Supreme Court New South Wales Medium Neutral Citation: North v Daniel [2021] NSWSC 828 Hearing dates: 1 - 2 June 2021 Date of orders: 8 July 2021 Decision date: 08 July 2021 Jurisdiction: Equity Before: Hallen J Decision: Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons Catchwords: SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Some provision made for him in the last Will of the deceased – Reasons for the limited provision made for the Plaintiff stated by the deceased – Dispute as to accuracy of reasons – Significant competing claim of one Defendant, also an adult child of the deceased – Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision should be made for his proper maintenance and advancement in life and, if so, in what amount – Provision to be made for the Plaintiff in lieu of the provision made for him in the deceased's Will. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 62, 98 Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B Succession Act 2006 (NSW) ss 57-63, 65, 66, 72, 84, 99 Probate and Administration Act 1898 (NSW) ss 86, 84A Family Provision Act 1982 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 31 Cases Cited: Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Bkassini v Sarkis [2017] NSWSC 1487 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hall v Carney (No 3) [2021] SASCA 37 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 In re Green (Deceased); Zukerman v Public Trustee [1951] NZLR 135 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Liprini v Liprini [2008] NSWSC 423 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 O'Brien v McCormick [2005] NSWSC 619 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sanson v Sanson [2021] NSWSC 417 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Sreckovic and Sreckovic [2018] NSWSC 1597 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker [1996] NSWSC 188 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Texts Cited: R Atherton in "The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: Jeffrey William North (Plaintiff) Julie-Anne Daniel (first Defendant) Jennifer Elizabeth Hunter (second Defendant) Graeme Terence Mahn (third Defendant) Representation: Counsel: M K Meek SC (Plaintiff) No appearance (first Defendant) L J Ellison SC (second and third Defendants) Solicitors: de Groots Will and Estates Lawyers (Plaintiff) No appearance (first Defendant) Heckenberg Lawyers (second and third Defendants) File Number(s): 2019/371145 Publication restriction: Nil Judgment Introduction 1. These proceedings concern the estate of William John Leslie North (the deceased) and the claim brought by one of his, now adult, children, Jeffrey William North, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act) and for his costs of the proceedings. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. (An order restraining the Defendants from distributing the estate without his consent, which had been sought, is no longer pressed by the Plaintiff.) 2. The deceased died on 27 November 2018, aged 95 years, leaving a Will dated 28 April 2017. 3. Julie-Anne Daniel and Jennifer Elizabeth Hunter are the only other children of the deceased, and the older, and younger sister, respectively, of the Plaintiff. They are the first and second Defendants in these proceedings. The deceased's wife, and the mother of the three children, Alfreda Georgina North, predeceased the deceased, having died in April 2009. 4. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members. 5. The third Defendant named in the Summons is Graeme Terence Mahn, described in the deceased's Will as "my friend". He and Julie-Anne did not play any significant role in the proceedings. The Proceedings 1. Jeffrey's claim was commenced by Summons filed on 25 November 2019. It was not possible to determine these proceedings until contested Probate proceedings, which had been commenced by Julie-Anne, were determined. Indeed, the two different proceedings were set down for hearing consecutively, before me, for 5 days. However, the Probate proceedings and Julie-Anne's claim for a family provision order were resolved shortly prior to the hearing. 2. On 21 May 2021, this Court, in the Probate proceedings, made an order, subject to compliance with the Probate rules of Court, that Probate in solemn form of a Will made by the deceased on 28 April 2017 (the 2017 Will) be granted to Jennifer and Graeme, two of the three executors named in that Will. The Court noted that Julie-Anne had renounced Probate of that Will. In those proceedings, orders were also made in respect of the part of the proceedings that had been brought for a family provision order by Julie-Anne. I shall refer to the family provision order made in Julie-Anne's proceedings later in these reasons. 3. The Senior Deputy Registrar in Probate, on 24 May 2021, made some requisitions, which, apparently, had not been answered at the date of the hearing. For this reason, the Probate document had not been issued by the Probate Registry. 4. The parties agreed that the hearing would be concluded within three days and it was completed within that time. At the hearing, Mr M Meek SC appeared for Jeffrey and Mr L J Ellison SC appeared for Jennifer and Graeme. I am grateful to the legal representatives for the manner in which the hearing was conducted. 5. At the hearing of these proceedings, each of the parties sought the leave of the Court to read affidavits filed, and served, in the Probate proceedings. Only parts of some of the affidavits were sought to be read. 6. Uniform Civil Procedure Rules 2005 (NSW) r 31.9, relevantly, provides that in any proceedings, an affidavit filed in other proceedings may not be used as evidence, saving all just exceptions, and unless the Court orders otherwise. That leave may not be granted under sub rule (1) except to allow the affidavit filed in the other proceedings to be used in relation to the proof of particular facts. 7. Although the "particular facts", in relation to the proof of which it might be relied on in this case, were not specifically identified, as the affidavits had been filed and served in the Probate proceedings, there was no objection to the grant of leave. Senior counsel each agreed that the parts of those affidavits to be read could have been included in fresh affidavits filed in these proceedings. Neither asserted any prejudice. 8. In the circumstances, I formed the view that leave should be granted, to read the parts of the affidavits sought to be read, in order to avoid further delay and additional costs being incurred. Julie-Anne was not cross-examined on the parts of the affidavits that were read. Preliminary matter 1. Before proceeding to set out the factual background, it is necessary to refer to a somewhat urgent application, brought as a result of Jeffrey filing a notice of motion, on 21 May 2021, seeking an order that "the Plaintiff may give his evidence at the hearing commencing on 1 June 2021 by audio-visual link". (The reason for mentioning this application is that the COVID 19 restrictions, which exist at the time of the writing of these reasons, were not in existence at the time the application was made.) 2. The Court was able to deal with the notice of motion on 27 May 2021. At that time, senior counsel for Jeffrey orally sought to amend the notice of motion, without opposition, to add a reference to the witness, Natasha Suskova, giving her evidence remotely also. 3. I then made the following order: "Grants leave to the Plaintiff to amend the notice of motion so that Paragraph 1 seeks an order that the Plaintiff and Natasha Suskova give his and her, evidence, respectively, at the hearing commencing 1 June 2021 by audio-visual link." 1. It is regrettable that the notice of motion was filed less than two weeks before the hearing, when the medical reports upon which reliance was placed, were dated 18 March 2021 and 25 March 2021. I note, however, that Jeffrey's solicitors had written to each of the legal representatives acting for the other parties making that request in a letter dated 6 April 2021. It had also been raised at the pre-trial directions hearing held on 7 April 2021. Presumably, the notice of motion was not filed earlier in the hope that it would not be necessary to bring the application formally and that an order, with consent of the parties, could be made in Chambers by the Court. 2. In summary, the basis of the Plaintiff's application was that Jeffrey suffers from extreme anxiety and Post-Traumatic Stress Disorder and that for him "to travel to a different city and be isolated from his support system to attend a court hearing that may go on for several days and which will be incredibly stressful and triggering … would be very detrimental and dangerous for his well-being and safety. This would also interrupt the continuation of his treatment and support at a very high-risk time for him". 3. The passage quoted is found in the report written by Laurie Brotherstone, a Psychologist, who also concluded that "it would be very detrimental to Mr North's mental wellbeing to have to attend" Court in person. 4. In relation to Natasha, the medical evidence was far less detailed, there being a three-line document, dated 25 May 2021, headed "Medical Certificate", which stated that she "has been suffering from severe anxiety/depression for [a] few years and recently getting worse. She is under psychiatrist and psychologist and on medication. She is not fit to attend courts". The author of the Medical Certificate was Dr Savitri Seneviratne, who, I gather from the letterhead on this document, is a general practitioner. 5. It is clear from the evidence relied upon that the application for each to give evidence by audio-visual means was not made in response to the COVID-19 pandemic. 6. I should mention that Jeffrey and Natasha, both live in Queensland. Thus, significant expenses would be saved if they did not have to travel to Sydney for the duration of the hearing. This was a relevant consideration as it was not submitted that the application was one based simply on inconvenience to each of the witnesses. 7. Jennifer and Graeme did not file, or serve, any evidence in opposition to the application made by Jeffrey. When asked for the reasons, if any, for opposing the application, senior counsel for Jennifer and Graeme informed the Court, from the Bar table, without opposition, that the Defendants did not formally oppose the order, as amended, being made, as ultimately, it was a matter for the Court to determine whether the application should be granted. He went on to submit, however, that Jennifer and Graeme would "prefer" the evidence to be given in person as there were factual matters, including some "conduct issues" in dispute. He did not, however, submit that they would be prejudiced if the cross-examination, particularly of Jeffrey, was conducted remotely. 8. Senior counsel for Jennifer and Graeme added, in relation to Natasha, that the "Medical Certificate" was hardly compelling. However, he did not make any specific submission that Jennifer and Graeme would be prejudiced if her evidence was unable to be tested by cross-examination of her in person. 9. Neither senior counsel sought an order that the hearing be adjourned. In discussion with the Bench, it seemed to be accepted that arrangements could be made to allow the matter to proceed in an orderly manner. Indeed, one suggestion made was that there would be a solicitor attending the place at which each of Jeffrey and Natasha, respectively, was to give evidence, to ensure the integrity of the process. 10. The basis of the relief sought by Jeffrey was not made clear in the notice of motion, but there can be no dispute that the Court has power to make such an order. Section 62(1) of the Civil Procedure Act 2005 (NSW) provides that the Court may, by order, give directions as to the conduct of any hearing. UCPR r 31.3(1) also provides that, if the Court so orders, evidence and submissions may be received by telephone, video link, or other form of communication. In addition, so far as is relevant, s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) also provides that power. If it were necessary, reliance could also be placed on the Court's inherent jurisdiction. 11. It was accepted by senior counsel that the Court has a broad and general discretionary power to make orders permitting the evidence of a witness, or witnesses, to be given by audio video link. The party seeking the order bears the onus of establishing that it is appropriate that such an order be made. The Court must have regard to the interests of justice in determining whether an order should be made. Factors which may be relevant to the exercise of the discretion include the nature and significance of the evidence and the extent to which it might be disputed: Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 at [11] (Cavanagh J). 12. The Court must be satisfied, however, in exercising its discretion, that the video link process is appropriate. Ultimately, in making the decision, the discretion should be exercised in the way that best promotes the overriding purpose of the Civil Procedure Act and the UCPR to facilitate the just, cheap and quick resolution of disputes according to law. 13. I was satisfied that, nowadays, with the increased availability and use of video link technology, and the experience of the Court and legal practitioners in conducting hearings remotely, any witness who gives evidence remotely will remain conscious of the nature and solemnity of the occasion and of his, or her, obligations in respect thereof. From the Court's perspective, the cross-examination should not be rendered any less effective, as often, the face of the witness is closer than it would be if the matter proceeded as a live hearing. This enables the trial Judge to assess the nature, quality and reliability of the responses by the witness, both to questions and to the overall situation presented by the necessity to give evidence in court. 14. As has recently been written by Henry J in Sanson v Sanson [2021] NSWSC 417 at [31] - [32]: "From my own experience, and as recognised by judges in this and other courts, there has been little diminution in being able to assess the difficulties witnesses have in answering questions or observing a witness closely through the use of technology as, in some respects, it is easier for a judge to assess a witness who is close-up on the screen. The formality of proceedings may also be maintained by conducting the case in accordance with the usual Court processes and emphasising to the defendant that her evidence is given in court proceedings notwithstanding that it is being given over AVL from a remote location." (Citations omitted). 1. In addition, there was discussion, and essential agreement, on the method by which a copy of documents required to be shown to each of Jeffrey and Natasha could be provided to him, and her, respectively, during the cross-examination. Whilst somewhat inconvenient, this is nowadays hardly unusual. 2. Naturally, I considered the consequences of not making the order as amended, sought by Jeffrey. The Court should not put either witness at risk in circumstances where he, and she, appears to be particularly vulnerable. The Court is acutely aware of the stressful nature of litigation, which only increases at the hearing. In addition, enabling each to give his, and her, evidence, calmly and without anxiety, in what each considers a safe environment, would benefit not only the parties but also the Court. 3. In my view, having heard the submissions, I formed the view that the justice of the case warranted the making of the order sought. The prejudice to the state of health of each of the witnesses in having to travel to Sydney from Queensland to give evidence appeared to me to be far greater than any inconvenience that Jennifer and Graeme might suffer having senior counsel cross-examine each of Jeffrey and Natasha remotely. 4. I indicated that I would exercise the broad discretion and would make a direction for evidence to be taken from each of the Plaintiff and Natasha from a place outside New South Wales by audio visual link. I stated that I would make the order that was sought at the commencement of the hearing and would publish my reasons for doing so as part of these reasons for judgment. 5. Whilst Jeffrey was successful, the interlocutory application was necessary due to circumstances beyond either party's control. Neither senior counsel disputed that the appropriate order as to the costs of the notice of motion, was that the costs of each party, should be costs in the cause. That is the order that was then made. 6. At the commencement of the hearing on Tuesday, 1 June 2021, without opposition, the Court made the following direction: "Orders, on the application of the Plaintiff, the Court directs, pursuant to UCPR rule 31.3(1) that the Plaintiff and Natasha Suskova, respectively, shall give evidence and be cross-examined by audio-visual link from a place within Australia, other than Court 2 Hospital Road, Sydney." 1. Then part of the hearing, being the cross-examination of Jeffrey was conducted, using Microsoft Teams, a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. (In the events that happened, counsel for the Defendants did not wish to cross-examine Natasha.) 2. Despite part of the hearing being conducted remotely, there was no informality as counsel, and I, remained wigged and robed throughout and the cross-examination took place with me sitting in my usual Courtroom. The witness, although remote, remained present, and in view throughout the cross-examination. I was able to see, and hear Jeffrey, as were counsel and the parties, as I would have, had a live hearing taken place. 3. Having now concluded the hearing, I am satisfied that it was undertaken in a forensically sound, thorough, fair, and just manner. No complaint has been made about the manner in which the hearing was conducted. Some undisputed formal matters 1. There were some uncontested formal matters to which I should refer. 2. Jeffrey commenced the proceedings within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act. 3. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, Jeffrey is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act). 4. However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (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 …". 5. As the deceased dealt with all of his estate in his last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased. 6. A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. 7. Although in the Summons the Plaintiff sought an "order pursuant to ss 78, 79, 80, 81, 82 and 85 of the said Act designating as notional estate such property as the evidence may disclose", at the hearing, neither party submitted that there was any property that was able to be designated as notional estate. In the circumstances, Jeffrey did not seek an order that any property of the deceased be designated as notional estate. 8. The solicitors originally acting for Jeffrey, in error, did not file or serve a notice identifying eligible persons. However, such a notice, dated 28 May 2021 was provided to the Court at the hearing. There was no dispute that the only eligible persons are the three children of the deceased. No prejudice was suffered as a result of this document being served later than it ought to have been. 9. Only Julie-Anne, and Jeffrey, each made a claim for provision under the Act. As stated, Julie-Anne's proceedings were resolved on the basis of orders consented to by the Defendants and Jeffrey. 10. Jennifer has not commenced proceedings under the Act, but she has given evidence of the bases, financial, and otherwise, of her claim upon the bounty of the deceased as one of beneficiaries named in the deceased's Will. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. I shall refer to Jennifer's situation in life, later in these reasons. 11. Jennifer and Graeme, as executors, do not seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW). Some background facts 1. It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court. 2. The deceased was born in December 1922 and died in November 2018 aged 95 years. He married Alfreda in February 1951 and remained married to her until her death in 2009. 3. Julie-Anne was born in January 1955 and is 66 years of age. Jeffrey was born in September 1956 and is 64 years of age. Jennifer was born in May 1967 and is 54 years of age. 4. The deceased lived in various places in New South Wales and Queensland, including Albury, Brisbane, Collaroy and Killarney Heights. The deceased was a sales manager. Alfreda did not work outside the home. 5. Jeffrey left school in 1972, having obtained his School Certificate. After he left school, he commenced a carpentry apprenticeship and then served as an infantry soldier in the Australian Army. In 1980, he commenced working with North Sydney Council. He suffered a work-related injury in December 1997 and a work related motor vehicle accident in July 1998. He left his employment in September 1999 and has not worked in paid employment since then. 6. In 2003, Jeffrey moved to live in Surfers Paradise. 7. Natasha met the deceased and Alfreda in early 1996. 8. In February 2017, Jennifer separated from her then husband, Bradley Hunter. In August 2018, she and her daughter, Charli, moved into the deceased's Killarney Heights property with the deceased. The matrimonial home, in which she had lived with Bradley, was sold for $1,200,000 and Jennifer received, by way of adjustment of property, the lump sum of $476,000 after legal costs were deducted. 9. The Killarney Heights property is a single storey, four bedroom two bathrooms dwelling with a double garage and workshop. It was built in the mid-1970s. The deceased's last Will 1. Following Alfreda's death, the deceased made a number of testamentary documents in 2009, 2014, 2015, 2016 and 2017. His last Will was the 2017 Will that was the subject of the grant of Probate in solemn form. 2. Under the 2017 Will, Jeffrey received a pecuniary legacy of $50,000, a one third share of the deceased's car, and one half of residue. Jennifer received a devise of the deceased's property at Killarney Heights and its contents, a one third share of the deceased's car, and one half of residue. A pecuniary legacy of $10,000 was left to Richard Daniel, Kerrie-Anne Cullimore, Pippi Cullimore, Lily Cullimore and Charli Hunter, each of whom is a grandchild of the deceased. Julie-Anne received the balance of cash moneys held by the deceased at the date of his death, after payment of the pecuniary legacies, and a one third share of the deceased's car, but no share of residue. The estate of the deceased 1. On 7 April 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is, or may be required, to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to any party, whether those costs have been paid out of the estate of the deceased. 1. I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.) 2. Although the nature of the deceased's estate at the date of the Schedule was agreed, the value of the estate was not. Therefore, I have included the values attributed by each of the parties where there has been no agreement. 3. The deceased's estate at the date of the Schedule comprised the real estate at Killarney Heights (estimated to be $2,600,000 by Jeffrey and $2,200,000 by the Defendants), cash in bank accounts ($26,267 and $240,000), cash in the Defendants' solicitors' trust account ($17,290), shares in companies ($177,205 and $10,356), debentures (of nominal value), managed investments ($154), and cash (estimated by Jeffrey to be $60,000 and $40,000 by the Defendants). Household effects were said to be of nominal value. 4. In addition, Jeffrey asserted that Jennifer owed the estate rent for her occupation of the Killarney Heights property ($157,600), which was denied by her. This amount was based on an estimate that rent for a house of a similar size, in the Northern Beaches area, would be around $1,295 to $1,300 per week: Affidavit, Jeffrey William North, 24 July 2020, Annexure H. 5. Thus, the gross value of the estate, at the date of at the date of the Schedule was estimated to be $3,288,872 by Jeffrey and $2,711,272 by the Defendants. 6. It can be seen that the major difference between the parties is as to the value of the Killarney Heights property (the difference being $400,000), the rent said to be payable by Jennifer (said by the Plaintiff to be $157,600) and the cash (the difference being $20,000), making a total of $577,600. 7. At the hearing, senior counsel for Jeffrey accepted that any alleged rent owed by Jennifer should be regarded as a benefit received from the estate (Tcpt, 2 June 2021, p 99(49)), rather than requiring a repayment to the estate. 8. There was no dispute that Jennifer has paid outgoings on the Killarney Heights property which total $19,726. Regardless, as the Killarney Heights property is devised under the Will, to Jennifer, in any event, she would be entitled to any income received from that property after the date of death until distribution of that property to her. In support of this proposition, one need only refer to O'Brien v McCormick [2005] NSWSC 619, in which Campbell J wrote at [38] - [39]: "Income arising after the date of death on property which is left as an unconditional and immediate gift by a specific legacy or devise goes to the specific legatee or devisee... (Though In Re Marten; Shaw v Marten [1901] 1 Ch 370 was reversed by In Re Marten; Shaw v Marten [1902] 1 Ch 314, the reversal was on the construction of the gift, and did not question the decision below so far as the destination of intermediate income of a specific gift was concerned.) The intermediate income which goes with the specific legacy or devise is that which accrues from the date of death, regardless of when the incomes comes to hand: s 144 Conveyancing Act 1919 (NSW). The right to the intermediate income arises from the fact that, once an executor assents to a specific legacy or devise, the assent relates back to the date of the deceased's death. This state of affairs is consistent with the rule that the expenses of upkeep, care and preservation of specifically bequeathed or devised property, from the time of death until the time of the executor's assent, and the cost of transporting or transferring that property to the specific legatee or devisee, are payable by the specific legatee or devisee, unless the proper construction of the gift is that the legatee or devisee is to receive the gift free of such expenses." (Citations omitted) 1. The passage was recently cited, with approval in Hall v Carney (No 3) [2021] SASCA 37 (Doyle, Livesey and Bleby JJA) at [129] - [130]. 2. At the commencement of the second day of the hearing, the parties were able to agree that the value of the Killarney Heights property should be estimated to be $2,325,000: Tcpt, 2 June 2021, p 99(27-28). They also agreed that the cash was $40,000: Tcpt, 2 June 2021, p 99(36-47). That results in the total value of the estate, at the time of the hearing, being agreed, at $2,836,272. 3. No liabilities, other than, possibly the costs of the proceedings, were disclosed. 4. There was also no dispute that the lump sum of $300,000 payable to Julie-Anne, pursuant to the order made in the Probate proceedings, and the pecuniary legacies payable to the beneficiaries named in the 2017 Will (including Jeffrey) total $100,000, and will be payable out of the estate of the deceased. 5. Senior counsel for Jeffrey confirmed that if any provision was to be awarded to Jeffrey it should be in lieu of his legacy under the deceased's 2017 Will: Tcpt, 2 June 2021, p 100(27-31). 6. In addition, it was agreed that if the Killarney Heights property is to be sold, the estimated costs and expenses of sale will be $40,000 (assuming a sale price of $2.325 million): Tcpt, 2 June 2021, p 101(05). 7. Accordingly, the value of the estate, without deducting any costs of these, and Julie-Anne's, proceedings, is estimated to be $2,396,272. The Costs of the Proceedings 1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion. 2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule. 3. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan [2016] NSWCA 222 at [54]; (2016) 15 ASTLR 317 at 330 [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs." 1. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]: "... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'." 1. I have repeated many times in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 at [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. 2. Jeffrey's costs and disbursements of the proceedings, calculated on the ordinary basis were estimated to be $180,411. Those costs and disbursements, calculated on the indemnity basis, were estimated to be $204,761. On the second day of the hearing, senior counsel for Jeffrey proposed a gross sum figure of $125,000 for all of Jeffrey's legal costs: Tcpt, 2 June 2021, p 101(46). This was not agreed to by the Defendants: Tcpt, 2 June 2021, p 102(15-20). 3. Jeffrey stated, in cross-examination that he has already spent around $109,000 of his savings on costs: Tcpt, 1 June 2021, p 59(24-50). It is unclear how this figure was arrived at as it differs from the amount of $75,000 stated in the agreed Schedule. 4. Jennifer's and Graeme's costs of these proceedings, calculated on the indemnity basis, were estimated to be $99,114. Their costs of the Probate proceedings, calculated on the indemnity basis, were estimated to be $105,570. Counsel's fees in both proceedings total $93,500, making a total amount for their costs and disbursements of the litigation, of $298,184. 5. At the hearing, senior counsel for Jennifer and Graeme agreed that due to the shorter hearing, their costs had decreased slightly, to a total of $280,000: Tcpt, 2 June 2021, p 103(15-16). 6. (It is not necessary to consider Julie-Anne's costs as no order for her costs was made in her family provision proceedings with the intent that she would bear her own costs of the proceedings.) 7. Jennifer has paid $33,000 on account of costs from her own resources. 8. Assuming, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that the costs orders referred to above are made, in the event that Jeffrey is successful, the total amount of costs and disbursements of these proceedings, which may be payable out of the estate, will be $405,000. 9. Once the costs and liabilities are taken into account that leaves an estate value of around $1,991,272 from which provision for Jeffrey may be made. 10. At the commencement of the hearing, the Court asked whether how the burden of costs should be borne could be determined as part of these reasons, to which senior counsel replied that they could not be as there may be documents that were relevant: Tcpt, 1 June 2021, p 06(49)-07(04). 11. The Court encouraged the parties to agree on his, and their, costs, respectively, calculated on the ordinary basis for Jeffrey, as the Plaintiff, and, so far as Jennifer and Graeme, as the Defendants, are concerned, their costs calculated on the indemnity basis. By doing so, the court could make an order, before costs were referred for assessment, to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs: Civil Procedure Act, s 98(4)(c). This would avoid any further delay in the administration of the estate. Regrettably, they were unable to do so. 12. It will, therefore, be necessary to relist the matter for the costs of the proceedings to be determined unless the parties are able to agree after these reasons are published. Prior Wills of the deceased 1. In the deceased's Will made on 27 May 2009, Jeffrey received an equal share of the deceased's estate with Julie-Anne and Jennifer. In the deceased's Will made on 23 January 2014, he received a pecuniary legacy of $100,000. In two of the deceased's Wills made in November 2014, he received a pecuniary legacy of $50,000. In the deceased's Will executed on 22 January 2015, he received a pecuniary legacy of $50,000. In the deceased's Will executed on 12 January 2016, Jeffrey received a pecuniary legacy of $50,000 and a one-third share of residue. 2. In each of the deceased's Wills made in January 2016, January 2015, and November 2014 (twice), Jennifer received a devise of the Killarney Heights property. 3. It is clear from the above, that the deceased's long held testamentary intentions included that the Killarney Heights property would be devised to Jennifer and that Jeffrey should receive, principally, a pecuniary legacy only, and in some Wills, a share of residue. 4. Section 60(2)(j) of the Act permits the Court to have regard to the testamentary intentions of the deceased, including any statements made by the deceased. As I noted in Sreckovic and Sreckovic [2018] NSWSC 1597 at [55], an earlier Will of the deceased may also reflect the recognition by the deceased, at the time of the prior Will, of a degree of testamentary duty owed by her, or him, towards the applicant. I shall say more about the relevance of the testamentary intentions of the deceased later in these reasons. Jeffrey's relationship with Natasha 1. There was a disputed issue of fact concerning the nature of the relationship between Jeffrey and Natasha. Jeffrey asserted that he was not in a relationship with anyone and that he has no children. He described Natasha as a long term friend, who has provided him with supportive care and assistance, and mutual friendship, since about 1998. 2. In cross-examination Jeffrey stated that if he was ill he would occasionally stay overnight in the spare room at Natasha's house and that she would take care of him: Tcpt, 1 June 2021, p 52(18-19). Natasha would also sometimes stay overnight at Jeffrey's home: Tcpt, 1 June 2021, p 52(21-22). 3. Jeffrey stated that, occasionally, he cares for Natasha as well "when she's between boyfriends or when she needs some counselling" but there is no agreement for the care he provides her: Tcpt, 1 June 2021, p 52(39-45). 4. Senior counsel for Jennifer and Graeme submitted that Jeffrey had been in a relationship with Natasha for more than 20 years. 5. Although Jeffrey was asked some questions on the topic, Natasha was not cross-examined. Natasha, in her affidavit of 24 July 2020, described her relationship with Jeffrey as a "friendship". 6. It is probably not necessary to resolve this dispute, as it appears clear, on the evidence that was read, that Jeffrey and Natasha do not live together. It is only if an applicant is cohabiting with another person, that the financial circumstances of the other person is a matter that the Court may consider: s 60(2)(e) of the Act. The Statutory Scheme 1. The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, and even though there was really no dispute about them, I shall repeat the relevant principles. 2. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased. 1. Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the Court "thinks ought to be made" for the identified purposes: s 59(2). 2. The majority (Mason CJ, Deane and McHugh JJ) in Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40, referred to these as "twin tasks" and stated that they involved similar considerations, because in each, the Court must assess what is the "proper" level of maintenance and advancement in life and what is "adequate" provision. 3. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse at 210; White v Barron (1980) 144 CLR 431 at 434–435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14. 4. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34]; (2009) 2 ASTLR 89 at 97 (Basten JA, Allsop P and Ipp JA agreeing), 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". 5. As has been observed, the words "adequate" and "proper" are relative. Regard may be had, among other things, to the matters set forth in s 60(2), including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the circumstances and needs of other applicants, beneficiaries and potential beneficiaries. 6. Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his, or her, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made, and acceded, to by the Court. 7. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an 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 made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or 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 or advancement in life of the applicant. 8. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria. 9. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing), at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning." 1. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502: "… the 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." (Citations omitted). 1. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote: "… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the 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 used 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." 1. The word "maintenance" and the phrase "advancement in life" are not defined in the Act. 2. In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented: "'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." 1. In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant … 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." (Citations omitted) 1. In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import." 1. In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote: "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 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 1. White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, wrote, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)." 1. Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education, or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J). 2. As was written in Devereaux-Warnes v Hall (No 3), by Buss JA, at [81]–[84]: "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]." 1. However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act. 2. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "… the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …". Respectfully, I agree. 3. Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'." 1. In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable." 1. However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 at 8, Bryson J (as his Honour then was) commented that "[i]t does not seem possible to give a complete or exhaustive statement of the concept". 2. Yet, as Basten JA wrote in Chan v Chan, at [22]: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…'. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator." 1. Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122] that the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. 2. Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that: "… the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656 at [12], Allsop P observed that '[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)'. That observation applies to the concept of 'financial needs' embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act." 1. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made. 2. Section 60 of the Act 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. 1. It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order. 2. In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)." 1. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are necessarily of decisive significance and none differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to any relevant factors. 2. Furthermore, the section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. 3. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 4. 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. 5. The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the Court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127] (White J). 6. In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification." 1. In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated." 1. As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate." 1. This passage confirmed that the Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [97]: "The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom." Some Additional Principles 1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the current Act. Other judges, and I, have repeated them in many cases under the Act. 2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J). 3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. 4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act." 1. In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a will according to the Court's 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." (emphasis in original) 1. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court." 1. Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propogation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker [1996] NSWSC 188 at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J). 2. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 3. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J). 4. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep). 5. In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse: "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act." 1. However, none of the other beneficiaries named in the deceased's Will have to prove an entitlement to the provision made for her, or him, or justify such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will. 2. Section 65(1) of the Act requires a family provision order to specify: 1. the person or persons for whom provision is to be made; 2. the amount and nature of the provision; 3. 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 4. any conditions, restrictions or limitations imposed by the Court. 1. The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic payment, or "in any other manner the Court thinks fit": s 65(2) of the Act. If 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. 2. Section 66 of the Act sets out the consequential and ancillary orders that may be made. 3. Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As Brereton J wrote in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is: "… a unique form of order which in effect is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such." Claim by an adult child 1. I have in many cases referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. 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, and 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 their 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": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents 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 at [58] (Brereton J). 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58]. 5. 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 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). 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 at [74]–[90] (Martin CJ). 6. 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 (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2. 1. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62] (Sackville AJA). Qualifications on "Principles" 1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application." 1. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant. 2. The formulation of principles to guide the exercise of the discretion, hopefully, avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power. 3. Yet, it is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 1. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], by Barrett JA at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and by White JA in Steinmetz v Shannon at [37]. They must be remembered. Additional Relevant Facts 1. As part of the context in which Jeffrey's case must be decided, next, I set out some additional facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. 2. Jeffrey lived continuously with the deceased until 1985 (except for the period when he was in the Army between 1975 and 1978): Tcpt, 1 June 2021, p 39. He is said to have paid the deceased $50 per week in board: Tcpt, 1 June 2020, p 40(10-13). 3. From about 1972, Jeffrey began making repairs and improvements to the Killarney Heights property. This included replacing various roof plumbing, repairing the automatic garage door, tiling, and excavation, amongst other tasks. This often involved paying for the materials himself. The work was completed whilst he was living with the deceased in the Killarney Heights property and also after he began living in Mt Colah. A schedule for this work was marked JN-4 and annexed to Jeffrey's affidavit of 20 March 2020. 4. In 1985, Jeffrey moved to Mt Colah. The deceased loaned Jeffrey $10,000, at 10% interest, to assist with the construction of the house. Jeffrey stated this was repaid to the deceased within 5 years: Tcpt, 1 June 2021, p 76(37-38). The deceased also assisted Jeffrey with the physical construction of the property. 5. The deceased wrote, in a statement dated 1 July 2017, that while assisting with the construction of the house, Jeffrey directed "arrogance, insults, abuse, etc [sic] towards me": Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Ex JEH-1/58. 6. Jeffrey denied having ever abused the deceased. He stated that over the 12 months it had taken to build the Mt Colah property, he and the deceased only ever had one argument, which was regarding a safety incident on the construction site. 7. In 2003, Jeffrey moved up to Surfers Paradise. After moving to Queensland, Jeffrey would stay in touch with the deceased with weekly phone calls and visits to Sydney at Christmas each year. 8. From 2007, Jeffrey noticed the deceased began behaving differently. He recalled that Alfreda said to him: "I think your father is getting old and silly, he severely abused me over nothing, he became quite aggressive when I asked him to put his hearing aids in so that he could [sic] what I was saying, he got really upset and said his hearing aids have never worked and were just a waste of money and if I ever asked him to put his hearing aids again, he will throw me out on the street and I will be homeless. It was very upsetting for me." 1. In early 2008, Alfreda was diagnosed with bile duct cancer. She died shortly thereafter. 2. After Alfreda's death, Jeffrey stayed in touch with the deceased through letters, as the deceased's hearing loss prevented him from speaking on the telephone. Jeffrey would call Julie-Anne and Jennifer to check on the deceased. 3. In August 2009, the deceased visited Jeffrey at his Surfers Paradise home. 4. From 2009 to 2016, Natasha and Jeffrey would visit the deceased in Sydney at Christmas for about 7 to 10 days. Jeffrey would occasionally visit mid-year as well. During this period Jeffrey noticed increasingly odd behaviour by the deceased including inappropriate comments, memory problems, suspicion, paranoia, and fixation on irrational issues. 5. In 2013, the deceased sent Jeffrey a letter in which he stated that Jeffrey would leave his estate to a "dogs home". The letter is marked JN-6 and annexed to Jeffrey's affidavit of 20 March 2020. 6. In a conversation shortly afterwards, the deceased said that he had been told by Jennifer, that Jeffrey wanted to leave his estate to a 'dog's home'. Jeffrey then assured the deceased he did not intend to leave his estate to a 'dog's home'. Jeffrey stated that the deceased continued to be suspicious of him and would bring up that he did not want Jeffrey to leave his estate to a 'dog's home'. 7. Following a visit at Christmas 2013, the deceased was said to have exhibited hostile behaviour towards Jeffrey and had trouble concentrating. 8. Jeffrey and the deceased had many conversations regarding Jennifer's financial situation and the deceased's gifts of money during his lifetime to Jennifer. This seemed to be a contentious topic in the deceased's relationship with Jeffrey. According to Jeffrey, the deceased was under a false impression that Jennifer was in a poor financial situation. 9. In 2013, the deceased said to Jeffrey and Natasha that "Jennifer told me she is on $35,000 a year and I believe her. Jennifer has got no money and she's poor, that's it. I don't want to talk about it". 10. In 2014, the deceased said to Jeffrey that "Jennifer was upset and crying about having no money, she kept going on and on and crying so I gave her money." They had another conversation about Jennifer's financial position in late December 2014. 11. In 2015, the deceased told Jeffrey he had given Jennifer $10,000 to pay for lawyers to assist in a legal matter with her husband. Jennifer denied that the deceased gave her any money to pay for lawyers. She was not cross-examined on her denial. There is no basis to reject her evidence on the topic. 12. Between 2015 and 2016, Jeffrey recalled multiple conversations with the deceased in which he said he gave Jennifer money for things such as food, car repairs, and veterinary fees. 13. In around March 2018, the deceased gave Jennifer $20,000 to assist in repairs, in order to make her house ready for sale. Jennifer stated this was a gift and there was no expectation to pay back the funds. 14. Jeffrey stated that on two occasions Jennifer had asked the deceased and Alfreda for an early inheritance. Jennifer denied ever asking for an early inheritance from the deceased or Alfreda. She stated that for most of her life, she had not known about the contents of the deceased's Will as he did not talk about it with her. She also noted that at the time of these alleged conversations, she owned an apartment in Manly Vale with her husband, without a large mortgage, was securely employed and "not in financial difficulties". I accept her evidence in this regard. 15. Jennifer believed that the deceased did not have a good relationship with Jeffrey. She stated that, on multiple occasions, the deceased had told her that "[Jeffrey's] a bad-tempered bastard" and "[o]ne of the neighbours came around and said he couldn't believe the way Jeffrey speaks to me": Affidavit, Jennifer Elizabeth Hunter, 17 August 2020 at par 79. 16. In a statement made 1 July 2017, the deceased wrote (Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Ex JEH-1/58): "I… do wish to have it known that my son Jeffrey William has been a loner since the age of 15 and that he is a person of greed and self self [sic], who owns a home and lives in it on the canal at Surfers Paradise, valued at $1,000,000 plus. On this day, 23rd December 2016 he did arrive in Sydney for his once a year visit to place a caveat on my estate. On the 23rd December 2016 (caveat date) he was known to have assets such as a Mercedes, Ford, Holden, Porsche and a boat and furthermore, did place before me a statutory declaration detailing my life, demanding that should I not divulge what assets he had and sign, he will then withdraw the caveat. My son is known to be debt free with his only commitments in life being to feed himself and care for his health with the assets increasing in value daily, he is enjoying a good life. Over many months when assisting him to build his home, he did direct arrogance, insults, abuse, etc towards me and I've not forgotten this in my will. He and myself have never had a father to son relationship as he is not a fit and honourable person. I have therefore removed him from being an Executor of my will as he is a person to challenge my will. During the months when assisting him, I was witness to his theft from a Council and this evidence can still be seen on a property at Mt Colah. Abalone poaching was also part of his theft/life. After all, as I am his father I do wish him to inherit a blood line amount of $50,000 as with the violent temper he has, he may cause damage to a person and therefore need money for damages in the Courts." 1. Jennifer typed the above statement on the deceased's instructions. She stated she made no comment, or challenge, to the contents of the letter because "it was nothing to do with me": Tcpt, 1 June 2021, p 86(46-47). 2. Jennifer admitted to knowing that Jeffrey only had three cars not four but stated she "let [the deceased] write his own. What he wanted to say is what he said" (Tcpt, 1 June 2021, p 87(09-10)) and she "didn't think it was my place to alter someone else's words" (Tcpt, 1 June 2021, p 87(19)). 3. Jennifer also stated she did not ask the deceased what he meant in the letter regarding Jeffrey's behaviour as "I didn't need to. I know what my brother is like" (Tcpt, 1 June 2021 p 88(42-43)) and "I have seen him being arrogant. I have seen him insult people. I have seen him abuse people" (Tcpt, 1 June 2021, p 88(46-47)). 4. Jeffrey denied having a tenuous relationship with the deceased and that he "had a good relationship with my father throughout my life". He noted that any difficulties he had with the deceased were a result of the decline in the deceased's health. 5. Jeffrey agreed the deceased was strong-willed. He denied ever taking advantage of him. He noted that he had been named an executor in both his parents' Wills from 1976-2009 and in the deceased's Will from 2009 to January 2014. 6. Evidence of the reasons the will-maker gives for making a will is admissible. However, as stated, the reasons given do not prove the truth of the statements made, but evidence of the reasons is received only as evidence of his, or her, subjective reasons. The reasons provided by the deceased are not conclusive. 7. In relation to statements by the deceased, the Court should bear in mind what was said by the Court of Appeal of New Zealand in In re Green (Deceased); Zukerman v Public Trustee [1951] NZLR 135, at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd at 152): "If reasons are given by the testator reflecting on the character or conduct of that child, the Court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim." 1. Thus, a statement made by the deceased does not mean, that it must be unquestionably accepted as truth. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444 at [35] (McLaughlin AsJ). 2. I shall return to express my view about the credibility of each of Jeffrey and Jennifer later in these reasons. Alleged Mutual Wills 1. Despite not being a party to the Probate proceeding, and despite having consented to the orders that were made in the Probate proceeding, Jeffrey maintained, during cross-examination, that the deceased was subject to the undue influence of Jennifer when he changed his Will: Tcpt, 1 June 2021 p 37(31-32). He also continued to maintain that the deceased and Alfreda had made mutual Wills: Tcpt, 1 June 2021, p 38(37-40). 2. In cross examination Jeffrey said (Tcpt, 1 June 2021, p 51(31-38)): "My parents described their wills or will in various forms. Sometimes they said 'our will', sometimes they said, 'our mutual will agreement', sometimes they said 'we've got a mutual will', but at all times they said, 'It cannot be revoked. It doesn't matter who dies, it cannot be revoked.' And that's what they told me. They used the term 'mutual will agreement' on a number of occasions and that's the terms they used, 'our will', 'our mutual will', they've used 'joint mutual will', they've used a number of terms. But, it was always couldn't be revoked". 1. Jeffrey believed that it was always the intention of both the deceased and Alfreda that the three children would share the estate equally. 2. From about 1970 onwards, Jeffrey said that there were various conversations with his parents regarding the family home. He recalled the deceased saying "After Mum and I depart, we would like you to sell your house and move into our home, you would have to pay out the girls share". 3. On another occasion, he recalled the deceased said "Mum and I want to keep our house in the family, after we have departed, we want you to own our home, because you will need care when you get older, it will be ideal for you to live close to the girls for support." 4. In November 1976, the deceased and Alfreda told Jeffrey they made mutual wills so all three children would receive an equal share of the estate. 5. In 1989, Alfreda allegedly said to Jeffrey "[the deceased and I] have made a new Will that cannot be changed even after one of us passes away so that either of us can remain in the family home." Jeffrey then had discussion with Julie-Anne and Jennifer who both stated they understood that the Wills gave them all an equal share in the estate and could not be changed. 6. In August 2008, Jeffrey and Alfreda had a number of telephone conversations in which Jeffrey expressed concerns that Jennifer might try for an early inheritance once Alfreda passed away due to the deceased's erratic behaviour. Alfreda replied "don't worry about this, you know about our Will that cannot be changed even after one of us dies, your father knows this and recently I spoke to him about this and everything is still the same, it is the same will agreement that we have always had for the last 20 years, it cannot be changed without my consent and we will not be changing our will": Affidavit, Jeffrey William North, 20 March 2020 at par 42. 7. Alfreda then offered to prepare a statement of wishes which was completed and signed on 23 September 2008. It stated (Affidavit, Jeffrey William North, 20 March 2020, Annexure JN-5): "I, Alfreda Georgina North, have prepared this statement of wishes to confirm agreements that I have made in relation to my last will, concerning the assets of my estate, including my equal share of our home at X Dublin Avenue, Killarney Heights, Sydney. Following agreements made between us in 1989, my husband William John Leslie North (Bill) and I made a joint mutual will. Our will was made because we both want to preserve each other's right to live in our family home until both of us have passed away and to treat all our children equally, irrespective of which one of us passes away first. Bill and I both understand and agree that our mutual will cannot be revoked or changed without the consent of the other, even after the passing of one of us, as this is our intent to avoid any arguments within our family and encourage our children to act responsibly. Bill and I have made an agreement that whichever one of us survives the other, the surviving person will hold and not diminish the estate of the other, including holding our home until that person passes away and then our entire remaining estates be distributed equally between our three children. Bill and I have also agreed that any of our three children have the option of purchasing our home after both of us have passed away, as we prefer our home remains in the family if possible. We are both executors of each other's estates and our three children are executors in the event of us both passing away at the same time. I have spoken to each of my children so that they clearly understand our will, its location, my agreements and the benefits that will be held for them in the event of either of us passing away. I had recent discussions with Bill concerning our will and our agreements, Bill again confirmed to me that he will honour all the above agreements that we have made. However, if there is some unforseen circumstance that may arise in future that warrants legal action to enforce our will and the agreements we have made, I consent to this document being used in legal proceedings." 1. Following the death of Alfreda, the deceased, on 27 May 2009, made a new Will, which provided for his estate to be divided equally between his three children. 2. On 26 or 27 December 2009, the deceased said to Jeffrey "I have honoured the agreement I had with Mum, that's what she always wanted, after I depart you will all get a 1/3 share each". 3. The deceased told Jeffrey that there was around $180,000 in cash and shares from his mother's estate held in her name and that he would invest around $60,000 for each of Jeffrey, Julie-Anne, and Jennifer, respectively, with the intention that "you will all receive that money and the interest after I depart". 4. Following this discussion, the deceased showed Jeffrey a copy of his 2009 Will, a copy document, dated sometime in 1989 with both the deceased and Alfreda's signature, and a copy of a Deed of Agreement. Jeffrey stated that this Deed of Agreement was a binding agreement that neither could change nor revoke their Will without the consent of the other. 5. In December 2012, the deceased said to Jeffrey words to the effect of "We have always been such a close family, I would like you to move down here into the family home after I depart so that all the family could be close together and look after you, Mum always wanted this as well." 6. In 2014, the deceased made a new Will which left Jennifer the Killarney Heights Property, Jeffrey $50,000 and Julie-Anne the shares, debentures and cash. 7. At the time the 2014 Will was made, Jennifer was earning around $75,000 a year and had over $200,000 in superannuation: Tcpt, 1 June 2021, p 84(11-30). When asked by senior counsel for Jeffrey why the deceased might have thought that she was in a worse financial position to her siblings, Jennifer stated "Well, he knew that my brother and sister both owned their own home. I had a mortgaged home, so I guess that's what he based his decision on": Tcpt, 1 June 2021, p 83(42-43). 8. In late December 2016, Jeffrey found an envelope in the deceased's handwriting which stated "Julie and Jennifer Investments" and contained bank statements for separate accounts for Julie-Anne and Jennifer. Jeffrey stated that he was not aware of any account in his name. 9. On about 21 or 22 December 2016, whilst staying with the deceased in Sydney, Jeffrey overheard a conversation between the deceased and John and Valerie Mahn (the deceased's former neighbours). Jeffrey stated that Mrs Mahn said to the deceased "John does not want to be executor in your Will, I have spoken to Jennifer about this and she wants to put Graeme on as an executor and we think this is good idea. I will type another Will for you with Graeme as an executor." 10. Following this conversation, Jeffrey searched for Alfreda's and the deceased's alleged mutual Will agreement but could not locate it. Jeffrey then found a letter dated 15 December 2014 from the deceased to Mr Legg, the deceased's solicitor, which showed the deceased's intention to transfer the family home to Jennifer. It states (Affidavit, Jeffrey William North, 20 March 2020, Annexure JN-7): "Dear Mr Legg Thanks for your assistance With my son living in Queensland for some years it has now come to my ears from a person outside the family that should my son not be given the house in my will that he will challenge it as he believes he is the rightful owner so he not so [sic]. In the will alteration what I wanted mentioned most was those who need most gets most. Should there be a problem with probate we'll have to [illegible] [illegible] so would you please file In having the health I've got I see this will covering me [illegible] I have at X Dublin Ave as prior to moving to another place for care I will have you draw up transfer of the property and all its contents to my daughter to avoid any challenge be it costly for me and as result of this the will or before becomes obsolete." 1. Jeffrey then had a conversation with the deceased who stated "I'll do whatever I want, Jennifer is poor she has no money, I won't be leaving any money to a dog's home, don't talk about this again, if you don't like it, piss off and don't ever come back." 2. After this Jeffrey sought legal advice and filed a caveat on the Killarney Heights property. Jeffrey stated that he did this because the "deceased was being taken advantage of, due to his impairments": Affidavit, Jeffrey William North, 24 July 2020 at par 10. 3. Jeffrey stated that after the caveat was filed, each child's financial position was explained to the deceased, and he agreed to go back to his 2009 Will. Jeffrey denied the deceased remained angry about the caveat. In cross examination he stated (Tcpt, 1 June 2021, p 48(33-39)): "But everything was conveyed to me that he was not unhappy, he was happy that he had - Jennifer's financial circumstances explained, because he was told that she had no money, her daughters had holes in their shoes, she had no money - she had no money to eat. So he was told a fabricated pack of lies. Once he established the true facts, he then agreed. And he wasn't upset. It's only other people are stirring it all up to make out he was upset. The same people who upset him initially". 1. Senior counsel for Jennifer and Graeme submitted that the deceased was "far from impressed and was critical of his son". 2. While this might have been true, the deceased did not take any action to remove the caveat, instructing his solicitor, Mr Legg, to withdraw the notice to lapse the caveat: Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Exhibit JEH-1/55-56. The deceased stated in a letter dated August 2017, to Mr Legg, that "it was probli [sic] a waste of time and money as my son will have another processed in the future": Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Exhibit JEH-1/60-61. 3. In about late May 2017, the deceased asked Jennifer to drive him to the Mahns' home to have them look at some documents. On about 8 June 2017, Jennifer drove the deceased to the Mahns' home and heard the deceased say to Mr Mahn (Affidavit, Jennifer Elizabeth Hunter, 8 April 2020 at par 12): "I am still trying to work on doing what I can do to make sure Jennifer ends up with my house. She has to sell her house, and when she does, her and Charli will come to live with me. Since Jeffrey has put a Caveat on my house, I don't know if I can transfer the house to Jennifer until it is removed, which is what I want to do…I've written some letters to help the cause if you wouldn't mind having a look at them?" 1. In August 2018, Jennifer stated that the deceased said to her "I am really pleased that you and Charli have moved in here with me. As far as I'm concerned, this is yours and Charli's home now…I think we will have to get Mr Legg [referring to Richard Legg, Solicitor of Burridge and Legg Solicitors] to come here and see me in person": Affidavit, Jennifer Elizabeth Hunter, 8 April 2020 at par 15. 2. Jennifer stated that, on numerous occasions in the last few years of the deceased's life, he had said words to the effect of "God willing, you and Charli will be able to stay in this house for as long as you want after I'm gone and enjoy this spot too. Hopefully with all the letters I have written and given to Mr Legg the wishes contained within my Will will be upheld": Affidavit, Jennifer Elizabeth Hunter, 8 April 2020 at par 17. 3. The deceased made a number of other statements regarding his testamentary intentions: Affidavit, Jennifer Elizabeth Hunter, 19 June 2020, Annexure B. 4. On 8 February 2017, the deceased wrote the following (Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Annexure JEH-1/22-23): "Dear Mr Legg, Since I am not mobile enough to see you in your office or see you down stairs and not wanting my family to know that I am asking for your assistance could we please correspond. With you having concerns about my present will being valid, would you update or prepare another will. Nothing has changed as to what I wish now except that I have found $50,000 and would therefore like the following persons to each inherit $10,000: RICHARD LEE DANIEL – KERRIE-ANNE LOUISE CULLIMORE PIPPI ROSE CULLIMORE – LILY FERN CULLIMORE – CHARLI MAI HUNTER I believe that this Caveat should fail as my son has never had the right to be the owner of my home as he states or be it for any other reason. It is one of greed from a loner. Jeffrey William owner of a house + $2m+ assets Julie Anne owner of two houses + $2m + assets Jennifer Elizabeth without a house $300,000 APP. Assets It was my late wife's wish and is mine that a family person should own and live in Lot 144. I am wanting this person to be Jennifer Elizabeth Hunter to be this person, on my decease." 1. On 1 August 2017, the deceased wrote the following (Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Annexure JEH-1/63): "I, William John Leslie North with a clear mind on this day the 1st August 2017 do wish to have it known that in my dying days it is my wish that my three children are home owners to live in and be debt free with good health… With my son Jeffrey William being a person known not to be in need, due to greed had placed a caveat on my estate wanting my home to be sold and be divided into three parcels. I object to this… With my youngest daughter Jennifer Elizabeth's first marriage ending in divorce, she was left with considerable losses and stresses. Bad luck has again entered her life in finding another husband. A home is brought and a bank loan has been entered into of around $440,000. In the past 10 years the loan has only reduced by about $48,000. Her husband's business has failed and he is left with considerable debt and cannot meet his child support maintenance requirements for his two children from his previous marriage. Due to the stresses of life, he has engaged in alcohol consumption, smoking and some gambling throughout the marriage. Her husband is also suffering mental health issues and consequently her second marriage has broken up. Due to the envisaged divorce, the mortgaged house will need to be sold to meet all the debts and split up their assets. With this taking place, my daughter Jennifer and her daughter Charli will be without a house. Therefore, it is my wish for my daughter Jennifer to inherit my home. To repeat, my son Jeffrey and daughter Julie-Anne are all debt free, and having a good life it is therefore an act of greed without any feelings for their younger sister." 1. On 9 May 2018, the deceased wrote, in a letter (Affidavit, Jennifer Elizabeth Hunter, 8 April 2020, Annexure JEH-1/66-67): "With myself having a clear mind and in wishing that my three children should own and live a home at the time of my decease I am asking would you please prepare and lodge a quitclaim transfer so as to have my daughter Jennifer Elizabeth Hunter inherit my home as is on Lot XX X Dublin Ave Killarney Heights. Due to the pending sale of my daughter's mortgaged home being sold and with her being without a home she will be coming to live with me and it should therefore be known that her address will be X Dublin Ave Killarney Heights. Should it need to be said my daughter Julie Anne owns and lives in a home plus a unit + assets. My son Jeffrey William has lived all his life alone, owns and lives in a home plus jetty + assets – my bad luck daughter Jennifer Elizabeth is without a home and suffering the losses of a second divorce with minor assets". 1. Senior counsel for Jennifer and Graeme submitted that the evidence demonstrated the deceased had a clear perception of his assets both real and personal and that he "well appreciated the financial circumstances of his three children." He also submitted that the evidence shows that it was not only the wish of the deceased but the wish of Alfreda as well to leave the family home to Jennifer and that this may take place during the deceased's lifetime. 2. At least in part, the deceased's understanding of Jeffrey's financial situation was inaccurate. While the deceased was aware of Jeffrey's inability to work, it is unclear how much he understood about the exact nature of Jeffrey's assets and the level of repairs that are said to be required to his property. 3. Far too much time was spent on the alleged mutual Will agreement than was necessary, bearing in mind it had not been asserted in the Probate proceedings. No claim was pursued by Jeffrey in these, or in the Probate proceedings, to establish that there were mutual Wills made by the deceased and Alfreda. It is not necessary for me to determine that issue in these proceedings. 4. However, it is relevant to note that there was some evidence that during the lifetime of Alfreda, the deceased had made Wills leaving an equal share of his and her estate, first to the survivor and then to the children in equal shares. It is equally clear, that in the last years of his life, the deceased's relationship with Jeffrey altered. 5. Any order for provision that is to be made for Jeffrey will be upon condition that he removes the caveat lodged on title to the Killarney Heights property. Jeffrey confirmed that he will not bring further proceedings on the basis of the caveat or in relation to the alleged mutual wills of the deceased: Tcpt, 1 June 2021, p 76(11-24). The Plaintiff's Physical and Mental Condition 1. Due to a workplace motor vehicle accident, Jeffrey suffered injuries to his neck, back, leg and wrist which are currently stable but easily aggravated. In addition, Jeffrey stated he has severe and chronic post-traumatic stress disorder (PTSD) and major depression. 2. A letter from Dr Alan Mackenzie, of the Chevron Renaissance Medical Centre, Surfers Paradise, not the subject of objection, confirmed Jeffrey's diagnosis of long standing PTSD and depression. The letter also stated that Jeffrey was being monitored for his prostate symptoms and certified that he is "permanently unable to work and his condition will not improve in this regard": Affidavit, Jeffrey William North, 20 March 2020, Annexure JN-9. 3. Jeffrey currently takes Lexapro, Amitriptyline, Imovane and Diazepam to keep him stable. (Some of these are medications used to treat depression and anxiety.) 4. Jeffrey was recently diagnosed with diabetes and has a chronic disease management program in place to monitor his condition. He sees a clinical nutritionist on a 6 weekly basis for assistance. This costs $150 per visit and her prescriptions are around $200 per month. 5. In his affidavit sworn 24 July 2020, Jeffrey denied being a loner. He stated he had many friends, participated in team sports and was involved in many clubs but since suffering his injuries he has become isolated. Yet, in cross-examination, Jeffrey stated that he has "a social problem dealing with people. I don't have a lot of friends or social people (as said) so, I would go out on my own, and I did so on many occasions": Tcpt, 1 June 2021, p 62(08-10). He noted that he struggles to engage with strangers and the community as "I have triggering episodes with certain people at certain situations. I'm highly medicated now. I'm able to, to proceed in this matter here. But I don't want to be on all this medication all the time, and I have difficulties fitting in": Tcpt, 1 February 2021, p 63(47-50). 6. Jeffrey stated he would like to be able to fit into the community but he hasn't "been able to have enough money to be able to get a, a [sic] good life like my father has stated in all his wills, and that's what I would be aiming to get back into the community somehow if I got better": Tcpt, 1 June 2021, p 64(03-07). 7. He stated that "Because of my medical condition, which prevents me from living in close proximity to other persons, it is essential that I repair and maintain my home in order to continue to maintain my mental health": Affidavit, Jeffrey William, North, 30 April 2021 at par 26 8. Jeffrey sees a specialist ophthalmologist due to problems with his eyes. 9. Jeffrey is required to use a CPAP machine for sleep apnoea treatments. This machine needs to be replaced every 5 years. 10. On 21 June 2020, Jeffrey attended Gold Coast University Hospital Emergency Department and was diagnosed with atypical chest pain. He was discharged and told to seek medical attention if new chest pains of concern arose: Affidavit, Jeffrey William North, 18 May 2021, Annexure C. Jeffrey stated these pains were related to the stress of the current litigation. 11. I found Jeffrey to have a very grim outlook on his health and general situation. He stated that due to his substantial needs "there's dark clouds on the horizon for me": Tcpt, 1 June 2021, p 56(48-49). Somewhat unreasonably, he seemed to have tied his success in this litigation to any hope of improving his mental health and situation in life. 12. Natasha has been providing care and assistance to Jeffrey since 1998 without remuneration. He has come to rely, almost completely, on Natasha for support. On 25 October 2007, Natasha and Jeffrey are said to have entered into a Private Care Agreement a copy of which is annexure JN-10 to Jeffrey's affidavit of 20 March 2020. In return for her services Natasha will be entitled, each year, to an asset value of $32,000 (plus yearly CPI rises). Natasha is not entitled to any exchange of assets until a listed event occurs. Natasha may receive these assets from either the $435,000 mortgage over Jeffrey's property or in any form that amounts to that value. 13. The agreement remains in place until whichever of the following occurs first: the passing of both of Jeffrey's parents and settlement of their respective estates or at such time that the secured mortgage is expended by yearly care accumulated. It can also be terminated at any time by either party notifying the other in writing that the agreement is no longer required. 14. Since 2007, Natasha provides assistance in prompting Jeffrey to complete personal and household tasks when he lacks motivation; performs household tasks such as assisting with paying bills, ensuring Jeffrey takes his medication, meal preparation, cleaning, shopping etc.; and monitoring Jeffrey to ensure his safety and respond in the event of a crisis. Jeffrey estimates that Natasha spends at minimum 20 hours per week providing care. 15. At the conclusion of this hearing, the private care agreement will come to an end. Jeffrey has signed a new care agreement with Natasha at a rate of $20 per hour for 20 hours a week. 16. Jeffrey stated he would need a separate self-contained carer's accommodation in his home for Natasha or for a trusted friend of Natasha who will continue caring duties. This does not seem to me to be a matter of "need". Jeffrey's Financial Circumstances 1. Jeffrey denied that he is "enjoying a good life". He stated that whilst the deceased was alive he did not want to burden the deceased with his own personal problems or ask him for money. 2. In 1997, whilst employed with North Sydney Council, Jeffrey suffered a work related psychological injury. In 1998, Jeffrey was involved in a motor vehicle accident during the course of his employment. Arising out of these injuries, Jeffrey has been unable to complete any paid work since. As stated above, Annexure JN-9 of Jeffrey's affidavit of 20 March 2020, confirms Jeffrey's permanent inability to work. 3. The deceased was aware that Jeffrey had been unable to work for the last 20 years. 4. In 2002, Jeffrey received a payment of $48,000 as a settlement for injuries sustained in the workplace motor vehicle accident. 5. In about May 2008, Jeffrey was placed on a Disability Support Pension. In 2013, he was transitioned onto WorkCover weekly payments which he was receiving at the time of the hearing. At the time of Jeffrey's updating affidavit, these payments were $53,248 per annum before tax and $44,408 per annum after tax. He expects the WorkCover payments to cease in March 2023. He will then be moved onto an aged pension of around $24,000 per annum. 6. Jeffrey stated that once the WorkCover payments stop, there is a chance that his additional health benefits and medical expenses will no longer be covered and he will be unable to maintain the level of care he needs: Tcpt, 1 June 2021, p 46(45-49). This depends upon the exercise of the discretion of his worker's compensation insurance provider. 7. At the commencement of these proceedings, Jeffrey had $155,000 in savings. This was made up from a reparation payment from his army service and a withdrawal of his superannuation. 8. Jeffrey has spent an additional $5,000 to $10,000 of his savings on costs 'incidental' to this litigation. When asked what those costs included Jeffrey stated that he "bought a lot of... lotto tickets", "engaged in a bit of alcohol consumption that I don't usually engage in", "required remedial massages", "required organic food… because my stress levels have damaged my immune system" and he's "addicted to chocolate, so I've had a lot of blocks of chocolate": Tcpt, 1 June 2021, p 60(11-21). 9. Jeffrey received dividends from shares and interest from savings. He received an amount of $2,041 per annum in 2020. At the time of his updating affidavit, the amount of dividends had been reduced to $300 per annum. 10. Jeffrey confirmed that before 2019, he did not use any of his savings to purchase things that he thought would improve his mental health: Tcpt, 1 June 2021, p 77(35-39). 11. Jeffrey explained that the deceased and Alfreda said to him that he should wait to carry out repairs to his home "until we both pass away then your 3rd share of our estates will cover the repairs needed to your house": Affidavit, Jeffrey William North, 20 March 2020 at par 112. 12. Jeffrey has $1,337 in credit card debt which is paid monthly. 13. Since these proceedings commenced, Jeffrey upgraded his private health insurance. The costs now total $7,848 per year. 14. He has no superannuation. 15. On 19 October 2007, Jeffrey took out two loans with RAMS Home Loans. One mortgage was for $435,000 in relation to the private care agreement with Natasha. The other was for $380,000 for repairs to his property. At the hearing, it became clear that he has not drawn down on either mortgage (Tcpt, 1 June 2021, p 53(13-14)). The loans are now managed by RHG Mortgage Corporation Limited (a subsidiary of RAMS). Jeffrey stated that the deceased discouraged him from obtaining and using the loans. 16. The administrative costs of these loans are $96 per year for each loan facility. Jeffrey stated that he had insufficient funds to service the loans should he draw down on them. 17. In cross-examination, Jeffrey stated the loans have been amortised over the years and now only around $730,000 is available to be borrowed: Tcpt, 1 June 2021, p 53(10-22). In other words, it appears that he has a facility of around $730,000. 18. At the conclusion of these proceedings, Jeffrey asserted that he will now have mortgage repayments of $43,452 per year, for the next 16 years, as a result of the 2007 Private Care Agreement with Natasha becoming payable. It seems clear, however, that he has not yet drawn down any part of the borrowing to which he has referred. 19. Jeffrey has three motor vehicles, namely a used 2002 Mercedes 4WD, which he estimates to be valued at between $250 and $400, which was said to be replaced, in April 2021, with a later model; a 40-year-old Porsche, in poor condition, valued at around $1,400 to $4,500; and a Ford Station Wagon, which Natasha drives, and which is currently valued at between $250 and $550. 20. Jeffrey owns a waterside property in Surfers Paradise, which he estimated to have a value of about $1.1 million. He stated he had arrived at this estimate by looking at a range of websites and seeing what each would value the property at. He then worked out the average of the range and added an additional 10% due to increased real estate prices in Queensland: Tcpt, 1 June 2021, p 70(18-23). He asserted that no real estate agent has seen the property. Nor had he obtained a valuation of the home for the purpose of the hearing. 21. In her affidavit of 17 August 2020, Jennifer stated that she always believed Jeffrey did not have any debts. On more than one occasion, the deceased told her "Jeffrey told me he has no debts". The deceased also told Jennifer that "Jeffrey told me moving to the Gold Coast with Natasha is the best thing he's ever done. He said it's a fantastic lifestyle living on the waterfront". 22. A summary of Jeffrey's current assets, as of 30 April 2021, is set out below: Description Full Value Property at Stanhill Drive, Surfers Paradise, Qld $1,100,000 Savings $ 7,685 Shares $ 7,058 Motor Vehicles $ 28,000 House contents and personal effects $ 5,000 Boat and trailer $ 2,000 Box Trailer $ 500 Total $1,150,243 1. A summary of Jeffrey's yearly expenditure, excluding credit card payments, as of 30 April 2021 is set out below: Description Amount Council rates $ 3,850 Water rates $ 1,863 Electricity ` $ 1,468 Mortgage Fees x 2 (per annum) $ 192 Groceries and organic fresh food $12,000 Home Telephone/Internet $ 1,080 Mobile $ 1,272 Computer, printer and software $ 500 Building and contents insurance $ 2,680 Household cleaning and other supplies $ 1,500 Property repairs and maintenance $ 2,000 Private Health Insurance $ 7,848 Motor vehicle transport and running costs $ 7,000 Motorboat/trailers running costs $ 500 Clothing and footwear $ 1,000 Personal care items $ 500 Public transport fares/car parking fees $ 200 Medical, dental and optical (excluding health insurance premiums) $ 2,000 Chemist/pharmaceuticals/vitamins, natural and nutritional therapies $ 4,600 Gifts/Holidays/Entertainment/Hobbies/Foxtel $ 5,000 Other miscellaneous expenses $ 1,500 Total $58,553 1. Bearing in mind his income, which he estimated at $44,408 after tax, how he meets the shortfall was unexplained. 2. A full catalogue of Jeffrey's needs is found below (quotes for these items can be found in Jeffrey's affidavit sworn 30 April 2021): Expense Cost Capital sum to be used to make up the shortfall of income over expenses, provide superannuation for comfortable retirement, a nest egg and a fund for the vicissitudes of life $E 700,000 To pay debt owed relating to the 2007 private care agreement $ 435,000 Necessary repairs and maintenance $ 680,000 Replacement of old furniture and appliances $ 42,347 Replacement of air conditioning system $ 18,085 Solar electricity system $ 14,488 Replacement blinds and curtains $ 14,560 Security system $ 7,142 Replace security screens $ 14,900 Therapeutic swim/spa pool $ 22,690 Replace boat and trailer $ 74,710 Future replacement of motor vehicle (in 5 years) $ 25,000 New proposed private care agreement commencing 2021 ($28,000 per year x 20 years) $ 416,000 Dentist $750 per year x 20 years $ 15,000 Clinical nutritionist ($3600 per year x 20 years) $ 72,000 General Practitioner (after Medicare refund) $ 18,000 ($900 per year x 20 years) CPAP machine and maintenance (20 years) $ 14,967 Eye specialist treatment (after Medicare refund) $220 per consult, both eyes surgery and contingency future surgery $ 220 $ 2,000 Orthopaedic Specialist treatment per consult (after Medicare rebate) $ 4,080 Surgery and contingency for future surgeries and rehabilitation $ 5,631 Urologist treatment (after Medicare refund) Oncology specialist treatment $ 8,000 Contingency for future surgery $8,000 plus rehabilitation Health insurance premium $7,847.99 per year x 20 years $ 156,959 Total expenses over 20 years $2,761,779 1. The "needs" that Jeffrey included in his affidavits far exceed the entirety of the net value of the deceased's estate. However, at the hearing, Jeffrey confirmed that he is not seeking provision of the entirety of the estate: Tcpt, 1 June 2021, p 78(31-34). 2. A building inspection report shows that Jeffrey's Surfers Paradise property has problems requiring extensive work including: asbestos, "severe corrosion damage with downpipes missing" in the guttering, structural cracking and movement, "unsafe" excessive movement in the master bedroom requiring immediate attention, amongst other things: Affidavit, Jeffrey William North, 30 April 2021, Annexure Q. A building estimate, obtained by Jeffrey, shows the cost of repairs to be between $550,000 and $680,000: Affidavit, Jeffrey William North, 30 April 2021, Annexure R. 3. In cross-examination, senior counsel for Jeffrey confirmed that Jeffrey was not seeking an amount to cover the entirety of the work set out in the building report: Tcpt, 2 June 2021, p 108(41-42). He also noted that the work was not beautification work but substantial structural repairs: Tcpt, 2 June 2021, p 108(42-44). 4. In addition to the property repairs, Jeffrey stated that for his medical condition he requires a "reliable and constant cooling and heating system within his home" in order to create a "comfortable home environment". 5. Due to his anxiety condition, Jeffrey also stated he needed security in his home, particularly a new smart home security system, to assist with remote welfare checks. This system would involve a camera in Jeffrey's home that would allow Natasha to look in at any time to check on his welfare. In cross-examination he stated that he thought "a security system where I felt secure in my house would reduce my anxiety": Tcpt, 1 June 2021, p 66(01-03). 6. As Jeffrey's current general practitioner is approaching retirement, he now attends another general practitioner, whose costs exceed any Medicare rebate by $75. Jeffrey estimates that as her fees increase over time, he will need at least $900 per year, over the next 20 years. 7. Jeffrey was provided with a mental health well-being plan on 2 June 2020 by EML Mutual (a claims management provider for workers compensation). Jeffrey stated that to participate in these recommendations and to "work towards achieving optimal health and advancing my life" he needs a heated swim/spa pool as it will "be beneficial for the exercise required for diabetic management" and "assist in improving my mental health by stress relief by having year-round use of a heated therapeutic swim/spa pool". This seems extravagant as the mental health well-being plan is fairly basic, makes no mention of a spa and was made with the underlying goal of reintegrating Jeffrey into the community where possible, rather than to encourage isolation. 8. He also stated that to improve his mental health he would like to replace his boat with a more suitable one in order to re-engage with his passion for fishing and boating. 9. Jeffrey conceded that he has not used his current boat since about 2008, despite maintaining the insurance and registration fees since then. He noted that there are multiple reasons for not doing so including these legal proceedings, his illness and the stress he suffered after Alfreda's death: Tcpt, 1 June 2021, p 54(01-15). 10. When it was put to Jeffrey that he did not need a house with a jetty if he did not use his boat, Jeffrey responded: Tcpt, 1 June 2021, p 54(33-34), p 57(29-34): "I have a table out there and I use it for my solace, to sit out there, it's very tranquil…I bought this property for my health, and I use that jetty regularly…Living where I am is very soothing. I do not have neighbours on three sides. It is very good for my health to have this property. If I ever lost this property, I would have a severe decline, because I brought this place to die in, to retire in. That was my plan and it - and I love the spot, and I want to stay here. It's tranquil, it's private, and…it's complimentary to my medical condition" 1. When asked why he needed additional furniture, including four bar stools and a seven person dining set, when he does not see many people, he stated that "maybe my family might come up from Sydney, Julie and her children, Kerry and her husband. They might come and visit me and I would need seating for those people": Tcpt, 1 June 2020, p 69(06-08). I found this answer disingenuous considering Jeffrey and the Defendants have been through nearly three years of acrimonious litigation and Julie-Anne has her own apartment in the Gold Coast. 2. Jeffrey stated in cross-examination that "I've included those needs in because I believe they're needs to enhance and improve my life. My father wanted me to have a good life. He wanted all his children to have a good life, and to me, a good life is having financial security and good health: Tcpt, 1 June 2021, p 45(47-49). 3. Jeffrey said that he had "put everything in there that I think I need" but accepted that "the Court would obviously adjust that to what I need": Tcpt, 1 June 2021, p 78(27-29). 4. Whilst he submitted that his financial needs had been accurately stated in his affidavits, in cross-examination, when asked by senior counsel for Jennifer and Graeme what amount of provision he was seeking, he left the amount that he was asking the Court to provide out of the deceased's estate, to the be advanced in submissions by his senior counsel: Tcpt, 1 June 2021, p 45(38-45). 5. The deceased gave each of Julie-Anne and Jennifer $10,000 for their weddings. In around 1990 or 1991, Alfreda informed Jeffrey that since she did not think Jeffrey would get married, she and the deceased invested $10,000 on his behalf, in order to be fair amongst their children, and he would receive that money later. 6. In around 2004, the deceased and Alfreda said to Jeffrey that they would give him the $10,000 as it was unlikely he would get married and his health had become poor. Jeffrey received those funds and the amount has since been spent. 7. In 2006, the deceased and Alfreda told Jeffrey that as they were allowed to give away $10,000 a year without it affecting their pension, they wanted to give $3,000 to each of Jennifer, Julie-Anne and Jeffrey and another $1,000 to be split equally between the deceased's grandchildren, Rick, Kerrie and Charli. 8. Each year from 2005 to 2009, Jeffrey received $3,000 from his parents. 9. In December 2009, the deceased said to Jeffrey that "Now that mum's gone, I will need Julie and Jennifer to do a lot more for me. Because you live in Queensland, I will only give you $1,000 from now on", Julie-Anne and Jennifer would split the remaining $8,000 and the grandkids would continue to split $1,000. 10. The deceased also gave Jeffrey $1,000, every year between 2009-2016, as a Christmas present. In 2014, the deceased gave Jeffrey an additional $1,500. 11. As earlier stated, in the last Will of the deceased, Jeffrey receives a pecuniary legacy of $50,000. 12. I found Jeffrey to be somewhat dogmatic in giving his evidence. I sensed that he felt that he was entitled to greater provision that that to which he was entitled under the 2017 Will and that he felt aggrieved by the provision made for him, as compared with what had been provided for Jennifer, by the deceased. The continuous assertions regarding the allegations of mutual Wills, in circumstances where he had not sought to be joined as a party in the Probate proceedings to make such a claim, perhaps distracted him from the nature of the current proceedings and the jurisdiction of the Court. 13. His responses concerning the sworn statement of his so-called needs, despite asserting that he did not want the whole of the estate, demonstrated that, perhaps, he had based his claim not on what could be regarded as "adequate" and "proper" provision, but rather on what he regarded as provision to satisfy everything that he could possibly think as his "wants". 14. I turn next to Jennifer's relationship with the deceased. 15. In her affidavit of 19 June 2020, Jennifer stated that she assisted the deceased with his personal needs during the last 15 years of his life, particularly after Jennifer's mother died, in April 2009. Jennifer assisted the deceased with personal care and hygiene, home maintenance and shopping, laundry, cleaning and cooking meals. 16. For at least 10 years, Jennifer took the deceased to his medical, dental, optometry and hospital appointments. As the deceased was deaf, Jennifer assisted him in communicating with others. She also assisted the deceased with his vehicle and technology, including his TV and mobile phone. 17. Prior to moving in with the deceased, Jennifer saw him three to four times a week for many years, sometimes staying overnight with him. 18. On 23 February 2017, Jennifer separated from her now former husband. In August 2018, Jennifer and her former husband sold their Cromer home. The deceased then invited Jennifer and her daughter Charli to move in with him. 19. Around 15 August 2018 Jennifer, Charli and their dog moved in with the deceased. 20. From August 2018, for the last three months of the deceased's life, Jennifer lived with the deceased at his house and provided further personal care and attention to him. In cross-examination, Jennifer admitted she was not a full time carer for the deceased: Tcpt, 1 June 2021, p 93(09). 21. In her affidavit of 17 August 2020, Jennifer stated that, upon moving in with the deceased, he said words to the effect of "I am so glad you, Charli and the dog are here. I am going to have company all of the time now and I will not be lonely anymore". 22. According to Jennifer, the deceased wanted to transfer his property to her so that she could stay there permanently. 23. Jennifer owns the following personal assets: Asset Description Estimated or known value Money in bank ANZ Bank Account $438,883 Money in bank CUA Bank Account $ 269 Shares Lendlease Group $ 20,643 1,609 units Superannuation Mercer Super Australia $317,829 Vehicle 2015 Subaru Impreza $ 21,000 Vehicle 2016 Nissan Micra $ 12,000 Home contents Personal Items $ 7,500 Total: $818,125 1. Between 2010 and 2014, Jennifer received $60,000 from the deceased, by way of three separate amounts - $5,000, then $45,000 and later $10,000. Jennifer stated that the deceased told her this money was on the condition that if he needed aged care living in the future, the money would go towards the deposit and if he did not, she could keep the money and the interest. 2. Jennifer's only jointly held asset is $269 held in a credit union account with her former husband. 3. As at 4 May 2021, Jennifer's monthly gross income is $7,222 and her net monthly income is $5,458. She is in stable employment but did mention her hours had been reduced by 20% as a result of COVID-19. 4. Jennifer receives approximately $200 per month from her daughter, Charli, by way of contribution to household expenses. 5. Jennifer's monthly expenses (excluding any reference to cents), as at 4 May 2021, are as follows: Fixed Expenses Amount ($) Council rates $ 175 Water rates $ 85 Electricity $ 100 Petrol $ 400 Telephone bills $ 168 Internet $ 177 Accountant $ 20 Credit card fees $ 6 Household insurance $ 70 Car insurance $ 140 Medical insurance $ 404 Variable Expenses Household (groceries, food and other items) $1,400 Medications/Pharmaceuticals $ 50 Medical treatment (doctors/dentist/ chiropractor/optometrist) $ 150 House maintenance $ 200 Pool maintenance $ 50 Bus Fares/Public Transport $ 50 Car maintenance (registration/slips/ roadside service) $ 485 Other travel expenses (i.e. tolls) $ 10 Garden/Lawn $ 60 Clothes/shoes $ 100 Healthcare/Fitness $ 150 Hairdressing/grooming $ 100 Pet Care $ 50 Charities/donations $ 5 Entertainment $ 250 Gifts/Holidays/Miscellaneous $ 500 TOTAL $5,355 1. Jennifer received $476,000, after legal bills were paid, from the proceeds of sale of the Cromer home. She has not sold or purchased any other real estate. 2. At the time of the property settlement, Jennifer did not make any enquiries into any other property her former husband held, or whether she should make a claim for any superannuation, as she felt "confident that he doesn't own anything else": Tcpt, 1 June 2021, p 94(01-16). 3. Jennifer stated that she needs to be secure in her own home. Since August 2018, she has lived at the Killarney Heights property, but she does not own it. Charli also resides with her and intends to continue to do so for the foreseeable future. 4. Jennifer's friends, social networks, place of employment, and community organisations (as well as Charli's place of employment) are all located around the suburbs of Northern Sydney. As such, Jennifer stated that she has no intention or desire to leave the area. 5. If required to sell the Killarney Heights property as a result of these proceedings, Jennifer will need to find alternate accommodation. If this occurs, Jennifer stated that she would require a three-bedroom home, in good repair and condition, in the suburbs of Northern Sydney. According to a report obtained from Raine & Horne, current market prices for homes in the suburbs around the Forestville area range from $1,840,000-$1,890,000: Affidavit, Jennifer Elizabeth Hunter, 4 May 2021, Annexure B. 6. Jennifer estimated that the stamp duty to buy a house in this price range would be approximately $89,505 and the legal costs would be approximately $1,650 (inclusive of GST and disbursements): Affidavit, Jennifer Elizabeth Hunter, 4 May 2021, Annexure C. 7. Jennifer conceded she might find a 2-3 bedroom unit in the area she wants for less than $1.5 million. However, she stated in cross-examination that she could not live in an apartment as she has a very "yappy dog" who does not like being in confined spaces and she does not want to deal with body corporates or strata levies: Tcpt, 1 June 2021, p 95(06-12), p 96(21-33), p 96(40-44). 8. Jennifer estimated that the costs of a removalist would be approximately $840: Affidavit, Jennifer Elizabeth Hunter, 4 May 2021, Annexure D. 9. Allowing a small buffer for contingencies, Jennifer estimated that the overall costs to buy, and relocate, to suitable alternative accommodation in the suburbs of Northern Sydney to be in the range of $1,850,000-$1,890,000. 10. As earlier referred, the estimated costs of sale of the Killarney Heights property are $40,000 based on an agreed property value of $2,325,000. 11. Jennifer settled the family provision and probate claim of her sister Julie-Anne for a lump sum of $300,000. Jennifer will receive Julie-Anne's entitlements pursuant to the last Will of the deceased but these funds will be used to pay the entitlement and costs of the litigation. Jennifer stated she will endeavour to pay the $300,000 and any shortfall in costs through savings to avoid the home being sold or mortgaged to meet any provision: Affidavit, Jennifer Elizabeth Hunter, 28 May 2021 at par 6-8. Submissions 1. During oral submissions, senior counsel for Jeffrey submitted that a provision of $600,000 should be made out of the deceased's estate. This estimate of what was adequate and proper comprised of about $450,000 to make repairs to Jeffrey's home and $150,000 as a "buffer for contingencies": Tcpt, 2 June 2021, p 106(36-40). He submitted that Jeffrey had a clear need to maintain and repair his home and that photographs attached to the repair report showed that it is in an extremely rundown condition and greatly in need of repair. He also submitted that whilst Jennifer did not own her own home, she has substantial savings and superannuation and comfortable secure employment. At her age, she could expect to continue to earn a reasonable income for the next 12 to 15 years. 2. In response, senior counsel for the second and third Defendants submitted that the Summons should be dismissed: Tcpt, 1 June 2021, p 97(44-48). He submitted that to make provision for Jeffrey would create an "illogical situation", where Jeffrey owns a home but Jennifer, the chosen object of the deceased's bounty, would not. The sale of the Killarney Heights property would leave Jennifer without a home, and based upon the claims of Jeffrey, without any prospect of obtaining one. 3. Senior counsel for the second and third Defendants also submitted that Jeffrey's economic and financial circumstances had barely changed in the last 20 years. He continued to receive workers compensation benefits and be able to live in his home with assistance from Natasha. He added that whilst Jeffrey had taken out two mortgages, they have not been drawn down. Thus, it was submitted, that whatever the requirement to carry out repairs to Jeffrey's home, the repairs were not so urgent as requiring them to have been carried out in the preceding 13 years (or at all). Determination 1. As stated, there is no dispute that Jeffrey is an eligible person. He commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of Jeffrey has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, his material situation. 2. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below. 3. When the Court approaches the question which s 59(2) of the Act requires to be answered, it should place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testator: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 20 (Dixon CJ). 4. The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order. 5. Whilst I have borne in mind that the relationship of the deceased and Jeffrey was not as close as the deceased's relationship with Jennifer, it is to be remembered that Jeffrey for many years has been living in Queensland, and despite living there he did maintain contact with the deceased. He also has no dependants and no financial inter-relationship with Natasha (other than the costs of the care she has provided, and is to provide.) 6. I have also considered the relationship of the deceased and Jeffrey prior to him leaving New South Wales and the assistance that he provided to the deceased in building the home earlier referred to. 7. As I must, I also have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable will-maker and the fact that the scheme existed for a number of years in different Wills. As stated above, the deceased's decisions, reflected in his last Will, should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, those decisions are based on the perspective of the deceased (which in this case, in part, may have been based on inaccurate information as to Jeffrey's financial circumstances). 8. In addition, I do not forget Jennifer's significant competing financial and moral claim. She and the deceased had a caring and loving relationship, she assisted him, particularly after the death of Alfreda, and was the chosen object of his testamentary bounty. 9. I also remember the unequal provision made for both Jeffrey and Jennifer during the deceased's lifetime. 10. In this case, the net value of the deceased's estate is reasonably large and is sufficient to make some provision for all of the persons to whom the deceased owed some form of testamentary obligation. It is not large enough to make the provision sought by Jeffrey. 11. Accepting that Jeffrey does not have to show some special need or special claim, it seems clear that he is relatively financially secure. He has a home with an unencumbered value of $1.1 million. He does not have a fund for contingencies and, at least at the date of hearing, has a pension entitlement. He is not a claimant who has fallen on hard times, but because of his medical condition, and otherwise, he has some financial needs which he cannot meet from his own resources. 12. Judged by quantum, and looked at through the prism of his own financial resources and real needs, adequate provision for the proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased for Jeffrey. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. 13. As Jeffrey has established the jurisdictional threshold, the next question is what provision ought to be made for him out of the estate of the deceased. I am satisfied that Jeffrey's claim for provision from the estate of the deceased ought to be by way of what might be termed a lump sum for exigencies of life. 14. In reaching my conclusion, I have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order and the nature of any such order. 15. I also remember that a wise and just will-maker will not be blinded by a degree of intergenerational disappointment or disharmony to the needs of his or her child. 16. The quantum of the provision to be made for Jeffrey is a more difficult question, and it involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, as earlier stated, similar considerations as are set out above often arise. The assessment of his needs is not a mechanical process. 17. The Court ought not make an order in the amount of provision sought by Jeffrey. To provide such a lump sum, would far exceed what, in my view, is "proper", in all the circumstances. To do so would also fail to afford enough weight to the intentions of the deceased, as expressed in his last Will, as well as the competing claim of Jennifer. It would also fail to take into account that there is no legal obligation on a parent to maintain an adult child, particularly one who was fully emancipated and financially independent of the deceased for so many years before his death. 18. My evaluative judgment should be, and has been, "guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made"; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P). I have remembered that Jeffrey does have a lack of reserves to meet some demands, particularly of ill health and some financial security to protect against the ordinary vicissitudes of life. I also bear in mind his inability to earn an income. Yet, it is to be remembered that he is single with no dependents. 19. I am of the view that it would be an unusual case, in an estate of this size, in which a deceased parent had a duty or an obligation to provide such things as a capital sum to make up any shortfall of income over expenses for the remainder of an applicant's life or to provide a large fund for a comfortable retirement, to pay a debt said to be owed for past, or future, private care arrangements, and to provide a significant lump sum to carry out repairs and maintenance to his property, which amount is only moderately less than the value of the property to be repaired. 20. In my view, Jeffrey should receive, in lieu of the provision made for him in the Will of the deceased, a lump sum of $350,000, out of the estate of the deceased. He can use some, or all, of it to make the repairs that he feels are immediately required. No doubt, it would increase the value of his property. Otherwise, he can use the lump sum, as he sees fit, to pay for some of what he described as the needs that he has. If he does not, such an amount will provide a reasonable capital sum for exigencies of life and to pay the ongoing expenses that he claims he has. 21. Provision of a lump sum of $350,000, may also enable Jennifer to retain the Killarney Heights property if she wishes to do so. If she does not, there will be costs and expenses of sale as well as costs and expenses of purchasing alternative accommodation. 22. In accordance with s 65(3) of the Act, since provision is to be made by payment of a lump sum, the orders should specify whether interest is payable on the whole or any part of the amount payable, and, if so, the period during which interest is payable and the rate of the interest. 23. In my view, bearing in mind the amount involved and the nature of the deceased's estate, a period of say, 2 months should be allowed to enable the lump sum to be paid unless another period is agreed upon by the parties. If the lump sum is not paid within 2 months, or the agreed period, after the date of the publication of these reasons, interest should be paid on any unpaid part of the lump sum calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from 2 months and one day from the date of the making of these orders until the date of payment in full. 24. An order should be included in regard to the removal of the caveat that has been lodged on the title to the Killarney Heights property. 25. I direct the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons. This period should allow the parties to agree on orders to give effect to these reasons and, if at all possible, to agree upon the costs of the proceedings. One can only hope that they do so in order to avoid further costs being incurred. ********** Amendments 16 December 2021 - corrected judgment medium neutral citation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2021