75A of the Supreme Court Act, the change of language in the new legislation confirms the principle that this Court must apply principles applicable to appeals from discretionary judgments.

Application of principles

43 The factual background has been set out by Barrett JA and need not be repeated.

44 This Court has been invited to consider a number of cases involving applications for provision brought by a child in respect of the estate of his or her parent, following a period of estrangement: see, for example, Palmer v Dolman [2005] NSWCA 361; Wheatley v Wheatley [2006] NSWCA 262; Foley v Ellis [2008] NSWCA 288; Diver v Neal [2009] NSWCA 54; Ford v Simes [2009] NSWCA 351; Hastings v Hastings [2010] NSWCA 197. In Vigolo v Bostin, Gleeson CJ noted that the Testator's Family Maintenance Act 1916 (NSW) was originally directed to "the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member, typically a widow": at [10]. In Hastings, I referred to that passage and continued:

"[19]Limited to such clear cases, the purpose and effect of the legislation may be readily understood. When a claim is made by an adult able-bodied son in respect of the estate of his mother, the identification of the relevant standard is more difficult. As explained by Windeyer J in Stott v Cook (1960) 33 ALJR 447 at 455 (in a passage quoted by Gummow and Hayne JJ in Vigolo at [60]:

'Questions of duty, when not determinable by the fixed criteria of law, become questions of casuistry. Standards and principles may be stated. But their application to a particular case can seldom be beyond all debate even when all the facts are known.'

[20]Whether there is any generally held social view as to the existence of a moral or natural obligation to adult able-bodied children, sufficient to deprive a parent of the unfettered right of testamentary disposition, may be open to doubt. Almost certainly views would differ. There can, in such circumstances, only be a legitimate range of views available to judges called upon to administer the legislation. Further, because the standard cannot be identified with precision, the application of an appropriate standard to particular circumstances may also give rise to a range of legitimate outcomes."

45 One consequence of these views is that the occasion for interference by an appellate court with an evaluative judgment by a trial judge may be relatively limited. Nor should the appeal court be over-eager to identify statements in the reasoning of the trial judge as formulating propositions of principle at some level of generality, sufficient to indicate an erroneous approach.

46 Bearing these cautions in mind, and recognising that the boundary between a permissible outcome and an erroneous outcome is not easily drawn, there are, in the present case, two factors which warrant intervention. They appear sufficiently from the following two passages in the judgment below:

"[149]Respectfully, I concur with, and repeat, the view expressed by Bergin CJ in Eq, in Ford v Simes at [71], that it is essential for the maintenance of the integrity of the process, in these types of applications, that this court acknowledges the entitlement of a deceased person, in certain circumstances, to make no (or in this case, virtually no) provision for an adult child. This is particularly so in respect of a child who withholds, without proper justification, her, or his, support and love, from that parent over many years.

[150]There are cases in which the estrangement is such that the deceased is entitled, without interference by the court, to make little, if any, provision for an estranged child. This is particularly so, if the period of estrangement is long; the estate is not large and there are competing claims on the bounty of the deceased. Regrettably, this is such a case.

[151]In reaching this conclusion, I have not forgotten that there is an inter-relationship between the conduct said to disentitle an applicant to relief and the strength of the need for provision out of the deceased's estate. It has been said that the stronger the applicant's case for relief, the more reprehensible must have been that person's conduct to disentitle them to the benefit of any provision: Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 156 per Gibbs J.

[152]The deceased spent more than 35 years of her life without any emotional, or other, support or assistance, from, or even acknowledgement by, the Plaintiff. During the whole of this period, apart from two occasions, there was no communication between them. The deceased lived a major part of her life without the benefit of the love and support of a child whom she had nurtured and assisted during her formative years. The Plaintiff rejected the encouragement of others to communicate with the deceased. In this respect, it seems that the estrangement was self-imposed by the Plaintiff and, on the evidence, appears to have been unjustified."

47 The factors which favoured an award of further provision from the estate of the deceased were, at the time of the trial, as follows:

(a)the appellant was in straitened financial circumstances - she did not own her own home or a car;

(b)the appellant's income was limited to a Centrelink benefit;

(c)the appellant shared the care of a foster child (aged 10 years), was responsible for a knee operation undertaken on her son and had her own medical and dental needs which she had difficulty meeting;

(d)the appellant's son (aged 20) now lives in Queensland and she lacked the funds to travel to visit him regularly;

(e)each of her siblings was financially more secure than she, and

(f)the estate, though not large, was capable of bearing a more generous share in her favour than that provided in the testator's will.

48 The countervailing factors were almost entirely attributable to characteristics of the estrangement between the appellant and her mother, the testator. It is this which required careful assessment, as the primary judge fully appreciated. The question is whether that assessment revealed error.

49 The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.

50 In the present case, there was no suggestion of any particular incident or cause of the hostility. The primary judge set out a passage from the cross-examination of the appellant, emphasising the underlined passages, at [83]:

"In relation to what had caused the breakdown of their relationship, the Plaintiff said that she suspected that, perhaps, her mother was angry because of the Plaintiff's sexuality. Her evidence was:

'Q. What was it that caused you to be suspicious or suspect that it had to do with your sexuality?

A. That's the only thing that I could think of. I'd never had a blazing argument with them, I'd never had shouting matches, I'd never had intense disagreements with them in any way, shape or form. It just basically, the relationship, petered out sort of. It's the only way that I can describe it really.

...

Q. You also were cross examined by Mr Ellison on the fact that as an adult you chose to have the level of contact or no contact, as it appears it was, with your mother? You were asked some questions about that, do you remember?

A. I do.

Q. You said that it was due to family dynamics?

A. That's correct.

Q. What did you mean by that?

A. When I went into nursing my father had these expectations of me following his ideals about what my working life should be. My parents, their dynamics between the both of them was very difficult, particularly because my father was medicated and was gradually increasing his consumption of alcohol and I just didn't want to be in that situation. I didn't like it, I was uncomfortable. There was no there was just no rapport. It was two people that gave birth to me, brought me up and then I was on my own. That sounds a bit sort of black and white but I just pursued my own career from then on.

Q. Do you mean your own life from then on?

A. My life and my career.' "

51 It is clear that the family did not disintegrate entirely. The appellant's siblings remained in contact with their parents and with the appellant. Two of her siblings gave evidence that they had sought to find out why the appellant did not wish to see her parents and to explain "how sad and confused" her mother was about the lack of contact: at [89]. The evidence of the sisters in particular, accepted by the primary judge, was said to demonstrate "the deliberate, and conscious, abandonment of the relationship" by the appellant: at [93]. The primary judge continued at [94]:

"It does not assist the [appellant] to say, as was submitted on her behalf, that the deceased also abandoned the relationship and did not take any steps to resurrect it. As submitted, the deceased could have telephoned the [appellant], assuming that she knew the telephone number. She did not do so. She did not know, directly, where the [appellant] was living, because, intentionally, the [appellant] did not tell her. It is not surprising, in my view, that the deceased did not make contact with the [appellant]."

52 As noted above, the final conclusion was that the testator had lived "a major part of her life without the benefit of the love and support of a child whom she had nurtured and assisted during her formative years": at [152]. He therefore described the estrangement as "self-imposed" by the appellant and "unjustified". However, whether her conduct was so "reprehensible" as to substantially disentitle a person with her financial needs, in the sense envisaged in Hughes and referred to by the primary judge in the passage at [152] (see [46] above) is doubtful.

53 Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of "love and support" from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.

54 Further, the primary judge adopted remarks from Ford v Simes at [71] that "it is essential for the maintenance of the integrity of the process, in these types of applications, that this court acknowledges the entitlement of a deceased person, in certain circumstances, to make no (or in this case, virtually no) provision for an adult child": at [149]. That proposition requires qualification, lest its restatement at a level of abstraction is thought to be a factor to be considered in specific circumstances, or a principal of general application. The remark in Ford v Simes was taken from the judgment of Dixon CJ in The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales [1962] HCA 19; 107 CLR 9 ("Scales"). The statement appears to be a paraphrase of what the Chief Justice said at 19. Although in that case the Court intervened to deprive an able-bodied son aged 50 of a share in his father's estate, the circumstances were quite different from the present case. First, as Dixon CJ noted at 18, "[i]t seems certain that if at any time they had been brought face to face the son would not have known his father and the father would not have known the son." Secondly, the Chief Justice found that "the son has made his way in life and though, like most people, he would find more money an advantage, he is not in need": at 20. The former factor at least was close to the facts of Ford v Simes, where, according to a statement dictated by the testator in 1998, when he last saw his son in 1995 the following exchange took place on the front lawn of his home, "...he called out ... while I was mowing the lawn stood straight in front of me and said 'Hello, You don't know who I am do you?' I said to him 'Should I know you' He said 'You silly f - fool I am your son'. He then walked away got in the car and drove away."

55 In overturning the provision made by the trial judge in Scales, Dixon CJ stated at 18:

"In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death."

56 The points of departure between the facts in these cases warrants caution in the transportation of a statement from one to another. In Scales, it was the father who had abandoned the son, but at the time of his death, there was no emotional anguish on either side. The present case is distinguishable in a number respects. First, there was a family relationship between parents and daughter throughout the early years of the appellant's life. Secondly, it was the daughter who left the family, rather than the reverse. Thirdly, the testator suffered as a result of her daughter's abandonment of their relationship. Fourthly, however, there was a continuation of the family relationship and the maintenance of other family ties, which might have given rise to a legitimate expectation that the appellant would receive some, if diminished, recognition in her mother's will. The failure to make adequate provision suggests an attempt to punish her daughter for her failure to provide love and affection to her aging mother.

57 Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.

Quantifying provision

58 The amount of the available provision must be far less than that sought by the appellant. As noted above, the appellant's brother received a 40% share of the estate, together with a further 15% of the residue, giving an amount of $440,000, while each of the daughters received $120,000. Taking into account their respective circumstances, as set out by the primary judge at [114]-[115], it is clear that the respondent son is best able to meet the burden of any provision.

59 Although allowance may need to be made for the costs of the proceedings, and thus a conservative approach adopted, on a modest net estate of $800,000, and given the long estrangement, in my view the appellant should receive an amount of $60,000, being additional provision of $50,000. Of that additional amount, the share of the respondent son should bear the burden of $35,000 and the shares of the three sisters an amount of $5,000 each.

60 The respondent should pay the appellant's costs in this Court and should have an opportunity to seek an order that his costs be recoverable from the estate.

61 Accordingly, the Court should make the following orders:

(1)Allow the appeal and set aside the orders made in the Equity Division on 4 and 11 March 2011.

(2)In lieu thereof -

(a)order that further provision be made for the plaintiff out of the estate of Rita Melba Andrew deceased such that the plaintiff has, in lieu of the legacy of $10,000 provided for in the will of the deceased, a legacy of $60,000, with the additional $50,000 to be provided:

(i)as to $35,000 out of moneys to which Michael Robert Andrew would otherwise be entitled under the will;

(ii)as to $5,000 out of moneys to which Jennifer Annette Smith would otherwise be entitled under the will;

(iii)as to $5,000 out of moneys to which Lisa Gae Andrew would otherwise be entitled under the will; and

(iv)as to $5,000 out of moneys to which Tracey Lee Andrew would otherwise be entitled under the will;

(b)order that the defendant pay the plaintiff's costs.

(3)Order that the respondent pay the appellant's costs in this Court.

(4)Grant liberty to the respondent to seek an order from the trial judge that his costs be recoverable out of the estate of Rita Melba Andrew deceased.

(5)Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW)

62 BARRETT JA: In proceedings in the Equity Division determined by Hallen AsJ on 11 March 2011, Lynne Christine Andrew ("Lynne") failed to obtain an order under s 59 of the Succession Act 2006 in respect of the estate of her late mother, Rita Melba Andrew ("Mrs Andrew"). The defendant, Michael Robert Andrew ("Michael"), is Lynne's brother and Mrs Andrew's only son. He is the executor of Mrs Andrew's will. Three other daughters (sisters of Lynne and Michael) survived Mrs Andrew. They are Jennifer Annette Smith ("Jennifer"), Lisa Gae Andrew ("Lisa") and Tracey Lee Andrew ("Tracey").

63 On 14 June 2012, this Court had before it Lynne's notice of appeal and notices of motion filed by Lynne and Michael on 29 September 2011 and 23 September 2011 respectively. The notices of motion put in issue the question whether the monetary threshold referred to in s 101(2)(r) of the Supreme Court Act 1970 is satisfied and whether leave to appeal is required. The notices of motion came before Handley AJA who, on 14 November 2011, extended time for the filing of the notice of appeal and otherwise stood the preliminary claims over to the hearing of the appeal.

64 In the particular circumstances, it is unnecessary to canvass the matters raised by the notices of motion. If leave to appeal is required, it should be granted in order to provide a foundation for addressing matters that are of importance not only to the parties but also in confirming approaches that should be taken to cases arising under s 59 of the Succession Act.

The Succession Act provisions

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. The following discussion is confined to that kind of case.

66 Relevant provisions of the Succession Act are s 59 and s 60, as follows:

"59(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

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

... and

(c) at the time when the Court 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, or both.

(2) The Court may 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.

Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.

...

(4) The Court may make a family provision order in favour of an eligible person whose application for a family provision order in relation to the same estate was previously refused only if, at the time of refusal, there existed all the circumstances regarding undisclosed property described in subsection (3) (b)."

"60(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."

67 The provisions of the Family Provision Act that were relevant to cases of the kind I have mentioned are s 7 and s 9:

"7.Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."

"9.

. . .

(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:

(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or

...

is, at the time the Court is determining whether or not tomake such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(c) circumstances existing before and after the death of the deceased person, and

(d) any other matter which it considers relevant in the circumstances.

(4) Nothing in subsection (3) (a) limits the generality of subsection (3) (b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3) (a) or of a different nature in so far as it considers it relevant under subsection (3) (b), (c) or (d).

..."

68 A finding of "eligible person" status of the applicant is central to the operation of both the present s 59 and the former s 7. In the kind of case under discussion, where the applicant is a child of the deceased, the question of "eligible person" status under the Succession Act poses no difficulty (the same is true where the applicant is the surviving wife or husband). Those cases are dealt with in a straightforward way by the definition of "eligible person" in s 57(1) of the Succession Act. The court is not called upon to make any evaluative findings and the need to consider the new provisions in s 60 of the Succession Act upon an inquiry into "eligible person" status will not arise.

The two stage approach

69 The decisions of the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 concerned, respectively, the Family Provision Act of this State and the Inheritance (Family and Dependants Provision) Act 1972 (WA). The High Court held that the correct approach under each piece of legislation was a two stage inquiry, the first question being whether the provision applicable in the absence of intervention by the court is "adequate" and the second question (if the first is answered in the affirmative) requiring the court to engage in a discretionary exercise to determine what provision ought to be made.

70 The matter was put thus in the judgment if Mason CJ, Deane and McHugh JJ in Singer v Berghouse (at 208-210):

"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question" ...

...

The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? ... 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 applicant and the deceased, and 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 ..." (emphasis added).

71 In Vigolo v Bostin (above), the appropriateness of the two-stage approach to the legislation there under consideration was confirmed by Gleeson CJ (at [5]), by Gummow and Hayne JJ (at [56]) and by Callinan and Heydon JJ (at [112]). The possibility that the two inquiries may, to some extent, overlap or coalesce was recognised by Callinan and Heydon JJ at [122]:

"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."

The court's power under the former legislation

72 In a case of the kind under discussion where the applicant was a child of the deceased (so that no question of "eligible person" status arose) and no previous order for provision had been made, the court's power under s 7 of the Family Provision Act was a power to order

"that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person".

73 The power was, however, regulated by s 9. This was the effect of the opening words of s 7, "Subject to section 9". The qualification imposed by s 9 operated at two levels.

74 First, s 9(2) precluded the making of an order in favour of the eligible person unless the court was satisfied that the provision (if any) made in favour of the eligible person either during the deceased's lifetime or out of the estate was, at the time the court was determining whether or not to make an order, "inadequate for the proper maintenance, education and advancement in life of the eligible person".

75 Second (and if the court had become "satisfied" in the way stated in s 9(2)), s 9(3) came into operation. The effect of s 9(3) was to empower (but not require) the court to take specified matters into consideration in "determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person".

76 Under s 9, therefore, the task of the court, in a case of the kind under discussion, was:

(a)to determine the extent of the provision made in favour of the eligible person during the deceased's lifetime;

(b)to determine the extent of the provision made in favour of the eligible person out of the deceased's estate (whether by will or by operation of the intestacy laws);

(c)to form an opinion as to the adequacy, as at the time of the court's determination, of the provision determined under (a) and (b) for the proper maintenance, education and advancement in life of the eligible person;

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

(e)in forming that evaluative opinion, to take into account, as discretionary factors, the matters in paragraphs (a) to (d) of s 9(3).

The court's power under the present legislation

77 In a case of the kind under discussion where the applicant is a child of the deceased (so that no question of "eligible person" status arises) and no previous order for provision has been made, the court's power under s 59 of the Succession Act is a power to make a "family provision order", that is, according to the s 3 definition:

"an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.".

78 The power to make such an order is constrained by both s 59 itself and s 60. As with the former provisions, the constraint operates at two levels.

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).

Some differences

82 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.

83 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.

84 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.

85 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.

86 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. Each list concluded, however, with a provision of broad generality:

"any other matter which it considers relevant in the circumstances" (Family Provision Act, s 9(3)(d)).

"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" (Succession Act, s 60(2)(p)).

87 The additional specific items in s 60(2) of the Succession Act reflect matters to which courts were permitted to have regard under s 9(3)(d).

88 A fourth possible difference comes from the fact that, 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.

89 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.

90 A fifth difference between the two statutory schemes was suggested in submissions made on behalf of Lynne. Those submissions placed emphasis on the long title of the Succession Act:

"An Act to restate, with reforms, the law relating to wills in New South Wales; 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; to make provision for the distribution of intestate estates; and for other purposes"

91 The reference here to ensuring that adequate provision is made, coupled with the more comprehensive list of specific factors in s 60(2), was said to emphasise that the securing of adequate provision is identified as a key objective of the new legislation and that courts must accordingly give greater attention to questions of adequacy.

92 I am not persuaded that any change is evident here. It may be accepted that the long title is, in general terms, indicative of the statutory objects (Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359; Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471 at 477) and may be taken into account accordingly. But it cannot be suggested that there is some object found in the present legislation that was not found in the legislation it replaced. In each case, the identified aim is to address cases in which the court assesses the provision (if any) actually made to be not adequate. Once the court has found lack of adequacy, it must make a discretionary judgment as to what, if any, order should be made.

93 There is nothing in the present Act indicating that the court is to take an approach more "generous" to claimants than previously. It is true that s 60(2) refers to a greater number of matters that may be taken into account in deciding what order, if any, should be made but, as I have said, to the extent that these go beyond the list in the former s 9(3), they reflect things to which it was open to the court to pay attention under the superseded legislation in any event.

Continued applicability of the two-stage process

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.

95 Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that "community expectations" play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA):

"So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes."

96 In Evans v Levy, the same judge said (with the concurrence of Campbell JA and Sackville AJA):

"It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so."

97 Particularly since the decision of the High Court in Vigolo v Bostin (above), however, concepts of "moral duty" must be approached with considerable care: see Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1 at [25]. But the clear need for the court, in addressing the first-stage question, to recognise community expectations is undiminished. The task is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is and must be the court itself": Kearns v Ellis (unreported, NSWCA, 5 December 1984, BC8400149 at 8 per Mahoney JA).

98 The task of an appellate court in a case such as the present is shaped accordingly. Where grounds of appeal challenge both the decision at the first or jurisdictional stage and the second or evaluative stage, the Court of Appeal will deal separately with the two aspects of the first instance decision.

99 The appellate court's function upon a challenge to a decision regarding the jurisdictional question that arises at the first stage was described by Campbell JA (with whom Giles JA and Handley AJA agreed) in Hampson v Hampson [2010] NSWCA 359 at [73]-[74]:

"An appeal court can alter a trial judge's decision concerning the jurisdictional question in a Family Provision Act application only in the same circumstances as it can alter a discretionary decision by a trial judge: Singer v Berghouse (No 2) (1994) 181 CLR 201 at 212; Vigolo v Bostin [2005] HCA 11 ; (2005) 221 CLR 191 at [82] 220; Clifford v Mayr [2010] NSWCA 6 at [67]-[74].

The conventional statement of the principles for appellate review of discretionary decisions is that in House v R (1936) 55 CLR 499 at 504-5."

100 Campbell JA then set out this well-known passage in the judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

101 At the second or evaluative stage when the decision is as to the order, if any, to be made, the court's power is a true discretionary power. Once it has been decided that the jurisdictional condition is satisfied, the inquiry is of the kind recently described by Campbell JA in Durham v Durham [2011] NSWCA 62 at [82] in the following terms:

"A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act. Thus, such a decision is reviewable by an appellate court only in accordance with the principles established in House v The King."

102 The pertinent passage in the joint judgment in House v The King, set out above, was then quoted by Campbell JA.

103 These approaches remain appropriate under the Succession Act.

The circumstances of this case

104 Mrs Andrew died on 9 March 2009 aged 83 years. She was a widow at her death. Her five children referred to at [62] above survived her.

105 By her will made in June 2005, Mrs Andrew made the following dispositions:

(a)40% of the market value of her house at Chifley to Michael;

(b)a pecuniary legacy of $10,000 to Lynne; and

(c)the residue to be divided equally among Michael, Jennifer, Lisa and Tracey.

106 The estate had a gross value of $925,805 of which the Chifley house accounted for $920,000. There were no liabilities. The house was sold in July 2010 for $905,000 yielding a net $886,960 after commission and expenses of sale. After allowing for certain expenses of administration, the net distributable estate at February 2011 was $799,249.

107 Mrs Andrew left two documents stating reasons why she left Lynne only $10,000. The first, dated 21 June 2005 (the date of the will) was written by Mrs Andrew and was in these terms:

"I, Rita Melba Andrew, do hereby declare that the reason Lynne Christine Andrew has been omitted from the bulk of 'our assets' in our Will is that she has not acted as a daughter should in our lifetime, and should not be remembered as our other children have, in the dispersal of our assets"

108 The second document, dated 28 July 2008, was written by Mrs Andrew and is as follows:

"I, Rita Melba Andrew, do hereby give notice that upon my demise, my house at xxx Chifley, is to be sold and the proceeds be divided equally between Michal [sic], Jennifer, Lisa and Tracey, but with a sum of money to go to my eldest daughter, Lynne, approx $10,000. dollars [sic], she will be aware of the reason.

Michael is to get the cost of the flat above, and the land and house are to be the main benefit to all."

The decision of the primary judge

109 The primary judge noted that, in the proceedings before him, Lynne, in her evidence, had not responded to either of the statements just mentioned except by stating that she was not aware of "the reason" referred to in the second statement. He then noted that explanations such as those recorded by Mrs Andrew do not relieve the court of its duty to engage in the inquiry directed by the legislation but may "cast light on the relationship between the deceased and that person, at least from the deceased's perspective".

110 His Honour then reviewed Lynne's living and financial circumstances and referred to Michael's acknowledgement that she is "in relative need". In summary, Lynne was found to be unemployed and, in view of her age and long-term unemployment, unlikely to find work in Port Macquarie where she lived; she relied on Centrelink benefits; she had no motor vehicle and no assets beyond about $4,200 remaining superannuation; she resided in a rented flat adjoining the flat of her friend Monica; she and Monica shared the care of a ten year old foster child with Asperger's syndrome; she had throughout her life sought to assist the underprivileged and to pursue altruistic goals rather than seeking personal gain; and she had one child, a son aged 20 who lived independently in Queensland where Lynne would like to be able to visit him more often.

111 After reviewing the applicable legal principles, the primary judge dealt with a state of estrangement that had existed between Mrs Andrew and Lynne. There was, he said, "virtually no contact" between them for a period of some 35 years up to Mrs Andrew's death. His Honour found that Lynne had lived with her parents "until the age of 17 years (about 1966)". At or around that time, she left home to undertake training as a nurse. Her parents attended her graduation ceremony upon completion of her training and a subsequent midwifery graduation in the early 1970s. Soon after that, she went to work overseas. Lynne was able to identify only two occasions during the 35 years preceding Mrs Andrew's death on which there had been contact between them: first in 2007 at a family wedding in Queensland; and subsequently at the funeral of Mrs Andrew's husband (Lynne's father) later in the same year. The primary judge found that Mrs Andrew had offered Lynne $100 to assist her travel to Sydney for her father's funeral and insisted, over Lynne's reluctance, that she take the money. Lynne later gave the money to her sister Lisa "towards the running around costs her and any other siblings had had to do in preparation" for the funeral.

112 Lynne accepted that she had not sent her mother a Christmas card or birthday card since the 1960s, that she had never written her mother a letter and that she had never informed her mother where she was living (although she believed that her mother had this information through her siblings or her aunt with whom she had contact). Lynne gave evidence that her parents, in turn, did not send her cards or invite her home for Christmas or do anything to celebrate any other occasion with her.

113 Lynne's evidence about her understanding of possible causes of the breakdown in the relationship appears from this part of the primary judge's reasons:

"83. In relation to what had caused the breakdown of their relationship, the Plaintiff said that she suspected that, perhaps, her mother was angry because of the Plaintiff's sexuality. Her evidence was:

'Q. What was it that caused you to be suspicious or suspect that it had to do with your sexuality?

A. That's the only thing that I could think of. I'd never had a blazing argument with them, I'd never had shouting matches, I'd never had intense disagreements with them in any way, shape or form. It just basically, the relationship, petered out sort of . It's the only way that I can describe it really.

...

Q. You also were cross examined by Mr Ellison on the fact that as an adult you chose to have the level of contact or no contact, as it appears it was, with your mother? You were asked some questions about that, do you remember?

A. I do.

Q. You said that it was due to family dynamics?

A. That's correct.

Q. What did you mean by that?

A. When I went into nursing my father had these expectations of me following his ideals about what my working life should be. My parents, their dynamics between the both of them was very difficult, particularly because my father was medicated and was gradually increasing his consumption of alcohol and I just didn't want to be in that situation. I didn't like it, I was uncomfortable. There was no there was just no rapport. It was two people that gave birth to me, brought me up and then I was on my own. That sounds a bit sort of black and white but I just pursued my own career from then on .

Q. Do you mean your own life from then on ?

A. My life and my career ."

(My emphasis)

84. As can be seen from this evidence, no specific conduct is attributed to the deceased that led to the breakdown of their relationship. Indeed, the Plaintiff stated in her first affidavit, that the deceased had expressed pride that she had become a nurse and had gone into a medical based career.

85. What had been asserted by the Plaintiff, in her first affidavit, as the cause of the breakdown of the relationship was that when she was going overseas, she asked one of her sisters to look after her house, which request 'seemed to upset my parents and caused a rift between myself and [them]'. Later, in the same affidavit, it is said that her parents did not like the way in which she was living her life and 'this may have influenced my mother in her attitude towards me, but we never spoke about any of these things'.

114 Lynne referred in her affidavit to a belief that her mother "suspected that I was not heterosexual" and that her parents "would disown me if I openly discussed these matters". After the birth of her son in 1991, Lynne took the view that her parents "would not approve of me having a child outside of a marriage relationship".

115 The primary judge referred to evidence given by Tracey and Lisa. Tracey said that she tried to find out from Lynne why she did not wish to see her parents. She knew how much the lack of contact was hurting them and that Mrs Andrew had said how sad and confused she was about Lynne's attitude. She said that Lynne became very angry. Tracey then hesitated to raise the matter further with her. Lisa corroborated this aspect of the evidence and confirmed that Lynne would say that she did not want to talk about her parents.

116 Tracey also gave evidence of conversations she had had with her mother about Lynne. Tracey said:

"The regular line of conversation was asking if I knew where Lynne was, how Lynne was, how [name] her son was and do I know why she will not talk to mum and dad any more and she wished she knew why and how painful it was to talk about it with her husband, my father, any more that she decided she will not talk about it with him any more because he could not cope with it. There was no it was just baseless for mum and dad. So over the years that was the constant line of conversation."

117 Tracey answered in the negative when asked whether Mrs Andrew ever mentioned to her anything about Lynne's sexuality or private life.

118 The primary judge made a finding that Lynne had said negative things about her parents and that she "did not care about them" and "had no feelings for them", with the most recent such statements having been made a short time before Mrs Andrew's death.

119 The primary judge reviewed the evidence about the financial circumstances of Michael, Jennifer, Lisa and Tracey and the relationship of each with Mrs Andrew. Two of them owned homes which were unencumbered. One lived with a partner on a property inherited by the partner. One was a public housing tenant of long standing. Reference was made to financial matters and the judge expressed an opinion in relation to the other three daughters that none "is particularly well off" although "each lives in accommodation that appears to be secure". The evidence concerning the son would warrant a like assessment.

120 The relationship between Mrs Andrew and each of Michael, Jennifer, Lisa and Tracey was found by the primary judge to be "extremely close and loving", with each of those children playing "an important role in caring for his or her parents".

121 After reviewing the evidence about financial and like matters, the primary judge made the finding required at the first stage of the two-stage process:

"140. I have set out the provision made for the Plaintiff in the deceased's Will. Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for her proper maintenance or advancement in life was not 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.

141. Whilst an additional lump sum, by way of advancement in life, in other circumstances, would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased, are very relevant factors in determining the answer at the first stage.

142. Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for the Plaintiff. Accordingly, the Plaintiff fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the Plaintiff's proceedings."

122 His Honour then said:

"143.However, even if I were wrong in coming to that conclusion, the same considerations, which I summarise below, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made."

123 Reasons for that conclusion were then stated. His Honour observed that the precise reasons for the state of the relationship between Lynne and Mrs Andrew had not been made clear and that there was no evidence of any conduct of Mrs Andrew that led to Lynne acting as she did for so many years. He noted a suggestion that this arose from Lynne's insecurity and that it was unlikely that Mrs Andrew was troubled by Lynne's sexuality since it had not been established that Mrs Andrew was aware of it and that the matter had not been discussed within the family and none of the other children put it forward as a cause of the breakdown. It was not even the subject of any conversation between them.

124 The case was thus not seen as one in which the estrangement was entirely caused or sustained by the unreasonable conduct or attitudes of the deceased. That being so, the primary judge said, the estrangement alone may not have amounted to conduct of Lynne disentitling her to an order for provision. His Honour also reminded himself that ultimately the important matter is not who is at fault or who is to blame.

125 It was further noted that the case was not one of short-term estrangement or where an otherwise long and loving relationship had been ruptured. The primary judge endorsed the view of Bergin CJ in Eq, in Ford v Simes [2009] NSWCA 351 at [71] that it is essential for the maintenance of the integrity of the process in cases of this kind that the court acknowledge the entitlement of a deceased person, in certain circumstances, to make no (or in this case, virtually no) provision for an adult child. This, he said, is particularly so in respect of a child who, without proper justification, withholds support and love from that parent over many years.

126 The primary judge observed that the entitlement to make little or no provision is pronounced if the period of estrangement is long, the estate is not large and there are competing claims on the bounty of the deceased. He saw this as such a case. He concluded:

"152. The deceased spent more than 35 years of her life without any emotional, or other, support or assistance, from, or even acknowledgement by, the Plaintiff. During the whole of this period, apart from two occasions, there was no communication between them. The deceased lived a major part of her life without the benefit of the love and support of a child whom she had nurtured and assisted during her formative years. The Plaintiff rejected the encouragement of others to communicate with the deceased. In this respect, it seems that the estrangement was self-imposed by the Plaintiff and, on the evidence, appears to have been unjustified.

153. The fracture of the relationship did not occur in recent times. It was not temporary but long standing. It does not appear to have been brought about by a specific incident. There was no vitriol on either side. No suggestion of unreasonable conduct on the part of the deceased is advanced.

154. Also, this is not a case, unlike some, in which an applicant for provision, prior to the estrangement, made personal, or financial, sacrifices in caring for the deceased during her life, or in contributing to the estate. On the contrary, the Plaintiff many years ago, completely and unequivocally severed ties with the deceased. As the Plaintiff herself said, "the relationship petered out ... sort of ..." and, thereafter the Plaintiff "pursued her own life and career" to the exclusion of the deceased.

155. In my view, by withholding love and support, and by her almost complete rejection of the deceased, the Plaintiff abandoned and forfeited any moral claim on the deceased."

Grounds of appeal

127 Lynne's grounds of appeal are that the primary judge erred:

(a)when he failed to make an order in favour of Lynne for reasons based solely on the estrangement "and when there was a relationship between the appellant and the deceased at the time of the death of the deceased which was cordial or amiable".

(b)in failing to make an order in favour of Lynne when the evidence was that Lynne's financial resources (including earning capacity) and financial needs, present and future, were such that Lynne was in relative need;

(c)in failing to have regard to the evidence of the testamentary intentions of Mrs Andrew contained in the handwritten document of 28 July 2008 when having regard to the financial and material circumstances of the beneficiaries as he was entitled to do by s 60(2)(b) and (d) of the Succession Act; and

(d)when he found that the estrangement between Lynne and Mrs Andrew "could totally extinguish the moral claim of" Lynne.

128 It is not entirely clear, in relation to the first two of these matters ((a) and (b)) whether they are put forward as relevant to the primary judge's decision upon the first-stage inquiry as to whether Mrs Andrew had made adequate provision for Lynne. Item (c) shows, by its reference to provisions within s 60(2) that it is advanced in relation to the second-stage inquiry as to whether an order should be made and, if so, in what terms. However, the matter may, of its nature, be relevant to the first-stage inquiry. Item (d) is clearly relevant to the first-stage inquiry.

129 Given that the primary judge found that adequate provision had been made (with the result that there was no need to determine the second-stage question whether an order should be made), I proceed on the basis that all of items (a) to (d) are advanced in support of the twofold contention that the decision adverse to Lynne on the adequacy question is in error and that an order in Lynne's favour should be made.

Factors relevant to the adequacy question

130 As the passage in the judgment of Callinan and Heydon JJ in Vigolo v Bostin set out at [71] above emphasises, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is thus not confined to the material circumstances of the applicant. The whole of the context must be examined.

131 Items (a) and (d) at [127] above go to a very significant aspect of the context in this case, that is, the long-standing separation between Mrs Andrew and Lynne. Before discussing that aspect, I shall deal with items (b) and (c).

Assessment of Lynne's needs

132 In relation to the item (b) matter, the primary judge found that Lynne's financial resources (including earning capacity) and financial requirements, present and future, were such that Lynne was in relative need. There were specific findings about her unemployment, the unlikelihood that she would find employment, the fact that she did not own a dwelling or car and the fact that her financial resources consisted of a very small balance of her superannuation; also that she shared the expenses of looking after the foster child and wished to be able to visit her adult son in Queensland more often.

133 The primary judge recognised Lynne's very limited resources and the need to which they gave rise in the circumstances in which she lived. He also recognised that there were competing claims on the estate. Item (b), as relevant to the first-stage inquiry, was therefore dealt with appropriately by the associate justice.

Evidence of testamentary wishes

134 Item (b) at [127] above concerns the handwritten document of 28 July 2008 set out at [108] above. In that document, Mrs Andrew expressed a wish that the house at Chifley be sold and the proceeds be divided equally between Michael, Jennifer, Lisa and Tracey, but with two provisos: first, that approximately $10,000 should pass to Lynne (who "will be aware of the reason"); and, second, that Michael "is to get the cost of the flat above".

135 The "flat above" is an extension or addition made to the Chifley house many years ago so that it could be the home of Michael and his family. Michael paid for the extension and borrowed some $13,000 or $14,000 for the purpose. He gave evidence that he expended $28,000 to clear the loan. There is evidence that Michael, Jennifer, Lisa and Tracey agreed at some point that a "fair amount" to compensate Michael for his expenditure on the extension would be $50,000. Yet the effect of Mrs Andrew's will, in the context of the value of the house at her death, was to benefit Michael, at the expense, as it were, of the three sisters who were to share the residue with him, to an extent greater than the "agreed" $50,000.

136 This, to my mind, has no real bearing on the question whether Mrs Andrew made adequate provision for Lynne. Whatever Mrs Andrew meant when she referred in the 28 July 2008 document to "the cost of the flat above", her clearly stated intention was twofold: first, that the house was to be "the main benefit to all"; and, second, that Michael, Jennifer, Lisa and Tracey were to share that "benefit" after payment of a fixed $10,000 to Lynne. The proportions in which the other four children were to share and, in particular, the proportion to be enjoyed by Michael had no bearing on the extent of Lynne's intended benefit. If, as Lynne seems to maintain, the allowance to Michael for the extension should have been only $50,000, not 40% of the market value of the house at the time of Mrs Andrew's death, the remainder of the stated testamentary intention would have seen the other daughters share to a greater extent in the proceeds of the house. On any version or interpretation, Lynne was limited to $10,000.

137 It therefore cannot be said that some erroneous view of Mrs Andrew's testamentary wishes regarding Lynn was at work in shaping of the primary judge's decision.

The estrangement

138 I return to items (a) and (d) at [127] above and the wider issue that, despite the blood tie, there had been no contact of any kind between the applicant and the deceased for 35 years up to the death of the deceased in 2009, except for two brief meetings in 2007 at family events (a wedding and a funeral).

139 Item (a) may be dealt with briefly. The complaint is not made out. The findings of the primary judge do not establish that "there was a relationship between the appellant and the deceased at the time of the death of the deceased which was cordial or amiable". Nor does the evidence warrant any such finding. On the contrary, the relationship, far from being "cordial or amiable" was virtually non-existent.

140 I turn then to item (d) at [127] above and to a more general assessment of the estrangement and its ramifications. The primary judge was not able, on the evidence before him, to say precisely how or why the rupture in the relationship occurred. But both its occurrence and its deep-seated nature were clearly established. There were no expressions of animosity or anger by either party. Lynne did say that she felt uncomfortable in the family setting, with her father medicated and turning increasingly to alcohol apparently as a result of illness brought on by wartime experiences. But this entailed no shortcoming on the part of either Lynne or her mother. Lynne's statement that, after she left home "the relationship just petered out sort of" is consistent with the other evidence.

141 Lynne had a belief that her mother "suspected that I was not heterosexual" and that her parents "would disown me if I openly discussed these matters". She did not discuss that part of her personal life with her parents. While there was never any conflict or fight about the matter, Lynne was obviously conscious that her lifestyle was of a kind that would be unacceptable to her parents. Her apprehensions in that regard increased when she bore a child without having married. She knew that too was contrary to her parents' expectations as to how a respectable life should be led.

142 It might perhaps be surmised that it was Lynne's homosexuality and, later, her status as an unmarried mother that was the cause of the separation - in the sense that Lynne felt herself unable to discuss her lifestyle with her parents because of a fear that they would disown her (from which it may be inferred that she was aware of negative attitudes on their part that could bring about such a result); and that there accordingly existed a potential source of pain and anguish on both sides from which Lynne thought it best to escape.

143 But neither Lynne's evidence nor that of any other witness would have justified a finding to this effect by the primary judge. In particular, Lynne did not say that she distanced herself from her parents so as to remove from the relationship a potential cause of acrimony and recrimination or that she sought to forestall a painful separation.

144 Whatever her motivation may have been (and it is not explained by the evidence), it was, as the primary judge found, Lynne who chose to place distance between herself and her parents. She was assisted by physical circumstances in doing so. After completing her nursing training, including midwifery, she moved to Papua New Guinea where she worked for some time. She later spent time in England. The physical distance during those periods was matched by an emotional distance that Lynne maintained and fostered after she returned to Australia, thereby withholding love and support by an almost complete rejection of her mother. And that withholding continued over 35 years until Mrs Andrew's death.

Evaluation of the primary judge's decision

145 The central question requiring attention by this Court is whether, in relation to the first-stage or jurisdictional question, the decision of the primary judge miscarried in a way requiring appellate intervention according to the principles referred to at [99] and [100] above.

146 It is not (nor could it be) suggested that the primary judge acted on a wrong principle or was guided or affected by some extraneous or irrelevant matter. There is no suggestion that there has been some mistake as to the facts or that some material consideration has not been taken into account. The way in which the primary judge reached his conclusion is explained. The only basis on which intervention would properly occur is therefore that, on the facts, the primary judge's conclusion is unreasonable or plainly unjust.

147 The primary judge made a careful assessment of the competing claims on Mrs Andrew's testamentary bounty. He recognised Lynne's subjective need. He had before him and took into account ample evidence about Mrs Andrew's relationship with her respective children and the situations in life and financial circumstances of those children. He also made detailed findings about the circumstances in which Lynne and Mrs Andrew had virtually no contact with one another for some 35 years before Mrs Andrew's death. It was accepted that there was no particular episode of disagreement or hostility that caused one party to reject the other and that the very long period of lack of contact was not marked by apparent anger or recrimination. The central finding was that Lynne, for reasons she did not express or explain (and about which one can only speculate), separated herself from her parents and, as the judge put it, thereby withheld love and support by an almost complete rejection of her mother.

Decision

148 I am of the opinion that the decision of the primary judge on the first-stage question was not affected by error of the kind that would justify intervention of this Court according to the principles discussed at [99] and [100] above. That is sufficient to dispose of the appeal. The question whether an order for provision should have been made in exercise of the second-stage discretion does not arise.

149 I propose the following orders:

1.If and to the extent that leave to appeal is required, grant leave to appeal.

2.Appeal dismissed.

3.That the appellant pay the respondent's costs of the appeal and of the notices of motion filed on 23 September 2011 and 29 September 2011.

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Amendments

19 February 2013 - Underlining added
Amended paragraphs: 50

21 March 2013 - Typo
Amended paragraphs: 33 line 2 "reasonably"

Decision last updated: 21 March 2013