Supreme Court New South Wales

• Medium Neutral Citation: Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129
• Hearing dates: 19, 20 & 21 September 2011
• Decision date: 20 October 2011
• Jurisdiction: Equity Division
• Before: Hallen AsJ

Decision

(i) The proceedings commenced by Michelle Tramantana are dismissed.

(ii) Having found that the Plaintiff, Joe-Anne Clarke, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, order that she receive, in lieu of that provision, a lump sum of $100,000, the burden of which provision shall be paid out of residue of the estate;

(iii) No interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment;

(iv) Having found that the Plaintiff, Brooke Anne Midson, and the Plaintiff, Harley Midson, is each not an eligible person within the meaning of the Act, and also that there are no factors warranting the making of her, and his, application, the proceedings commenced by each is dismissed.

(v) Reserve question of costs for further argument and stand the matter over to a date to be agreed.

• Catchwords: Three different proceedings, each a claim for a family provision order - Two applications are by daughters of deceased - Third application by two grandchildren of deceased - Defendants are executor named in Will of deceased, to whom Probate was granted, and the person said to be the de facto partner of the deceased at the date of his death - Additional issue in the proceedings brought by one Plaintiff relates to whether one of the properties, owned by the deceased, is held in trust for her.
• Legislation Cited: Civil Liability Act 2002; Family Provision Act 1982; Probate and Administration Act 1898; Property (Relationships) Act 1984; Succession Act 2006; Succession Amendment (Family Provision) Act 2008
• Cases Cited: Amaca Pty Ltd v Novek [2009] NSWCA 50; Blore v Lang (1960) 104 CLR 124; Bondelmonte v Blanckensee [1989] WAR 305; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Brown v Faggoter [1998] NSWCA 44; Churton v Christian (1988) 13 NSWLR 241; Collins v McGain [2003] NSWCA 190; Como v Helmers [2011] WASC 179; Cooper v Dungan (1976) 50 ALJR 539; Delaforce v Simpson-Cook [2010] NSWCA 84; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127; Diver v Neal [2009] NSWCA 54; Donis v Donis [2007] VSCA 89; Evans v Levy [2011] NSWCA 125; Foley v Ellis [2008] NSWCA 288; Ford v Simes [2009] NSWCA 351; Fulop Deceased, Re (1987) 8 NSWLR 679; Galaxidis v Galaxidis [2004] NSWCA 111; Giumelli v Giumelli (1996) 196 CLR 101; Goodman v Windeyer (1980) 144 CLR 490; Gorton v Parks (1989) 17 NSWLR 1; Hampson v Hampson [2010] NSWCA 359; Hawkins v Prestage (1989) 1 WAR 37; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256; MacEwan Shaw v Shaw [2003] VSC 318; McCosker v McCosker (1957) 97 CLR 566; McGrath v Eves [2005] NSWSC 1006; Mayfield v Lloyd-Williams [2004] NSWSC 419; O'Dea v O'Dea [2005] NSWSC 46; Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361; Pascoe v Turner [1979] 1 WLR 431; Penfold v Perpetual Trustee [2002] NSWSC 648; Permanent Trustee Company v Fraser (1995) 36 NSWLR 24; Petrohilos v Hunter (1991) 25 NSWLR 343; Plimmer v Mayor of Wellington (1884) 9 AC 699; Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9; Porthouse v Bridge [2007] NSWSC 686; Puckridge, Deceased, In the Estate of (1978) 20 SASR 72; Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100; Sayer v Sayer [1999] NSWCA 340; Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201; Skinner v Frappell [2008] NSWCA 296; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59; Sullivan v Sullivan [2006] NSWCA 312; Taylor v Farrugia [2009] NSWSC 801; Tsivinsky v Tsivinsky [1991] NSWCA 269; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Walker v Walker (NSWSC, 17 May 1996, unreported); Zahra v Francica [2009] NSWSC 1206
• Category: Principal judgment
• Parties: Michelle Tramantana; (Plaintiff in 2010/309744); Joe-Anne Clarke; (Plaintiff in 2010/383588); Brooke Anne Midson; (First Plaintiff in 2010/391072); Harley Midson (by his tutor Brooke Anne; Midson); (Second Plaintiff in 2010/391072); Roger Harborne executor of the Estate of; the late Joseph Tramantana; (First Defendant); Gwen Hancock; (Second Defendant)
• Representation: Mr M B Evans (Plaintiff in 2010/309744); Mr N Bilinsky (Plaintiff in 2010/383588); Mr K Morrissey (Plaintiff in 2010/391072); Ms E Glover (first and second Defendants) in each matter; Brydens (Plaintiff in 2010/309744); Marriott Oliver (Plaintiff in 2010/383588); Breens Solicitors (Plaintiff in 2010/391072); RMB Legal (first Defendant); Marsdens (second Defendant)
• File Number(s): 2010/309744; 2010/383588; 2010/391072

Judgment

1 HIS HONOUR: These reasons relate to three different proceedings, in each of which a claim for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act") is made. The proceedings were heard consecutively, with the evidence in one being evidence in the others.

2 The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is 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.

3 An additional issue, in the proceedings brought by one Plaintiff, relates to whether a constructive trust, in her favour, should be imposed on one of the properties, owned by the deceased. This part of the claim was referred to me, at the request of the parties, and by order of Bergin CJ in Equity, made on 15 September 2011.

4 The deceased, whose estate is the subject of the claims, is Joseph Tramantana ("the deceased").

5 The first application was made in the Summons, filed on 17 September 2010, by Michelle Tramantana, a daughter of the deceased. It is in her application that a declaration is sought that one ("No 69") of two of the deceased's properties at Busby, New South Wales (to which I shall refer as "No 67" and "No 69") is held on a constructive trust for her.

6 The second application was made in the Summons, filed on 15 November 2010, by Joe-Anne Clarke, who is also a daughter of the deceased.

7 The third application was made in a Summons filed on 24 November 2010, by Brooke Anne Midson and Harley Midson, by his tutor, Brooke Anne Midson. Each is a child of the Plaintiff, Michelle, and, thus, a grandchild of the deceased.

8 Each Summons was filed within the time prescribed by the Act (within 12 months of the deceased's death).

9 Although reference is made in each Summons to notional estate, the whole of the deceased's estate comprises actual estate. To the extent that No 69 is found by the Court to be held on trust for Michelle, it will not form part of the actual estate of the deceased.

10 The Defendants, in each of the proceedings, are Roger Arthur Harborne, the executor named in the Will of the deceased, to whom Probate was granted, and Gwen Hancock, a person said to be the de facto partner of the deceased at the date of his death. That she was, is subject of dispute.

11 Without any undue familiarity, or disrespect intended, in these reasons I shall refer to each of the Plaintiffs, each of the Defendants, and any other family members, by her, or his, given name.

Background Facts - Formal

12 The following facts are uncontroversial.

13 The deceased died on 16 December 2009. He was then aged 74 years, having been born in November 1935.

14 The deceased was married to Betsey-Anne Tramantana in December 1962. She predeceased him, having died in December 1987. She left a Will made on 25 August 1987, Probate of which was granted to the deceased. He was the sole beneficiary named in her Will, and subject to an order made under the former Act in favour of Joe-Anne, to which I shall refer shortly, the whole estate was left to the deceased absolutely. (In the event that the deceased did not survive her, the whole of her estate was divided between Joe-Anne and Michelle in equal shares "on their attaining the age of 25 years".)

15 In addition, the deceased inherited the interest of his wife, as a joint tenant, in No 69 and in a property at Greenwell Point, NSW. No 69 was the deceased's parents' house and had been given to the deceased and Betsey-Anne as a wedding gift. It is located next door to No 67, although there is no dividing fence between the two properties.

16 The deceased made a Will on 29 November 1996. That Will, relevantly, provided:

" 4. I MAKE the following specific devices (sic):

(i) I give to my daughter MICHELLE TRAMANTANA the property known as No 67 xxx Road, Busby and the furnishings and chattels within that same property.

(ii) I give to my daughter JOANNE (sic) CLARKE the sum of Ten thousand dollars ($10,000.00) because she was well provided for under my late wife BETSEY TRAMANTANA'S Estate, when Betsey died in 1987.

(iii) I give to TANIA McGEOWN of ... the sum of Ten thousand dollars ($10,000.00).

(iv) I give to ANGELA TAKIS of ... the sum of Ten thousand dollars ($10,000.00).

5. I GIVE DEVISE AND BEQUEATH the rest of my estate with real and personal of whatsoever kind and nature and wheresoever situate within Australia unto GWEN HANCOCK absolutely.

6. I NOMINATE all debts, funeral and testamentary expenses and the pecuniary legacys (sic) to be paid from the sale of my Home Unit, xx Railway Parade, Fairfield.

7. UNDER no circumstances is xx Greens Road, Greenwell Point to be sold if Gwen survives me for a period of more than sixty (60) days, xx Greens Road, Greenwell Point together with all its furnishings and chattels is to be given to Gwen Hancock unencumbered and absolutely.

8. IN THE EVENT that GWEN HANCOCK predecease (sic) me or dying within sixty (60) days of my death, THEN I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever kind and nature and wheresoever situate within Australia, unto my surviving Grandchildren absolutely in equal shares as tenants in Common and to be held in trust until they attain the age of eighteen (18) years.

17 On 8 June 2010, this Court granted Probate of the deceased's Will to Roger.

18 In the Inventory of Property attached to, and forming part of, the Probate document, the deceased's estate, as at the date of death, was disclosed as consisting of No 67 and No 69 ($290,000 and $310,000 respectively), real estate at Fairfield, New South Wales ($190,000), real estate at Greenwell Point, New South Wales ($280,000), moneys in cash and in bank on deposit ($34,353), shares in IAG ($1,186), cars ($1,000, $500, and unknown value respectively), household contents (no commercial value), and a boat ($20,000). The then total gross value of the deceased's estate was estimated to be $1,127,039. (I have stated, and, hereafter, shall state, only the dollar amount and omit a reference to the cents.)

19 No liabilities of the deceased, as at the date of death, were disclosed.

20 At the hearing, the parties were able to agree that the estimated gross value of the estate was $1,143,377 (subject to the payment of costs of the proceedings). The estate, currently, consists of cash in bank ($181,977), No 67 ($330,000) and No 69 ($307,500), the real estate at Greenwell Point ($310,000), the boat (now said to be of little value), and two motor vehicles ($12,500 and $500 respectively) and a motorcycle ($900).

21 There is an allegation that there are two amounts owing to the estate by Michelle, which total $40,890. The first amount claimed from her is $22,595, being the total debts incurred on a credit card, in the deceased's name, in respect of which she was a secondary cardholder. That credit card debt has been repaid out of the deceased's estate. The second relates to Roger's indemnity costs, incurred in respect of caveat proceedings, ordered to be paid, by Michelle, which are estimated to be $18,295.

22 For the purposes of calculating the gross value of the estate, ultimately, it was accepted that these amounts, totalling $40,890, are payable by her to the estate.

23 The only liabilities (other than the costs of the proceedings) disclosed are a claim for commission by Roger (estimated to be $13,500), the costs of applying to pass accounts and seek commission ($12,000 to $15,000), and the costs of winding up the estate, estimated to be $5,000.

24 The parties are agreed, also, that the two pecuniary legacies (totalling $20,000) to Tania and Angela, should be paid out of the estate and should not bear the burden of the provision, if any, made for any of the Plaintiffs.

25 The parties agreed, then, that the current value of the gross distributable estate, excluding the costs of the proceedings and costs of applying to pass accounts and seek commission, is, therefore, $1,145,767.

26 In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should be considered, since each of the Plaintiffs, if successful, normally, will be entitled to an order that her, and his, costs be paid out of the estate of the deceased, whilst the first Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate.

27 Michelle's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $86,280. Her costs, calculated on the ordinary basis, have been estimated to be $60,396.

28 Joe-Anne's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $61,180. Her costs, calculated on the ordinary basis, have been estimated to be $42,826.

29 Brooke's and Harley's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $59,860. Their costs, calculated on the ordinary basis, have been estimated to be $42,000.

30 The balance of Roger's costs and disbursements, including counsel's fees, calculated on the indemnity basis, (inclusive of GST and upon the basis of a 3 day hearing), yet to be paid, have been estimated to be $17,000.

31 Gwen's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), have been estimated to be $99,591. It is submitted that her costs, calculated on the indemnity basis, of defending the proceedings, should be paid out of the estate, since Roger's costs were limited because of her involvement in the proceedings.

32 The parties agreed, for the purposes of the hearing, and assuming that the estimates of costs prove accurate, and the usual orders for costs are made, that the value of the current estimated net distributable estate, will be in the order of $884,494. It will be appreciated, therefore, that this is not a large estate.

33 The persons who are eligible persons, within the meaning of the Act, are Michelle, Joe-Anne and Gwen. There is a dispute about the eligibility of Brooke and Harley. The notice prescribed by the Act has not been served on any of them. However, each has filed at least one affidavit that has been read in the proceedings (with the exception of Harley). Despite his age, he was present, in Court, during the proceedings. I am satisfied that service of such notice is, therefore, unnecessary.

34 Since the pecuniary legacy payable to each of Tania and Angela will be paid, and since it is not suggested that either is an eligible person, I am satisfied it is unnecessary to serve the prescribed notice on each of them.

Other Background Facts

35 The following additional facts are also not controversial.

36 The deceased met Roger in about 1968 or 1969. They remained friends throughout the deceased's life.

37 The deceased purchased the land at Greenwell Point and built a home there in about 1986 or 1987. He moved, there, to live, on a full time basis, in about June 2008.

38 No 67 was the family home of the deceased, Betsey-Anne, Joe-Anne and Michelle. It is a three-bedroom property. The deceased's parents also owned No 69, which is a two-bedroom property.

39 The deceased was diagnosed with leukaemia in the late 1990s. The disease was slow moving in his case, and he seems to have, generally, been well thereafter, although there is some dispute about when his health started to decline. Later in his life, he suffered from other conditions such as diabetes.

40 Gwen is aged 69 years, having been born in April 1942.

41 The deceased and Gwen met in about 1990. She moved into No 67 in about 1991. Between 1991 and 2003, they would go together to the Greenwell Point property to stay every second weekend. It is agreed that she did not live with the deceased after 2003. There was a dispute about the nature of their relationship between 2003 and the date of the deceased's death.

42 In March 1990, Joe-Anne commenced proceedings, out of time, in which the deceased was named as the Defendant, in which proceedings she sought provision under the former Act out of Betsey-Anne's estate. Windeyer J heard the proceedings in July 1992. His Honour found that Joe-Anne was "a good and caring daughter" to her mother. His Honour extended the time for the making of the application to the date of the filing of the Summons, and ordered that Joe-Anne should receive a lump sum of $50,000 and interest if the lump sum was not paid by 1 September 1992 out of Betsey-Anne's estate. His Honour also ordered that Joe-Anne should receive her costs calculated "on the common fund basis".

43 There is no dispute that the deceased paid to Joe-Anne the lump sum and her costs as ordered. However, after her legal costs were paid, she said that she received about $30,000.

44 At the date of that hearing, Michelle was living, with Brooke, and the deceased, in No 67.

45 Joe-Anne has four children aged 25, 23, 20 and 19 years. None of the grandchildren had any relationship with the deceased. There was an occasion, shortly before the deceased's death, when one of the grandchildren met the deceased in Sydney, but this was not a planned, but a chance, meeting.

The Statutory Scheme - The Act

Introduction

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

47 The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

48 Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

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

The Substantive Provisions of the Act

50 The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). I n New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Another category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act).

51 The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

52 In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002 ) :

"44 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

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

"The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough."

54 In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346, it had been said by Hope AJA:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

55 In the case of an applicant who falls within s 57(1)(d), (e) or (f), the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). This is relevant in the present case to the applications of Brooke and Harley.

56 The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

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

"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

58 In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian .

59 In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter . Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:

"In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

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

"8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

61 More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:

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

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

[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd ) (1987) 8 NSWLR 679 has stood the test of time."

62 It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter . With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA as correct and propose, in the circumstances, to follow their decisions.

63 Then, if those considerations are satisfied, the Court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the Court carries out a two-stage process.

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

65 It was said in the court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment".

66 Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

67 Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.

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

69 Neither are the words "maintenance" and "advancement in life" defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

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

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

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

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

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

72 The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA.

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

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

74 Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571 - 572, after citing Bosch v Perpetual Trustee Co Ltd , went on to say, of the word 'proper', that:

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

75 In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:

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

76 In Vigolo v Bostin at [114], Callinan and Heydon JJ said:

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

77 The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of the particular applicant.

78 Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

79 Tobias JA said:

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

...

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

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

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

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

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

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

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

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

83 The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testator or testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator, or testatrix, of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [35].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

85 It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no hierarchy as between the various factors. The weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender.

86 There is no definition in the Act of "financial resources" (which term is referred to in sub-s (2)(d)). However, there is a definition of that term in the Property (Relationships) Act 1984, which I consider helpful:

'"financial resources" ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit.'

87 Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

88 Section 60(2)(p) is open ended. It enables the court to look beyond the specific statutory matters that are set out in the immediately preceding sub-paragraphs and to consider any other matter it considers relevant.

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

90 Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

91 Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.

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

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

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

93 And by the comments of Callinan and Heydon JJ in Vigolo v Bostin , who wrote (at 230-231):

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

94 Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court; or

(b) the court determines that service of any such notice is unnecessary, unreasonable, or impracticable in the circumstances of the case.

95 The order may be made in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63(2) of the Act). An order may also be made in relation to property that is not part of the estate of a deceased, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act (s 63(5)).

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

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

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

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

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

97 It seems to me that this section, when read with s 66(2) (to which I shall refer later), the court may specify, as it could under the former Act, the beneficial entitlements in the estate which shall bear the burden of the provision and, in relation to each of those entitlements, the part of the burden which it shall bear (s 13 of the former Act).

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

99 Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).

100 Section 66 of the Act sets out the consequential and ancillary orders that may be made. Importantly, the Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order (s 66(2)).

101 The Court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

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

Applicable Legal Principles

103 Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.

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

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

106 The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.

107 Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker ( NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

108 In relation to a claim by an adult child, the following principles, in my view, are useful to remember:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia .

(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(e) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd .

(f) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of the applicant's case.

109 In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said (at 135):

"The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of...a fair distribution of ... [the] estate. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

110 In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(a) To be an eligible person within this category, there is a precondition of whole, or partial, dependency.

(b) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.

(c) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis , these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(d) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(e) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(f) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(g) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.

111 The authorities that provide the basis for the above summary, include Tsivinsky v Tsivinsky ; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46; Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223.

Estrangement of Applicant and the Deceased

112 In the case of Joe-Anne, there is no dispute that there was a period of estrangement for many years prior to the death of the deceased.

113 On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359:

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

114 Because, in this case, there is a factor raised by the Defendants that bears on the quality of the relationship, being that Joe-Anne and the deceased were said to be estranged for many years, it is necessary to set out some other general principles which should be remembered:

(a) The word 'estrangement' does not, in fact, describe only the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case ( Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33]).

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis .

(c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 - 575 per Kirby P (with whom Hope and Priestley JJA agreed):

"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will."

(f) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made.

(g) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis at [102].

115 In this case, I shall deal with the conduct of Joe-Anne and the deceased later in these reasons and the relationship between them that resulted.

116 I make it clear that I do not intend what I have described as "applicable legal principles" or other general principles to be elevated into rules of law. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

Credibility of the Witnesses

117 I am satisfied that many of the basic facts were not in dispute between the parties. However, in some areas there was a significant dispute. Because of the issue of the nature and value of the actual estate of the deceased, including whether or not a constructive trust should be imposed, I shall deal with the issue of the credibility of the witnesses first.

118 Before turning to the parties, I shall deal, in a summary way, with the evidence of those witnesses who were not cross-examined and whose evidence, to which I shall refer, I accept.

119 Kevin Smith, a neighbour of the deceased at Greenwell Point and a close friend, knew him for over 20 years. He says that following her move to Greenwell Point, he would see Michelle at least 3 times a week. The deceased said of her that she "only comes down when she wants money" whilst at the same time acknowledging that "if it wasn't for Michelle and the kids, I wouldn't know how to cope". On one occasion, the deceased said: "Michelle is well looked after in the Will although she does not deserve it".

120 Mr Smith also gives evidence of the deceased's hostility towards Joe-Anne. The deceased described her to Mr Smith as "that bloody bastard daughter of mine".

121 Finally, Mr Smith says that he had not seen Gwen for at least 4 to 5 years prior to the deceased's death.

122 Dave White, another neighbour of the deceased states that he was aware of the relationship between the deceased and Gwen and that the relationship continued despite the fact that she went to look after her own mother.

123 Robyn White, also a neighbour of the deceased, states that even after Gwen went to look after her mother, "Joe and Gwen remained partners and saw each other whenever they could". She talks about observing Gwen coming to the Busby property regularly, which suggests, that the period to which she is referring is before June 2003.

124 James Larue, Gwen's brother in law, and Jan Larue, her sister, each gives evidence (in exactly the same terms) of having observed "over the last 20 years ... an ongoing relationship between Gwen and [the deceased] ... [which] continued, from my observation until [the deceased's] death". Neither gives any details of his, or her, observations.

125 William Hancock, Gwen's brother, states that "from my observations she and [the deceased] remained very close together and she also cared and looked after [him] as much as she could until his death".

126 Christine Hesel, a friend of Gwen, who would visit Gwen's mother's home, says that "on numerous occasions", she would see the deceased, who was "mainly sick and resting". She says that Gwen had taken him to the doctor, although how she knows this is not explained.

127 Caterina Tramantana, the sister-in-law of the deceased, states that she, Gwen and the deceased, socialised with her and her husband "on many occasions, up to and including a few weeks before his death".

128 Mel Moylan, an age care worker, who helped Gwen look after her mother since July 2009, says that when she visited, she would find the deceased "lying on the lounge being cared for by Gwen".

129 Joady Marshall, who met Michelle in about 2004, became friends with the deceased. She would see him regularly and they would visit each other. She says that from about February 2009 to April 2009, she collected rent from tenants of No 69 and deposited what she collected directly into Michelle's bank account. She does not state on whose authority this was done, although she says that she was present when the deceased, in response to a query from a tenant, said "It's Michelle's house so you have to sort it out with her direct".

130 Ms Marshall also says that, in the time she knew the deceased, she had never met Gwen. The deceased did not identify Gwen, to her, as a woman with whom he was having a relationship.

131 I turn then to the parties.

132 There were many aspects of Michelle's evidence that lead me to the view that I must consider her evidence very carefully. Her evidence, I thought, was coloured by her animosity towards the Defendants and towards Joe-Anne. In addition, she seemed, at times, to demonstrate the view that she had an absolute right to further provision out of the deceased's estate and, on occasions, one of which is referred to below, she refused point blank to answer questions put to her in cross-examination. She expressed the view: "You don't need to know my whole life story. I think that is my business. You don't need to know everything."

133 Overall, I am not satisfied that I can have confidence about much of her evidence. The following aspects of her evidence demonstrate that this view is not unduly harsh.

134 More than once, counsel and I each requested Michelle to allow the cross-examiner to finish the question before she answered. Despite these requests, she did not do so.

135 It was quite clear that many of the dates stated in her affidavits were wrong. She explained the errors in the dates she had given under oath as being based upon a faulty memory caused by her drug taking. Whilst I am prepared to accept that explanation for some of the inaccuracies in her evidence as to the dates, I am not prepared to accept that explanation in relation to two specific dates, and to various other aspects of her evidence.

136 The specific dates to which I refer relate to the date she said that the deceased's relationship with Gwen ended. At first, she said that it ended in 2001. Later, she said it ended in 2006. Her evidence that it ended completely is also inaccurate, as has been, and will be, demonstrated by some of the objective evidence and by Gwen's evidence, which I accept.

137 She denied, initially, when asked, whether there had been a period of estrangement between the deceased and her for about 8 years between 1992 and 2000. She denied that there had been and said that on occasions when she returned to Sydney, she would see the deceased "around the streets". When the statement in her affidavit to the effect that there had been estrangement for that period of time was put to her, she accepted that her oral evidence was wrong.

138 She stated that she had assisted the deceased in various matters, including driving him to doctor's appointments and to hospital treatments from about 2006. In a Claim for a Carer's Payment and/or Carer's Allowance, completed by her in August 2008, she had stated that she had started to provide care to the deceased in February 2005 "on 6 to 7 days a week". She did not assert in that document that she provided "constant" care.

139 In a similar document, dated November 2008, this changed and she asserted that she was providing "constant care".

140 She had stated in her affidavit evidence that, in 2006, and 2007, she had been conducting a take-away business. When it was put to her that she could not have been looking after the deceased throughout 2006 and 2007, as she had described, initially, she said that she had not had to work very hard in that business because of a lack of customers. However, when it was pointed out to her that she had stated to a psychologist, whom she had seen in relation to injuries and disabilities alleged to have been suffered by her in a motor vehicle accident in December 2007, that she had been conducting a take-away business in which she used to work 7 days a week, spending over 70 hours per week, she admitted that, perhaps, the assistance that she had provided to the deceased had commenced in early 2008.

141 It was put to her that she had told the psychologist that she "first drove four months following the accident". She then agreed that her oral evidence was incorrect and that the assistance she provided to the deceased had commenced in about "the middle of 2008".

142 She also gave evidence that from 2006 onwards she was doing volunteer work at Harley's school.

143 Whilst she admitted, in cross-examination, that there had been some disputes between her and the deceased in 2006, she denied any disputes between the deceased and Brooke, or that the deceased had ever asked her to leave No 67 (where, for about 2 weeks, she, Brooke and Harley, had been living with the deceased and Gwen).

144 Two documents were tendered, without objection, which were contemporaneous with the relevant events. The first was a copy of an application dated 6 June 2001, made to the Department of Housing, in Michelle's handwriting and under her signature, and after she had returned to NSW from Queensland, in which she stated:

"DVO (domestic violence order) Don't get along with father argue all the time not good for the children because of the D.V. (domestic violence)"

145 The second was a copy letter dated 16 July 2001, from a Counsellor Caseworker of the Child Protection Family Service, which stated:

"Ms. Midson moved from Queensland to NSW in April this year, fleeing a very serious Domestic Violence situation with her former partner Sean Midson Ms.Midson has two small children. Harley 2 years of age, and Brooke 8 years of age, in her care.

Michelle has been living with her father and his wife in his home at Busby, and Brooke has been attending the local primary school at Busby.

There has been ongoing conflict and difficulties between Ms. Midson and her father, and her father with her daughter. Recently this situation reached a point where the conflict resulted in Joe telling Ms. Midson she needs to leave, and find another place to live."

146 Michelle denied the contents of the letter upon the basis that she did not remember the author of the letter. I accept that the facts asserted in the letter occurred.

147 There were many other documents tendered which demonstrated that Michelle's evidence about where she was living, at different times, was inaccurate. I am satisfied, for the most part, that the address provided in the relevant contemporaneous document more accurately disclosed her then current residential address. I do not accept that she, Brooke and Harley were living with the deceased in No 67 for as long as she asserted. In my view, the period in which they all lived in No 67 was about 2 weeks.

148 In relation to the conversation about No 69, in her first affidavit, sworn in September 2010, after describing an incident between the deceased and Gwen's daughter, Angela (which I am satisfied occurred in 2003), Michelle stated:

"I continued to reside in property xx xxxxx from this time. On my move into the property at No 69 the deceased had continually said to me words to the following effect "This is your house now. Whatever goes wrong in it don't come whinging (sic) to me because I am not going to fix it. Whatever is your liability you fix it". I understood this to mean this property was mine from that time and if there were any issues with any hot water systems or any issues in relation to the property then I was to attend to them. I was to also pay for all rates, water bills and electricity and any other costs associated with the property. Annexed hereto and marked with the letters 'B' to 'J' are copies of some of my bank accounts statements showing payments I have made towards the xx xxxx property."

149 Pausing there, Michelle agreed that the bank account from which those expenses had been paid, was the deceased's bank account, on which she was a joint signatory, and that each of those accounts had been taken to the Bank following his death and had been paid, by bank cheque, drawn on that account. I find, therefore, that Michelle paid these accounts, not out of her own funds as she had asserted, but out of funds belonging to the deceased.

150 In her affidavit sworn in September 2011, she stated, in relation to No 69:

"In or around February 2006 I moved into xx xxxx. In or around April 2006 the deceased said to me "Gwen's not coming back". He also said "I have leukaemia, I have got to get to the doctors and I will need someone to pay my bills, do shopping, do the washing, ironing and take general care of me". He said to me "Will you do it for me". He then said "If you do it for me in return I will give you xx xxxxx on condition that you pay land rates, water rates and maintenance costs". He said "It is like you own your own home and you have to pay for everything. Once you are in there and own it, it is your responsibility"."

151 Apart from the conversation having an unrealistic air about it, it is a version relating to No 69 that is inconsistent with what Michelle had written in her first affidavit. It also was unlikely to have taken place at the time she stated, as in 2006 and 2007, she was working in the take-away business referred to above. Next, she had moved into No 69 well before February 2006. Also, there is no evidence of the deceased's condition having deteriorated in, or around, February 2006 to the extent that he would have required assistance to get to doctors, to pay bills, or to take general care of himself. The evidence is to the contrary. Finally, Gwen, on the evidence, had ceased to live with the deceased in 2003.

152 A report of the psychologist who Michelle saw in June 2009 records that she "lived in a property owned by the family" and that following the accident, "she could not afford the land rates and water rates associated with the family property" and "[S]he pursued accommodation with the Department of Housing".

153 In the Claim for a Carer's Payment and/or Carer's Allowance, completed by her in August 2008, Michelle stated that the category which best described where she lived was "in a place where you pay private rent", that she paid $200 per week as rent, maintenance or site fees, and that the person ("the landlord") to whom she paid rent, was the deceased. She also stated that she had started paying that amount in February 2002.

154 This is inconsistent with her belief that the deceased had given her No 69 in 2001, or in 2006, absolutely.

155 In relation to Michelle's assertion that in 2008 and 2009, the deceased received the rent from No 69 into his bank account and gave it to her, the deceased's bank statements for the period 1 April 2009 until 30 June 2010 were tendered. These bank statements disclosed the rental payments being made by the real estate agents who handled the lease of No 69, into the bank account, but no withdrawals from the account had been made.

156 No other bank records were tendered that demonstrated that the deceased withdrew funds from his own account and gave them to Michelle for her own use.

157 Michelle had given the following evidence in cross-examination:

"Q. I put it to you that the rent was paid...

A. Into my father's account

Q. --into

A. like I stated, and then my father withdrawed the money each month, when it got deposited into his account, it was agreement between me and my father. And I ain't going to answer no more questions on that because that's regarding my father and I. And I can't answer no more questions in regards to this, your Honour, for my protection.

Q. Mrs Tramantana, at no stage did your father pay you any rent that he received...

A. Yes he did, yes he did, and I ain't going to state no more

Q. from the property at number xx xx xxxxx xxxx, Busby?

A. I'm not going to answer your question. I just told you yes, and I can't answer no more questions in regards to this for my protection, and I ain't going to state no more, your Honour ...

... "

158 It is also inconsistent with a copy of the Housing NSW "Sign Up Declaration", dated 13 November 2008, in the handwriting of, and signed by, Michelle. In that document, she did not disclose any sources of income other than a carer's pension and stated that she had not received any additional income "from any source during the last six months".

159 This is not to say that I do not accept Michelle's evidence about providing some assistance to the deceased, or on occasions, driving him to medical, or other, appointments. Gwen, for example, admits that on one occasion, she saw Michelle mow the lawn; she admits, also, "there were times when Michelle would drive [him] to hospital".

160 Whilst I am prepared to accept that Michelle did provide some assistance, I am of the view that she grossly exaggerated the level of assistance she provided to the deceased and the period during which she provided that assistance to him.

161 Michelle stated in her affidavit that there had been no contact with Gwen after she left No 67. She then admitted, that there was only one occasion when Gwen drove the deceased to hospital and only one day when he had stayed with her. This is inconsistent with other evidence that I have referred to, and also to Gwen's evidence, which I accept.

162 Joe-Anne was more forthright and less combative than I found Michelle to have been. She admitted having served a custodial sentence for defrauding Centrelink immediately when asked about it. She did not prevaricate, or seek to justify her actions, which led her to her imprisonment and which she admitted were wrong. She immediately acknowledged, also, that there had been a period of estrangement between her and the deceased, which she said lasted for about two years, but that after that time, she telephoned the deceased and that he spoke to her.

163 Yet, I do not accept some of her evidence. I do not accept her evidence that the period of estrangement lasted only two years. This is inconsistent with the way in which the deceased had referred to Joe-Anne in his conversations with others for a period that extended well beyond 1994. She also said that she telephoned the deceased as often as every 2 or 3 weeks and sometimes every 2 or 3 days, at different times, and that the deceased spoke to her on these occasions.

164 Furthermore, she admitted that, despite telephoning the deceased at his home, at different times, on not one occasion after 1994 and before 2003, was the telephone ever answered by Gwen. Joe-Anne was completely unaware, otherwise, that Gwen was, and had been, living with the deceased since the early 1990s. If the telephone contact and/or the relationship with the deceased were as she asserted, this assertion defies belief.

165 I also do not accept that she spoke to the deceased during the last year of the deceased's life, every 2 or 3 days. This is inconsistent with her evidence that it was Michelle who telephoned her to let her know that the deceased was sick and to let her know how he was. Had she been telephoning as often as she said, telephone calls from Michelle would have been unnecessary.

166 That the deceased said that he was going to leave everything to her and to Michelle equally defies belief, particularly if the evidence given by others, including Michelle, about the deceased's views of Joe-Anne, is accurate.

167 However, I am satisfied that there was some telephone contact between Joe-Anne and the deceased after about 1994, although it was not as frequent, or as regular, as Joe-Anne asserted.

168 Furthermore, I accept the evidence, given by Gwen, that on one occasion, Joe-Anne's husband telephoned the deceased to encourage him to speak to Joe-Anne. I do so firstly, because I accept Gwen as a witness of truth, secondly, because her evidence on this topic was not challenged, and thirdly, because Joe-Anne's husband did not swear an affidavit refuting the conversation. This conversation suggests at least an attempt, made on behalf of Joe-Anne, to repair the relationship with the deceased.

169 In medical records relating to the deceased made in November 2009, there is a reference to the deceased having two daughters, with one of whom (at Queensland) there was "nil contact since wife died in 1978". (Part of this statement is incorrect since the deceased's wife did not die in 1978, but in 1987. It is not entirely inconsistent, if one reads the date as 1987 and accepts, as I do, that there was little contact after that date.)

170 Brooke was also cross-examined. Overall, whilst she was somewhat defensive, I found that she answered the questions to the best of her ability and bearing in mind some of the events about which she answered questions occurred when she was a child.

171 I think she exaggerated the nature and extent of her relationship with the deceased. I do not accept her evidence that there was never conflict between them. I think it is probable that they did argue and that, on occasions, they did not speak to each other. Michelle admitted as much in her affidavit when she stated "Brooke and my father had their differences over certain things".

172 In this regard, there is no reason to disbelieve the conversation that Roger stated that he had with the deceased, in which the deceased said to him:

"I know that Peppie would have liked to have had a close relationship with his daughter, Michelle and, in particular, Harley. However, Michelle was constantly asking him for money and did not live the way that Peppie expected her to. I recall one Christmas Day at Greenwell Point Peppie coming to our house to have dinner and he said words to the effect:

I am very pissed off because I prepared a large meal for Michelle and Harley. Brooke was not invited. Michelle just lobbed in and asked for money and would not stay for lunch, as she said she had other things to do. I am so disappointed."

173 Brooke was, however, candid, that throughout the time that she lived in No 67 or No 69, she lived with Michelle, her mother, and it was upon her that she depended. It was her mother "who has always taken care of everything for me". (She also stated that her mother had always provided for her, but added "as well as my grandfather". She was not asked any questions to explain that statement. She did not provide any explanation of that statement in her affidavit.)

174 These matters are consistent with Michelle's evidence. She, too, states, in relation to the period when she moved into No 69 that "My children were living with me". She also stated that the deceased "provided me with a roof over my head".

175 There was also an inconsistency, however, between Brooke's evidence and Michelle's evidence on the support provided by the deceased for Brooke and Harley. In Brooke's affidavit, she had stated:

"From about 2003 until my grandfather's death, he gave my mother on average about $100 per week to help support Harley and me."

176 Michelle's evidence, when she was taken to this passage in Brooke's affidavit, was:

"Q. Your daughter Brooke gives evidence in these proceedings that from 2003 to 2009 you received from your father approximately $100 a week. You would not disagree with that, would you?

A. No, because I was running my father around and I could not afford all the petrol to run my father backwards and forward from Sydney.

Q. So that is roughly a week-to-week payment we are talking about?

A. Yes, that is for running my father around."

177 Harley, as stated, not unnaturally, did not give evidence.

178 I was most impressed by Roger in the witness box. He gave his evidence clearly and straightforwardly. He did not appear to be favouring any side over the other. For example, he had acknowledged in his affidavit that on at least one occasion, whilst he was at Greenwell Point, Joe-Anne had telephoned the deceased.

179 Roger admitted much of the content of his affidavit repeated what he had been told by the deceased. There is no reason to disbelieve his evidence in this regard and it was not suggested that the evidence of any conversation that he had repeated was false.

180 Whilst it may have been that Roger did not see the deceased as often as he had in the past, I do not accept Michelle's evidence that their relationship had deteriorated, or that the deceased told her to be careful with Roger. So far as I can see, there is no basis for that statement, and, if true, it is inconsistent with the deceased permitting Roger to remain as the executor of his Will.

181 I accept the oral evidence given by Roger, in relation to the deceased's relationship with Gwen, which includes his statement that:

"Living apart, but they were still as close as friends can be at a distance, you know, she wasn't living in the house with him, but if he needed anything she was the person he'd go to, she was a go to person for him.

...

He wanted to marry her. He even spoke about buying her a ring."

182 This evidence was confirmed, at least in part, by medical records dated September 2009, under the signature of the deceased, in which Gwen was described as "the person to notify" or as the "person to contact" and/or as "next of kin". Her relationship to the deceased, on each occasion, was described as "female friend".

183 The medical records also refer to the fact that he was "staying with friend Gwen at her home at Rydalmere" and that "prior to June this year Pt said he was physically fit and active". Whilst there is a reference to Michelle, it is not suggested that she provided care, although it refers to maintaining regular contact with her.

184 The medical records to which I have referred, also confirmed that the deceased lived alone and that he had "limited social support". There was no identification of Michelle as his carer. He also described himself as "very active until recently". These contemporaneous records provide an additional basis for expressing the view about Michelle set out above.

185 Gwen was cross-examined on the third day of the hearing. I found her to be a forthright and honest witness whose evidence I accept. Without any prevarication, she admitted that her relationship with the deceased changed after she left the deceased's home in 2003. She did not accept, in my view, appropriately, that, thereafter, they had no relationship. She maintained that they continued to have a relationship, albeit that they did not live together or see each other all the time.

186 Michelle was highly critical of Gwen in her affidavit. I do not accept the criticism was justified. Apart from anything else, the conduct the subject of the criticism related to Gwen's conduct towards the deceased. In this regard, the deceased, himself, by nominating Gwen as the primary beneficiary of his estate, does not appear to have shared Michelle's view.

187 However, I am satisfied that Gwen and the deceased were not in a de facto relationship at the date of the deceased's death. Their relationship remained close and loving and each would do what he, or she, could for the other. She remained an important person in the deceased's life and a chosen object of his testamentary bounty.

188 Ms Margaret Abel, Gwen's sister, was also an impressive witness. She, too, gave evidence of her observations of the relationship of the deceased and Gwen. I found her evidence to be given in a manner that was spontaneous and unrehearsed. I accept her evidence also. She corroborated some of Gwen's evidence.

The Trust Claim

189 I shall deal next with the trust claimed in respect of No 69. Michelle asserts that the deceased told her that she could have No 69 and that acting upon that representation, she moved into occupation and paid expenses incurred in respect of that property. She says that when No 69 was rented, the deceased gave her the rent. By making the payments, she acted to her detriment on the faith of the promise made to her and in those circumstances an equity arises in her favour: Giumelli v Giumelli (1996) 196 CLR 101. She says that the equity is not determined simply by identifying the monetary value of her contributions or detriment incurred by her in acting in reliance on the promise: Pascoe v Turner [1979] 1 WLR 431.

190 Bryson AJ in Zahra v Francica [2009] NSWSC 1206 said:

"1 In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

"... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available."

2 A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson , see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA's par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities."

191 There is no written instrument evidencing any claim for a trust prior to the death of the deceased. Nor is there any written document in which Michelle made any claim regarding an absolute interest in No 69 prior to the death of the deceased. Nor is there any corroboration of any of the conversations relied upon by Michelle (other than as set out in respect of Ms Marshall).

192 There is one document that might suggest that the deceased did not have a beneficial interest in No 69. In a "Centrelink Statement for Age Pension" in the name of the deceased, dated 13 July 2009, under the heading "Real Estate and Business Dealings", No 69 is not referred to.

193 The doctrine of proprietary estoppel is conveniently described as follows by Handley AJA in Delaforce v Simpson-Cook [2010] NSWCA 84 at [21]:

"The proprietary estoppel upheld by the Judge was an estoppel by encouragement. Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part."

194 It is Michelle who must prove the conduct by the party estopped (the deceased) which created or encouraged an expectation in Michelle that she had, or would acquire, an interest, or benefit, generally in his property (No 69). Then, she must establish acting to her detriment in that expectation. It may become unconscionable for the party estopped to deny that expectation, and if so, she will have a remedy in equity.

195 Michelle submits that No 69 should be transferred to her absolutely. She does not seek any other relief in respect of that property, such as a personal right to return and stay in the property for as long as she wishes. Nor did she consent to the Court imposing an obligation that she pay rates, taxes, insurance, repairs and other outgoings in such circumstances.

196 I have dealt with the difficulties in accepting Michelle's evidence on this, and other, topics. I do not accept her evidence as it relates to the conversations relied upon. In those circumstances, it is unnecessary to proceed further. However, in case I am wrong, I shall identify a number of other problems with this part of Michelle's claim.

197 Firstly, it is clear that a promise that is sufficiently clear and unambiguous to give rise to the estoppel must be established. It is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the conversation in which the promise was made in a particular way, being one that it is clearly capable of bearing and upon which it is reasonable for the promisee to rely: Galaxidis v Galaxidis [2004] NSWCA 111 at [82] - [94]; Sullivan v Sullivan [2006] NSWCA 312 at [85] Hodgson JA (Handley and McColl JJA agreeing on this point).

198 The promise may, however, lack sufficient certainty or specificity to satisfy the requirements of an enforceable contract at law. In this regard, one assesses the question of clarity and certainty practically and sensibly as well as contextually.

199 The conversation said to have taken place in 2001 that is relied upon is not clear or unambiguous. In my view, the reference to "your house" is equally consistent with meaning that Michelle was to have the use and occupation of, and to look after, No 69, for as long as she wished to live there, and, whilst she did, to be responsible for all outgoings on, and the maintenance of, that property. Merely referring to "your house", could not, in my view, reasonably lead to the belief that, thereafter, No 69 was to be hers absolutely or that the deceased was conferring a gift of No 69 upon her.

200 The conversation said to have taken place in 2006 that is relied upon is not clear or unambiguous either. It is consistent with Michelle being able to live in No 69 for as long as she wanted to on the basis that she paid all of the outgoings in respect thereof and if she assisted the deceased.

201 That this conclusion is available is evidenced by a document partly in the handwriting, and under the signature, of Michelle. In an "Application for Pension Rebate for Life Tenant or Will Beneficiary" dated 6 December 2007, in which a reference was made to No 69, in answer to the question "Are you a life tenant", Michelle circled "Yes".

202 In the same Application, Michelle identifies the "outgoings solely responsible for paying" as electricity bills ($90), telephone bills ($60), and "fines/loan/credit card/insurance/rent" ($680).

203 There is also a document, in the handwriting, and under the signature of, the deceased, addressed to Sydney Water, in which he states that Michelle "has resided in No 69 ... since 6 February 2,000 (sic)" and that "she now is a lifelong resident of this address".

204 I have earlier rejected Michelle's evidence that she received the rent from No 69 when it was rented on behalf of the deceased by the real estate agents.

205 Michelle must establish, also, that she relied upon the deceased's promise (assuming it was made). In my view, she has not done so. She moved into No 69 well before the deceased made any promise in 2006. There is, in my view, no connection between the promise that she said was made in 2001, and her moving into No 69 in about February 2002.

206 Michelle, then, has the onus of showing facts that make it unconscionable for Roger, as executor, to go back on the deceased's representation (assuming the representation was made). The evidence reveals that whilst she may have paid some of the outgoings for a short period, she did not continue, and the deceased was required, to do so.

207 In relation to the conversation said to have taken place in 2006, Michelle's own evidence reveals that she did not complete her part of the "bargain" to attend to the deceased until at least the middle of 2008. By that time, she had lived in No 69 for almost 6 years.

208 In my view, Michelle cannot point to there being any unconscionability. In Donis v Donis [2007] VSCA 89, at [36] and [40], Nettle JA expressed the principle in the following terms:

"The underlying principle is that conduct of the promissor in engaging the complainant to change his or her position to their detriment on the footing that the promised property will be theirs, when acted upon by the complainant, creates an equity which binds the promissor to make good the expectation ... The equity which binds the promissor to adhere to his promise inheres in the detriment which the promisee suffers by acting in reliance upon the promise."

209 Any amount Michelle paid in respect of No 69 appears to have been less than the amount that she had been paid previously as rent; there was no change of position by her in the sense that she gave up any rights; and she suffered no disadvantage by living in No 69. To the contrary, she was able to reside there, with her children, upon the basis that she paid a nominal weekly amount for outgoings, which as said, she did not continue to do. Even then, the deceased did not ask her to leave. She left, subsequently, of her own accord.

210 Finally, assuming all relevant matters had been established, the Court must look at the circumstances in each case to decide in what way any equity can be satisfied: Plimmer v Mayor of Wellington (1884) 9 AC 699 at 714. Relief may be limited where the enforcement of the expectation would be out of all proportion to the detriment: Plimmer v Mayor of Wellington at 104, 111, 115.

211 This is what was also said in Delaforce v Simpson-Cook , by Allsop P, at [3] - [4]:

"[3] I agree in particular with Handley AJA that the reasons of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 appear to remove as a governing principle in the relief to be granted in equitable or proprietary estoppel cases the notion of enforcement or vindication only of the "minimum equity": see Giumelli at 123-125 [40]-[48]. That, of course, does not make irrelevant matters that can assuage the detriment brought about by the resiling from the representation or encouragement by the party concerned. It does mean, however, that relief in such cases is not to be measured by weighing detriment too minutely in order that it be converted into some equivalent of cash or kind, as if one were measuring the consideration for a commercial bargain. Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. Equity has always had a place in keeping parties to representations or promises: see for example, Burrowes v Lock (1805) 10 Ves Jr 470; 32 ER 927; Horn v Cole 51 NH 287; 12 Am Rep 111 (1868); J N Pomeroy, A Treatise on Equity Jurisprudence Vol 3 (5th ed, 1941) at 179-188 [802]-[803]; R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrine and Remedies (4th ed, 2002) at 556-560 [17-065]-[17-070] and 567-568 [17-110].

[4] Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713-714; Riches v Hogben [1985] 2 Qd R 292; Giumelli at 113-114 [10] and 121-122 [35]. It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances."

212 In this case, assuming that all other matters had been established (which they have not), Michelle's claim for the whole of No 69 is extravagant and out of all proportion to any detriment she has suffered. It would be unjust, in all the circumstances of this case, to grant her that relief. I am not satisfied that any constructive trust should be imposed upon No 69 and no lesser form of relief should be awarded as it has not been sought.

213 Finally, I note what was recently said by Corboy J in Como v Helmers [2011] WASC 179 at [78]:

"Cases in which courts have recognised a proprietary estoppel in a domestic or family context generally involve acts of reliance and the prospect of detriment that extend beyond what would ordinarily be attributable to natural love and affection and/or the recognition of family ties and obligations. It is that extra dimension in the facts that will often mark the departure or proposed departure from a representation or assumption as unconscionable. It will also stamp the relevant representation or promise with the clarity required for an estoppel and indicate that what was said or done was intended to affect legal relations between the parties."

214 Michelle's trust claim should be dismissed.

Additional Facts

215 I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60(2) of the Act and by a consideration of the factors relevant to all claims at the same time, as this will permit the application of the statutory criteria to be weighed comparatively in relation to the claims. Where necessary, I shall also consider the competing claim of Gwen.

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

216 Michelle and Joe-Anne is each a daughter of the deceased.

217 Michelle left home (No 67) in 1987 at the age of 17 years. Following her mother's death, she went first to live with Joe-Anne, who was then living with her husband at their property, also in Greenwell Point. She is said to have kept in contact with the deceased during the period that she was not living at home. She moved back in about mid-1988.

218 In about 1990 or 1991, she commenced a relationship with Sean Midson, the father of Brooke and Harley. As a result of that relationship, her relationship with the deceased suffered.

219 Michelle went to Queensland in about 1992. She admitted that she was estranged from the deceased between 1992 and 2000.

220 Michelle served a term of 3 months imprisonment in about March 2000. She was discharged in June 2000.

221 Michelle returned to New South Wales in about April 2001. With the assistance of the deceased, she went into drug rehabilitation and has taken no drugs since about April 2002. She was permitted to resurrect her relationship with Brooke and Harley following this.

222 For a short period in June 2001, Michelle lived with the deceased and Gwen in No 67. She then obtained Housing Commission accommodation elsewhere but returned to live there. For about 2 weeks, Michelle lived with the deceased and Gwen at No 67.

223 Following the tenants of No 69 vacating, and the deceased cleaning it, Michelle, Brooke and Harley, moved into No 69 where they lived together until about late 2008. They then moved to Housing Commission accommodation in, or near, Nowra.

224 I am satisfied that the relationship of the deceased and Michelle was reasonably close. Whilst she exaggerated the assistance that she provided to him, and the duration of that assistance, I am satisfied that Michelle did assist the deceased and that after 2001 kept in regular contact with him.

225 Joe-Anne left school at the end of year 8. She married Neil Clarke in August 1985, at the age of about 18 years, at which time she left her parents' home (at No 67). For about 6 months, she and her husband lived in a caravan on the Greenwell Point property. After that, they moved to rented accommodation in Greenwell Point. They moved to Gympie, Queensland in about 1991 and she, with her family, has lived there, or near there, since then.

226 Joe-Anne's relationship with the deceased was not as close as she asserted. The deceased was clearly disappointed that she had brought the claim under the former Act, which resulted in a legacy of $50,000 and costs having to be incurred. Joe-Anne had a statutory right to make a claim, and it was one that was vindicated by the making of an order in her favour.

227 I am satisfied that there was an estrangement, which whilst not complete, did result in a relationship that was not as close, or as loving, as it could have been. I am also satisfied that the deceased expressed his disapproval of Joe-Anne's conduct to Michelle and others.

228 It also cannot be forgotten that there was no face-to-face contact between them for over 18 years. I do not accept, as entirely reasonable, Joe-Anne's explanation that she was unable to afford to travel to Sydney. She neither asked the deceased, and he did not offer, to pay her expenses to do so, which, in each case, is demonstrative of their relationship.

229 Brooke and Harley is each a grandchild of the deceased.

230 In February 2000, they were both placed on Short Term Guardianship Orders with the Director General. Their care was with their paternal grandmother, Gail Midson. However, they did not stay with her until shortly after May 2001, when they went to live with her for about 8 weeks. They returned to Michelle's care from 27 June 1991.

231 Although it was submitted that the deceased was the guardian of Brooke and Harley, there is simply no evidence of this. Nor is there any evidence that either was ever, formally, placed in his care. At all times, when they lived in either No 67, or in No 69, they lived with Michelle, who was the primary caregiver to each of them.

232 It was submitted that the deceased was "their de facto guardian". Again, there is no evidence of this. In fact, there is no evidence at all about what he did, if anything, for either Brooke or Harley. What was relied upon was the statement in Brooke's affidavit that, whilst they lived with Michelle, in either No 67 or No 69, "our grandfather provided us with a stable environment in which we could grow and develop". How he did so, was not explained in her evidence. Gwen was not asked any questions about her observations in this regard.

233 The deceased was fond of Brooke, and Gwen acknowledges that he "adored" Harley. He and the deceased had a very good relationship. I accept that this was so. However, I am not satisfied that either had a relationship with the deceased that transcended a grandparent/grandchild 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

234 Disregarding any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to either Michelle, or Joe-Anne, imposed upon him by statute or common law. However, because Michelle lived with her children in No 69 for as long as she did, and then moved to be nearer to Greenwell Point, where the deceased lived, a moral obligation to make provision on his death may have been owed to her.

235 I have earlier dealt with the conversations alleged to give rise to the trust claimed in respect of No 69.

236 Joe-Anne had been financially independent for many years prior to the deceased's death. Because of their relationship, also, I do not consider that there was any obligation, or responsibility, owed to her by the deceased.

237 To the extent that there is any obligation, or responsibility, arising as a result of their relationship as grandparent and grandchild, the deceased did not have any legal, or financial, obligation to either Brooke or Harley, imposed upon him by statute or common law. It does not appear that either of them lived with the deceased without their mother living there also and then, what was provided, was provided to her, not to either of them. Nor is there any suggestion that the deceased acted in loco parentis in respect of either at any time.

238 I have earlier referred to the relationship of the deceased and Gwen. There was no legal obligation or responsibility arising out of their relationship.

(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

239 I have dealt with this earlier in this judgment. The value of the deceased's estate, on any view, is not large.

(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

240 Michelle's financial resources and financial needs, both present and future, may be summarised as follows (omitting her entitlement under the deceased's Will):

(a) She receives a total of $502 per fortnight by way of Centrelink benefits.

(b) Her expenses total about $430 per week.

(c) Other than the amount owed to the estate, she has other debts.

241 Michelle has been out of work, apart from conducting the take-away business, and performing some casual work between February and July 2011, for many years. Whilst she does have an earning capacity, it is unlikely that she will obtain employment in the immediate future, particularly as she appears to suffer from disabilities following the motor vehicle accident in 2007.

242 Reference was made to a damages claim arising out of the motor vehicle accident that she suffered in December 2007. There was no evidence of the value of such a claim as she is still seeing doctors to determine the extent of the injuries and disabilities from which she suffers.

243 Joe-Anne's financial resources and financial needs, both present and future may be summarised as follows (omitting her entitlement under the deceased's Will):

(a) She and her husband have no assets, other than minimal second hand furniture. They do not own any property, or a motor vehicle; they have no savings; and no superannuation. They have no liabilities.

(b) They recently lost much of their bedding in the Queensland floods.

(c) She states that she needs provision to enable her to purchase a 3 or 4 bedroom home ($530,000 - $677,000), as well as $20,000 to purchase a car, and a sum of $50,000 for exigencies of life as she has no savings or superannuation.

244 Joe-Anne is now working as a landscape worker. She is casually employed on a 15 weeks probation period. She works 5 days a week, approximately 7 hours per day. She earns $16 per hour before tax. In addition, she receives Centrelink payments of between $215 and $265 per fortnight. All of their income is spent.

245 Brooke's and Harley's financial resources (including earning capacity) and financial needs, both present and future may be summarised as follows:

(a) Each has no assets.

(b) The financial resources of each includes her, and his, claim for damages arising out of the motor vehicle accident that she and he suffered in December 2007. There was no evidence of the value of such a claim as each is still seeing doctors to determine the extent of the injuries and disabilities from which she, and he, suffers.

(c) Brooke's fortnightly income is a disability pension of $326. She spends all the income she receives;

(d) Brooke estimates that Harley's expenses total about $135 per week. He also requires money for school excursions, which can cost $230 per excursion and about $70 for school items. At the moment, Michelle is paying these expenses.

(e) Brooke was interested in doing a TAFE course in motor mechanics. She made enquiries about enrolling in a TAFE course in 2012. However, after she was informed that she had to do a short course in maths to qualify for the course she decided not to enrol because she knew that she would not be able to satisfactorily complete the maths course. She is also interested in bar work, which would require her to complete a short bar course, at an estimated cost of $90.

In my view, Brooke has some earning capacity.

(f) Brooke anticipates her financial needs are as follows:

(i)	Cost of accommodation comprised of 12 months rent, furnishing a flat:	$ 30,000
(ii)	Motor vehicle including on road expenses:	$ 25,000
(iii)	Future contingencies:	$ 45,000
	Total:	$100,000

(g) Brooke anticipates Harley's financial needs as follows:

(i)	Assistance for education and extracurricular expenses:	$30,000
(ii)	Assistance to purchase a motor vehicle when he obtains licence:	$20,000
(iii)	Future contingencies:	$ 40,000
	Total:	$90,000

(h) At his age, Harley does not currently have an earning capacity. However, in the future, he will have.

(i) Michelle has given evidence that she will continue to provide a home and support for Brooke and Harley.

246 Gwen's financial resources (including earning capacity) and financial needs, both present and future may be summarised as follows (omitting her entitlement under the deceased's Will):

(i) She receives an age pension of $716 per fortnight. She has no other income.

(ii) Until the proceedings are resolved, she can remain living in her mother's Housing Commission flat for which she pays $160.00 rent per fortnight.

(iii) Her expenses total $658 per fortnight.

(iv) She owns a 1996 Nissan Pulsar worth about $2,000.

(v) She has no assets other than savings of $4,631.

(vi) At her age, it is unlikely that she has an earning capacity.

247 She states:

"I need a home to live in to give me security. I hope to move down to the Greenwell Point property and live there for the rest of my life. I need cash to assist me in paying rates, property expenses and upkeep and maintenance of the home. I also need a new car which I estimate the value would be $30,000. I would also love to have a holiday after I have been looking after my mother and Pep for so many years. I would love to travel to Greece and I would estimate I would need $10,000 for that trip."

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

248 There is no evidence that Michelle is cohabiting with any person other than Brooke and Harley. I have set out the financial circumstances of each.

249 Joe-Anne is cohabiting with her husband and four children. Her husband is not working and receives unemployment benefits (said to be $510 per fortnight). On occasions, he works for several days a week as a bricklayer.

250 As at November 2010, her son, Warren, was working; her son, Christopher, was injured in a motor vehicle accident, and was receiving unemployment benefits; her son, Ryan, was also injured in a motor vehicle accident and was receiving unemployment benefits; whilst her daughter, Kirsty, was in Year 12, and was receiving a Youth Allowance, which was used to fund her educational expenses. None of the adult children pay regular board, although, they are said by Joe-Anne to contribute towards grocery supplies "when they are able".

251 There is, otherwise, no evidence about the financial circumstances of any of Joe-Anne's children.

(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

252 Michelle was injured in a motor vehicle accident in December 2007. The medical reports that I have read, the most recent of which are dated mid-2009, reveal that she sustained multiple bruising, that she had pain in her neck and right shoulder, which had resolved, and that her ongoing problem was ongoing pain in the lumbar spine. Her prognosis was then "uncertain". She appears to have Adjustment Disorder with Mixed Anxiety and Depressed Mood.

253 Brooke's medical records, also dated in mid-2009, reveal that she, too, was injured in the same motor vehicle accident. She had neck pain, but that settled, leaving her with headaches on a daily basis and some dizziness. Her prognosis was then also "uncertain". She was described as suffering a Major Depressive Disorder and an Adjustment Disorder with Anxiety.

254 Brooke also says that she suffers Attention Deficit Hyperactivity Disorder and chronic asthma.

255 Harley was injured in the same motor vehicle accident. His medical records, also from mid-2009, reveal that he had some generalised bruising with continued anxiety said to be due to post-anxiety stress. He has been described as suffering Separation Anxiety and Major Depressive Disorder. It is said that he, too, suffers from Attention Deficit Hyperactivity Disorder.

256 Michelle says that Harley is doing well at school although he does need assistance by tutoring. She admits that, for various reasons, he missed a lot of school.

257 Joe-Anne gives no evidence of any physical, intellectual or mental disability. However, she states that her husband suffers from chronic obstructive pulmonary disease, severe osteoporosis, wedge fractures of the thoracic spine, and recurrent pneumonia with hospital admissions. In addition, he suffered a work injury in 2008. He has been medically unfit to work since February 2008 (although he does work, on occasions, as a bricklayer).

258 Gwen gives no evidence of any physical, intellectual, or mental disability.

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

259 Michelle was born in April 1970. She is aged 41 years.

260 Joe-Anne was born in February 1967. She is aged 44 years.

261 Brooke was born in October 1991. She is aged almost 20 years.

262 Harley was born in March 1999. He is aged 12 years.

(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

263 None of the Plaintiffs assert any financial contributions to the acquisition of the estate of the deceased. Michelle, however, asserts that during the period that she lived in No 69, she paid $30 per week for each of the council rates and taxes and $30 per week for other outgoings. If made, these payments were not made for very long.

264 Michelle also asserts that upon her return to NSW in 2001, she assisted the deceased in his business, Liverpool Crane Services, by attending to all paperwork and banking. She also wrote down jobs, provided invoices and attended to other secretarial duties.

265 I have earlier referred to the assistance provided by Michelle to the welfare of the deceased. In addition, it must have been of some comfort to him to know that she and the children were living next door, and, after he moved to Greenwell Point, not very far away.

266 There is nothing to suggest that Joe-Anne made any contribution to the welfare of the deceased in the last 18 years of his life. Any contribution appears to have been limited to the assistance provided by her husband, to the construction of the Greenwell Point property, for which assistance, he was paid very little (estimated by her to have been $300 - $400).

267 Brooke's and Harley's contribution, if any, could only be to the welfare of the deceased. There is simply no evidence of that contribution, other than Michelle stating that Brooke did assist the deceased with some household tasks. No doubt, their presence, with their mother, would have provided some comfort to the deceased.

268 It has not been submitted that Gwen made any financial contributions to the acquisition of the estate of the deceased. I am satisfied, however, that Gwen made a significant contribution to the maintenance of No 67 and the Greenwell Point properties and to the welfare of the deceased from about 1991, until she moved out of the deceased's home in about 2003. Even though they did not continue to live together, and despite the fact that Gwen was caring for her elderly mother, she still found the time, and made the effort, to assist the deceased. Her contribution to his welfare, in this regard, was significant.

(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

269 I have referred to the provision made for Michelle and Joe-Anne in the Will of the deceased.

270 I have earlier dealt with the occasions that Michelle lived in one, or other, of No 67 or No 69 and the provision of accommodation for her and her children for many years.

271 Upon her return from Queensland in about May 1991, Michelle enrolled herself in a TAFE course studying finance, computers and GST, with a view to obtaining secretary qualifications. The deceased paid for her enrolment, textbooks, and stationery.

272 There is evidence that the deceased attended with Michelle to obtain the credit card (to which reference has been made earlier), to assist her with the take-away business she ran, with Brooke, between 2006 and 2007.

273 Michelle gives evidence of receiving from the deceased, the rent that he was obtaining from No 69 after she moved to Nowra. There is no evidence of how much, or for how long, she received that rent. She states that the period during which she received $250 per week was between 12 November 2008 and the date of the deceased's death. She also admits that she received $2,000 from the deceased in 2009.

274 There is no suggestion that any financial provision was made during his lifetime for Joe-Anne. He is said to have given her and her husband $300 for the assistance provided in the construction of the Greenwell Point property.

275 There is no suggestion that any financial provision was made during his lifetime for either Brooke or Harley. In the events that have happened, neither receives any provision out of the deceased's estate, although I note that, as grandchildren, they formed part of the class of substitutionary beneficiaries in the event that Gwen did not survive the deceased and each attained the age of 18 years.

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

276 The only direct evidence of the deceased's testamentary intentions is contained in the Will the subject of the grant of Probate. However, in the judgment of Windeyer J, there is a reference to the deceased saying that he and his wife "agreed to make mutual wills and that he intends to abide by that agreement". However, his Honour "was not at all sure that there was a binding agreement to make a will and leave it unrevoked".

277 There is evidence from Mr Smith that in 2006, the deceased told him that he had made another Will. However, the contents of that Will, other than referring to Michelle being well provided for, were not disclosed.

278 I have earlier referred to Joe-Anne's evidence about the terms of another Will. I do not accept her evidence on this topic.

279 Brooke states that when she went to visit the deceased, in hospital, shortly before his death, he said that she could have his motorcycle and a short time later, on the drive home from the hospital, that Harley could have his boat.

(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

280 There is no evidence that the deceased maintained any of the Plaintiffs, either wholly, or partly, at the date of his death. I have referred to the evidence that does not support Michelle's evidence that she was receiving the rent from No 69. I have also referred to Michelle, Brooke and Harley living in No 69.

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

281 Apart from the Commonwealth government's responsibility to continue to provide each of the Plaintiffs with a pension or other allowances, there is no other person with a liability to support her or him.

282 Michelle, as a parent of Harley, does have a legal obligation to support him, as does his father. However, the evidence discloses that there is no contact between Harley and his father, and no financial assistance is provided.

283 Joe-Anne's husband, whilst being unemployed, does contribute towards household expenses.

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

284 The Act does not explicitly limit the consideration of "conduct" to conduct towards the deceased.

285 I have referred to the fact that each of Michelle and Joe-Anne has served a term of imprisonment. I have also referred to Michelle's drug taking (which type of conduct the deceased found reprehensible).

286 I have also referred to the conduct of each towards the deceased.

287 There is no conduct of Brooke or Harley that is relevant. It is unsurprising that there were occasions when grandfather and grandchild did not agree.

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

288 Gwen's conduct is relevant and I have described her conduct, particularly towards the deceased, previously. The deceased appears to have had every reason to make provision of the type that he did for her, bearing in mind their relationship.

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

289 This is not relevant in the present case.

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

290 That Joe-Anne received some provision out of the estate of her mother, whilst Michelle did not is a relevant matter to be considered. Whilst Joe-Anne had a statutory right to make a claim, the fact that she did, and that it was successful, did mean that it reduced the deceased's estate by the total amount of the lump sum and costs that were ordered to be paid.

291 It was submitted that Michelle was entitled to a share of her mother's estate. As set out above, she was only entitled if the deceased did not survive his wife.

292 Following the deceased's death, Michelle, Brooke and Harley moved into the Greenwell Point property, did not pay any occupation fee, and then refused to leave. Ultimately, however, they did leave.

Determination

Eligibility and Factors Warranting the making of the Application

293 Michelle and Joe-Anne, as a daughter of the deceased, is each an eligible person under s 57(1)(c) of the Act. As such, she does not have to establish factors warranting the making of her application.

294 There is no dispute that the proceedings of each of them were commenced within the time prescribed by the Act.

295 There is no dispute that each of Brooke and Harley is a grandchild of the deceased. However, each also has to establish that she and he was wholly or partly dependent on him as well, in order to establish eligibility.

296 I am not satisfied that either Brooke or Harley was wholly, or partly, dependant upon the deceased. To the contrary, the evidence reveals that they were, at all relevant times, when they lived in No 67 (for about 2 weeks) or in No 69, wholly dependent upon Michelle. It was she who was their sole caregiver and the person who had the sole responsibility for their maintenance, care and support.

297 I do not accept the submission that the deceased was in loco parentis to each of them. There is no evidence that they ever lived with the deceased without Michelle, or that the deceased did anything that would demonstrate that he took on such a role.

298 In my view, the dependence of each upon the deceased was not direct or immediate; it was the indirect result of the deceased providing assistance for Michelle, his own adult child, and, thereby, incidentally benefiting Brooke and Harley who were directly dependent on her.

299 Nor is there any evidence that the deceased made any gifts or provided any benefits of such regularity and significance that one can say that he had clearly assumed a continuing and substantial responsibility for their support and welfare. Apart from an amount of money to assist Brooke to purchase a second hand car, there is no evidence that the deceased provided any money to either of them.

300 Even if I were satisfied that there was a personal relationship and emotional bond between them, it seems to me that it was no more than is appropriate to any grandparent and grandchild. There is simply no evidence to suggest a closer bond between either and the deceased.

301 Having reached the conclusion that Brooke and Harley are not eligible persons, their Summons must be dismissed. However, in case I am wrong, I shall consider whether there are any factors which warrant the making of their application.

302 I am not satisfied that there are factors that warrant the making of the application. In this regard, I have not forgotten Clause 8 of the deceased's Will, which provided, in the event that Gwen did not survive the deceased, or if she died within 60 days of his death, for the residue of the estate to pass "to my surviving grandchildren in equal shares as tenants in common and to be held in trust until they attain the age of 18 years".

303 Importantly, the substitutionary gift in Clause 8 is to the class of grandchildren of the deceased, not just to Brooke and/or Harley. As stated earlier, none of Joe-Anne's children had any relationship with the deceased. Accordingly, it does not seem that the deceased, himself, considered that Brooke and/or Harley had any relationship with him that extended beyond what might be considered a normal grandparent/grandchild relationship.

304 For this reason also, their Summons must be dismissed. However, in case I am in error, and the matter goes further, I shall deal with the questions whether the Court can make an order under the Act, and if so, whether it should do so.

305 In respect of the claim by Michelle and Joe-Anne, as the proceedings by each were commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

306 Turning firstly to Michelle, she receives a devise of No 67 under the Will of the deceased. It has a value of $330,000. If the amount owing to the estate by her is repaid ($40,890), she would receive $289,110. Assuming some costs and expenses of sale, she is likely to receive about $280,000. Excluding costs, this is almost 25 per cent of the value of the deceased's gross estate.

307 Even after the payment of her other liabilities, she will have almost $250,000 available to her. That amount will provide her with a capital sum for exigencies of life, and should not reduce her Centrelink benefits. It will also provide her with some supplement to her income.

308 There is no evidence to suggest that the housing accommodation currently provided to her is not secure (the lease is for another 7 or 8 years). There is also no evidence that the same, or alternative, housing would not then be available to her. In any event, it has not been suggested that her current housing is in any way inadequate.

309 I am satisfied, in those circumstances, that the deceased did make adequate and proper provision for Michelle. In the circumstances, that conclusion will result in the dismissal of Michelle's proceedings.

310 However, even if I were wrong, I would not, as a matter of discretion, make an order in favour of Michelle. In submissions, all parties agreed that the person to whom the deceased owed the principal obligation was to Gwen. Her financial and material circumstances must be considered also. Doing so, I am of the view that the terms of the deceased's Will, so far as it relates to Michelle and Gwen reflect a consideration of the comparable obligations owed to each by the deceased. His testamentary freedom should not be interfered with to make greater provision for Michelle.

311 I have tested my conclusion in another way. Had no provision been made for Michelle in the deceased's Will, bearing in mind all of the circumstances of the case, including the size of the estate, would she be likely to receive provision out of the estate greater than about $330,000? In my view, the answer to this question is in the negative.

312 Subject to the Court's view of the relationship of the deceased and Joe-Anne, it was accepted that her financial and material circumstances were such that the Court could find that inadequate provision had been made for Joe-Anne. In the light of my conclusion that there was not a complete breakdown of their relationship, and that she did have some contact with the deceased following the claim by her in respect of Betsey-Anne's estate, I have come to the conclusion that adequate provision in the deceased's Will was not made for her.

313 Then, I must consider whether an order should be made, and if so, the nature of that order. I am of the view that an order should be made. The provision should be in lieu of the provision made in the Will, and she should receive a lump sum of $100,000. This will provide her with a capital sum for exigencies of life, as well as providing her with some additional income.

314 Again, when one considers the provision made for Michelle and for Gwen, this seems proper in all the circumstances.

315 Had I found that Brooke and Harley was each an eligible person and that each had established factors warranting the making of her, and his, application, I would have found that some modest provision should be made for each. The amount of the provision would have been $30,000 for each of Brooke and Harley. However, in the circumstances, I cannot make an order in her, and his, favour.

316 Thus, leaving aside the costs of the proceedings, Michelle receives a property with a value of $330,000 (from which she should repay the estate $40,890), Joe-Anne will receive, by way of provision, a lump sum of $100,000, and Gwen will receive the residue of the estate. The burden of costs may reduce the amount that Gwen receives.

317 I make the following orders:

(i) The proceedings commenced by Michelle Tramantana are dismissed.

(ii) Having found that the Plaintiff, Joe-Anne Clarke, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, order that she receive, in lieu of that provision, a lump sum of $100,000, the burden of which provision shall be borne out of residue of the estate of the deceased.

(iii) No interest be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by the Probate and Administration Act 1898, on unpaid legacies, be paid from that date until the date of payment;

(iv) Having found that the Plaintiff, Brooke Anne Midson, and the Plaintiff, Harley Midson, is each not an eligible person within the meaning of the Act, and also that there are no factors warranting the making of her, and his, application, the proceedings commenced by each is dismissed.

(v) Reserve the question of costs for further argument if the parties are unable to reach agreement on costs and stand the matter over to a date to be agreed.

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Amendments

28 October 2011 - restored missing paragraphs
Amended paragraphs: 254 - 317

Decision last updated: 28 October 2011