Supreme Court New South Wales Medium Neutral Citation: Hughes v Sharp [2017] NSWSC 962 Hearing dates: 10 July 2017 Date of orders: 20 July 2017 Decision date: 20 July 2017 Jurisdiction: Equity Before: Hallen J Decision: The Court: (i) Orders, sufficient cause having been shown, that the time for the making of the Plaintiff's application be extended until 13 September 2016, the date of the filing of the Summons. (ii) Orders, having found that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance or advancement in life has not been made for him in the Will of the deceased, in lieu of the provision made for him in the Will of the deceased, the Plaintiff receive, out of the estate of the deceased, a lump sum calculated as 15 per cent of the net proceeds of sale of the Merewether property. (iii) Orders that the net proceeds of sale are to be calculated by deducting from the gross sale price of the Merewether property, the costs and expenses of sale, including agent's commission, advertising costs, and the legal costs of sale; the pecuniary legacies, (other than the legacy to the Plaintiff), the liabilities of the estate, as well as the legal costs of these proceedings, as agreed by the parties. (iv) Orders that the Defendant is to place the Merewether property on the market for sale, as soon as is reasonably possible, but no later than 8 weeks from the date of the making of these orders, or such other time as the parties are able to agree in writing. (v) Orders that no interest is to be paid on the lump sum payable to the Plaintiff, if it is paid within 7 days of completion of the sale of the Merewether property; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any unpaid part thereof from the eighth day following completion of that sale until the date of payment of the lump sum. (vi) Orders that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased. (vii) Notes the agreement of the parties as to the amount of costs payable out of the estate of the deceased. (viii) Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merewether property until paid in full. (ix) Grants liberty 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 orders made herein. (x) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW). (xi) The parties should inform my Associate, within 7 days, of any amendments to the orders that are required. If no amendments are sought, upon confirmation, the orders proposed will be entered. Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for additional provision out of the deceased's estate under Chapter 3 of the Succession Act 2006 (NSW) – Estate not large - No dispute as to the Plaintiff's eligibility as a child of the deceased – The Defendant, a grandchild of the deceased and the sole executrix and principal beneficiary in the Will - Proceedings not commenced within time - Whether sufficient cause shown to extend time - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made. Legislation Cited: Civil Procedure Act 2005 (NSW) Civil Procedure Regulation 2012 (NSW) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Legal Aid Commission Act 1979 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bouttell v Rapisarda [2014] NSWSC 1192 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Burke v Burke [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Carey v Robson (No 2) [2009] NSWSC 1199 Cetojevic v Cetojevic [2006] NSWSC 431 Chan v Chan [2016] NSWCA 222 Charles v Charles (Supreme Court (NSW), Young J, 25 March 1988, unrep) Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Craig v Craig [2015] WASC 109 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Diver v Neal [2009] NSWCA 54 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Goodsell v Wellington [2011] NSWSC 1232 Goodman v Windeyer 144 CLR 490; [1980] HCA 31 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Harrison v Harrison [2011] VSC 459 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Moore v Randall [2012] NSWSC 184 Nanschild v Pratt [2011] NSWCA 85 Penninger v Penninger [2017] NSWSC 892 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Estate of Nichos (Dec'd); Grigoriou v Nitsos (As Executor of thr Estate of Nichos) [1999] WASCA 42 Re Salmon, Deceased [1981] Ch 167 Salmon v Osmond [2015] NSWCA 42 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Sophron v The Nominal Defendant (1957) 96 CLR 469; [1957] HCA 27 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), 17 May 1996, unrep) Underwood v Gaudron [2015] NSWCA 269 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Texts Cited: B White, C Tilse, J Wilson, L Rosenman, K Purser, S Coe, "Estate Contestation in Australia: An Empirical Study of a Year of Case Law" (2015) University of New South Wales Law Journal 38(3), 880 Category: Principal judgment Parties: Mr David Hughes (Plaintiff) Ms Erin Patrice Sharp (Defendant) Representation: Counsel: Mr G Waugh (Plaintiff) Mr R D Marshall SC and Mr H B Durack (Defendant) Solicitors: Bilbie Dan (Plaintiff) Patey & Murphy (Defendant) File Number(s): 2016/274851 Judgment 1. HIS HONOUR: The Plaintiff, David Hughes, is the only surviving child of Beryl Dawn Hughes ("the deceased"). He seeks additional provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"). 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. The Plaintiff also seeks an order that his costs of the proceedings be paid. 2. The deceased died on 5 August 2015, aged 87 years. However, the Plaintiff's proceedings were commenced by Summons filed on 13 September 2016. Because the proceedings were not commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased), the Plaintiff also seeks an order that the time in which to commence the proceedings be extended up to, and including, the date of the filing of the Summons. He also seeks an order that his costs be paid out of the estate. 3. It is not in dispute that as a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person's status, regardless of age, as well as his relationship to the deceased. 4. At the commencement of the hearing, the parties agreed that there was no property that could be designated as notional estate of the deceased. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. They also agreed that there is no scope for the operation of the intestacy rules, which means that it is only necessary to refer to the Will of the deceased. 5. The Defendant named in the Summons is Erin Patrice Sharp. She is the Plaintiff's daughter and the deceased's grandchild. She is the executrix named in the deceased's Will made on 11 February 2013, to whom this Court granted Probate on 10 November 2016, and also the principal beneficiary named in that Will. 6. As has been pointed out in an article entitled "Estate Contestation in Australia: An Empirical Study of a Year of Case Law" by B White, C Tilse, J Wilson, L Rosenman, K Purser, S Coe, "Estate Contestation in Australia: An Empirical Study of a Year of Case Law" (2015) University of New South Wales Law Journal 38(3), 880: "Estate litigation is a source of ongoing concern. Issues have been raised both in the media and academic literature about matters such as the frequency with which wills are challenged and legal costs. While the potential financial cost to the testator's family and friends (who are generally beneficiaries) through the dissipation of the estate is generally well-known, estate contestation can also lead to other significant adverse outcomes. For example, the distribution of assets after death is not a purely financial or legal exercise, and dispositions in a will can represent a very public realignment of relationships and hierarchies within a family. These disputes, which necessarily challenge that statement of family relationships by the testator, are likely to create, or exacerbate, family disharmony and conflict, and/or become a focal point for past injustices or disputes. This is unsurprising given some of the features of a will contest: it occurs during a period of grief, pits claimants against beneficiaries, and often brings contact with the legal system (which traditionally has taken an adversarial approach to the resolution of these disputes), all of which exacerbate family tensions. This conflict is often not limited to the period of the legal dispute and can persist over time, in some cases across generations. Engagement with legal processes also shifts private life into the public domain, requiring families to air their 'dirty laundry'. This loss of privacy can cause not only embarrassment and reputational damage, it can also be a source of further family conflict with the family member who has brought such matters to public view. Estate contestation also has implications for the state through the resources it requires from the publicly funded judicial system." [Footnotes omitted] 1. Despite every effort being given to the parties to resolve the proceedings at a judicial settlement conference, before the significant costs of preparation for the hearing, and of the actual hearing, were incurred, and virtually all of the matters quoted above being pointed out to them, the parties have continued to engage, somewhat relentlessly, and, it would seem, remorselessly, in the litigation. As will be read, this has resulted in significant costs being incurred. 2. That a case between the only child, and his child, a grandchild, of the deceased, has proceeded to a contested hearing, with virtually all matters put in issue (with the exception of eligibility) until submissions, provides another example of the high level of emotion that can be generated in relation to the distribution of an estate. There is little doubt that emotion has played a real part in the contest before the Court. Background Facts 1. I am satisfied that the following facts have been established, and that they provide a useful context. 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 married to John Hughes in August 1947. There were three children of their marriage, namely, Leslie Hughes, who was born in December 1948 and who died in May 1969; Geoffrey Hughes, who was born in 1952 and who died in 2008; and the Plaintiff, who was born in February 1959. 3. The deceased's home was at Merewether, New South Wales ("the Merewether property"). She and her husband had purchased it, as joint tenants, in about 1971, for $14,600. It passed to the deceased, by survivorship, following the death of her husband in December 2010. 4. The deceased's husband had worked as a fitter and turner toolmaker at the floating dock in Newcastle, whilst the deceased worked, casually, at Coles supermarket, and also earned an income making wedding cakes and baking cakes for restaurants. The deceased's husband retired in about May 1985 at the age of 60 years. The deceased may have continued working for a short time thereafter, but not for long. Then, they received the pension. It is likely that they were not affluent people. 5. The Plaintiff had two relevant relationships in his lifetime, the first of which was with Bridget Reiss. The Defendant is a child of that relationship. She was born in July 1984. 6. For almost the whole of her life, the Defendant has had little to do with the Plaintiff, at least in part, because of the Plaintiff's circumstances, to which I shall refer later in these reasons. She states that he has "never been a significant part of my life physically or emotionally". That position continued even at the time of the hearing. 7. The Plaintiff's second relationship was with his current wife, Kylie Hughes, whom he married in 2003, although their relationship commenced earlier. There is one child of their marriage, being James David Hughes, who was born in June 2002. 8. The deceased's Will provided for a devise of the Merewether property to the Defendant; a bequest of the deceased's "computer containing the family history" to Diane Tysoe; for a bequest of a pecuniary legacy, each of $50 to three named grandchildren; and $50 to the Plaintiff and Brian Harvey; a bequest of any funds remaining in any Newcastle Permanent Building Society account in the sole name of the deceased, to her grandson, James; and the rest and residue to the Defendant. 9. (The parties agreed that the bequest of $50 in Clause 3(d) was a gift to both of the Plaintiff and Mr Harvey equally. Accordingly, it was accepted that the provision made for the Plaintiff in the deceased's Will was a pecuniary legacy of $25: T66.43 – T67.14.) 10. Clause 4 of the deceased's Will provided: "4. In making this my Will I have taken into consideration my granddaughter ERIN PATRICE SHARP and her husband TRENT SHARP's assistance in taking care of me during my old age. They were my only family members who took care of me during my old age and it is for this reason that I would like to leave my granddaughter with my home and its contents." 1. As will be read later, there was another reason given by the deceased (to the Defendant and another witness) for making the provision made for the Plaintiff in the deceased's Will. 2. In the Inventory of Property attached to, and placed inside, the Probate document, the property owned solely by the deceased at the date of death was described as the Merewether property ($580,000); personal and household effects ($5,000); cash in three different Newcastle Permanent Building Society accounts ($319; $154; and $563) and the contents of a security deposit box (value unknown). (I have omitted, and shall continue to omit, a reference to cents in relation to values. This will explain any apparent mathematical miscalculations.) 3. The Defendant, in her first affidavit, disclosed liabilities of the estate consisting of costs and disbursements associated with obtaining Probate ($5,410), outstanding rates owed to Newcastle City Council ($4,414) and miscellaneous debts of the deceased ($2,982). The liabilities have not been paid. 4. At the commencement of the hearing, the parties agreed that, without any deductions at all for the pecuniary legacies, the liabilities of the estate, or for the costs of the proceedings, the gross value of the deceased's estate, at the date of hearing, was $653,037. The estate consisted of the Merewether property (with an agreed value, for the purposes of the hearing, of $650,000), some furniture and personal effects ($2,000) and the cash in the building society accounts ($1,037). Other furniture and contents were given away, or sold, by the Defendant, with any proceeds of sale being used to pay expenses of maintaining the Merewether property, such as carpet cleaning, lawn mowing and painting. The gross value of the estate, on any view, is not large. 5. The Defendant gave evidence that the Merewether property has not been rented since the death of the deceased, but that one of her friends lives there, so as to avoid it being left vacant, and in order to carry out some minor renovations: T65.30 – T65.36. 6. The parties also agreed that the Merewether property would have to be sold in the event that the Plaintiff were to receive any order for provision and his costs out of the estate. The estimated costs and expenses of sale of the Merewether property were agreed at $22,000. There were also liabilities of the estate of $12,806 yet to be paid. They also agreed that the pecuniary legacies (other than the $25 legacy to the Plaintiff), which total $175, and the monies in the Newcastle Permanent Building Society accounts ($1,037), should be paid out of the estate and should not bear the burden of the provision, if any, made for the Plaintiff. 7. It follows, that without any deduction for costs, the value of the distributable estate is estimated to be $617,019. 8. 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 or her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that his or her costs, calculated on the indemnity basis, should be paid out of the estate. 9. As Basten JA put it in Chan v Chan [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs." 1. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. 2. The Plaintiff's costs and disbursements are set out in the affidavit, sworn 7 June 2017, of Mr C E L Duncan, solicitor, who estimates those costs and disbursements, calculated on the ordinary basis, up to the completion of a two-day hearing to be $74,500, made up of (a) solicitors' costs $46,750, including GST, (b) counsel's fees $24,750, including GST; and disbursements of $3,000. He estimated that the Plaintiff's costs and disbursements, calculated on the indemnity basis, would total $91,000. 3. The Defendant stated, without objection, that she had been informed by her legal representatives that her costs and disbursements (inclusive of GST), calculated on the indemnity basis, up to the conclusion of a two-day hearing, are estimated to be $97,400, made up of (a) solicitors' costs and disbursements of $44,000; and (b) counsels' fees $53,400. She stated that none of the costs and disbursements have been paid out of the estate or otherwise. 4. (Whether this case warranted senior and junior counsel to be retained on the part of the Defendant probably does not have to be considered because, ultimately, the burden of any costs order, if the Plaintiff is successful, will be borne out of the deceased's estate passing to the Defendant.) 5. During the course of the hearing, it became apparent that the hearing would be concluded in one, rather than, two days. The parties were then able to agree that the Plaintiff's costs were to be assessed and agreed at $67,000, whilst the Defendant's costs were to be assessed and agreed at $76,700, both amounts being inclusive of GST. Not only will this mean that there will be no delay in the determination, with precision, of what is available for distribution, it will avoid any further delay in the final distribution of the deceased's estate. 6. Even so, that nearly $145,000, or almost one quarter of the estimated net value of the deceased's estate (excluding costs), has been incurred in costs and disbursements, in what is, a fairly straightforward, if a little unusual, claim for a family provision order, is to say the least, regrettable. 7. This disproportionality is highlighted even further when one considers that in November 2016, when the judicial settlement conference was held between the parties, the Court was informed that the estimated costs and disbursements, of both parties, were then, $50,000. 8. The Defendant accepted that if the Plaintiff were successful, he should receive his costs. In the event that he was not successful, the Plaintiff submitted that no order for his costs should be made payable out of the deceased's estate. The Defendant submitted that if the Plaintiff was unsuccessful, an order should be made for him to bear her costs of the proceedings, and that the difference, if any, between indemnity costs, and what she recovered from him, would be paid out of the estate. (Counsel confirmed, in this regard, that there was no Offer of Compromise or Calderbank letter that might impact on the issue of costs.) 9. It follows that if the value of the distributable estate (excluding costs) is $617,019, and if the agreed costs of both parties are deducted ($143,700), the net distributable estate will be $473,319. 10. Then, the parties agreed that if further provision is to be made for the Plaintiff, it should be calculated as a lump sum based upon a percentage of the net distributable estate, which would be able to be determined when the gross sale price of the Merewether property, and the actual expenses for sale are known, rather than as a lump sum based upon the estimates to which reference has been made above. (The Court was requested to use the estimates to determine the answers to the questions of adequacy of provision, and if inadequate, to determine the provision that ought to be made for the Plaintiff.) 11. Then, from the net proceeds of sale of the Merewether property, the legacies ($175), as well as the payment of the debts ($12,806), and the costs of the proceedings, could be made. (James, of course, is entitled to receive the proceeds of the three building society accounts which cannot be distributed to him because he is not yet 18 years of age. The amount in the Building Society accounts will, presumably, be consolidated and held for him. The legacy to him, could, therefore, be ignored.) 12. I am satisfied that the percentage method of determining the lump sum provision made in favour of the Plaintiff, is an appropriate way to proceed. In coming to this conclusion, I have not forgotten that McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs". 13. Whilst this, undoubtedly, is true, it seems to me that in some cases, for example where the estate has a value that cannot be precisely determined because of the volatility of the real estate market, to make an order for a lump sum based upon estimates, will not be the most appropriate way of determining what is "proper" in all the circumstances of the case. In this way, both the Plaintiff and the Defendant would benefit if the Merewether property were sold for a price greater than had been agreed for the purposes of the hearing, and each would be detrimentally affected if it sold for less than the agreed figure. There would also be certainty of the price and all of the costs and the expenses upon which calculations could be made. 14. It should be remembered that the value of the estate is a relevant consideration in determining the adequacy and propriety of the provision. Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes "in any other manner the Court thinks fit". 15. As the parties agreed that this was the appropriate method of determining the quantum of the lump sum provision that may be made for the Plaintiff, I propose to adopt the course agreed upon. 16. The parties also agreed that the only eligible persons are the Plaintiff and the Defendant. She has not made an application for a family provision order, but does, however, raise her financial and material circumstances in the proceedings. 17. There is the possibility that the Defendant's husband, Trent Sharp, from whom she is now separated, is also an eligible person, since he was a member of a household of which the deceased was a member, and perhaps, partly dependent upon the deceased. There is evidence from the Defendant's solicitor, Mr R A Murphy, that he sent a notice of Claim to Mr Sharp by prepaid Express Post in December 2016, and that he has received no reply or response from Mr Sharp to the Notice or the letter under cover of which it was sent. 18. The Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made, other than a beneficiary of the deceased person's estate, but who has not made an application. It follows that the Defendant's interest, under the Will of the deceased, cannot be disregarded but that since Mr Sharp has been served with the prescribed form of notice, I shall disregard his interests as a person by, or in respect of whom, an application for a family provision order may be made. The Plaintiff's explanation for not commencing proceedings within time 1. As has been stated, the Summons should have been filed not later than 4 August 2016, which means that the proceedings were commenced 39 days out of time. 2. The Defendant has maintained her opposition to the Court extending the time for the making of the Plaintiff's application. Accordingly, it is necessary to consider, amongst other things, the Plaintiff's explanation for not commencing proceedings not later than 12 months after the date of the death of the deceased. 3. There was no evidence, in the affidavits read in the Plaintiff's case, about when the Plaintiff first instructed his solicitors to act for him in this matter. The matter was raised with counsel. 4. Following the long adjournment, counsel for the Plaintiff, without objection, and with the agreement of senior counsel for the Defendant, informed the Court of the history of the solicitors' involvement prior to August 2016. 5. He stated that the Plaintiff's solicitor's file was opened on 12 August 2015, that is to say, shortly after the death of the deceased. The solicitors received a copy of the deceased's Will on 26 August 2015, from Peter Hamilton & Associates Lawyers (not the Defendant's current solicitors) under cover of a letter dated 25 August 2015. When the solicitors and the Plaintiff read the Will and realised that virtually no provision had been made for the Plaintiff, it became clear that the Plaintiff would wish to make a claim for a family provision order. Thereafter, the solicitors continued to correspond, and communicate, with the Defendant's then solicitors, until 12 July 2016. That last communication was a telephone call. There was no further contact until after the Summons was filed. Whilst none of the correspondence between the legal representatives of the parties was tendered, counsel for the Plaintiff stated that at no stage did the Plaintiff's solicitors expressly inform the Defendant's solicitors that the Plaintiff intended to make a claim for a family provision order: T54.44 – T55.18. 6. The explanation for the delay in commencing the proceedings is given in the affidavit sworn 5 October 2016, of Mr M R Wicks, a solicitor then employed in the firm of the Plaintiff's solicitors, Bilbie Dan, and in the affidavit sworn 7 June 2017, of Mr N P Dan, a principal of that firm. Neither of the solicitors was cross-examined. 7. Mr Wicks had acted for the Plaintiff during his employment with the Plaintiff's solicitors, that is, between August 2015 and May 2017. (He is no longer employed by the firm of solicitors acting for the Plaintiff.) 8. The affidavit evidence revealed that Mr Wicks, in fact, sent, a letter dated 2 August 2016, with the Summons, to the Supreme Court, for filing, but, at the same time, made a request to the Court to postpone the payment of the filing fee. The letter and the Summons were sent to the Court through the Document Exchange. 9. On about 12 August 2016, the Court informed Mr Wicks that the Summons "could not be filed until further information about the plaintiff was provided". 10. On a date not disclosed, the Summons and Application to Postpone Court Fee were received by Mr Wicks, with the request that a Statutory Declaration be annexed to the Application to Postpone Court Fee. 11. Under cover of a letter dated 26 August 2016, Mr Wicks returned the documents previously sent, but with the Statutory Declaration, to the Court through the Document Exchange, for filing. 12. On 2 September 2016, Mr Wicks received another letter from the Supreme Court requesting further information to enable consideration of the application to postpone the Court Fee. The letter required the Plaintiff to complete outgoing expenses on the Statutory Declaration, to state how much income was received, and to state the income of the applicant's spouse and other household income. 13. Under cover of a letter dated 2 September 2016, Mr Wicks returned the Summons, the Application to Postpone Court Fee and what was described as "a missing statutory declaration". 14. Had Practice Note SC Eq. 7, Paragraph 6, been complied with by filing with the Summons, a copy of the affidavit of the Plaintiff adapted from the form in Annexure 1 to the Practice Note, the information that was sought by the Registrar ought to have been included: see, paragraphs 9 and 22 of the Plaintiff's affidavit as filed on 7 October 2016. 15. Mr Wicks was notified in an email dated 15 September 2016, from the Court, that the Registrar had approved the application for postponement of the filing fee, on condition that "$50 payment upfront and the balance of fee postponed [was paid] until the end of matter". The Summons, however, reveals that it was filed on 13 September 2016. 16. Mr Dan conceded in his affidavit sworn 7 June 2017 that the Plaintiff's Summons was not filed due to Mr Wick's "lack of experience" and that it was "a mistake on Mr Wick's behalf", it appearing that he "did not take into account the importance of ensuring that the Summons had to be filed by 4 August 2016 and that he did not realise the potential problem in leaving the filing till the final couple of days". 17. The Defendant does not identify any particular prejudice arising out of the delay in the commencement of the proceedings. The estate, even at the date of hearing, remained fully undistributed. Indeed, Probate was only granted to the Defendant on 10 November 2016, that is, almost two months after the filing of the Summons. Furthermore, the Defendant does not point to any unconscionable conduct on the part of the Plaintiff. Events involving the Plaintiff's incarceration in Thailand 1. Because it has played a pivotal role in the way in which the case, by both parties, has been presented, I shall next discuss certain events relating to the Plaintiff's incarceration in Thailand between about 1985 and about 1998, that I am satisfied have been established by the evidence. 2. In about 1984, the Plaintiff travelled to Thailand. Although there was some dispute about the date, I am satisfied that in early 1985, he was arrested, at Bangkok Airport, and was charged with being in possession of heroin. At the time, he was about to board a plane bound for Australia. 3. He appears to have been suffering from some form of mental instability, because, following his arrest, the Thai authorities placed him in hospital, rather than imprisoning him, immediately, in a Thai prison. 4. His trial did not take place until 1989, at which trial, he pleaded guilty. He was sentenced to 25 years imprisonment, presumably for heroin trafficking. 5. Although the evidence is sketchy, it appears that the deceased took control of a campaign to get the Plaintiff out of prison. Initially, the Plaintiff's parents sought to have him released, upon the grounds, it would seem, that he was suffering from some form of mental instability. The claim was, apparently, supported by references from Australia, going to his confused mental state at the time. Ultimately, the request for release was denied. 6. In October 1991, he was transferred to Klong Prem Central Prison in Bangkok, Thailand. Through Thai solicitors and the Australian Embassy in Thailand, the Plaintiff's parents lodged a request for a royal pardon, which request was rejected in 1992. 7. In 1993, an appeal was lodged for an amnesty or pardon for the Plaintiff. This application was also refused in September 1993. 8. In 1995, a further request for an amnesty or pardon was made on behalf of the Plaintiff's parents. This application appears to have also been refused, because it was only in 1998 that the Plaintiff was granted a King's pardon and was released from the Thai prison and returned to Australia. 9. Although the Plaintiff stated that "[M]y parents provided me with a great deal of assistance whilst I was in prison in Thailand…" and that "I have never been in a position to repay them", there was a dispute about the amount of money that had actually been spent by them in their efforts to have him released from prison and returned to Australia. 10. One thing that is not in dispute is that, on 22 March 1985, the deceased and her husband granted a mortgage to the Commonwealth Bank, which was registered on the title to the Merewether property, for the purpose of obtaining funds to assist the Plaintiff. Whilst the precise amount borrowed is not disclosed on the Mortgage, the parties agreed that the stamp duty paid ($105) would suggest that it was about $40,000: T92.13 – T92.16. The Plaintiff acknowledged in his 7 October 2016 affidavit, at [82], that "they mortgaged their home to fund my legal case over there". 11. The amount borrowed from the Commonwealth Bank was repaid promptly, as a copy of a Discharge of Mortgage dated 25 July 1985 is in evidence. The source of funds to repay the mortgage debt was from the retirement funds paid to the Plaintiff's father (about $92,000) in or around May 1985 (when he retired aged 60 years). 12. Teresa Robinson, a witness whose affidavit sworn 25 January 2017 was read in the Defendant's case, and who was not cross-examined, gave evidence of conversations that she had with the deceased's husband and with the deceased, whilst the Plaintiff was in prison, to the effect that they had "spent our retirement money and our life savings in excess of One Hundred Thousand Dollars in trying to help David get out of prison or to ensure that he had better living conditions". 13. Ms Robinson also gave evidence that the deceased had mentioned having received a letter from the Plaintiff, in which he had stated "I appreciate all that you and Pop have done for me. Please do not leave me anything when you die as I have gotten more than my fair share from you while I was in prison". 14. Whilst Ms Robinson did not write anything about when the letter had been sent to the deceased by the Plaintiff, the Defendant referred to a conversation with the deceased, in approximately 2013, in which the deceased told her that she had received a letter from the Plaintiff, whilst he was in prison "saying that his inheritance had been spent on him already because of his mistake". The deceased also said that she was "going to hide the letter" but no letter was located by the Defendant. 15. The Plaintiff did not dispute that he had written a letter to the deceased which included those statements. However, it was submitted that the letter had been written whilst the Plaintiff was incarcerated for 25 years in a Thai prison, and that not too much weight ought to be given to his statements made at that time. 16. The Plaintiff disputed that his parents had ever said to him that he had his inheritance spent on him when he was in Thailand. 17. There is a copy of a letter, written by the Plaintiff to his brother, Geoffrey, in September 1995, in which the Plaintiff referred to a letter written to him by Geoffrey, in which he had referred to "all that work they [their parents] have had to do. All that money they have had to spend," neither of which statements did the Plaintiff dispute in his letter. In response to the Defendant's reference to the letter, the Plaintiff stated that it "has absolutely nothing to do with my mother". 18. The Defendant visited the Plaintiff on four occasions whilst he was incarcerated in the Thai prison. On all but the last of these occasions, she was accompanied by the deceased. I infer that it was the deceased and her husband who paid the costs and expenses of these trips. 19. Even though it is not possible to come to a conclusion about how much money was actually spent by the deceased and her husband in relation to the Plaintiff during the years of his incarceration, and even though his statement in the letter referred to does not constitute a release of rights to make a claim for a family provision order out of the estate of the deceased, there was really no dispute that the deceased and her husband did everything in their power, including spending savings, and at least part of his retirement benefit, to achieve either the Plaintiff's removal from the circumstances in which he found himself, to pay for legal expenses that he would have incurred, and to ensure that his life in prison was made more comfortable: T15.15 – T15.21. 20. (I should mention that the Plaintiff said in answer to a question from the Bench that one of his friends made a financial contribution of "$20,000 maybe" to assist in defraying his expenses. He had not mentioned this in any of his affidavits and stated that "it just totally skipped my mind": T41.17 – T41.40. In light of his evidence denying any knowledge of what his parents had paid, I do not accept the Plaintiff's evidence on this aspect.) 21. There is one additional aspect that is relevant before leaving this topic. 22. It appears that following the Plaintiff's arrest and incarceration in Thailand, the deceased and her husband obtained custody of the Defendant, who was then a baby. From that time until the age of 28, the Defendant lived in the Merewether property first with both grandparents, and then for a time, with the deceased alone. 23. During the whole of the Defendant's childhood, her grandparents provided for the Defendant in every way, both emotionally and financially. They encouraged her education, including her application for placement at a performing high school for music. They paid for her private lessons on the trumpet and the piano. I shall refer to the Defendant's qualifications later in these reasons. 24. The Plaintiff accepted that "at no stage did [the Plaintiff] pay any money to [his] parents to help them with bringing up Erin": T40.06 – T40.09. The deceased and her husband acted in loco parentis and they paid all of the costs and expenses of raising a child that, normally, would be borne by both of her parents. The Statutory Scheme 1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have done so in many other cases, the most recent of which is Penninger v Penninger [2017] NSWSC 892, but for the benefit of the parties, I shall repeat some of what I have written. Where necessary, I shall add references to other principles. 2. Usually, in cases such as the present, the Court must determine (not necessarily in the order set out below) whether: 1. the Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act; 2. the time for the making of the Plaintiff's application should be extended; 3. the provision made for the maintenance, education and advancement in life of the applicant by the deceased's Will is adequate and proper in all the circumstances; and 4. if the provision is inadequate, what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. 1. These matters are not entirely distinct, but are related and overlap. For example, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application. Eligibility 1. The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of ss 57(1) and 59(1)(a). It is only an "eligible person" who may apply to the Court for a family provision order. Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased. Extension of Time 1. As stated earlier, the Plaintiff made his application about 12 months and 39 days after the death of the deceased. The Act, relevantly provides, in s 58(2), the period within which the application must be made: "An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown." 1. In Moore v Randall [2012] NSWSC 184 at [39], White J (as his Honour then was) wrote that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period". 2. In Verzar v Verzar [2014] NSWCA 45 at [24], in the Court of Appeal, Meagher JA wrote that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time". 3. Clearly, permitting the Court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380 at [98] (Lindsay J). 4. The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175. 5. In Madden-Smith v Madden [2012] NSWSC 146 at [23]-[24], Pembroke J put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply." 1. In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows: "The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]." 1. To refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant. As Keane JA (as his Honour then was) wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 at [31]: "The appellants' submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: "If it is improbable that the substantive application will succeed it seems idle to grant the extension." This statement was approved by Lush J in Re Walker, deceased where his Honour went on to add that the improbability of success "may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ...."." [Footnotes omitted] Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 (per Steytler P, with whom Pullin and Buss JJA agreed) at [42]. 1. Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is "sufficient cause" to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)… The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)… Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)." 1. As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, "the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate": Harrison v Harrison [2011] VSC 459 at [292] (Kaye J). 2. Although in another context, the High Court said in Sophron v The Nominal Defendant (1957) 96 CLR 469, at 475; [1957] HCA 27: "… it is a mistake to attempt to reduce the expression 'sufficient cause' to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure." 1. In Charles v Charles (Supreme Court (NSW), 25 March 1988, unrep) Young J at 7 wrote that "… there must be something more than mere incompetence or inattention by a solicitor before time can be extended under this Act". 2. In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) observed, at [55], that Young J's statement was a rule of thumb which could not confine the statutory discretion. 3. In Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437, White J (as his Honour then was) said of his Honour's statement, at [24]: "His Honour's statement that inattention or incompetence by a solicitor is an insufficient ground to warrant an order extending time does not mean that an application for extension must be refused if the limitation period expired through the fault of the solicitor. Contrary to the impression conveyed in the passage quoted from De Groot and Nickel, Family Provision in Australia, it was not held in Charles v Charles that the extension ought not to be granted in that case. In fact, an extension of time was granted as notice of intention to apply had been given before the limitation period expired and the beneficiaries were not prejudiced by an extension." 1. In Moore v Randall [2012] NSWSC 184, White J on this issue said, at [48], after referring to Charles v Charles and Kalmar v Kalmar: "In Re Estate of Nichos (dec'd); Grigoriou v Nitsos [1999] WASCA 42 Ipp J said (at [17]): "[17] In my opinion, where delay in making an application in terms of s 7(1) is due to the conduct of an applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435; [1948] SASR 248 and Re Traeger dec'd, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act. In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant. See also Bourke v Kecskes [1967] VR 894 (which was an application for the dismissal of an action for want of prosecution), where Lush J examined the question whether "it is fair to place on the facts the interpretation that the plaintiff was passively accepting a situation which he ought to have realised was wrong" (because of unreasonable delay on the part of his solicitor)." 1. As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…" 1. This statement echoed what had been written by McColl JA (with Campbell JA agreeing) in Nanschild v Pratt [2011] NSWCA 85 at [38] – [39]. 2. In addition to the circumstances set out above, other circumstances that may be considered include, by way of example, the length of the delay; the promptitude with which the applicant gave warning to the defendant of the proposed application; whether negotiations had been commenced within the time prescribed by the Act for the making of the application; whether the estate had been distributed before the claim under the Act had been made or notified; whether any beneficiary has changed her, or his, position in reliance on the distribution; whether a refusal to extend the time would leave the applicant without redress against anybody: Craig v Craig [2015] WASC 109 at [33] (Mitchell J). 3. In Re Estate of Nichos (Dec'd); Grigoriou v Nitsos (As Executor of thr Estate of Nichos) [1999] WASCA 42, another matter referred to was whether, if the applicant had instructed solicitors, he, or she, had taken steps to ensure the solicitors pursued the claim. Whether provision in Will inadequate 1. Ultimately, if eligibility is established, and the time for making the application is extended, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the Court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. 2. 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". 3. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 4. Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant'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). 5. Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, 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 her or his proper maintenance, education and advancement in life: Singer v Berghouse (1994) 181 CLR 201 at 227; [1994] HCA 40. 6. "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. 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) 119 SASR 523; [2014] SASC 86 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 (2005) 221 CLR 191; [2005] HCA 11 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. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. 2. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made. 3. The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made 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 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, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 2. In Chapple v Wilcox (2014) 87 NSWLR 646 at [7]; [2014] NSWCA 392, Basten JA 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 each 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 time of 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. Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) 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. 5. There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases. 6. 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: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 (Dixon CJ) at 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J). 7. In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 1. Of the freedom of testamentary disposition, in Grey v Harrison [1997] 2 VR 359, 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. In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also 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 said, 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. White J referred to these principles in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 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. 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), 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 2. 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. 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]. 3. In relation to the Plaintiff's claim, being a claim for provision by an adult child, the following principles are also 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": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006 at [71]; 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 children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": 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) 143 CLR 134 at 148; Goodman v Windeyer 144 CLR 490 at 498, 505; [1980] HCA 31. 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) [1981] 2 NSWLR 532 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 (1957) 97 CLR 566; [1957] HCA 82; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 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 [2009] WASC 164 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 these 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] (per Basten JA) and at [65]-[67], (per Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62]. 2. In Foley v Ellis [2008] NSWCA 288 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". The only other claimant on the bounty of the deceased in the present case is the Defendant. 3. Even though not an applicant for provision, the Defendant does not have to prove an entitlement to the provision made for her in the deceased's Will, or otherwise justify such provision. Qualifications on "Principles" 1. As long ago as 1980, in White v Barron (1980) 144 CLR 431; [1980] HCA 14, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application." 1. As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general 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, which is left largely unfettered. 2. 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. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] 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 two paragraphs have been stressed in Chapple v Wilcox at [18]-[20] and at [66]-[67]; and in Burke v Burke [2015] NSWCA 195 at [84] – [85]. They must be remembered. Additional Facts 1. I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. 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] at [124]), but in order to complete the recitation of facts that will assist me 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. The Plaintiff is a child of the deceased. He grew up living in the Merewether property with the deceased and other family members. He states that he had a close relationship with the deceased. 2. He left home at the age of 17 years for about 6 months and then returned home until he moved out, again, after several months. 3. Even whilst he was living away from home, he returned to see the deceased several times a week. 4. At the age of 21 years, the Plaintiff went travelling overseas. His father, at the insistence of the deceased, contributed $1,000, which was repaid on his return from overseas. 5. Upon his return, the Plaintiff moved to the Coffs Harbour region. Even whilst living there, he kept in regular contact with the deceased. They would speak by telephone, usually, once or twice a week, sometimes more. The deceased would travel to Coffs Harbour every 6 weeks or so to see the Plaintiff and Geoffrey, who was also living in that area. 6. In about 1982, the Plaintiff met Bridget Reiss. As stated, the Defendant was born in July 1984. 7. I have referred to the events that resulted in the Plaintiff's incarceration in Thailand. Even whilst in prison, the deceased would write to him every week or two, and he would reply. She would send parcels to him every 2 or 3 months. As stated, she visited the Plaintiff, taking the Defendant with her on the three occasions that she did so. 8. Upon his return to Australia, in 1998, the Plaintiff moved back to the Merewether property for about 10 months. He lived with Geoffrey in a granny flat at the back of the property. He states that the deceased repeated that both she and the Plaintiff's father were very happy that he was home and that they "didn't hold it against you". 9. Then the Plaintiff moved, firstly to another part of Newcastle. During this time, there was a disagreement between the Plaintiff and the deceased regarding the parenting of the Defendant. 10. In about February 2000, the Plaintiff moved to Raleigh, a small town in the mid-north coast region of New South Wales, south of Coffs Harbour. He worked with a friend who had a panel beating business, earning enough to pay for rent. 11. Shortly, thereafter, the Plaintiff met his current wife, Kylie. He introduced her to the deceased, and it appears, that the deceased liked her. When Kylie and the Plaintiff married, the deceased attended the wedding. When their son, James was born, the deceased visited them as regularly as she could. On occasion, she would catch a train so that she could visit them. (The Plaintiff's father did not attend as he was unwell with Parkinson's disease.) 12. The Plaintiff says that not long afterwards, he started "to lose the close contact I had enjoyed with my mother…". He blames the Defendant for this but no such suggestion was put to her in cross-examination. Despite this, the Plaintiff says that he would visit his parents, with James, every school holidays or at Christmas: T34.44 – T34.47. However, the last Christmas that they spent together was before 2010. 13. The Plaintiff's father died in 2010 and the Plaintiff attended the funeral. However, he did not see the deceased again until 18 months later when he travelled to Newcastle to collect some of his father's tools. At this time, they had a disagreement following which the Plaintiff "hadn't set foot inside" the Merewether property and only spoke to the deceased three or four times, and only when she telephoned him. He admitted that when he received these telephone calls, "I was not over the previous argument and as such I was not in a position to have a lengthy phone conversations with her". It is clear that by the date of the deceased's death their relationship was not a very close one. 14. The Defendant contacted the Plaintiff and told him that the deceased had suffered a cerebral haemorrhage. Nine days later, when able to obtain time off work, he visited her in hospital with James but she was in a coma. The deceased died a short time later. (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 to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound. 2. The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] 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. Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations. 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 any of her children, once they became adults, imposed upon her by statute or common law. 3. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand 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. It should also be remembered that "[a]lthough the relationship of parent and child is important and carries with it a[n]… obligation reflected in the … Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives": Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition. However, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] NSWCA 269 at [73] (Basten, Macfarlan and Ward JJA). 2. The size of the deceased's estate is also relevant to determining the extent of the obligation or responsibility. (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 earlier dealt with these matters. The value of the net distributable estate, even without considering the costs of the proceedings, is on any view, not very large. It is reduced significantly by the incidence of costs. (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 left school at the age of 16 years. 2. The Plaintiff set out his financial resources in an affidavit sworn 7 June 2017. He described his assets as consisting of two cars ($5,000 and $7,000), superannuation ($5,000), furniture and personal items ($7,900) and jewellery ($120). He stated that his wife, Kylie, had a bank account ($220). 3. The Plaintiff described his liabilities as being two personal loans ($12,000 and $781), a debt to Centrelink ($3,000) and car finance ($2,500). He stated that Kylie also has a debt to Centrelink ($22,209). 4. The Plaintiff works casually, three days per week, as a traffic controller. He stated that his income varied between $300 and $750 per week, but said, in his oral evidence that it sometimes well exceeded $750 per week. I am satisfied that his current average weekly income is in the order of $600, an amount to which he referred in his affidavit of 27 February 2017. He stated that Kylie receives a Newstart allowance of $440 per fortnight. 5. He described the family's outgoings as amounting to $1,320 per fortnight. That amount includes rent of $560 per fortnight and food costs of about $250 per fortnight. 6. To his credit, the Plaintiff is now studying a Certificate 4 in Mental Health Peer Group Work at TAFE NSW, in order to be able to find alternative work in the future. The course he is studying will be completed in March 2018. He anticipates that his potential job role after that would be in mental health as a Mental Health Peer Worker, assisting clients to work towards a road of recovery. He says that the National Disability Insurance Scheme rate for this position is $23 to $29 per hour. He also says that securing a job will be dependent upon a police check, and his potential employer accepting his past criminal history. 7. The Plaintiff states that he does not have enough money in savings "to provide for my retirement and [I] fear my superannuation that my family is currently living on will run out before I will be able to return to work if I can do so at all". (As he currently works 3 days per week, this reference to returning to work, I infer, refers to returning to full time work.) 8. The Defendant is aged (nearly) 33 years. She completed high school and started a Bachelor of Teaching and a Bachelor of Fine Arts course at the University of Newcastle in 2006. Although her grandparents offered to pay her tertiary education costs, she did not agree and instead took on a HECS debt. They did, however, purchase a laptop computer as their contribution to her university studies. 9. The Defendant graduated with a double degree in 2012 and has subsequently commenced a Masters of Education degree at the University of New England specialising in special education. She states that she has about 12 to 18 months of the course yet to complete. 10. She currently works at Griffith High School as a music teacher. She started working there in late January 2012 and continues to do so. She hopes that she will be able to work there in a special education role when she obtains her Masters degree, but this is not assured. 11. The Defendant's taxable income for the year ended 30 June 2016 was $75,048, on which she appears to have paid tax of $15,777 and other liabilities of $5,628 (Ex. 1). She receives a net income of about $4,156 per month. Her income usually increases each year. She discloses expenses of about $1,719 per month. Superannuation is paid in addition to her annual income. 12. The Defendant discloses assets with a value of about $75,000, of which $52,000 is superannuation and $16,000 is the value of a car. She does not disclose any savings. She discloses liabilities of $25,400 consisting of the balance of her HECS debt ($13,618), a credit card debt ($8,044), and a personal loan ($3,737). 13. The Defendant does not assert any health problems. She is an able bodied adult, who, as submitted by counsel for the Plaintiff, "already has measurably better financial resources than the plaintiff, is at an entirely different stage in life to the plaintiff and has very good of [sic] prospects of succeeding in life on her own account". There can be no dispute, also, that her earning capacity is far greater than that of the Plaintiff. In addition, it appears that, currently, she has no dependents. 14. (It has earlier been noted that she and her husband Trent are separated. They have been separated for just over 12 months and she is "looking into" divorce: T57.22 – T57.26. She did not give evidence of any anticipated property settlement proceedings that might alter their interests, as parties to the marriage, in their property.) (e) if the applicant is cohabiting with another person-the financial circumstances of the other person 1. The Plaintiff is married and lives with his wife, Kylie, and adolescent son, James in rented premises in Mylestom, on the far north coast of New South Wales, between Coffs Harbour and Nambucca Heads. 2. I have referred to Kylie's financial resources above. She is 37 or 38 years of age. He says that she is "presently unemployed and awaiting back surgery". 3. James is 15 years of age. A copy of a medical report (Ex. A), dated 22 November 2010, reveals that he "meets the criteria for the diagnosis Autistic Spectrum Disorder". (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 was medically retired in July 2016 so that he could undergo surgery to his neck. He asserts that he has four ruptured discs in his neck. In a copy medical report dated 3 April 2017 (Ex. B), from Dr D Martin, the Plaintiff's general medical practitioner, it is stated that the Plaintiff "has a permanent disability with central canal stenosis and OA (osteoarthritis) following cervical disc surgery in his neck. This injury will prevent him in the future from full time physical labour. It has effects currently that are worsening, numbness in limbs, impaired balance, and pain with standing for long periods". 2. I accept that bearing in mind his medical condition and his age, the Plaintiff has a limited earning capacity. (g) the age of the applicant when the application is being considered 1. The Plaintiff is 58 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. I note, under this heading, in the Plaintiff's first affidavit, that the letters and symbol "n/a" appears. 2. However, earlier he had stated that upon his return to Australia, and whilst living in the Merewether property, he did what he could do to help out, including such things as mowing the lawn, changing the oil on his father's car, making some driving light covers and some mud flaps for that car, and also running errands for the deceased, such as collecting her medicines and doing some shopping for her. There is no suggestion that he paid any rent or board to the deceased whilst he lived there for about 10 months. 3. The Defendant submitted that the Plaintiff did not make any contribution of the type referred to. To the contrary, in the events that happened, he was a significant drain on the deceased and her husband, with the result that the value of the deceased's estate was reduced because of the expenditure made for, and on behalf of, the Plaintiff. 4. There can be no suggestion that the Plaintiff made any contribution to the welfare of the deceased, or to the Defendant, from about 1985 until 1998. Thereafter, upon his return, he may have made the deceased happy that he was no longer incarcerated, but any contribution of that kind was short-lived, when there were disagreements regarding the parenting of the Defendant. 5. Then, the Plaintiff moved north and met and married Kylie. There is evidence that he and the deceased visited each other, but following the death of the Plaintiff's father in 2010, there was one visit (18 months after his death) and then only "three or four" telephone calls, each of which was made by the deceased to the Plaintiff. (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. I have dealt with the significant provision made for the Plaintiff, during the lifetime of the deceased, by his parents. (The contribution of the Plaintiff's father is relevant as the expenditure by him would have reduced the family's capital and income.) (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 1. I have earlier referred to Clause 4 of the Will of the deceased which speaks in terms of the assistance provided by the Defendant and her husband, Trent, to the care of the deceased, and the fact that she regarded them as "my only family members who took care of me during my old age". 2. The Defendant said that the deceased had never told her that she was leaving the Defendant the house for the reasons set out in the Will. The deceased had said, however, that the Defendant and her husband were the only family members who took care of her during her old age: T58.58.03 – T58.28. 3. I have also referred to the conversation held by the deceased with the Defendant and with Ms Robinson in which the deceased repeated the contents of the Plaintiff's letter sent to her whilst he was incarcerated. 4. In addition, the deceased told the Defendant that she and the Defendant's grandfather had discussed leaving the Merewether property to her "as in our eyes you are our daughter and it was your home". 5. The Defendant stated that she was unaware of the contents of the deceased's Will until after the deceased's death. (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. I have dealt with the periods during which some money was given to the Plaintiff by the deceased. He was clearly not being maintained by the deceased in the 15 years or so prior to the deceased's death (that is after he returned to Australia and moved from the Merewether property). (l) whether any other person is liable to support the applicant 1. There is no other person who is liable to support the Plaintiff, apart from his wife, but as stated, she is receiving a Newstart Allowance. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 1. I have earlier dealt with the Plaintiff's conduct. (n) the conduct of any other person before and after the date of the death of the deceased person 1. The Defendant gave evidence of her competing financial claim, asserting that any order for additional provision for the Plaintiff would necessarily require the sale of the Merewether property. 2. I have also earlier referred to the terms of the deceased's Will and the expression of the deceased's view of the Defendant and her conduct. 3. In this regard, I should deal with the evidence of John Griffiths, a witness called by the Plaintiff, whose affidavit sworn 24 February 2017, was read, and who was cross-examined. 4. Mr Griffith described himself as "the second cousin" of the deceased. His evidence went to the conduct of the Defendant, particularly in relation to the deceased. 5. Furthermore, Mr Griffiths filed an application with the NSW Civil and Administrative Tribunal in March 2014, in which he sought to review the guardianship, financial management and operation of an enduring Power of Attorney granted by the deceased to the Defendant. 6. It is unnecessary to go into the details of the allegations made against the Defendant, because they are so inconsistent with the view expressed by the deceased about the Defendant in Clause 4 of her Will, and my view of the evidence overall, which demonstrates, to my satisfaction, a close and loving relationship between the deceased and the Defendant. 7. In addition, it is to be noted that in July 2014, the Tribunal determined and ordered "Not to carry out a review of the operation and effect of the enduring power of attorney made by Mrs Beryl Dawn Hughes on 4 October 2012 which appointed [the Defendant] as attorney" and to dismiss Mr Griffith's application for a review, as well as ordering that his application for a guardianship order and financial management order be dismissed. (o) any relevant Aboriginal or Torres Strait Islander customary law 1. This factor is not applicable. (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. There is no other matter that I consider relevant. Determination 1. Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act. 2. Because the proceedings were not commenced within the time prescribed by the Act, the Plaintiff sought an order that the time in which to commence the proceedings be extended up to, and including, the date of the filing of his Summons. 3. Part 2 Clause 4 of the Civil Procedure Regulation 2012 (NSW) stipulates that filing fees, including for the filing of an originating process in the Supreme Court, are payable as set out in Schedule 1. The filing fee is due when the document is filed (Part 2 Clause 8(1)). However, Part 4 Clause 11(1) provides that the Registrar may direct, in writing, that the whole, or any part, of any fee payable be waived, postponed or remitted, subject to such conditions, if any, as the Registrar thinks fit to impose. 4. It is to be noted that the Plaintiff is neither a pro bono party (a party to proceedings who is being represented under a pro bono scheme administered by the New South Wales Bar Association or the Law Society of New South Wales, or under a pro bono scheme established by rules of court, being a party in respect of whom a barrister or solicitor acting for the party in accordance with the scheme) nor a party who is a legally assisted person (a person who is receiving legal assistance through a community legal centre that complies with the requirements of section 240 of the Legal Profession Act 2004 (NSW), or legal aid under the Legal Aid Commission Act 1979 (NSW)). 5. The Court acted promptly in dealing with the application made by the Plaintiff. 6. In this case, there is little doubt that the principal cause of the delay was the conduct of the solicitors in not attending to filing the Summons earlier than two days prior to the expiration of the time for the making of the Plaintiff's application. This was accepted by the Plaintiff's solicitor, Mr Dan. 7. I am satisfied, even though significant provision was made for him, directly and indirectly, during her lifetime by the deceased (and her husband during his lifetime), particularly between 1985 and 1998, and despite his relationship with the deceased in the last years of her life not being as close as it might have been, the Plaintiff, has an arguable case for obtaining provision out of the deceased's estate. (I shall later refer to the reasons for the making of a family provision order for him.) 8. It was only during submissions, that senior counsel for the Defendant seemed to accept that in the event the Court concluded that the Plaintiff's case for receiving provision out of the deceased's estate, in lieu of his entitlement under the Will, was an arguable one, that the time for the making of the application should be extended to the date of the filing of the Summons if a family provision order was to be made. 9. When one considers also that the delay is a short one, that there is no prejudice asserted by the Defendant, and no relevant unconscionable conduct of the Plaintiff alleged, the justice of the case leads me to be satisfied that sufficient cause has been shown and that an order should be made extending the time for the making of the Plaintiff's application to the date of the filing of the Summons, being 13 September 2016. 10. The Court must next consider whether, at the time of the hearing, adequate provision for the proper maintenance, education, or advancement in life of the Plaintiff has not been made by the Will of the deceased. The fact that he receives virtually no provision under the Will of the deceased, of itself, does not bespeak inadequacy. In determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the Plaintiff's overall financial position, the totality of his relationship with the deceased, 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. 11. In this case, the Plaintiff is in straitened circumstances. He has a wife, who is not working, but who receives a Newstart Allowance, and an adolescent child. He lives in rented accommodation and works casually, principally because of a medical condition that affects his capacity to work. He has a lack of other resources, including very little superannuation. Whilst it may be argued that, at least in part, his lack of resources was due to his own fault, the Plaintiff, it would appear, has tried hard to rehabilitate himself, and so far as is known, has engaged in no further criminal conduct since his return to Australia. In addition, his medical condition has contributed to his current state of affairs. 12. I also take into account the competing financial and material circumstances of the Defendant. However, she is in a significantly better position financially than is the Plaintiff. It would seem that she has a bright future. I have not forgotten her very strong competing claim and the fact that she is a chosen object of testamentary bounty, neither of which should be minimised. 13. I am also of the view that the deceased's estate, whilst not large, is sufficient, taking into account the provision that I consider should be made for the Plaintiff, to meet the claims of the parties upon it. 14. As counsel for the Plaintiff submitted, he has negligible prospects, at his age and stage of life, to improve, in any significant way, his current financial and material circumstances. He clearly has financial needs now, and is likely to have other financial needs in the future. In all the circumstances, I am satisfied that the provision made for the Plaintiff in the Will of the deceased is neither adequate nor proper. 15. I then turn to what amount, by way of provision, should be ordered for the Plaintiff. In crafting an order under the Act, the court must seek to disturb the provisions of the deceased's Will as little as possible conformably with the requirement to make adequate and proper provision for an applicant. 16. I should say that I reject the submission made by counsel that the Plaintiff should receive a capital sum calculated as between 40 and 50 per cent of the net estate. That submission fails to take into account, amongst other things, the Plaintiff's criminal conduct, which was known to the deceased, which resulted in him being incarcerated in Thailand for a drug offence; the effects that the publicity, which the Plaintiff acknowledged was likely to have occurred (T35.44 – T35.45), might have upon the deceased; the significant provision made for the Plaintiff during his lifetime, directly and indirectly, by the deceased (and her husband) whilst he was incarcerated; the nature of the relationship of the Plaintiff and the deceased, which was quite limited, particularly after his move away from the Merewether property and more particularly after 2010, when his contact with the deceased was slight; that the deceased (and her husband) took over the parental responsibility of the Defendant from a very young age and continued with that responsibility after 1998; and the very strong competing claim of the Defendant. 17. I should also mention that the principal submission of senior counsel for the Defendant was that the Summons should be dismissed with costs. When asked whether he wished to make any submission upon the basis that the principal submission was rejected, somewhat unhelpfully, senior counsel responded, at T89.19 – T89.31: "I don't want to commit us.…Mathematically it's hard to put a figure on it because when one thinks about the inheritance he's already had it's probably tipped the scales into he's in the red; he's already received what he should have got." 1. As earlier stated, the parties agreed that the case be determined, effectively, upon the basis of a percentage of the proceeds of sale of the Merewether property after the payment of costs and expenses of sale (estimated to be $22,000), the pecuniary legacies ($175), the liabilities of the estate ($12,806) and the agreed costs of the proceedings ($143,700) (which I describe as "the net estate"). As also stated earlier, the pecuniary legacy, to James, needs not be considered since the amounts in the three Building Society accounts, which have not been included, are for him, and they will, presumably, remain untouched. Finally, I consider that the value of the furniture and personal effects ($2,000) can also be disregarded, thereby leaving only the proceeds of sale of the Merewether property for consideration. 2. In my view, and using the value of the net estate, after costs, of about $470,000, the Plaintiff should receive an amount equal to 15 per cent of the net estate absolutely. On the present estimates, this equates to a lump sum of about $70,500. From the Plaintiff's point of view, the lump sum will enable the Plaintiff to pay off his liabilities (but not necessarily all of the liabilities of his wife) and leave a modest capital sum for exigencies of life. 3. That provision would still leave 85 per cent, or almost $400,000, available to the Defendant. (Of course, it might be more or less depending upon the gross sale price of the Merewether property.) That, on any view, is a reasonable capital sum which will provide her with a sound financial start in life. 4. The Defendant should place the Merewether property on the market for sale, as soon as is reasonably possible, but no later than 8 weeks from the date of the making of these orders, or such other time as the parties are able to agree in writing. 5. No interest should be paid on the lump sum payable to the Plaintiff, if it is paid within 7 days of completion of the sale of the Merewether property; otherwise, interest, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any unpaid part thereof from the eighth day following completion of that sale until the date of payment of the lump sum. 6. In view of the agreement of the parties regarding costs, since the Plaintiff has been successful, I also order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased and I note the agreement of the parties as to the amount of costs payable out of the estate of the deceased. 7. There is no reason why the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, should not constitute a charge over the Merewether property until paid in full. 8. I shall also grant liberty 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 orders made herein. 9. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW). 10. Subject to any amendments required by the parties as a result of any agreement between them, I propose the following orders: 1. Orders, sufficient cause having been shown, that the time for the making of the Plaintiff's application be extended until 13 September 2016, the date of the filing of the Summons. 2. Orders, having found that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance or advancement in life has not been made for him in the Will of the deceased, in lieu of the provision made for him in the Will of the deceased, the Plaintiff receive, out of the estate of the deceased, a lump sum calculated as 15 per cent of the net proceeds of sale of the Merewether property. 3. Orders that the net proceeds of sale are to be calculated by deducting from the gross sale price of the Merewether property, the costs and expenses of sale, including agent's commission, advertising costs, and the legal costs of sale; the pecuniary legacies, (other than the legacy to the Plaintiff), the liabilities of the estate, as well as the legal costs of these proceedings, as agreed by the parties. 4. Orders that the Defendant is to place the Merewether property on the market for sale, as soon as is reasonably possible, but no later than 8 weeks from the date of the making of these orders, or such other time as the parties are able to agree in writing. 5. Orders that no interest is to be paid on the lump sum payable to the Plaintiff, if it is paid within 7 days of completion of the sale of the Merewether property; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any unpaid part thereof from the eighth day following completion of that sale until the date of payment of the lump sum. 6. Orders that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased. 7. Notes the agreement of the parties as to the amount of costs payable out of the estate of the deceased. 8. Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merewether property until paid in full. 9. Grants liberty 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 orders made herein. 10. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW). 1. The parties should inform my Associate, within 7 days, of any amendments to the orders that are required. If no amendments are sought, upon confirmation, the orders proposed will be entered. ********** 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: 20 July 2017