Supreme Court New South Wales Medium Neutral Citation: Andrew Robert Stuart Johnson v Karen Elizabeth Smith and David Charles Johnson [2014] NSWSC 1682 Hearing dates: 8, 9, 10 September 2014 Decision date: 27 November 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Additional provision ordered Catchwords: FAMILY PROVISION AND MAINTENANCE - Claim against mother's estate by adult son who had been dependent on parents his entire life - No issue of principle - Succession Act 2006, ss 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Frances Madge Johnson by her tutor Karen Elisabeth Smith v Andrew Robert Stuart Johnson [2009] NSWSC 503 Johnson v NSW Guardianship Tribunal and Ors [2009] NSWSC 664 Johnson v Smith [2010] NSWSC 125 Johnson v Smith [2010] NSWCA 306 Johnson v Smith & Anor [2011] HCASL 53 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Smith v Johnson [2008] NSWSC 923 Verzar v Verzar [2014] NSWCA 45 Jacqueline May Isabella West v John Alexander Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Andrew Robert Stuart Johnson (Plaintiff) Karen Elizabeth Smith (First Defendant) David Charles Johnson (Second Defendant) Representation: Counsel: C.M. Lawrence(Plaintiff) L.J. Ellison SC (Defendant) Solicitors: Mark Rahme & Associates (Plaintiff) Bognar Legal (Defendants) File Number(s): 2013/274991 Publication restriction: No Judgment Summary 1The plaintiff is Andrew Johnson, the youngest child of the late Mrs Frances Johnson. Mrs Johnson died on 12 September 2012 at the age of 87. Without disrespect, I shall refer to the plaintiff, his siblings and other family members by their given names. 2On 5 January 1962 Mrs Johnson made her will. She appointed her husband, Mr Andrew Johnson Snr, sole executor and left him her whole estate. Because Mr Andrew Johnson Snr predeceased his wife, the substitutionary gift in Mrs Johnson's will come into effect. That left her whole estate to Andrew and his siblings Karen and David in equal shares. The three adult children are the only eligible beneficiaries in the estate. 3The sworn value of Mrs Johnson's estate was $2,300,000. There has been an interim equal distribution to each of the beneficiaries totalling $1,219,000. Andrew did not actually receive any cash from that distribution because his share was applied to satisfy debts he owed the estate. After allowing for the administrators' costs of these proceedings and other expenses, approximately $768,000 or $884,000 (depending on whether Andrew's costs of these proceedings are paid from the estate) remains to be distributed to each of the beneficiaries. 4On 21 February 2013, Letters of Administration with the will annexed were granted to the defendants, Karen and David. By summons filed on 11 September 2013, Andrew applies for provision out of Mrs Johnson's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr C.M. Lawrence of Counsel appeared for Andrew. Mr L.J. Ellison of Senior Counsel appeared for Karen and David. 5With the exception of a few months, Andrew lived his entire life with his parents and depended upon them. He provided them, especially Mrs Johnson, with some assistance in their later years. He has only a few thousand dollars to his name, no tertiary qualifications, no superannuation, no earning capacity and, owing to what has been diagnosed as a permanent psychiatric impairment, no real prospects of finding employment. 6The Court is satisfied that Andrew is entitled to an order for additional provision so that he receives an actual "in hand" payment of $500,000 from Mrs Johnson's estate. The Act 7Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to "be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown". 8Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are: 59(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. 59(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. ... 60(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. 60(2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, ... (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, ... (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, ... (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered. 9In Jacqueline May Isabella West v John Alexander Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case. 10By reference to the language of the Act, the questions and issues which the Court must take into account are: (1)Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation. (2)If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))? (3)If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? (4)If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person). (5)If the answer to question (4) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")? (6)Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? (7)If the answer to question (6) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened. (8)Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)). (9)Having answered question (8), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)). (10)Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. (11)Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred. 11Having identified what I consider to be the correct approach under the Act to an application of this kind, I will next set out the facts (which, unless I have recorded otherwise, were not in dispute), dealing first with the regrettable history of family litigation in which Andrew has played a key role. Andrew's history of litigation 12Because of its potential importance for the outcome of these proceedings, it is convenient to deal first with the history of litigation involving Andrew and his family. That litigation had its genesis in Mrs Johnson's declining health and her ultimate transfer to hospital on 5 July 2007, the day Mr Andrew Johnson Snr died, and later into nursing home care. 13Andrew was vehemently opposed to his mother going into care. He regarded himself as being able to continue to look after her. While undoubtedly motivated by what he thought was in Mrs Johnson's best interests, Andrew embarked upon a single minded, and perhaps a more accurate description is obsessive, campaign to have his mother restored to his care. Andrew's determination in this regard, including aspects of his conduct prior to Mrs Johnson's death, has claimed the attention of the courts on several occasions and had significant financial consequences for both Andrew and Mrs Johnson's estate. 14Mr Andrew Johnson Snr died intestate. On 12 March 2008 Andrew filed a caveat demanding that no grant in relation to his father's estate be made without notice to him. Karen, who had applied for Letters of Administration of her late father's estate, brought a motion in this Court for Andrew's caveat to cease to have effect. In Smith v Johnson [2008] NSWSC 923 Young CJ in Eq (as his Honour then was) did not accept Andrew's submission that the Public Trustee should be given the grant. His Honour resolved the dispute between David and Karen by recommending to the Registrar that administration of their late father's estate be granted to Karen. 15On 17 September 2007 the Guardianship Tribunal had resolved separate applications made by Andrew and Karen by making orders appointing the Public Guardian as Mrs Johnson's guardian and Karen as Mrs Johnson's financial manager. By summons filed on 28 May 2009 in this Court, Andrew sought orders to the effect that the Protective Commissioner be appointed as financial manager of his mother's affairs or, alternatively, that he (Andrew) be appointed and that he also be appointed as his mother's guardian. 16In Johnson v NSW Guardianship Tribunal & Ors [2009] NSWSC 664, Palmer J declined to set aside the Guardianship Tribunal's orders. In doing so his Honour said: 5 The essence of Mr Johnson's appeal is that he says that he would be better able to care for his mother and to manage her financial affairs than is Mrs Smith, as financial manager and the Public Guardian as Mrs Johnson's guardian. Mrs Johnson unquestionably is suffering from a severe dementia and requires a high degree of care. She is presently in a nursing home. 6 Mr Johnson does not say that Mrs Johnson is being mistreated in the nursing home. He suggests that he would like to investigate the possibility to bringing his mother home to live with him and that he would look after her, if he were appointed her guardian and her financial manager. However, he recognises that that is a matter that he would have to investigate with the benefit of professional advice and assistance. No advice or assistance presently suggests that Mrs Johnson would be better off in the care of Mr Johnson, being looked after by him in his home. 7 Mr Johnson says that he would be better able to manage the financial affairs of his mother than Mrs Smith. When I asked Mr Johnson whether he had complained of any mismanagement by Mrs Smith of his mother's financial affairs since Mrs Smith's appointment, he pointed only to one circumstance and that is the commencement of proceedings by Mrs Smith, as tutor to Mrs Johnson, against himself for recovery of certain payments made out of the funds of Mrs Johnson to Mr Johnson in May 2007. Those proceedings were heard and determined by Forster J on 9 June 2000: Johnson v Johnson [2009] NSWSC 503. 8 In those proceedings Mrs Smith, as tutor, sought an order that Mr Johnson repay to Mrs Johnson's estate a sum in excess of $500,000 which had been transferred from Mrs Johnson's accounts to the benefit of Mr Johnson in May 2007. The basis of the application was that Mrs Johnson was, at the time, either incapable of making any decision to that effect or else that Mr Johnson had procured the payment unconscionably or by undue influence. His Honour upheld the claim that the payments had been procured unconscionably and ordered repayment of the money. 9 Mr Johnson has informed me that he intends to appeal. However, at the moment the fact is that Mrs Smith has successfully prosecuted a claim for the benefit of her mother's estate against Mr Johnson. I cannot find that her doing so has, in itself, been an act of financial mismanagement. On the contrary, as matters presently stand, as her claim was upheld by the Court it was proper to bring it. No other evidence of financial mismanagement on the part of Mrs Smith appears. 17In the proceedings referred to by Palmer J, being Frances Madge Johnson by her tutor Karen Elisabeth Smith v Andrew Robert Stuart Johnson [2009] NSWSC 503, Forster J ultimately ordered Andrew to repay $540,000 which had been transferred by Mrs Johnson to Andrew and his father. His Honour applied the principles of unconscionability and undue influence. In doing so his Honour found: 95 In my view, the facts in the present case are clearly such as to satisfy the requirements of the application of the principle. The plaintiff obtained no benefit from the transaction under challenge, it being the voluntary disposition by her of a substantial sum of $540,000. No contractual or other obligations were assumed by the recipients, for example to utilise the funds for her benefit. It might have been the subjective intention of Mr Johnson and the defendant to ensure that the plaintiff was well looked after in her old age, but no enforceable legal obligation arose out of the transaction. Indeed, as events subsequently unfolded, some of those funds have been used by the defendant for his own private purposes. It does not assist the defendant to say that the plaintiff always wanted him looked after. From the plaintiff's point of view, this was a totally disadvantageous transaction. 96 It is also quite clear in light of the plaintiff's mental condition that she was a person who was at a special disadvantage vis-a-vis Mr Johnson and the defendant. No attempt was made to provide her with independent advice of a legal, financial or of any other nature. Nor were any steps taken to obtain the assistance of any health care professional or government bodies. Indeed, I find that her purpose of the transaction and its timing was precisely to ensure that her funds were removed before the Guardianship Tribunal made orders dealing with the control of the plaintiff's financial affairs. 97 Not to put the matter too finely, the intention of the defendant and his late father was to take financial advantage of the plaintiff by procuring her to sign the cheques that resulted in the transfer to them of the $540,000. I do not impute immoral or dishonest motives either to the defendant or to his late father. Undoubtedly in their own minds they were doing what they considered was beneficial not only for themselves but also for the plaintiff. However, the subjective motivation of the defendant and his late father are not the determinative factors here. I must consider the matter from the point of view of the plaintiff who was detrimentally affected as a result. 18Andrew unsuccessfully appealed Forster J's decision to the Court of Appeal: Johnson v Smith [2010] NSWCA 306. Having again failed there, Andrew made an unsuccessful application for special leave to appeal to the High Court of Australia: Johnson v Smith & Anor [2011] HCASL 53. 19Also in 2009 Andrew applied for family provision out of the estate of his late father. The actual size of the estate available for distribution was quite small because the late Mr Andrew Johnson Snr's principal asset was his interest as a joint tenant with Mrs Johnson in their matrimonial home in Balfour St, Lindfield (the " Family Home"), which along with some other cash assets had passed to Mrs Johnson by survivorship. 20Andrew's application for provision from his late father's estate was determined by Macready AsJ in Johnson v Smith [2010] NSWSC 125. The parts of his Honour's judgment which are relevant for present purposes are: 8 The deceased's widow, by her tutor, Karen Smith, commenced proceedings by way of statement of claim in the Equity Division being proceedings 2304 of 2008. The defendant was the plaintiff in the proceedings which was for the recovery of amounts said to have been paid by the widow on 17 May 2007 while she was allegedly incapacitated. There was a cheque for $270,000 drawn in favour of the Andrew Johnson and the deceased and another cheque for $270,000 drawn in favour Andrew Johnson. These funds came from some property which had been sold by the deceased's widow. 9 The matter was heard by Forster J in this Court and he gave judgment on 9 June 2009. His Honour made orders for the return of funds and gave judgment for Frances Madge Johnson by her tutor Karen Elizabeth Smith in the sum of $100,055.18 against Andrew Johnson. There were orders for costs against Andrew Johnson. 10 There has been an appeal by Andrew Johnson to the Court of Appeal. As submissions have not been made by Andrew Johnson the appeal has not been fixed for hearing. ... 38 The plaintiff has some obvious needs if the house is sold. One is for accommodation and the other is to meet his present liabilities. His accommodation can either be in rented premises or in some other premises which may be purchased for him. Unfortunately, the plaintiff has not put forward any evidence of the cost of alternative accommodation and instead he focused on the case which he wished to propound in these proceedings. In these circumstances the Court can only provide some capital sum which might assist him with accommodation by way of rented premises. When considering an appropriate amount the fact that he will inherit substantial funds on the death of his mother should be taken into account. 39 In the circumstances an award in favour of the plaintiff is appropriate. 40 It will be necessary to designate property as notional estate to meet any order. ... 43 I think it is appropriate that the plaintiff receive a legacy of $400,000 out of the notional estate being property of his mother. A sum of up to $200,000 of this may be set off against the amounts he may owe to his mother and the balance is to be paid to the plaintiff. 44 The defendant's costs are to come out of the remaining actual estate. 21In Re Will of Jane [2011] NSWSC 624 and Re Will of Jane (No 2) [2011] NSWSC 883, Hallen AsJ (as his Honour then was) dismissed, with costs, an application by Andrew for the making of a statutory will for his mother. His Honour described Andrew's case in the first of those proceedings to be: "15. In broad summary, the basis of [Andrew's] claim seems to be that [Mrs Johnson] would be reasonably likely to make a new will in the form proposed, because each of [Karen and David] has engaged in what he described as "reprehensible conduct"; that [Karen and David] each has no "need" that is not of her, or his, own making; and that [he, Andrew] was, and is, a dutiful son who has made significant sacrifices [in] helping his parents. ..." 22Karen had to commence eviction proceedings against Andrew, which were subsequently discontinued after Andrew finally left the Family Home in May 2011. Attempts to negotiate provision of alternative accommodation for Andrew were unsuccessful. 23The result of the costs orders made against Andrew in the various proceedings to which I have referred was that Andrew was indebted to Mrs Johnson's estate for $480,305.08 plus interest. The debt was repaid out of an interim distribution from Mrs Johnson's estate made on 28 November 2013 (see further paragraph [26] below) and an offset of the balance of funds owing to Andrew from the family provision order made by Macready AsJ. 24In practical terms, the litigation which I have set out above, all of which was either initiated by Andrew or taken as a consequence of his conduct, resulted in a diminution in the size of Mrs Johnson's estate to the extent of any irrecoverable costs in relation to the litigation and the various costs assessments (including any difference between solicitor/client and party/party costs). Because it was applied to reduce his debt to the estate, Andrew's cash position was not improved by the interim distribution. Furthermore, rather than applying what funds he did receive from his family provision action against his father's estate towards the purposes identified by Macready AsJ (especially accommodation), Andrew conceded that he made a deliberate decision to expend more than half of those funds to pay for lawyers in subsequent proceedings, leaving himself with a small amount of capital which he has now almost completely expended on ordinary living expenses. Finally, at the time of the hearing of these proceedings, Andrew remained indebted to his mother's estate in respect of interest in the sum of approximately $31,000. The estate 25The sworn value of the estate was $2,300,000, comprising primarily various term deposits (the Family Home having been sold four years after Mrs Johnson had moved to a nursing home), shares and costs orders against Andrew. The costs orders were then estimated (because not yet assessed) at approximately $548,000. 26As at the date of the hearing before me a number of liabilities had been paid. Furthermore, on 28 November 2013 there had been an interim distribution to the three beneficiaries totalling $1,219,000. By agreement, Andrew's share of that distribution was offset against his costs liability to the estate so that he received no cash, but his indebtedness to the estate was significantly reduced. 27The uncontradicted evidence of the value of the balance of the estate at the time of the hearing was that it comprised approximately $877,000 cash, $48,000 in shares and $31,000 still owed to the estate by Andrew. Some small adjustments for tax both up and down may yet occur. Ignoring that possibility, the evidence gave an approximate current value of the estate of $956,000. From this must be deducted costs to be paid by the estate in respect of the hearing of approximately $72,000 (noting this estimate assumed a four day hearing when only three were in fact required). If no additional provision was made for Andrew and there was no costs order in his favour, the remaining distribution to him would therefore be a cash amount of approximately $294,000 (assuming Andrew paid his remaining debt to the estate). 28Andrew's solicitor/client costs of these proceedings are approximately $155,000 (again slightly inflated by an estimate for a four day hearing). If both the estate's and Andrew's costs (on the indemnity and ordinary basis respectively) are deducted, there is a distributable amount of approximately $768,000. This gives Andrew a share of $256,000 (again assuming no extra provision is ordered and Andrew paid his remaining debt to the estate). The plaintiff 29Andrew was born in 1962. He gave evidence that he "froze" in his HSC on both occasions he sought to complete that qualification but succeeded on his second attempt. With no disrespect to Andrew and the extensive evidence he prepared both himself and with his legal advisers, it is unnecessary for me to recite the details of his life since then, because what is relevant to these proceedings can be summarised in the following seven points. 30First, Andrew has never been able to hold a job for more than a few months, a year at most. None of his own business ventures (all in the area of information technology) has succeeded, notwithstanding advances from Mrs Johnson. While there was some doubt about the precise figure, Andrew accepted in cross-examination that he and his businesses had received "well over" $300,000 from his parents. Furthermore, in 1999 Mrs Johnson and her husband mortgaged their home to guarantee a loan for Andrew's business. They eventually had to sell their then Lindfield home and move to the Family Home to discharge that mortgage. 31Andrew has not had any form of gainful employment since 2000. His history makes it very clear that he has been dogged by personality and psychiatric difficulties that have manifested themselves with varying degrees of severity over his life. However, at all times they have been sufficiently serious to impair his capacity to "get on" in adult life. 32Second, with the exception of a few months when he briefly held a job in Melbourne, Andrew always lived in with his parents. He was never requested to pay rent or contribute to household expenses and he never did so voluntarily. His parents met nearly all of his living expenses his entire life but did not provide him with discretionary spending money. The Court accepts Karen's evidence that, while Andrew's parents at various times hoped Andrew would leave, they became "resigned" to the fact that that would not happen. After his father's death in 2007 he continued to live in the Family Home rent free until 2011. He also had the benefit of his late father's car until the registration lapsed. 33Third, as his parents grew older Andrew helped around the house to some extent. As his mother's mental and physical health noticeably declined from about 2004, he became her major, if not the sole, carer. From 2006 he received a Centrelink carer's allowance in respect of that role. I say "to some extent" because the Court accepts Karen's evidence that Andrew was not particularly effective or efficient at keeping the Family Home clean and in good order. 34Fourth, while Andrew contended otherwise, it is too simplistic to conclude that Andrew "gave up" an independent life to care for his parents. While what he did reflects well on him, it was the result of both necessity and agreement: necessity because his own difficulties meant that his capacity to live a successful, independent adult life were impaired; agreement because the necessity to which I have just referred dictated the logic of the position that he remain at home to care for his parents. 35Fifth, his own view of his role as carer for his mother was, as I have said in paragraph [13] above single-minded to the point of obsessive, resulting in most of the litigation referred to in paragraphs [14] to [21] above. Extracts from Andrew's own affidavit evidence clearly indicate how he perceived his position (affidavit of 4 October 2013): 83. Since 2001 my main daily activity when not helping my parents or locked in legal conflict with my sister Karen has been research and human rights advocacy regarding the situation in West New Guinea or West Papua. ... 115. I began advocating for [Mrs Johnson's] legal rights and for her protection from my sister Karen Smith's interests and dealings with Hornsby hospital and other NSW authorities ... 119. ... in July 2007 [when Mr Andrew Johnson Snr died and Mrs Johnson left the Family Home first for hospital and then to a nursing home], I felt my life and welfare were at risk. Since July 2007 I have feared that my mother the deceased has also been unjustly incarcerated and denied access to our own doctors and solicitors. ... 122. My relationship with the deceased since 2007 has left me with a mental affliction, I thought I was defending the interests of the deceased and my late father as well as myself ... 36Sixth, Andrew is now a 52 year old man who has no tertiary qualifications, no superannuation, no earning capacity and, based on the psychiatric evidence, has no real prospects of ever finding employment. He has respiratory problems (including sleep apnoea) and is overweight, along with some other less serious physical ailments. Most significantly, he has been assessed as having a permanent psychiatric condition (comprising major depression, a high level of anxiety and post-traumatic stress disorder) which is coupled with a significant lack of insight into his condition. That lack of insight makes him non-compliant with the limited treatment options available. 37Andrew's condition was evident to the Court as he gave his evidence. He told the Court with great sincerity that, with the benefit of whatever additional provision might be made for him, he wished to enter into a relationship, undertake study and find employment. While those outcomes are much to be hoped for, and any right thinking person can only wish Andrew well in achieving them, his very sincerity demonstrated both his lack of insight and the pessimistic prognosis he would have to overcome to make those hopes a reality. 38Seventh, Andrew has no assets to speak of other than a few thousand dollars remaining from the provision he received from his late father's estate. His only income is a disability support pension with various statutory supplements including rent assistance. He is living in rented accommodation and his expenses (which do not appear to be exorbitant) exceed his income, gradually depleting what little capital he has left. Other interested persons - Karen 39Karen is Andrew's oldest sibling. She was 55 years of age at the date of hearing. She married her husband, Michael, in 1985, when she was 26 years old. Michael was 60 at the date of hearing. 40Karen and Michael have three children, all in their twenties, who, until recently, all lived with their parents at the Family Home at Bellevue Hill. Again until recently, all three children were to varying degrees dependent upon and supported by their parents due to study commitments or an inability to obtain full time employment. I have said "until recently" because in August 2014 one of their children moved overseas permanently. 41The Court has no doubt that Karen was a dutiful daughter who visited and supported her parents, especially her mother. She fulfilled the role of Mrs Johnson's financial guardian in the last years of the latter's life and played the main role in ensuring her mother was appropriately cared for after Mr Andrew Johnson Snr's death. 42In 1991 Mrs Johnson assisted both Karen and her brother David in reducing their mortgages. Mrs Johnson gave Karen $35,000 and, for about six months during one year, contributed to pay Karen's son's pre-school fees. Mrs Johnson volunteered those payments. She also paid for Karen's wedding. 43Karen and Michael have unencumbered joint assets, primarily their home at Bellevue Hill, valued at approximately $1,100,000. Michael has assets of his own valued at approximately $800,000, nearly all of which is superannuation. In August 2014 Michael received $208,000 from his late father's estate with a future entitlement to approximately an additional $560,000. However, the amount of that future entitlement may vary if one of Michael's siblings commences family provision proceedings. 44Karen received the interim distribution of $406,432.93 from Mrs Johnson's estate on 28 November 2013. She has retained approximately $350,000. This amount is in addition to her joint assets with Michael. 45Karen and Michael do not have any significant debts. 46Karen completed a law degree and College of Law. Before she married she had full-time work in insurance and later with the Office of the Official Receiver in Bankruptcy. Karen currently works two days per week as a website co-ordinator. Michael is in full-time employment. Their monthly expenditure currently exceeds their combined income by approximately $1,000 per month. However, Michael generally receives a bonus which at least on a pre-tax basis would exceed any annual shortfall. Furthermore, with the departure of one of their daughters to live overseas Karen expects there will be a reduction in her monthly expenses. 47Karen's ability to take on more paid work has been hampered by the time she has had to devote to dealing with Andrew's behaviour, including the litigation referred to in paragraphs [14] to [22] above. The home at Bellevue Hill is old, small and located in a less than ideal location at a main road intersection. Karen and Michael wish to renovate their home. Those renovations are estimated to cost $500,000. 48There was no evidence that Karen or any member of her family suffered from any health condition that might be relevant for the purposes of the exercise of the Court's discretion in these proceedings. Other interested persons - David 49Andrew's other sibling, David, was 54 years old at the date of hearing. In 2011 David underwent what he described as a bitter divorce. He has two teenage children, both in high school. While they spend some days with their mother, David's children live mostly with him. 50David's evidence was that during her lifetime, David received about $35,000 from Mrs Johnson. This amount includes Mrs Johnson paying for some kitchen renovations to his home at Crows Nest, which he purchased in 1986. Once David had moved out of his childhood home he visited his parents fortnightly and sometimes monthly. 51He owns his Crows Nest home (estimated value $1,400,000) and has other assets including superannuation totalling $350,000. David applied the interim distribution of $406,432.93 which he received from Mrs Johnson's estate to discharge debts, including his home mortgage. At the date of hearing he had no debt. 52David obtained an Electronics and Communications Certificate from North Sydney Technical College in 1980. He commenced working with the University of New South Wales as a technical officer in March 1980. However, he has been unemployed since July 2008, when he took voluntary redundancy from his job at the university. He received a redundancy payment of $117,000, which he has applied to what has become a long term home renovation project. 53David does some handyman and contract IT work, but the majority of his income is derived from renting out the bottom half of his home. For example, for the year ending 30 June 2014 he received $26,550 in rental income and only $1,700 through other work. His annual expenses approximate his gross income from his rental income and other sources. In addition, he also receives family assistance payments, which for the last financial year were $13,670. 54David suffers from colour blindness, dyslexia and sciatica. He wishes to complete the renovations to his home ($35,000), will require periodontal treatment ($15,000) and needs a new "work horse" van, which he would like to be a long wheelbase four wheel drive vehicle. He intends to use that vehicle not only for his contracting work but also to travel around Australia with his children. David estimated the value of such a van, purchased new, would be $60,000. 55Given his age, qualifications and health, it is unlikely David will ever be able to be employed again beyond undertaking the limited handyman and IT contracting of the kind already described. Uncontroversial matters 56Because Andrew is Mrs Johnson's son, he is an eligible person under s 57 of the Act. The summons was filed one day less than 12 months after Mrs Johnson's death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [10] above are all answered "yes". 57The Provision referred to in the question posed in sub-paragraph [10(5)] above is approximately $750,000, being one-third of the net value of Mrs Johnson's estate. Has adequate provision not been made for Andrew? 58It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [10(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision is not adequate for Andrew's proper maintenance, education or advancement in life. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of Andrew is enlivened. 59In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: 39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty. 60In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children: 154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. 61Andrew's submissions in relation to the adequacy of the Provision may be summarised as: (1)Andrew's financial position is extremely poor. He has no assets or any earning capacity and is dependent on the disability support pension. (2)The estate is not a small one and is easily divisible into cash. The sums already distributed by way of interim distribution could be included as notional estate. (3)Andrew enjoyed a close relationship with Mrs Johnson, lived with his parents his entire life and provided his mother with considerable care and assistance, particularly during her mental and physical deterioration from about 2004 until Mr Andrew Johnson Snr's death in 2007. (4)Both Karen and David own their own homes, have substantial assets and minimal or no liabilities. 62Karen and David's submissions may be summarised as: (1)Their fundamental submission was put concisely and forcefully in written submissions: "(Andrew) has nothing to complain about. He received provision. He received equal provision with his siblings. He received a lot of provision." (2)Karen and David both enjoyed good relationships with Mrs Johnson. Karen gave considerable assistance to Mrs Johnson, in particular after the death of Mr Andrew Johnson Snr. (3)Andrew had received significant financial benefits from his parents during their lifetimes, including in support of his failed business ventures, been fed, clothed and housed for free and without having to make any financial contribution and had also lived rent free in the Family Home for nearly four more years after Mrs Johnson had left the home. (4)Andrew's conduct counted heavily against him, not least his conduct in dealing with Mrs Johnson's funds that had led to the proceedings before Forster J (see paragraph [17] above). He had also been very dismissive of and very difficult with his siblings. Andrew was the author of his own misfortune in that he had depleted his own assets (such as they were), the size of the estate and his own share from it through the various pieces of litigation that he had initiated. (5)His visits to his mother in the nursing home until about a year before she died (during that last year he did not visit her at all) were upsetting to her. He did not even attend her funeral. (6)On any view the Provision was adequate. On the current financial position of the estate Andrew would receive approximately $294,000 if his summons was dismissed and there was no costs order between the parties. When added to the interim distribution of approximately $406,000 it meant that if Andrew had not brought these proceedings, he would have received approximately $700,000 plus an amount equal to one third of the estate's costs of these proceedings (said to be an additional $25,000). (7)Even accepting that Andrew had needs, the competing needs of his siblings meant that adequate provision had been made for Andrew. 63Applying the principles set out in paragraphs [59] and [60] above, the Court is satisfied that the Provision is not adequate for Andrew's proper maintenance, education or advancement in life. The question posed in sub-paragraph [10(6)] above is answered "yes". The reasons for this conclusion are set out in the following paragraphs. 64The starting point in resolving the parties' competing submissions must be the Provision. However, Karen and David's approach, as exemplified in the submissions summarised in sub-paragraph [62(6)] above, fails to give any or any adequate weight to the prefatory words to s 59(1)(c) of the Act: "At the time when the Court is considering the application". This requires the Court to take into account the effect of the Provision on Andrew at the time of the hearing. 65The significant costs debt which Andrew incurred to his mother's estate means that in cash terms the value of the Provision to Andrew at this time is somewhere between $256,000 and $294,000 depending on the costs consequences of these proceedings (see paragraphs [27] and [28] above). 66Mr Ellison SC submitted for Karen and David that, first, it did not matter to whom the debt was owed and, second, the Provision was adequate because it left Andrew free of the costs debt to the estate. The first submission is correct. The second submission is incorrect because it fails to address the position Andrew is left in after the Provision has been notionally paid to Andrew. 67Applying the language of the Act, the question becomes whether the Provision is adequate where it is now in effect reduced by the amounts which Andrew owed or owes Mrs Johnson's estate (see paragraphs [23] and [30] above). For the purposes of what follows I have proceeded on the basis that with the cash balance of the Provision and his few other assets Andrew will remain unemployed and unemployable, but will nevertheless be left with somewhere between $280,000 and $300,000 and no other assets. 68The Court accepts Andrew's submission that his financial position is extremely poor. It is clear that he has no assets or any earning capacity and, despite his best intentions to the contrary, is likely to remain on the disability support pension for the rest of his life. A current example of his condition is that whilst he recently completed a course in forklift driving he has been unable even to apply for the licence for which he is now qualified, let alone apply for actual employment. 69The Court also accepts Andrew's submission that the size and nature of Mrs Johnson's estate is such that some additional provision can be made for him including, if necessary, by recourse to the interim distribution to Karen and David as notional estate. 70Andrew's relationship with Mrs Johnson has been set out in paragraphs [30] and [32] to [35] above. While much of his conduct may have been misguided, the Court is not satisfied that it would constitute anything in the nature of disqualifying conduct. For example, even in the proceedings before Forster J his Honour was careful to note that he did "not impute immoral or dishonest motives" to Andrew (see paragraph [17] above). Andrew obviously gave some real practical assistance to his parents and cared for Mrs Johnson deeply, albeit perhaps in a way that was ultimately in neither of their best interests. 71The Court also accepts that Karen and David had good relationships with Mrs Johnson. The evidence on this score was more detailed in the case of Karen, who, despite considerable personal inconvenience from time to time, devoted a great deal of her available time to her mother's affairs, especially after the death of Mr Andrew Johnson Snr. As between the three siblings, the Court accepts that they had a good relationship amongst themselves until after Mr Andrew Johnson Snr's death. After that, relations between Andrew and, in particular, Karen were poisoned. It is not necessary for the Court to apportion blame, but whatever their difficulties Karen has always accepted that Andrew would need accommodation of his own and some financial support. 72A key factor in favour of additional provision for Andrew is that, when compared to his siblings, Andrew's financial and personal circumstances are very substantially worse than those of Karen and David. Each of Karen and David has significant assets and is debt free. While each of them has some needs, Andrew's are on any view greater. Insofar as Karen requires assistance to complete the renovation of her home, the interim distribution combined with at least some part of any final distribution (even assuming some additional provision for Andrew was made) would meet most of the costs of those renovations. Similarly, David has already used the interim distribution to pay off his mortgage and his remaining needs (see paragraph [54] above) will be able to be met through the final distribution (again even assuming some additional provision for Andrew). 73The foregoing circumstances are a classic example of where prevailing community standards of what is right and appropriate support further provision being made for Andrew. Without further provision the "in hand" amount Andrew will in fact receive would enable him to pay for little more than a basic studio or one bedroom unit in western Sydney, a second hand car and leave him with little or no capital for any discretionary spending or a buffer against vicissitudes. That result demonstrates that the "in hand" amount is not adequate for Andrew's proper maintenance and advancement in life. 74In addition, two key factors identified by Hallen J in Camernik v Reholc (see paragraph [60] above) are satisfied (without suggesting that those factors are more than a useful list of considerations). Thus, Andrew never really left home and was dependent his whole life on his parents. He has no spouse or partner to whom he can look for maintenance or assistance. In the Court's view this is a case where the community would expect there to be provision to fulfil Andrew's ongoing dependency on his mother in circumstances where there are assets available to do so. 75For these reasons, while the Provision has been made for Andrew in Mrs Johnson's will, the Court is satisfied - looking at the question now - that Mrs Johnson has not made adequate provision for Andrew's proper maintenance and advancement in life. Therefore, the question posed in sub-paragraph [10(6)] above must be answered "yes". What provision ought to be made for Andrew? 76This next phase of the statutory exercise invites an evaluative judgment which involves examination of Andrew's needs. Given his current circumstances (see paragraph [38] above), his needs are for his own accommodation, a car and a sum for discretionary expenditure and to provide a buffer against vicissitudes. In determining what such an amount might be, the Court has taken into account what I refer to above (see sub-paragraph [10(10)]) as the "helpful checklist" in s 60(2) of the Act. I shall set out each of these in turn, cross-referencing where in these reasons the Court's relevant findings may be found. s 60(2)(a) - the relationship between Andrew and Mrs Johnson 77See paragraphs [30], [32] to [35] and [70] above. s 60(2)(b) - Mrs Johnson's obligations to Andrew and to her other children 78See paragraphs [32] and [42] above. s 60(2)(c) - the nature and extent of Mrs Johnson's estate 79See paragraphs [27] and [28] above. s 60(2)(d) - Andrew's financial resources and those of Karen and David 80See paragraphs [38] (Andrew), [43] to [45] (Karen) and [51] to [53] (David) above. s 60(2)(f) - Andrew's physical, intellectual and mental condition 81See paragraph [36] above. s 60(2)(g) - Andrew's current age 82Andrew is 52 years of age. s 60(2)(h) - Andrew's contribution to Mrs Johnson's welfare 83See paragraph [33] above. However, it is important to note that this factor under the Act refers to contribution "for which adequate consideration (not including any pension or other benefit) was not received by the applicant". In the circumstances of this case, this factor is of less weight in favour of Andrew than it might be in other cases. This is because, in the Court's view, Andrew received substantial consideration both in terms of financial support for his various unsuccessful business ventures and a lifetime's free room and board and payment of his basic living expenses. The Court has not overlooked the substantial value of those benefits. Nevertheless, they were not "adequate" in the sense that they did not enable Andrew to build up any assets to which he could now have recourse. s 60(2)(i) - provision made for Andrew by Mrs Johnson 84The Court has taken into account both the substantial financial and other support given to Andrew by Mrs Johnson during her lifetime (see paragraphs [30] and [32] above) and the Provision. Even taking into account how much the Provision is in effect reduced by Andrew's debts to the estate, the benefits Andrew received have been taken into account by the Court as requiring a result which the Court considers would be a lower amount for additional provision for Andrew than might have been the case otherwise. s 60(2)(j) - evidence of Mrs Johnson's testamentary intentions 85There was conflicting evidence about statements which Mrs Johnson was alleged to have made concerning her testamentary intentions. 86Andrew gave evidence that, at the time he and his parents moved to the Family Home, Mrs Johnson said to him words to the effect "The house isn't much, but the land has value and will help set you up. I want this to be your father (sic) and my final home, and for you to have the property after". 87On the other hand, Karen gave evidence that after Mrs Johnson had moved to the Family Home Mrs Johnson had said to her (Karen) at least half a dozen times between 2000 and 2005 "I chose this property to buy because developers will be interested in it in a few years time and it will get a good price. You and your brothers will each get a good nest egg from the sale of this house and our estate and you will all be set up for life". 88Andrew also called evidence from an independent witness, Mrs Heather Jeffrey, who lived next door to the Family Home. Mrs Jeffrey impressed the Court as a reliable witness. She gave evidence that on a number of occasions between 2000 and 2007 she heard Mrs Johnson say that she (Mrs Johnson) wanted to leave the Family Home to Andrew. Mrs Jeffrey recalled Mrs Johnson saying that she (Mrs Johnson) had told Andrew that he would have to look after the orchids (Andrew's parents were very keen orchid gardeners). When asked in cross-examination whether she was sure that she had heard Mrs Johnson say that she wanted to leave the Family Home to Andrew, Mrs Jeffrey replied (Transcript page 23): Yes, because she said it on many occasions. She said it more than once. Her words were that the other children were settled and she was proud of the fact that she had helped them into homes and like any parent with a child that was not settled, she was concerned about [Andrew] and she also said that he was a great help to them and he had given up his job to be help to them, stay with them. 89When Karen was cross-examined, it was not suggested to her that her mother had not said what I have recorded in paragraph [87] above. Rather, her cross-examination proceeded on the basis that those words had been said. Relying on that evidence, it was put to Karen that her mother's intention was not for Andrew to be thrown out on the street and that Mrs Johnson wanted each of her children to be as well set up as could possibly be done. To her credit, Karen accepted that proposition without hesitation. 90Insofar as Mrs Johnson's stated testamentary intentions are concerned, it is this last piece of evidence which the Court finds most persuasive as an accurate representation of Mrs Johnson's fundamental intentions. This is not a case where the Court has to accept one witness over another. Having heard the witnesses the Court is satisfied on the balance of probabilities that each of them was telling the truth and that Mrs Johnson did say what they reported. However, when all of those statements are taken into account with the undeniable fact that Mrs Johnson never changed a will which had stood since 1962, the correct finding as to her testamentary intention is not that she intended to leave the Family Home to Andrew in specie, but rather that in the context of ensuring that all of her children were well set up, Andrew should have somewhere to live of his own and proper provision for the remainder of his life. s 60(2)(k) - whether Andrew was being maintained by Mrs Johnson 91See paragraph [32] above. s 60(2)(m) - Andrew's character and conduct both before and after Mrs Johnson's death 92See paragraphs [14] to [22] and [33] to [35] above. s 60(2)(m) - Karen's and David's conduct before and after Mrs Johnson's death 93See paragraphs [41] (Karen) and [50] (David) above. The amount of provision for Andrew 94Taking into account all the considerations to which I have referred in paragraphs [77] to [93] above, the Court is satisfied on the balance of probabilities that sufficient, but not over generous, provision should be made for Andrew to meet the needs set out in paragraph [76] above. 95Insofar as accommodation is concerned, the parties put forward evidence of the cost of apartments in various parts of Sydney. It is not necessary for me to set out that evidence in detail. Nevertheless, it should be recorded that Karen and David submitted that a studio style apartment or moving to smaller accommodation outside of Sydney would be appropriate. Andrew submitted that some weight should be given to his life long connection with the Lindfield area. It will be appreciated that these submissions represented extremes in terms of the amount of an allowance for Andrew to purchase accommodation. 96The proper outcome lies somewhere in the middle. Andrew has interests (in particular as an activist in relation to the area referred to as West Papua) and some friends. These considerations suggest, if otherwise possible, that a two bedroom apartment would be appropriate to provide a separate combined work space and visitor bedroom if required. In terms of location, the majority of Andrew's connections fall within the greater Sydney metropolitan area and any determination by the Court should enable him to remain in that area, although not in as expensive an area as Lindfield. 97Andrew told the Court that he could live in an area like St Mary's, where he had a good friend. Without committing Andrew to live in that particular suburb, there was evidence of the cost of two bedroom units in that part of Sydney ranging between $270,000 and $425,000. On the basis of that evidence, the Court concludes that an allowance of $380,000 should enable Andrew to purchase a modest two bedroom unit in western Sydney (including transaction and moving costs). 98Next, an allowance of $15,000 should be made to enable Andrew to purchase a small new or secondhand car. Andrew also has a need for some dental work, may wish further investigation of his sleep apnoea condition and should have some funds for discretionary spending. An amount of $15,000 is allowed in respect of those items. 99Finally, an amount should be allowed for vicissitudes. The likelihood is that Andrew's primary source of income will continue to be the disability support pension for the rest of his life. Having that income with his own home and car should ensure a simple, but nonetheless, comfortable lifestyle of the kind which the Court is satisfied both Mrs Johnson would have wanted for Andrew and community standards would suggest is appropriate in the circumstances of this case. Those same considerations support the provision of a buffer against the vicissitudes which Andrew may encounter over the next 20 or more years, including ill health. 100Mr Lawrence submitted that Andrew should be allowed between $100,000 and $150,000, which figure included a car and costs associated with finding and moving to a new house. As these types of expenditure have been allowed for in the other amounts to which the Court has referred, the Court allows $90,000 for vicissitudes. 101It follows that the Proposed Provision referred to in sub-paragraph [10(8)] above is $500,000. The ultimate exercise of the Court's discretion 102As is apparent from the question posed in sub-paragraph [10(9)] above, having determined the Proposed Provision the Act leaves an ultimate discretion to the Court as to whether or not any provision or, in this case, additional provision should be made. In most cases the discretionary considerations which have informed the Court's conclusion as to the Proposed Provision will also support the ultimate exercise of the discretion in favour of an order being made. 103In this case there are factors which warrant a further, discrete consideration of the question of whether the ultimate discretion to make an order for additional provision in favour of Andrew should be exercised. Those factors are the size of the Provision (before the debts for legal costs and interests which Andrew owes the estate are deducted) and, to repeat the submission put for Karen and David, that Andrew's present predicament in terms of how little he will otherwise get from Mrs Johnson's estate is really Andrew's own fault because of his litigiousness. While these are the most important considerations, in this case the Court has, at this point of the statutory exercise, considered again all of the matters put on behalf of Karen and David set out in paragraph [62] above. 104Notwithstanding that consideration, the Court is satisfied that the ultimate discretion to make a family provision order should be exercised in favour of Andrew. The reasons for this are the totality of the reasons expressed above both for the conclusion that adequate provision had not been made for Andrew and as to the amount of provision that would be appropriate. 105One further specific observation should be made. Whilst it is true that Andrew would have been unlikely to require (or be entitled to) a family provision order if he had not engaged in the litigation which he did, in the circumstances of this case his conduct does not provide a proper basis for refusing to exercise the Court's discretion in his favour. Andrew's conduct as a litigant was not malicious, in bad faith, spiteful or otherwise deliberately determined to deplete his mother's estate or do economic harm to the other beneficiaries. Such conduct could, in an appropriate case, warrant the Court determining at the ultimate stage not to exercise its discretion to make a family provision order in favour of a plaintiff. However, in this case the Court finds that Andrew's conduct was well intentioned but misguided and possibly irrational, and materially influenced by the mental health difficulties from which Andrew suffers. Conclusion and orders 106The Court is therefore satisfied that the question set out in sub-paragraph [10(9)] above should be answered "yes". An order for further provision should be made in favour of Andrew which has the effect of Andrew actually receiving $500,000 "in hand" from Mrs Johnson's estate (i.e. inclusive of what he would have otherwise received had no order in his favour been made). This result should also include the forgiveness of any remaining debt which Andrew may have to Mrs Johnson's estate. 107Insofar as costs are concerned, and subject to hearing any further submissions from the parties, Karen and David should have their costs from their mother's estate on the indemnity basis and Andrew should have his costs of the proceedings from the estate on the ordinary basis. 108The parties should prepare short minutes of order giving effect to these reasons. The proceedings will be listed on a date to be fixed in consultation with the parties for the hearing of any further argument which may be necessary and the making of final orders. 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: 27 November 2014