Supreme Court New South Wales

• Medium Neutral Citation: David Wesley Fraser v Joseph Simmonds [2014] NSWSC 654
• Hearing dates: 13, 18 December 2013
• Decision date: 22 May 2014
• Jurisdiction: Equity Division
• Before: Kunc J

Decision

Order for provision made

• Catchwords: FAMILY PROVISION AND MAINTENANCE - Adult grandson - No issue of principle - Succession Act 2006, ss 59, 60
• Legislation Cited: Succession Act 2006 (NSW)
• Cases Cited: Camernik v Reholc [2012] NSWSC 1537; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Verzar v Verzar [2014] NSWCA 45; West v Mann [2013] NSWSC 1852
• Category: Principal judgment
• Parties: David Wesley Fraser (Plaintiff); Joseph Simmonds and Marnie Louise Platt (Defendants)
• Representation: Counsel: Mr K. Morrissey (Plaintiff); Mr R. Wilson SC (Defendant); Solicitors: Frankham Family Lawyers (Plaintiff); Mr Robert Palmer (Defendants)
• File Number(s): 2013/37447
• Publication restriction: No

Judgment

Summary

1 The plaintiff is a grandson of the late Melba Katrina Rich ("Mrs Rich"). Mrs Rich died on 7 February 2012 at the age of 84. By her will made on 29 July 2010 Mrs Rich left: $10,000 to her son William James Rich; $50,000 each to William's children Melanie Rich, Gregory Rich and Lynette Missingham; $10,000 to her daughter Margaret Mildred Fraser (the plaintiff's mother); $20,000 to Margaret's daughter Marnie Louise Platt (the plaintiff's sister); and $10,000 to Margaret's son, David Wesley Fraser (the plaintiff). Mrs Rich also left $50,000 each to her three great grandchildren Michaela Platt, Alyssa Kirkham and Brianna Kirkham. In addition Mrs Rich left $5,000 to her friend and neighbour Marie Kazzi, $40,000 to the Royal North Shore Hospital, Artarmon, $20,000 to the Children's Hospital, Westmead and $20,000 to the Guide Dogs NSW/ACT. The residue of her estate was left to Marnie Louise Platt. Probate was granted on 13 September 2012.

2 Without disrespect, I shall refer to the parties and above beneficiaries by their given names. They are the only eligible beneficiaries of the estate.

3 The defendants Joseph Simmonds and Marnie are respectively the nephew and grand-daughter of Mrs Rich and the executors appointed under her will. Probate was granted to them on 13 September 2012.

4 The estate comprised two properties, 52 XXXX Road, Auburn, NSW (the "Auburn property"), and 51 XXXX Street, Toowoomba, Qld (the "Queensland property"), some household furniture and approximately $8,000 in savings. The Auburn property was sold in June 2012 and the net proceeds of sale were $560,668. The deceased's estate comprises a bank account containing $521,892; $10,890 held in the defendants' solicitors trust account; and, the Queensland property valued at $150,000. The total value of Mrs Rich's estate is $682,782.

5 By summons filed on 6 February 2013, David applies for provision out of his grandmother's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr K. Morrissey of Counsel appeared for David. Mr R. Wilson of Senior Counsel appeared for Joseph and Marnie. The matter was heard on 13 December 2013 and on 18 December 2013 I made these orders:

The Court:

1. Having found that the plaintiff, David Wesley Fraser, is an eligible person, and that inadequate provision has been made for his proper maintenance or advancement in life, orders that in addition to the sum of $10,000 referred to in Clause 3(i) (where first appearing) of the will of the late Melba Katrina Rich made on 29 July 2010 (the "Will") provision be made for him from her estate in the sum of $56,500 (the "Additional Provision").

2. Orders that the plaintiff's costs of and incidental to these proceedings be paid out of the estate on the ordinary basis assessed as a lump sum of $35,790.00.

3. Orders that the defendants' costs of and incidental to these proceedings be paid out of the estate on the indemnity basis assessed as a lump sum of $58,903.00.

4. Orders that the costs referred to in Orders 3 and 4 be charged against and paid from the bequests in Clause 3 (where second appearing) of the Will with the balance to be a cost in the administration of the estate.

5. Order that the Additional Provision be charged against and paid from:

(a) First, the balance remaining of the bequests in clause 3 (where second appearing) after compliance with Order 4;

(b) Second, the bequest to Lynette Missingham as to no more than $15,000; and

(c) Third the bequest to Gregory Rich as to no more than $10,000.

6. Orders that the exhibits be returned to the parties' legal representatives upon publication of the Court's reasons to be held by them or the parties in accordance with Practice Note SC Gen 18.

7. Interest on the Additional Provision is not to run if it is paid within 28 days of the date of these orders.

6 These are the reasons for those orders. In addition, there is an error in Order 4, which will be corrected under the slip rule at the end of these reasons.

The Act

7 Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to "be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown".

8 Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are:

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

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

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

59(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

...

60(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:

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

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

60(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,

...

(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,

...

(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,

...

(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.

9 In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.

10 By reference to the language of the Act, the questions and issues which the Court must take into account are:

(1) Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation.

(2) If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))?

(3) If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))?

(4) If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person).

(5) If the answer to question (4) is "yes", having regard to all the circumstances of the case (whether past or present) are there factors which warrant the making of the application (s 59(1)(b))?

(6) If the answer to question (5) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")?

(7) Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant?

(8) If the answer to question (7) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened.

(9) Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)).

(10) Having answered question (9), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)).

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

(12) Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". The Discretion is otherwise unconfined, which means that in answering question (9) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred.

11 Having identified what I consider to be the correct approach under the Act to an application of this kind, I will now set out the facts. With minor and ultimately irrelevant exceptions, they were not in dispute.

The estate

12 As stated in paragraph [4] above, the estate now comprises the Queensland property and $532,782. Since October 1999 Margaret has lived in the Queensland property and pays rent of $200 per fortnight. David has also lived there since 2004. The Queensland property falls into the residue of the estate to which Marnie is entitled. However the parties agree that Margaret and David can continue to live in the Queensland property on the current terms subject to any order of the Court.

13 After the payment of the parties' costs amounting to $61,792, the estate (excluding the Queensland property) amounts to $470,990. After deducting the pecuniary bequests to Mrs Rich's family, friends and the three charities, the net cash residue is $25,990.

David

14 David was born on 18 February 1969. He was 44 years old at the time of the hearing.

15 When David was born, Margaret was a single mother. She has never disclosed the identity of David's father. After his birth, Margaret and David lived with Mrs Rich in her property at 23 XXXX Street Merrylands until Margaret re-married. Margaret and David now reside in the Queensland property. David pays board of $100.00 per week to his mother to cover the electricity bill and some meals.

16 While David was growing up he and Mrs Rich maintained a close relationship. He lived with her in the Auburn property from when he was 14 until he was 19 due to a rift with Margaret. Through no fault of her own Margaret had very limited means. At various times Mrs Rich paid for David's education, tennis lessons, driving lessons and dental work. She also cooked and cleaned for him and provided him with clothing. As David put it, Mrs Rich did everything for him that a parent would.

17 At 19, David left to complete a Bachelor of Commerce at the University of Newcastle. Mrs Rich paid for both his on campus and private accommodation, as well as other university expenses. Mrs Rich also gave David other amounts of money for particular needs, including $3,500 towards the cost of lap-band surgery which David underwent to control his obesity.

18 David worked as an accountant and auditor at the Australian Taxation Office from October 1994 until November 2001 when he took a voluntary redundancy and received a $34,000 payment. He is currently undertaking a Masters of Business Administration degree at the University of Southern Queensland. He has also begun a law degree, which he hopes to complete in 2018. Following that, David intends either to complete his practical legal training or return to work at the Australian Taxation Office. He predicts that he will return to work in either 2019 and 2020 subject to improvements in his health. David has been a student since 2009.

19 David's evidence was that he maintained a warm and close relationship with Mrs Rich during his childhood, university and working years, up until 2000. While there was some evidence to the contrary, I accept David's evidence as closer to the truth. Mrs Rich was disappointed with David's decision to leave the Australian Taxation Office. David said that he did not disclose to Mrs Rich the reason for his decision to leave the Australian Taxation Office, being that he was the victim of workplace bullying.

20 After 2000 David did not see Mrs Rich again, having moved to the Gold Coast and then into the Queensland property with his mother. David was physically unwell with weight problems, arthritis, a hernia and oedema. Mrs Rich was in her seventies and living in Sydney. However, David and Mrs Rich maintained a relationship via the telephone with the last time they spoke being early 2010.

21 But for his interest under Mrs Rich's will, David has few assets. He has personal belongings and furniture valued at $4,000, an account with the National Australia Bank holding $574 and a superannuation entitlement which yields $3,900 per annum and currently pays him $152.00 per fortnight.

22 In 2013 David received a lump sum payment of $9,000 from the Centrelink Disability Support Pension. With that money he bought a 2001 Commodore, which has an estimated value of $4,000. David uses this vehicle to travel to university, to go to the doctor and to take his mother (who is without a driver's licence) to the library, shopping and doctor's appointments and hospital visits. The balance of the $9,000 was spent on a Samsung Galaxy Notebook for university valued at $500; clothes for $300; new shoes for $120; two new pairs of glasses for $350; and car parts for $300. David now receives a payment of $857 per fortnight from his disability support benefit, which includes rent assistance and the $152 superannuation pension per fortnight.

23 David's liabilities are in excess of his very few assets. He owes Credit Corp $15,461 and National Australia Bank approximately $8,300. He also has a HECS debt amounting to $50,700. David's total liabilities are $74,461.

24 David's notable monthly expenses include rent; medication and vitamins (including protein shakes to assist with weight loss); food; motor vehicle expenses and university expenses. In total, he spends approximately $468 per week or $1,872 per month.

25 David does not enjoy good health. He suffers from morbid obesity (he currently weighs 166.7 kilograms) and he has chronic arthritis in his writing hand which has led to his inability to complete his university studies in the expected time frame. His other ailments include oedema, high blood pressure and an abdominal hernia. He also requires significant dental work for gum erosion and broken teeth.

The other interested parties

26 Evidence was provided to the Court as to the circumstances of other family members (including Clancy, Margaret's former husband) who are interested in the estate.

Margaret

27 Margaret is 64 years old. She does not work and her only source of income is an aged pension, which pays $772.00 per fortnight plus medical prescription and power benefits. Margaret has no assets other than personal items and effects. She does not have any liabilities and rents the Queensland property for $200.00 per fortnight from Marnie.

28 Aside from her $10,000 benefit under the Will, Margaret is a one-sixth remainder beneficiary in the estate of her late grandfather Marshall Simon Hanna of a property at 21 XXXX Street, Ashfield (the "Ashfield property"). Margaret estimates her one-sixth share to be worth $165,000. The life tenant of the estate had died by the time of the hearing.

29 Margaret does not enjoy good health. She requires a knee and hip replacement and suffers from chronic osteoarthritis fibromyalgia and type 2 diabetes.

30 Margaret believes that her benefit under the will and the receipt of her one-sixth remainder interest in the Ashfield property will enable her either to purchase or rent long-term accommodation.

Marnie

31 Marnie is 40 years old. She is the mother of three children, Michaela (15 years old), Alyssa (9 years old) and Brianna (5 years old). She has sole custody over the children and they live with her. Marnie and her children had a close relationship with Mrs Rich. In Mrs Rich's later years Marnie attended to many of Mrs Rich's needs including taking her shopping, doing her cleaning and the like. Mrs Rich told Marnie she had left her the residue of her (Mrs Rich's) estate so that Marnie could buy a house for herself and her children.

32 Marnie earns a wage of $485.00 per week. In addition, she receives: Centrelink family assistance for $385.00 per fortnight; Centrelink family assistance part pension for $390.00 per fortnight; and child support for $500.00 per month. Marnie's total weekly income is $988.00.

33 Marnie's expenses are only slightly in excess of her income. Her major expenses are: rent of $420.00 per week; food and household essentials of approximately $200.00 per week; and her Esanda Limited motor vehicle loan contract of $183.28 per fortnight. Her total weekly expenses are estimated to be $1,042.90.

34 Marnie has some assets. They are furniture worth $8,000; a Mazda 3 motor vehicle worth $16,000; and two Commonwealth Bank accounts holding $335.00 and $1,915 respectively. In total, her assets are estimated to be worth $26,250.00

35 Marnie's liabilities total $34,300 comprising credit card debt of $16,500 and her Esanda Limited motor vehicle loan of $17,800.

36 Marnie raises her children with minimal assistance. Evidence was tendered that her daughter Michaela suffers from a dysfunctional mood disorder that precludes her from attending school. Notwithstanding Marnie's ongoing attempts to find a suitable school, Michaela has not attended school regularly since 2012. Michaela also does not maintain a relationship with her father and he does not contribute to her upbringing financially or emotionally.

37 In contrast, Alyssa is enrolled in year 4 and appears to enjoy school. To facilitate her above average school performance Marnie intends to send Alyssa to a Christian school with fees ranging from $6,000 to $18,000 per year. Likewise, although very young, Brianna also appears to enjoy school. Both Alyssa and Brianna enjoy a strong relationship with their father and he contributes financially to their upbringing and is heavily involved in their schooling and extra curricular activities.

Melanie

38 Melanie is 28 years old and works as a medical practitioner at Eastern Health in Victoria. Her base salary is $1,919.70 per week and her living expenses include $3,000 for clothing, $1,000 for holidays and rent of $580.00 per week. Her professional expenses include registration fees with ANPRA & RANZCP of $2,000 and medical equipment and reference journals costing $3,000.

39 Melanie's liabilities are university HELP loans, a motor vehicle loan, a credit card with the National Australia Bank; and an American Express credit card. In total they amount to $89, 080.

40 Melanie has some assets including a motor vehicle, which is under finance and household furnishings worth $1,000.

Gregory

41 Gregory has no assets. His only regular income is a Centrelink payment of $628.40 per fortnight. He pays $290.00 in rent per fortnight, $160.00 per fortnight for utilities and $180.00 per fortnight for food and clothing. In total, his expenses amount to $630.00.

Lynette

42 There was no evidence of Lynette's financial resources and needs.

Clancy

43 Clancy receives a carer's pension and carer's allowance of $574.00 and $114.00 per fortnight in respect to his wife and his wife's aged pension worth $574.00 per fortnight. Including interest, this is a total income of $1,338 per fortnight.

44 Clancy's main expenses include rent ($262.00 per fortnight), utilities ($100.00 per fortnight), food, clothing and medications ($350.00 per fortnight), and provision for holidays, presents and entertainment ($200.00 per fortnight). His expenses amount to $1,082.00 per fortnight.

45 Clancy has a number of assets including a term deposit of $45,000, a $12,000 motor vehicle, furniture and household goods worth $3,500, and his wife's IAG Ltd shares worth $5,000. In total, his assets are worth $65,000.

Uncontroversial matters

46 I shall consider David's claim by reference to the questions and issues posed in paragraph [10] above.

47 As a grandchild of Mrs Rich, there is no doubt that David is an eligible person under the Act (s 57(1)(e)(ii)). David therefore has standing under the Act to bring these proceedings. The questions posed in paragraphs [10(1)] and [10(4)] above are each answered "yes".

48 The summons in these proceedings was filed less than 12 months after Mrs Rich's death, so the question posed in paragraph [10(2)] above is answered "yes".

49 The defendants accepted that because David was a named beneficiary in Mrs Rich's will there were factors warranting the making of the application within the meaning of s 59(1)(b) of the Act. The question posed in paragraph [10(5)] above is answered "yes".

50 The answer to the question posed in paragraph [10(6)] above is that in this case the Provision is $10,000.

Has adequate provision been made for David?

51 It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [10(7)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for David is not adequate for his proper maintenance, education or advancement in life. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of David is enlivened.

52 In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry:

39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty.

53 In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children. I have included the latter because, while not completely identical, Mrs Rich's relationship with David and the role she assumed towards him went beyond grandparental generosity and was to some extent more like that of a parent:

154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards".

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

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

157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered.

158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966.

159. In relation to a claim by an adult child, the following principles 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 obligation, responsibility, 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 if he or she is able to do so. 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] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (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 to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

(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), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

(g) 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.

54 Applying the principles just set out, the Court is satisfied that the Provision is not adequate for David's proper maintenance, education or advancement in life. The question posed in paragraph [10(7)] above is answered "yes". The reasons for this conclusion are:

(1) As is apparent from paragraphs [21] - [24] above, David's financial position is precarious and, in the absence of addressing his problem with obesity, will almost certainly not improve.

(2) While not a large estate, there is some capacity to make additional provision for David without seriously disrupting the overall testamentary scheme displayed by Mrs Rich's will, at least in relation to her family members.

(3) Although contact may have diminished between Mrs Rich and David in the last years of her life, that was more a product of geography and their respective physical limitations rather than anything else, despite some suggestion in the defendants' evidence to the contrary. Even into David's adulthood Mrs Rich displayed an ongoing desire to assist David financially in his difficult circumstances. Given a relationship that was at times more maternal than grandmaternal and David's ongoing health issues, it would accord with community standards of what might be right and proper for a greater provision to have been made for David to meet the exigencies of his current situation. Putting this another way, community standards recognise that a parent may have to provide for a sick adult child. In this case, where David's mother cannot do so, the history of their relationship justifies that expectation being transferred to Mrs Rich.

(4) In varying degrees none of the other persons who have a claim on Mrs Rich's testamentary bounty is in a particularly strong financial position (see paragraphs [27] to [45] above). However, David's circumstances and challenges, economic and physical, are more acute. An increased provision for David, especially insofar as it offers a prospect of improving his health, also means his prospects of employment and overall wellbeing can be increased to his future advantage.

What provision ought to be made for David?

55 It follows from the findings made in paragraph [54] above that the Court's discretion to make a family provision order in favour of David under s 59(1) of the Act is enlivened. For the reasons which follow, I answer the question set out in paragraph [10(9)] above as to what provision ought to be made for David as "$66,500".

56 In determining what provision ought to be made for the proper maintenance and advancement in life of David, I have taken into account all of the facts set out in paragraphs [12] to [45] above. I have particularly considered the following matters (using some parts of s 60(2) as a convenient checklist):

(1) [ss 60(2)(a), (m) and (n)] For many years David enjoyed a close relationship with Mrs Rich and she was heavily involved in raising him. To the extent that relationship declined from 2000 it was not attributable to anything said or done by David, but rather because David was working in Brisbane and Mrs Rich in Sydney. Whilst Mrs Rich may have been disapproving of David's decision to leave the Australian Taxation Office, I am satisfied that disappointment was not as strong as has been submitted. It was also raised in cross-examination that a falling out had occurred between David and Mrs Rich over David asking to recoup the cost of paint he bought to paint Mrs Rich's house. There is insufficient evidence before me to establish this was in fact the case.

(2) [s 60(2)(b)] Mrs Rich owed some obligation to David for the reasons identified in paragraph [54(3)] above.

(3) [s 60(2)(c)] See paragraphs [13] and [54(2)] above.

(4) [s 60(2)(d)] David has minimal financial resources to speak of. He appears to get by (and not much more than that) on his disability support pension and superannuation entitlement.

(5) [s 60(2)(f)] See paragraph [25] above. He remains unemployed while his health issues are unresolved.

(6) [s 60(2)(g)] David is 44 years old. In the ordinary course he should have many years of useful working life ahead of him if his health problems are overcome.

(7) [s 60(2)(i)] I have recorded earlier in these reasons Mrs Rich's generosity towards and support of David during her lifetime. I have also taken into account the $10,000 gift to David in Mrs Rich's will.

57 It was submitted for David that his need for provision included:

(1) Repayment of past debts which have been consolidated at $24,000;

(2) Repayment of his HECS debt of approximately $50,000;

(3) Replacing his motor vehicle - $16,000;

(4) Stomach sleeve surgery - $22,500;

(5) Dental work - $34,190; and

(6) A sum for contingencies - unspecified.

58 While the primary position of the defendants was that adequate provision had been made for David, their alternative submission was that if the Court was disposed to order additional provision for David, it should not exceed $40,000. This would give David a total provision of $50,000 which, the defendants submitted, is the maximum amount that could be justified on the evidence. Taking into account the size of the estate, the claims of the other beneficiaries, the fact that David's predicament with his weight is (to some extent) of his own making and the support which he received from Mrs Rich during his lifetime, the Court accepts that an analysis of the evidence justifies a figure closer to that proposed by the defendants than by David.

59 There are two aspects of David's alleged needs which should be put out of consideration immediately. First, insofar as his HECS debt is concerned, this will not become repayable unless and until his income reaches a specified level. If, as is to be hoped, David is eventually able to rejoin the workforce, then his HECS debt should be paid from his income in the ordinary course according to law. Second, given that David has now bought a motor vehicle, albeit a very modest one, it is not appropriate that any allowance should be made for him to purchase a newer or better one. David acknowledged in cross-examination that his current vehicle is adequate for the purposes for which he needs it.

60 An appropriate provision for David is one which puts him in the best position to take control of his life, complete his studies and rejoin the workforce. The most important part of this is to enable him to have the additional stomach surgery which he needs, given that the lap-banding procedure has not been as effective as had been hoped. This stomach sleeve surgery will cost $22,500.

61 Next, his physical and social circumstances will be enhanced if he is able to have some dental work done. In his earlier evidence this was originally estimated as costing $11,000, but in a subsequent affidavit the figure became $34,190. I do not accept that latter figure, which contains a significant degree of estimation and what might be termed "additional extras" rather than what is essential. $10,000 should be allowed for David's dental work.

62 Finally, David should be put into a position to discharge his existing consolidated debts to enable him to make a start with a clean financial slate. Those debts amount to $24,000.

63 The items to which I have referred justify an additional provision of $56,500. The size and circumstances of the estate do not permit any further specific allowances or additional provision for contingencies. His existing provision of $10,000 should stand to take account of such matters.

Conclusion and orders

64 The defendants did not advance any additional reason as to why, if the Court came to the view that additional provision should be made for David, the discretion to do so should not be exercised. The question posed in paragraph [10(10)] above is therefore answered "yes". For this reason I made order (1) set out in paragraph [5] above.

65 Against the possibility that the Court would order additional provision for David, the defendants made a number of submissions as to how the costs of these proceedings (which were agreed) and that additional provision should be borne by the estate. Those submissions were premised on the proposition that Mrs Rich ought to be taken to have intended her family to benefit ahead of the charities that were the object of her testamentary bounty, so that the costs of the proceedings and any additional provision should first be provided for from the amounts otherwise left to charity. Thereafter, an order of how the additional funds were to be provided was proposed on the basis of what I infer was an agreement or acceptance among the various beneficiaries as to who among them was best able to bear any reduction in what would otherwise be their entitlements under Mrs Rich's will.

66 I accepted those submissions, which are reflected in orders (4) and (5) above. However, in reviewing those orders I have noted that there was a slip in their expression. I therefore conclude these reasons by making the following order under the slip rule:

(1) That in order (4) made on 18 December 2013 the reference to "Orders 3 and 4" be amended to read "Orders 2 and 3".

Decision last updated: 22 May 2014