Supreme Court New South Wales Medium Neutral Citation: Marea Therese Jordan-Watt v Rebecca Elizabeth Riordan; In the Estate of Ned William Jordan [2013] NSWSC 1132 Hearing dates: 5 & 6 November 2012 Decision date: 16 August 2013 Before: Slattery J Decision: Order for provision in favour of the plaintiff made out of the estate of the late Ned William Jordan Catchwords: SUCCESSION - family provision and maintenance - plaintiff married to testator for 27 years - plaintiff and testator separate two years before his death - no approved settlement under the Family Law Act before his death - his will declares she "has already been generously provided for" and makes no provision for her -whole estate given in equal shares to the two children of testator's first marriage and his three children with the plaintiff - whether adequate provision made for the plaintiff out of the estate of the deceased - whether an order for provision should be made out of the estate of the deceased, under Succession Act 2006 s 59, and if so what order should be made. Legislation Cited: Family Provision Act 1982 Succession Act 2006 s 57, s 59, s 60, s 66 Cases Cited: Andrew v Andrew [2012] NSWCA 308 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Kalmar v Kalmar [2006] NSWSC 437 Luciano v Rosenblum (1985) 2 NSWLR 65 Palmer v Dolman [2005] NSWCA 361 Re Clissold (decd) & Testator's Family Maintenance Act [1970] 2 NSWR 619 Scott v Scott [2009] NSWSC 567 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Sturits v Nicholls (No 2) [2011] NSWSC 865 Category: Principal judgment Parties: Plaintiff:- Marea Therese Jordan-Watt Defendant:- Rebecca Elizabeth Riordan Representation: Counsel: Plaintiff:- P. O'Loughlin Defendant:- M. Bridger Solicitors: Plaintiff:- Brian Maker, Newnhams Solicitors Defendant:- Michael Bray, Bray Jackson & Co File Number(s): 2011/304797 Publication restriction: No Judgment 1When Ned William Jordan died in 2010 he left a will making no provision for his wife, the plaintiff in these proceedings. The will explained that he had excluded his wife, as she had "already been generously provided for and financial settlement has already been made". When assessing his wife's present claim for provision out of his estate under Succession Act s 59 one consideration for the Court is what he meant by this statement, and whether indeed it was correct. In the result, I have determined that it was not correct and that the Court should make an order for provision out of his estate in the plaintiff's favour. 2The deceased made his last will on 31 March 2010 by which he appointed one of his children, Rebecca Riordan, as his sole executrix. The deceased died 8 months after making his will, on 29 November 2010. Probate of his will was granted to Rebecca on 15 February 2011. 3The deceased has been married twice. He married Jennifer Margaret Scott-Bohanna in February 1971. He and Jennifer had two children, Rebecca born in September 1974 and Benjamin born in June 1976. But his marriage to Jennifer did not last, and they divorced in 1977. The deceased had been born in April 1944, so he was 26 when he married Jennifer, and 32 when they were divorced. 4The deceased and his second wife, the plaintiff in these proceedings, Marea Therese Jordan-Watt commenced living together in the Australian Capital Territory in May 1977 and were married in December 1981. They had three children at the time of the deceased's death: Sally Jean Elisabeth Jordan-Watt, Michael William Thomas Redfern Jordan-Watt and Kate Emily Louise Jordan-Watt. 5All the parties to these proceedings are from the same family. I will for convenience, and I hope without any disrespect to the parties, refer to them throughout these reasons by their first names. 6The deceased and Marea had another child, Amy Louise Ford, who was born on 31 May 1989. But after her birth she was fostered for a short period of time and then was adopted in 1991. Under this State's adoption law, after her adoption she ceased to be the child of her natural parents, the deceased and Marea. Indeed Amy Louise commenced proceedings under Succession Act s 59 for provision out of the deceased's estate against Rebecca as executrix of the deceased's estate. But in July 2012, Amy Louise's proceedings were dismissed by consent. There has been no occasion in the course of the present proceedings to consider further her relationship to the deceased or her claims on his estate. 7After approximately 27 years of marriage and about two and a half years before his death, the deceased and Marea separated, in March 2008. When he died they were in the course of negotiating a matrimonial property settlement. But no formal orders for financial settlement were in the Family Court of Australia by the time of his death. 8But the deceased took a clear view of the financial arrangements that he thought had been made between himself and Marea at the time of his death. This was reflected in his will which made no provision for Marea, and divided his whole estate between his five children, Rebecca, Benjamin, Sally, Michael and Kate. The will was relevantly in the following terms: 1. I HEREBY REVOKE all Wills and Testamentary Dispositions previously made by me and I declare this to be my last Will and Testament. 2. I HEREBY APPOINT Ms Rebecca Riordan of [address not published], Brunswick, Melbourne Victoria 3056, house wife, EXECUTRIX of this my Will." 3. AFTER payment of all my just debts funeral and testamentary expenses including duties both Federal and State on the whole of my real and personal estate I MAKE the following GIFTS, BEQUESTS and DEVISES. I leave my entire estate to my five children (in equal shares), Ms Rebecca Riordan of Brunswick Melbourne Victoria, Benjamin Jordan of Melbourne Victoria, Sally Jordan-Watt of [address not published], Double Bay NSW 2028, Michael Jordan-Watt of [address not published], Double Bay and Kate Jordan-Watt [address not published] Double Bay NSW 2028. As to my wife (at the time of writing this will) I make no provision for her as she has already been generously provided for and financial settlement has already been made. (The name of my wife at the time of writing this will is Ms Marea Jordan-Watt of [address not published], Double Bay NSW 2028). Assets of the Estate 9The final asset position of the estate was not complex. The principal asset in the estate was the Double Bay property in which the deceased and Marea lived before they separated in March 2008. The Double Bay property had been held in a joint tenancy throughout their married life. But after their separation and only two months before his death the deceased unilaterally severed the joint tenancy, in September 2010. The matrimonial property settlement negotiations had stalled. I infer the deceased did not want Marea to take his half of the property (representing 60% of the value of his estate) by survivorship. 10In the result, at the time of hearing the estate was principally represented by his half share as tenant in common of the Double Bay property and cash, in the following way: Assets $ $ Half interest in the Double Bay property 1,200,000 Monies on deposit (St George Bank) 846,679 Monies in solicitors' trust account 965 Total assets 2,050,015 Liabilities Capital Gains tax re sale of 7/230 Arden Street Coogee and income tax (est) 42,206 Balance of defendant's costs 35,597 Accountancy fees 3,300 Total liabilities -81,103 Total $1.968.912 11I accept that the estimated costs of sale and commission of selling the Double Property would be $52,000. 12These figures are exclusive of legal costs. In accordance with the rules of Court the parties filed evidence as to their respective legal fees in the proceedings. The plaintiff's legal fees on the party basis to the conclusion of an estimated two day hearing, which was indeed the length of the proceedings, were $75,000 and on the indemnity basis $97,680.50. These are set out in a thorough affidavit sworn by Mr Brian Maker, the solicitor for the plaintiff. 13The defendant's costs to the end of the hearing were $55,000. Thus the distributable estate of the deceased will be close to $1.8 million. The contest in the proceedings 14It was not in dispute that Marea, as the wife of the deceased, was an "eligible person" within Succession Act s 57 and able to make a claim for provision out of the deceased's estate under Succession Act s 59. 15The provisions of Succession Act s 59 are analysed in more detail later in these reasons. But the real contest between the parties was whether an order for provision in the plaintiff's favour should be made out of the estate and if so in what amount. The plaintiff's and the defendant's cases on these issues may be shortly stated. 16The plaintiff claimed that adequate provision had not been made for her because of the contribution that she had made during the marriage and her lack of present financial resources. Marea has her own half interest in the Double Bay property, furniture and personal effects of minimal value, cash and shares worth less than $5,000 and modest superannuation. She says that given her present expenditure and need for contingencies that she should be given an order for provision by way of the deceased's share in the Double Bay property and a substantial part of the cash of the estate. 17The plaintiff grounds her case in a relationship of almost 31 years (May 1977 to March 2008) and a marriage of almost 28 years. During that time Marea had four children with the deceased, made a substantial contribution to the household as homemaker and parent and contributed substantially to the assets of the marriage and particularly to the acquisition and conservation of the Double Bay property. Not only that but when Rebecca and Benjamin were young she housed, fed and cared for them. In short she says that adequate provision has not been made for her maintenance and advancement in life and the Court should now make provision measured by her current financial needs. 18In contrast the defendant says that the plaintiff has received approximately $737,000 from the deceased within the last ten years of his life, from various sources which are dealt with in more detail below. Moreover the defendant says that Marea is in full time employment on a net income approximately $72,000 and that the dependency of her children is likely to end soon, after which she will have no dependents. Moreover, the defendants says that because of the deteriorating relationship between the deceased and Marea since 2000 that the plaintiff made very little contribution to the deceased's welfare in the last eight years of his life. The defendant also says that to the extent the plaintiff has made contributions in building up family assets, that is recognised by a division of the ownership of the Double Bay property prior to death and that she can realise that valuable interest in the property by sale and can obtain accommodation appropriate to her needs and circumstances once she is without dependents. 19Much of the defendant's case is in contest. The plaintiff denies receiving substantial funds from the deceased, says she is entitled to the Double Bay property, the house in which she has lived much of her life; and that the defendant has understated her present financial needs and that the defendant has painted a worse picture of the last years of her relationship with the deceased than was in fact the case. This introduction to the issues is sufficient now to introduce the narrative of events with the Court's findings about the relationship and financial circumstances of the deceased and Marea from 1977 until the time of his death. After that narrative the Court gives consideration to the present financial circumstances of each of Marea and the beneficiaries, before setting out the applicable legal principles and reaching its conclusions. 20A narrative of the relevant events of Marea's 31 years with the deceased may be divided into four time periods that each raise different disputed facts in the proceedings: (1)1977-1996 - A Family Living in Canberra then Sydney (2)1997-2002 - The Deceased Inherits Property (3)2002-2008 - Relationship Breakdown (4)2008-2010 - From Separation until the Deceased's Death (1) 1977-1996 - Family households in Canberra then Sydney 21After Ned left Jennifer, he and Marea began to live together in Canberra. He was able to have access to Rebecca and Benjamin there. But he and Marea decided to move to Sydney in 1983, essentially for work related reasons. 22When Marea and the deceased met she was a full time teacher with the Commonwealth Teaching Service in Canberra. After a brief change to school teaching in Sydney, she returned to her Commonwealth Teaching Service position. She has a Bachelor of Education from the University of Canberra majoring in English literature and professional writing. 23The deceased and Marea first set up a joint household in May 1977 in a property in the suburb of Holder in the Australian Capital Territory. They both worked in their respective careers as they set up a household together. The deceased retained the Holder property as part of his matrimonial settlement with his first wife Jennifer Scott-Bohanna. He borrowed monies to pay her out so he could retain the property. I accept Marea's evidence that the mortgage over that property was paid out of joint household income. 24In May 1983, about a year before their first child was born, the deceased and Marea moved to Sydney, let out the Holder property and rented accommodation in Sydney. 25The deceased and Marea set up their permanent household in Sydney and brought up their four children here. This period started with their application of various separate assets to the purchase of their Sydney house, the Double Bay property. 26From January 1984 Marea took up various full time and permanent teaching, tertiary supervision and adult education positions in Sydney, with the University of Sydney, the Queen Elizabeth II Rehabilitation Centre, Access to Reading, a private company, the Commonwealth Rehabilitation Service and the Australian Chamber of Commerce and Industry. She juggled these jobs whilst having her children, Sally in September 1984, Michael in April 1986, Amy Louise in 1989, and Kate in March 1991. These education-related positions take Marea's employment history through until about August 1993. 27I accept the plaintiff's evidence that the deceased sold the Holder property in the ACT for $117,000 in mid-1985 from which he realised about $100,000. These proceeds helped fund the purchase of the Double Bay property in October 1986. 28In August 1984 Marea had been instrumental in the acquisition in her and the deceased's joint names of an apartment in Double Bay for $68,000. I accept her evidence that she funded the purchase of this apartment with $20,000 she received from her late father's estate and a loan of $40,000 from her mother. Although the loan from her mother was paid out of her salary, the sharing of household expenses with the deceased no doubt assisted in it being paid off. 29With two young children in 1986, the deceased and Marea needed to move out of an apartment and into a house. They purchased the Double Bay house property in October 1986 for $240,000, funding the purchase from the proceeds of their sales of the Holder property and the Double Bay apartment. I accept Marea's evidence that they also used some termination funds of about $10,000 from Marea's resignation from the Commonwealth Teaching Service and a $20,000 interest free loan from the deceased's mother and a $20,000 mortgage advance, which they repaid out of joint household income. 30Marea and the deceased lived in the Double Bay property and brought up their three children there throughout the late 1980's and 1990s. There is no suggestion in the evidence that during this period their marriage was not generally harmonious. 31Marea and the deceased undertook substantial renovations to the Double Bay property in 1991. I accept Marea's evidence that $35,000 in funds gifted from her mother at that time allowed these renovations to be done: to add on an additional kitchen/living room; to convert an old kitchen to a bedroom; to instal a pergola and pave the property's outdoor area and to purchase general household furniture. 32From time to time during the course of their marriage the deceased and Marea borrowed monies using the security of the Double Bay property and then repaid those funds off out of their joint income. They both remained employed throughout their marriage, although when she was having children Marea's employment became part-time for a period. 33Marea and the deceased further renovated the Double Bay property in 1999. This time they added a second storey comprising three bedrooms, bathrooms and separate toilet, TV room and kitchenette and added a swimming pool. This time the funds for renovation came from the deceased's side. He sold shares he received from the estate of his father who had died in 1997. 34From the time that they purchased the Double Bay property in 1986 until Rebecca turned 18 in 1992, and Benjamin 18 in 1994 there were reasonably regular school holiday access visits by Rebecca and Benjamin from Canberra up to the Double Bay property. The deceased had access to the two children for one half of school holiday periods. I accept Marea's evidence that with the deceased she fulfilled co-parental responsibilities for them whilst they were staying in Sydney. I also accept that the joint salary with the deceased was a source contributing to his child maintenance payments to Jennifer until the two children came of age. (2) The Deceased Inherits Property - 1997 to 2002 35The Deceased's father died in 1997 and his mother in 2002. The application of funds in relation to properties that the deceased inherited from his parents or dealt with after their deaths, was a source of dispute in the proceedings. The estate says that Marea received substantial benefits from one of these properties. Marea denies this. I accept her version of these transaction entirely. 36At his death in 1997 the deceased's father owned a home unit in Coogee. At her death in 2002 the deceased's mother owned a home unit in Elizabeth Bay. The Coogee apartment was transferred to the deceased in 1997. Marea acquired the Elizabeth Bay apartment in October 2002. The dispute about both properties and the Court's findings are set out below, starting with the Marea's version of the facts. 37Once it was transferred to him from his father's estate, the deceased rented out the Coogee home unit from 1997. Marea says, and I accept, that she and the deceased jointly raised funds by mortgage over the property in 2000 but had paid it off by 2002. She says the property was sold by the deceased in April 2010 for $420,000 and she is unaware of what the deceased did with the proceeds of sale. The answer is that some of the cash in his estate is from this source. 38Marea says she purchased the Elizabeth Bay unit from the estate of the deceased's mother, Barbara Van Cleef, for $575,000. Her account is that she borrowed $600,000 from the Commonwealth Bank to finance the purchase, pay legal costs and stamp duty and that she sold the property in February 2007 for $802,250. She says that after payment out of the mortgage of $616,100 on sale, legal costs and agent's selling commission the balance of monies received was $160,439.28. She says this fund was used to pay the capital gains tax on the sale, school fees, credit card debts, orthodontic fees and a motor vehicle lease payout together with general household expenses. The executrix disputes this account. 39I entirely accept Marea's account of her dealings with the Elizabeth Bay property both when it was acquired and when it was sold. Rebecca has taken up the deceased's perspective on these dealings but in my view it was a perspective clouded by bitterness and without objective foundation. The deceased said that Marea never paid or diverted the funds that were raised by mortgage for the acquisition of the Elizabeth Bay property. But the estate was represented by a solicitor on the transaction and there is no evidence of any irregularity in the mortgage funds not being received by the deceased's mother's estate on the conveyancing transaction. 40Moreover I reject the defendant's case that Marea diverted about $160,000 of the Elizabeth Bay sale proceeds to her own ends. She produced an extremely detailed account of how she disbursed those funds which I accept in its entirety. It is not a fabrication. She is not a kind of person who would fabricate such a document. I accept her account of her giving the document to the deceased. She produced it to lawyers in the course of family law correspondence. It shows that the whole of the $160,00 was defrayed on family and family related expenses. I accept her account of all this expenditure. Moreover, the document, which has fully accounted for her expenditure, has the badge of contemporarily and accuracy about it. The surplus from the sale of the Elizabeth Bay property was spent on defraying this joint family expenditure. (3) 2000-2008 - Relationship Breakdown 41The defendant's case is that the relationship between Marea and the deceased had substantially broken down by 2000 and that he and Marea were living separately and apart under the one roof. Marea denies this and says the relationship broke down much later, and closer to their separation in March 2008. 42The Court is presented with two quite different versions of what the last six to eight years of the deceased's and Marea's life together was like. Rebecca says that she saw and the deceased told her that he and Marea were effectively living separately and apart under the one roof, occupying separate bedrooms and having little but essential social intercourse with one another. On the other hand the picture that Marea paints over the 2000-2008 period is of a supportive marital relationship, which had its tensions but in which they still shared much. 43Two independent witnesses help solve this conflict, Mr McCall and Mr Wogan: two witnesses who knew the deceased throughout the period. They were credible witnesses who had no apparent reasons to speak other than the truth. Cross-examination did not impair their impressive evidence. They were two old friends of the deceased from two walks of life. I accept their evidence in their entirety, as representing what the deceased said to them and what they observed about the deceased. There is still a residual question in some areas whether what the deceased said to them was wholly accurate in fact. But where they are judging the deceased' expressions of opinion and feelings I accept their evidence reflects an accurate discernment of the deceased's state of mind due to their long association with him. The account given below of their evidence I accept, and is adopted as the Court's findings of fact. 44Mr James McCall was a close friend of the deceased since 1988. Their friendship developed out of a professions relationship. In 1988 the deceased was the then chief of staff to the then Minister for Business and Consumer Affairs in the New South Wales Government, Mr Garry Peacock. Mr McCall joined the staff of the Department of Business and Consumer Affairs in 1988 and worked in the same office as the deceased until 1993. 45Mr McCall met Marea as early as 1993 and visited the Double Bay property regularly for meals and to socialize with the couple. He observed considerable growing tension between the deceased and Marea, so much so that the deceased was living in a separate bedroom from Marea. He stopped visiting the deceased's and Marea's household in 2004. But he clearly recalls observing before that time "that Ned was in fact living in a separate bedroom to the plaintiff". Marea disputes his account but I prefer his evidence over hers on these issues. 46But the deceased also shared frank observations about his marriage to Marea with Mr McCall over lunch. Mr McCall recalls two particular occasions, one in 2002 and another in 2005 when the deceased said to him "although Marea and I are still living at the same address, the marriage is over and I am very unhappy living in these circumstances". In my view the deceased was expressing his genuine feelings to Mr McCall at this time. This inference is wholly consistent with the deceased's decision a few years later, in 2008, to leave the Double Bay household, spent much time in Thailand and seek a divorce. 47The circumstances in which Mr McCall came to give evidence add to this credibility. Rebecca rang him in early 2012, not suggesting anything to him about his evidence, but merely asking "if I was prepared to provide the lawyers with an affidavit recounting any recollection of conversations I had with Ned in relation to his will". Indeed Mr McCall was a witness to Ned's will and the person who steered Ned in the direction of a lawyer to equip Ned with legal advice about severing the joint tenancy. 48Similar evidence to that of Mr McCall, which I also accept, comes from another friend of the deceased, Mr Simon Wogan. From 2002 when Mr Wogan first med Ned, they developed a close social relationship. The relationship centred around weekly meeting at the Sheaf Hotel when the deceased was in Australia. Marea he was just a drinking partner of the deceased. But Mr Wogan was rather more than Ned's casual hotel acquaintance. I accept, they had a good friendship. 49Mr Wogan recalls visiting the Double Bay property in 2005 to watch a rugby test, and where he saw the deceased's separate bedroom, which the deceased then told Mr Wogan he had already occupied for four or five years. 50The deceased also opened up to Mr Wogan about his relationship with Marea describing her in 2005 as "that witch" and "that bitch" and going on to say to Mr Wogan "I can't believe I was involved with this woman when I was previously married. That woman has turned my children against me." 51All of this is consistent with Rebecca's evidence about the 2002-2008 period before the deceased left the Double Bay property, evidence which I also accept. She recalls a conversation with her father in 2005, in which she said "why haven't you moved out or divorced her. You and Marea have been fighting and living separate lives for years", to which in what I interpret as resigned acceptance of his daughter's statement Ned said, "I have put all my money into that house. Neither of us is prepared to move out." 52And again I accept Rebecca's evidence that the deceased said to her in November 2007, "I am seriously considering moving to Thailand permanently, as I cannot live life as I have any longer." I infer from the fact that he did move to Thailand about a year later that this was genuine impression of his views in late 2007. 53I also accept Benjamin's evidence to similar effect about this period. He too had seen where his father slept in the separate bedroom. I accept Benjamin's evidence that the deceased expressed views to him that he was unhappy and had moved into the spare bedroom, and eventually decided to move to Thailand. 54Marea's case attempted to present a different picture of the 2002-2008 period before the deceased left the Double Bay property. But I do not accept that picture. Marea says that the deceased had a drinking problem and that she and he did not sleep in separate bedrooms on a permanent basis. But she says that he drank heavily every day and would sleep in the spare room to avoid disturbing her, or even on the lounge or on the floor. She says that a bed was placed in an old "junk room" in 2003 and it became a "spare" bedroom then. But she does not accept that Ned occupied it permanently. 55But this account does not fit with the evidence of the other four witnesses, Rebecca, Benjamin, Mr McCall and Mr Wogan. And it seems improbable, given the number of credible observations to the contrary. And even on Marea's own account, the deceased began periodically visiting Thailand in 2006, without Marea and without explanation to her: hardly the conduct of a man who had a generally satisfactory personal relationship with his Australian wife. None of this conduct perhaps reflect very well on the deceased himself and wasn't very fair treatment of Marea either, but it was in my view what happened. (4) 2008-2010 - From Separation until the Deceased's Death 56Ned left the Double Bay household in March 2008. He spent most of his time after that and before his death, in Thailand. He occasionally visited Sydney during this period, sometimes for medical treatment of the cancer he had developed. He was conscious that he was dying in the last two years of his life. 57Marea continued to work through this period as she had during the years from about the mid-1990s. From August 1993 until August 2005 she was a full time teacher/consultant physical disability with the Open Training Eduction Network, TAFE, TAFE NSW. And then from August 2005 until the time of trial she was a full time teacher/consultant physical disability with the Sydney Institute, TAFE NSW. She continued to be an important point of emotional and financial stability in her children's lives throughout these years. Although the Court has found that in her relationship with her husband resentments developed, her commitment of her time and emotional support and financial resources to her children in my view was undoubted. It continued through this period and has done so after the death of the deceased. 58There are many conflicts in the evidence about this period. None of them seem to the Court to be particularly important to the matters that have to be decided. There are issues between the parties about whether Marea discouraged her children in going to see the deceased in hospital and refused to go herself. But on this I accept her evidence that the deceased did not want her to go and she did not discourage the children from going. 59There was bitter correspondence between lawyers acting for Marea and the deceased between March 2008 and his death in 2010. In my view it is not profitable to go into this correspondence other than to observe two things: first, Marea had articulated through her lawyers a well developed case for property settlement under the Family Law Act, which was certainly quite arguable. And the deceased appears consumed by bitterness about the prospect of having to give any more money to Marea and to have dwelled in his writings quite obsessively about the money that he had given her (as he did with Mr McCall, Mr Wogan, Rebecca and Benjamin). He seemed fixated upon the fact that the plaintiff had deprived him of the Elizabeth Bay property. He was certainly angry that he had not got anything from it himself. But in my view he had received benefits from the property: joint family expenses were defrayed from its sale proceeds. Marea's current financial position 60There is less contest about Marea's current financial position than there was about what she had received during the deceased's lifetime. The contest about her current financial position really related to her earnings potential, her needs for a house the size of the Double Bay property, and the level of her personal expenditure. My findings as to her current financial position may be shortly stated. 61At the time of the trial Marea was not in full time permanent employment. She was undergoing a one-year self-funded sabbatical, being leave without pay. The sabbatical was funded by placing 20% of her net salary over a four year period in suspense which was paid to her at the rate of $1000 a week for 12 months totalling therefore approximately $52,000. She returned to full-time employment in July 2012 receiving her pre-sabbatical net salary of approximately $72,000 per annum. 62Marea's future employment situation is uncertain. Her belief is that her full-time employment is likely to come to an end sometime this year. This is partly because positions have already been deleted at Sydney Institute where she works. Her position/classification does not currently appear in the award which was to commence in July 2013. I accept that there is considerable probability that her present employment will be affected by government restructure. It can be anticipated that although she has many years of experience obtaining alternative employment of a satisfactory kind at her age will not be easy. 63Her assets and liabilities. Marea's asset and liabilities statement as at the time of the trial was set out in an updating affidavit in November 2012 which I accept as accurate, subject to one matter. She estimates her assets now total between $1,000,000 and $1,002,034.67 and $1,104,934.67 and her liabilities total approximately $163,482.33. 64Marea's estimate of assets needs slight adjustment. She estimates that her one-half interest as tenant in common of the Double Bay property is valued between $850,000 and $1 million, representing the substantial part of her assets. Her other assets of significance are cash and a motor vehicle. The motor vehicle, a Mercedes Benz A160 she estimates has a trade-in value of between $5,000 and $6,7000 and a private sale value of between $7,700 and $9,400. In addition to that, she has savings accounts with the Commonwealth Bank for $2618.63, with the first State Super Accumulation Fund for $3738.97, and in a transition to retirement superannuation fund with a balance of $88,772.14. 65But the parties have agreed upon a valuation for the Double Bay property of each half share of the Double Bay property of $1.2 million. This means that the upper bound of the plaintiff's assets should be adjusted upwards by $200,000. In round numbers her net maximum net asset position is therefore about $1.3 million. But I accept her evidence that she has no other furniture, jewellery or personal effects of great value and that she has very little cash apart from the Double Bay property. 66Some $66,000 of Marea's $163,482.33 of liabilities are accounted for by four credit cards on which there are various outstanding balances, the maximum being is just under $15,000. Her principal liabilities are for legal fees in relation to these proceedings, together with an estimate of unbilled work in progress totalling $97,680.50. As the plaintiff is successful in these proceedings and her costs will be paid out of the estate, estate assets will be reduced by this amount but it will be correspondingly deleted from her list of liabilities. 67Annual Expenditures. The plaintiff has also provided an estimate of her annual expenditure. As with Rebecca and Benjamin's financial situation set out below, it is necessary to detail all of this expenditure. She has estimated her weekly expenditure at $2,667.75 and annual expenditure at $138,370. This of course is considerably in excess of her annual income of $72,592 to which she has returned in full time employment in the second half of 2012 at the Sydney Institute TAFE. She was criticised in cross-examination for the size of some of this expenditure. But there is objective evidence that the expenditure is taking place. The large debts on her credit cards, in excess of $60,000, support this. She says, and I accept, that she is partly making up the shortfall between expenditure and income in part from her superannuation retirement fund. But this level of expenditure is obviously unsustainable over the long term. A combination of a determination to reduce her expenditure, together with her children Michael and Kate reducing their dependence upon her, will no doubt bring this annual expenditure figure down. 68Finally, the plaintiff has adduced evidence about her expected future financial requirements. This may be conveniently summarised from her affidavit evidence in the form of a table. A fund for superannuation $200,000.00 A fund for contingencies $200,000.00 Sufficient to repay her liabilities $20,000.00 Support for Kate $25,000.00 Replacement kitchen $23,754.00 House painting $31,900.00 Floor polishing $5,776.10 House maintenance $18,225.00 Professional education $17,500.00 Holidays $15,000 per annum $000.00 Computer replacement $1,800.00 Replacement of household furniture $25,000.00 Chemist, medical $6,000 per annum $00.00 Total $568,55.10 69The plaintiff gives the following explanation of some of the larger items in the table. In summary she says funds for the support of her daughter Kate are required until she completed her university degree at the end of 2012. 70Marea says that further superannuation contributions are essential to fund her retirement after the contribution of $200,000. She also says she needs a fund for contingencies of $200,000. These estimates account for $400,000 or 70.3% of the total of her identified financial requirements for $568,955. 71A number of claims for the plaintiff's expenditure are related to dilapidation of the Double Bay property. The plaintiff says the current kitchen was installed in 1991 and is a state of disrepair. Putting forward quotations Marea says that the house was last painted in 1999 and needs repainting and the floors were last polished in 1991 and have worn through and need repolishing. Moreover, she says, general house maintenance is needed to prevent water leakage in the bathroom, rain leakage in the garage, pool maintenance to address subsidence of tiles, storm water run-off to the front of the house, faulty doors to the kitchen, dining area, and replacement of floorboards in the study - again supported by quotation evidence. 72Related to Marea's professional life, she says, that she needs to maintain professional currency and seeks to enrol at a masters of special education in 2012-2013 at a cost of $17,500. She also needs to replace her computer, an essential worktool, which she says will cost her post-tax $1800. 73Marea also says she was used to taking annual holidays with the deceased including to United States, England, Europe, Thailand, Queensland and parts of coastal New South Wales for which she claimed expenditure of $15,000 per annum. 74Apart from maintenance to household fixtures she seeks replacement of a 2004 Mercedes Benz motor vehicle which was sold before trial and had mechanical problems. And she seeks furniture replacement to the house. 75Finally, in the area of medical and dental expenses she has had back disc problems since 1986 and has diverticular disease which she believes may need surgery. She seeks annual provisions for gap medical expenses of $1500 per annum and $4300 for chemist, dental and optical and physiotherapy treatment and expenses. Rebecca and Benjamin - needs for capital and relationship with Ned 76In considering whether to make a family provision order and the nature of any such order, the Court may have regard to the matters set out in Succession Act s 60(2): cf Succession Act s 60(1). Among the matters which the Court may consider are "the nature and extent of any obligations or responsibilities owed by the deceased person to ... any beneficiary of the deceased person's estate": Succession Act s 60(2). In the present case to look at the "nature and extent of any obligations or responsibilities owed by the deceased" to the five beneficiaries named in his will it is necessary to assess their present and future needs for capital and their relationship with the deceased. This section undertakes that assessment with respect first to Rebecca and Benjamin and then the next section undertakes the same analysis with respect to Sally, Michael and Kate. 77Rebecca and Benjamin each has a more pressing and immediate need for capital. Indeed as analysis of their family balance sheets show they are relatively highly geared and would greatly benefit at this stage of their lives from the capital for which the deceased's will provides. They are both in their mid thirties with substantial debts which they have acquired while making their way in life, acquiring housing, and bringing up young families. The detail of their financial position is the following. 78Rebecca. First, Rebecca is 38 years old and married with two dependant children under the age of five. She is a full time homemaker and is not in paid employment outside the home. 79Rebecca and her husband Andrew were married in November 2007. He is a solicitor in Melbourne on a net annual salary of $132,172 per annum. They have total assets of $724,000 including a motor vehicle, house contents, IT equipment, cash in bank, jewellery and a motorcycle. Their liabilities are $645,354. Their substantial asset is a house in Brunswick worth $699,000. But their most substantial liability is a mortgage of $638,917 to Westpac over the Brunswick house. Thus, they have equity of only a little over $60,000 or 10% of the value of that house. 80Rebecca has also provided a full affidavit account of their joint monthly family expenses. It is not necessary to detail these here, but having reviewed them, in my view they are reasonable. As the balance of these reasons show, I have accepted Rebecca as a witness of truth and I accept the correctness of these figures. Their total monthly outgoings are $11,120. 81It can be seen from Rebecca's account of the family budget that she and her husband are barely breaking even financially. Their annual expenses $133,440 ($11,120 x 12) just exceed his net annual salary of $132,172. 82Their only other assets are superannuation, to which they do not have immediate access, her superannuation of $38,548 and his superannuation of $61,260. 83Apart from providing some capital to relieve their immediate financial needs, Rebecca and her husband need capital to improve their property and for their future family plans. I accept her evidence that their 3 bedroom and one bathroom Brunswick home has cracked internal walls that require repair, a kitchen and bathroom that require renovation, and that planned extensions to the house to make life more comfortable for their growing family are likely to cost in the order of $200,000. Their eight year old motor vehicle needs replacement, they can buy a family car for approximately $20,000. Rebecca and her husband made plans to enrol their children in private schools, when each commences year seven costing an estimated $120,000 per child for their secondary schooling. I accept her evidence on these matters. 84The picture presented by her evidence is that her capital needs are immediate and capital could be applied to number of pressing financial and non-financial needs to improve the way of life and comfort of herself and her husband. 85Benjamin. The picture presented by Benjamin's financial needs is not dissimilar to that of his sister. Benjamin is 36 years old married with one son age almost two. He and his wife Trichelle were married in 2008. 86Benjamin's work history is that after leaving school in Canberra in 1974 he joined the Royal Australian Navy as a general entry sailor. He remained in the Navy until 2000 when he gained employment as a training consultant. At the time of the trial he was employed on a contractual basis as a training manager with the ANZ Bank. 87Like his sister Rebecca, Benjamin is in a highly geared financial position. He and his wife have total assets of $1,335,508 and total liabilities of $1,172,590. Although he and his wife's gross asset position is greater than that of Rebecca and her husband their net position is little better. Their real estate consists of a house in Richmond, where they live and an investment property in St Kilda. These are worth respectively $750,000 (Richmond) and $450,000 (St Kilda), giving a total gross value of real estate of $1.2 million. Their combined mortgage liabilities are $1,076,000. Thus, they have combined equity of about $125,000 in these properties, which represents (like the position of Rebecca and her husband) approximately only 10% of the gross value of their real estate. 88The balance of Benjamin and Trichelle's assets are a motor vehicle, cash at bank and household contents and they have other personal liabilities apart from their mortgage to constitute their total liabilities. In addition to these jointly owned assets Trichelle has jewellery of $20,000, and he has superannuation of $57,604 and she superannuation of $28,943. 89Benjamin and Trichelle's monthly domestic cash flow is tight, but not quite as tight as that of his sister and her husband. I accept his evidence about his family expenditure of $3,036 per week, or approximately $158,000 per year. This is partly relived by gross monthly income of $1,877.60 from their investment property in St Kilda, in addition to Benjamin's salary. But their monthly expenditure is high because it incudes mortgage repayments of almost $1,300. No doubt some of these mortgage will be tax deductible. 90I accept Benjamin's evidence that he would be greatly assisted by the inheritance that he would receive under the deceased's will. He and Trichelle have plans to move out of their current small two bedroom house into a larger family home. They are planning to have a second child and if they do they will soon run out of room in their current house. Moreover, they want to plan for their children's education and university expenses, allowing if possible Trichelle to stay at home as the primary care giver for their children. 91An added complication to Benjamin's life is that, although currently well paid his work is on a contract basis, he is concerned about recent staff reductions in the banking industry, indicating real employment risks for his skills in the future. 92After their earliest years, it would always have been difficult for the deceased to maintain a relationship with Rebecca and Benjamin. When Jennifer and the deceased were divorced in 1977 Rebecca was only about three years of age, and Benjamin barely one. After the divorce Jennifer had custody of Rebecca and Benjamin with the deceased having child access every second weekend and during some of the school holidays. I accept Rebecca's evidence of Ned's visits to Jennifer's home in Canberra where they lived. He brought gifts and attended their sports carnivals and school events. She was old enough to remember all this. 93But Marea and Ned moved to Sydney from Canberra in 1983, when Rebecca was nine and Benjamin was seven. Rebecca recalls, and I accept, that she was upset about him moving away. During their school years Rebecca and Benjamin continued to visit their father in Sydney. There is no doubt Marea cooperated with and facilitated these visits, which generally coincided with the children's school holidays. As they got older the visits became annual but were bridged in between by occasional telephone contact. 94In 1997 Rebecca moved to Melbourne, at the age of 23, to work and study. The deceased financially assisted her move to Melbourne with a gift of $1,000. The deceased attended her graduation ceremony in Melbourne in 2001 and gave her a congratulatory gift of some family jewellery. 95Rebecca moved to Sydney in March 2003 to seek employment. There was contested evidence about whether or not Rebecca was made to feel welcome in this period at Marea's house. The detail of the contest need not be covered. But on this issue I generally prefer Rebecca's evidence over Marea's evidence. Rebecca's version seemed more consistent with the parties as I saw them in the witness box and with the underlying probabilities. The deceased did want Rebecca to come and stay with him. But he expressed sadness and disappointment to Rebecca about Marea "especially when she opens the doors to her own family for long periods of time but resents my own children coming to stay". In my view Marea did send spoken and unspoken signals to Ned, that Rebecca coming to stay would be difficult. Rebecca said, and I accept, that as a result of what her father said to her she did not feel welcome at the Double Bay home and therefore visited there infrequently. 96Rebecca moved back to Melbourne and was married there in March 2005. The deceased attended Rebecca's wedding in Melbourne, walked her down the aisle, subsidised about quarter of the wedding expenses - about $7,000 - with Jennifer paying another quarter. Marea, Sally, Michael and Kate all attended. 97But after their honeymoon Andrew and Rebecca returned to Sydney. Rebecca asked to stay for a short time at the Double Bay house while they looked for a rental flat of their own. 98Marea seemed concerned that this would become a long term stay. I accept Rebecca's evidence that they were only offered a carport as the deceased explained, in evidence that I accept, "it's okay but Marea will not be pleased. You will have to stay in the carport because the spare room (the guest room) is now my bedroom. I have moved all my clothes and personal things into it." 99Andrew and Rebecca stayed there for a period but Marea put a limit upon the length of their stay at the house. Marea's position on this, looking back, was not unreasonable. But it does indicate a lack of flexibility in dealing with Rebecca and Benjamin. Other conversations occurred between Rebecca and the deceased at this time and before his death. But they are more relevant to the nature of the relationship between Marea and the deceased and the provision he made in his will, rather than just a relationship between the deceased and Rebecca. 100Benjamin also maintained a relationship with his father. I accept his evidence that he and his father kept in telephone contact for birthdays and at Christmas. In the six years he was in the navy he was partly based at Garden Island where Benjamin was able to show his father around from time to time. For the latter years of the deceased's life Benjamin was living in Melbourne. I accept his evidence that Benjamin stayed in contact with his father by regular SMS message and by visiting him in Sydney when he was in Australia from Thailand for visits or treatment. The relationship between father and eldest son was clearly maintained on both sides. Sally, Michael and Kate - financial position and relationship with Ned 101Although Sally, Michael and Kate do not have needs for capital quite as immediate as those of Rebecca and Benjamin, it can be anticipated that their needs will soon rise. The immediacy of their needs is age-related - Sally is 29, Michael is 27 and Kate is 22. 102Sally presently lives with her fiancée and has no dependents. She and her fiancée plan to marry in 2013. Sally is employed full time as an account coordinator on annual net income of approximately $41,132. Her fiancée's annual net income as a digital producer is $37,200. Sally's estimated annual expenses are $30,222. Sally and her fiancée have savings of approximately $13,000 but few other assets of market value. 103Michael is 26 years old, is single and has no dependents. He is presently employed as a sales representative on a net annual income of approximately $55,068, his estimated net annual expense are $55,432. Michael has been able to accumulate some assets from his earnings. He has: shares with an estimated value of $23,840, care with an estimated value of $35,000, case in the bank of approximately $30,532, and other personal effects. He has accumulated superannuation of approximately $8,000. His principal liabilities are a loan for $40,820 for the acquisition of the care and about $2,000 of other minor liabilities. If he soon takes on family responsibilities his needs for capital will undoubtedly rise. 104Kate is single and with no dependents. At the time of the hearing she was anticipating finishing her teaching degree at the end of 2012 and to commence work as a school teacher in 2013. Again, like her siblings, if and when she takes on family responsibilities, her needs for capital will rise as well. 105Michael and Kate presently live at home with Marea. Kate is more dependent upon her financially than Michael due to his greater income and her youth and student status. 106I find that each of Sally, Michael and Kate had a reasonably good relationship with their father, despite the tensions that clearly grew between him and Marea as they were growing into adulthood. There is no doubt, as the other evidence shows, that those tensions were real, but they did not appear to spill over and badly affect the relationship between the deceased and his children in Marea's household. There were moments of annoyance about Michael that the deceased expressed to Rebecca in the last years of his life, but in my view he still maintained a good relationship with them all. 107I accept Rebecca's evidence of the deceased's statements to a number of friends and family members that he had not been well treated by his children with Marea. It is quite understandable that he would feel a sense of distance from them and tensions would arise between them and him from time to time, because of the badly fractured state of his relationship with Marea. But the will provides the best evidence that those tensions did not overwhelm the relationship between the deceased and Sally, Michael and Kate. In the will he recognised his three children with Marea equally with Rebecca and Benjamin. 108Moreover, the course of written and oral communications, parts of which are set out above, shows that the deceased thought that Marea was the reason he had been deprived of proper contact with and had an impaired relationship with his and her children in the later years of his life. For example, he stated that Marea had denied him entry into the house when he was in Sydney for medical treatment. I had an opportunity to assess the plaintiff in the witness box. She denied such conduct. But in my view she made the deceased feel unwelcome in the Double Bay house, perhaps not by express statement but nevertheless by her attitude and conduct. He had not behaved well towards her. Her attitude was well justified but it was an attitude that she held and conveyed. It had the indirect effect of preventing the deceased from seeing his children. Adequate Provision 109The final question is whether an order for provision should be made in Marea's favour. The test of whether provision should be made is set out in Succession Act s 59(1)(c):- (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: ... (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. 110There are many judicial statements summarising the operation of this statutory provision that is said to be a two-step process of assessment. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- 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 Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the 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 Leeder9, 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. 111Whether the two-step test operates with the same full vigour in the current legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26] to [29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made for Marea. It has not, for the reasons explained below. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations. 112Other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides: [153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." ... [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." ... [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 113That then leaves the Court to decide what is appropriate provision for Marea in this case. Consideration 114In final submission the parties contested a number of clearly articulated legal and factual issues, and then accepted that after those issues were determined that the matter was ultimately one for the Court's discretionary consideration. The judicial difficulty faced in considering this case and ones like it has been aptly expressed by Allsop P, as he then was in Andrew v Andrew [2012] NSWCA 308 at [1]: This is a difficult case. The difficulty arises from the need to apply a statutory test couched in evaluative language embodying human values and norms of conduct deeply personal to those involved and often incapable of clear expression. The human expression of will concerning the disposition of property flowing from considerations of emotion (including love and disappointment), reason and societal and family obligation cannot often be fully understood. 115The approach taken in this consideration is to address the specific issues raised by the parties and then give the Court's reasons for applying the statutory test in this case. 116First the parties debated the elusive terms in the will that Marea had "already been generously provided for and financial settlement has already been made". The will was a holograph document and there was no evidence that the deceased had legal advice before executing it in the presence of his social acquaintances. Thus I infer that the deceased was not using terms such as "financial settlement" in any considered legal sense on the basis of proper legal advice. The term represents his own understanding of what had passed between himself and Marea up to that time. Marea said she had not received any financial settlement. Certainly there was no evidence of any binding legal settlement which would comply with the provisions of the Family Law Act. The executrix argues that it is clear that the deceased was referring to the moneys Marea had received and had the benefit of from the transfer of the Elizabeth Bay property and its subsequent sale as a "financial settlement". 117In my view Ms Bridger's submission is well made on this issue. This Elizabeth Bay property is what the deceased must have been referring to. But the problem is that the deceased was very embittered about this transaction and I infer somewhat deluded about what had happened to the money derived from it. There are many tell-tale signs of this in the evidence, which has already been dealt with in relation to the period 1997-2002 above. In my view the deceased was obsessed and embittered by this transaction, because he did not derive anything out of it for himself. But the reality was that Marea did spent the money on joint family commitments as I have found, and did not appropriate the funds for herself. To that extent the deceased was quite wrong. Moreover, the "financial settlement" could not have been a reference to his severance of the joint tenancy. The will was made in March 2010, many months before the joint tenancy was severed in September 2010. Marea submits that the deceased had a fond hope of there being a "financial settlement", but I prefer the executrix's hypothesis. But in the end it does not matter because I do not accept the executrix's case that Marea appropriated the Elizabeth Bay property proceeds solely for her own benefit. 118Next Marea submits she is the category of spouse referred to in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 in which Powell J stated a broad general rule that in the absence of special circumstances the testator's duty to his widow is "to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provided her with a fund to enable her to meet any unforseen circumstances". But the executrix says that in a case such as this where the parties had separated two and a half years before his death in circumstances of acrimony and where negotiations for property settlement were taking place, that Luciano v Rosenblum principles do not apply. 119The authorities on this kind of situation make a range of observations which are all very dependent upon circumstances. The bond of matrimony prima facie give rise to a testamentary obligation and it cannot be assumed that the obligation will come to an end upon the parties separating, without them being divorced: Re Clissold (decd) & Testator's Family Maintenance Act [1970] 2 NSWR 619 at 621 and Kalmar v Kalmar [2006] NSWSC 437 per White J and Palmer v Dolman [2005] NSWCA 361 at [118]. But a testator's obligation to a spouse may be regarded as discharged by affecting an amicable division of assets prior death thereby limiting any further duty to the surviving spouse: see the discussion in Scott v Scott [2009] NSWSC 567, per Ward J at [136] to [142] and Sturits v Nicholls (No 2) [2011] NSWSC 865. 120This case in my view lies somewhere Luciano v Rosenblum and Scott v Scott. I do not regard unilateral severance of the joint tenancy by the deceased's correspondence with Marea as an amicable and reasonable settlement of his obligations to her. I accept her evidence as to her extensive home making activities and that throughout the marriage she brought a regular and substantial income into the household which enabled the children to be well educated and for the family to have many of life's comforts; so, receiving half of Double Bay property was not necessarily a fair settlement for her. It was certainly neither consensual nor amicable. The solicitors' correspondence after their separation indicated that such a result was certainly not the limit of her expectations. 121In my view the appropriate result here is not to be measured solely on Luciano v Rosenblum principles. Marea has in my view been left without adequate provision. Unless the will is changed the Double Bay property will need to be sold. The executrix has adduced evidence that she could use the proceeds to buy a comfortable apartment in the same area and still have funds left over. But that case does not take proper account of the fact that with her two younger children still making use of the Double Bay property, with her own attachment to the place, and with the need for continuity and security for her, requiring the sale of the property just now would not be to make proper provision for her. 122On the other hand, given that she was on the threshold of divorce from the deceased, on any view of the situation, it would not be realistic in addition to providing her with the security of the home to also ensure that she has an income sufficient to permit her to live in the style to which she was accustomed, or to provide her with a fund to enable her to meet any unforseen circumstances. Consistent with this reasoning, the approach that I take in this case is therefore to order sufficient provision to allow her to keep the Double Bay property, and give her a small additional sum to meet her short to medium term needs 123The executrix makes the related point that the Double Bay property is presently beyond Marea's needs. The defendant's case is that the house has five bedrooms, two bathrooms, is of two storeys with a pool and Marea will be there on her own in three to five years. But this is a matter for Marea for herself to decide, it is not obvious on the evidence of the present usage by her children that it is already surplus to her needs. If and when it does become surplus to her needs she can sell it to provide a fund for her superannuation or future income and use the rest for smaller scale accommodation. Giving her the whole house now allows her this kind of flexibility, and which reduces the argument for her to receive much more in cash. She struck the Court as a resourceful and intelligent woman who would be able to generate some reasonable income for herself in the short to medium term. 124The deceased's will treats all his children equally. Both sides in these proceedings more or less maintain the desirability of treating all the children equally if possible, if orders were to be made in Marea's favour. Indeed, Marea tendered a position statement on behalf of her three children: Sally, Michael and Kate (Exhibit C) which expressed their view that whether or not their mother's claim was successful the principle of equal division should not be disturbed. But both parties also accepted in submissions that it was a matter for the Court that if the only way that proper provision could be made for Marea out of the estate meant disturbing the principle of quality, then that may have to happen. 125I have reached the view that the of equality which the deceased intended must be disturbed in this case. These reasons have already examined the comparative immediate needs for capital of Rebecca and Benjamin on the one hand and Sally, Michael and Kate on the other. Were the plaintiff's case to fail, if the beneficiaries are to be treated equally, they would all receive a substantial sum. Once the costs of the parties' of these proceedings are deducted and other contingencies of administration are allowed for, it is safe to assume that the deceased's distributable estate (including the agreed half interest in the Double Bay property of $1.2 million) is very close $1.8 million. Divided five ways, that would result in a distribution of about $360,000 per beneficiary. But I have decided for the reasons given above that the plaintiff should have the other half of the Double Bay property. It is also appropriate in my view to provide her with a small fund of about $100,000 to meet contingencies associated with that property and to meet her short to medium term financial needs. 126But in my view once the balance which is left for distribution is $500,000 ($1.8 million - $1.3 million), equality between the beneficiaries must be sacrificed. The Court has the power to make adjusting orders to the interests of other beneficiaries when an order for provision is made out of the deceased's estate: Succession Act s 66. Marea presently benefits all her three children equally under her own will. No party submitted that I could not take that into account in assessing whether equality should be departed from. 127In my view I should depart from equality. It is to be expected that Marea will continue to maintain her testamentary intentions with respect to her children. The evidence was that her relationship with them all was good. In any event they have their own rights under the Succession Act. And in the short term as she has the Double Bay property under the orders I propose to make, they will have a degree of security in knowing that they always have somewhere to go, to move back home, should they fall on unexpected financial hardship. This seems to be a side benefit of ensuring that Marea is able to stay in the Double Bay property by making provision of the other half of it for her. 128How should the Court depart from principle of equality? In my view the financial needs of Rebecca and Benjamin are each sufficiently great to warrant them being given a legacy of $175,000, in the exercise of the Court's discretion. This leaves $150,000 which should be divided three ways among the three beneficiaries. But it seems to me sufficient that they each be given an equal share of residue of the estate after the legacies to each of Benjamin and Rebecca. They may well end up deriving somewhat more than $50,000 each, if efficient estate administration means that there is more than $1.8 million left to distribute. The Court's orders will therefore reflect these provisions. Conclusions and Orders 129The Court orders that: (1)In lieu of the provisions of the will of the late Ned William Jordan dated 31 March 2010 that it be provided: (a)There be given to the plaintiff the deceased's one half share as tenant-in-common in the Double Bay property (as defined in these reasons), (b)A legacy of $100,000 to the plaintiff, (c)A legacy of $175,000 to the defendant, (d)A legacy of $175,000 to Benjamin Jordan, (e)And the residue of the estate to be divided equally among the deceased's and the plaintiff's three children, Sally, Michael and Kate Jordan-Watt. 130Upon delivery of judgment the Court proposed the following further costs orders: (a)Order that the defendant's costs of these proceedings be paid out of the deceased's estate on the indemnity basis. (b)Order that the plaintiff's costs of these proceedings be paid out of the deceased's estate. 131But application was made orally for a hearing for a special costs order. So instead the Court made the following additional directions and orders: (2)Direct the parties to file any written submissions and attached evidence in relation to any claimed special order as to costs by 4.00pm on Wednesday 21 August 2013. (3)List the proceedings for further argument as to costs at 9.30am on Thursday 22 August 2013. ********** I certify that this and the preceding pages are a true copy of the reasons for judgment of Justice Slattery delivered on Associate.................................. 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 August 2013