Supreme Court New South Wales Medium Neutral Citation: Maynard v Maynard [2018] NSWSC 1961 Hearing dates: 13 and 14 August 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Equity - Family Provision List Before: Robb J Decision: (1) Order that the plaintiff's summons is dismissed. (2) Order that the defendant is entitled to be paid her costs out of the estate of the deceased on the indemnity basis. (3) Note that the defendant is entitled to an order that the plaintiff pay her costs on the ordinary basis, but the Court will hear the parties if the defendant applies for any special order for costs. Catchwords: SUCCESSION – Family provision – Claim by adult child for provision from the deceased's estate under Chapter 3 of the Succession Act 2006 (NSW) – Consideration of whether the application of s 59 of the Succession Act involves a one-stage or two-stage process in the light of relevant authorities, and matters relevant to how those processes may be applied – Where a capable testator has with knowledge that he is suffering from a terminal illness made a new will on the basis of the apparently careful consideration of his testamentary obligations to relevant parties – Where the testator gives his actual estate equally to his wife and two daughters – Claim for family provision order dismissed Legislation Cited: Succession Act 2008 (NSW) Family Provision Act 1982 (NSW) Cases Cited: Amos v Hogg [2018] NSWSC 1226 Sgro v Thompson [2017] NSWCA 326 Page v Page [2017] NSWCA 141 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Lodin v Lodin; Estate of Dr Mohammed Masoud Lodin [2017] NSWSC 10 Underwood v Gordon [2014] NSWSC 1055 Gardiner v Gardiner [2014] NSWSC 435 Sreckovic v Sreckovic [2018] NSWSC 1597 Poletti v Jones [2015] NSWCA 107 Butler v Morris [2012] NSWSC 748 Kohari v Trustee and Guardian (NSW) (No 2) [2017] NSWSC 1080 Slack v Rogan; Palfry v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 DJ Singh v DH Singh and Others [2018] NSWCA 30 Vidler v Ivimey [2013] NSWSC 1605 Grey v Harrison [1997] 2 VR 359 Category: Principal judgment Parties: Marcelle Zeneetha Maynard (plaintiff) Josephine Maynard (defendant) Representation: Counsel: A Moutasallem (plaintiff) L Ellison SC (defendant) Solicitors: T & S Law Firm (plaintiff) Marsdens Law Group (defendant) File Number(s): 2017/192298 Judgment 1. The plaintiff, Marcelle Zeneetha Maynard, commenced these proceedings by summons filed on 27 June 2017 seeking a family provision order under Ch 3 of the Succession Act 2008 (NSW) out of the estate of the late Basil Patrick Maynard. The plaintiff is a daughter of the deceased. 2. The defendant is Josephine Patricio Maynard, who is the widow of the deceased and the executor nominated under the deceased's will made on 11 March 2016. 3. The only other person who has an interest in these proceedings is the deceased's second daughter, Somaya Adelaide Maynard. 4. As is customary in matters such as the present, without meaning any disrespect, I will refer to the members of the deceased's family by their first names. 5. The deceased died on 8 July 2016, when he was 80 years of age. The deceased's wills 1. As all of Josephine, Marcelle and Somaya survived the deceased, the operative part of his will provided as follows: 8. My executor hold (sic) my estate on trust: (i) I give my property situated and known as 291A [street and suburb redacted ] to my wife, JOSEPHINE MAYNARD, to my daughter, MARCELLE ZENEETHA MAYNARD & to my daughter, SOMAYA ADELAIDE MAYNARD, in equal shares as Tenants in Common; (ii) to give the residue of my estate to my wife, JOSEPHINE MAYNARD absolutely; … 1. It is significant that, according to Josephine, the deceased was formally diagnosed with cancer on 18 January 2016. He made his final will after he learned of his diagnosis. I would infer that he had his mortality in mind when he made his will. There has been no challenge to the deceased's testamentary capacity. The proper view for the Court to take is that the deceased's last will reflected his carefully considered judgment as to the proper way that he should distribute his estate between the persons who had an expectation to share in his bounty. 2. As Hallen J reflected in Amos v Hogg [2018] NSWSC 1226: [60] In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which had made much more generous provision for the applicant, stated that "the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only will that matters is the deceased's last will." [61] Whilst the last sentence quoted is, undoubtedly, correct so far as the determination of the principal questions for determination under the Act, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also relevant, particularly if there was a long standing testamentary intention revealed by the earlier Will or Wills, and where there has been an incident that has, or incidents that have, caused a change to those long held testamentary intentions. [62] It may also demonstrate the recognition, by the deceased, at the time, of a degree of testamentary duty owed by her towards the Plaintiff. Also, as will be read, one of the matters that to which the Court may have regard, is "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person": s 60(2)(j) of the Act. 1. In the present case, the deceased made a will on 11 November 2004 in which he left 50% of his real estate to Josephine, and 25% of his real estate to each of Marcelle and Somaya. The residue of the deceased's property was left to Josephine. 2. By a further will made on 9 June 2010, the deceased appears to have given all of his property to Josephine, in that by cl 8(i) he directed his executors to give the residue of his estate to his wife absolutely, without having made any specific gifts that would vest before the residue could be determined. 3. The existence of this series of wills tends to establish that over the later years of his life the deceased made judgments as to the proper way for him to distribute his estate on his death as between his wife and his two daughters. The most generous will made by the deceased in relation to his daughters was his final will. The deceased's estate 1. According to the Inventory of Property of the deceased's estate prepared by Josephine for the purpose of her application for a grant of probate, the property at 291A xxx xxxxxx, xxxxxxxx xxxxxx (No 291A) referred to in the deceased's final will had an estimated value of $820,000. The balance of the deceased's estate consisted of three burial sites valued at $2000 each, rent of $11,616 owed to the deceased by Somaya, and cash in a bank of $684.66. The total value of the deceased's estate was said to be $838,300.66. 2. Josephine gave evidence in her final affidavit made on 9 July 2018 that No 291A in fact sold for $630,000 and that settlement took place on 12 January 2018. The net proceeds of sale received by Josephine as executor was $587,059.23. The balance of the estate at the time of the affidavit was $484,049.56, calculated as follows: Net proceeds of sale of No 291A $587,059.23 Reimbursement of expenses to Josephine $28,009.67 Interim distribution to Josephine $25,000.00 Interim distribution to Marcelle $25,000.00 Interim distribution to Somaya $25,000.00 Total deductions $103,009.67 Estate balance $484,049.56 1. If the estate had been distributed in accordance with the deceased's final will, each of the beneficiaries would have received $161,350, plus the interim distribution of $25,000, giving a total of $186,350. 2. It should be mentioned that Marcelle pursued the possibility that the deceased's estate included assets in addition to No 291A. She claimed that there were two properties in the Philippines (that were possibly solely in Josephine's name), there were two cars (also possibly in Josephine's name), there was a glory box that contained important documents, family photos and savings, the deceased had three gold rings, five to six watches, a shed full of tools, and about 50 vinyl records. The evidence was ultimately inconclusive in respect of the existence and value of the alleged additional assets, and in any event the issue makes little difference to the outcome of these proceedings. 3. At the time of his death, the deceased owned No 291 xxxxxxxxx xxxx (No 291), which is contiguous with No 291A, jointly with Josephine. Josephine is now the sole owner of No 291 by right of survivorship. Josephine gave evidence, which was not challenged, that as at 25 August 2017 No 291 had an estimated value of $410,000. The parties' legal costs 1. Whatever may be the result of this case, the distribution of the deceased's estate between the three beneficiaries will now be affected by the legal costs of these proceedings. 2. Marcelle's estimated costs up to the end of a two-day hearing were $75,000 inclusive of GST, and the amount recoverable on the ordinary basis was estimated to be $52,500. The Court was advised during the hearing that Marcelle's legal representatives were acting on a no win/no fee basis. 3. The evidence was that Josephine's legal costs were estimated to be between $70,000 and $75,000 including GST on an indemnity basis. There was also evidence that Josephine had paid $28,886.20 from the proceeds of sale of No 291A to a former solicitor for his costs and disbursements. I must assume that this amount is included in the estimate set out above, as it is not referred to as a separate expense in Josephine's affidavit where she gave evidence of the net amount of the estate. 4. It will be convenient at this stage to consider the evidence concerning the relationship between each of the beneficiaries and the deceased, as well as relevant aspects of their life histories and their present personal and financial circumstances. Marcelle's circumstances 1. Marcelle was born in Johannesburg, South Africa, on xx xxxxxx 1957 and is now 61 years of age. 2. Marcelle said that the deceased and Marcelle's mother separated when she was five years old. The deceased took full custody of Marcelle and Somaya. Thereafter, Marcelle and Somaya had limited contact with their mother. 3. During the years of her schooling, Marcelle attended a prestigious private school in South Africa. She returned to live with her father during school holidays. 4. The deceased married his second wife and in about March 1973, the family emigrated to Australia. 5. In Australia, the deceased entered into a partnership that conducted a business manufacturing furniture. Marcelle's stepmother worked in the factory as a designer, and Marcelle and Somaya worked in the factory on every weekend. Marcelle said that was because the deceased could not afford to employ staff in the factory. 6. Marcelle returned to South Africa at the deceased's request when she was 17 years old to do a computer course. She stayed in South Africa for about eight months, and then returned to Australia. 7. When Marcelle turned 18 years old, after finishing high school, she began working full-time in the family business. She did that for about 6 to 7 years full-time. Before that time, when Marcelle assisted the deceased in the factory, she only worked on a part-time basis and was not paid. 8. Somaya left school at the age of 16 years and also began working full-time in the factory. 9. When Marcelle was working full-time in the factory she acted as a salesperson. 10. Neither Marcelle nor Somaya were paid wages for their work, which Marcelle said at the time would have amounted to about $200 a week each. Instead, the deceased gave each sister $50 a week as spending money. Marcelle also said that the deceased would always reassure her that the work she put into the business and the sacrifices that were made were going to the future benefit of Marcelle and Somaya. 11. Marcelle said: My father and I had multiple conversations to the following effect, the first one was when I was about 18 years of age: My father: You get $50 spending money for the week, I will keep the rest of your wages and the next block of land I buy you will pay off with the wages I am keeping. I said: Yes father. 1. According to Marcelle, she agreed with what the deceased proposed, as she did not really have a choice, but she was happy to do it because she understood that the deceased was helping Marcelle and Somaya to buy property. 2. The business prospered over the following 10 years and the deceased apparently purchased a number of investment properties. He would purchase land, rebuild and then sell. 3. By 1988, the furniture factory was not making a profit and was closed down. 4. About the same time, the deceased's second wife walked out of the marriage. There were proceedings in the Family Court as to the distribution of the properties between the deceased and Marcelle's stepmother. 5. Marcelle said that ultimately, the deceased had to sell the investment properties as well as the family home in which they then lived, and split the amount between himself and his ex-wife. The deceased used the money he was left with to purchase the property at No 291 xxxxxxxxx xxxx, xxxxxxxx xxxxxx. At that time, the land was not subdivided and No 291A did not separately exist. At the end of the Family Court proceedings, according to Marcelle, the deceased only had No 291 and a holiday house at Woodburn in northern New South Wales. Subsequently, in circumstances not known to Marcelle, the deceased sold the holiday house. 6. Marcelle acknowledged in her evidence that it was clear to her that the effect of the divorce was to obstruct the deceased's financial plans for his daughters. 7. Marcelle said that the deceased became very depressed and lonely after his divorce, and turned to alcohol, and had to be nursed by Marcelle and Somaya. 8. In about October 1989, the deceased travelled to the Philippines to meet Josephine. The couple returned to Australia and subsequently married, after which Josephine moved into the family home with the deceased and Somaya. 9. At this time, Marcelle was living in Bondi with her then partner, and working as a full-time salesperson at a furniture store. 10. The deceased became a cabinet maker in kitchens and was working full-time for a company, but a few years later, he injured his spine and became unemployed and had to retire from the workforce. 11. Marcelle gave evidence that in 2000 she became very sick, in that her arthritis and psoriasis worsened to the extent that she was forced to cease work. I will consider Marcelle's medical circumstances in more detail below. As a result of her medical condition, Marcelle had to give up her rented accommodation on the North Shore and move back in with the deceased and Josephine. 12. During this period the deceased cared for and fully supported Marcelle financially. Marcelle said that, even when she was employed and living on her own, the deceased would voluntarily provide her with ongoing financial support. He would pay for Marcelle's skin treatment medications. He would also regularly give Marcelle money for petrol, groceries, car services, car registration and car lease. Whenever Marcelle was short on rent, the deceased would help out. 13. At around the same time as Marcelle moved back into the deceased's home, he decided to build another house on his land for Marcelle and Somaya to live in. Marcelle gave evidence of the following statement by the deceased: "I am going to build a house next door, because at the rate that you are going, by the time you are 50 or 60 you will not be able to work full-time and pay rent. So I am building this house so that you could have a place to live in". 14. The property at No 291 was subdivided into No 291 (with the deceased and Josephine as joint tenants) and No 291A (in the sole name of the deceased). 15. Marcelle's health improved and she returned to work at Nick Scali and moved into a studio on the North Shore. Her work was too far away to take up residence in No 291A as the deceased had suggested. 16. In 2008, Marcelle's medical condition worsened and she had to cease work and move out of her studio. Marcelle then moved into No 291A where Somaya was living. 17. Again, in 2010, Marcelle's health improved and she went back to work at Nick Scali and moved into a rental property in Crows Nest. 18. Marcelle said that she learned in early December 2015 from Josephine that the deceased had been diagnosed with lung cancer and that he had 6 to 8 months to live. 19. From this point, Marcelle gave a substantial amount of evidence concerning unhappiness within the deceased's marriage and arguments between Marcelle and Josephine. I will consider this evidence separately below. 20. As of 27 June 2017, Marcelle was employed by John Cootes Furniture in sales on the shop floor on a casual basis. She worked about 15 hours a week and earned $811 per fortnight, which worked out to be about $640 after tax. Marcelle also received Centrelink benefits of $317.92 per fortnight. 21. Marcelle does not own her own home and rents a two-bedroom granny flat at xxx xxxxxxxx xxxxxx, xxxxxxxxxxxx. Her rent is $380 per week and she has been renting that property for about six years. Marcelle lives alone and is not in a domestic relationship with anyone. Marcelle was married in 1980 when she was 21 years old, but divorced after two years. She does not have anyone to rely upon financially. 22. Marcelle has been unemployed since about 30 June 2017 because her health deteriorated to the point where she is no longer able to work. 23. Marcelle is dependent on Centrelink benefits, which are not sufficient to pay her living expenses and rental payments. The landlord commenced proceedings in the NSW Civil & Administrative Tribunal on 18 October 2017. The Tribunal gave Marcelle 30 days to pay the outstanding rent. On about 30 November 2017, Marcelle was able to borrow $2300 from a friend to pay the outstanding rent. She was only able to repay the friend out of the interim distribution from the estate of $25,000. 24. Marcelle said that she has been told that she is ineligible for Housing Commission assistance. 25. The current balance on Marcelle's bank account as at 6 July 2018 was $16,518.19. At that time she had $195.53 in her ordinary savings account. 26. For the year ended 30 June 2017, Marcelle's taxable income was $26,516. For the year ended 30 June 2018 it was $14,720. 27. Marcelle's Centrelink income statement shows a total payment of $740.90 (which includes rent assistance of $134.80). I infer from the income statement that this amount is paid fortnightly. 28. The Centrelink income statement records Marcelle's assets as being cash of $200, household and personal effects worth $12,000, and what I take to be a motor vehicle worth $7000. 29. Marcelle has suffered from muscle and joint pain throughout most of her life. She also suffers from arthritis and has the skin condition called psoriasis. She was required to undergo surgery on her right eye in 2008. Marcelle has given evidence of the medications she is required to take for her arthritis, high cholesterol and psoriasis. Marcelle suffers from depression and anxiety and takes antidepressant medication. Josephine's circumstances 1. Josephine does not make any claim for further provision in competition with Marcelle and Somaya. 2. Josephine was born on xx xxxxxxx 1957 in the Philippines and is now 61 years old. 3. Josephine met the deceased on 17 May 1989 and they were married on x xxxxxx 1989. The marriage spanned a period of 26 1/2 years. 4. Josephine and the deceased purchased No 291 in 1993, and they subdivided it into No 291 and No 291A in 2002. 5. The deceased did not work during the period of the marriage. Josephine said that she had to take out a mortgage to enable a home to be built. Josephine worked and had to pay mortgage payments, any other loan payments, including credit card debts, food, utilities and anything the couple needed for the household. 6. Josephine said that No 291A was either tenanted or Somaya lived there. Somaya was supposed to pay rent, but only paid periodically. That caused Josephine to struggle to cover all the repayments and household expenses. 7. As at 16 January 2018, Josephine worked for NSW Health. Her net wage was $1547.05 per fortnight. 8. As of the date of her 9 July 2018 updating affidavit, Josephine had left her employment because of her health, having resigned on 4 May 2018. Josephine had a final net payout from her employer of $15,013.05. 9. As of 9 July 2018, Josephine was not in receipt of any income and she remained unemployed. 10. Following the termination of her employment, Josephine received a superannuation benefit of $240,765.98. 11. Josephine said that she had applied the payout of her superannuation as follows: Expenses Estimated Amount Repayment of Community First Personal loan and credit card $40,000 Maintenance of payments to her family in the Philippines and Singapore $30,000 Sponsorships and maintenance payments to brother and niece who were studying and living with her $40,000 Repayment of personal cash loans to a friend $10,000 Financial assistance to her elderly and sick mother and youngest brother with Down syndrome in the Philippines $80,000 Repairs and maintenance to No 291 $33,450 Estimated Total $233,450 1. Josephine said that she has approximately $20,000 left to live on. 2. Josephine said that she has a number of bank accounts with a balance of $1993.00. 3. Josephine is indebted in respect of two mortgages, one with a balance of $141,089.20 and the other with a balance of $48,878.94. 4. Josephine owes money on two credit cards with balances of $11,141.71 and $8445.15 respectively. She owes a debt of $20,000 to her sister, and a further debt of $45,000 to a close family friend. 5. Josephine said that her air-conditioner is leaking and a new system needs to be installed. She has received a quotation for approximately $4000 to fix the air-conditioning. A number of roof tiles on No 291 are broken causing internal leaking in the house. Josephine obtained a quotation of approximately $4000 to repair the tiles in January 2017, but expects this quotation to increase because additional tiles are now broken. 6. Josephine would like to have solar panels installed at No 291 to save future electricity costs. 7. Josephine would like to be able to travel to the Philippines to see her mother. 8. Finally, Josephine gave a detailed list of her fortnightly expenses, which came to $1940. The reasonableness of these expenses was not challenged. 9. As Josephine was a joint tenant of No 291 with the deceased, she is now the sole owner of that property by survivorship. The evidence is that No 291 has a value of $410,000. 10. In 1993, Josephine purchased a 130 m² block with a rundown house on it in the Philippines for her elderly mother to live in for AUD 25,000. Josephine's sister helps her to maintain the property. Josephine's brother also lives there to help care for their mother. 11. Josephine hopes to use the money that she receives from the deceased's estate to pay off her debts, with the balance to pay off part of the mortgage. 12. Josephine has expended most of her superannuation and incurred additional debts to provide substantial assistance to members of her family. It also emerged at the hearing that in her grief and loneliness following the death of the deceased, Josephine has spent a lot of her funds in trying to sponsor relatives to be able to join her in Australia. So far that endeavour has been unsuccessful, and it may well be that because Josephine cannot continue to spend money in the way that she has in the past, because she does not have it, she may have to give up her hope of arranging for members of her family to join her here. 13. A substantial plank in Marcelle's case was an argument that Josephine had been improvident in expending most of her superannuation and entering into significant debts in order to support her family in the various ways that she disclosed. Marcelle argued that the Court, in determining Josephine's financial position for the purpose of deciding whether Marcelle should receive further provision out of the estate of the deceased, should not make an allowance in Josephine's favour in respect of any financial hardship that Josephine has voluntarily imposed upon herself after the death of the deceased, in circumstances where she has been aware that Marcelle has been pursuing a claim for further provision. 14. As to her health, Josephine suffers from endometriosis and takes daily medication which costs approximately $100 per month. Josephine is anaemic and has a B12 deficiency which requires periodic injections. Josephine has type II diabetes, high cholesterol and high blood pressure. She is required to have complete blood tests every 3 to 6 months to monitor her various health issues. 15. Josephine said that her health has continued to deteriorate and she is mentally, emotionally and physically exhausted. 16. Josephine was obviously highly stressed during the course of the hearing. She said that she was still grieving the deceased. I accept that evidence. On a couple of occasions Josephine was so distressed during her cross-examination that she physically collapsed into the bottom of the witness box, necessitating that the Court adjourn so that Josephine could recover her composure. Josephine was on a number of occasions so overwhelmed by her stress that she could not stop herself giving stream of consciousness answers to questions that were put to her. Somaya's circumstances 1. Somaya is 58 years old. 2. She is currently unemployed and receives a Centrelink Newstart allowance of $560 per fortnight. 3. As of her updating affidavit dated 18 July 2018, Somaya had total assets of $31,900, consisting of a motor vehicle worth $2500, household contents of $15,000, savings of $4400, and a debt owed to her by a friend of $10,000. She has no superannuation. Somaya has no debts because she used the $25,000 interim distribution that she received from Josephine to repay the debts that she owed. 4. Somaya gave a detailed list of her monthly expenses, being $1445, including rent of $650. The reasonableness of those expenses was not challenged. Somaya's expenses are therefore about $300 per month more than her income. 5. Somaya gave itemised evidence of the manner in which she had spent part of her interim distribution of $25,000, which in part required her to acquire a new but very inexpensive car because of a dispute concerning the car that she was paying off. 6. Somaya has previously worked as an information and communication technology engineer. She has not been working because she cannot currently afford to live in Sydney and has been living in Summerland Point, which is approximately 2 1/2 hours each way by car and three hours each way by public transport from where she could expect to be employed in Sydney. She cannot hold down a job because most positions are on 24/7 rosters. 7. Somaya plans to move to Far North Queensland because it will be easier for her to afford living and accommodation expenses. There are many opportunities for her engineering specialty in and around Townsville, including government positions for which Somaya has a clearance. 8. The cost of rental accommodation in Far North Queensland is less than Sydney, and she will be able to afford rent while she searches for a job. Somaya gave evidence of her registration on 25 May 2018 under the Queensland Government National Rental Affordability Scheme. She estimates that it will cost her around $220 per week to rent a unit. 9. Somaya gave evidence as to what she aspires to do with her share of the deceased's estate. She hopes to eventually purchase a block of land in Queensland, which she estimates will cost between $50,000 and $80,000. She hopes to build a container home for between $35,000 and $75,000. She will incur $5000 in costs. 10. Alternatively, if she is able to find a suitable existing home that she can afford for the same money, she may buy that. 11. If Somaya cannot obtain an engineering position, she will explore opening a nail salon, as she is a qualified cosmetician and nail technician. Somaya estimates that it would cost her between $10,000 and $15,000 to establish the nail salon, and purchase products, tools and supplies. 12. Somaya has suffered from anxiety and depression which has affected her ability to work. She is currently prescribed antidepressants and is treated by a psychologist. 13. Somaya has recently had substantial dental work done, but will require crowns, a bridge and jaw repositioning. She estimates that this will cost her $10,000. Relationship between Marcelle, Josephine and the deceased 1. As I have noted above, Marcelle and Josephine gave substantially inconsistent accounts of their relationship with each other and the deceased. 2. In her primary affidavit, Marcelle said that while she was living in No 291A, she and Somaya had discussions with Josephine and the deceased about how Josephine was unhappy in the marriage. Marcelle said the deceased and Josephine would argue regularly and the deceased complained that Josephine would send all the money she earned to her family in the Philippines, and yet complain about struggling to meet her financial commitments in Australia. Marcelle said that during these arguments, Josephine would throw tantrums, she would smash barstools in the kitchen and storm out of the house and not speak with the deceased for a few days. 3. Marcelle said that on 24 December 2015, she and Somaya decided that they were going to tell the deceased about his lung cancer. That day Somaya and Marcelle had a big argument with Josephine, and that and similar arguments upset the deceased. Marcelle claimed that arguments between herself and Josephine continued on a daily basis until March 2016. 4. Marcelle said that in early February 2016, a neighbour of the deceased went to visit him and was shocked to see the state of his condition. He then called an ambulance, but Josephine initially refused the ambulance officer entry into the house, claiming that there was nothing wrong with the deceased. The deceased was then rushed to emergency and remained there for 14 days. 5. Marcelle then claimed that when she tried to visit the deceased after he was released from the hospital, Josephine screamed abuse at her and on one occasion Josephine charged at her and assaulted her. This all caused the deceased anxiety. 6. In the result, Marcelle said that she was not allowed to visit the deceased in his home, and for four months Josephine did not allow her into the house to see her dying father. Marcelle did not see the deceased until his last three days, which he spent at Liverpool Hospital. 7. Josephine, on the other hand, related an entirely different story about the deceased's relationship with Marcelle, and in particular the events of the last period of the deceased's life. 8. Josephine said that Marcelle did not maintain a high level of contact with the deceased, and that there were long periods of time when neither the deceased nor Josephine heard from Marcelle, and when she did contact the deceased, it was at times when she asked for money. 9. Josephine said that the deceased had been a good provider for both of his daughters, but that from the time she married the deceased, he said on a number of occasions: "I do not owe anything to my grown-up daughters… I have done the best I could for them and given them as much as I could… They have not done anything good with their lives… They are useless". 10. In response to Marcelle's evidence concerning Josephine throwing tantrums, smashing barstools and storming out of the house and not speaking with the deceased for a few days, Josephine said in her affidavit in reply: 56. This is a shocking untruth. Basil referred to me as "Love" and said I was the love of his life. I lived as a faithful wife, slept in the same bed as him every night, held hands with him until we fell asleep and when we woke up, my husband would give me a kiss on the lips and forehead gently – he would get up and wake me up with green tea on my bedside table and give me oatmeal every morning. When I was working Monday to Friday, I called him many times during the day: I called him as soon as I arrived at my office and when I left work he would open the door for me when I arrived home. Basil and I went to church every Sunday and Marcelle spoke of me in front of the Silver Chain carer nurse, Christina, and my brother, Andrew, and of her father, as "evil people who go to church"… 57. It was Marcelle and Somaya who had arguments and fought with one another to the extent that one day they began hitting each other physically in our dining room, pulling each other's hair and tearing off each other's pyjamas. Basil intervened in the middle of this fighting to separate the two of them and he shoved them both out of our dining room into the backyard. 1. In response to the evidence given by Marcelle that Josephine assaulted her in the deceased's presence, Josephine said: 74. I did not charge or assault Marcelle. In fact, it was Marcelle who assaulted me, pointing her finger at me and touching my lip with that finger. 75. Basil was in bed the whole time and was in a state of stress as a result of Marcelle's hysterical raving. She was behaving like a mad woman. The nurse and my brother were in the bedroom at the time. 76. Basil said to Marcelle: "You are talking rubbish. Get out and leave our house." In fact, the nurse on duty told all of us to get out of the bedroom as Basil was already stressed and upset. 1. Josephine said that she never barred Marcelle or Somaya from visiting the deceased. If Marcelle did not return to visit the deceased after 10 March 2016, that was her own decision and not something forced upon her. 2. This evidentiary dispute is of a type that is all too common in proceedings for family provision orders. The parties engage in an evidentiary dispute concerning the relationships between the parties who are involved, particularly the deceased, by making all manner of emotional assertions and generalisations. Alternatively, as was the case for some of the evidence of individual alleged events in this case, the evidence consists of highly charged assertions from the particular witness's perspective. 3. Usually this evidence will not be rejected on the grounds of relevance, given the width of the matters that are potentially made relevant to the decision-making process by s 60 of the Succession Act. But the evidence will often be collateral to the real issues. It will also often be the case that it is not feasible for the Court to make reliable findings of fact, given that the only evidence that is available is of assertion and counter-assertion by the witnesses. 4. The Court does not have a sound basis for deciding the issues that arise from this evidentiary dispute. It may be that the truth lies somewhere in the middle between the events as recounted by each witness. The Court would not be justified in making a finding that either witness's evidence should be rejected in favour of the evidence given by the other witness. Both witnesses appeared to be reasonably credible, but equally both witnesses were highly emotional and opinionated about events which they saw from their own perspective. 5. The real point is that there has never been a realistic basis for the Court to make precise findings of fact as to what occurred. The inability of the Court to do so should be judged in the light of the fact that the deceased made a will on 11 March 2016, which was right in the middle of the series of events that were in contest during the last period of the deceased's life. The deceased, rather than the Court, was the best judge of the significance of whatever happened to how his estate should be distributed. He made that judgment when he made his will. Statutory scheme 1. It will now be appropriate to consider the legal principles that apply to the determination of this case. 2. Section 59 of the Succession Act relevantly provides: 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. 1. Section 60 of the Succession Act contains a non-exclusive list of matters that the Court may have regard to for the purpose of determining whether to make a family provision order and the nature of any such order. 2. Marcelle is a child of the deceased, and so an eligible person within s 57(1)(c). The requirement in s 59(1)(a) is therefore satisfied. Stages in the application of the statutory provisions 1. There is a question of process as to how the Court is required to implement s 59(1)(c) and s 59(2) of the Succession Act. That question has been revived by the recent decision of the Court of Appeal in Sgro v Thompson [2017] NSWCA 326. 2. It will be appropriate to examine a number of recent decisions of the Court of Appeal of this State to determine what the present position is in relation to the application of s 59(1)(c) and s 59(2) of the Succession Act. I will also make reference to a number of decisions of judges at first instance which have dealt with this question. 3. The source of the debate as to the proper process for applying s 59 of the Succession Act is the judgment of Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308. At [26] to [28] his Honour considered three differences in language between the equivalent provisions of the Succession Act and the Family Provision Act 1982 (NSW). The first difference is the use of the expression "not adequate" in s 59(1)(c) of the Succession Act when s 9 of the Family Provision Act used the word "inadequate". Basten JA suggested at [27]: … The apparent effect is to widen the discretion vested in the Court. That which could satisfy the court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy. 1. For present purposes, it is not necessary to consider this difference further, as it does not appear that Basten JA proposed this difference as a significant source of the change in process between the two pieces of legislation. 2. Nor is it necessary to consider the third difference suggested by Basten JA in [28], which concerns the expanded list of non-exhaustive factors that may now be taken into account under s 60(2) of the Succession Act. 3. The material difference appears to be the second, as to which Basten JA said at [27]: [27] The second difference is of a different kind. Under the former scheme the statute identified a non-inclusive list of considerations which might be taken into account in determining what provision (if any) ought be made, a step only to be taken once the prohibition had been lifted. That is not to say that the listed considerations were not relevant at the first stage of the inquiry, but only that the earlier statute did not address the issue. The Succession Act, by contrast, states that the listed factors may be taken into account in determining "whether to make a family provision order and the nature of any such order". The intention of a two-stage process is no longer apparent in the structure of either ss 59 or 60 of the Succession Act. 1. This second difference arises out of the circumstance that s 9(3) of the Family Provision Act set out a shorter list of matters that could be taken into account in determining what order ought to be made under s 7, but did not specify that the same matters could be taken into account in determining whether the provision was inadequate for the purposes of s 9(2). On the other hand, s 60(2) of the Succession Act sets out a longer list of matters, and s 60(1)(b) permits the Court to have regard to those matters for the dual purposes of determining whether to make a family provision order and the nature of any such order. Notwithstanding that his Honour noted that the absence of express authorisation in the Family Provision Act for taking into account the matters listed in determining the jurisdictional question does not mean that the matters were not relevant to that determination, his Honour concluded: "The intention of a two-stage process is no longer apparent in the structure of either s 59 or s 60 of the Succession Act". 2. This process of reasoning led Basten JA to the following conclusion: [29] The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. 1. Basten JA appears, with respect, to have concluded that, because the Succession Act expressly authorises the same non-exhaustive matters to be taken into account in deciding whether what appears on its face to be a jurisdictional condition in s 59(1)(c) is satisfied, and how the jurisdiction should be exercised under s 59(2), the separate juridical effect of the two different provisions has disappeared. His Honour specifically stated that there was no longer a two-stage process, in that it is not necessary to determine whether the actual provision was "inadequate", followed by a discretionary exercise of determining what provision ought to be made. 2. Later, Basten JA made the following observations: [41] As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208–209. In Keep v Bourke [2012] NSWCA 64 the court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]–[29]. However, the issue not having been directly addressed, there is no constraint on this court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions. 1. As shall be seen, the High Court in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 held in relation to the equivalent provisions in the Family Provision Act that the first stage involved a question of the Court's jurisdiction and the second stage involved the exercise of that jurisdiction. As there was a question of jurisdiction, the two stages involved more than just steps in the Court's reasoning process. Basten JA's conclusions appear to remove the need for a consideration of jurisdiction, unless in some way jurisdiction and its exercise could be determined in the single stage contemplated by his Honour. 2. Allsop P at [6] agreed with Basten JA, but only to the extent "that the expression of the task in s 59 is subtly different from the previous legislation". 3. Barrett JA dissented on a basis that explained in detail how there was no relevant structural change, so that the earlier High Court authorities remained binding. 4. As Andrew v Andrew did not decide the question, the ground was laid for the expression of differing judicial views that was to follow. 5. Subsequently, in Poletti v Jones [2015] NSWCA 107, Basten JA made the following observations (footnotes omitted): [18] Under earlier forms of this legislation, the test set out in s 59(1)(c) was described as a "jurisdictional" question, meaning that satisfaction of the court in that regard was a precondition to the making of any order. There were (and remain) circumstances in which it may be appropriate to deal with that question before considering any other issue which might arise if an order were to be made. [19] In Andrew v Andrew, I suggested that the changes in the structure of the legislative provisions resulting from the enactment of ss 59 and 60 of the Succession Act meant that a two stage process was no longer required. That was not to say that there might not be circumstances in which such an approach was the preferable way to proceed. My only point was that the legislation no longer dictated such an approach in circumstances where a rigid demarcation of issues along those lines would be artificial, a point made by Callinan and Heydon JJ in Vigolo v Bostin, a case under different legislation: We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made 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. Adequacy or otherwise will depend upon all of the relevant circumstances …. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors. 1. His Honour accepted that there will be circumstances where it is appropriate for the Court to deal with the question of jurisdiction first in a two-stage process. That will involve determining the Court's jurisdiction before considering the remedy. It appears that Basten JA has focused on the order in which the Court should approach the consideration of the issues relevant to jurisdiction and remedy, and suggested that there will be cases where it will be artificial to consider the first stage before embarking on the second stage. This approach would leave the distinction between jurisdiction and remedy intact but alter in appropriate cases the Court's approach to resolving each of these separate functional questions. 2. Meanwhile, following the publication of Andrew v Andrew a number of judges at first instance had doubted that the principles expounded by the High Court were not applicable to the provisions of the Succession Act. In particular, in Lodin v Lodin; Estate of Dr Mohammed Masoud Lodin [2017] NSWSC 10 at [47] Brereton J (as his Honour then was) followed an earlier decision of Bergin CJ in Eq in saying (footnotes omitted): [47] Although there have been suggestions that subtle changes in the language now used in (NSW) Succession Act 2006, s 59, may have affected this, the prevalent view is that no change to the conventional two-stage approach is warranted. As Bergin CJ in Eq observed in Re estate of the late Anthony Marras: 15. There has been some difference of opinion about the approach to be adopted by the Court in applications under s 59 of the Act compared to applications under the Family Provision Act 1982 (Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 per Basten JA at 663 [29]; and Hallen J's careful analysis in Aubrey v Kain [2014] NSWSC 15; and Dudic v Jakovljevic [2014] NSWSC 169). In hearing these applications judges at first instance are bound to adhere to the approach referred to in the decisions of the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. In line with those cases the Court must determine whether the provision is inadequate for the applicant's proper maintenance, education and advancement in life and if so, whether any provision ought be made for the applicant. Although there may be some overlap in the matters to be considered in these determinations, the pre-requisite of a finding of inadequacy is pivotal to the restraint that courts must exercise in refraining from rewriting wills or interfering with the intestacy regime beyond what is necessary to make adequate provision, paying due regard to the intentions of the testator or in this case, that of the Parliament. 1. After Bergin CJ in Eq's decision, Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [164] adopted my similar reasoning in Gardiner v Gardiner [2014] NSWSC 435 at [117]-[120] and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew. 2. Hallen J's latest expression of opinion is found in Sreckovic v Sreckovic [2018] NSWSC 1597, where his Honour said at [106]: "… 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))". 3. It appears from these decisions that the judges concerned focused on the possibility that Basten JA's observation in Andrew v Andrew that: "There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done", was intended to mean that the Court no longer had to deal with the jurisdictional question and how the jurisdiction ought to be exercised as separate juridical matters. I would suggest, with respect, that the language used by Basten JA is capable of supporting that understanding. 4. The question of whether the application of s 59(1)(c) and s 59(2) of the Succession Act involves a two-stage process was revisited in Sgro v Thompson, where White JA (with whom McColl JA agreed at [1]) said: [68] Carmela also submitted that the primary judge erred in applying a two-stage test in the application of s 59. In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 the plurality (Mason CJ, Deane and McHugh JJ), in addressing the structure of predecessor legislation (s 7 and s 9(2) of the Family Provision Act 1982 (NSW) (the "Family Provision Act")) said that a two-stage inquiry was engaged, the first involving a jurisdictional question of whether the applicant had been left without adequate provision for his or her proper maintenance, education and advancement in life that, though it involved the making of value judgments, was a question of objective fact to be determined at the date of hearing (at 211), whereas the second stage did involve an exercise of discretion in the accepted sense (at 211). Whether the same two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act has been the subject of significant debate (e.g. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; Poletti v Jones [2015] NSWCA 107; (2015) 324 ALR 641; Underwood v Gaudron [2015] NSWCA 269; Burke v Burke [2015] NSWCA 195). [69] The question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood. In relation to the task of an appellate court, the reason the question should be of no real significance is that, as the plurality said in Singer v Berghouse (at 212), and as has been repeatedly held subsequently, even at the first stage, the principles that govern appellate review of discretionary decisions apply. The plurality approved the following comments of Kirby P in Golosky v Golosky [1993] NSWCA 111; BC9302134 at 13: Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged. [70] If the two-stage approach is still to be adopted, the same considerations apply at both stages. The plurality said in Singer v Berghouse (at 209–210): The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. [71] The risk of error arises if a two-stage approach is adopted and it is assumed that the first stage requires an evaluation of whether the applicant has been left without adequate provision for his or her maintenance, education or advancement in life, thereby focusing primarily, or perhaps exclusively, on the applicant's financial needs. An applicant's financial needs and the financial needs of other persons with claims on a deceased's testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]: … [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. [72] The question is whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant. I agree with Basten JA's reasoning in Andrew v Andrew that the structural changes between the Family Provision Act and Ch 3 of the Succession Act mean that a two-stage approach is generally no longer appropriate. In Poletti v Jones [2015] NSWCA 107 Basten JA (with whom Emmett and Leeming JJA agreed) accepted that there may be circumstances in which that approach is preferable (at [19]). However, as Allsop P said in Andrew v Andrew (at [6]) this may be an analytical question of little consequence. [73] The risk is that if a two-stage approach is adopted, the first stage may be seen as confined to assessing the adequacy of the provision made for the applicant to satisfy his or her financial needs. In Underwood v Gaudron Basten JA said (at [68]): If it were correct to adopt a two stage approach, there was some force in the appellant's submission that she should have succeeded at the first stage. Thus it was not in doubt that the will made no provision for her maintenance or advancement in life, let alone 'adequate provision', within the meaning of s 59(1)(c). That she had material needs which might have been diminished by provision under the will was also uncontested. Accordingly, unless the reference to 'adequate' provision is to be treated as engaging with the various factors which might provide a reason not to make an order, the appellant satisfied s 59(1)(c). If the need to assess adequacy for that purpose did encompass all the factors relevant to determining whether an order ought be made pursuant to subs (2), the elements of the two possible stages would be common; if they were not common, no analysis has been provided as to which factors are relevant only to s 59(1)(c) and which are relevant only in making a determination pursuant to s 59(2). [74] If a two-stage approach is adopted, it is erroneous to treat the first stage as confined to an assessment as to whether adequate provision has been made for the applicant's material needs. That is clear from Singer v Berghouse in the passage quoted at [70] above that at the first stage of the inquiry (under the Family Provision Act) the question was whether the provision was inadequate in all the circumstances for the applicant's "proper" maintenance, education and advancement in life, and that that required regard to be had to not only the applicant's financial position, but the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and others with claims upon his or her bounty. 1. Payne JA agreed at [2] with the reasons of White JA, subject to a number of observations that do not appear to reflect disagreement with the passages in White JA's judgment that I have set out above. 2. White JA noted at [68] that the appellant submitted that the primary judge erred in applying a two-stage test in the application of s 59. His Honour noted that the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at 211 said that a two-stage enquiry was engaged in the application of the predecessor provisions in the Family Provision Act to s 59 of the Succession Act. That two-stage enquiry involved the equivalent of s 59(1)(c) being a jurisdictional question. His Honour also noted that the question whether the same two-stage analysis is applicable to claims under s 59 of the Succession Act has been the subject of significant debate. 3. White JA said at [72]: "… I agree with Basten JA's reasoning in Andrew v Andrew that the structural changes between the Family Provision Act and Ch 3 of the Succession Act mean that a two-stage approach is generally no longer appropriate. In Poletti v Jones [2015] NSWCA 107 Basten JA (with whom Emmett and Leeming JJA agreed) accepted that there may be circumstances in which that approach is preferable (at [19]). However, as Allsop P said in Andrew v Andrew (at [6]) this may be an analytical question of little consequence". 4. This appears to be a statement of principle that generally trial judges should not apply a two-stage approach to the application of s 59 of the Succession Act. There will, however, be circumstances where that approach is preferable. 5. It appears therefore to be clear that it will not necessarily be an error of process for a trial judge to apply the two-stage approach. White JA did not allow the appeal on the ground that the trial judge had been wrong to apply a two-stage approach. His Honour referred at [70] to the situation: "If the two-stage approach is still to be adopted". His Honour referred at [71] and [74] to circumstances, including: "The risk of error" that will be relevant if a two-stage approach is adopted. 6. White JA did not explain how the structural changes between the Family Provision Act and the Succession Act mean that the two-stage approach is generally no longer appropriate. He did not elaborate when the two-stage approach will or will not be appropriate. He did not explain how the single-stage approach should be applied. 7. In DJ Singh v DH Singh and Others [2018] NSWCA 30, Gleeson JA (with whom Leeming and White JJA agreed) observed at [260] that the primary judge, Black J, had noted the differences in the wording of the relevant sections of the Succession Act and the Family Provision Act, and that the application of the two-stage process had been doubted, but also noted that it was unnecessary to address that difference in approach in the case at hand, where it would make no difference to the result. Gleeson JA apparently accepted that approach by Black J. Later, in respect of the two-stage approach, Gleeson JA at [279] set out paragraphs [68] to [74] of the judgment of White JA in Sgro v Thompson. At [280], his Honour summarised the position taken by Payne JA and noted that Payne JA agreed with White JA "that the question whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act should be of no real significance, provided that the nature of the first stage of the enquiry is not misunderstood". It is apparent from the absence of further comment by Gleeson JA that he implicitly accepted the part of the judgment of White JA in Sgro v Thompson that he had extracted. 8. The structure of s 59 of the Succession Act, somewhat simplified, is: If the Court is satisfied that adequate provision has not been made, the Court may order the provision that ought to be made. The structure of the equivalent provisions under s 7 and s 9(2)(b) of the Family Provision Act is: The court may order such provision as ought to be made, but it may not do so unless it is satisfied that the provision made is inadequate. 9. With great respect to those who may think differently, I cannot see how the provisions under the two Acts are functionally different, or that the slight changes in wording affect the matter. The matters that may be taken into account by the Court in determining whether the Court is entitled to exercise the power, and if it is how the powers should be exercised, do not logically affect the function of the grant of the power and the condition for its exercise. 10. In this respect it may be noted that the requirements in s 59(1)(a) and (b) are "jurisdictional" questions (or conditions) (Page v Page [2017] NSWCA 141 at [38] per Leeming JA), and it does not appear why the requirement in s 59(1)(c) is not also a jurisdictional question, given the structure of s 59(1). 11. As noted by White JA in Sgro v Thompson at [70], in Singer v Berghouse Mason CJ, Deane and McHugh JJ said at 210 (citations omitted): It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the ``jurisdictional question''. That description means no more than that the court's power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a). 1. See also to similar effect Toohey J at 219 and Gaudron J at 225. 2. This reasoning was clearly accepted in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 per Gleeson CJ at [5], Gummow and Hayne JJ at [56] and Callinan and Heydon JJ at [112]. 3. The plurality in Singer v Berghouse also held at 210 and 211 that the decision-making process involved in determining the "jurisdictional question" (the first stage) "is strictly one of fact, notwithstanding that it involves the exercise of value judgments". Their Honours referred to the "evaluative character of the decision", but noted that "the question does not involve the exercise of a discretion". They said: "though it involves the making of value judgments, it is a question of objective fact to be determined by the judge at the date of the hearing". The plurality stated that the "decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense". Further, the "fact that the Court has a discretion under s 7 means that, as stated above, it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour". 4. It would seem that the features of s 9 of the Family Provision Act that made the first stage an evaluative judgment on an issue of fact are present in s 59(1)(c) of the Succession Act, and would give that provision the same character. For a similar reason, s 7 of the Family Provision Act and s 59(2) of the Succession Act should both vest a discretionary power in the Court. If that is so, then it is difficult to understand how s 60 of the Succession Act, in-so-far as it lists matters that can be taken into account by the Court in applying the two relevant provisions in that Act, could have the effect of creating a single-step process. While the practical distinction between an evaluative determination of a matter of fact and the exercise of a discretion may be elusive, it is real as a matter of legal principle, and it is difficult to see how any single-step process is required to be characterised. Is it an evaluative judgment of fact or an exercise of discretion? It could hardly be both at the one time. 5. In Vidler v Ivimey [2013] NSWSC 1605, Hallen J considered in detail the history of this controversy to that point in time at [38] to [40] and [68] to [84]. His Honour concluded at [84]: [84] Perhaps, the way to approach the matter is simply to refer to the Act containing "twin tasks": Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other. 1. I respectfully agree with the suggestion made by Hallen J. Has the real problem been one of terminology not substance? The High Court in Singer v Berghouse and Vigolo v Bostin has authoritatively determined, as clearly as could be, that s 9 and s 7 of the Family Provision Act gave rise to a jurisdictional question and a question as to how the jurisdiction should be exercised. Logically, no matter the order in which the Court examines the matters relevant to these questions, the jurisdictional question must ultimately be answered first, because if the Court does not have jurisdiction that is the end of the decision-making process. 2. The plurality in Singer v Berghouse chose to use the expression "two-stage process" to describe the application of ss 7 and 9. Toohey J did not apparently see the need to place a label on the process, and at 219 and 220 simply described the effect of the sections. Gaudron J at 225 used the term "question". Perhaps the difficulty with the choice of the word "stage" is that it has a connotation of order, in that stage one would normally be completed before stage two would be begun. Hallen J suggested the use of the word "task". There may be a number of words that would be equally apt. The real question is whether the use of an expression such as "stage" entails the risk that the stages will be considered and completed sequentially, when that might introduce a practical risk of a process error in reaching the correct result. If this is a permissible way to resolve the controversy, it provides a basis for the Court to escape the dangers of a mechanical application of the provisions of the Succession Act in stages (which is something that the Court of Appeal in Sgro v Thompson clearly intended to achieve), while still accepting that the Court must ultimately be satisfied of the jurisdictional question before it exercises the jurisdiction. 3. In-so-far as White JA in Sgro v Thompson discussed the dangers involved in applying the two-stage approach, his Honour appears to be saying that the Court should not mechanically decide whether the jurisdictional condition has been satisfied without also considering the wider question, that is said to arise at the second stage, of what provision would be adequate for the proper maintenance of the applicant. His Honour's concerns seem to be directed at risks of error that may be introduced into the process of properly applying the entirety of s 59, by mechanically considering the jurisdictional question first and separately from the subsequent question of what provision ought to be made. His Honour identified particular risks of excluding proper considerations, or giving undue weight to other considerations, if the jurisdictional question is considered as a discrete question. 4. There is nothing novel in this solution to the problem of how s 59 of the Succession Act is to be applied. In Singer v Berghouse at 210, Mason CJ, Deane and McHugh JJ said (footnotes omitted): The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. 1. Perhaps Gaudron J put the matter more clearly when she said at 226: Although the questions under s. 9(2)(a) and (3) are distinct, there is no necessity that they be decided separately from each other or from the ultimate question to be determined under s. 7. It is thus possible that the Master determined all questions compendiously by determining that the Act did not require an order to be made… 1. One effect of the decision in Sgro v Thompson appears to be that the Court of Appeal has gone beyond Gaudron J's observation that "there is no necessity that [the two questions] be decided separately from each other" (emphasis added) and has held that generally the Court should consider both questions together, while allowing that there may be cases where it is appropriate to decide the jurisdictional question first. Application of the statutory provisions 1. As Sgro v Thompson suggests that the Court should generally apply s 59 of the Succession Act in a single stage, but there will be cases where it is appropriate to apply the section in two stages, a number of questions arise. One is: how does the Court apply the two statutory provisions (s 59(1)(c) and s 59(2)) in one stage? A second is: when is it appropriate to apply two stages rather than one? A third is: what is involved in applying the provisions in two stages. 2. It is probably unwise to attempt to answer these questions in a comprehensive way that would apply to all possible circumstances in which applications for family provision orders may be made. Experience suggests that the range of those circumstances is so wide and the scope for novel questions too great to make any attempt to formulate general answers feasible or helpful. 3. The only indication I have noticed in the authorities, as to how the exercise is required to be done in one stage, is the following statement by Basten JA in Andrew v Andrew at [29]: "The court should now ask what, taking all relevant factors into account, would have been an adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done". 4. Presumably, if what the Court determines would be an adequate provision is more than the provision actually made, then the jurisdictional question will be satisfied and additional provision ought to be ordered equivalent to the difference between the adequate and the actual provision. 5. The most notable feature of the single-stage approach is that it requires the Court to make a positive finding of what would have been an adequate provision for the applicant. 6. As is well accepted, this must be done by making an evaluative judgment. The plurality in Singer v Berghouse seem to have established, I would suggest notwithstanding the difference in wording between s 59(1)(c) of the Succession Act and s 9(2) of the Family Provision Act, that this involves the making of a factual finding. 7. Further, the following observations by Callaway JA in Grey v Harrison [1997] 2 VR 359 at 366-367 seem to be generally accepted: There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight. 1. Accordingly, the factual finding of what would have been an adequate provision for the applicant is an evaluative judgment falling within a range of appropriate provisions. The fact that the Court's finding is evaluative and will usually fall within a range may make this aspect of the one-step process difficult to implement in a principled way. That is because the first logical step in the process requires the selection of an adequate provision as a matter of fact; whereas under the two-stage process the choice of the actual provision to be made to the applicant would be a discretionary question as to the provision that ought to be made. 2. At a practical level, the circumstances of many estates that are the subject of family provision applications are so limited that it appears to be entirely artificial to contemplate that the testator could have made adequate provision for all of the persons who have a call on his or her bounty. Nonetheless, as a theoretical matter, it is possible to contemplate what is adequate in relation to all estates because of the inherently flexible concept of adequacy, which has the result that what is adequate for each claimant is responsive to the size of the estate that is available for distribution. In theory, for a given testator, a given set of persons with claims on the bounty of the testator, a given estate, and a given set of circumstances concerning the relationships between the relevant persons, it should be possible to determine the provision that is adequate for the proper maintenance of each claimant. In an imagined case, where the estate is just sufficient for the testator to make adequate provision for all claimants, those provisions might fit together like the elements of a pie chart representing the estate. 3. Experience suggests, however, that if the concept of adequacy is given a realistic meaning, given the essential uncertainty in the process of determining what is adequate, and the limitations on most estates, the ideal will not be achievable. That is likely to make it difficult for a trial court to make a positive determination in each case of what is an adequate provision for the applicant. 4. It may be useful to compare these aspects of the single-stage approach with those that arise out of the two-stage approach. That approach would accord with the literal wording of the statute, and would involve the Court in (a) making an evaluative judgment of fact as to whether adequate provision has not been made for the applicant; and if so (b) exercising a discretion as to what order ought to be made. 5. While the difference may be subtle as a conceptual matter, I would suggest that it will often be easier for the Court to make an evaluative judgment that the provision is not adequate than it will be to make a positive judgment as to what would have been an adequate provision. Further, it will often be artificial, where the initial condition has been satisfied, to treat the order for additional provision as giving the applicant adequate provision, rather than that the order is simply the additional provision that ought to be made in all of the circumstances in the exercise of the Court's discretion. 6. The first of the steps aspires only to make an evaluative determination of fact as to whether the actual provision made falls outside the range of the provisions that would have been adequate. It does not take the extra step of trying to identify in the particular case what would have been adequate. 7. Notwithstanding the theoretical legitimacy of the proposition that what is an adequate provision can always be determined; even in cases of the inability of a particular estate to make adequate provision in a material sense for all claimants, because what is adequate conforms to what is available, it often appears artificial to seek to determine the provision that would in a positive sense be adequate in the particular case. That can be because of the absolute size of the estate and also because of the limitations in the evidence that is put before the Court, so that it would be an uncomfortable process for the Court to be required to make positive factual findings of adequacy. 8. In my view, the present is such a case. The deceased recognised that he had testamentary obligations to his wife and his daughters. However, the size of the deceased's estate is plainly insufficient to enable adequate provision to be made in favour of the three claimants, if adequate is given its usual meaning. Furthermore, the evidence that was admitted concerning the relationship between Marcelle, Josephine and the deceased was not sufficient to enable the Court to make in the conventional way findings of fact concerning the true nature of the relationship between these persons. In-so-far as what is adequate will often depend upon findings that the Court is not equipped to make, the obligation to make a positive finding as to what would have been an adequate provision as the initial conceptual step in the exercise will often be unrealistic and artificial. 9. While still difficult, it is both conceptually and practically sustainable for the Court to look at all of the evidence and make an evaluative judgment as to whether the actual provision for the applicant is not adequate, in the sense that it falls outside of the range of provisions that would be adequate. 10. If the condition for the exercise of the Court's jurisdiction is satisfied, it is in many cases of this nature easier and more realistic for the Court to exercise its discretion as to what ought to be done, and often the circumstances are that the description of that process as identifying and granting the additional provision necessary to make the provision adequate is not realistic. 11. It may be added that a number of common factors tend to make the application of the one-step process difficult, if not impracticable. One such factor is the regularity with which claimants other than the applicant for relief do not put their circumstances before the Court. All they do is to uphold the will of the deceased in respect of the gift made to them under that will. The point may seem obscure, but it is often impracticable to make positive findings as to what provision would have been adequate for the applicant for relief in a case where the full circumstances of all claimants on the bounty of the deceased are not before the Court. The Court has to make the necessary judgment when major pieces of the puzzle are missing. 12. Another factor is that the costs of the proceedings are often such a substantial proportion of the estate that the costs cannot be ignored, but they make any attempt to determine what would positively be adequate entirely artificial. Further legal principles 1. It will be appropriate now to consider the criteria relevant to the determination of whether a provision is not adequate for the proper maintenance of the applicant. I will do so by setting out extracts from previous judgments that I consider have correctly summarised the principles that apply. 2. The most recent statement by Hallen J on this question may be found in Sreckovic v Sreckovic, and is as follows: [109] Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. [110] This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations. But, as Basten JA wrote in Chan v Chan, at [22]: … [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. … [112] The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision — a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria. [113] These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances. [114] Their Lordships went on to state, at 478: The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration. [115] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 571–572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent. [116] As was written in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, by Dixon CJ, at 19, the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. [117] In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, at [114], Callinan and Heydon JJ wrote: …the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future. 1. Further, it is necessary to give proper weight to the judgments made by the testator, as shown by the following observations made by White JA in Sgro v Thompson: [81] In Pontifical Society for the Propagation of the Faith v Scales Dixon CJ said (at 20): The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. … [82] In Stott v Cook Taylor J (in dissent) said (at 453–454): In considering this question it should be remembered that the Testator's Family Maintenance and Guardianship of Infants Act does not invest the Court with a discretion merely to re-make testators' wills upon some abstract principle of fairness. After all a testator's property is his own and he is entitled to dispose of it as he pleases subject only to correction if he omits to make proper provision for those whose maintenance, education or advancement is his especial responsibility. The word 'advancement', is, as was pointed out in McCosker v McCosker (1957) (97 CLR 566) a word of wide import but it does not justify the redistribution of a testator's estate merely because it is of considerable value and because those to whom it has been given can well afford to have their interests diminished in order to confer a benefit upon a disappointed son or daughter. 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. [83] In his discussion of the general principles, the primary judge quoted what I said in Slack v Rogan; Palffy v Rogan at [127] that: In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will. … [86] I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate. 1. In Butler v Morris [2012] NSWSC 748 Hallen AsJ (as his Honour then was) made the following observations (material to the present case) concerning applications by adult children for family provision orders: [106] In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. … (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. 1. His Honour's observations have been applied in many cases, and were substantially repeated by his Honour in Sreckovic v Sreckovic at [144], and were recently summarised by Parker J in Kohari v Trustee and Guardian (NSW) (No 2) [2017] NSWSC 1080 at [82]. Consideration 1. In keeping with what I understand to be the effect of the decision in Sgro v Thompson, I will begin by examining the considerations that are relevant in this case to the determination of what would be an adequate provision for the maintenance of Marcelle having regard to the facts now known to the Court. 2. The deceased made his will on 11 March 2016, some four months before his death, and after he had learned that he was suffering from a terminal illness. The deceased was a capable testator, and there is every reason for the Court to understand that the deceased gave careful thought to the terms of his will and how he should meet his testamentary obligations to the members of his family. 3. In these circumstances, the deceased decided to divide his property No 291A, which was substantially all of the property that he was free to give, equally between his wife and two daughters. Although he gave the residue of his estate to his wife, the residue is not worth a substantial amount. 4. This testamentary decision by the deceased must be measured against the effect of his 11 November 2004 will, which was made after No 291 was put into the joint names of the deceased and Josephine, to give only one quarter of his real estate to each of his daughters and the balance to his wife. Then, on 9 June 2010, the deceased made a further will the effect of which appears to be that all of his property was given to Josephine. 5. The significance of these matters is that they show that, as he was entitled to do, the deceased reviewed his testamentary intentions from time to time, and the effect of his final will was to increase the proportion of No 291A that was left to his daughters, so that a position of equality with his wife was achieved. 6. Although, in addition to her entitlement to an equal share in the value of No 291A under the deceased's will, and her entitlement to the residue, Josephine acquired sole title to No 291 by survivorship, that property was the matrimonial home for most of the years of the marriage, and furthermore Josephine was the only one of the couple who worked during the marriage, so she substantially funded the mortgage necessary to construct a home and the living costs of the couple. Not only was it the deceased's primary obligation to ensure, as he was able to do, that Josephine as his wife had secure accommodation, in the present case Josephine had substantially funded the ownership of No 291 and No 291A with the fruit of her labour over some 26 years or so. 7. Josephine also became entitled to the benefit of a superannuation payout of about $240,000, but that was also the fruit of her own labour, and it would be reasonable for the deceased to regard that simply as an asset to which Josephine was entitled. 8. So far as the provision made by the deceased out of his own assets was concerned, he only provided Josephine one third of the value of No 291A in equal shares with his daughters. 9. By spending portions of her superannuation and borrowing additional money, Josephine has substantially expended the whole of her superannuation for the benefit of members of her family, and in the ultimate, unrealised hope that members of her family could come to live with her in Australia. In doing that she has in substance spent her own money. The expenditure was not unreasonable although it is possible that it may turn out to be imprudent. I consider this issue to be a relatively neutral factor. If Marcelle could otherwise demonstrate an entitlement to a family provision order in her favour, I would have hesitated to deny Marcelle that relief because the effect of Josephine's having spent such a substantial sum on her family had significantly reduced Josephine's financial circumstances, so that she needed the provision made for her in the will. In the view that I take of Marcelle's application, I have not found it necessary to put significant weight on the fact of Josephine's substantial expenditure on her family. 10. As it happens, all three beneficiaries under the will suffer the significant medical disabilities that I have outlined above; each beneficiary is of an approximately equal age; and no beneficiary has any real prospect of future employment (although Somaya may have better prospects than the others). 11. In terms of the factors considered by Hallen J in Butler v Morris, both Marcelle and Somaya have over the years been dependent in various ways on the assistance of the deceased, and the deceased appears to have generously provided that assistance within his means. Both daughters have for considerable periods lived with the deceased in his home or at No 291A. It appears that the daughters were often permitted to do so without paying rent or contributing to household expenses. It is not possible on the evidence to make any useful distinction between the level of dependence of each daughter and the degree of assistance that they received from the deceased. 12. Both daughters have been unable through their working lives to accumulate any capital, to acquire ownership of suitable accommodation, or to establish a fund to meet contingencies as they get older. 13. The deceased appears to have recognised that he had a significant testamentary obligation to his two adult daughters, because he substantially divided the whole of his assets equally between them and his wife. 14. There is no basis for the Court to reject Marcelle's evidence that, earlier in her life, when the deceased owned a number of investment properties, she had a reasonable expectation that the deceased would have left her with some reasonable means of permanent accommodation. Further, it appears that both daughters worked in the deceased's furniture business for some years on reduced pay, with the expectation that the deceased would be able to acquire properties for them, in consideration of their forgone wages. However, the deceased's material circumstances were substantially reduced by the consequences of his divorce from his second wife, and Marcelle must have understood for many years that the deceased would not be in a position to leave both her and Somaya with separate residential properties. Given the limited nature of the deceased's estate, it cannot be said that he ignored any promises that he made to his daughters, as he did give each an equal share in his property with his wife. 15. I am frankly unsure whether the Court should accept Marcelle's assertion that the deceased promised No 291A to be shared by his daughters. It is not unknown for parents to make such promises and then think better of them when the time comes to make their wills, and it is necessary to be realistic about the size of their estates and how it should be divided between all of the persons to whom the deceased has some testamentary duty. Although Marcelle may have had a genuine expectation that she would become entitled to half the value of No 291A, it does not appear that in any substantial way she acted upon that belief by way of incurring any significant disadvantage that she would otherwise not have suffered. Perhaps for all of her working life, but in any event in recent times, Marcelle has not had any realistic prospect of being able to borrow substantial funds in order to acquire a satisfactory home for herself. 16. In respect of future income-earning capacity, each of Marcelle, Somaya and Josephine are in substantially the same position in that, unless in the case of Somaya she is able to acquire employment or start a viable nail salon, each will have to rely upon whatever pension to which they may be entitled. 17. The present case is one of a great many where the value of the estate is not sufficient to make adequate provision in the material sense for all of the persons to whom the deceased owed some form of testamentary duty. There is an element of unreality in the present case in attempting to determine what would be an adequate provision for the proper maintenance of Marcelle, if that question is thought of in a positive sense. That will often be the case where the available assets are only sufficient to be divided in a way that provides the claimants on the deceased's bounty with some arbitrary lump-sum that will be available to supplement living expenses and to provide a small buffer against contingencies. 18. This is a proper case for the Court to ask the question posed by s 59(1)(c) of the Succession Act, and to embrace the enquiry as to whether the Court has jurisdiction to make a family provision order that alters the effect of the considered decision of the deceased as to how his estate should be distributed on his death. The question is whether, at this time, adequate provision for the proper maintenance, education or advancement in life of Marcelle has not been made by the will of the deceased. A consideration of whether the provision made was inadequate in all of the circumstances is a more realistic question than what would positively have been adequate, even accepting the conceptual argument that for any given estate and set of circumstances the answers to both questions should produce the same result. 19. Having regard to the repetition by White JA in Sgro v Thompson at [83] of the observations that his Honour had earlier made in Slack v Rogan; Palfry v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], that I have set out above, I am satisfied that in this case the deceased properly considered how his estate should be distributed, and that his gift of one third of the value of No 291A to Marcelle was not inadequate for her proper maintenance, education and advancement in life in all of the circumstances. There is a good argument that, in treating his daughters equally with his wife, the deceased was being generous to his daughters. 20. I add that, if I had approached the application of s 59 of the Succession Act in this case by engaging in the single process of reasoning envisaged by Basten JA in Andrew v Andrew, I would have reached the same conclusion as I have stated above. That is, in all of the circumstances I would have found that the provision made for Marcelle by the deceased in his will was an adequate provision, having regard to the technical notion of adequacy that applies in these cases. I do not think that the selection of one approach over the other would make a difference in this case. My resistance to adopting the one-stage approach arises out of a qualm that an attempt to equate the provision actually made in favour of Marcelle with what would in a positive sense be adequate provision does not seem to be realistic and is artificial. Orders 1. For the reasons given above, I order that the plaintiff's summons is dismissed. 2. The defendant, as the executor of the estate of the deceased, is entitled to be paid her costs of the proceedings out of the estate on the indemnity basis, and I so order. 3. The defendant is also entitled to an order that the plaintiff pay her costs on the ordinary basis. However, I agreed with counsel for the defendant during submissions that I would give the parties an opportunity to apply for a special costs order. The defendant should inform my Associate within seven days whether any special costs order is sought against the plaintiff. ********** 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: 31 December 2018