Supreme Court New South Wales Medium Neutral Citation: AB v Curry & Anor [2015] NSWSC 1063 Hearing dates: 21 July 2015 Decision date: 22 July 2015 Jurisdiction: Common Law Before: White J Decision: Refer to paras [119], [124] and [125] of judgment Catchwords: WILLS, PROBATE AND ADMINISTRATION – family provision – claim for greater provision out of the deceased's estate by her adult foster child – executors agreed that the plaintiff is an eligible person, that there were factors warranting her application and that inadequate provision was made for her – whether plaintiff should be entitled to the whole of the small estate – consideration of factors relevant to increased provision – held that increased provision should be made, but not the whole or most of the estate Legislation Cited: Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Victims Rights and Support Act 2013 (NSW) Cases Cited: Burke v Burke [2015] NSWSC 195 Hamilton v Moir [2013] NSWSC 1200 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Mayfield v Lloyd-Williams [2004] NSWSC 419 McGrath v Eves [2005] NSWSC 1006 Plunkett v Bull (1915) 19 CLR 544 Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Taylor v Farrugia [2009] NSWSC 801 Category: Principal judgment Parties: AB (Plaintiff) Aileen Esme Curry (1st Defendant) Juliet Anna Greentree (2nd Defendant) Representation: Counsel: L Ang (Plaintiff) K Morrissey with L Clarke (Defendants) Solicitors: John Hollier, Solicitor (Plaintiff) Stuart, Cook & Braham (Defendants) File Number(s): 2014/215475 JUDGMENT 1. ​HIS HONOUR: This is an application for a family provision order with respect to the estate of Mrs [P] who died on 17 September 2013 aged ninety-two. Mrs [P's] estate is modest. At the time of the hearing it comprised cash investments of approximately $423,000 and furniture and goods estimated to be worth about $5,000. After deducting further executors' legal costs, which were estimated at approximately $40,000, the likely net value of the estate is about $385,000. 2. Mrs [P] had no children. She survived her husband who died in 1986. Her only sister, [JK], also predeceased her. Mrs [P] lived in [xx] from about 1973 and was strongly attached to the Catholic Church. She made wills on 25 November 2005, 25 June 2009, 24 October 2011 and 28 June 2013. 3. By her 2005 will Mrs [P] left her estate to her sister [JK]. [JK] died in 2008. In her 2009 will, after certain specific legacies, Mrs [P] divided the residue of her estate into five shares. The plaintiff was to have one of those shares. By her 2011 will the plaintiff's daughter, [DB], was to receive a one-fifth share and the plaintiff was not provided for. By her last will made on 28 June 2013 Mrs [P] left legacies totalling $62,000 and divided the residue of her estate between four friends. The plaintiff was left a legacy of $20,000 and her daughter, [DB], a legacy of $10,000. 4. The plaintiff was a foster child of the deceased and her husband Mr [P]. The plaintiff lived with the [Ps] from 1967 when she was four until early 1979 when she was 16. There is no dispute that the plaintiff is an eligible applicant pursuant to s 57(1)(e) of the Succession Act 2006 (NSW), being a person who was, for that period, dependant on the deceased and a member of the household of which the deceased was a member. 5. The defendants, the executors, accept that there are factors warranting the making of the application (Succession Act, s 59(1)(e)). The defendants also accept that the legacy of $20,000 is not adequate provision for the plaintiff's proper maintenance, education or advancement in life (s 59(1)(c)) and that some further provision should be made. 6. The plaintiff submits through her counsel that she should receive the whole estate. The defendants submit that appropriate orders would be for the provision of up to $90,000 to the plaintiff in lieu of the legacy in the will and an order for payment of her costs on the ordinary basis out of the estate. Background 1. The plaintiff was born in August 1962. On 4 May 1967 the Children's Court found that her mother was unable to provide her or her siblings with accommodation and she was a neglected child. She was made a ward of the State. As I have said, later in 1967 she was placed in foster care with Mr and Mrs [P]. They had no children of their own. The placement was successful, it appears, at least in the early years. The plaintiff was fully integrated into the [Ps'] family and was brought up as their natural child. 2. At that time Mr and Mrs [P] were managing a motel in Randwick. By the following year they made enquiries of the Department of Community Services as to the possibility of adopting the plaintiff. As Mrs [P] was a devout Roman Catholic, the plaintiff was baptised in the local Catholic Church on 13 August 1968. Mrs [P's] sister [JK], known to the plaintiff as Aunty [JK], was her Godmother. 3. The proposal for adoption did not proceed when the plaintiff was young. Initially the reason for that was that the plaintiff's natural parents could not be found. Later, when the plaintiff's natural mother made herself known to the Department, she refused consent to adoption. 4. A Departmental report of 22 March 1971, when the plaintiff was nine, records that the plaintiff had little or no recollection of her natural parents and that the foster parents were anxious for adoption. 5. On 13 January 1972 the Departmental Officer recorded that the plaintiff's placement with her foster parents continued to be satisfactory and that: "Mr and Mrs [P] are both extremely fond of [AB] and would like to proceed with adoption. [AB] accepts the foster parents as her family and presents as a lively and outgoing girl." 1. In about 1971 the family moved to [yy] in Queensland and the [Ps] managed a motel there. In about 1973 Mr [P] built a motel of his own in [xx] and the family moved to [xx] in July of that year. A Departmental file note of a visit to [xx] by a Departmental officer in June 1974 states that [AB] had settled in easily and well and that: "Both Mr & Mrs [P] asked about the possibility of adopting [AB] and when informed that at 12 years of age she would have to give consent to her adoption, they agreed that this would be a very good thing for the girl and for themselves. [AB] was not asked about the possibility of adoption, but from her attitude towards the foster parents and from her length of time with them, it seems obvious she would be quite willing to consent to their adoption of her." 1. It appears that it was not until she was 12 that the plaintiff was told that she was a ward of the State. She accepted the explanations without qualms. The Departmental file note of 7 March 1975 described the plaintiff as a very pleasant, happy natured little girl who very obviously had a stable and secure foster home where she was given every care and affection. 2. In about 1976 Mr [P] suffered a stroke. Against the wishes of Mrs [P] the motel was sold and the family moved to a house in [xx] called [S]. 3. It appears that it was in 1976 that the plaintiff's natural mother made contact with the Department and stated that under no circumstances would she sign adoption consents even if her children wanted to be adopted. The Department then proposed to commence preliminary adoption action on a contested basis. That decision was changed the following year. 4. The plaintiff deposed that after the family sold the motel and moved to [S] there were frequent conflicts between Mr and Mrs [P]. It is unnecessary to refer to the details of these matters. The plaintiff was then about 14. A Departmental file note records that as a result of a visit made on 27 September 1977 the officer of the Department was informed by both Mr and Mrs [P] that they had decided to separate. He noted that the home situation had deteriorated since his last visit to the home. The plaintiff informed the Departmental officer that she would like to live with her foster mother, Mrs [P], and was very attached to Mrs [P]. Because of the domestic disharmony and the expressed intention of Mr and Mrs [P] to separate, the proposed adoption proceedings were suspended. In fact Mr and Mrs [P] did not separate in the sense of living in different houses, although according to the plaintiff's evidence, they may have lived substantially apart within the house. 5. The Department, no doubt correctly, thought that it continued to be in the plaintiff's best interests that she continue to live with her foster parents. A recommendation to that effect was made on 8 December 1977. The Department's file note records that: "over the years this has been an excellent foster home and hopefully the differences between the foster parents can now be resolved as I would not like to see [AB] be removed from this home. [AB] is regarded as their natural child and she has always received excellent care, love and attention from both Mr and Mrs [P] and it would be a pity if all this good work was wasted due to the ill-health of Mr [P]. [AB] would not ever accept the fact of leaving the foster home especially Mrs [P], and hopefully this situation will now not arise." 1. The same Departmental officer recorded that Mrs [P] and the plaintiff in recent months had borne the brunt of Mr [P's] ill health. 2. Relations between the plaintiff and, at least Mr [P], deteriorated during 1978. The plaintiff was 16, and no doubt, experiencing the difficulties that can attend adolescence. She complained that Mr [P] was too severe to her. He used the threat of terminating the foster parent and child relationship, and of her moving to an institution, as an attempted means of disciplining her. 3. In a file note of 1 November 1978, Mr McIlveen, a Departmental Officer with the Department of Community Services recorded, as a result of a home visit made that day, that, it was obvious to him that the relationships between the foster parents were not at the best. He said: "[AB] is now going through very difficult teenage years and her foster father in particular displays no sympathy or understanding what so ever, and expects [AB] to behave in all areas as she did as a younger girl. The matter was discussed with all parties in an effort to improve the communications withing [sic] this family but it was obvious although [AB] and her mother were prepared to make efforts to improve areas in which they possibly exhibited weaknesses the foster father would not move an inch from his position in the whole affair. In this officer[']s presence he told [AB] that if she did not shape up that he would have her removed from the home, and it was under this threat that the visit terminated." 1. Later that month, Mr [P] sought to implement that threat. He contacted the Department and asked that the plaintiff be removed. 2. Initial arrangements were made for that to be done on 14 November 1978, however, that action was stayed for a time in order that the plaintiff could remain at school to the end of the school term, which she needed to do in order to obtain her School Certificate. She was then finishing year 10. Again on 14 November 1978, Mr McIlveen recorded in his file note that: "She [the plaintiff] was obviously extremely upset about the whole foster placement, she was torn between the desire to remain in a home, the only home she has only known and desire to get away from a foster father who was now completely rejecting her. Very reluctantly [AB] agreed to remain in this home until she qualified for her School Certificate. There [were] still strong ties between the foster mother and [AB] and also [AB] recalled the closeness that once existed between her and the foster father, for these reasons [AB] was not removed immediately as it was hoped that communications and [feelings] within this home would resolve themselves and the placement would remain intact." 1. Unfortunately, the placement did not remain intact. Although it might appear from the file note quoted above which is dated 14 November 1978 that the plaintiff also then wished to leave the [Ps]' house, it appears from a later file note of 30 November 1978 that she told Mr McIlveen that she wished to remain there. He recorded that: "she realises that she herself: will have to make more positive effort to live harmoniously with her foster parents to curb her cheek and improve her attitudes in the manner in which she addresses her foster parents, to respect their wishes more and to attempt to understand their position better when attempting to establish her point of view." 1. Mr [P's] position appears to have been unchanged. He asked Mr McIlveen to threaten the plaintiff with placement in an institution if she did not conform to the standards set in the home. Mr McIlveen told Mr [P] that he could not comply with his wishes in that matter. 2. In circumstances which are somewhat unclear, the plaintiff was removed from the [Ps'] home at the beginning of 1979. No Departmental file notes in relation to this event were tendered. 3. The plaintiff deposed that in early 1979 before she recommenced school for year 11, she was riding her horse on her way home, when a car stopped and a person got out of the car who told her that he or she was from welfare. She went to her home, and welfare officers removed her from the house. After a short stay with her siblings, who were in different foster care, she was placed by the Department with a couple at [zz], where she worked as a farmhand. She was then 16. She greatly enjoyed working with horses, and presumably it was thought that this would be a suitable placement for her where she could fulfil that desire. 4. The plaintiff went to Technical College at the time. But she deposes that when she was at the placement at [zz], which was between February and Christmas 1979, she was subjected to physical and sexual abuse. 5. After the plaintiff left the [zz] placement, and after a short placement in Richmond, she moved to Bathurst to work as a stud hand. This was in 1980. She did not return to her former foster parents, Mr and Mrs [P]. This was notwithstanding that on 16 August 1979, Mr [P] wrote to Mr McIlveen at the Department of Youth and Community Services stating that: "I should very much like you to record, that if [AB] ever offend Mr + Mrs [C] or for any reason cease to fit into their pattern of life, her home will still be here." 1. In that same letter, Mr [P] said he hoped there would be no embargo on the plaintiff's "visiting home occasionally, as to this end we miss her very much". Although there were some visits to the [xx] home of the [Ps], cohabitation did not resume. 2. The plaintiff married a Mr [BB] in Bathurst on 7 February 1981. Her Aunty [JK] attended the wedding. The plaintiff deposed that shortly before the wedding, Mrs [P] rang her and said, "Dad and I can't make it to your wedding because dad's really ill. He is not well enough to travel." 3. On 15 July 1981, the plaintiff gave birth to a daughter, [AD]. She was then just 18. Having regard to the deceased's religious convictions, and a letter which the deceased wrote to the plaintiff in April 2013, it can be inferred that the deceased disapproved of the plaintiff's early pregnancy, although no doubt was grateful that the plaintiff married. 4. The plaintiff deposed that after the birth of her daughter, [AD], Mrs [P] rang her and said, "I'm happy that I've got a granddaughter." For reasons which follow, I do not accept the plaintiff as being an entirely reliable witness. Indeed, there are parts of her evidence that I cannot accept. I doubt that the deceased would have considered the plaintiff's daughter as her own grandchild. As her later correspondence made clear, she was critical of the plaintiff's pre-marital sexual relationship with [BB], and I doubt that she would have seen her foster daughter's child as her grandchild. 5. That does not mean that the deceased separated herself from the plaintiff. To the contrary, I accept evidence given by the plaintiff that two months after [AD's] birth, Mrs [P] visited her in Bathurst and stayed with her, slept at her house for about a week, bought her some whitegoods, helped prepare her meals and helped her look after her daughter. 6. I accept the plaintiff's evidence that Mrs [P] asked the plaintiff to bring her daughter, [AD], to [xx] to be baptised, and she was baptised in the Catholic Church in [xx]. I accept the plaintiff's evidence that from 1981 to 1986, she occasionally received presents and money for her daughter, [AD], from Mrs [P]. 7. In 1983, the plaintiff and her husband moved to Goulburn for his work. Their second daughter, [DB], was born in 1984. The plaintiff, her husband and daughters visited the deceased in February 1985, and [DB] was baptised in the [xx] Catholic Church in that year. Succession Plan 1. The plaintiff deposed that in February 1985, there was a conversation between her, her foster parents and her Aunty [JK] about a succession plan. She deposed that a conversation to the following effect took place: "Dad: 'I am concerned about my failing health.' Mum: 'we felt responsible for the huge upheaval in your life when sending you away.' Dad: 'I accept you having children at an early age, but I would have loved to be part of setting you up in business. You didn't achieve your full potential due to the disruption as a teenager. After I'm gone, I want to ensure that mum would see her years out with the support of her sister. The plan is that Aunty [JK] move in with mum when I pass away. Your Aunty is keen to do this as she has rented the same unit in Sydney for almost 40 years and was never intending to marry. Mum and I have owned our home (… [xx]) from the date of purchase and we live off our investments. I want to ensure that once mum and Aunty [JK] see out their lives comfortably and pass away, that you will be left the estate as the last remaining family member so you can also be given the same security in your aging years.' Mum: 'You don't have to worry, this will be all yours one day.'" 1. There was no corroboration of that evidence. The plaintiff was not cross-examined on that evidence, nor on evidence which she gave about later discussions she had with Mrs [P] about what she called a succession plan. None of the other parties to the asserted conversation is alive, and there would be little scope for cross-examination. Having regard to my doubts as to the credibility of the plaintiff as a witness, and having regard to the need for caution in accepting such evidence about statements made by persons now deceased (see Plunkett v Bull (1915) 19 CLR 544 at 548-549), I do not accept that evidence. 2. Moving forward in the chronology, in July 2008, the plaintiff's Aunty [JK] died. The plaintiff gave evidence while after visiting Mrs [P] in [xx], after [JK']s death, she had a conversation with Mrs P to the following effect: "Mum: 'You remember Col from Sydney?' Me: 'Yes, I used to see him when he visited Aunty [JK] in Sydney or we would visit him just down the road from Aunty [JK's] home.' Mum: 'Yes that is right. Well he died recently and your Aunty [JK] was left something when he died, which was a portion of the sale of his unit which was approximately $140,000.00. This has now been left to me and I feel guilty because your Aunty [JK] didn't even get to use any of it.' Mum and I also had the following conversation:- Mum: 'Everything is taken care of regarding my will and the estate. I will be buried between your father and Aunty [JK] as I have shown you at the cemetery. I wish to have the same headstone as the one I have ordered for Aunty [JK]. If anything happens to me contact Roger Braham. I have a Will and it is at Braham's. He will know what to do when the time comes.' Me: 'Mum is there anything you want me to do?' Mum: 'No it has all been taken care of and as I promised your father, you don't have to worry, this will all be yours when I'm gone and God takes me.' Me: 'Are you still okay looking after yourself in the house?' Mum: 'I don't want to go anywhere. I am able to drive and get around. I am quite comfortable and capable.' Me: 'I agree. I just wanted to be sure that you are okay.'" 1. Again, I do not accept that evidence. Mrs [P] made four wills between 2005 and 2013. Each of the wills is inconsistent with the suggested representation that the plaintiff says was made to her, and that was repeated to her, that ultimately, after Mr and Mrs [P] and [JK] died, she would inherit the estate of the survivor. 2. There is no obvious reason why, if the deceased did make the representation, she would not have honoured it by making a will accordingly. And it would be simply false for the deceased to have said in 2008 that she had made a will that took care of matters and that would ensure that the plaintiff inherited her estate. Relationship with deceased from 1986 1. Mr [P] died in July 1986. The plaintiff attended his funeral. The plaintiff's husband, Mr [BB], left her in April 1986. The plaintiff deposed that from about 1986 to about 2001, she saw Mrs [P] and [JK] at least once or twice a year. [JK] moved to [xx] either before or shortly after Mr [P's] death. The plaintiff deposed that during this period from 1986 to about 2001, she telephoned Mrs [P] about once a month or once every couple of weeks, and they spoke about life in general. I accept that evidence. On one occasion over that 15-year period, the plaintiff's daughters, [AD] and [DB], stayed with Mrs [P] in [xx] and were dropped back to their home with the plaintiff, then in Brisbane. 2. Contact continued between the plaintiff and the deceased by telephone with visits once or twice a year. The deceased sent the plaintiff a 50th birthday card in 2012. Although the signature is very indistinct, it may have been signed off "Love From Mum". On the card, Mrs [P] expressed her regret that she was not able to attend the plaintiff's 50th birthday, and said that the reason for that was because of health problems which unfortunately precluded it. 3. Whilst the plaintiff and Mrs [P] thus remained in contact with each other, and the contact continued until shortly before Mrs [P's] death in 2013, it does not mean that they were on good terms. 4. [JK] died in 2008. The plaintiff deposed that Mrs [P] did not tell her of [JK's] declining health or of her death until after the funeral. 5. I accept that that is so. It is clear from evidence given by two of Mrs [P's] friends, the defendants, Mrs Greentree and Mrs Curry, that that was in accordance with [JK's] wishes. It seems that at least by 2008, the relations between Mrs [P] and [JK] on the one hand, and the plaintiff on the other, were poor. Correspondence with deceased 1. At some time, between the end of 2011 and in April 2013, the plaintiff wrote to Mrs [P] asking for a loan of $80,000 to help her and her then partner, a Mr [W], to assist them in buying a house. I make that finding notwithstanding the plaintiff's denial that she made any such request for a loan, and her denial that her relations with Mr [W] were anything other than his being a good friend and housemate. 2. The evidence of that request took the form of a letter addressed "Hi Mum", and signed in handwriting in one hand or in one pen "Love [AB]", and in another, "Best wishes from [W]". 3. The plaintiff denied any knowledge of the letter. She denied that the handwritten words "Love [AB]" were in her hand. However, the writing of those words is strikingly similar to the same words which appear on a later letter that the plaintiff acknowledges having written, and the form of at least one of the letters, namely, the letter "a", is strikingly similar to the form of that letter in the signatures on the plaintiff's affidavits. 4. I am satisfied that the plaintiff did prepare and send the letter. It was received by Mrs [P]. Mrs Curry said that Mrs [P] was extremely upset when she read it, and that she gave it to her, that is, Mrs [P], also to read. I accept Mrs Curry's evidence. The letter was amongst Mrs [P's] papers that were found after her death. 5. If the letter were not prepared, signed and sent by the plaintiff, it must have been prepared by someone else and the plaintiff's signature forged. I regard that possibility as fanciful. 6. In the letter, the plaintiff asked Mrs [P] for a short term loan of $80,000 to enable her and Mr [W] to purchase a house they had in mind. Apparently, this would be a loan until the plaintiff received a settlement from which the loan could be repaid. I infer that the settlement referred to was a settlement of family law proceedings then on foot between the plaintiff and another partner, a Mr [M]. 7. No such loan was forthcoming from Mrs [P]. I accept Mrs Curry's evidence that she was upset by the letter. 8. In April 2013, the plaintiff wrote to Mrs [P]. Amongst other things, she made some complaints about conduct of her daughter and niece, and she said that she was glad that she and [W] had not rushed into trying to pay off a house at that stage as they would have struggled terribly to meet the loan payments. 9. She went on to set out what the deceased obviously regarded as grievances. Because the letter and the deceased's reply to it are perhaps the most cogent evidence of their relationship at this late stage of the deceased's life, I will set out parts of the letter verbatim. The plaintiff wrote: "I am confused about one thing with you though. I am not sure why you rushed over to see what we were going to buy. If you were going to help loan me the money for the deposit then why did you need to rush over to come and see what house we were thinking of purchasing? I am wondering if you were planning to move over here because you were unsure how well you were going to recover with your hip. Mum I need you to know that if you were thinking of this we would have been very happy to work something out with you, but we would have looked at very different houses, one to accommodate you comfortably as well. There are plenty around but we would have been looking at different houses altogether. I wish you could be honest about your intentions because all I was asking initially was help to stay [sic] owning a house. Anyway what is done is done and I wish sometimes you could see that your cryptic messages and your 'bull at a gate' approach can make it difficult to understand your intentions. Maybe that is how you like it, I don't know… I am glad that you have been able to make your house comfortable and have all the things that you need and that are important to you right now. However if things change in the future and you need more support I am happy to be there for you in whatever way I can but you need to understand that you need to let go of petty grudges and stressing over the small things like a few cross words. I would like you to understand something else about me. You have been able to leave the past in the past and forget about many things that happened because you have been able to continue living a comfortable and sheltered life. However for many years I have had many painful things to deal with. I have hoped and waited for the day where you and I could have a heart to heart conversation so we could find peace about many things and I guess when you came to visit I could not contain the many questions. All I know now is that I simply will not continue to allow you to try and be cruel and unkind to me for things that you and Dad are responsible for after all you were the adults at the time. I have done the best I could in my life with the cards I was dealt and it is as simple as that. I want you to understand that when I was taken away from you the welfare never gave me the choice to return. Maybe that is what you wanted because Dad was sick?? I don't know. Anyway, I know you and Dad wanted to adopt me and I would have loved for this to happen… You, Dad, Aunty [JK] and my grandparents when they were alive have always been my family in my eyes and always will be. I will always treasure the happy memories I have… It is not fair that this one piece of paper for adoption would have changed the path that you and Dad could have set for me. You would not have been able to simply hand me back to the welfare when the need to work through family issues became too much. You need to understand that I was exposed to the very things you were trying to shelter me from once you sent me away. I was vulnerable and an easy target for some undesirable people. You and Dad needed to understand that the people you say were a threat to me when I was living at home were no threat to me compared to what I became exposed too [sic] when you sent me away. I have had to live with this and make the best of what I could. You also need to understand that you and Dad may have given me a good education, etc which is what parents should do but I did not have very many life skills because you and Dad did not deal with emotion and feelings openly and I had to learn these things the hard way and many years later I am still confused about feelings and emotions." (emphasis in original) 1. The plaintiff compared her lot in life with the better position of her children, or at least the better position of her daughter [DB]. 2. This letter prompted a bitter reply from the deceased in June. 3. The letter sent by the deceased in June was for the greater part typed for the deceased by Mrs Greentree. But it is clear from Mrs Greentree's evidence, and from contemporaneous documents which she produced, that the true author of the letter was the deceased. No contrary submission was ultimately made. Mrs Greentree typed the letter from some partly typewritten and partly handwritten material provided to her by the deceased. 4. In her reply, Mrs [P] said, amongst other things, the following: "I am pleased that you are liking the new house that you just moved into and that it is in such a good position, near the Hospital, near the shops and not far from [DB]. You could not have found a better one, I can only hope that you can have it for a long time, as I agree that constantly having to move is a big drain and beside you want somewhere that you can call home. I'm glad that you agree that putting a deposit on a house under the circumstances you find yourself in would have been a big struggle. You may not have been able to pay the mortgage and could have lost everything as so many have done. I am deeply sorry that you are confused, so let me unconfused you, for one thing I did not, as you crudely put it 'rush over to see what we were going to buy'. As it happened I had the opportunity of going up to Brisbane with Kevin. I had never thought of, or planned to 'move over here.' As far as my leg is concerned, I can give you my assurance that at no time did I feel unsure about the complete recovery of my leg and that would happen whenever I was domiciled, so do not let that confuse you either. [AB] you do not need to know what I am thinking. As a matter of fact there is no possible chance that you will be privy to what I am thinking, again it is none of your business, so do not concern yourself about it. I would consider that you have more important things to worry about than what I am thinking. I have no doubt that you would be very happy to work something out and you would [have] looked at different houses, one to accommodate me comfortably and one that we could all live in as one happy family. You wish that I would be honest about my intentions. Well I will be honest as you have asked me to be, but whatever my intentions are is nothing to do with you and what you are suggesting in a round about way, is that I buy the house and we all move in as one happy family. What you are suggesting is everything to suit you, I can only suggest that you think that I am either senile or naïve or both. Well now I will once again, be very honest as you want me to be and I will tell you that I would not live with you again under any circumstances, nor have I any intention of leaving [xx] and my very dear friends. So [AB] that should make it clear to you where I am coming from, so that you will not be expecting me to 'move over' as you say. To have even conjured up such an idea, I can only think that you have nothing better to do than sit in front of your computer wondering how you can annoy me, and if that has been your intention, you have succeeded with flying colours. You know that I would not leave my home and if I find myself in such drastic circumstances that I have to, I would go to a home here in [xx], and anyhow [AB], even you would know that I would not back up for another dose of your treatment. I do not think you realise it, but I could have got pneumonia. As you so rightly say what is done is done. You say that my 'Cryptic' messages and 'Bull at a Gate' approach has made it difficult for you to understand my intentions. Well I will tell you that what my intentions are and I repeat again has nothing whatever in this world to do with you. So do not sit around waiting for me to explain my intentions to you. I am offended at your description of me, maybe one day you will learn to be more diplomatic. As far as understanding something about you, I can assure you I understand you very well. I am sure that you are glad for me that I have a house that is comfortable and all I need, and I can assure you that I will not need any more support, as I have all the support here from my friends. I do not, as you say, have to let go of petty grudges and stressing over small things like a few cross words, I will leave that all to you. I have no doubt that you have had many painful things to deal with, ninety percent caused by yourself. You cannot lead a life centred on yourself and find happiness. I am sure you have hoped for the day when we could get together and have a pow wow. I am afraid that can never happen, when the opportunity has arisen you end up screaming like a demented Banshee, for example on that Friday morning when we were just talking and something started you off and I had two hours of your abuse. So thank you, but no thanks, I have no doubt you could not contain the many questions, but I do not think you would like the answers. If you cannot continue to allow me to be cruel and unkind to you, then [AB] there is a simple remedy to that, stay on the other side of the border. As far as the cards you were dealt with, you did a good job of dealing some of your own, for example, getting yourself pregnant at 18 when neither of you had a job. Yes [AB] I understand why the Welfare never gave you the choice of returning, because we did not want any more of your nastiness and by then our lives had got back to some normality. Even when I picked you up at [zz] to bring you back for a visit you couldn't have been nastier. Yes [AB] we both wanted to adopt you at one stage. But your disobedience, you[r] cheek, your desire to do only you[r] own thing, regardless of anyone else and finally your sneakiness, put pa[id] to you[r] ever being adopted. You may remember when you were asked to be home by 12 o'clock for Sunday lunch, as I wanted to go into Mrs. Curry's as we had planned to go out to the Golf Club, and [Mr P] wanted his usual afternoon rest. But as you wouldn't comply, so [Mr P] told you that you were not to go out that afternoon. As you know he slept near the window where he could see the front gate. But you were far too sneaky for that and went our [sic] via [Mc's] so he couldn't see you. But I thought I saw you in [Mc's] paddock when I went in and picked Mary up (late), so we went up to where there were a lot of horses, I think in Derby Street, and there you were as large as life. When I called you over, you came and I told you to go home, you gave me so much cheek that Mary tore into you for speaking to me as you did. When [Mr P] heard about what you had done and the sneaky way you did it, he said enough is enough, I will ring Welfare tomorrow and she will just have to go back, she is not trustworthy. You cooked your own goose, but it was only a build up of so many things, your cheek, your desire to only do what please[d] you, instead of for the whole, you were a one man band, and that is not how a family operates and the Welfare understood where we were coming from and that you were out of control. … I am afraid [AB], you are giving me the pip there is no comparison between what things were like when you had [AD] and [DB] and what the young people get today. They have so much help from the government that you did not have. But for heavens sake stop your winging [sic] and beefing about what was then and now and get yourself a life. You sowed the seed and now you are reaping the harvest, so stop complaining, you cannot change yesterday so stop trying and make the most of what you have. There are plenty of people and children starving." 1. In assessing the relationship between the plaintiff and Mrs [P] four things are of particular note. The first is that, at least until her teenage years, and perhaps right up until the time shortly before her foster placement with the Ps was terminated, the plaintiff was brought up as a natural child of the Ps. This is clearly evidenced by the file notes of the Department of Community Services, and by the fact that the Ps wished to adopt her. 2. Secondly, the breakdown of the relationship between the plaintiff and the Ps was caused in large part by their marital difficulties and by the inflexible attitude of Mr P. 3. Thirdly, the termination of the foster care arrangement by Mr P led to the plaintiff's suffering physical and sexual abuse at her next foster placement. 4. Fourthly, the plaintiff maintained a relationship with the deceased for the rest of her life, but at least in the later years that relationship was strained. 5. In relation to this last matter, Mrs Greentree gave evidence in cross-examination that I accept as follows: "Q. You never mentioned to [Mrs P] that a reconciliation would be a good idea? A. (Laughs.) Q. That is a yes or no question? A. No. Reconciling what? Q. A reconciliation between [AB] and [Mrs P]? A. She had tried so hard every phone call. [W] was the one that was always the peacemaker because when [AB] would ring up there would be a terrible argument and then [W] would do that. [Mrs P] tried her very hardest and as she said, [AB], everybody else was accountable but [AB] wasn't. So it would have been lovely if that was why - when [AB] had been so distant from [Mrs P] for so many years and after [JK] died we did hope that she would have somebody, because when you get to 90 there's not that many people that are around that are aware of early days. But it wasn't what we had hoped. When we - when we - she said oh, she's caused so much upset in the past and we said well she's matured so, no. We definitely - we hoped but it wasn't a Pollyanna story, I'm afraid." Plaintiff's financial position and prospects 1. I turn to the topic of the plaintiff's financial position and prospects. The plaintiff is currently unemployed. Her only income is from a disability pension and what she calls additional Centrelink supplements. 2. She lives in a three or four-bedroom and three-bathroom house with a pool in [ww], a suburb of Brisbane, in Queensland. She pays rent of $400 per week. 3. According to her affidavit, her fortnightly income of $988.60 is just enough to cover her expenses. But it appears from other evidence that she gave that that income might be insufficient. 4. The plaintiff completed school only to school certificate level. Whilst it appears that she attended a course at a Technical College after she left school, it does not appear that she obtained any further formal qualifications. 5. The plaintiff obtained employment when bringing up her two children as a single mother from 1986. It is not clear for how long she remained in the position of a single mother, but her life must have been difficult. There was evidence that she had at least one other relationship, that is, one with a Mr [M] that came to an end in 2008, but no evidence as to when her de facto relationship with Mr [M] started or what support, if any, he provided for her. 6. It appears that the plaintiff and Mr [M] had owned a house which was mortgaged. As a result of family law proceedings, the property was sold. The plaintiff gave evidence that she received less than $10,000 from the sale of the property, and it appears that any amount received from her family law proceedings with her former de facto partner has not resulted in her acquiring any substantial assets. 7. Her total assets, apart from superannuation, consist of a bank account with a few thousand dollars in it, a very small shareholding, and some household contents. She estimates her assets, apart from superannuation, to be less than $10,000. She also has approximately $40,000 in various superannuation funds. 8. The plaintiff received two payments totalling $11,500 from the Commissioner for Victim Rights, under the Victims Rights and Support Act 2013 (NSW). The plaintiff gave evidence, which I accept, that she has used those moneys for every day expenses, in particular rent. 9. In the past the plaintiff has held responsible employment positions, including a position at what she described as a middle management level. But she is currently unemployed. The plaintiff deposed that she had worked in a couple of unstable working environments with no real job security for a couple of years prior to becoming unwell physically and mentally, and coming under the care of health care professionals. She said that she had had a responsible position with an employer called Advanced National Services in selling cleaning and security contracts. She said that she was dismissed from that employment, and that circumstances leading up to the dismissal made her presently unemployable. She said this was because the manager had harassed her on a personal level, and "I realised that I was vulnerable to abuse in a professional level for the first time in my life". This happened at about the end of 2010. 10. From December 2012, the plaintiff has been seeing a psychiatrist, a Dr Tony Cook, monthly. She is also seeing a psychologist, a Dr Darina Rich, once a week or once a fortnight, and also receiving counselling from other organisations as she seeks to deal with the issue of abuse. Dr Cook said that the plaintiff presented with symptoms of a Major Depressive Disorder. He said: "This includes such things as a low mood, poor sleep, lack of enjoyment of previously pleasurable activities, guilty feelings, poor energy levels, poor concentration, some irritability, and vague suicidal ideation. All of these are sufficient to make a diagnosis of Major Depressive Disorder. However, I think that these really are only the surface manifestations of her problem, which stem from her very disrupted childhood and adolescence. [AB] told me that she was placed into care at the age of four with [Mr and Mrs P], and remained with them until she was aged about sixteen. This was because of the fact that her own mother could not support her, and, in fact, abandoned her. In my opinion, her being placed in care has left her with underlying beliefs of feeling alone and isolated, having difficulties in relationships, feeling not being good enough, feelings of low self esteem, feeling that all of this was her fault, being feeling numb emotionally, and having an inability to trust others. In essence, she has not grown up with the loving, caring trust that children normally have with attuned caregivers, and this has been the cause of her ongoing psychiatric distress." 1. Dr Cook is also of the view that a proper resolution of this case, with appropriate recognition of the plaintiff's claim on Mrs [P's] estate, would have a very positive effect on her prognosis. 2. The plaintiff hopes to enrol in a degree course to study human services, social work, or something similar to that. She deposed that her counsellors had suggested that it would be beneficial for her to study for such a degree so that she could obtain a good job that was stable. She deposed that: "There is a growing need for these types of services in community legal centres and other service networks ... There will be part time opportunities in the future due to the lack of services." She hopes to enrol in Griffith University which is close to where she lives. 1. The plaintiff has liabilities for legal costs. At present, she has no means of satisfying those liabilities, except out of whatever provision she obtains from the estate. 2. The plaintiff's affidavit suggests that the pension she receives from the government just about covers her costs of rent, utilities, insurance, groceries, pharmaceuticals, and other expenses. But as I have said, she has used the "recognition" payment of $11,500 to cover expenses, in particular, rent. 3. It appears that the plaintiff started renting the house in which she still lives when she was sharing the house with Mr [W]. He left the property in December 2014. Although the property was described in an Internet search as a three-bedroom house, the plaintiff herself in her first affidavit, when she was living in the same place, described it as a four-bedroom property in which she then lived with Mr [W] and which her grandchildren came to visit. 4. She has recently signed a new six-month lease. It could be expected, I think, that when that lease expires, she could find a smaller property more suitable for her current requirements. Of course, there is uncertainty as to what might happen in the rental market between now and then. Competing claims 1. There are competing claims on the estate. By her last will, the deceased left legacies totalling $17,000 to orders of the Catholic church or to her local parish church. 2. The deceased was a very strong and devout Catholic. She attended mass daily. She was a sacristan and secretary of the parish. For about 15 years she was a catechist. She attended prayer meetings. She acquired a television that was tuned permanently to a Vatican channel. It is clear that her faith and the Catholic church were a vital support to her and a vital part of her life. 3. The deceased left legacies of $10,000 and $5,000 to a Ms Rowe and a Ms King. 4. Ms Rowe is aged approximately 60. She is an old friend of Mrs [P]. She is presently on kidney dialysis and in modest financial circumstances. 5. Ms King is a daughter of Mrs Curry. She is a single parent with three children and she provided occupational therapy to the deceased. 6. The deceased left a legacy of $10,000 to [DB]. In her 2011 will the deceased had left a one-fifth share of residue to [DB]. 7. In her letter of July 2013 the deceased defended [DB] against her mother's criticisms, and made the comment that, "As far as [DB] is concerned maybe she was nicer than you ...". 8. In any event, although the plaintiff sought an order for provision of the entire estate, she also said that she did not wish to disturb the legacy to her daughter. 9. There are four residual beneficiaries. Mr Kevin Fahey is a residuary beneficiary as to a three-fourteenth's share. He is 84. He is on an old age pension. He owns his house and has a small amount of cash reserves. He has a 1994 car which he still drives but which needs to be replaced. He needs to be able to drive the car because of the lack of public transport in [xx]. His house needs work. He knew Mrs [P] since he moved to [xx], which was not later than 1984. He was a very close friend of Mrs [P's] and assisted her with jobs around the house, such as fixing leaking pipes, dealing with a flood in the garage, fixing kitchen cabinets and other like jobs. He regarded the deceased as a "sort of sister". He was not aware that provision had been made for him in the deceased's will. 10. Ms Doreen Krahe is a residuary beneficiary as to a three-fourteenth share. She is 81. Her husband died last year. She owns a house and a car in [xx] but, somewhat like Mr Fahey, she needs a new car because her car is too old and too large for her. She is also on an old age pension. She has a small surplus of liquid assets over liabilities. She was also a close friend of the deceased. She has lived in [xx] all her life and has known Mrs [P] from shortly after Mrs [P] came to [xx]. They met initially through the [xx] Catholic church and were engaged in church activities together. They attended prayer meetings together. In earlier days when Mrs [P] played golf, they played golf together, and Mrs [P] taught Mrs Krahe how to play golf. Sometimes Mrs [P] provided her with clothes. Mrs [P] provided her with support during Mrs Krahe's husband's illnesses. 11. The other beneficiaries are the executors, Mrs Greentree and Mrs Curry, each as to a four-fourteenth's share. They also were or became close friends of the deceased, although they were both younger than the deceased. 12. Mrs Greentree met Mrs [P] in 1973. They also knew each other through their activities in the Catholic church. Mrs Curry drove Mrs [P] to places outside Armidale in later years, even when Mrs [P] still had her licence, that is to say, before she suffered a fall in May 2011. They were close friends. 13. Mrs Curry became a close friend of Mrs [P]. Mrs [P] had previously been a close friend of Mrs Curry's mother-in-law. Their friendship developed during the illness and death of a Mr Webb who had been a very close friend of both Mrs [P] and [JK]. After Mrs P fell and fractured her hip in May 2011, Mrs Curry became involved in her personal care. She also then drove Mrs [P], when needed, around [xx]. In the last 12 months of Mrs [P's] life Mrs Curry did all of the work that a carer might do but on a voluntary basis and as a friend, including showering and washing Mrs [P] and doing the household chores and cooking meals as well as attending to her accounts. 14. Mrs Curry was asked in cross-examination: "Q. But for your services provided to[P], would [P] have been in a nursing home? A. Probably at the latter part. She was always very grateful for that. Q. It was always the case that [P] never wanted to be in a nursing home? A. No." 1. I accept that evidence. The last answer is an affirmation that Mrs [P] never wanted to be in a nursing home. It was due to Mrs Curry's care for her that that prospect was avoided. 2. The importance of these friends in Mrs [P's] life can be discerned not only by the provision which she made for them in her will, but from her letter of June 2013 to the plaintiff. Mrs [P] concluded that letter by saying: "As I said in my letter we live in different worlds, which makes it impossible for us to have a happy relationship. The world I live in is a happy one, where everyone is in complete harmony with one another, and there is not one bitter word spoken. I can only conclude that it is because we all love our dear Lord so much and receive Him every day and His love flows out to all around us. I am very sorry for you and your bitter outlook on life and I am sorry for the regret you must have for not being adopted, what a difference it would have made to you now, but it was not to be. As you have asked me to be honest with you I will try and make you understand that I am not your Mother and I am not part of your family, you have your family in [DB] and the children, and I hope that you will take good care of them, and get some harmony and happiness in each others [sic] company, as it should be between families." 1. The position adopted by Mrs Greentree and Mrs Curry is that they will bear the burden of an order for provision in favour of the plaintiff so far as their shares of the residuary of the estate extends. Prima facie at least, this is a somewhat selfless position and one consistent with the picture I otherwise have of their relationship with the deceased. But their benevolence cannot reduce the extent of the appropriate provision that should be made for the plaintiff. Legal principles 1. As I have said, the defendants do not dispute that there are factors warranting the making of the plaintiff's application and that s 59(1) of the Succession Act is satisfied. The question is what order should be made under s 59(2) for the proper maintenance, education or advancement in life for the plaintiff? 2. In Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 I said (at [127]): "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]. This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 1. In this case I do not think that I should give considerable weight to Mrs [P's] judgment, notwithstanding that she was in a far better position than is the Court to determine the merits of the plaintiff's claim on her estate. The reason for that conclusion is, in part, that the defendants acknowledge that the provision made by the will is inadequate. It is thus common ground that the testatrix did not appropriately provide for the plaintiff in her will. Also, the letter written by Mrs [P] shortly before she made her last will and shortly before her death, shows a bitterness that is not consistent with the elevated and detached spirit that the hypothetical wise and just testator is generally expected to show. (See for example, Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540.) 2. The question of what level of provision for the maintenance, education, or advancement in life is proper depends on all of the circumstances of the case, including the plaintiff's financial position, the size and nature of the estate, the totality of the relationship between the plaintiff and the deceased, and the relationship between the deceased and other persons who have legitimate claims on her bounty and any other relevant circumstance. 3. The plaintiff is a foster daughter. In relation to claims made by foster children, Hallen J made the following observation in Hamilton v Moir [2013] NSWSC 1200 (at [138]): "In relation to a claim by a foster child, the following principles may also be relevant: (a) Making a conscious decision to bring a child into the world brings with it responsibilities. Taking a child into care, without adoption, does not involve the same commitment. If foster carers are asked if they are able to have a child placed with them, there is not an obligation to accept the child. They may, for any reason, decline to accept a child into their care. If they take a child into their care, and if it does not work out, the foster parents can have the child retaken from their care, and the State will resume care of the child as a ward of the State. However, experience teaches that the relationship of foster parent and child can change over the years as, hopefully, they grow together in their relationship: Carney v Jones [2012] NSWSC 352 per Macready AsJ, at [50]. (b) Whether there is a major difference in the obligation owed to a natural child compared to that owed to a foster child depends upon the facts of each individual case: Carney v Jones, at [51]–[52]. (c) A foster child brought up as a member of a family, in a secure and loving environment, may have a greater claim on his, or her, foster parent's testamentary bounty than a foster child who was not integrated into the family: Slack v Rogan; Palffy v Rogan, at [69]. (d) Some of the matters that may be considered relevant include the duration of the foster care relationship; the age of the child when she, or he, became a foster child to the deceased; whether the child was brought up as a permanent member of the family; the closeness of their relationship during foster care and subsequently; whether the foster child and foster parent maintained the relationship thereafter, and if so, for how long; and the extent to which the applicant was supported by the deceased, whether it be financially, educationally or emotionally" 1. Even in the case of natural children, there is no principle that a testator whose only close relation is his or her adult child is under a moral obligation to leave his or her entire estate to that child, nor to leave enough to that child to enable him or her to acquire a house. The Act does not allow for such preconceptions or predispositions. 2. In Taylor v Farrugia [2009] NSWSC 801 Brereton J said (at [57]-[58]) said: "[57] These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006]. [58] Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent." 1. This passage was cited with apparent approval by Ward JA (with whom Meagher and Emmett JJA agreed) in Burke v Burke [2015] NSWSC 195 at [106]. 2. These, of course, are at best only guidelines. By the same token, there is no rule or principle that adequate provision for the proper maintenance or advancement in life of an able-bodied adult child does not extend to providing him or her with a house or money to buy one (Mayfield v Lloyd-Williams [2004] NSWSC 419 at [110]; McGrath v Eves [2005] NSWSC 1006 at [68]). At the end of the day the Court must make an evaluative judgment having regard to all of the particular circumstances of the case with no certain criteria to guide it. Applications of principles, such as they are, to this case 1. The Plaintiff's case theory appeared to be that she should be treated as if she were the deceased's natural child and, as such, that the deceased had a moral obligation to leave her entire estate to her. 2. I do not accept either limb of that theory. The differences between the obligations accepted to a foster child and the obligations assumed to a natural child are significant. Certainly by the end of her life the deceased was very conscious of that. She emphasised in her last letter to the plaintiff that she was not the plaintiff's mother. By the same token, during the plaintiff's childhood she was brought up as the [Ps'] natural child, and that must be recognised in assessing an appropriate level of provision. 3. Section 60 of the Succession Act sets out a range of matters which may be considered in making the evaluative judgment under s 59. None of the matters listed is mandatory. No particular weight can be ascribed in advance to any of them. The weight to be given to each individual matter, in so far as it is relevant, depends upon the facts of the particular case. 4. Here, it seems to me, the critical matters are, first, the nature and duration of the relationship between the plaintiff and the deceased. 5. Earlier in these reasons I have identified the four matters that appear to me to be of particular significance in characterising that relationship, and I will not repeat those. 6. The second important consideration is a negative matter. That is the nature and extent of any obligation or responsibility owed by the deceased to the plaintiff. Of course, in one sense, the deceased has a responsibility to make provision for the plaintiff and that is the moral responsibility to which s 59 is intended to give effect. But the plaintiff also says that the deceased had a moral obligation to make provision for the plaintiff in her will by leaving her all of the estate because of the representations made both by Mr [P] and by Mrs [P] to the plaintiff that ultimately the plaintiff would inherit their estates. For the reasons I have given, I have not accepted that evidence and I do not find that there is any such additional obligation. 7. The third important matter is the small size of this estate. The fourth is the competing claims. 8. The claims of Mrs [P's] church and of her close friends, some of whom were friends for decades, are significant and were acknowledged as such by the deceased. 9. Having regard to those competing claims, I do not accept that adequate provision for the plaintiff's proper maintenance, education or advancement in life requires that she inherit the whole estate. That would be to treat her claim on the deceased as surpassing the claims of the deceased's church and her friends. Having regard to the nature of the plaintiff's relationship with the deceased, I do not think that that would be warranted. 10. The plaintiff identified a number of specific financial needs. These were the provision of a car, which she estimated would cost between $15,000 and $20,000, white goods of approximately $2,000, dental treatment of approximately $5,000 and a headstone for her father's grave of approximately $3,000. Adequate provision for the plaintiff would cover those matters with the exception of the headstone for her father's grave. I do not think that that is a matter for which a separate allowance should be made. But provision should be made for at least the other items identified, which come to $25,000 approximately. In addition, proper provision for the plaintiff's advancement in life through education is a provision that would enable her to undertake the degree course at Griffith University, to which I have referred. The evidence is that that course would cost $32,000. 11. I consider that the sum of $57,000 for the plaintiff's present and future needs is a starting figure. It does not cover costs which I expect the plaintiff will incur for, for example, ongoing medical treatment and it provides no buffer for contingencies. 12. The plaintiff is 52. She has minimal superannuation. Her health is currently poor. Her job prospects are at best uncertain. What further provision should be made for such contingencies and to allow some further sum towards the plaintiff's ongoing expenses is a matter which must be decided, but for which no logical reasons can be provided. It is at the last and critical point of decision-making, that the process of reasoning breaks down and the Court is left to make what is called an evaluative or intuitive judgment. It is said that the judgment is to be made by reference to what the Court considers would be in accordance with community expectations. I have expressed elsewhere my difficulties in identifying community expectations that provide assistance in this last and critical point of decision-making. But having regard to all of these factors, including the competing claims on the estate, I think that adequate provision for the plaintiff's proper maintenance, education or advancement in life would be the provision of a further sum of $70,000 to be added to the sum of $57,000, which I have identified earlier, making a total provision of $127,000. 13. The defendants accept that the burden of that provision should be borne from their share of the estate. 14. For these reasons, I make the following orders: 1. Order that in lieu of the legacy provided to the plaintiff under the will of Mrs [P] ("the deceased") dated 28 June 2013, provision be made out of the deceased's estate in favour of the plaintiff by way of a legacy of $127,000. 2. Order that the burden of the order for provision be borne out of the defendants' share of the estate so far as their share so extends and otherwise out of the balance of the residuary estate. 3. Order that interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) on unpaid legacies be payable on the legacy the subject of order 1 after 28 days if the legacy is then unpaid. 1. Prima facie, the plaintiff's costs should be paid out of the estate on the ordinary basis unless there are circumstances that warrant a different order. I will hear the parties on costs. [Counsel addressed.] 1. The plaintiff's counsel seeks an order for further provision. He seeks an order that the goods and chattels of the deceased which are presently in storage should be delivered to the plaintiff. 2. The plaintiff gave evidence to the effect that there were various items of Mrs [P's] that have sentimental value to her. Counsel for the defendants does not oppose an order for additional provision by way of delivery of such personal goods and chattels. There is evidence that some goods have already been given by the executors to particular individuals in accordance with wishes expressed by the deceased to the executors or, in the case of perhaps some religious articles, in accordance with the ways the executors think the deceased would have wanted those items to be dealt with. 3. The plaintiff has made no claim against distributed assets of the estate. There is no claim to designate any property as notional estate. The plaintiff does not seek delivery up of any of those items. 4. I vary order 1 to provide that, in lieu of the legacy provided to the plaintiff under the will of Mrs [P] ("the deceased") that provision be made out of the deceased's estate in favour of the plaintiff by way of a legacy of $127,000 and by the delivery of any goods or chattels of the deceased that remain in the executors' possession. 5. I further order that the plaintiff bear the expense of delivery of any such goods or chattels. 6. The parties can make submissions in writing on the question of costs. Submissions in writing should be exchanged and provided to my Associate by 31 July 2015. ********** Amendments 12 November 2015 - Names and places anonymised in accordance with orders of White J made 23/10/15 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: 12 November 2015