Supreme Court New South Wales Medium Neutral Citation: Plaska v Coffey [2014] NSWSC 1930 Hearing dates: 23 September 2014 Date of orders: 10 December 2014 Decision date: 10 December 2014 Jurisdiction: Equity Division Before: Robb J Decision: (1) The plaintiff's summons is dismissed. (2) The plaintiff is to bear his own costs of the proceedings. (3) The defendant's costs of the proceedings are to be paid out of the estate of the deceased on the indemnity basis (4) The parties are invited to make submissions as to what, if any, order should be made against the plaintiff in respect of the defendant's costs (5) Exhibits may be returned in accordance with the Rules Catchwords: SUCCESSION – family provision – application under s 59 Succession Act 2006 (NSW) – whether adequate provision made for applicant – adult applicant – applicant grandchild of deceased – applicant an eligible person in this case – estate inadequate to justify family provision order in favour of applicant – claim dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Succession Act 2006 (NSW) ss 3, 57(1)(e) 59 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allen v Allen [2012] NSWSC 140 Alexander v Jansson [2010] NSWCA 176 Aubrey v Kain [2014] NSWSC 15 Butler v Morris [2012] NSWSC 748 Grundel v Registrar-General (1990) 5 BPR 11,217 Harrisson v Skinner [2013] NSWSC 736 McCosker v McCosker (1957) 97 CLR 566 Underwood v Gaudron [2014] NSWSC 1055 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Elvis Tom Plaska (plaintiff) Maria Coffey (defendant) Representation: Counsel: Plaintiff (self-represented) L Ellison SC/ A Hawkins (defendant) Solicitors: Plaintiff (self-represented) Marsdens Law Group (defendant) File Number(s): 2013/284572 Publication restriction: None Judgment Introduction 1. By summons filed on 20 September 2013 the plaintiff, Elvis Tom Plaska, who uses the name Tom Plaska, seeks an order that provision be made for his maintenance, education and advancement in life, pursuant to s 59 of the Succession Act 2006 (NSW) (the "Act") from the estate of the late Telka Plaska. 2. The deceased, Mrs Plaska, was born on 1 October 1923 and died at the age of 88 on 26 September 2012. Mrs Plaska was Mr Plaska's grandmother. 3. The defendant, Maria Coffey, is Mrs Plaska's daughter, and the executor of her estate. 4. Mrs Coffey accepts that Mr Plaska is an eligible person for the purposes of s 57(1)(e) of the Act, as he is a grandchild of Mrs Plaska, and was for most of his life up to the time of Mrs Plaska's death a member of her household and partly dependent upon her. Mrs Plaska's will 1. Probate was granted to Mrs Coffey on 26 August 2013 of the will made by Mrs Plaska on 25 March 1997. 2. By her will Mrs Plaska left her estate in equal shares to Mr Plaska, Mrs Coffey, and Mrs Coffey's two sons, Andrew Coffey and David Coffey. Mrs Plaska's estate 1. The only asset in Mrs Plaska's estate is her home at 17 Bower Road Cabramatta, which I will simply call the "property". Mrs Coffey initially estimated the value of the property as being $475,000. She ultimately tendered appraisals by two real estate agents who gave appraisal price ranges of $520,000-$560,000 in one case and $520,000-$570,000 in the other. Mr Plaska tendered an appraisal from a different real estate agent dated 29 January 2014 that put the value of the property in the range $440,000-$480,000. The parties have not agreed on the value of the property. There is no basis for me to resolve the differences between the appraisals made by the various real estate agents. I will proceed upon the assumption that the value is $540,000, which is approximately in the middle of the appraisal range given by the real estate agents instructed by Mrs Coffey. The actual value of the property will only be known when it is sold. 2. The property has been Mr Plaska's home since he was about 15 months old. He has continued to live in the property after Mrs Plaska's death. Whatever the outcome of the present proceedings may be, it is clear that the property will have to be sold, as that is the only way that the expenses of the estate, including the legal costs of the present proceedings, and monies advanced by Mrs Coffey to the estate, will be able to be paid. The present state of the property is such that some remedial work will be necessary before it can be put to the market in optimal condition. It will therefore be necessary for Mr Plaska to vacate the property some time before the sale, so that the remedial work may be undertaken. 3. Mr Plaska was initially represented by solicitors, and from the time of filing of his summons he retained two firms, the last of which filed a notice of ceasing to act on 9 September 2014. Mr Plaska represented himself at the hearing. The evidence of Mr Plaska's legal costs is not complete. One of his solicitors filed an affidavit that estimated Mr Plaska's costs up to mediation as being $27,111. 4. Mr L Ellison of senior counsel appeared for Mrs Coffey at the hearing. Mrs Coffey's costs are estimated to be $48,000. Mrs Coffey's case has been conducted economically. 5. Mrs Coffey submitted that, after allowing for the liabilities of the estate and costs, the net distributable estate would be about $448,000. The total costs and expenses that the estate has to pay or reimburse are $43,676. If I begin with my assumption that the value of the property is $540,000, the deduction of $43,676 plus Mrs Coffey's legal costs of $48,000, gives about $448,000. That does not make any allowance for Mr Plaska's legal costs, the amount of which is not established by the evidence. 6. If the estate is distributed in accordance with the terms of Mrs Plaska's will, each of the four beneficiaries will receive about $112,000. Mr Plaska's history and relationship with Mrs Plaska 1. Mr Plaska was born on 25 November 1975, and is 38 years old. His father, John Plaska, was Mrs Plaska's son. His parents were in a de facto relationship at the time of his birth, and separated shortly afterwards. His mother abandoned him to be brought up by his father. 2. When Mr Plaska was about 15 months old, his father brought him to live at the property with Mrs Plaska and her husband. Mr Plaska's grandfather died in 1984. His father contracted leukaemia in 1995 and died on 7 March 1996. After his father's death, Mr Plaska continued to reside at the property with his grandmother. 3. Mr Plaska's evidence was that his relationship with Mrs Plaska was at all times as if she had been his real mother. He said they had a loving and emotionally close relationship. He said that on a number of occasions Mrs Plaska made statements to him to the effect that he would inherit the property after her death. 4. Mr Plaska claimed that he had personally paid for the renovation of the garage on the property, but that claim was contested by Mrs Coffey, who said that Mrs Plaska paid for the reconstruction of the garage. Mr Plaska also claimed that he helped his grandmother about the house, but this was also denied by Mrs Coffey. She also gave evidence that she had heard her mother on many occasions ask Mr Plaska to contribute towards the electricity, water and other bills, and in particular, the phone bill, because he would use it all the time and a very large phone bill would come in, but he refused to pay. Mrs Coffey also denied claims by Mr Plaska that he would often watch television with his grandmother, and that when he was at school, Mrs Plaska helped him with his homework. Mrs Coffey said that her mother could not read or write English, and only had a very limited command of the English language. 5. The picture that Mr Plaska painted in his evidence was that he was not really brought up by his father, who was always out at work. He said that Mrs Plaska was effectively the sole parent-figure in his life. Mrs Coffey also denied this claim, and gave evidence that, while he was alive, John Plaska fulfilled his role and duties as a father. 6. The most significant factual issue in the proceedings was whether or not, as Mr Plaska claimed, he had a loving and harmonious relationship with his grandmother. Mrs Coffey gave evidence that he was often threatening and abusive towards his grandmother, and she was frightened of him. Mrs Coffey said that this behaviour started some time after Mr Plaska's father died. On one occasion Mrs Coffey drove to the property after Mr Plaska had interrupted a telephone conversation between Mrs Coffey and her mother by pulling the phone off the wall. She said that she witnessed Mr Plaska verbally abusing Mrs Plaska. She called the Cabramatta Police, who came to the property and ordered Mr Plaska to leave the property. He did so, but returned the next morning. 7. Mrs Coffey said that she witnessed Mr Plaska from time to time going into a rage for no apparent reason. He would be fine one minute and then suddenly his whole personality would change, and he would become abusive and aggressive towards Mrs Plaska and Mrs Coffey. On one occasion when Mrs Plaska damaged some of Mr Plaska's clothes by adding a little bit of bleach in the water in which she washed the clothes, Mr Plaska became so angry with her that he picked up an item that she loved and smashed it. Mrs Coffey said this behaviour continued from that time off and on until 13 months before Mrs Plaska died, when she was so frightened of Mr Plaska that she moved in with Mrs Coffey. 8. Mrs Coffey also gave evidence that Mr Plaska would regularly become abusive and threatening towards his grandmother after he became drunk, and that also from time to time Mr Plaska and his friends would engage in drinking sessions at the property. Mr Plaska denied the truth of this evidence. 9. In a particularly pointed example, Mrs Coffey said that, when Mrs Plaska was living with her during the last months of her life, Mr Plaska visited his grandmother to demand money. After she told him that she did not have any money, he said to her: "You f…… bitch. You c…". That provoked the result that Mrs Plaska gave him $50. 10. Mrs Coffey said that, after her mother's death, Mr Plaska behaved properly until after he became aware that his grandmother had not left him the whole of the title to the property. After that time he became threatening and abusive to Mrs Coffey. 11. The evidence included a provisional ex parte apprehended domestic violence order issued by the Liverpool Local Court on 2 August 2013 against Mr Plaska to protect Mrs Coffey. The grounds of the application related Mrs Coffey's claims that Mr Plaska harassed her by making many telephone calls, in one of which she claims that he said: "If you go into the house I'll have you murdered". Mrs Coffey said that she did not hold fears that Mr Plaska would physically harm her, but she feared that the intimidation and harassing phone calls would continue. Mrs Coffey said that she had learnt that Mr Plaska had, shortly before 15 September 2014, applied to the Local Court at Cabramatta to have the AVO against him removed, but Mrs Coffey had been told by a police officer that the magistrate had refused the application. 12. Mr Plaska cross-examined Mrs Coffey. He challenged aspects of her evidence, but did not in any comprehensive or thoroughgoing way challenge her evidence concerning his abusive and threatening behaviour. It is of course possible that he did not do so because he did not fully understand the need to challenge in cross-examination the evidence that he claimed was untrue. 13. Mrs Coffey said that her mother wanted to sell the property so that she could move in with Mrs Coffey to be looked after in her final years, but that Mr Plaska refused to move out of the home or to accept its sale. A solicitor, Mr John Thomas Henshaw, gave evidence of a conference that he had with Mrs Plaska on 17 August 2011, in which Mrs Coffey acted as interpreter for her mother. Mrs Plaska had already made a decision to sell the property. She had already had contact with a real estate agent, and Mr Henshaw annexed to his affidavit a copy of a letter dated 4 August 2011 from Century 21 to Mrs Plaska that referred to Mrs Plaska's having given Century 21 the opportunity to sell the property. Mr Henshaw said that Mrs Plaska told him that the problem about which she was seeking advice had arisen because her decision to sell the property had put her in conflict with Mr Plaska. 14. The following relevant extract from Mr Henshaw's affidavit concerning the instructions he received from Mrs Plaska do not prove the facts stated, but they provide some evidence as to Mrs Plaska's beliefs concerning Mr Plaska's conduct: g) … Later in his teenage years through bad company, [Mr Plaska] had become involved with both drug and alcohol abuse… h) His employment with the Department of Railways was suspended as a result of his bad conduct. Following some discussions an agreement was reached whereby he agreed to resign from his employment with the Department of Railways. i) His drug and alcohol abuse problems continued and he caused continual problems for Mrs Plaska making a mess in the home, demanding food and care at all hours, refusing to comply with normal household rules and from time to time it was necessary for Mrs Plaska to call the police to the home to make him behave. j) When the police were called he tried to convince the police that he had a legal entitlement to an interest in the home which was paid for by his deceased father… k) Mrs Plaska in (sic) advanced years was unable to continue to care for Tom and continue to care for the home which, as a result of the mess left by Tom, was in continual need of cleaning. It was becoming impossible for Mrs Plaska to continue running the home and providing meals. l) When Tom found that he was still alive at the age of 30, despite the predictions of his fortune teller/psychic, his drug and alcohol problems increased and his attitude and conduct in the home became worse. m) On one occasion when the police were called to the home, Tom attempted to convince the police that Mrs Plaska was suffering from Alzheimer's and requested their assistance to have her put in a nursing home where she could not interfere with this (sic) life. n) When Mrs Plaska had placed the property on the market with Century 21 at Bonnyrigg, Mrs Plaska was seeking advice as to means by which Tom could be ejected from the home by some means so that the house, which was in a terrible condition, could be cleaned up in preparation for sale and thereafter allowing potential buyers into the home to make pre-sale inspections. o) Tom had regularly made threats of violence to Mrs Plaska and there was a need for some form of restraint order to prevent Tom from threatening or causing violence to Mrs Plaska in any way. 1. Mr Henshaw said that he formed the view that Mrs Plaska genuinely was afraid of what would happen by way of violence to her and the home should she request Mr Plaska to vacate the home in preparation for the sale of the property. Mr Henshaw made arrangements to obtain counsel's opinion, but he was advised through Mrs Coffey that Mrs Plaska did not wish to proceed, before Mr Henshaw was able to get counsel's advice. 2. Mr Plaska himself gave evidence that his employment by Rail Corporation New South Wales was terminated on about 3 January 2007 on the ground that he was medically unfit because he had been diagnosed with Anti-Social Personality Disorder. 3. The evidence justifies a finding that Mr Plaska did regularly engage in the type of abusive and threatening behaviour towards Mrs Plaska that has been alleged by Mrs Coffey. Mr Plaska's circumstances 1. Mr Plaska gave evidence that when he was about 16 years of age, around the year 1992, he obtained full-time permanent employment with what is now Rail Corporation. As mentioned, this employment ceased on about 3 January 2007. 2. At the time of his 19 September 2013 affidavit, Mr Plaska was employed as a delivery driver by Plasbox Manufacturing Transport Packaging Specialists and earned approximately $719.67 net per week. He had living expenses that totalled about $760 per week. By the time of his 29 January 2014 affidavit Mr Plaska was unemployed. He said that he had "been declared unsuitable for the position". He was receiving $514 every fortnight on the New Start Allowance. His personal expenses were about $480 per fortnight. As I understand Mr Plaska's hand-written affidavit sworn on 29 August 2014, he remains unemployed, and his personal expenditure is $235 per week, after which he is "broke". 3. Mr Plaska's only significant asset is superannuation of approximately $95,000. He has a Volvo 1993 vehicle valued at approximately $1000, an unregistered Harley Davidson motorbike valued at approximately $10,000, a Matchbox car collection worth approximately $8000, and less than $1000 in the bank. 4. As I have said, Mr Plaska gave evidence that his employment with Rail Corporation was terminated on medical grounds because he was diagnosed with Anti-Social Personality Disorder. He did not tender any medical evidence. That is so even though Mr Plaska's first two affidavits were prepared by his original solicitors. There is documentary corroboration that Mr Plaska's employment was terminated on medical grounds, although it does not identify the relevant medical condition from which Mr Plaska suffered. The evidence given by Mrs Coffey concerning Mr Plaska's conduct in relation to her and Mrs Plaska appears to be consistent with a condition of Anti-Social Personality Disorder as a layman might understand that condition. However, there is no proper evidence before the court that explains the symptoms or consequences of the condition. I recognise the possibility that Mr Plaska's conduct may be explained because he has some psychological condition that is beyond his control. Such a condition, if it caused him to act badly in his relationship with Mrs Plaska, could be relevant to the determination of the provision that needed to be made in his favour to be adequate to provide proper maintenance, education and advancement in life for Mr Plaska. Unfortunately, however, the Court has the evidence of Mr Plaska's unsatisfactory conduct towards his grandmother, without their being evidence that his conduct was caused by a psychological condition that was beyond his control. Alleged promises made by Mrs Plaska 1. I have mentioned that Mr Plaska claimed that his grandmother often told him that she would leave the property to him after her death. Mr Plaska gave evidence such as: Whilst my grandmother was alive she often said words to the effect of: "I provided for my Daughter and her children already. This house, I was going to leave to your father. Your father has passed away and this is all for you." Further: On or around the year 2000 when I was still employed with the New South Wales Railway Service, I recall having a conversation with my Grandmother, where words to the following effect were spoken: Me: "Grandma, I am looking at buying a property so that I can have my own home". Grandma: "I don't want you to move out. Why would you want to buy a house when you already have a house?" And: My Grandmother has always said words to the effect of: "When I die this is going to be your house." 1. In Grundel v Registrar-General (1990) 5 BPR 11,217, McClelland CJ in Eq spoke of the need to treat with considerable caution evidence given by a plaintiff without corroboration, in a claim against an estate, of oral representations made by the deceased. That is because of the danger of estates of deceased persons being subjected to false or exaggerated claims. The Court should be cautious, if not suspicious about such evidence, will scrutinise it with great care, and only act upon it if convinced of its truth. 2. Mrs Coffey gave evidence that she did not receive any substantial gifts from her mother during Mrs Plaska's lifetime, and there is no evidence that she did. That casts some doubt on the first of the statements set out above that Mr Plaska has attributed to his grandmother. 3. There is no evidence that Mr Plaska would have, and could have, bought a house of his own if he had decided to do so in the year 2000, or thereabouts. Mr Plaska lost his full-time job with Rail Corporation in early 2007. 4. The evidence that Mrs Plaska wanted to sell the property but could not do so because of Mr Plaska's opposition is inconsistent with her having any intention, at least in the later part of her life, that she would leave the whole of the property to Mr Plaska. 5. I would not exclude entirely the possibility that Mrs Plaska may have said to Mr Plaska from time to time, perhaps in her more loving or indulgent moments, things that caused Mr Plaska to form the expectation that he would ultimately receive ownership of the property. I am not satisfied, however, that Mrs Plaska ever made statements to that effect which could have justified a genuine expectation in Mr Plaska that he would receive the whole of his grandmother's estate, to the exclusion of her other relatives. 6. On the subject of his needs Mr Plaska said that, now that his grandmother has died, he is fearful that he will not have a place to live after the property is sold. He said that he requires a place to live and money to put aside to protect him for a "rainy day". 7. Mr Plaska provided no evidence as to how this result could be achieved given the size of the distributable estate, even if a family provision order were made in his favour so that he received all of the money that is available. As I have noted above, the property will have to be sold in any event. Mrs Coffey's circumstances 1. The evidence satisfies me that Mrs Coffey was a loving daughter who attended to the needs of her mother, and provided substantial care and support for her, particularly in the last period of her life. While Mrs Plaska was living in the property, Mrs Coffee provided regular household support to her mother. As I understand Mrs Coffey's evidence, after Mrs Plaska had a fall, she spent a number of weeks in Liverpool Hospital. Her doctor told Mrs Coffey that Mrs Plaska could not live alone, so Mrs Coffey took three months off work as sick leave to look after her mother in Mrs Coffey's home. When it became apparent that Mrs Plaska could never go back and live on her own, Mrs Coffey gave up work and looked after her mother for another 13 months before she died. 2. The evidence supports Mr Ellison's submissions concerning the current financial needs and circumstances of Mrs Coffey and her two sons, and I accept those submissions, which form of the basis of the following findings. 3. Mrs Coffey is aged 67 and lives at home with her 73-year-old husband who has Parkinson's disease and is disabled. She cares for him full-time. She also cares for her mother-in-law who is 95 years old and bedridden. Mrs Coffey and her husband receive a combined pension of $1350 per fortnight, superannuation of $239 per month, and a carer's allowance of $106 per fortnight. Mrs Coffey also receives $200 per fortnight from the mother-in-law. The household includes Mrs Coffey's 22-year-old grandson who is a full-time student, but who does not contribute to running expenses. Mrs Coffey and her husband own their house worth about $375,000 and have superannuation of approximately $70,000. They would like to spend money on themselves, their kitchen, and a car and put aside money for the future. Because of the health circumstances of Mrs Coffey's husband and mother-in-law, Mrs Coffey has a real need to remodel the whole of her bathroom, which is estimated to cost between $20,000 and $25,000. Her kitchen has completely fallen apart. She estimates the cost of a new replacement kitchen as somewhere between $25,000 and $30,000. 4. Mrs Coffey herself is in poor health. Mrs Coffey suffers from extreme stress which causes hair loss. She has to wear a wig. She is diabetic, and although she controls this with exercise and diet, she has to check her sugar levels every morning. She takes blood pressure tablets for high blood pressure, and her cholesterol is controlled by medication. Because of her diabetes, her eyes have to be checked on a regular basis. Every four months she sees a specialist. One of her eyes has a cataract. She treats her eyes with eye drops every day. The circumstances of Mrs Plaska's other grandsons 1. Mrs Coffey's son, David, is approaching his 47th birthday. He is married and has an autistic 11-year-old child. He works as a truck driver earning between $800 and $1300 per week. He is employed as a casual driver and has no certainty of employment or an employment contract. His wife is currently employed but she has no certainty of employment. David's principal asset is his house worth approximately $335,000, which is mortgaged to approximately $300,000. David and his wife have personal loans and other debts of $78,000, with their only assets of significance apart from the household furniture being a motor vehicle and motorcycle. David's wife needs to have wrist surgery, if she is to have a fair chance of gaining permanent employment in the future. 2. Andrew Coffey is aged 41, and is married with three dependent children including one still at school. He is in full-time employment earning approximately $700 per week. His wife earns $1000 per week. David and his wife have a home worth approximately $420,000 with a mortgage of $350,000. They have personal loans totalling $35,000 for vehicles worth about $45,000. They have no other assets of significance. Applicable legal principles 1. It is now necessary to consider whether Mr Plaska has demonstrated that he is entitled to the benefit of a family provision order, and if so, what the terms of that order should be. Chapter 3 of the Act governs these issues, as Mrs Plaska died after 1 March 2009. 2. Section 59(1)(c) of the Act provides: "(1) The Court may…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…" 1. "Family provision order" is defined in s 3 of the Act to mean" "an order made by the Court under chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of an eligible person." 1. Section 59(2) then provides: "(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." 1. The question is whether, at the present time, Mrs Plaska has not by her will made adequate provision for the proper maintenance, education or advancement in life of Mr Plaska. 2. In the present case Mrs Plaska has made a gift to Mr Plaska in her will of one quarter of her estate, and that quarter is estimated to have a value of $112,000. 3. The question is whether the Court is satisfied, at the present time, that the provision is not adequate for the proper maintenance, education or advancement in life of the applicant? That question arises out of the terms of s 59(1) of the Act. I propose to treat this question as being a separate question to that raised by s 59(2) of the Act, and for that purpose will follow the conclusions stated by Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [163] - [165]. 4. Hallen J has set out important principles relevant to determining the answer to this question in Underwood v Gaudron at [130] - [153]. I respectfully adopt those statements of principle, and will state in summary form the principles that I consider to be material to the present application. 5. In the present case Mr Plaska has not made a case that he is in need of additional education, but his claim for an additional provision comes within the concepts of maintenance and advancement in life. 6. Section 59(1)(c) requires that the Court determine whether the will has not made adequate provision for the proper maintenance, education or advancement in life of Mr Plaska. The question is not simply whether the provision is adequate. The meaning of the terms "adequate" and "proper" are crucial. As Hallen J stated in Aubrey v Kain [2014] NSWSC 15 at [63]: "The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 W.A. are 127, per Buss JA, at 145 [72], [77]." Hallen J set out extracts from authorities that have considered the difference in meaning of the two words at [63]-[70]. 1. It will be sufficient to set out the following extract from the judgment of Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566, at 571-572 in relation to how the Court should apply the concept of "proper": "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 in life must be considered in the light of all 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." 1. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: 'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility. 1. The Court must assess the provision made by the testator from the perspective of whether it is "wise and just". Testamentary power lies principally in the testator. The size of the estate available is an important consideration, because the testator is limited in his or her determination of what is wise and just by the extent of the property available for distribution, and accordingly a provision may be "proper" in the circumstances of a particular estate, when that would not be so if the testator had available more assets for distribution. The testator is also entitled, and required, to consider all of the competing claims upon his or her bounty and their relative urgency. 2. As Hallen J noted in Aubrey v Kain at [50], in cases identified by his Honour, judges of this Court have used the following expressions to describe the mental process involved in deciding whether a provision made by a testator is relevantly adequate and proper; being that the state of satisfaction "depends upon a multi-faceted evaluative judgment" (Basten JA); it involves "an intuitive assessment" (White J); and it is "an evaluative determination of a discretionary nature, not susceptible of complete exposition"; and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Stevenson J). 3. Mr Plaska is a grandchild of Mrs Plaska, and not her child. Ordinarily, the call that a grandchild will have on the bounty of his or her grandparent will be much less than that of a child. Ordinarily the grandchild would look to his or her own parents for maintenance, education and advancement in life. Mr Plaska's circumstances are, however, somewhat different to those of the ordinary grandchild. He was abandoned by his mother. There is a difference of view as between Mr Plaska and Mrs Coffey as to the extent that Mrs Plaska took on the mother role in relation to Mr Plaska. As Mr Plaska lived in the property from the age of 15 months for the rest of Mrs Plaska's life, it is probable that to a significant degree she acted as a mother figure for him in the way that he suggested in evidence. Mr Plaska gave evidence, which was not challenged, that he did not receive any money from his father's estate. 4. Against that consideration must be weighed the evidence of Mr Plaska's ill-treatment of his grandmother after the death of his father, and that he apparently refused to leave home after he became an adult. The evidence permits a finding that Mr Plaska's continuing occupation of the property was involuntary from Mrs Plaska's perspective. 5. In Butler v Morris [2012] NSWSC 748 at [106] Hallen J set out principles that are "useful to remember" that may be relevant where the applicant for a family provision order is an adult child. I respectfully agree with the observations that his Honour made. Even if it be assumed in Mr Plaska's favour that his special circumstances warrant that he be equated with a child of Mrs Plaska for the purpose of considering his entitlement to a family provision order, it will remain necessary to have regard to the limits that are placed upon the obligation of parents to make testamentary provision for adult children. I will limit the following extract from his Honour's observations to the factors that are relevant to the present case: [106] 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 moral obligation, or community expectation, of a parent in respect of an adult child…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... 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… 1. In the present case the most relevant aspect of these observations is the reference in par (b) to cases "where assets permit and the relationship between the parties is such as to justify it"; and in par (c) to "where there are assets available". 2. If the requirement in s 59(1)(c) is satisfied, then the Court is empowered by s 59(2) of the Act in terms that it "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." It is clear that the effect of the inclusion of the word "may" is that the Court has a true discretion as to whether any order should be made, and if so what order ought to be made: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20 at 212 per Mason CJ, Deane and McHugh JJ. 3. Section 60(2) of the Act sets out a list of factors that the Court "may" consider in determining whether to make a family provision order and the nature of any such order. The matters that are listed in s 60(2) are a helpful list of factors that may be taken into account, but the section makes plain that the Court can have regard to any other matter that it considers relevant, and the factors are not necessarily determinative in any case: West v Mann [2013] NSWSC 1852 at [12(10)]. 4. In a general way, many of the matters listed in s 60(2) are material to Mr Plaska's application: 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, … or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate … 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, … or of any beneficiary of the deceased person's estate… (f) any physical, intellectual or mental disability of the applicant … 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… (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… Consideration 1. Viewed in isolation from the circumstances and needs of the other beneficiaries under the will, Mr Plaska's present circumstances are not sufficient to provide him with adequate resources for his proper maintenance and advancement in life. At present he is unemployed. The evidence does not prove that Mr Plaska is unemployable. However, it is likely that for the rest of his life Mr Plaska will suffer significant periods of unemployment. At present he is living in the property without paying rent or council rates and insurance. He is dependent on the New Start Allowance of $514 per fortnight, and his frugal living expenses come to about $480 per fortnight. There is no money left over for rent. The Court does not have the evidence necessary to make a reliable assessment of Mr Plaska's chances of gaining, and keeping, employment. Realistically, if Mr Plaska has to try harder to get a job in order to gain a roof over his head, he may simply have to do so. There was no evidence about the entitlement of Mr Plaska at his present age to gain access to his $95,000 in superannuation, but he is likely to face difficulties in that regard. 2. There was no evidence as to the amount of interest that Mr Plaska could earn by investing $112,000 in a bank savings account, assuming that that is the amount that would be distributed to him under the will as it stands. If an interest rate of 2.5% per annum is assumed, that would only add approximately $105 per fortnight to his income. 3. Viewed solely from his own perspective, Mr Plaska appears to have the basis of a case that the provision made for him by Mrs Plaska in her will is not adequate to provide him with proper maintenance and advancement in life. However, it is necessary also to consider the circumstances and the financial position of the other beneficiaries. 4. In Allen v Allen [2012] NSWSC 140 Macready AsJ said: [95] The extent of the deceased's estate can be considered when determining whether adequate provision has been made, as well as the financial resources and needs of the other beneficiaries (s 60(c) and (d)). [96] In Foley v Ellis [2008] NSWCA 288 Sackville AJA (with whom Beazley JA agreed) stated that, in assessing whether the provision made for an applicant was inadequate, the needs of the other claimants on the deceased's bounty must be considered. His Honour said at [88]–[89]: … The Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act. The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231): Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors. [97] In this case consideration of the other beneficiaries is especially important given the small size of the estate. In Re Buckland, (dec'd) [1966] VR 404 at 412-413 the Court recognised that, in a case of a small estate, the notion of what provision was adequate would need to be adjusted accordingly: In many of the cases coming before the Courts the decision as to what maintenance it was proper for a testator to have allowed has been influenced by the circumstances that there was competition between dependants, all with moral claims for maintenance and support out of his estate, but the estate was not large enough to meet them all. Thus, what was considered to amount to adequate provision for the proper maintenance of a claimant has been held to be less than it would otherwise have been. [98] While it is evident that the plaintiff has a genuine need so do her brothers. In the context of the small estate and her relationship with the deceased I do not think that the provision made for her was inadequate. 1. Further, in Harrison v Skinner [2013] NSWSC 736 Hallen J said: [108] The size of the estate is a significant consideration in determining an application for provision. In a small estate, as this one is, it is important to remember what Salmond J said in Re Allen (dec'd); Allen v Manchester [1992] NZLR 218, at 221: Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims. 1. In my view these considerations are relevant in the present case, as Mrs Plaska owed a moral duty to support her daughter, Mrs Coffey, and she decided in her will to treat all of her grandsons equally, and the evidence shows that both David and Andrew Coffey have substantial financial needs. 2. Although I take the view, as I have expressed above, that in principle it is necessary for the Court first to decide whether the provision made in the will is not adequate for the proper maintenance and advancement in life of Mr Plaska, and, only if it is not, may the Court enter upon the discretionary considerations involved in determining the provision that ought to be made, in the present case the two separate steps blur into each other. That is so because the considerations that are relevant to whether adequate provision has been made are essentially the same as will govern the provision that ought to be made. Given that Mr Plaska's needs clearly exceed his resources, and that this is a claim that is likely to turn on the competing entitlements of the four beneficiaries, it would be artificial to find that Mr Plaska had not established that the provision made for him was inadequate, as equally it would be artificial to find that the provision was not adequate and then hold in the exercise of the Court's discretion that the estate was simply not big enough to increase the provision in favour of Mr Plaska, because that would unreasonably decrease the provisions made to the other beneficiaries. The proposition that in some cases the two steps in the process might blend together has been recognised. Callinan and Heydon JJ observed in Vigolo v Bostin [2005] HCA 11; (2005) 201 CLR 191 at 230-231 that: "We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two". 3. I therefore in this case propose to consider that two steps in the process together. 4. Mrs Coffey in my view has a call on Mrs Plaska's testamentary bounty that is superior to that of Mr Plaska. Mrs Coffey is a daughter, and the evidence shows that she had a loving and supportive relationship with her mother, and provided substantial care to her in her later life. 5. Mrs Coffey and her husband do own their own house worth $375,000 without a mortgage. However, they only have superannuation of $70,000. Mrs Coffey's husband is incapacitated, and clearly will need substantial extra care for the rest of his life. Mrs Coffey herself is 67 years of age. They are substantially dependent upon the pension. The $70,000 is used to supplement their income, and is not a substantial buffer against the contingencies of life. The home needs immediate refurbishment, some aspects of which are not discretionary, because they are needed to enable Mrs Coffey to provide proper care for her husband and mother-in-law. The evidence suggests that the necessary work will cost between $45,000 and $55,000. Mrs Coffey may therefore only have an additional sum of about $60,000, after the work is done, if she receives her full entitlement under the will. 6. Both David and Andrew Coffey own homes with their wives, but in each case there is a substantial mortgage. In David's case the house is worth $335,000 and the mortgage is approximately $300,000. In Andrew's case the home is worth $420,000 and the mortgage is $350,000. Accordingly, while each has a home, the equity in the home is not large. 7. Mr Plaska has never had to pay rent. That is something that must be taken into account, as it is a benefit that Mrs Plaska provided to him during her life, and her estate has provided to him thereafter: s 60(2)(i) of the Act. The fact that Mr Plaska has been able to live rent-free is not something that, as events have happened, will be of much benefit to him now. But it must be taken into account that David and Andrew Coffey have had to pay the mortgages that they had to take out in order to buy their homes. 8. David Coffey and his wife are in employment, but that employment is insecure. They have an 11-year-old child with a disability. They have personal loans and other debts of $78,000. I am satisfied that they are struggling financially. 9. Andrew Coffey and his wife are a little better off, but they still have loans totalling $35,000, and three dependent children. 10. Section 60(2)(m) of the Act requires me to take into account the character and conduct of Mr Plaska before and after the date of Mrs Plaska's death. I have set out my findings concerning Mr Plaska's conduct above. I do not find that Mr Plaska's conduct would disentitle him from receiving the benefit of a family provision order to which he might have been entitled, were it not for the competing claims of the other beneficiaries, but it is obvious that he behaved badly towards his grandmother in a way that would justify her making the decision, which is reflected in the terms of her will, that while she would make provision for Mr Plaska, he was not deserving of any provision that was more beneficial than she would give to her other grandsons. Mrs Plaska was justified in treating her grandsons equally. 11. I propose to dismiss Mr Plaska's claim. That is unfortunate, as I have found that he will not, objectively speaking, have resources that are adequate for his proper maintenance and advancement in life. The size of Mrs Plaska's estate is not sufficient to provide adequate provision for Mr Plaska, without unfairly reducing the provision made in favour of the other beneficiaries. Each of those other beneficiaries has inadequate resources for their own proper maintenance and advancement in life. 12. I incline to the view that Mr Plaska has not, in all of the circumstances, established that the provision that was made in his favour was not adequate for his proper maintenance and advancement in life, although I concede that a positive finding to that effect would be marginal on the facts of this case. However, even if I had found that Mr Plaska had satisfied the threshold question, I would have been constrained in the exercise of my discretion, given the circumstances and financial position of the other beneficiaries, and influenced by a consideration of Mr Plaska's conduct towards his grandmother, to decline to make any additional provision in Mr Plaska's favour, because Mrs Plaska's estate is simply too small to enable that to be done fairly. Costs 1. On the issue of costs it is clear that an order should be made that Mrs Coffey's costs be paid out of the estate on the indemnity basis. The question is whether an order should be made that Mr Plaska pay Mrs Coffey's costs. 2. It is not appropriate that an order be made under s 99 of the Act that Mr Plaska's costs be paid out of the estate. 3. That leaves the issue of whether an order should be made against Mr Plaska under s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.1 that he pay Mrs Coffey's costs. Mr Plaska has failed in his application, although that was primarily because the size of Mrs Plaska's estate, and the proper claims of the other beneficiaries, did not leave any scope for making a family provision order in Mr Plaska's favour, notwithstanding that objectively speaking the provision made under the will is not adequate for his proper maintenance and advancement in life. It is possible that there is scope for the application of the special consideration that may sometimes be applied in family provision applications, which was referred to by members of the Court of Appeal in Chapple v Wilcox [2014] NSWCA 392 at [26], [27] and [122], [123]. 4. The parties have not made any submissions on this issue. I do not know whether there are any other considerations that bear upon the orders that should be made concerning Mrs Coffey's costs. Accordingly I will invite the parties to make submissions on this issue. Orders 1. I make the following orders: 1. The plaintiff's summons is dismissed. 2. The plaintiff is to bear his own costs of the proceedings. 3. The defendant's costs of the proceedings are to be paid out of the estate of the deceased on the indemnity basis. 4. The parties are invited to make submissions as to what, if any, order should be made against the plaintiff in respect of the defendant's costs. 5. Exhibits may be returned in accordance with the Rules. ********** 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: 04 March 2015