New South Wales Supreme Court CITATION : Davis v Public Trustee; Kelleners v Public Trustee [2007] NSWSC 731 HEARING DATE(S) : 29/06/08 JUDGMENT DATE : 18 July 2007 JURISDICTION : Equity Division JUDGMENT OF : Associate Justice Macready at 1 CATCHWORDS : Family Provision - Application under Family Provision Act by persons who are part of the household of the deceased - Discussion of Dependency of young children on grandparents or children in the Household - Order for Legacy in one claim and the other claim dismissed Family Provision Act 1982 - s. 6(1), 6(1)(d), 9(1), 16, 16(3) LEGISLATION CITED : Liquor Act 1912 Testators Family Maintenance Act Wills Probate and Administration Act 1898 s 61B Ball v Newey (1988) 13 NSWLR 489 Basto v Basto (unreported NSWSC 8 September 1989) Benney v Jones (1991) 23 NSWLR 559 Brown v Faggoter (unreported NSWCA 13 November 1998, BC9805810) Churton v Christian (1988) 13 NSWLR 241 De Winter v Johnstone (unreported NSWCA 23 August 1995, BC9505226) Fancett v Ware (unreported NSWSC 3 June 1986) Massie v Laundy (unreported NSWSC, 7 February 1986) McCarthy v Dorney [2007] NSWSC 742 CASES CITED : McGrath v Eves [2005] NSWSC 1006 McKenzie v Baddeley (NSWSC unreported, 3 December 1991) Petrohilos v Hunter (1991) 25 NSWLR 343 Pearson & Anor v Jones [2000] NSWSC 799 Phillips v Quinton (unreported NSWSC 31 March 1988) Re Guskett (deceased) (1947) VLR 211 Re Fulop Deceased (1987) 8 NSWLR 679 Sherborne Estate: Vanvalen & Anor v Neaves & Anor [2005] NSWSC 593 Singer v Berghouse (1994) 181 CLR 201 Williams v Legg (1993) 29 NSWLR 687 PARTIES : Keith Robert Davis v Public Trustee of NSW Jean Alison Kelleners v Public Trustee of NSW FILE NUMBER(S) : SC 4073/05; 2606/06 Mr M Gorrick for Keith Davis COUNSEL : Mr C Hodgson for Jean Kelleners Mr L Ellison SC for Public Trustee of NSW Wulkinson Throsby & Edeards for Keith Davis SOLICITORS : Bolster & Co for Jean Kelleners Clinch Neville Long Lawyers for defendant - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE MACREADY WEDNESDAY 18 JULY 2007 4073/2005 KEITH ROBERT DAVIS v PUBLIC TRUSTEE (ESTATE OF THOMAS MITCHELL) 2606/2006 JEAN ALISON KELLENERS v PUBLIC TRUSTEE (ESTATE OF THOMAS MITCHELL) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Thomas Mitchell who died on 31 March 2004. The deceased died intestate and two applications are made by the plaintiffs in these proceedings based on the fact that at one stage they were part of the household of the deceased and partly dependent upon him. I have heard both matters together with the evidence in one matter being evidence in the other. 2 As I have mentioned the deceased died intestate and as a result of the investigations which have been carried out by the Public Trustee it has been determined that the estate passes to the Crown as bona vacantia. Assets in the Estate 3 The deceased owned a farm on the outskirts of Berrima. The real estate in the name of the deceased was valued at $1.5 million and there are debts in the administration of $173,626.19. This leaves a balance in the estate of $1,326,373.81. In addition to the farm included in the above valuation the Public Trustee has found that there is another part of the farm which is occupied by Keith Robert Davis ("Keith") which was held under old system title and is the subject of a primary application based on adverse possession. That application is described by the solicitors as having strong prospects subject to a question about payment of past rates. In the event that the Registrar General accedes to the application there will be additional property included in the estate that is valued at $720,000. Costs have been incurred and these are as follows: The plaintiff Keith Robert Davis $32,500 The plaintiff Jean Alison Kelleners $32,900 Defendant in both proceedings $38,900.13 Total $104,300.13 Family history 4 The deceased, Thomas Mitchell, was born on 1937. He was the son of William Thomas Mitchell and his wife Rose. In the evidence William Thomas Mitchell was referred to Uncle Bill and his wife as Aunty Rose. The deceased, their son, was referred to a Tommy. As the parties referred to them in this way I will also so refer to them. 5 Keith was born on 7 September 1957 and his sister, Jean, was born on 31 March 1959. Their parents separated in about 1969 and the children remained with their mother Doris Harkham, referred to as Doris in the evidence. 6 In 1969 Uncle Bill's wife Aunty Rose was ill and as a result Doris and her children went to live with Uncle Bill and his wife so that Doris could look after her. Uncle Bill and his wife were living on a farm at Berrima, which they owned, and the only other person living on the farm at the time was their son, Tommy. When she moved to the farm at Berrima Doris was accompanied by her two children Keith and Jean who commenced living with her on the farm. Another son also joined them at one stage for a short time but he makes no claim although he has been given notice. 7 In 1971 Aunty Rose died and at the request of Uncle Bill, Doris and her children remained living on the farm in order to look after him. At that stage and indeed at the time that Doris and her children moved on to the property Tommy was the only one in the household who was in receipt of income from employment. He worked at the cement works at Berrima. There were a number of animals on the farm where it appears small-scale farming was undertaken. 8 After moving to Berrima both children commenced schooling at Berrima where Keith only lasted a month. He was expelled from school for fighting and at that stage he was 14 years of age. He suffered from a number of problems which I will refer to later but they included a moderate degree of intellectual disability. After he was expelled from school he did not return which was with the consent of the authorities. 9 In 1973 Keith started work with the abattoir where he worked for many years until 1989. He paid his mother $20 a week but did not pay anything for accommodation or groceries. 10 In 1976 Jean left the Berrima farmhouse to marry. Tommy gave her away at her wedding. When she next returned to the farmhouse she found that Tommy had moved into Doris' bedroom, which was bedroom she had previously slept in with her mother. 11 Uncle Bill died on 22 February 1982 and probate of his will was granted to Thomas. As a result Thomas inherited the Berrima property. 12 Keith continued to live at Berrima until 1984 when he married Josephine Blunt and he and his wife moved out of the farmhouse to live at Moss Vale. Keith's marriage lasted about six years and in due course he and his wife divorced in 1992. Keith thereafter continued to live in Moss Vale. 13 When he left work at the abattoir in 1989 he took on a number of other jobs until 1996 when he left the workforce and received a disability pension on which he has survived since that time. 14 In 1990 Jean moved to Bundaberg and in 1995 she separated from her first husband who died in 1995. They had three children and as a result of problems with one child Jean has had to raise her grandchild, Chloe, born on 11 December 1995. 15 In 2001 the plaintiffs' mother Doris died and at that stage she was still living with Tommy at Berrima. 16 Jean married her present husband, Paul Kelleners, on 30 September 2001 and it was intended that Tommy would give her away. Unfortunately because of the death of her mother, Doris shortly prior to this event Tommy could not give her away. 17 In 2003 Jean had an operation to remove part of her liver and lymph glands as a result of cancer. On 17 June 2003 a Children's Court order gave her parental responsibility for her granddaughter, Chloe. 18 Over the years after his retirement from the workforce Keith still kept a close relationship with Tommy. Each day after Tommy had finished work he would collect Keith and take him back to the farmhouse at Berrima where for some hours they would work on the farm and later Tommy would drive Keith home to Moss Vale. Tommy was the only person with a car and Keith was not able to drive. 19 On 31 March 2004 while Tommy and Keith were feeding farm animals Tommy was gored to death by a new ram. 20 On 5 November 2004 the administration of Tommy's estate in intestacy was granted to the Public Trustee. Keith brought proceedings on 22 July 2005 within time. The period for bringing proceedings expired on 31 September 2005. 21 In March 2006 Mr Ian Rugless, solicitor, acting on behalf of the Public Trustee telephoned Jean and advised her of the fact of Keith's claim against the estate and told her he would write to her in relation to the estate. 22 On 22 March 2006 Jean met Mr Rugless in his office in Sydney for the purpose of enquiring whether she would give evidence in the case. On 23 March she received a letter enclosing a notice of claim in relation to Keith's proceedings. Until this contact she did not know that she was entitled to make a claim under the Family Provision Act. On 6 April 2006 she consulted her solicitor Mr Mark Bolster who wrote on 12 April 2006 advising commencement of proceedings on her behalf. Her proceedings were commenced on 4 May 2006. Extension of time 23 Because the application is out of time it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 24 Young J dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at 'sufficient cause" under 16(3) of the Act the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 25 Young J also accepts a view which was expressed by Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time for a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing took the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989). 26 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995 Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 27 Sheller J considered that it was only necessary to show that the application was not bound to fail. Cole J seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 28 As I have mentioned, Jean was unaware that she had a right to commence proceedings under the Family Provision Act until shortly before she took advice from her solicitor. She took the view that if she were to receive a legacy from Tommy's estate she would be notified. She did not hear anything and assumed nothing further would happen. 29 In my view there is an adequate explanation as to why Jean did not commence proceedings. The fact that she was waiting to hear if she were to receive a legacy is not important as she had no knowledge of her right to make an application. No doubt if the notice had been served earlier she would have commenced proceedings within time. In this circumstance and as there is no issue of prejudice to the beneficiaries or unconscionable conduct, I extend time up until the commencement of the filing of her summons. Eligibility 30 Although there was some familial relationship between Doris and Uncle Bill, or his wife, the precise basis for this was not properly established in the evidence. As a result both plaintiffs based their claims on the fact that they allege that they were part of the household of which the deceased was a member and were at some time dependent upon him. 31 The Public Trustee quite properly conceded that Keith was a member of the household until 1984 when he married and left home. The Public Trustee also conceded that Jean was a member of the household until the time when she left home to marry in 1976. This leaves the question of dependency. 32 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. At page 490 Samuels J said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency." 33 His Honour analysed the facts in the case and referred to the fact that the parties had decided to pool their income for the purpose of purchasing property together. He referred to the submission that in the case of a joint mortgage each party could only have received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. " 34 This passage emphasises the factual nature of dependency be it financial or otherwise. 35 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where dependency was only emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship. 36 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court again considered the meaning of dependency. At page 346 the Court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v. Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 37 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), Meagher JA, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Importantly in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 38 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive. 39 Keith was living in the house between 1982 and 1984 when the deceased, Tommy, owned the house. At this time he and his mother were dependent upon Tommy for accommodation. At this time Keith was aged between 25 years and 27 years of age. He had been working for a number of years and was not in that sense, having regard to his age, dependent upon his mother. He did not pay any rent for his accommodation but he paid board to his mother. In these circumstances it seems to me that Keith was partly dependent upon Tommy and is therefore an eligible person. 40 However Jean's dependency is more problematic. Jean left home in 1976 and at that stage the deceased did not own the property. Jean's claim of dependency was that she was dependent upon Tommy's income to support her. Jean gave evidence that during the period 1969 to 1976 the only person earning an income in the house, apart from the last 12 months when she was working after she left school, was Tommy. Tommy was paid on a Thursday and every Thursday Jean and her mother and Tommy travelled to Moss Vale to do the family shopping. Jean saw that Tommy paid for the weekly shopping which was food for the entire household. When she finished school in 1975 she worked for a period of about 12 months and during that time she bought her own food and she did not pay board. She says that Tommy continued to provide food for the household from his wages at the cement works. At that time she did not know whether Uncle Bill received a pension. It seems that for part of this time between 1973 and 1976 Jean's brother Keith was in receipt of a wage but he did not contribute to the household other than $20 a week to his mother. 41 The Public Trustee submitted that there were two bases on which it could be said that the Jean was not dependent upon Tommy at the time she was living in the household. 1. That Jean was not dependent upon Tommy as being a young child she was dependent upon her mother. 2. That there were other sources of income in the house such as the pension that her mother received and that accordingly as a matter of fact she was not dependent upon Tommy. 42 On the first basis in Sherborne Estate: Vanvalen & Anor v Neaves & Anor [2005] NSWSC 593 Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said as follows: "41 The following is a convenient summary of the principles which I understand to be applicable to the determination whether a grandchild is an eligible person: "25. The authorities make it clear that a grandchild is not normally regarded as a natural object of a testator's testamentary recognition and that additional factors need to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially: see e.g. Tsivinsky v Tsivinsky (unrep) NSWCA 5 December 1991 per Kirby P; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46. 26. The authorities are equally clear that the grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator's grandchildren who are directly dependent on that child: see e.g. Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fulop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799; MacEwan Shaw v Shaw (supra). 27. Further, the fact that the testator occasionally, or even frequently, made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator for the purposes of s.6(1)(d). To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assumed a continuing and substantial responsibility for the grandchild's support and welfare: see e.g. Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (supra); Pearson v Jones (supra)": Simons v Permanent Trustee Co Ltd [2005] NSWSC 223." 43 The quotation of Palmer J perhaps reflects the submissions that were made to him which he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with the deceased. He went on to say in respect of this period: "42 I am unable to accept that the period of three months in 1976 when Helen, Julia and Brett came to live with the deceased at Willow Vale qualifies as the period during which Julia was wholly or partially dependent on the deceased for the purposes of s.6(1)(d) of the Act. My reasons are as follows. 43 First, whatever assistance the deceased was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as the deceased's daughter, rather than as direct support and maintenance of Julia." 44 A situation similar to the one with which I am now dealing concerned Master McLaughlin, as he then was, in Pearson & Anor v Jones [2000] NSWSC 799. There were grandchildren who lived with their parents in part of the house which was owned by the grandparents. From time to time the grandparents made various gifts to the grandchildren. His Honour concluded as follows on this aspect: "24 It was submitted on behalf of the Plaintiffs that practical and financial assistance by the Deceased of the nature which I have herein described constituted partial dependency by each Plaintiff upon their grandparents and, after the death of their grandfather, upon the Deceased. 25 However, I am of the view that where, as here, the Plaintiffs were residing with their own parents, and where it was their own parents who had the primary responsibility for the maintenance, care and support of the Plaintiffs, the mere facts that gifts or benefits were given, either occasionally, or even on a regular basis, by the grandparents is not sufficient to establish that the Plaintiffs were partly dependent upon their grandparents. (This concept of dependency was considered by the Court of Appeal in Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 per Hope AJA; see also Re Fulop (1987) 8 NSWLR 679 at 682; Ball v Newey (1988) 13 NSWLR 489 at 491.)". He recently applied these views in McCarthy v Dorney [2007] NSWSC 742. 45 The only evidence of income in the household, apart from the earnings of Tommy, was some evidence given by Keith in cross-examination that he understood Uncle Bill and his wife were on the pension. In the circumstances with which I am concerned it is the dependency of Jean up until the time when she left school which is relevant. After she left school her evidence is that she bought her own food and provided for herself out of her wages which she earned for the remaining year that she lived on the property. 46 The suggestion that there was a relationship between Jean's mother and the deceased only arose on the facts after the Jean had left home although some things the Jean observed might have suggested a closeness between the deceased and her mother prior to this time. The evidence to which I later refer only suggests that Tommy stood in loco parentis to Jean after Jean had left school. In the period up until Jean left school plainly she was dependent upon her mother for the necessities of life. Her mother had sole responsibility for her as her parent. Her mother was undoubtedly dependant on Uncle Bill for her own support as Palmer J points out. 47 There is no doubt that a child can be dependent upon the mother and the father even though they are not living together. The question in this case where there was only one effective parent of the applicant is whether that applicant is not only dependent upon the parent because of the relationship between them but whether the applicant can also be dependent upon someone else who provides the parent with the necessities to allow her to fulfil their responsibilities as a parent to the child. 48 In re Fulop at 682 McLelland J as he then was made a clear distinction by suggesting that for a child to be dependent upon another for the provision of accommodation the person providing the accommodation should stand in loco parentis to the child. The weight of authority suggests that the answer to the question I posed in the previous paragraph would be "no". Looking at it as a matter of fact, as the cases direct, it is the closeness of the bond between parent and child during the years of infancy that make the child dependant only on the parent. If the mother loses support from a grandparent then she will no doubt find some other way to support herself and her child. In these circumstances there are two separate dependencies. 49 In my view Jean was not dependant upon the deceased. In case I am wrong on the question of dependency I will turn to consider her claim. Factors warranting 50 Under s 9 (1) of the Family Provision Act it is necessary for the Court to first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 51 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 52 These principles have been applied at first instance for many years In recent times further attention has been given to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 53 As far as Keith is concerned it is plain that during his lifetime Uncle Bill was regarded by him and Tommy as the "boss". At the time Keith came to the property Tommy was in his early thirties and was someone from whom Keith took direction in his day to day activities. When Uncle Bill died it seems clear that Tommy stepped into the role of "boss" on the property. Keith lived on the property for two years before moving away and in that time he was part of the family unit with Tommy and he doing the work Tommy directed him to do in the afternoons, after work at the abattoir and on weekends. Even after Keith had moved out in 1984 and particularly after the failure of his marriage one sees a very important part taken by Tommy in Keith's life. As I have mentioned Keith was intellectually impaired which meant he could not pass the driving licence test. It seems that Tommy took an interest in Keith's life and he picked him up on a daily basis and he would take him take him back to the farm after work to keep him occupied. Tommy would take him home in the evenings. 54 In these circumstances it seems to me that Tommy took a real part in Keith's life and I would describe it as one in respect of which there are factors warranting the making of the application. 55 Jean was of course young and she left home aged 17 years in 1976. While Jean was teenager it was Tommy who drove her to parties and other events as he was only household member who could drive. It is also apparent that in this period there was a closer relationship between Tommy and Jean's mother. She seems to have been in some sense part of the family because Tommy took them on trips to visit relatives of Jean's mother. Tommy also taught Jean how to drive. While she was married and prior to moving to Bundaberg Jean had a number of problems with her partner. If she needed to be driven somewhere Tommy would oblige and he also provided her with extra money and food from time to time. Tommy took the trouble to pick her up once or twice a week so that she could return home and see her mother in this period. On such visits Jean would cook and clean the farmhouse. There was also the occasion when Jean was married on the second occasion and Tommy had agreed to give her away. However, because of the death of Jean's mother this did not take place. In the circumstances, I think there are factors warranting on the traditional basis and I will also deal with the matter to see whether there are prospects of success in her claim. 56 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." Situation in life of Keith 57 Keith is 49 years of age, single, and has no dependents. His income is the disability pension of $492.40 per fortnight although he occasionally earns more by selling firewood. His weekly expenses are $255 a week but he has no savings or assets apart from a few items of furniture. He has an unregistered car that he uses on the property to collect wood. 58 After the death of Tommy, Keith gave up his flat in Moss Vale and moved back to the farmhouse to look after Tommy's dog and the animals. He still resides on the property. 59 A general practitioner, Dr John Flynn, gave evidence about Keith's medical problems. The doctor said Keith suffers from the following medical conditions: Asthma Chronic obstructive airways disease Sleep apnoea Diabetes mellitus – non-insulin dependent Gout Depression Allergic rhinitis Hypertension Long-term intellectual disability 60 Since 2000 Keith has required hospitalisation on 13 occasions. He has also presented at Accident and Emergency on 22 occasions. Most of these problems were connected with his chronic obstructive airways disease. Keith requires the use of a machine every night to enable him to sleep and he takes antidepressants. Dr Flynn did not expect that Keith would achieve the normal life expectancy of 78 years for a person of his age. 61 Keith will require regular medical attention and he will have increased episodes requiring hospitalisation. The evidence made it clear that Keith is a person who needs some space around him where he can look after a few animals. This does need to be a large area but animals would give him comfort and the interaction he needs. 62 Keith did not contribute to Tommy's estate and as I have mentioned earlier it is also clear that he had a good relationship with Tommy. 63 It is necessary to see how Keith says he has been left without adequate and proper provision for his maintenance, education and advancement in life. In this regard he asked that he be given sufficient funds, namely, about $500,000, to buy a one or two acre property in the Moss Vale area. He also needs $20,000 for the purchase of furniture and a fund for contingencies given his medical condition. 64 It was apparent from cross-examination that Keith would need to live within walking distance of the centre of Moss Vale. A property meeting this description would be difficult to locate. The evidence before me establishes that there are two and three bedroom houses available in Moss Vale in the low to mid $200,000 price range. Some of these have a backyard which would allow Keith to keep a dog or other animal. The Public Trustee suggested that rental properties would be appropriate and tendered evidence of rental properties in the area. They were available to rent at $200 a week. The sum required to meet a rented property for 20 years on the three percent tables would be $157,000 and for a rental property of $250 a week it would be $196,975. Situation in life of Jean 65 Jean is 49 years of age, married with two dependent children. Her child, Jonathan aged 19 is still dependent and remains living with Jean and her husband. Jean's granddaughter, Chloe, aged 11 lives with her. Jean and her husband have modest assets. They have cash of a little less than $4,000. Jean's husband has shares worth $1,600. They each have a motor vehicle and they own a boat a total of $9,000. They estimate their furniture between $15,000 and $20,000. Jean has a life policy worth $86,336 and she and her husband have superannuation. Jean's husband's superannuation is $295,671.80 and Jean's is $27,668.14. Jean's husband is 54 years of age. They have liabilities of $20,000. 66 Jean also had a good relationship with Tommy and this continued until she moved to Queensland. Obviously there was still contact given the agreement by Tommy to give her away at her second wedding. 67 Three years ago Jean had cancer which affected her liver and lymph glands part of which were removed. She undergoes regular blood tests to monitor her progress. She and her husband work for the Twin Towers Services Club. Jean works as a waitress and her husband is the accommodation manager. Their weekly income from all sources is $1,829.65 which closely approximates their outgoings. 68 It is necessary to see how Jean says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. She suggests that she would like to have funds for a deposit on a property in the Tweed Heads area. Two bedroom units in Tweed Heads sell for $250,000 to $300,000 with three bedroom units available in that price range up to $350,000. This is the accommodation that Jean would like to buy. Although she has not made detailed enquiries as to her borrowing ability plainly she would be able to borrow some funds to purchase a unit. Funds to provide a reasonable contribution to the unit would enable her to purchase a unit. Discussion 69 We are concerned with two claims by persons who had a different degree of contact with Tommy during his lifetime. Keith had substantial contact and Tommy appeared to take a role in providing Keith with direction by keeping him busy. His needs are apparent as he suffers from the medical conditions to which I have referred and he has a need for accommodation. 70 In McGrath v Eves [2005] NSWSC 1006 Gzell J referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said: "67 When it comes to children, as Young J observed in Shearer v The Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous. 68 In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]–[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352. 69 White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally. 70 It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider. 71 There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order. " 71 In the present case there is a substantial estate with no competition between the beneficiaries. Although the Crown is entitled to the property as bona vacantia there are no competing interests to consider. 72 In the circumstances of Keith's claim it seems to me that if at all possible he should have a small house with a block of land close to town and a fund for contingencies. Thus it is appropriate that he should receive a legacy of $600,000 out of Tommy's estate. 73 So far as Jean is concerned the extent of her contact with Tommy was more limited than that of her brother. This is not a criticism but a result of the fact that she made her own way in life after she left home aged 17 years. In my view it would be appropriate for her to receive a legacy of $200,000 to contribute towards the cost of a unit. 74 I have found that the plaintiff, Jean, was not dependent upon Tommy. As a result she has no claim. However, it seems to me that in this particular case this is a very unfortunate situation. Effectively what has happened is that Jean's claim has failed because the property, which Tommy owned, was at the relevant time owned by Uncle Bill. If she had made a claim on Uncle Bill's estate then no doubt dependency would have been established. At the time of her last year at home she had ceased to be dependant as a child on her mother as she was working and providing for herself. It seems to me that the Crown has received as bona vacantia the present property, which was previously held a person, now deceased, who had performed an important role in Jean's life. In these circumstances I recommend to the Crown that if an application were made that an ex gratia payment be made out of the funds passing to the Crown a sum equal to the legacy which I have indicated would be appropriate in this case. It would also be appropriate to increase the provision by the amount of any costs incurred by her in these proceedings as the sum I have indicated should not be eroded by these costs. 75 In the orders that I make as follows: 1. That the plaintiff Keith Robert Davis receives a legacy out of the estate of the deceased in the sum of $600,000, 2. That the claim of Jean Allison Kelleners be dismissed, 3. That the costs of Keith Robert Davis on the ordinary basis and the defendants in both proceedings on an indemnity basis be paid or retained out of the estate of the deceased, 4. Subject to submissions I make no order as to the costs of the plaintiff Jean Allison Kelleners. 5. Reserve liberty to apply in respect of notional estate. ********** 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.