Supreme Court of New South WalesSUCCESSION - Claim by daughter of the deceased for a family provision order under Succession Act 2006 - Defendant a son of the deceased and the executor named in Will of the deceased, to whom Probate was granted, who opposes Plaintiff's claim - Whether provision made for Plaintiff is adequate - Competing claim by Defendant - Only notional estate of small value

Pletersky v Pletersky [2012] NSWSC 277 (27 March 2012)

Last Updated: 28 March 2012

Supreme Court New South Wales

Case Title:	Pletersky v Pletersky
Medium Neutral Citation:	[2012] NSWSC 277
Hearing Date(s):	19 March 2012
Decision Date:	27 March 2012
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that she is to receive a lump sum of $90,000. (b) Orders to be made designating property as notional estate but at the request of the parties an opportunity is given to them to reach agreement on both the form of the orders and the burden of costs. (b) The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms of the orders, there may be further short argument. (c) The matter will be adjourned to a date suitable to the parties and the Court no later than 14 days from the date hereof.
Catchwords:	SUCCESSION - Claim by daughter of the deceased for a family provision order under Succession Act 2006 - Defendant a son of the deceased and the executor named in Will of the deceased, to whom Probate was granted, who opposes Plaintiff's claim - Whether provision made for Plaintiff is adequate - Competing claim by Defendant - Only notional estate of small value
Legislation Cited:	Family Provision Act 1982 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Practice Note SC Eq 7
Cases Cited:	Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218 Buckland deceased, Re [1966] VR 404 Clayton (dec'd), Re [1966] 1 WLR 969 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Dugac v Dugac [2012] NSWSC 192 Edgar v Public Trustee for the Northern Territory[2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) (1981) 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Texts Cited:
Category:	Principal judgment
Parties:	Wilma Bernadette Pletersky (Plaintiff) Milan Darko Pletersky (Defendant)
Representation
- Counsel:	Counsel: Mr R Quickenden (Plaintiff) Mr B Skinner (Defendant)
- Solicitors:	Solicitors: Fitzpatrick Solicitors Pty Ltd (Plaintiff) Alison Butler & Associates (Defendant)
File number(s):	2011/52891
Publication Restriction:

JUDGMENT

1. HIS HONOUR: Wilma Bernadette Pletersky ("the Plaintiff"), who is a daughter of Ljubica Pletersky ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

2. The Plaintiff commenced the proceedings, by originating Summons, filed on 17 February 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendant named in the Summons is the son of the deceased and the Plaintiff's brother, Milan Darko Pletersky. He opposes the Plaintiff's claim.

3. There is no actual estate, in the present case, so the Plaintiff seeks provision out of the notional estate of the deceased. I shall return to the basis of the claim to designate property as notional estate later in these reasons.

Formal Matters

4. The following facts are uncontroversial.

5. The deceased died on 7 August 2010. She was then aged 90 years, having been born in March 1920.

6. The deceased was married, but her husband, who is the father of the Plaintiff and the Defendant, left them many years ago. There was another child of the marriage, Maria Milena Hudson ("Mrs Hudson"), who has not commenced any proceedings, but who has sworn an affidavit read in the Plaintiff's case. She was present throughout the hearing of the proceedings.

7. The evidence reveals that the Plaintiff last saw her father when she was 11 years of age and spoke to him, by telephone, when she was about 33 years old. It may be that Mrs Hudson has heard from him more recently, but neither she nor the parties appear to know his present whereabouts. The Defendant believes that he went overseas some years ago.

8. The deceased's husband does not appear to have had any contact with the deceased after they separated. Nor is it suggested that he made any contribution to the property of the deceased held by her at the date of death.

9. The Defendant was born in July 1960 and is aged 51 years. Mrs Hudson was born in June 1956 and is aged 55 years.

10. The deceased left a Will that she made on 24 August 2006, in which she appointed the Defendant as executor and trustee. On 23 November 2010, this court granted Probate of the deceased's Will to the Defendant.

11. The deceased's Will, relevantly, provided:

"3.I GIVE DEVISE AND BEQUEATH all of my property both real and personal of whatsoever nature and wheresoever situate to my Son MILAN DARKO PLETERSKY absolutely but should he predecease me then I GIVE DEVISE AND BEQUEATH my said Estate unto my grandchildren KANE JESSE JAMES SAPKOVSKI, MATHEW PLETERSKY and MELANIE PLETERSKY in equal shares, share and share alike, as tenants in common.

4.I DECLARE that the reason I have not provided for my Daughters VILMA PLETERSKY (sic) and MARIA HUDSON as they have left home about thirty years ago and they have rarely communicated with me since they left and shown no interest in me or my welfare either financially physically or emotionally."

12. The substitute beneficiaries named in Clause 3 of the deceased's Will are the son of the Defendant and the two children of the Plaintiff. In the events that have happened, none of them has any interest in the deceased's estate as the whole estate passes to the Defendant absolutely. It is not suggested that any of the deceased's grandchildren is an eligible person.

13. Although the Defendant attended upon the solicitor who prepared that Will, he was not present when the deceased gave instructions to the solicitor. The Defendant was called into the room after the Will had been made and asked whether he was prepared to be the executor and trustee. It was then that he found out the contents of the Will.

14. In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $500,000. No liabilities were disclosed. The actual estate, at the date of death, was said to consist of real property at Petersham, registered in the sole name of the deceased ($500,000), and household furniture and contents (no commercial value). (I have omitted any reference to the cents and shall continue to do so.)

15. In an affidavit sworn on 22 June 2011, the Defendant disclosed that there was no actual estate remaining as he had distributed the Petersham property to himself as beneficiary. However, the Defendant did disclose funeral expenses of the estate totalling $17,238. These expenses, however, had been paid. Of the amount paid, $13,838 is now repayable to Mr Hudson, the brother-in-law of the parties and the husband of Mrs Hudson. (The balance was paid by the Defendant who received the amount of $3,400, from Centrelink, as a "bereavement payment". It is not repayable out of the estate or otherwise.)

16. It was not until after the long adjournment on the day of the hearing that the parties were able to agree upon the current value of the Petersham property and whether it could be designated as notional estate in whole or in part. Prior to that time, the value of the Petersham property advanced by one side or the other ranged between $570,000 and $640,000. Commendably, the parties agreed that I should treat the current gross value of the Petersham property to be $605,000 at the date of hearing.

17. The parties also agreed that the Petersham property must be sold, if for no other reason than to repay the part of the funeral expenses repayable to Mr Hudson and to pay the Defendant's costs of the proceedings. The agreed costs and expenses of sale are estimated to be about $20,000 and are made up of agent's commission and costs of advertising ($17,500) and legal costs of sale ($2,500).

18. Using the above estimates, at the hearing, the parties then agreed that the estimated value of what may be designated as the current net distributable notional estate, after repayment of part of the funeral expenses ($13,848) and costs and disbursements of sale ($20,000) (but subject to the payment of the costs of the proceedings) is about $571,152.

19. In calculating the value of the estate, finally available for distribution out of notional estate, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate, or notional estate, of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the same estate or notional estate.

20. The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be in the order of $71,000 (inclusive of GST and upon the basis of a two day hearing). Counsel for the Plaintiff (from the bar table) asserted, without objection, that the costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, and upon the basis that the hearing concluded in one day (which it did), are no more than about $50,0000.

21. The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), have been estimated by the Defendant's solicitor, to be about $41,000.

22. For the purposes of the hearing, the parties agreed that I should determine the case upon the basis that the estimated value of what may be designated as the notional net distributable estate, after the payment of costs, if costs are ordered by the court to be paid out of the notional estate, and if the estimates prove accurate, will be about $480,162. Of course, depending upon the result, the costs and disbursements, if payable out of the notional estate, will be able to be formally assessed, unless otherwise agreed.

23. Although the subject of discussion, both parties rejected the alternative of ordering any provision for the Plaintiff as a percentage of the net proceeds of sale of the Petersham property.

Notional Estate

24. By Transmission Application dated 19 January 2011 and lodged with the Registrar General, the Defendant caused the Petersham property to be registered in his name "as beneficiary of the will ... of the deceased registered proprietor".

25. The lodgement of the Transmission Application followed the receipt, by the Defendant, of a letter dated 14 January 2011, sent to him, at the Petersham address, in which letter he was informed of the Plaintiff's intention to make an application for a family provision order. There is no suggestion that he was unaware of the Plaintiff's intention to make a claim for a family provision order, at the time he lodged the Transmission Application.

26. No doubt, for this reason, the Defendant's counsel accepted that it was appropriate, in the circumstances of this case, to make an order designating property as notional estate in order to satisfy any family provision order to be made in favour of the Plaintiff and for the purposes of an order that the whole, or part, of the costs of proceedings be paid from the notional estate of the deceased: s 78 of the Act.

27. However, during submissions, each party's legal representatives requested me to simply determine the quantum of the provision to be made for the Plaintiff by way of family provision order and to allow them an opportunity to reach agreement on both the form of the orders and the burden of costs, or, if no agreement was reached, to allow them the opportunity to make further submissions. In view of the joint request, I shall do so.

28. In these circumstances, it is unnecessary to refer to the provisions of the Act relating to notional estate.

29. The parties and their legal representatives are to be commended upon the manner in which the case was conducted, particularly in making appropriate concessions and not spending undue time on matters of little, or no, importance, to the determination of the case, or which were not the subject of real dispute between them.

Eligible Persons

30. The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant and Mrs Hudson. No prescribed notice was served upon each of the grandchildren of the deceased as persons beneficially entitled to the net distributable estate of the deceased: Practice Note SC Eq 7, paragraph 7. However, as said, there is no suggestion that each, or any, of them, is an eligible person under the Act.

31. Of course, the husband of the deceased is also an eligible person. I am asked to disregard his interests as an eligible person upon the basis that "service of any notice is unnecessary, unreasonable, or impracticable, in the circumstances of the case": s 61(2)(b) of the Act.

32. I am prepared to do so since there is nothing to suggest that he has had anything to do with the deceased for over 40 years. In any event, there is no evidence that either party is currently aware of his whereabouts. In the circumstances, I determine that service of the notice upon him is unnecessary and impracticable. The parties should include the name of the deceased's husband in any short minutes that include this determination.

33. Only the Plaintiff has commenced proceedings. However, the Defendant has given evidence of his financial and material circumstances and his competing claim upon the bounty of the deceased. Mrs Hudson, another eligible person, appeared only as a witness in the case. She was not cross-examined. It is clear that she is well aware of the proceedings and has chosen not to make any claim.

The Statutory Scheme - The Act

34. I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.

35. It is important to remember that even though the estate is quite small, all the relevant circumstances have to be considered before the court's decision is made. As has been said, "the smallness of the estate neither excludes jurisdiction nor full consideration": Re Clayton (dec'd) [1966] 1 WLR 969 at 971-2, per Ungoed-Thomas J.

36. The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

37. The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the applicant's status, as well as his, or her, relationship to the deceased. There is no age limit placed on the child making an application.

38. The Court, if satisfied of the applicant's eligibility, must then determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

39. Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

40. It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

41. Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

42. Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.

43. The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40;(1994) 181 CLR 201, per (Mason CJ and Deane and McHugh JJ) at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

44. Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

45. Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred."

46. In Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127at [81]-[84], Buss JA said, in respect of the first stage of the process:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

47. In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

48. The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

49. Section 60 of the Act, at least in part, is new. It provides:

"(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a)whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and

(b)whether to make a family provision order and the nature of any such order.

(2)The following matters may be considered by the court:

(a)any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c)the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e)if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f)any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)the age of the applicant when the application is being considered,

(h)any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)whether any other person is liable to support the applicant,

(m)the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)the conduct of any other person before and after the date of the death of the deceased person,

(o)any relevant Aboriginal or Torres Strait Islander customary law,

(p)any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

50. It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

51. The section does not prioritise the catalogue of matters that may be taken into account. The weight of such of the matters specified in the section, which are taken into account, will depend upon the facts of the particular case.

52. Nor does considering each of the relevant matters prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant.

53. There is no definition in the Act of "financial resources" (which term is referred to in sub-s (2)(d). However, there is a definition of that term in theProperty (Relationships) Act 1984, which I consider helpful:

""financial resources" ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit."

54. Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

55. Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

56. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage.

57. Section 63(3) of the Act provides that a family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of s 93, except as provided by subsection (5). That subsection, relevantly, provides that a family provision order may be made in relation to property that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3.

58. Section 65(1) of the Act requires the family provision order to specify:

(a)the person or persons for whom provision is to be made, and

(b)the amount and nature of the provision, and

(c)the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d)any conditions, restrictions or limitations imposed by the court.

59. The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

60. The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

61. Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).

62. Section 66 of the Act sets out the consequential and ancillary orders that may be made.

63. The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

64. Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

65. Pursuant to paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

Applicable Legal Principles

66. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.

67. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.

68. In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19;(1962) 107 CLR 9, at 19, per Dixon CJ.

69. In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-454, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

70. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, per Gleeson CJ at [11] and [25];Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

71. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

72. The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959, per Chapman J at 966.

73. In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221:

"Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."

74. Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced:Kembrey v Cuskelly [2008] NSWSC 262, per White J at [45].

75. If an applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that might be a matter to be taken into account. One might say that all of the family circumstances in which an applicant finds herself, or himself, is relevant in assessing whether she, or he, has a need for provision. But the Act does not permit orders to be made to provide for the support of third persons who the applicant, however reasonably, simply wishes to support: Re Buckland deceased [1966] VR 404, per Adam J at 412; Kleinig v Neal (No 2) (1981) 2 NSWLR 532, per Holland J in equity at 537; Dugac v Dugac [2012] NSWSC 192.

76. Finally, what was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J at [46] should be remembered:

"There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will." (Omitting citations)

77. In relation to a claim by an adult child, the following principles, in my view, 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.

(d)If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. (Re Buckland Deceased, per Adam J at 411; Hughes v National Trustees, Executors and Agency Co. of Australasia Pty Ltd [1979] HCA 2; (1979) 143 CLR 134, per Gibbs J at 148; Goodman v Windeyer at 498, per Murphy J at 505). But the Act does not permit orders to be made to provide for the support of third persons whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons. (Re Buckland Deceased, per Adam J at 412; Kleinig v Neal (No2), per Holland J in equity at 537; Mayfield v Lloyd-Williams [2004] NSWSC 419).

(e)There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; Kleinig v Neal (No 2); Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.

(f)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, per Gibbs J at 149.

(g)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: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Fullagar and Menzies JJ (at 135).

78. I make clear that I do not intend what I have described as "Applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Issues of Fact

79. The material that was read at the hearing consisted of affidavits in chief and two answering affidavits, from the parties, and one affidavit from Mrs Hudson. Only the parties were cross-examined.

80. Overall, there was not much in dispute between them.

81. Having observed each in the witness box, I am satisfied that she and he endeavoured to assist the court by giving evidence that was truthful to the best of her and his ability. (I have borne in mind the criticisms of the Defendant by counsel for the Plaintiff, but I do not accept the criticisms impact, in any material way, on my conclusions.)

82. The principal matter of dispute referred to Clause 4 of the deceased's Will which stated her reasons for making the Will that she made and whether the conduct of the Plaintiff was accurately reflected in that Clause or whether the deceased's stated reasons were misguided.

83. It should be remembered, that, although the statement by the deceased in her Will is admissible pursuant to s 100(2) of the Act, the court is not required to accept, unquestioningly, the truth, or accuracy, of that statement, particularly if it is denied by the Plaintiff, or where there is other evidence that casts doubt upon its accuracy. The deceased may make untrue, or inaccurate, statements, either deliberately, or unintentionally. Unfortunately, the truth or accuracy of the statements made cannot be tested by cross-examination. The deceased's statement must, like any other evidence, be subject to a degree of consideration and scrutiny.

84. That this is so is clear and s 100(9), subject to s 100(11), of the Act, which is not applicable in this case, specifically permits, where evidence of a statement of a deceased person is admitted under this section, evidence to be given for the purpose of destroying or supporting the credibility of the deceased.

85. Also, s 100(10) permits evidence to be given for the purpose of showing that the deceased's statement that has been admitted is inconsistent with another statement made at any time by the deceased person.

86. Counsel for the Defendant submitted that the reasons provided by Clause 4 of the Will should not be read literally. He accepted, for example, that it was not true that the Plaintiff had left home more than 30 years before the Will was executed in 2006. The Plaintiff's evidence, in this regard, which was not challenged in cross-examination, but which was denied in the Defendant's affidavit, was that she lived in the Petersham home with the deceased until 1992.

87. Mrs Hudson's evidence, however, was that she lived at the Petersham property until she married at the age of 18 years and 10 months, which appears to have been, in about March 1975. To that extent, part of the reason provided in Clause 4 may be accurate, so far as it relates to Mrs Hudson.

88. The deceased's statement also appears to be inaccurate if I accept the evidence of the Plaintiff and of Mrs Hudson, since each gives evidence that she remained in close communication with the deceased even after she left home and until about 2003, when the Defendant became the deceased's carer.

89. For the same reason, it is submitted that the statement is inaccurate in relation to each of the Plaintiff and Mrs Hudson showing no interest in the deceased or in her financial, physical or emotional welfare. Each says that she made an effort to see the deceased, regularly, at least until 2003, and then, any reluctance to see her, occurred as a result of the conduct of the Defendant.

90. Importantly, Mrs Hudson, who swore an affidavit that was read in the proceedings, gave evidence that the deceased had told her "over the years" that the Plaintiff had been visiting, or was coming to visit, and to "give her a bath".

91. The Defendant also gave evidence that Mrs Hudson "came once a week and dropped off some shopping", albeit that he also said "she was bringing the wrong food, my Mum was a diabetic so I took over all that. I told her numerous times not to buy certain things and she continued".

92. I also note that, in one of his affidavits, the Defendant identified, by name, a friend and two neighbours, who could verify that the Plaintiff had not visited the deceased at the Petersham property. However, none of these potential witnesses was called to give evidence, the Defendant saying that he had given the name of each person to his solicitor and assumed that she and he would be spoken to.

93. The unexplained failure to call any evidence gives rise to an inference that her and his evidence would not have assisted the Defendant's case. However, the unexplained failure cannot be used to reason that the evidence of the witness would not have been favourable to the Defendant.

94. I am prepared to accept that the statement made in Clause 4 of the deceased's Will, in part, may be, at least in part, inaccurate. However, this does not mean that I accept that the Plaintiff was as close to the deceased as she asserts. For example, the Defendant gave evidence, which I accept, that the Plaintiff did not, in the last 10 to 12 years of the deceased's life, come to visit on the deceased's birthday, Mother's day, or on any religious festivals, such as Christmas or Easter. He says, that, at least during a slightly shorter period (10 years), she visited no more than 20 times. He was not directly challenged on either aspect, although it was submitted that telephone contact occurred regularly. The Defendant accepted that the Plaintiff may have come on other occasions, at least until he asked her to return a key to the Petersham property.

95. The photographs the Plaintiff tendered support my conclusion about the relationship of the Plaintiff and the deceased. Most of them are black and white photographs and depict the three children of the deceased as children. There were no photographs, cards, or letters, which appeared to relate to say, the last 10 years of the deceased's life.

96. Of course, the Plaintiff says that her visits to the deceased were less regular after 2003, principally because of the conduct of the deceased. Even if she was justified in her view about his conduct, that does not explain the apparent failure to send any cards, or other forms of good wishes, on such occasions.

97. It was not submitted, however, by the Defendant, that the Plaintiff was completely estranged from the deceased. I accept that she was not. To the contrary, the Defendant accepted, at the outset of the cross-examination that the deceased "loved all her three children up to the date she died".

98. The Plaintiff relied upon a hospital record, tendered without objection, in which the Defendant told a social worker at the hospital to which the deceased had been admitted, in July 2010, that the deceased's Will left all her estate to him; that he intended to sell the Petersham home and buy a small flat, and divide the surplus between his sisters "not that they deserve it".

99. I accept that he made the statement before the death of the deceased. However, I cannot see how that assists the Plaintiff. He has made appropriate concessions in relation to some provision being made for the Plaintiff. His statement "not that they deserve it" is consistent with his sworn evidence.

Relevant Facts

100. I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.

(a)any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship

101. The Plaintiff is the daughter of the deceased. She lived at home, she says, until 1992. I do not know whether she means that she lived there on a full time basis, but it is quite possible that she did so, since she was asked questions regarding whether she had ever lived with the father of her two children, and she said she never had.

102. As stated previously, there is no suggestion that the Plaintiff was completely estranged from the deceased at any time. As stated, I am satisfied that she was not and that the deceased loved all of her children.

(b)the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

103. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon her by statute or common law. It is clear that the Plaintiff had been financially independent of the deceased for many years prior to her death.

104. However, an obligation, or responsibility, to make adequate provision for the proper maintenance, education and advancement in life is recognised in the case of a child of the deceased.

(c)the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

105. I have dealt with this earlier in this judgment. On any view, the value of the property that may be designated as notional estate is small.

(d)the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

106. The Plaintiff receives a disability pension. The total amount she receives is in the order of $648 per fortnight, although rent ($300), electricity charges ($20) and water rates ($20) are deducted each fortnight before receipt. She actually receives about $300 per fortnight after those charges are deducted.

107. The Plaintiff's income is supplemented by board of $150 per fortnight received from her son, and $50 per fortnight, which she receives from her daughter. However, at least part of the amount she receives from each is used to pay for his, and her, expenses.

108. She has very little by way of assets, no savings and no superannuation. I find that she has a limited earning capacity. She purchases her clothing and shoes from St Vincent de Paul. Sometimes, she receives clothing from a Church at which she attends.

109. However, she is secure in her accommodation (a townhouse) with the Department of Housing, New South Wales, from which she has rented that accommodation since December 1993.

110. She makes some complaints about the state of repair of the accommodation. She has been offered alternative accommodation on at least one other occasion, but she did not accept it because she decided the unit offered was not suitable to her children's needs. Because her children reside with her, she sleeps on a couch in the lounge room.

111. During submissions, the Plaintiff submitted that the provision she seeks is to enable her to buy some furniture and whitegoods (about $30,000), a sum for contingencies ($100,000) and a sum to provide income ($50,000). No basis for selecting those amounts for contingencies or in order to provide an income was elucidated other than by reference to the competing need of the Defendant to purchase alternative accommodation from the balance. The amount claimed to replace furniture and whitegoods was much greater than the amount identified in the Plaintiff's affidavit for that purpose (about $17,000).

112. The Plaintiff had given evidence of the "need" for a car (at a cost of about $50,000). However, in cross-examination, it was revealed that she does not have a current driver's licence and has not had one for about 18 years. She also said that a reasonable second hand car could be purchased for about $15,000. She said that she needed a car "[T]o go to doctors. I have got problems with me, go to specialists, get my CT's done, my MRI's done".

113. The Plaintiff admitted that after she first saw her solicitor, in January, she "went out and compiled a shopping list".

114. The Defendant submitted that the Plaintiff should receive an amount of $20,000 to enable her to purchase furniture and whitegoods and about $25,000 for exigencies.

115. The Defendant is a qualified spray painter but does not work. He, too, receives a disability support pension ($680 per fortnight). He has virtually no savings, no property and no superannuation. He owes debts, including a deferred fee to the court, totalling $4,308. His expenses equal his income. He has a 16 year old son with whom he has some contact.

116. The Defendant says that he finds it impossible to obtain employment because of his age, his criminal history and his poor health. I find that he has a limited earning capacity.

117. If the Petersham property is sold, as it must be, he has a need for alternative accommodation. There is some evidence that the cost of such alternative accommodation, if purchased, together with associated costs, would be in the order of $384,000. There is other evidence that such accommodation could be purchased for a lesser amount. The Defendant also asserts a competing need for a capital sum to pay off his debts and to provide for exigencies of life.

118. The Defendant admits that he has not looked at alternative accommodation that he might purchase. However, this is not surprising because he does not know the nature of the provision that is to be made for the Plaintiff and how much he will have available after satisfying any order, or whether it will be sufficient to enable him to purchase alternative accommodation of the type that he requires.

119. The Plaintiff submits that he could purchase "secure and habitable accommodation for a sum in the vicinity of $250,000".

120. The Defendant's evidence is that if he was required to rent accommodation, the rent for a one-bedroom home unit, in the Petersham area, will be between $250 and $300 per week.

121. It is clear that the financial position of each party could genuinely be described as very poor.

(e)if the applicant is cohabiting with another person - the financial circumstances of the other person

122. The Plaintiff lives with her two children. I do not know the financial circumstances of her son (who is 19 years of age), although the evidence reveals that he is an apprentice chef. Her daughter (who is 16 years of age) is in Year 11 of high school, studying at TAFE, and is in receipt of a Youth Allowance of $212 per fortnight.

123. The Plaintiff spends part of the money she receives from each of her children on his, and her, needs. For example, she purchases their food and also pays for weekly travel pass for her daughter.

124. In the Plaintiff's written submissions, it is accepted that her children are generally healthy and will probably be independent from her in the future. However, at the date of the hearing, each is, at least partly, financially dependent upon the Plaintiff.

(f)any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

125. The Plaintiff does not give very much evidence about these matters. She states, however, that she has a history of drug use and currently spends about $70 per for fortnight on methadone (currently 90 mg per day). She states that she is "otherwise generally in good health".

126. However, a report dated May 2011, of her treating doctor, reveals that she has a significant history of depression, drug addiction, suppressed by Methadone therapy, and also a history of Panic Disorder. As I have said, she receives a disability pension.

127. The Defendant suffers from Advanced Hepatitis C, anxiety and depression, and a heart condition. He has pain in his hands from hand fractures. He, too, receives a disability pension.

(g)the age of the applicant when the application is being considered

128. The Plaintiff is currently 53 years of age having been born in October 1958.

(h)any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

129. The Plaintiff says that she contributed by providing labour for the repair and maintenance of the Petersham property. Although this is disputed, her contribution is described in her submissions as "at a minor level". I agree that this is an apt description.

130. The Defendant was, at least between 2003 and the deceased's death, her sole carer. No doubt, he provided her with care during these years.

(i)any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

131. I have referred to the lack of provision made for the Plaintiff from the deceased's estate. However, as she lived in the Petersham property until about 1992, the deceased provided accommodation to her until that time.

(j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

132. The Plaintiff gives evidence of having a number of conversations with the deceased in which she was informed that the deceased's estate would be divided equally between the three children. These conversations are corroborated by a will, made by the deceased in April 1998, in which the whole of the estate is left to "such of my children who survive me by more than thirty (30) days in equal shares as tenants-in-common absolutely".

(k)whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

133. There is no suggestion that the Plaintiff was being maintained, either wholly or partly, by the deceased, before the deceased's death. As stated, the Plaintiff appears to have been financially independent of the deceased for many years before the deceased's death.

(l)whether any other person is liable to support the applicant

134. There is no person with any liability to support the Plaintiff.

(m)the character and conduct of the applicant before and after the date of the death of the deceased person

135. The Act does not limit the consideration of "conduct" to conduct towards the deceased.

136. A matter upon which there was a substantial dispute between the parties related to the relationship of the Plaintiff and the deceased between 2003 and the date of death, to which I have referred earlier.

137. I also remember that there is no evidence that there was any conduct by the Plaintiff towards the deceased, of the type that used to be called "conduct disentitling". To his credit, the Defendant did not suggest such conduct.

(n)the conduct of any other person before, and after, the date of the death of the deceased person

138. I am satisfied that the conduct of the Defendant demonstrated, overall, a close and loving relationship with the deceased. (There may have been some disagreements between the Defendant and the deceased, but any are irrelevant to the determination of the Plaintiff's claim.)

139. I do not forget that he was the deceased's sole carer between 2003 and her death. His care involved ensuring that she took her medications, attended at doctor's appointments, cleaning and cooking for her, arranging maintenance of her oxygen machine, checking her blood sugar levels four times a day and also attending to change her as she was incontinent and mostly bed-ridden for the last three years of her life. It was due to his efforts that the deceased was not required to be placed in a nursing home.

140. I have also not forgotten that the Defendant has been incarcerated for a number of years, at different times for different offences. However, the deceased visited him in jail and wrote to him. She does not appear to have been upset or embarrassed by his conduct.

(o)any relevant Aboriginal or Torres Strait Islander customary law

141. This is not relevant in the present case.

(p)any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

142. The only other matter that I consider relevant is that the Defendant and the deceased conducted a joint bank account. This account was opened in January 2004, by the transfer of about $9,400 from the deceased's account. The Defendant does not disclose the amount in this account at the date of death.

143. There was no suggestion that the Defendant made any significant contributions to the joint account.

Determination

Eligibility

144. There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57 (1) (c) of the Act.

The Jurisdiction Stage

145. As the Plaintiff's proceedings were commenced within the time prescribed by the Act, the first question for determination is whether, 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, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

146. There was no provision in the deceased's Will made for the Plaintiff. This does not, automatically, mean that she will have satisfied the jurisdictional threshold. Judged by quantum and looked at through the prism of her financial and material circumstances, it might be said that adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both.

147. Whilst an additional lump sum, by way of advancement in life, in other circumstances, would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased, the size of the estate and the Plaintiff's "needs", are very relevant factors in determining the answer at the first stage.

148. During submissions, the Defendant's counsel accepted that the Plaintiff had satisfied the jurisdictional threshold. This concession was properly made.

Exercise of Discretion

149. Then, I turn to the second stage of the two stage process, and consider whether an order should be made, and if so, the nature of the order to be made.

150. Claims for a family provision order present particular difficulties where the estate is relatively small. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims.

151. As a matter of discretion, I am satisfied that an order for provision by way of a capital sum should be made for the Plaintiff. (There was really no dispute that I should exercise my discretion to make an order for provision.) However, I find myself quite unable to accept the submissions made on the quantum of the provision to be ordered. In other words, I am not satisfied that she should receive as much as sought by her in submissions, or as little as was submitted by the Defendant, she should receive.

152. I do not accept that the Plaintiff requires an amount to enable her to purchase alternative accommodation. Apart from the fact that the size of the deceased's estate will not enable provision to be made for that purpose (it being accepted that she has no borrowing capacity and that the Defendant has a greater competing claim upon the bounty of the deceased), I am satisfied that she is secure in the accommodation in which she presently lives.

153. Taking into account her "needs", in my opinion, the capital sum the Plaintiff should receive is $90,000. Allowing, say, $20,000 for the purchase of furniture and whitegoods, she will retain $70,000 by way of capital sum to provide capital and, until spent, some income. Invested at say 5% per annum, that will provide about $3,500 per annum or about $67 per week.

154. The provision of that lump sum for the Plaintiff, will leave approximately $390,000 for the Defendant. That will enable him to purchase accommodation (perhaps, for about $300,000 including associated costs), as well as providing him with a capital sum (coincidentally equating to the capital sum provided for the Plaintiff) for exigencies of life and to provide, until spent, an income. Alternatively, if the whole amount is invested by him, at say, 5% per annum, the income ($19,500) should be sufficient to enable him to rent accommodation (between $13,000 and $16,000 per annum), whilst retaining the capital.

Costs of the Proceedings

155. I have been requested to allow the parties to agree upon costs.

The Nature of the Orders

156. In view of the request of the legal representatives of the parties, I shall stand the proceedings over to enable the preparation of short minutes which should include:

(a)my finding that the Plaintiff is an eligible person;

(b)my determination that service of the notice upon the deceased's husband is unnecessary and impracticable;

(c)that the provision made for the Plaintiff in the Will of the deceased is inadequate for her proper maintenance and advancement in life and that she should receive, a capital sum of $90,000.

(d)that a provision for interest on that capital sum, unless it is paid within 14 days after completion of the sale of the Petersham property, or such other time as the parties agree;

(e)the burden of the costs of the parties should be agreed upon;

(f)that the deceased's estate is insufficient for the making of the family provision order in the case of the Plaintiff, and for any order as to costs, that the Court is of the opinion should be made, the court will make a designating order designating property as notional estate for the purposes of the family provision orders to be made and, if necessary, for the purposes of an order for the Plaintiffs' costs of proceedings (as agreed or as determined);

(g)that the Petersham property be sold and the methodology of sale so as to avoid undue delay in the sale;

(h)that the Court Book, the exhibits and subpoenaed material be returned forthwith; any exhibits returned to be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

157. The parties are to bring in short minutes that reflect these reasons and at least the matters stated above. If agreement is not reached on the terms of the orders, I shall hear further submissions. The matter will be adjourned to a date suitable to the parties and the Court no later than 14 days from the date hereof.

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