Supreme Court New South Wales Medium Neutral Citation: Clark v Ro [2016] NSWSC 1877 Hearing dates: 28-29 November 2016 Date of orders: 21 December 2016 Decision date: 21 December 2016 Jurisdiction: Equity Before: Hallen J Decision: The Court orders: (i) Having found that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life, has not been made for him, in the Will of the deceased, that he receive a lump sum legacy of $130,000. (ii) That no interest is to be paid on the lump sum legacy, if it is paid within 14 days of receipt by the estate of the AMP superannuation death benefits, or 8 weeks from the date of these orders, whichever is earlier; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum legacy. (iii) Subject to any submissions that may be made on costs, the Plaintiff's costs, calculated on the ordinary basis, of the proceedings, and the Defendant's costs, calculated on the indemnity basis, of the proceedings, are to be paid out of the estate of the deceased. (iv) That liberty is granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff. (v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18 (Para 22). Catchwords: SUCCESSION – FAMILY PROVISION - Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The first Defendant, the widow and sole beneficiary – The second Defendant the executor of the Will of the deceased – Probate granted – Actual estate consisting of real estate in which the first Defendant lives - Small amount of cash – Large amount of superannuation to whom paid is not determined - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff. Legislation Cited: Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Bartlett v Coomber [2008] NSWCA 100 Bladwell v Davis [2004] NSWCA 170 Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Butcher v Craig [2009] WASC 164 Carstrom v Boesen [2004] NSWSC 1109 Cetojevic v Cetojevic [2006] NSWSC 431 Chandler v Coulson [2015] NSWSC 172 Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646 Christie v Manera [2006] WASC 287 Clifford v Mayr [2010] NSWCA 6 Cocks v Juncken [1947] HCA 16; (1947) 74 CLR 277 Collicoat v McMillan [1999] 3 VR 803 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Henry v Hancock [2016] NSWSC 71 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marks v Marks [2003] WASCA 297 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034 McKenzie v Topp [2004] VSC 90 Milillo v Konnecke [2009] NSWCA 109 NSW Trustee & Guardian v Hull [2011] NSWSC 1106 Palagiano v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stewart v Stewart [2015] QSC 238 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Wilcox v Wilcox [2012] NSWSC 1138 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 Category: Principal judgment Parties: Mr Nathan Leslie Clark (Plaintiff) Ms Anna Ro (also known as Chi Woo Kim) (first Defendant) Mr Ryu-Jin Lee (second Defendant) Representation: Counsel: Mr A L Connolly (Plaintiff) Mr L Ellison SC (Defendant) Solicitors: Carters Law Firm (Plaintiff) Sharah and Associates (Defendant) File Number(s): 2016/24607 Judgment 1. HIS HONOUR: This is an application pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act") brought by Nathan Leslie Clark, for provision out of the estate and/or notional estate of his father, Bryan Lindsay Clark ("the deceased"), who died on 25 January 2015, aged 67 years. The Plaintiff also seeks an order that his costs of the proceedings be paid out of the estate. 2. Initially, the Plaintiff also sought, pursuant to s 91 of the Act, a grant of administration in respect of the estate of the deceased to him for the purposes only of permitting the application for a family provision order to be dealt with. However, since his Summons was filed, Probate of a document found to be the last Will of the deceased, has been granted by this Court on 12 July 2016: Ex. 1. Accordingly, there is no longer any need for such an order. 3. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. 4. At the commencement of the hearing, the parties agreed that there was no property that was sought to be designated as notional estate. Accordingly, I shall, hereafter, simply refer to the estate of the deceased. 5. The deceased left surviving him his widow, Anna Ro (also known as Chi Woo Kim), who is the first Defendant named in the Summons, his former spouse, Dianne Lee Bourke, and one child of their marriage, namely, the Plaintiff. Dianne had a child by a previous relationship, Kylie, who the deceased is said to have adopted in about 1975. (Although she did not participate in the proceedings, Kylie was present in Court throughout the first day of the hearing.) 6. The Plaintiff commenced these proceedings by Summons filed on 25 January 2016. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased). 7. It is also not in dispute that as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application. 8. The second Defendant, named in an amended Summons filed on 13 July 2016, is Ryu-Jin Lee, the person to whom this Court granted Probate of what was found to be the deceased's Will. He was a friend of the deceased and the executor of the deceased's estate. 9. Strictly speaking, the first Defendant, then, was no longer a necessary party, but since she is the sole beneficiary named in the Will, since she had been conducting the proceeding since its commencement, and because no additional costs were incurred because of her involvement, she remained a party. (The second Defendant did not actually attend at, or play any significant part in, the hearing.) Background Facts 1. I am satisfied that the following facts have been established, and that they provide a useful background. In relation to any disputed matters to which I refer, the following facts should be regarded as the findings of the Court. 2. The deceased was born in June 1947. 3. The date of the deceased's marriage to his first Wife, Dianne, is not disclosed in the evidence but the Plaintiff's counsel stated, from the bar table, without objection, that it was thought to have been in about May 1975. 4. The Plaintiff was born in February 1977. (Kylie was born in June 1969.) 5. The deceased and Dianne separated in about 2000. Their marriage was dissolved by decree nisi of dissolution of marriage made in about 2001. Dianne, also, has played no part in the proceedings. 6. The first Defendant met the deceased in 1999 and they commenced a relationship in about 2000. They began to live together in about 2001. The deceased purchased a property at Parramatta Road, Annandale, in 2008 for $665,000. 7. The first Defendant was born in March 1955 and is currently 61 years of age. She has one child, Phillip, aged 29 years, by a former marriage. Whilst his father lives in Sydney, he does not maintain any contact with, or provide any financial support to, Phillip. 8. Phillip lived with the first Defendant and the deceased, and has remained living with her since the death of the deceased. The first Defendant asserts that he suffers a disability. He is currently receiving a disability pension. The precise details of his alleged disability are not disclosed in the evidence. 9. The deceased and the first Defendant married in March 2008 and they remained married at the date of his death about 7 years later. In all, their relationship spanned about 15 years. There were no children of their marriage. 10. At the time when these proceedings were commenced, there were already Probate proceedings on foot in relation to the estate of the deceased relating to what was his last Will. In the Probate proceedings, the second Defendant (as Plaintiff) sought a grant of probate of a telephonic text message sent to him on 22 December 2014 which he propounded as an informal will, or, in the alternative, a grant of Probate of a formal Will dated 29 September 2003 of the deceased. 11. On 28 June 2016, I made an order, effectively with the consent of Kylie and the Plaintiff (both of whom were named as Defendants in the relevant Probate proceedings), that the telephonic text message was "a testamentary instrument within s 8" of the Act. Thus, the deceased made what was established to be his last Will on 22 December 2014. 12. By that document, the deceased appointed the second Defendant as his sole executor and left the whole of his estate to the first Defendant absolutely. Thus, no provision was made for the Plaintiff in the Will of the deceased. 13. I mention that in the 2003 Will, the first Defendant, who was described as the deceased's "wife" was appointed the executrix. That Will then provided a pecuniary legacy of $50,000 to each of the Plaintiff and Kylie, and bequeathed the whole of the residue of the estate to the first Defendant. (Of course, the gift of the two pecuniary legacies in the 2003 Will was revoked by operation of law because the deceased married the first Defendant in 2008: s 12 of the Act.) 14. In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased's estate was disclosed as having an estimated, or known, value of $1,069,258. The estate was said to consist of the property at Parramatta Road, Annandale ("the Parramatta Road property") ($740,000) cash in various accounts ($35,482), what is described as "unknown assets as per Worthington Clark Genealogy and Asset Research" ($6,600), AMP superannuation death benefit ($227,174) and work entitlements ($60,000). (I have omitted and will continue to omit, any reference to cents which will explain any slight mathematical discrepancy.) 15. In an affidavit sworn by the second Defendant on 15 November 2016, he stated that the deceased's estate, as at 10 November, consisted of the Parramatta Road property ($850,000), cash in various accounts ($35,524), the "unknown assets as per Worthington Clark Genealogy and Asset Research" ($6,600), AMP superannuation death benefits ($239,800) and the work entitlements ($60,000). The estimated gross value of the estate was said to be $1,191,927. 16. At the commencement of the hearing, the Court was informed by senior Counsel for the Defendant, without objection, that the "unknown assets" are unlikely to form part of the estate and that the trustee of the superannuation fund had not determined how the death benefits are to be paid. (This fact had not been disclosed to the Court at the time the matter was listed for hearing.) Therefore, it may be that each of these amounts does not form part of the estate of the deceased at the date of the hearing. 17. On the second day of the hearing, senior Counsel informed the Court from the bar table: "Your Honour, my solicitor tells me that on the forms, when successfully completed, it will be paid to the estate. I'm happy that your Honour treat it as such, and if there is to be provision, we can provide for any payment that's made to the plaintiff, which is the only one your Honour has any control over, to be taken into account." 1. At the hearing, there was discussion about the way in which the death benefit might be dealt with and how to avoid any "double dipping" (as put by senior Counsel for the Defendant) in the event that the Court made a family provision order. 2. After the hearing, the Plaintiff's counsel provided the following proposed undertaking that the Plaintiff was prepared to give to the Court, which undertaking was acceptable to the Defendants: "Upon the Court making an order pursuant to section 59 of the Succession Act 2006 for provision for me out of the estate of Bryan Lindsay Clark deceased ("the deceased") in the amount of $[AMOUNT] ("the provision"), I, Nathan Leslie Clark of xxx White Street, Parkdale VIC 3195, the plaintiff in these proceedings, undertake the Court as follows: 1. If I receive any payment from AMP Life Ltd from benefits payable on the death of the Deceased ("an AMP Payment"), I will within 14 days of receipt of the payment notify the solicitors for the defendants of the amount paid and the date it was received. 2. Subject to paragraph 3 below, I will receive any AMP Payment as a payment satisfying the obligation of the executor of the estate of the Deceased to pay the Provision, up to the amount of the AMP Payment. 3. If the sum of any AMP Payment and any amount of the Provision paid to me exceeds the full amount of the Provision, I will pay to the executor of the estate of the Deceased the excess amount within 14 days of receipt of the excess amount (subject to any agreement there may be between the parties regarding payment of my costs of the proceedings out of the estate of the Deceased)." 1. At the commencement of the hearing, the Court was also informed from the bar table, without objection, that the work entitlement proceeds had been paid directly to the first Defendant and that she had used the amount received to reduce her mortgage debt and otherwise. The Plaintiff did not seek to have this amount designated as notional estate of the deceased. This was a sensible, and practical, course to follow. The amount will be treated as an amount received by the first Defendant following the death of the deceased. 2. The second Defendant also disclosed that proceeds of a fund described as "CareSuper" had been distributed. The Court was informed, again from the bar table, without objection, that each of the Plaintiff and Kylie had received $44,185, whilst the first Defendant had received $88,370. The parties agreed that these amounts should simply be treated as provision made for each of them, and for Kylie, following the death of the deceased and neither party sought to have the amounts distributed designated as notional estate of the deceased. 3. It can be seen from the above, that the Plaintiff has received about $44,185 and that the first Defendant has received just over $148,000 following the death of the deceased. The provision made for each will be taken into account as part of the Court's consideration of the Plaintiff's claim and the competing claim of the first Defendant. 4. Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection, since the plaintiff, if successful, normally would be entitled to an order that his costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, whilst the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. 5. The Plaintiff's costs and disbursements of the proceedings, calculated on the ordinary basis, were estimated, by his solicitor, Mr T Carter, to be $73,620. Those costs, calculated on the indemnity basis, were estimated to be $79,120. That so much has been incurred in legal costs, in what appears to be a fairly straightforward case, perhaps, demonstrates the level of emotion that exists in this case between the parties. 6. The Defendants' costs and disbursements, calculated on the indemnity basis, were estimated by their solicitor, Ms J M Sharah, to be $104,000. Ms Sharah also disclosed that the Defendants have paid $47,111, on account of those costs and disbursements, leaving a balance of about $56,889 left to be paid. 7. (In relation to the Defendants' costs, the Court was informed that a part of these costs were incurred in relation to the Probate proceedings, to which reference has been made.) 8. In relation to costs, the Court was informed by senior Counsel that there may be a document that is relevant on how the burden of costs should be borne. Unless the document is found to be relevant, the usual orders as to costs should be made. 9. At the date of hearing the parties agreed that the value of the Parramatta Road property was $950,000. They also agreed that if the Parramatta Road property is to be sold in order to meet any provision for the Plaintiff and/or costs of the proceedings, the estimate of costs and disbursements of the sale will be about $26,000. 10. It follows, that the gross value of the estate, at the date of hearing is about $1,225,300 from which would have to be deducted $26,000, being the costs and disbursements of sale, leaving a net figure of $1,199,300, from which may have to be deducted the costs of the proceedings, being, in total, $177,620, leaving a net estate, available for distribution, with a value of $1,021,680. (Of course, as stated, this would result in the first Defendant being reimbursed the amount of $47,111.) If the Parramatta Road property were not to be sold, the value of the estate would be increased to about $1,047,680. 11. The parties agreed that the other eligible persons within the meaning of that term in s 57(1) of the Act are Dianne, Kylie, and Phillip, the first Defendant's son, who may be a person under a legal incapacity. (There was no dispute that he is a person who was, at any particular time, wholly or partly dependent on the deceased, and a member of the household of which the deceased was a member. He is not a beneficiary named in the Will of the deceased, but, as an eligible person, he is required to be served with notice of the Plaintiff's application, and of the Court's power to disregard his interests, in the manner and form prescribed by the regulations or rules of court: s 61(2) of the Act). 12. There was no evidence that Phillip had been served with the prescribed form of notice, but the first Defendant, by her senior Counsel, stated that his position has been considered by the first Defendant who has confirmed that he would not make a claim for a family provision order. This is hardly surprising because the first Defendant, his mother, is the sole beneficiary of the whole of the deceased's estate. 13. There is evidence that each of Dianne and Kylie was served with a notice of the Plaintiff's application, and of the Court's power to disregard her interests, in the manner and form prescribed by the regulations or rules of court. Neither has brought proceedings and, in the circumstances, the interests of each may be disregarded: s 61 of the Act. In the circumstances of this case, I propose to disregard the interests of each. The Statutory Framework 1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have collected the principles that are generally applicable in a number of other cases. Where necessary, I have added more recent authority. In addition, I acknowledge that there is "a level of abstraction" in stating these principles, but, as I have noted in other cases, they are useful in illuminating the path that the Court takes in a claim for a family provision order. 2. Also, as I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power of the Court, which is left largely unfettered. I identify them merely as providing guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind. 3. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Furthermore, the nature of any provision ordered to be made should be justified, not by reference to precedent, but by reference to the principles relevant to the facts of the specific case. 4. As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380 at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 1. The importance of the qualifications to which I have referred in the last few paragraphs have been stressed in Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646 at [18]-[20] (Basten JA), and at [66]-[67] (Barrett JA). They must be remembered. 2. The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780. 3. As the Plaintiff's eligibility and the commencement of the proceedings within time is not in issue, the sole questions for the Court to determine are whether at the time when the Court is considering the application, adequate provision for the Plaintiff's proper maintenance, education or advancement in life has not been made by the deceased's Will and whether an order for provision out of the estate ought to be made for his maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: s 59 of the Act. 4. It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… 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". 5. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 6. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 1. Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J said that the assessment of what provision is "proper" involves "an intuitive assessment". Stevenson J, citing Emmett JA, with whom Meagher and Ward JJA agreed in Manuel v Lane [2013] NSWCA 61 at [9], has described it as "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": Szypica v O'Beirne [2013] NSWSC 297 at [40]. 2. Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. 3. In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted] 1. In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 505, Murphy J wrote: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself." 1. In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 541, Holland J discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms: "If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that… [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need." 1. In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 1. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 at [10], as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and [77] (per Buss JA) (which seems to invite more subjective criteria). 2. These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 1. Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration." 1. Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement 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 Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 1. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 1. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied…" 1. In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 2. If the Court is not satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made by the Will of the deceased, for the applicant, then the Court is precluded from making a family provision order. In determining the question, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at 571-572; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210; Vigolo v Bostin at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 at [70]; Verzar v Verzar [2014] NSWCA 45 at [39]. 3. The determination of the question whether the disposition of the deceased's estate was not such as to make adequate provision for the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P). 4. Thus, whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations. 5. "Need" has also been used in the context of a value judgment or conclusion, namely, that the applicant is "in need" of maintenance, education or advancement in life, because inadequate provision has been made for his or her proper maintenance, education and advancement in life: Gorton v Parks (1989) 17 NSWLR 1, at 10-11 (Bryson J). 6. Although the existence, or absence, of "needs" which the applicant cannot meet from his, or her, own resources will always be highly relevant and often decisive, the statutory formulation and, therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for the applicant's proper maintenance education or advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). 7. "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'." 1. In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable." 1. As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. Thus, "need" may be assessed by considering the applicant's financial position, lifestyle and general expectations in life and health: Stewart v Stewart [2015] QSC 238 at [11] (Applegarth J). 2. In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person and that adequate provision for his proper maintenance, education or advancement in life has not been made), then the Court determines whether it should make an order. 3. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 4. Section 60(2) of the Act provides: "(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 1. It can be seen that s 60(2) enumerates 15 specific matters, in addition to any other matter the Court considers relevant, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123] as "a valuable prompt" to which the Court may have regard for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a "more focused direction to the court": Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619 at [51] (Beazley P, Meagher JA agreeing). 2. White J wrote in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 at [121], that s 60 "lists a wide range of matters that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life". 3. In Chapple v Wilcox, Basten JA, at [7], also wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)." 1. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 2. The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. 3. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 4. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 5. Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court. 1. The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 2. Any family provision order under the Act takes effect, unless the Court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act). 3. Section 66 of the Act sets out the consequential and ancillary orders that may be made. 4. Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit. Other Applicable Legal Principles – Substantive Application 1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act. (In stating these principles, what has been written above about "general principles" must be remembered.) 2. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5] that "[F]airness and equality are not touchstones for relief under the Succession Act." 3. The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation. "Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63]. 4. Of that freedom, in Grey v Harrison, Callaway JA said, at 366: "[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent." 1. In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification." 1. White J referred to these principles in Slack v Rogan; Palffy v Rogan, 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 (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 Goodsell v Wellington [2011] NSWSC 1232 at [108] I noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated." 1. As Pembroke J also wrote in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection." 1. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 2. In Chapple v Wilcox, Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased. 3. In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death." 1. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 2. The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 966. The use of the word "proper" requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]). 3. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he or she has lived frugally, or that he or she has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45 at [62]; Butcher v Craig [2009] WASC 164. 4. All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89]. Thus, cases under the Act fall to be decided on the basis of broad principles, not fiscal micrology: Re Hilton [1997] 2 NZLR 734, at 738. 5. Furthermore, as Gleeson CJ wrote in Vigolo v Bostin, at [12]: "The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution." 1. In relation to the Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support as the bonds of childhood are relaxed. 2. 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. It can be said that, ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her child up in a position where she or he 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 at [57]; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, the community does not expect a parent to look after his or her child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. 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 at [58]. 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased at 411; Kleinig v Neal (No 2), at 537; Mayfield v Lloyd-Williams at [86]. 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J). 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig at [17]. 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. 1. A very similar statement of the principles which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); at [65]-[67] (Barrett JA), and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles) in Smith v Johnson [2015] NSWCA 297 at [62]. 2. In Foley v Ellis at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that 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". 3. The first Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased's Will or otherwise justify such provision. 4. The following principles are relevant to the competing claim of the spouse of the deceased. (I shall refer to the duty of a husband to a wife.) 1. As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his spouse, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her mind from any reasonable fear of any insufficiency as she grows older and her health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain herself independently, and autonomously, may also bear upon the notion of what is proper provision. However, what is said above is not of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144]. 1. The three elements identified in (a) above are not necessarily mutually independent. The Court is not to approach the assessment of what is proper for a competing claimant by attempting precisely to replicate the way of life that the deceased and his or her spouse planned to have, had he or she survived. 2. There is binding authority which gives greater weight to the claims of a party who has entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]. In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 at [24] , Gleeson CJ wrote: "The structure of marriage and the family is intended to sustain responsibility and obligation." However, in Bladwell v Davis [2004] NSWCA 170 at [19], Bryson JA stated: "In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409 -411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." Ipp JA added, at [2]: "I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109, at [80] - [82]. 1. Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (NSWSC, 7 March 1991, unreported). 2. Ward J (as her Honour then was), referred to many of these authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added: "Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19)." 1. As already stated, the principles are "a useful touchstone that may be applied with circumspection": Chapple v Wilcox, per Barrett JA, at [67], which "may give assistance, and provide guidance, but are not to be elevated to rules of law": Burke v Burke [2015] NSWCA 195, per Ward JA, at [84]. The warnings are salutary and confirm that all of the principles should not be applied mechanically. Additional Facts 1. I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012] NSWSC 1380 at [124]), but in order to complete the recitation of facts that will assist the Court to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 1. As stated, the Plaintiff is the son of the deceased. 2. It appears not to be in dispute that he and the deceased had a good relationship and that they shared a number of interests (in particular scouting and astronomy). (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 1. There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Each word is to be understood in terms of its ordinary, grammatical meaning as the condition of being morally or legally bound. 2. The responsibility of the deceased was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1983] AC 463 at 478-479: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father." 1. This factor requires a balancing of potentially competing obligations as between the applicant and the beneficiary. 2. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff as a child, once he became an adult, imposed upon him by statute or common law. Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, continues to be recognised. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." 1. Yet, there is no "presumptive testamentary entitlement of an [adult] offspring": Underwood v Gaudron [2015] NSWCA 269, at [73] (Basten JA). 2. I have dealt with the deceased's obligations to the first Defendant as his widow earlier in these reasons. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 1. I have dealt with the nature and extent of the deceased's estate earlier in these reasons. It is an estate of reasonable value. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 1. The Plaintiff and his family live in rented accommodation in Parkdale, Victoria. He and his wife owned a property in Marrickville, Sydney between 2007 and 2011, but as will be read it was sold in 2011. 2. They have no current assets of any significant monetary value. The Plaintiff has debts (personal loans and credit card balances) totalling approximately $103,000. His wife is said not to have any liabilities but it is likely that at least some of the Plaintiff's liabilities are attributable to family expenses. Their combined assets in cash and chattels (and excluding superannuation) are approximately $42,000, of which their cash assets are only a few thousand dollars. 3. The Plaintiff was last employed in August 2015. He then worked in an IT manager role at a managed service provider, which is similar to a computer services company, earning about $100,000 gross per annum. Before that, he had been in employment that had paid $160,000 per annum, but that had ceased in the year before the deceased's death. He has not looked for computer work for over 12 months and he has not sought to earn any income from any other work. This is despite the fact that he has a Master of Business Administration and a Master's degree in Commerce. 4. The Plaintiff says that he no longer wishes to work in the IT industry. He says that he wants to be a secondary school science teacher and that he has applied to Melbourne University for a Master's teaching degree. It is a three year degree which might involve full time study but he believes that he would be able to complete it. (He could not say whether he would seek part time, or other, employment whilst he was studying if he was enrolled.) 5. Despite not being in employment and having painted a rather gloomy picture of his current situation, the Plaintiff, in what is described as a LinkedIn entry on the Internet (a copy of which entry was tendered as Ex. 2), depicted himself "as how I'd like to be seen", stating that he was "a farmer", he was "Founder Super Stealthy Education Start Up", that he was developing "wind powered induction water heating", that he had "Lots of other projects underway", and finally that he was "the Chief Economist and Fund Manager", (which he accepted related to his and his wife's self-managed superannuation fund) which was "outperforming the market". 6. The Plaintiff accepted that many of the entries were distortions but tried to justify this by stating that what had been written was "nothing more than puffery". 7. The Plaintiff currently receives Centrelink payments. He believes that if he undertakes a tertiary education course he will receive another form of pension. He was unable to disclose the nature or the amount of the pension to which he thought he would then be entitled. 8. The family expenses are said to total about $6,700 per month. To meet the shortfall of expenditure over income, they use credit cards. The Plaintiff gave evidence, in answer to a question from the Bench: "Q. You said… that you sometimes spend money you don't have and you put your family in a position effectively which they should not be in. What did you mean by that? A. I buy lottery tickets on occasions, I - sometimes I buy, you know, alcohol, things that I shouldn't be doing, wasting money. I've bought things like, I don't know, I'll go up to Officeworks and buy a hard drive or something and - I don't need it. It doesn't make sense, but I do those sorts of things. And I know it doesn't make sense, but it makes me feel good. It's almost like a - just trying to make myself feel normal." 1. The Plaintiff and his wife are members of a self-managed superannuation fund. The fund owns a parcel of real property, which was purchased for $340,000. It may be able to be conducted as a farm, but, currently, it is not income producing. 2. The Plaintiff gave evidence that the real estate should be able to be rented and that the real estate agent had informed him that it could be rented at a rate which would cover the cost of the mortgage and that he has a long list of people who are interested in renting in the area. 3. The fund contributed about $160,000 or $170,000 towards the purchase price and the balance of the purchase price, plus the costs and expenses of purchase were borrowed. The current amount of the loan, which is secured by a mortgage registered on the title to the land, is about $189,555. 4. The Plaintiff was not able to state the current value of the real property, although he had estimated the fund's equity in it at about $150,000. 5. It is submitted that the needs of the first Defendant "are considerable". The Parramatta Road property (where she has lived since its purchase by the deceased) is the place from where she operates her tailoring business. She lives there with her disabled son. It needs significant structural and cosmetic repair, improvement and maintenance. The cost of the repairs is estimated to exceed $270,000. She described the house as being "dilapidated". 6. She accepted that if the repairs were carried out, the Parramatta Road property would no longer be in a dilapidated state, that she would be able to live more comfortably, and that its value might increase. 7. The first Defendant owns a property at Alfred Street, Annandale, purchased in 2004, which provides an income of $750 per week before mortgage repayments. Non-urgent repairs on Alfred Street, Annandale have been estimated to cost $98,000. Her current mortgage secured on the Alfred Street property is $316,000. It was reduced from $450,000 following receipt of lump sum superannuation of $88,000 and benefits from the deceased's employer of $60,000. The interest only mortgage repayments amount to $3,100 per month or about $775 per week. The first Defendant meets the shortfall from her other income. 8. The value of the Alfred Street property owned by the first Defendant, at the date of hearing was agreed to be $1,350,000. The parties also agreed that if it was sold to satisfy any order for provision made in favour of the Plaintiff and the costs of the proceedings, the costs and disbursements of sale would be $35,000. Accordingly, it has an estimated net value of $1,315,000. 9. The first Defendant agreed that she had no capacity to pay for the repairs to either the Parramatta Road property or to the Alfred Street property, but that if she sold the Alfred Street property and paid off the mortgage debt secured on it, she would be able to pay the costs of the repairs to the Parramatta Road property and still have a capital fund available. 10. The first Defendant was adamant that she would not be prepared to sell the Parramatta Road property "because that's the place where I cherish my memory with my husband, because that's where we spent our honeymoon". 11. Assuming a sale of the Alfred Street property, and the repayment of the debts secured on it, the first Defendant would have about $1 million. She could then carry out the work on the Parramatta Road property (say $300,000), leaving her about $700,000. (There was no evidence about the amount of Capital Gains Tax that would be payable on sale.) (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 1. The Plaintiff's wife is well qualified. She has a Bachelor of Visual Arts and a Bachelor of Teaching. She has been a qualified teacher since 2008 although she has worked with persons with special needs for a lot longer. She currently works within the State system, rather than in private school education. 2. She currently works for two days a week at a State special needs school and works through an agency as well, doing casual days, when she can get them. She earns approximately $54,000 per year. She has no assets of significant value. 3. The only other persons with whom he cohabits are their two young children. 4. There is the possibility that the Plaintiff's wife will be offered full time work next year. (Currently, although there may be weeks when she works for five days, she is only guaranteed work for two days per week.) If she takes up any offer, it is likely that her income will increase. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 1. The Plaintiff suffers from an anxiety condition that is said to prevent him from engaging in gainful employment and is said to affect his earning capacity. Medical evidence reveals that "[H]is concentration is down, his short term memory is down, his long term memory is normal. His level of energy is up and down. His level of interest is down. His appetite is down … Currently, he cannot work at all. He would not be able to work for another year or two years." 2. He has seen a number of doctors but even though he would "benefit from a referral to an experienced psychiatrist", he has not sought such a referral. 3. The first Defendant has no physical, intellectual or mental disability. (g) the age of the applicant when the application is being considered 1. The Plaintiff was born in February 1977 and is nearly 40 years old. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 1. It is accepted that the Plaintiff did not make any such contribution. 2. The first Defendant provided all domestic services expected of her and, from May 2014, nursed the deceased during his terminal illness. She had paid the rent during cohabitation, until 2008, when the Parramatta Road property was purchased. She paid most of the living expenses until the deceased obtained employment in 2006, he having not worked from 2001 for five or six years having been diagnosed with cancer. From 2006, the deceased had paid the expenses referable to the Parramatta Road property and of the household. 3. At the time of the purchase of Parramatta Road property in 2008, the first Defendant gave the deceased $50,000 which she had retained from the sale, in March 2004, of a property she had owned in Parramatta, which sum included repayment of a loan of $20,000. 4. I am satisfied that she made a significant contribution both financially and to the welfare of the deceased. (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 1. The Plaintiff agreed that his parents had made available to him a good high school education from which he had proceeded to obtain a number of tertiary qualifications to which reference has been made. 2. The deceased, also, provided the Plaintiff with financial assistance at various times. It was said, in his affidavits, that the funds provided were, in total, something over $65,000. However, the Plaintiff, when cross-examined, painted a different picture: "Q. I just want to identify what benefits that you got from your father whilst he was alive. In 1998 he gave you $20,000 to buy a car or to help buy a car. A. In a way that's correct. Q. I'm just looking at your affidavit, paragraph 37B, "In 1998 the deceased provided me with approximately $20,000 for the cost of a car." Did he give you the money and you didn't buy a car or what? A. Yes, I did and the money - it's more complicated than a yes or no answer. That he provided me money for a car; I'd been a victim of a serious assault and had received money in victim's compensation that my father was managing for me and I believe that that was money that came from-- Q. Do you now say he gave you your own money? Is that what you're saying? A. Well, I was a child when I was assaulted. Q. Is that what you're saying, you think he gave you your own money? A. I think so. Q. You just don't know? A. I don't know. Q. Then in paragraph 37C you say that in 2000 he provided you with approximately $25,000 for a deposit for the purchase of an apartment. That's what you say. A. That is correct. Q. Where was that apartment? A. That was … in Petersham. Q. Is that the same as the Marrickville property you're talking about or a different one? A. It's a different property. Q. How much did that property cost in 2000? A. In 2000 that cost $186,000. Q. What did it sell for? A. I think it sold for around $230,000 in 2007. … Q. Do I gather then you wouldn't have been able to buy Petersham without your father's $25,000 assistance? A. That is correct. Q. Presumably you turned over whatever profit you made on Petersham to buy into Marrickville? A. I used the profit from Petersham to extinguish other personal debts. Q. Then extinguishing those personal debts you then bought Marrickville? A. Yes, we used a, a portion of that as a deposit. Q. Presumably without your father's original money you wouldn't have been able to buy Petersham, you wouldn't have been able to pay off your debts and you wouldn't have been able to buy into Marrickville? A. Yes. Q. It all helped? A. Yes. Q. Then you've said in your affidavit that your father gave you estimated $20,000 to $30,000 over the years following the birth of your first child just to help with running expenses? A. That sounds about right. Q. All these various amounts were they gifts from your father? A. No. … Q. You said that he provided you with $20,000 for the cost of a car and you don't know where that came from, then he provided you with $25,000 for a deposit. Using those words did you wish to convey to the reader that your father gave you $25,000? A. Not - it was repaid. Q. When you say, "The deceased provided me with approximately 25,000", do you mean to say he loaned you 25,000? A. Yes. I'm not sure if there's a difference between provision or a loan. … Q. 2001, sorry, yes. Are you sure that's when the money went back or not? A. It was after their divorce. Q. After their divorce? A. Correct. I provided the money in two cheques to each party, my mother and my father. Q. What, you gave them twelve and a half each? A. Yes." 1. The Plaintiff also benefited from the payment of $44,185 to which I have earlier referred. He says that he used part of the money received to pay six months' rent in advance and some of it to purchase a car which could be used to drive the two children to and from school. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 1. I have referred to the 2003 Will of the deceased. Even in that Will, the provision made for the Plaintiff was modest. At the time he made this Will, the deceased had only known the first Defendant for a few years, but still regarded his obligation to her as more significant than the obligation owed to each of his adult children. 2. The deceased is said to have made a number of statements to the Plaintiff expressing his intention to provide for him in the Will. For example, he sent an email to the Plaintiff in September 2014, in which he outlined his thoughts about what to do with the Parramatta Road property, the substance of which is that he appears to have been considering providing the first Defendant with a life interest rather than an absolute interest. 3. The deceased, also, gave instructions for the drafting of a Will a few weeks before his death, but did not complete the Will before he died. Those instructions were incorporated in a draft Will prepared by a solicitor (who was not cross-examined) which included: "4(a) My trustee must set aside out of my estate the following assets and fund ("the fund"), to consist of: (i) my property known as XXX Parramatta Road, Annandale; (ii) the proceeds of the disposal of all or part of any property in the fund; (iii) property purchased using money in the fund; (iv) property into which all or part of any money in the fund is converted; (v) property added to the fund. (b) My Trustee must hold the fund on trust for my wife CHI WOO KIM (also known as Anna Kim) for her life or until remarriage or she moves overseas to live. … (g) It is my wish that my Trustee use its powers to ensure that CHI WOO KIM is provided with comfortable and appropriate accommodation out of the fund which I have made available for that purpose. In doing so my trustee must, as far as it is practical, consult with CHI WOO KIM and, so far as it is consistent with the general interest of the trust, give effect to her wishes. (h) On the death or remarriage of CHI WOO KIM or if she leaves Australia to move overseas the balance of the fund is to be given to my son NATHAN LESLIE CLARK … PROVIDED THAT should my said son predecease the said CHI WOO KIM or not be alive at the happening of an event contemplated by this paragraph leaving a child or children who shall survive me and attain the age of eighteen (18) years, such issue shall take and if more than one as tenants in common in equal shares, the share of my estate which his her or their parent would have taken had such parent survived me and attained a vested interests. (i) IN THE EVENT my said wife CHI WOO KIM predeceases me or does not survive me by the period of thirty (30) days I give the property in the fund known as XXX Parramatta Road Annandale to my said son NATHAN LESLIE CLARK absolutely…." 1. It was submitted that these instructions reflected the deceased's view that he should make provision not only for the first Defendant, but also for the Plaintiff. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so 1. The deceased gave the Plaintiff some small cash gifts, for household expenses, from about 2005. The Plaintiff estimates the amounts given were in total, on average, between $2,000 and $3,000 per year. (l) whether any other person is liable to support the applicant 1. There is no person liable to support the Plaintiff, other than, perhaps, his wife. However, as stated, her income is not large. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 1. The Plaintiff was a loving son. He demonstrated care for the deceased when the deceased was diagnosed with pancreatic cancer, began treatment for the cancer and was ailing. The deceased had confided in the Plaintiff about his terminal illness. The Plaintiff complied with the deceased's onerous requirement that he not divulge the deceased's terminal illness to other family members. 2. The Plaintiff involved the deceased in the lives of the Plaintiff's children. (n) the conduct of any other person before and after the date of the death of the deceased person 1. I am satisfied that the first Defendant was a loving and dutiful wife to the deceased. Their relationship spanned about 15 years and it was only the deceased's death that caused it to cease. 2. Leaving aside the terms of the deceased's Will, there was tendered (Ex. 5) a Christmas card in which the deceased described the first Defendant as "the love of my life" and "my only love". (o) any relevant Aboriginal or Torres Strait Islander customary law 1. No such law applies in this case. (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 1. It was submitted that the deceased encouraged the Plaintiff and his wife to purchase the Marrickville property in 2007 and offered to act as guarantor in support of the loan required to purchase it, but subsequently withdrew that support after the Plaintiff and his wife had paid the deposit on the purchase. It is said that the deceased's withdrawal resulted in financial disadvantage for the Plaintiff and his wife. I do not accept this submission. The evidence reveals that the purchase price of the Marrickville property was $670,000 and that they sold it, in 2011, for $830,000. They lived in the Marrickville property for the whole of the period it was owned. 2. It seems to me that the deceased's encouragement resulted in the Plaintiff and his wife making a reasonable financial gain. DETERMINATION 1. As stated earlier, there was no dispute that the Plaintiff is an eligible person and that he commenced the proceeding within the time prescribed by the Act. 2. Senior Counsel for the Defendants seemed to accept, also, that he did have financial needs and that the lack of any provision in the deceased's Will, when taken with his financial and material resources, could lead the Court to conclude, at the time when the Court was considering the application, that adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased. 3. As I have recently written in Morier v Liem [2016] NSWSC 582, the fact that the Plaintiff does not receive any provision under the Will of the deceased, of itself, does not bespeak inadequacy. That fact is not all that the Court is required to consider. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the first Defendant, the claim of each on the bounty of the deceased, and the size of the estate, are very relevant factors in determining the answer to the question whether the Court is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff. 4. Basten JA wrote in Chan v Chan [2016] NSWCA 222 at [22], that the Court must remember: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator." 1. Thus, in determining what is adequate for the proper maintenance, education or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions. 2. I am of the view that the jurisdictional threshold has been established in the present case. The Plaintiff is currently not working. He and his wife have two young children to support and they have some liabilities. Whilst there is some superannuation, the Plaintiff is relatively young which means that access to any superannuation proceeds is not immediate. He also has a medical condition which contributes to him, currently, not being able to work. 3. It is also necessary to consider the Plaintiff's desire to obtain further education which, presumably, he sees, as likely to lead to different employment. In this regard, it is to be remembered that the Act refers to "maintenance, education or advancement in life". 4. It is then necessary to determine whether an order for provision out of the estate of the deceased person ought to be made for the Plaintiff's maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made. 5. This is a far more difficult question because of the nature and value of the estate. The first Defendant is the other person who has a claim on the deceased's bounty. Her competing claim is founded upon both a competing financial need, and on her contributions to the deceased, both financially and in other ways, during what turned out to be the deceased's declining years. 6. Whilst I am satisfied that the Plaintiff and his family are living in somewhat straitened circumstances, I do not accept the Plaintiff's submission that he "needs funds to pay down his current debts ($103,000), to cover the cost of his retraining ($47,000), to meet the shortfall in his family expenses (including increasing school fees for his two children) ($47,000) for the next four years while he is retraining, an amount for contingencies ($50,000) and an amount for a deposit on a family home" ($308,000). The estimate for all of these "needs" totalled $555,000. The value of the estate is not sufficiently large to satisfy all of these claims, particularly in circumstances where the competing claimant is the deceased's widow. Furthermore, a lump sum legacy of that amount would lead, inevitably, to the sale, by the first Defendant, of the Parramatta Road property, which is, and has been, for a number of years, her home, if the provision were to be made out of the deceased's estate rather than out of the first Defendant's own property. 7. This conclusion does not mean, however, that I accept the Defendants' submission that the Summons should be dismissed. I tend to the view that the deceased's obligation to the Plaintiff extended to making provision of a capital sum for exigencies of life, which can be used, if necessary, to pay off his debts, and otherwise as he sees fit. 8. In my view, having regard to all of the matters that I am required to consider, the Plaintiff should receive a lump sum legacy of $130,000. In reaching this figure, I bear in mind that the Plaintiff has already received slightly more than $44,000 following the death of the deceased. 9. The amount will provide a sufficient sum to pay all of his credit card, and other, personal debts (said to be about $103,000) and will leave a small capital sum for exigencies of life, which could be utilised to pay some of the education costs that the Plaintiff might incur if he is admitted to do the course about which he gave evidence, or otherwise, to provide a nest egg for the future. In addition, the payment of debts will relieve his monthly expenditure by about $1,500 (said to be debt servicing in his list of expenditure). 10. The AMP superannuation death benefits ($239,800) to be paid to the estate could be used to meet the lump sum legacy provided for the Plaintiff. There will be sufficient left ($109,800) to provide for a part of the costs of the proceedings if the usual order for costs is made and if the estimates prove accurate. There will not be enough to enable the reimbursement of all of the costs already paid by the first Defendant ($47,111) on account of the Defendants' costs, as well, but there should be enough to not require the first Defendant to have to contribute, from her own resources, a substantial amount to meet the costs of the proceedings. (The total amount of costs left to be paid, assuming the estimates prove accurate, is $130,509, which would result in the first Defendant having to contribute about $21,000. I note, however, that there is $35,524 is held in a bank account and that it forms part of the estate.) 11. As there will be available cash, there is no reason why the legacy should not be payable within 14 days of the receipt by the estate of the AMP superannuation death benefits, or within 8 weeks of the making of these orders, whichever is earlier. If the legacy is not paid then, interest at the rate prescribed in the Probate and Administration Act 1898 (NSW), on unpaid legacies should be paid calculated from the date of receipt or 8 weeks from the date of the orders of the Court, whichever is earlier, until it is paid. The parties, by their legal representatives, should work co-operatively to ensure that the amount is paid to the estate promptly. 12. This will avoid the need for any undertaking to the Court given by the Plaintiff be noted by the Court. It will also enable the first Defendant to retain the Parramatta Road property and the Alfred Street property if she wishes to do so, thereby ensuring continued rental income. 13. The Court orders: 1. Having found the Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life, has not been made for him, in the Will of the deceased, that he receive a lump sum legacy of $130,000. 2. That no interest is to be paid on the lump sum legacy, if it is paid within 14 days of receipt by the estate of the AMP superannuation death benefits, or 8 weeks from the date of these orders, whichever is earlier; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum legacy. 3. Subject to any submissions that may be made on costs, the Plaintiff's costs, calculated on the ordinary basis, of the proceedings, and the Defendant's costs, calculated on the indemnity basis, of the proceedings, are to be paid out of the estate of the deceased. 4. That liberty is granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff. 5. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18 (Para 22). ********** Amendments 21 December 2016 - [19] probate proceeding changed to Probate proceeding [184] delete (iv) - duplicated 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: 21 December 2016