Supreme Court New South Wales

• Medium Neutral Citation: Dugac v Dugac [2012] NSWSC 192
• Hearing dates: 16 February 2012; 17 February 2012
• Decision date: 08 March 2012
• Before: Hallen AsJ

Decision

(a) The Plaintiff's Summons is dismissed.

(b) The Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

(c) Make no order as to the Plaintiff's costs, to the intent that she will pay her own costs of the proceedings.

(d) Order that the Court Book, the exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

• Catchwords: The Plaintiff, a daughter of the deceased, seeks a family provision order out of the estate of the deceased - The Defendant, a son of the deceased, opposes claim - The estate, in events that happened, left largely to grandchildren of the deceased, the children of the Defendant - Very small estate - Plaintiff asserts that she will give all or most of the provision she receives out of the estate to her own children - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made
• Legislation Cited: Family Provision Act 1982; Practice Note SC Eq 7; Property (Relationships) Act 1984; Succession Act 2006; Succession Amendment (Family Provision) Act 2008
• Cases Cited: Akkerman v Ewins [1999] NSWCA 386; Alexander v Jansson [2010] NSWCA 176; Bartlett v Coomber [2008] NSWCA 100; Blore v Lang [1960] HCA 73; (1960) 104 CLR 124; Bondelmonte v Blanckensee [1989] WAR 305; Bondy v Vavros (NSWSC, 29 August 1988, unreported); Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Buckland Deceased, Re [1966] VR 404; Collins v McGain [2003] NSWCA 190; Cooper v Dungan (1976) 50 ALJR 539; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127; Diver v Neal [2009] NSWCA 54; Edgar v Public Trustee for the Northern Territory & Anor [2011] NTSC 5; Foley v Ellis [2008] NSWCA 288; Gardiner v Gardiner (NSWSC, 28 May 1998, unreported); Goodman v Windeyer (1980) 144 CLR 490; Gorton v Parks (1989) 17 NSWLR 1; Green v Perpetual Trustee Co Limited (NSWSC, 10 July 1985, unreported); Hampson v Hampson [2010] NSWSC 359; Hastings v Hastings [2008] NSWSC 1310; [2010] NSWCA 197; Hawkins v Prestage (1989) 1 WAR 37; Howarth v Reed (NSWSC, Powell J, 15 April 1991, unreported); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; Kay v Archbold [2008] NSWSC 254; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; McCosker v McCosker (1957) 97 CLR 566; McGrath v Eves [2005] NSWSC 1006; Mayfield v Lloyd-Williams [2004] NSWSC 419; Permanent Trustee Ltd v Fraser (1995) 36 NSWLR 24; Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9; Puckridge, Deceased, In the Estate of (1978) 20 SASR 72; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201; Smilek v Public Trustee [2008] NSWCA 190; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59; Stiles v Joseph (NSWSC, 16 December, 1996, unreported); Taylor v Farrugia [2009] NSWSC 801; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Stott v Cook (1960) 33 ALJR 447; Walker v Walker (NSWSC, 17 May 1996, unreported)
• Category: Principal judgment
• Parties: Marija Dugac (Plaintiff); Marijan Dugac (Defendant)
• Representation: Counsel: Mr J Van Aalst (Plaintiff); Mr R Wilson (Defendant); Solicitors: Baker Love Lawyers (Plaintiff); Turnbull Hill Lawyers (Defendant)
• File Number(s): 2011/3634

Judgment

1 HIS HONOUR: Marija Dugac ("the Plaintiff"), who is a daughter of Ankica Dugac ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). 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.

2 The Plaintiff commenced the proceedings, by Summons, filed on 5 January 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendant named in the Summons is the son of the deceased and the Plaintiff's brother, Marijan (also known as "Mario") Dugac.

3 There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

4 Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to the parties by the role each plays in the proceedings, but shall refer to other family members, after introduction, by his, or her, first name.

Background Facts

5 The following facts are uncontroversial.

6 The deceased died on 25 January 2010. She was then aged 81 years, having been born in August 1928.

7 Mijo Dugac, who the deceased married in about 1949, the father of the Plaintiff and the Defendant, died in November 1985. There were only two children of the marriage, namely the Plaintiff and the Defendant. The Defendant was born in January 1952 and is aged 60 years.

8 The deceased, her husband and the Defendant, emigrated to Australia, from Croatia, in late 1970. The Plaintiff had emigrated from Croatia, a few months earlier.

9 The deceased left a Will that she made on 14 January 1991, in which she appointed the Plaintiff and the Defendant as executors and trustees. Probate of the deceased's Will was granted, on 6 August 2010, by this Court, to them.

10 The deceased's Will, relevantly, provided:

"...

3. I GIVE DEVISE AND BEQUEATH my one half interest in property situate and known as ... Sisak, Yugoslavia UNTO my daughter MARIJA TURKOVIC ...

4. I GIVE DEVISE AND BEQUEATH any share or shares that I hold in Marijan Constructions Pty Limited at the time of my death UNTO my son MARIJAN DUGAC ...

5. I GIVE DEVISE AND BEQUEATH , free of all duties (death, estate, succession or otherwise, State or Federal), all my right title and interest in my property situate and known as ... Sans Souci unto my son MARIJAN DUGAC and my daughter MARIJA TURKOVIC in equal shares as tenants in common.

...

7. I GIVE DEVISE AND BEQUEATH , free of all duties (death, estate, succession or otherwise, State or Federal), all my right title and interest in my property situate and known as ... Adamstown Heights unto such of my grandchildren MICHAEL IVAN DUGAC , MARIJANA DUGAC and DANIEL KRISTIAN DUGAC as shall survive me if more than one in equal shares as tenants in common.

8. I DIRECT the payment of all my just debts funeral and testamentary expenses subject thereto I GIVE DEVISE AND BEQUEATH the rest and residue of my estate both real and personal UNTO such of my grandchildren, MICHAEL IVAN DUGAC , MARIJANA DUGAC , DANIEL KRISTIAN DUGAC , STEPHEN ZDENKO TURKOVIC and MELISSA TURKOVIC as shall survive me and attain the age of twenty one (21) years and if more than one in equal shares as tenants in common ..."

11 The beneficiaries, Stephen and Melissa, are the Plaintiff's children. Stephen was born in February 1977 and is aged 35 years. Melissa was born in September 1986 and is aged 25 years. The Plaintiff was married to their father, Zdenko Turkovic, in June 1975. A decree nisi of dissolution of their marriage was granted in September 1993.

12 Stephen is married and has two children. He is employed. He and his wife own their own home, subject to a debt secured by mortgage. He is financially independent of the Plaintiff. Melissa has, recently, become qualified as a structural engineer. She, too, is financially independent of the Plaintiff.

13 Michael, Marijana and Daniel are the Defendant's children. Michael was born in April 1977 and is aged 34 years. Marijana was born in December 1978 and is aged 33 years. Daniel was born in August 1983 and is aged 28 years. I shall return to the financial and material circumstances of each later in these reasons.

14 At the date of death, the deceased did not have any interest in the Yugoslavia property (now situated in Croatia) referred to in Clause 3 of the Will (it having been sold by the Plaintiff, as Attorney under Power of Attorney, in about 1997) or in the Sans Souci property referred to in Clause 5 of the Will. In the circumstances, the Plaintiff receives nothing out of the estate of the deceased.

15 In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $541,823. No liabilities were disclosed. The estate was said to consist of real property at Adamstown Heights ($500,000), money on deposit ($39,323), shares in a private company (Marijan Constructions) ($2,500) and household chattels (no commercial value). (I have omitted any reference to the cents and shall continue to do so.)

16 In an affidavit sworn on 9 February 2011, the Defendant disclosed debts, funeral and testamentary expenses of the estate at the date of death totalling $21,625. These debts have not been paid.

17 In an affidavit sworn by the Defendant on 8 February 2012, the value of the Adamstown Heights property is estimated to be $530,000; the monies in bank total about $3,676; and the value of the shares in Marijan Constructions is estimated to be about $2,500.

18 The Plaintiff gave evidence that the funds, totalling $35,647, had been held in a joint account in her and the deceased's names. The Plaintiff explained how the cash in bank had been withdrawn from that account and divided between Stephen and Michael. Neither party asserts that the funds form part of the estate, or notional estate, of the deceased.

19 The Adamstown Heights property is to be sold and the costs and expenses of sale are estimated to be about $19,000.

20 Using the above estimates, at the hearing, the parties agreed that t he estimated value of the current net distributable estate (subject to the payment of the costs of the proceedings) is about $495,551.

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

22 The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be in the order of $88,671 (inclusive of GST and upon the basis of a two day hearing). Counsel for the Plaintiff (from the bar table) asserted, without objection, that the costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, are no more than about $69,500.

23 The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated by the Defendant's solicitor, to be about $69,556.

24 For the purposes of the hearing, I shall determine the case upon the basis that the estimated value of the actual net distributable estate, after the payment of costs, if costs are ordered by the court to be paid out of the estate, and if the estimates prove accurate, will be about $355,495. Of course, depending upon the result, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed.

25 The persons described as eligible persons, within the meaning of the Act, are the Plaintiff and the Defendant. A prescribed notice was served upon each of the grandchildren of the deceased as persons beneficially entitled to the net distributable estate of the deceased: Practice Note SC Eq 7, paragraph 7. However, there is no suggestion that each, or any, of them, is an eligible person under the Act.

26 Only the Plaintiff has commenced proceedings.

Additional Background Facts

27 I set out the additional facts, which will not be dealt with later, that I am satisfied are either not in dispute, or which, in my view, have been established by the evidence.

(a) The Sans Souci property, which was purchased for $19,950, was registered by Transfer dated 24 February 1972, in the names of the deceased, her husband, the Plaintiff and the Defendant, as tenants in common in equal shares.

(b) On 9 December 1975, the Official Trustee in Bankruptcy was appointed as trustee of the joint and several estates of the Defendant and his father.

(c) In February 1986, an application was brought, in the name of the deceased, in the Federal Court, in which she sought declarations regarding financial contributions made by her to the Sans Souci property. There was a determination and an appeal. I do not know the result of those proceedings.

(d) In 1990, the Sans Souci property was sold, trustees for sale having been appointed. The net proceeds of sale were $169,259, of which $121,302 was paid to the solicitors acting for the deceased. Three cheques were drawn, one for $44,649, another for $45,000 and the third for $31,652. The Plaintiff's solicitor, who was then a solicitor in the firm of solicitors acting for the deceased, "cannot shed any light as to where the amount of $44,649 [paid into the firm's trust account], ultimately went".

(e) An Acknowledgement of Term Deposit with the Commonwealth Bank, with a commencing date of 25 June 1993, for 6 months, held on account of the Defendant and the Plaintiff, for the sum of $100,000 is in evidence. The term deposit was renewed on 25 December 1993 for 180 days.

(f) The amount of the term deposit was part of the proceeds of sale of the Sans Souci property. What is in issue is who made the deposit and, more importantly, whether the Plaintiff received $65,000 from the proceeds in May 1994. I shall return to this matter later in these reasons.

(g) By Transfer dated 19 May 1994, the Plaintiff purchased, in her sole name, a property at Charlestown for $195,000. She sold the Charlestown property in December 2003 for $395,000. She invested part of the proceeds of sale ($145,000) in an investment portfolio with Prosperity Advisers, part of which investment she still retains.

(h) In 1997, the Plaintiff, as Attorney for the deceased, sold the property in Yugoslavia, for 14,000 marks, which was then about $AUS12,000.

(i) The deceased held the belief that the Sans Souci property had not been sold and that she still owned it. She also held the belief, at a later time, that the Plaintiff and the Defendant had sold it and shared the proceeds of sale.

The Statutory Scheme - The Act

28 I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much 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 their application.

29 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's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

30 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).

31 The Court, if satisfied of the applicant's eligibility, must then determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is 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.

32 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.

33 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". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

34 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).

35 Under s 59(1)(c) 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. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.

36 "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 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".

37 Neither are the word "maintenance" or the phrase "advancement in life" defined. 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."

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

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

39 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."

40 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."

41 Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December, 1996, unreported) said, at 16:

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

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

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

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

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

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

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

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

43 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.

44 Each of the words was 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."

45 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."

46 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."

47 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."

48 As Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), "adequate" and "proper" are independent concepts. His Honour said:

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

49 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 a particular applicant.

50 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).

51 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."

52 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]."

53 In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff 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.

54 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.

55 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."

56 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 orde r , and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

57 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.

58 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."

59 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.

60 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 named in the deceased's will, 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).

61 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.

62 This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. 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."

63 And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 122):

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

64 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.

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

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

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

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

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

66 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).

67 The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

68 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).

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

70 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).

71 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.

72 Pursuant to paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

Applicable Legal Principles

73 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.

74 Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, 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.

75 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 at 19.

76 In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-454, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

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

77 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: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker ( NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at [11] and [25]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

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

79 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 primary 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) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. ( Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees, Executors and Agency Co. of Australasia Pty Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505). But the Act does not permit orders to be made to provide for the support of third persons whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons. ( Re Buckland Deceased at 412; Kleinig v Neal (No2) (1981) 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams ).

(e) 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) ; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.

(g) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not 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 an applicant's case.

80 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."

81 Finally, what was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] should be remembered:

"There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will." (Omitting citations)

82 I make it clear that I do not intend what I have described as "Applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Issues of Fact

83 The material that was read at the hearing consisted of affidavits in chief and numerous answering affidavits, not only from the parties, but also by all of the family members. Each of the parties was extensively cross-examined.

84 Ultimately, counsel agreed that apart from a few matters, there was little point in attempting to detail, or resolve, many of the issues, as they would, at best, only bear, tangentially, upon the application. In submissions, however, the Defendant fairly stated that he was not asserting that the Plaintiff's evidence was given with the intention of misleading the court.

85 The several matters of evidence, to which reference should be made, are as follows.

86 The first related to the Plaintiff's financial circumstances at the time she swore her first affidavit on 14 December 2010. In that affidavit, the Plaintiff made no reference to the fact that she was the executor, and a beneficiary, equally with two others, of an estate of Drago Kustek; nor to the fact that the principal asset of that estate (land in Islington) had been sold on 10 December 2010, for an amount of $203,000. At the time she swore that affidavit, she held the net proceeds of sale.

87 This was inconsistent with the statement in her affidavit, sworn on 14 December 2010, that she had "no interests in any ... trusts".

88 She explained the omission:

"Q. You deliberately chose not to disclose in your affidavit of 14 December 2010 your entitlement to one third of his estate, didn't you?

A. I guess I didn't think it was important what I have."

89 In none of her subsequent affidavits, did the Plaintiff disclose that she had received, in about May or June 2011, as a beneficiary in that estate, an amount of about $48,000, all but $4,000 of which she "instantly" gave to her children (Stephen received $5,000, but part of the amount the Plaintiff received was used ("at least $10,000") by her to fund a holiday, for him and his family, as well as for Melissa). In none of her subsequent affidavits, did she indicate any change to the statement, in her first affidavit, that she had not made gifts of amounts over $1,000.

90 She explained, in re-examination, her reasoning for making the gifts as follows:

"Q. Explain to his Honour why it was you said you immediately gave, if this is correct, that gift, except for about $4000, to your children?

A. I had no idea that he has left me anything. I had no idea I was executor of the will. I didn't know anything. There was a Serbian speaking solicitor, he contacted, when I found out I was in shock and I didn't want the money and then I decided it is going as a gift to my children because I don't want it.

Q. Why not?

A. I didn't think, not that I was entitled, what I was doing for him in the past 17 years, he was a loner, he was an alcoholic, I helped with everything, not interpreting so much, he didn't need an interpreter, he had a lot of other problems, legal, with the police, I always did what he asked me to do, I never thought I was doing it as wanting something."

91 Next, she did not disclose in any of her affidavits that her intention, if she received provision out of the estate of the deceased, was to give it all, or most of it, to her children as she believed that "they have the same rights as the other grandchildren" and because she did not want them to have a life as hard as the life she had. She had said that she would like to retire when she turned 63, in January 2014, and that she "would very much like to buy a two bedroom unit at Adamstown or at Charlestown if possible".

92 The Plaintiff, in cross-examination, said:

"Q. And if you are successful in these proceedings in obtaining any provision from the court, would you give that to Melissa?

A. A share of it, exactly, to my children, yes. I think they're entitled to it.

Q. All right. Have you worked out at this stage what the division will be between the children, how much in percentage terms you'll give? Will you divide it 50-50?

A. I give my children as much as I possibly can. I probably would give most of it."

93 Later, in answer to questions from me, she gave the following evidence:

"Q. Well you have two children--

A. I have two--

Q. - Stephen and Melissa?

A. Yes.

Q. Stephen 's well off though, isn't he?

A. No, he's not..

Q. I see, I'm sorry. So it's likely you'd divide any money you received from the court equally between Melissa and Stephen?

A. I haven't thought about it, I'm sorry.

"Q. Mr Van Aalst asked you about the reasons that you decided to give what you inherited or most of what you inherited away to your daughter and a little bit to your son, and you said you didn't want it?

A. I didn't want it, no.

Q. In addition, you told Mr Wilson that if you receive any provision out of your mother's estate you intend to give it to your children?

A. Yes, I do because I think they have the same rights as other grandchildren. Your Honour, I live for my children, I have nothing else and I had a very hard life back home, didn't have it easy, raising two children either and I just want my children not to have it as hard as I did. I didn't think there was anything wrong with that. I am sorry."

94 Third, the Plaintiff had given evidence in an affidavit sworn on 25 October 2011, that:

"... as part of the settlement between my former husband and I, I transferred my interest in our Charlestown house to him and he paid me the sum of $100,000."

95 In support of her assertion, she had annexed what she described as "part of the settlement", being a copy of a document headed "Terms of Settlement", dated 15 February 1993, which stated, in Clause 2, "That within sixty days the husband pay to the wife the sum of one hundred thousand dollars".

96 A copy of the whole document was shown to her. Clause 10 provided that her former husband was required to pay to her an additional amount of $30,000, "on or before the day two years from the date of these orders".

97 The Plaintiff accepted that she had, in fact, received the additional amount, but had forgotten about it and that she had made a mistake, as she did not have the whole of the document when she had sworn her affidavit.

98 Fourth, the Plaintiff gave evidence that she did not own a 2008 Mitsubishi Lancer because her daughter, Melissa, had paid $11,000 plus on road costs, for it; and that, whilst that car was registered in her name and driven by her, it really belonged to her daughter. Her evidence was:

"Q. Because you bought a new Mitsubishi Lancer, didn't you?

A. No, I didn't. My daughter bought a Mitsubishi Lancer, and not a new Mitsubishi Lancer. Sorry, it's a second hand.

Q. Well, you bought a second hand Mitsubishi Lancer, did you?

A. No, I bought I gave my car, the Ford, to my daughter and bought myself a new Mitsubishi Lancer.

Q. Right.

A. This Mitsubishi Lancer my daughter bought with her money, but it's in my name because of the insurance. She wasn't 26 at the time."

99 The Plaintiff also said that when her daughter went to Victoria, she would be taking the car with her. She said:

"Q. You don't have another car?

A. I have another car but it's in her name and she's taking it to Victoria when she leaves."

100 Melissa gave evidence, which I accept, that the car was the Plaintiff's car; that it had been paid for by the Plaintiff; and that she had never been told by the Plaintiff that she could take it with her to Victoria. She said:

"Q. The three year old Lancer, do you drive it at all?

A. No.

Q. That is mum's car?

A. Yes.

Q. Registered in her name?

A. Yes.

Q. Do you know how much she paid for it?

A. No.

Q. She has offered that you can use it to drive to Victoria?

A. No.

Q. You don't know anything about that?

A. No."

101 Fifth, the Plaintiff gave evidence that she had not received any gifts or other benefits from the deceased, other than free accommodation when she lived with the deceased in the last months of her life. Other evidence, which I accept, suggests otherwise. For example, she used the proceeds of sale of the Yugoslavia property to fund an overseas trip that she had with Melissa and Marijana to Europe and America.

102 In an affidavit sworn by her on 24 March 1992, and filed in the Family Court proceedings, she had stated:

"My parents gave us $13,500 to help us build the house. This was mainly in the form of materials."

103 The Plaintiff gave evidence, which is hard to accept since it had not been mentioned in any affidavit, that the deceased told her that she was to receive sufficient funds from the deceased's estate to purchase accommodation. She accepted that she had not set out any conversation on this topic in any of her affidavits. Her evidence was:

"Q. But it was no surprise to you when you learnt the contents of your mother's will, was it?

A. It was.

Q. What did you think it was?

A. Because when she told me, "when I die you can have enough money to buy yourself a nice unit".

Q. When did she say that?

A. When I was with her.

Q. Where have you put that in an affidavit?

A. I haven't because I pretty much thought nobody would believe anyway."

104 Whilst these matters were adverted to, the Defendant's submission was that the Plaintiff had brought these proceedings, not for her maintenance and advancement in life, but so that she could make some provision for her children. Counsel submitted that the Plaintiff was not concerned about her own financial circumstances and needs, but with what her children should receive from the deceased's estate.

105 In the light of the Plaintiff's evidence, there is merit in this submission.

106 The Plaintiff's counsel was critical of the Defendant and submitted that I should not accept his evidence. He submitted, also, that the relationship between the parties and the dislike of the Plaintiff by the Defendant were such, that his evidence had been given to defeat the Plaintiff's claim.

107 Apart from two matters, I did not form this view of the Defendant.

108 He was asked questions about the Plaintiff's claim and denied that he knew what her claim was until the first day of the hearing. He was then shown a copy of a letter, written by the Plaintiff's solicitors, to his solicitors and he confirmed that he had seen it before and had discussed its contents with his solicitor. He then gave evidence that he did not understand the letter to be an offer made on behalf of the Plaintiff and one that evidenced the nature of her claim. He denied there was any offer in the letter and said that he understood it to be an "estimation".

109 The copy letter, which was tendered without objection, was clearly an offer made on behalf of the Plaintiff. The word "offer" appears throughout the letter and the concluding paragraph specifically states:

"Finally, we give you notice that if this offer is not accepted by the 16 th of August, 2011, it shall be relied upon on the question of costs."

110 I do not accept the Defendant's evidence on this topic.

111 The second aspect of his evidence that I am unable to accept is his evidence of his feelings for the Plaintiff. He said:

"Q. See, the position is that you did not have a very good relationship with your sister at the time when you were reading this will. That's right, isn't it?

A. No.

Q. You had a very bad relationship with her.

A. Incorrect.

Q. You didn't like her at all.

A. Incorrect."

112 A reading of the affidavits makes it clear that the Defendant and the Plaintiff do not get on. However, that does not mean that he tailored his evidence or otherwise gave it dishonestly. In my view, their relationship is irrelevant to the matters in issue in this case.

113 One issue that loomed large, related to the withdrawal of $65,000 in May 1994 from the Commonwealth Bank term deposit. The Plaintiff gave evidence that she had been shown a copy of the term deposit document (Ex. 3), and that she had "no knowledge of the source of the amount referred to in it and do not know who would have ultimately received it as I certainly did not receive any money from the sale of Sans Souci". She also stated, specifically, when shown the handwriting on the reverse side of the document, that she recognised it as being that of the Defendant's wife.

114 The Defendant's wife, Silvana, gave oral evidence, but was not cross-examined on this topic. When I raised the question, I was informed by counsel for the Plaintiff, that no submission would be made that it was in her handwriting. In order to clear up this issue, I showed the document to Silvana, who denied that the handwriting was hers. I accept that evidence and reject the evidence of the Plaintiff.

115 The Defendant's evidence was that the deceased "provided $65,000" to the Plaintiff to purchase a property in Charlestown following the breakdown of her marriage. He did not say in any affidavit, although he gave oral evidence, that the Plaintiff had, herself, withdrawn that amount from the term deposit with the deceased's consent.

116 However, as was pointed out by counsel for the Plaintiff in submissions, and accepted by counsel for the Defendant, if the amount was from the proceeds of sale of the Sans Souci property, the Plaintiff was a registered proprietor of that property, and, in those circumstances, would have been entitled to receive one quarter of the net proceeds of sale.

117 The parties agreed that the amount of $65,000 equated to about one quarter of the net proceeds of sale. In those circumstances, the significance of the conflict of evidence dissipated.

Relevant Facts

118 I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.

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

119 The Plaintiff is the daughter of the deceased. She lived at home until she was married in 1975. Even after she was married, her home was only a few minutes away from the deceased's home. They would be in regular contact by telephone and the Plaintiff would take the deceased shopping at least once a week. The Plaintiff and her family then moved to Newcastle but even there, she would be in regular telephone contact with the deceased. She returned to live with the deceased for about 16 months in 1993 and 1994.

120 After the deceased was diagnosed with cancer in late 2009, the Plaintiff saw her every day. She took the deceased to medical and hospital appointments two or three times a week. She stayed with the deceased every night from 13 November 2009 until the deceased died.

121 I am satisfied that there were some occasions of disharmony between the Plaintiff and the deceased commencing in 2002. The version of the events given by the Defendant does not reveal the Plaintiff in the best light. However, to the credit of each, the disharmony seems to have been forgotten once the deceased became ill.

(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

122 Leaving aside 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 the Plaintiff imposed upon her by statute or common law.

123 However, an obligation, or responsibility, to make adequate provision for the proper maintenance, education and advancement in life is recognised in the case of a child of the deceased.

124 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 any of her grandchildren, imposed upon her by statute or common law. There is no suggestion that the deceased assumed any particular obligation, and responsibility, towards any of her grandchildren. Of course, the grandchildren were named as beneficiaries in the deceased's Will.

(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

125 I have dealt with this earlier in this judgment. On any view, the deceased's estate is a small one. There is no notional estate.

(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

126 The Plaintiff has been working for NSW Health in its migrant health unit as an interpreter/translator for 30 years. She hopes to retire in 2014.

127 The Plaintiff's income comprises moneys earned from her employment ($780 net per week) and a pension income (from an investment) of $165 per week. She estimates her expenses are $1,036 per week, which expenses include rent of $285 and repayment of credit cards ($250 per week). On these figures, she has a shortfall of income of about $90 per week.

128 The capital sum invested is $77,822. She has about $33,500 in various bank accounts. (The Plaintiff gave no evidence on the interest she received on the money held in bank on deposit.) As well, she has superannuation of $272,817, and the 2008 Mitsubishi Lancer ($11,000).

129 She has a debt of $3,332.

130 Michael, who was not cross-examined, gives evidence that he is married with three children, aged 4 years, 2 years and 6 months respectively. His wife stays at home and is a parent and homemaker. He works as a Senior Mechanical Designer and is in permanent employment. His monthly income is $4,995 net, after tax. Their monthly expenditure totals $3,260.

131 He and his wife own a house and land at Macquarie Hills, which is a four-bedroom/two car garage new house. He estimates the house to be worth $450,000, subject to a mortgage of $350,000; a Holden Commodore, which was purchased for $22,000, on which they owe $8,000 and furniture of nominal value. They have some other debts (about $3,200).

132 Marijana, who was not cross-examined, gives evidence that she is married and that they have one child aged 3 years.

133 She holds the following degrees: Bachelor of Arts/Bachelor of Teaching (LOTE), Master in Educational Studies (Mathematics); and Master in Educational Leadership and Management in Education from the University of Newcastle. S he is employed as the Principal of an International School in Japan. Her husband also works at the school as an English Teacher.

134 They have lived in Japan since July 2002. As a foreign national living in Japan they are not allowed to own real property there. They own no assets of significance in Japan, except for furniture in the house that they rent through the school and their motor vehicle. They do not own any land in Australia.

135 Each of them is paid in Japanese Yen and they pay tax in Japan only, on their incomes. She has an annual salary of AU$80,352, whilst her husband's annual salary is AU$59,413. Part of her salary package includes tuition fees for their daughter (AU$12,988).

136 She and her husband have several bank accounts in Japan. In her account, there was deposited AU$9,458, whilst in his there was deposited AU$6,857 as at 30 March 2011. They have about $35,283 deposited in various accounts in Australia, which amount they retained from the sale of a motor vehicle which they purchased in Japan and exported to Australia and which they sold here.

137 She estimates that the whole of their income is spent on living expenses.

138 Daniel, who was not cross-examined, gives evidence that he is a full time student and that his wife, works part time (on a 12 month contract) at Energy Australia in their Call Centre. She receives a take home pay between $500 and $600 per week. He receives no government student allowance, or benefit. He usually obtains work as a labourer during University breaks. In the past he has worked as a labourer for the Defendant. On 19 December 2010, he ruptured the cruciate ligament in his left knee. As a result of that injury he was not allowed to do physical work. He was covered by travel insurance for injuries and received $1,500 per month until 26 March 2011.

139 He states that he and his wife have no assets, other than a small amount of furniture. He does not own a car, although his wife has a car. She currently owes $13,500 to her parents who lent her money towards the purchase of that vehicle, which she purchased for approximately $22,000. He owns a small number of shares, jointly with his mother, the value of which he does not know.

140 He has a HECS debt of $12,284. This debt will increase upon completion of his degree. He has not commenced making payments to reduce this debt. When he graduates, he intends to seek employment as a site manager or quantity surveyor in the construction industry.

141 Daniel estimates that his and his family's expenses amount to $1,578 per month. They live in the deceased's Adamstown Heights property. They look after and maintain it.

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

142 The Plaintiff lives alone. Since her divorce, she has not been maintained by any 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

143 The Plaintiff gives the following evidence about her medical condition:

"...

8. I have experienced constant pain in both of my knees for about the last 20 years.

9. The pain gets worse when I am standing, sitting down or driving.

...

12. I also suffer from headaches almost daily.

...

14. I also get pain in my back and neck, which is fairly constant, but, again, I have had to put up with it.

15. The retina in my right eye may detach. If it does, I will have to travel to Sydney to an eye hospital for repair, and most (sic) do so within 24 hours from when it detaches. I understand that if I do not or cannot do so, I could go blind in my right eye.

...

17. At least because of all of the above, I feel somewhat depressed and anxious about my future."

144 Her medical condition is set out in more detail in an affidavit, sworn 1 September 2011, of her treating doctor, Dr Angela Mujic, who states:

"Her medical history includes:

- Congenital squint of the left eye with little vision due to not being corrected early enough

- Childhood asthma

- Migraine headaches for many years. In 2005 Ms Dugac experienced migraines with hemiparesis which required investigation and assessment by a neurologist, Dr. Loiselle.

- Motor Vehicle accidents in 1985 and 1995. Ms Dugac experienced multiple fractures involving both wrists, left shoulder, nose, ribs and knee. She had bilateral knee arthroscopies in 1985 and 1995; bilateral carpel tunnel releases in 1986.

- Left knee injury in 2006. Ms Dugac saw Dr. Harrington. An MRI revealed degenerative tear of medial meniscus and a Bakers cyst.

- Iron deficiency anaemia in 2003 due to menorrhagia

- Gastro oesophageal reflux for many years. Ms Dugac saw Dr. Lewis and had a gastroscopy in 2007 which revealed a sliding hiatus hernia and gross gastro oesophageal incompetence.

- Hypercholesterilaemia

- Hypertension diagnosed in 2007

- Recurrent low back pain for many years

- Fall at work in 2009 caused left sided low back pain radiating to left pelvis and leg. Ms Dugac saw Professor Ghabrial. She had a steroid injection in her lumbar spine. MRI scan revealed a disc bulge at L4/5 and minor L3 spondyloslisthesis.

- A bone scan done in 2010 revealed right L2/3 and left L3/4 facet arthropathy as well as arthropathy of the left 1 st MTP joint of feet and medial left ankle.

- Multinodular goitre with dominant nodule diagnosed in 2004. Ms Dugac is currently seeing Dr. Levy regarding further tests for her thyroid gland.

- Ms Dugac experienced floaters and flashers in her vision this year."

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

145 The Plaintiff is currently 61 years of age having been born in January 1951.

(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

146 The Plaintiff says that she acted as an interpreter for her parents as each of them had limited English language skills. She says that she would take the deceased shopping at least once a week and that she took her to the doctor when required.

147 There is no dispute that in the final months of the deceased's life, the Plaintiff stayed with her. When it was necessary for the deceased to enter palliative care, the Plaintiff attended the hospital to be with her every day, for the whole day. Undoubtedly, during this period, the Plaintiff made a contribution to the welfare of the deceased.

148 The Plaintiff says that she travelled to Yugoslavia, to sell the deceased's land there, on two separate occasions and that it cost her about $7,600 to do so. In addition, she says that she paid, $1,500 to have damage to the gravestone of the deceased's aunt and uncle repaired, and that since then, she has spent an additional $3,500 to keep the gravestone in good repair.

(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

149 I have referred to the lack of provision made for the Plaintiff from the deceased's estate.

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

150 I have referred to the oral evidence of the Plaintiff on this topic, which evidence I found difficult to accept. There is no other evidence of testamentary intentions.

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

151 There is no suggestion that the Plaintiff was being maintained, either wholly or partly, by the deceased, before the deceased's death.

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

152 There is no person with any liability to support the Plaintiff.

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

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

154 A matter upon which there was a substantial dispute between the parties related to the relationship of the Plaintiff and the deceased between 2002 and 2009 and the Plaintiff's conduct during this period. There was no dispute that there had been a major disagreement between them in about 2002. There was also no dispute that for about 18 months to two years, there was an estrangement between them. What occurred thereafter is what was in issue between the parties.

155 The Plaintiff's evidence was that after that period of estrangement, her relationship with the deceased returned to as it had been. In fact, having cleared the air with the deceased, she regarded their relationship as stronger. They resumed contact. I have referred to the Plaintiff's evidence as to what she did following the deceased being diagnosed with cancer in 2009.

156 The Defendant's evidence was that following the disagreement between the Plaintiff and the deceased, the estrangement continued until the deceased was diagnosed with cancer in 2009, following which, the Plaintiff and the deceased reconciled. For those seven years, he said there was little or no contact between them.

157 I think it likely that there was a period when the Plaintiff and the deceased were estranged and that it was probably longer than the Plaintiff said, but not as long as the Defendant said. It is likely, in my view, that over time, and as they would see each other at social functions, the coolness between them lessened, so that by 2009, the Plaintiff was able to move in with the deceased, and the latter was prepared to accept the assistance offered by the Plaintiff.

158 I also remember that there is no evidence that prior to 2002, there was any conduct by the Plaintiff towards the deceased, of the type that used to be called "conduct disentitling".

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

159 I am satisfied that the conduct of the Defendant, his wife and their children, demonstrated, overall, a close and loving relationship with the deceased. (There may have been some disagreements between the Defendant and the deceased, but any are irrelevant to the determination of the Plaintiff's claim.)

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

160 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

161 There are no other matters that I consider relevant to which I have not already referred. (That Stephen and Michael shared $35,647 has been referred to previously.)

Determination

Eligibility

162 There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57 (1) (c) of the Act. It is, thus, unnecessary to consider, in her case, whether there are any factors warranting the making of her application.

The Jurisdiction Stage

163 As the Plaintiff's proceedings 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.

164 There was no provision in the deceased's Will made for the Plaintiff. This does not, automatically, mean that she will have satisfied the jurisdictional threshold. Judged by quantum and looked at through the prism of her financial and material circumstances, it might be said that adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both.

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

166 During submissions, the Plaintiff's counsel stated that the Plaintiff should receive one quarter of the net estate available for distribution, or about $89,000.

167 The Plaintiff's principal "need", at least as stated in her affidavits, was for security of accommodation. She stated that she wished to purchase a two-bedroom unit. However, she gave no evidence of the unsuitability or unsatisfactory nature of the accommodation in which she currently lived, and has lived since about 2003. Nor did she demonstrate that the right to the accommodation was, in any way, insecure. In her affidavits, she did not advance any other "needs".

168 Nor did she state, in her affidavits, or otherwise, how much, if anything, she would be able to borrow to enable accommodation to be purchased by her. (She had given evidence about the estimated cost of such accommodation.)

169 However in light of the Plaintiff's evidence quoted above, it is unlikely that the provision, if any were ordered, would be used to pay, or assist in paying, for accommodation that she would own absolutely, or that it would, otherwise, be used for the maintenance or advancement in life of the Plaintiff herself.

170 It appears that, at least until she has access to her superannuation, she has a shortfall of income of about $90 per week. However, she did not submit that she needed a capital sum to provide an income to meet any such shortfall.

171 Again, in the light of her evidence quoted above, it is unlikely that the provision, if any were ordered to meet that financial circumstance, would be retained to provide her with income.

172 In other words, the Plaintiff's financial and material circumstances will not be improved if an order is made in her favour. She will continue to maintain the standard of living that she currently enjoys if no provision is made for her out of the estate.

173 When, during submissions, I raised with the Plaintiff's counsel, that she had deliberately given away to, or spent, $44,000, on, her children, and had stated that she would give away, all or most, of anything that she receives out of the deceased's estate to them, he responded that "the Plaintiff's need is to have a capital sum from the estate so that she can provide for her children". He submitted that this would be for her "advancement in life". He pointed to the fact that she had no relationship with her brother, or members of his family, and, in those circumstances, she was entitled to provide for her own children. In this way, the gifts would be for their mutual benefit.

174 There is nothing in the authorities to suggest that provision for the applicant's 'advancement in life' means anything more than material or financial advancement. The High Court has spoken in terms of "further provision ... to enable a potential beneficiary to improve his or her prospects in life".

175 I have earlier referred to some of the authorities that refer to the meaning of the terms "maintenance" and "advancement in life". One of the constraints upon the provision that the Court can order is that the provision must be for the maintenance, education or advancement in life of the applicant .

176 Furthermore, the fact that the Plaintiff's financial circumstances may in whole, or in part, be a direct result of her, or his, own deliberate conduct should be taken into account: Hastings v Hastings [2008] NSWSC 1310 at [39] - [42]; affirmed in Hastings v Hastings [2010] NSWCA 197. (I remember the very different facts, in that case, where the applicant, who was a son of the deceased, had been involved in serious crimes involving the importation and distribution of marijuana in the United States. He was arrested on drug running charges, which arrest received newspaper publicity in Australia, of which publicity the deceased was aware. His conviction, on another occasion, resulted in a prison term and also the forfeiture of his assets. It was largely due to that forfeiture that the applicant found himself in poor financial circumstances.)

177 Refusing her claim under the Act means that she will not be relieved from the financial predicament to which her own actions have, at least in part, contributed.

178 Furthermore, having regard to her evidence as to what she would do with what she might receive, results in the conclusion that making provision would not relieve her, in the future, from the financial predicament in which she may find herself.

179 It seems to me that to provide the Plaintiff with a capital sum that she will, in all probability, then give to her children, whilst it no doubt will be very satisfying to the Plaintiff, provides her children, rather than her, with advancement in life. It was not suggested by her that the gift to her children was contingent upon any demands of each.

180 The Act is not one to enable provision to be made, in an indirect way, to persons who are not eligible persons, or to make provision for a Plaintiff who states that she will not use such provision to satisfy her own financial needs.

181 As was said in Kleinig v Neal (No 2) , at 537:

"It was submitted for the defendants that the mother's potential dependency upon the plaintiff was not relevant to a consideration of his claim on his father's estate. The defendants objected to the admissibility of evidence that was tendered on this matter. As it seemed to me that actual and potential burdens on the financial resources of an applicant existing at the date of death, including those for which there was only a moral and not a legal responsibility, could be material circumstances in considering an applicant's claim, I admitted the evidence that was tendered. As the mother herself can have no claim to provision for her maintenance out of the deceased's estate, any financial dependance of the mother upon an applicant son could not, I think, be used to increase the amount that would otherwise be ordered to be paid to the son if his claim was successful ..."

182 In Akkerman v Ewins [1999] NSWCA 386, a claim was made by a step-son for provision out of his step-mother's estate. An order of Master McLaughlin (as his Honour then was) dismissing his claim for provision was the subject of an appeal. The Plaintiff, in an affidavit read in those proceedings, said that:

"If I am successful in these proceedings I intend to use the money to see family in Holland and to build a granny flat for my mother at the rear of my property at Erina".

183 Other evidence revealed that a few months before he swore that affidavit, he and his mother had travelled to Holland and had spent some weeks there. Handley JA (with whom Beazley and Fitzgerald JJA agreed) said:

"[9] In the light of this evidence I have not been persuaded that the case is one for appellate intervention from this Court. Despite the error on the part of the Master in the sentence on which Mr Weinstein principally relied on a re-exercise of the discretion, or on the making of a new finding on appeal, I would reach the conclusion that the appellant had not made out a case for the intervention of the Court.

[10] Many claimants of the age of the appellant who do not have access to a free amount of capital to meet the contingencies of their declining years seek to establish a case under this legislation on that basis. No such case was made here on behalf of the appellant. Indeed the evidence that I have referred to indicates that any money awarded by way of a modest legacy would not be used as a provision for future contingencies. In those circumstances I would propose that the appeal be dismissed with costs."

184 Finally, I note that neither of the Plaintiff's children gave evidence, (after the evidence of the Plaintiff), that he, or she, would not accept any gift made by the Plaintiff from the provision that might be made for her, out of the estate of the deceased. There was no dispute that Stephen was present in Court on the first day of the hearing and that Melissa remained in Court after she gave her evidence. Either could have been called, with leave, to give evidence on this topic.

185 It is possible to test the conclusion in another way. In determining whether the provision for the Plaintiff is inadequate, the Court is to be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate, and in the circumstances referred to in the Act, ought to be made: Permanent Trustee Ltd v Fraser (1995) 36 NSWLR 24 at 46; Smilek v Public Trustee [2008] NSWCA 190 at [32].

186 In my view, prevailing community standards would not consider it right and appropriate to make provision out of a small estate for the Plaintiff in the knowledge that she is likely to distribute it, or most of it, to her children, particularly when each of those children is adult and able bodied, is not an eligible person, and in circumstances where the Plaintiff has not demonstrated any obligation to provide for each because of his, or her, lack of financial, or other, means.

187 Whilst, of course, the fact that she wishes to benefit her children is a matter about which she could not be criticised, (unlike the applicant in Hastings v Hastings ), I consider that the community would consider a family provision order in her favour to result in an indirect legacy being made to them, rather than provision for the Plaintiff.

188 I have considered whether the court can, or should, impose a condition upon the Plaintiff's use of any provision made for her out of the deceased's estate. Section 65(1)(d) provides that a family provision order must specify, amongst other things, "any conditions, restrictions or limitations imposed by the court". That suggests a condition that she not gift what she receives to her children could be imposed.

189 Certainly, in Howarth v Reed (NSWSC, 15 April 1991, unreported) Powell J (as his Honour then was) referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour said at 43:

"While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros ..."

190 In Bondy v Vavros (NSWSC, 29 August 1988, unreported) Young J (as his Honour then was) said:

"... in one sense it does not matter if I form the view that the plaintiff is a spendthrift. If a person is entitled to an order what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money will be wasted on wine women and song in a short period of time."

191 In Green v Perpetual Trustee Co Limited (NSWSC, 10 July 1985, unreported), Hodgson J said that the Court could not "have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order" which was made, and that "such consideration could suggest that there should be terms attached to the order to prevent dissipation".

192 In Hampson v Hampson [2010] NSWCA 359, a case involving the Plaintiff's use of marijuana, Campbell JA said, after referring to the passage in Bondy v Vavros quoted above:

"[101] That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order ( Howarth v Reed , Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words "On the other hand, when one is considering what a wise and just testator would have done, ...". The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life.

[102] There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2 ), namely, once jurisdiction is established, formulation of an order under the Family Provision Act . Some examples from the caselaw are collected and discussed in the appendix to this judgment."

193 Whilst one cannot regard making provision for one's children as "wasting" money, or spending money "unwisely", the court is entitled to consider the Plaintiff's evidence, that, in all probability, she will not retain the provision for herself, at the jurisdictional stage. The Court could impose a condition restricting the Plaintiff's use of any provision, however, she might find it difficult to comply with such a condition. I am of the view that such a condition should not be imposed.

194 In the circumstances, the Plaintiff has not satisfied the jurisdictional threshold and her claim must be dismissed.

Exercise of Discretion

195 In case I am wrong, I turn to the second stage of the two stage process, and consider whether an order should be made, and if so, the nature of the order to be made.

196 As a matter of discretion, even if I had come to the view that the provision made for the Plaintiff was inadequate, I would not make an order as a matter of discretion. Some of the matters stated above are relevant at this stage also. The Plaintiff has given away an amount that would have made her financial circumstances better, not only by providing additional capital, but also by providing interest on that capital. Had she retained the amount, she would have had an available capital fund of about $75,000.

197 Furthermore, the Plaintiff made it clear that, in all probability, she would not retain, if not all, most, of the provision, if any, made for her, and, as she had done previously, would give it away to her children. As she stated, she would do so "because I think they have the same rights as other grandchildren". Her main aim appears to be to ensure that "my children not to have it as hard as I did". As commendable as that might be, that is not the purpose of the Act.

198 Furthermore, there is nothing to suggest that either of her children have financial needs which require the Plaintiff's assistance. Accordingly, also at the second stage, the Plaintiff's claim fails.

199 The ground for relief urged by the Plaintiff is that the provision made for her children by the deceased is disproportionate to the provision made for the Defendant's children. Even if the Plaintiff regards making a gift to her children from the provision, if any, made by the court in her favour, as "fair", or considers that it ameliorates the lack of provision made for her children, that is not what the Act provides for. As the court cannot rewrite the deceased's Will in accordance with its own ideas of fairness or justice, nor should it be entitled to rewrite that Will to accord with the Plaintiff's ideas of fairness and justice.

200 Nor is the purpose of the Act to redress the Plaintiff's hurt feelings, or sense of grievance, felt because, in the events that happened, no provision for her, or her children, by the Will was made.

201 On this basis too, the Plaintiff's claim fails.

Costs of the Proceedings

202 I turn then to the issue of costs.

203 The Plaintiff's counsel submitted that, in the event the Plaintiff did not succeed, the Plaintiff's costs should be paid out of the estate, or, in the alternative, there should be no order as to costs. The Defendant's counsel submitted that the usual order should apply and as the Plaintiff did not succeed, she should pay the costs of the proceedings. In the alternative, he, too, submitted, that there should be no order as to the Plaintiff's costs of the proceedings.

204 There are no offers of compromise or Calderbank offers that impact upon the question of costs. The only offer the subject of evidence is one in which the Plaintiff sought one-half of the value of the deceased's property. That, of course, far exceeds what she sought at the hearing.

205 There is no evidence of any offers made on behalf of the Defendant. This is consistent with what he said in evidence, namely that it was for the court to decide whether any provision should be made for the Plaintiff.

206 In one sense, the case has been brought about as a result of the conduct of the deceased. In her Will, she made provision for the Plaintiff and the Plaintiff's children. However, she must have known, in the events that transpired, that the Plaintiff was, and her children were, unlikely to receive any provision. This is a relevant matter on costs.

207 Also, had the Plaintiff not given the evidence that she did, and even if she had retained the amount that she had inherited rather than giving it to her children, there was an arguable case for some provision to be made to assist her in obtaining accommodation that she would own.

208 Finally, if an order were made that she should pay all of the costs of the proceedings, her own, as well as the Defendant's, calculated on the ordinary basis, not only would her savings be completely depleted, but she would require about $100,000 more to satisfy the costs order.

209 On the other hand, it is to be noted that the Plaintiff had not disclosed receipt of that inheritance, what she had done with it, or that she would give all, or most, of any provision that she received, to her children. The case may not have proceeded had she provided those instructions to her legal advisers prior to the commencement of the case, or at any time before she entered the witness box.

210 In all the circumstances, I am of the view that the Defendant's costs, calculated on the indemnity basis, should be paid out of the estate and that the Plaintiff should bear her own costs of the proceedings.

Orders

211 I order:

(a) The Plaintiff's Summons is dismissed.

(b) The Defendant's costs, calculated on the indemnity basis, will be paid out of the estate of the deceased.

(c) Make no order as to the Plaintiff's costs, to the intent that she will pay her own costs of the proceedings.

(d) Order that the Court Book, the exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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Decision last updated: 08 March 2012