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Andrew v Andrew [2011] NSWSC 115 (4 March 2011)

Last Updated: 4 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title:	Andrew v Andrew

Medium Neutral Citation:	[2011] NSWSC 115

Hearing Date(s):	22 February 2011

Decision Date:	04 March 2011

Jurisdiction:

Before:	Hallen AsJ

Decision:	Summons dismissed; I shall hear the parties on costs

Catchwords:	Succession - Family provision order sought by daughter of the deceased who was estranged from the deceased for 35 years

Legislation Cited:	Family Provision Act 1982 NSW Succession Act 2006 Succession Amendment (Family Provision) Act 2008

Cases Cited:	Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux -Warnes v Hall [No 3] [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison (1997) 2 VR 359 Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 Hastings v Hastings [2010] NSWCA 197 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1978-79) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Kay v Archbold [2008] NSWSC 254 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 McKenzie v Topp [2004] VSC 90 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palmer v Dolman; Dolman v Palmer [2005] NSWCA Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 Samsley v Barnes [1990] NSWCA 161 Singer v Berghouse (No 2) [1994] HCA 40 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11 Walker v Walker, NSWSC, 17 May 1996, unreported

Texts Cited:

Category:	Principal judgment

Parties:	Lynne Christine Andrew v Michael Robert Andrew

Representation

- Counsel:	Counsel: Ms E Cohen (Plaintiff) Mr L Ellison SC (Defendant)

- Solicitors:	Solicitors: Firth McAlpine & Tasdemir Lawyers (Plaintiff) MCW Lawyers (Defendant)

File number(s):	2010/59123

Publication Restriction:

JUDGMENT

The Application

HIS HONOUR: Lynne Christine Andrew ("the Plaintiff), who is a daughter of Rita Melba Andrew ("the deceased"), applies for a family provision order under Chapter 3 of the NSW 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.

The Plaintiff commenced the proceedings by Summons filed on 8 March 2010, 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 Michael Robert Andrew ("the Defendant") to whom Probate was granted as the substituted executor named in the deceased's Will, the original executor having predeceased the deceased. The Defendant is a son of the deceased and the brother of the Plaintiff. There are three other children of the deceased, namely Jennifer Annette Smith, Lisa Gae Andrew and Tracey Lee Andrew. (I shall refer to the sisters of the Plaintiff and the Defendant, with no disrespect or undue familiarity intended, by her first name.)

There is no question, in the present case, of any provision being sought by the Plaintiff out of any notional estate of the deceased.

Background Facts

The following facts are uncontroversial.

The deceased died on 9 March 2009. She was then aged 83 years.

The deceased left a Will that she made on 21 June 2005, Probate of which was granted by the Supreme Court of New South Wales, to the Defendant, on 13 April 2010.

The deceased's Will, in the events that happened, relevantly, provided:

(a) 40% of the market value of the property at Carnegie Circuit, Chifley ("the Chifley property") to the Defendant absolutely;

(b) a pecuniary legacy of $10,000 to the Plaintiff absolutely;

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 $925,805. No liabilities were disclosed. The estate was said to consist of the Chifley property ($920,000), and money held on deposit ($5,805).

In an affidavit sworn on 5 August 2010, the Defendant disclosed that the Chifley property was sold on 23 July 2010, for $905,000. After adjustments and outgoings, and the deduction of real estate agent's commission, the net proceeds of sale, were $886,960.

From the proceeds of sale of the Chifley property, amounts totalling $9,841 were reimbursed to the Defendant. The balance of the funds then available was $877,119.

In his affidavit sworn on 16 February 2011, the Defendant states that the net distributable estate currently available is $799,249. This amount is calculated, having deducted the Defendant's legal costs and $17,000 in legal costs of certain proceedings (to which I shall come involving claims made by the three other daughters of the deceased) that were discontinued. At the hearing, the Defendant disclosed that, in reaching the figure in his affidavit, he recognised that $15,000 had been paid, by way of interim distribution, to each of the siblings of the Plaintiff.

I note, in passing, the conduct of the Defendant, in not paying the legacy to which the Plaintiff is entitled under the Will, to her, even though almost two years from the date of the deceased's death has passed.

At the hearing, subject to any costs of the proceedings being ordered to be paid out of the estate, the parties agreed that the distributable value of the estate was, therefore, estimated to be about $800,000.

In calculating the value of the estate, finally available for distribution, 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 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 estate.

The Plaintiff's costs and disbursements of the proceedings, calculated on the ordinary basis, have been estimated to be $50,500 (inclusive of GST and upon the basis of a two day hearing). The Plaintiff's solicitor, Mr McAlpine, was cross-examined about the estimate. I accept his evidence that the indemnity costs of the Plaintiff would be greater than his estimate. I shall use his estimate for the Plaintiff's costs, calculated on the ordinary basis.

The three other daughters of the deceased commenced proceedings under the Act. On 24 September 2010, following a mediation, orders were made in the proceedings in which Jennifer, Tracey and Lisa, discontinued the proceedings. Costs orders were also made by agreement.

The Defendant's costs and disbursements of the present proceedings, including senior counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), are estimated to be $64,839. That estimate includes the costs incurred by the Defendant in respect of other proceedings brought by his sisters and which were discontinued. As stated above, some of these costs have already been paid.

The parties accept, if one uses the estimates provided, and if usual costs orders are made, that the final amount available for distribution will be between $700,000 and $710,000.

The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant, and the three other daughters of the deceased.

Only the Plaintiff has continued proceedings under the Act.

The deceased was not silent as to the reasons for the dispositions in the Will. There are two documents, in the handwriting of the deceased, which state her reasons for making the Will in the terms that she did. The first, which is dated 21 June 2005, states:

"I, Rita Melba Andrew, do hereby declare that the reason Lynne Christine Andrew has been omitted from the bulk of "our assets" in our Will is that she has not acted as a daughter should in our lifetime, and should not be remembered as our other children have, in the dispersal of our assets"

The second is a document, dated 28 July 2008, which, so far as is relevant, states, somewhat more cryptically:

"I, Rita Melba Andrew, do hereby give notice that upon my demise, my house at ... Chifley, is to be sold and the proceeds be divided equally between Michal [sic], Jennifer, Lisa and Tracey, but with a sum of money to go to my eldest daughter, Lynne, approx $10,000. dollars [sic], she will be aware of the reason.

Michael is to get the cost of the flat above, and the land and house are to be the main benefit to all."

The Plaintiff has not responded to either of these written statements, except by stating that she is not aware of "the reason" referred to in the second statement.

While the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

The Plaintiff's financial and material circumstances are not in dispute. I have taken the following summary from the submissions, in writing, made on her behalf (as amended following her oral evidence):

(a) The Plaintiff has no assets other than what is left of her superannuation (which is about $4,200) and personal effects.

(b) The Plaintiff has no motor vehicle.

(c) The Plaintiff is looking for work, but currently there is no work available for her in Port Macquarie. The Plaintiff wishes to remain living in the Port Macquarie area, due to her attachments to Alexandra, and the fact that rent is reasonable.

(d) Whilst she has no legal obligation to do so, the Plaintiff shares the care of a foster child, Alexandra, aged 10 years, who is aborigine and who lives with her aunt, a friend of the Plaintiff. (Alexandra's mother has disappeared to Sydney and her father is in jail or in and out of jail. Alexandra's parents do not support her and the Plaintiff's friend, Monica, who is a distant relation and is also aborigine, cares for her. Monica receives Government assistance for this care. Monica goes to Sydney once every two months for a week. Alexandra has Asperger's syndrome.)

(e) It has been the pattern of the Plaintiff's life that she has sought work in areas where she is assisting the underprivileged, or pursuing altruistic goals, rather than seeking material gain for herself.

(f) The Plaintiff's only income is from a Centrelink Newstart allowance, which is approximately $1,185 per month. Of this amount she spends $600 per month on rent, which leaves less than $150 per week for food, transport, medical, telephone, electricity and other living expenses.

(g) The Plaintiff is unlikely to be able obtain employment, having regard to her age and the fact that she has not been employed for many years.

(h) The Plaintiff's son, Nicholas, is aged 20 and, at the present time, is not dependent, financially, upon her. (He has recently obtained employment as a bar manager.) She would like to have the funds to visit him in Queensland more often.

(i) The Plaintiff currently resides in a flat adjoining the flat of her friend, Monica. She denies any relationship between them.

(j) The Plaintiff is studying graphic design at TAFE.

The Defendant, to his credit, acknowledges the financial position of the Plaintiff. In written submissions, filed on his behalf, it is accepted that she "is in relative need".

The Statutory Scheme - The Act

I shall discuss the statutory scheme that is relevant to the facts of the present case.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

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 testator'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 a testator's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

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) 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.

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".

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).

Under both s 59(1)(c) and s 59(2) 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.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Dixon CJ at 128."

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted:

"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux -Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA.

Each of the 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."

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571, 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 if life must be considered in the light of 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."

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin at [114], Callinan and Heydon JJ said:

"[T]he use of the word "proper"...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use 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."

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 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.

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 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

Tobias JA said:

"42. 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."

In Devereaux-Warnes v Hall [No 3] at [81]-[85], 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]."

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.

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.

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."

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.

Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.

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 ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

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. I am comforted in reaching this conclusion by the following comments made 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 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."

And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231):

"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, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

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

(d) the part or parts of the estate out of which it is to be provided; and

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

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 which 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).

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).

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).

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

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).

Applicable Legal Principles

In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were given in the context of the former Act, they are equally apt in a claim such as this one.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, 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 role 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. 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.

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 testator'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".

The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system.

Of that freedom, in Grey v Harrison (1997) 2 VR 359 at 386, Callaway JA said:

"... It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take properties from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the widest terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."

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 at 19; Walker v Walker , NSWSC, 17 May 1996, unreported; Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted:

(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 their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation ( McGrath v Eves [2005] NSWSC 1006; 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 a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for his, or her, retirement, something to assist in retirement where otherwise he, or she would be left destitute: Taylor v Farrugia .

(d) There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142, Palmer J commented:

"57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children.

58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation."

(e) There is no the need for an 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) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

Estrangement of the Plaintiff and the Deceased

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359:

"[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

Because in this case there is an unusual factor that bears on the quality of the relationship, being that the Plaintiff and the deceased were estranged for many years, it is necessary to set out some other general principles which should be remembered:

(a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the moral claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case ( Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33]).

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361at [88]-[94]; Foley v Ellis [2008] NSWCA 288.

(c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 per Kirby P (with whom Hope and Priestley JJA agreed),

"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will."

Credibility of Witnesses

I am satisfied that, generally, there were not many facts seriously in dispute between the parties.

Apart from one matter, to which I shall refer, I found the Plaintiff generally to be a witness whose evidence was truthful. She did not prevaricate in providing answers to questions that must have made her feel uncomfortable, and no doubt, sad. She accepted, immediately, propositions made to her, which were against her interests. She was relatively candid in her evidence.

The other witnesses, also, appeared to give his, and her, answers frankly. None of them was cross-examined to suggest that the evidence given was inaccurate or false.

No submissions were made that any witness gave false evidence.

Relevant Facts

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

The Plaintiff is the daughter of the deceased. She lived with her parents until the age of 17 years (about 1966). Their inter-relationship was not happy, loving, or harmonious, for many years prior to the death of the deceased. It is difficult to describe it as a relationship at all for over 35 years prior to the death of the deceased, since there was virtually no contact between them during that period. Indeed, the contact was so limited, and so infrequent, that the Plaintiff was able to identify the only two occasions, during that period, that they saw each other.

To support this assessment of their relationship, it is only necessary to refer to some of the Plaintiff's own oral evidence:

"Q. Do you agree then that it was for a period of over 35 years from your midwifery training in the early 70s that you did not speak to your mother?

A. I am not sure.

Q. It is about that time period, isn't it?

A. About that.

Q. Then in July 2007 you spoke to her at Queensland at the wedding?

A. That is correct.

Q. And when did you next speak to her after that?

A. My father's funeral.

Q. Apart from exchanging courtesies, it was not a long conversation, was it?

A. It was an amiable conversation.

Q. It was not a long conversation, was it?

A. No, there were a couple of short conversations.

Q. And after your father's funeral in October 2007 did you ever speak to your mother again?

A. No."

And later:

"Q. When was the last time you sent your mother a Christmas card?

A. Probably in the 60s but I have no recollection.

Q. When was the last time you sent your mother a birthday card?

A. Exactly the same period.

Q. When was the last time you sent your mother a mothers' day card?

A. I probably can't remember but probably in that period as well.

Q. When was the last time you wrote to your mother, in other words, you sent her a letter or a communication of any sort?

A. I don't think I have ever written to my mother.

Q. There is no doubt that at all times you knew where your mother lived?

A. Yes.

Q. Would you agree with the proposition that, perhaps, after you finished your training and returned from New Guinea, you never told your mother where you lived?

A. Not directly but through my siblings, they knew where I lived.

Q. Again you never told your mother where you lived, correct?

A. That is correct.

Q. And if she wanted to find you, you think she would have had to do so through your siblings?

A. Through my siblings or through my aunt. My aunt has communicated with me conversations with my mother over a period of time.

...

Q. .... if you wanted to at any time in those last 35 years or so, you could have, if you wanted to, on your own initiative initiated contact with your mother?

A. That is correct.

...

Q. Please answer the question, you chose not to, correct?

A. That is correct."

In relation to what had caused the breakdown of their relationship, the Plaintiff said that she suspected that, perhaps, her mother was angry because of the Plaintiff's sexuality. Her evidence was:

"Q. What was it that caused you to be suspicious or suspect that it had to do with your sexuality?

A. That's the only thing that I could think of. I'd never had a blazing argument with them, I'd never had shouting matches, I'd never had intense disagreements with them in any way, shape or form. It just basically, the relationship, petered out sort of . It's the only way that I can describe it really.

...

Q. You also were cross examined by Mr Ellison on the fact that as an adult you chose to have the level of contact or no contact, as it appears it was, with your mother? You were asked some questions about that, do you remember?

A. I do.

Q. You said that it was due to family dynamics?

A. That's correct.

Q. What did you mean by that?

A. When I went into nursing my father had these expectations of me following his ideals about what my working life should be. My parents, their dynamics between the both of them was very difficult, particularly because my father was medicated and was gradually increasing his consumption of alcohol and I just didn't want to be in that situation. I didn't like it, I was uncomfortable. There was no there was just no rapport. It was two people that gave birth to me, brought me up and then I was on my own. That sounds a bit sort of black and white but I just pursued my own career from then on .

Q. Do you mean your own life from then on ?

A. My life and my career ."

(My emphasis)

As can be seen from this evidence, no specific conduct is attributed to the deceased that led to the breakdown of their relationship. Indeed, the Plaintiff stated in her first affidavit, that the deceased had expressed pride that she had become a nurse and had gone into a medical based career.

What had been asserted by the Plaintiff, in her first affidavit, as the cause of the breakdown of the relationship was that when she was going overseas, she asked one of her sisters to look after her house, which request "seemed to upset my parents and caused a rift between myself and [them]". Later, in the same affidavit, it is said that her parents did not like the way in which she was living her life and "this may have influenced my mother in her attitude towards me, but we never spoke about any of these things".

Even on the Plaintiff's evidence, it would appear that the relationship of daughter and mother existed between the Plaintiff and the deceased between the date of the Plaintiff's birth and the early 1970's. Thereafter, between them, it appears to have been non-existent.

However, the Plaintiff suggests that she showed some concern for her parents despite the lack of contact. She gave evidence that when told of their ill-health by her siblings, "I made suggestions to my siblings as to how to resolve certain situations with regard to or made suggestions as to how certain situations could be resolved with regard to either my father's condition at a particular time or my mother's condition at a particular time".

Accepting the Plaintiff's evidence, at its highest, perhaps, this demonstrates some residual feelings that she held for the deceased. But any such feelings were not powerful enough to cause her to seek to heal the rift between them, in the last years of the deceased's life, and when she knew that the deceased was seriously ill.

Tracey and Lisa each gave evidence about the effect of the deceased's lack of contact with the Plaintiff. Tracey said that she tried to find out from the Plaintiff the reasons she did not wish to see her parents, because she knew how much the lack of contact was hurting them and that the deceased had stated how sad and confused she was about the Plaintiff's attitude. She said that the Plaintiff got very angry and this led her to hesitate to raise the matter with the Plaintiff. (Lisa corroborated this aspect of the evidence and confirmed that the Plaintiff would say that she did not want to talk about her parents.)

Tracey also gave evidence of the conversations that she had with the deceased about the Plaintiff. She stated:

"Q. Over the years what were the sort of comments that your mother made about your sister Lynne?

A. The regular line of conversation was asking if I knew where Lynne was, how Lynne was, how Nicholas her son was and do I know why she will not talk to mum and dad any more and she wished she knew why and how painful it was to talk about it with her husband, my father, any more that she decided she will not talk about it with him any more because he could not cope with it. There was no it was just baseless for mum and dad. So over the years that was the constant line of conversation.

Q. Did your mother ever mention to you anything about your sister Lynne's sexuality or her private life?

A. No."

Before leaving this topic, I should note that there was a dispute between the Plaintiff and her sisters about whether the Plaintiff had said negative things about her parents. Tracey described conversations as "general put downs".

Lisa gave more specific evidence that there were conversations with the Plaintiff, that included words to the effect that the Plaintiff "did not care about them" and that she "had no feelings for them". The most recent of such conversations was said to have occurred just before the death of the deceased, whilst she was in a coma. When Lisa telephoned the Plaintiff to inform her that one, or other, of her parents were ill, the Plaintiff seemed "uninterested". The Plaintiff made no attempt to follow up to see how they were, or to lend support when they were ill.

I accept the evidence of Lisa and Tracey, rather than the Plaintiff, on this aspect. The facts that the Plaintiff candidly acknowledged corroborate the sentiments expressed in the words denied. Sadly, those facts, going to the relationship, strongly evidence the words spoken and demonstrate, even more vividly, the deliberate, and conscious, abandonment of the relationship by the Plaintiff.

It does not assist the Plaintiff to say, as was submitted on her behalf, that the deceased also abandoned the relationship and did not take any steps to resurrect it. As submitted, the deceased could have telephoned the Plaintiff, assuming that she knew the telephone number. She did not do so. She did not know, directly, where the Plaintiff was living, because, intentionally, the Plaintiff did not tell her. It is not surprising, in my view, that the deceased did not make contact with the Plaintiff.

However, the evidence reveals that the deceased expressed to her two daughters, and perhaps, to others, the bewilderment that she felt because she did not understand the reasons for the Plaintiff's lack of contact. If not expressly, then impliedly, by the encouragement of various family members, including the Plaintiff's paternal aunt, to resurrect the relationship, given to her, the attitude of the deceased was communicated to the Plaintiff who ignored what she had been told.

The Plaintiff maintains that she obtained information about the deceased from various family members and, in this way, felt that she kept in contact with her. Whilst that may be so, there was no direct contact between them for a very long time and despite the information, she took no steps to change the situation.

There was a dispute about whether the deceased sent various "care parcels" to the Plaintiff whilst she was working in Papua New Guinea in the 1970's. I think it likely that the deceased did send packages to the Plaintiff. However, I am unable to say that I disbelieve the Plaintiff who said that she did not receive any packages from the deceased. In the circumstances of the case, this aspect is merely a distraction.

There is no dispute that the deceased offered the Plaintiff $100 to assist her to come to Sydney to attend the funeral of the Plaintiff's father. The deceased insisted that she take the money, which, ultimately, the Plaintiff did, but then gave it to her sister, Lisa, "towards the running around costs her and my other siblings had had to do in preparation" for the funeral.

It was only at the wedding of a niece of the Plaintiff, that she introduced the deceased to her son, Nicholas.

It is not suggested, by the Plaintiff, that there was a reconciliation between her and the deceased on either of the two occasions that she saw the deceased. She simply says that the conversations were "amiable".

I also accept that in the early 1990's the Plaintiff telephoned the home of her parents on one occasion, when she found out that the Defendant was ill. She spoke to her father, who was hostile towards her, said that he did not recognise her as his daughter, and then hung up. However, this was not a conversation with the deceased and does not explain the Plaintiff's continued conduct towards her.

The Plaintiff states that following this telephone conversation, she flew to Sydney to be with the Defendant and his wife and that she stayed with friends. Whilst in Sydney, it is clear that she did not contact the deceased.

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.

However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life may be recognised in the case of a child. No doubt, views differ: Hastings v Hastings [2010] NSWCA 197 at [20].

The deceased had an extremely close and loving relationship with the Defendant and with Jennifer, Lisa and Tracey. The Defendant lived with his parents for many years and assisted them. Each played an important role in caring for his, or her parents.

The deceased did assume some obligation, and responsibility, towards the Defendant, even though he was an adult and in employment. He was dependent upon her for accommodation earlier in his life. Any obligation, or responsibility, otherwise, was that naturally arising from her parental relationship to him.
No obligation, or responsibility, was assumed towards her daughters. Neither Jennifer, Lisa nor Tracey was financially dependant upon the deceased at the time of her death.

I have dealt with this earlier in this judgment. On any view, the deceased's estate is a modest one.

There is no relevant notional estate.

I have dealt with the Plaintiff's financial and material circumstances earlier.

It was, initially, submitted on behalf of the Plaintiff that:

(a) She needed a home, but it is unlikely that she could obtain sufficient funds from this estate for a home having regard to the number of claims against the estate. She needs funds to supplement her income and pay for expenses.

(b) She seeks the security of her own home which would cost about $260,000 for minimal accommodation in the area.

(c) The Plaintiff is the only eligible person who does not have her own stable home.

(d) She needed a motor vehicle, which is necessary in the country areas where there is little public transport. (Another reason was that Alexandra has asthma and needs to be taken to hospital and a taxi costs $25.)

(e) She is responsible for her son's knee operation and she owes $10,000 to her son's father's family for that operation.

(f) She needs dental treatment and spectacles and treatment for skin cancers.

(g) She needs a sum for contingencies for her own health and for her general enjoyment of life and to supplement her meagre income from Centrelink.

(h) She is most unlikely to be employable.

It was, initially, submitted that the Plaintiff should receive a lump sum in excess of $260,000. However, during submissions, Counsel for the Plaintiff proposed that a lump sum, calculated by reference to the purchase price of a car, and some moneys for contingencies, would be adequate and proper in all the circumstances. It was accepted that the estate was not large enough to enable provision of sufficient funds to enable the Plaintiff to purchase a home. This concession was an obvious and proper one.

The Defendant submitted that the Plaintiff's claim should be dismissed, but that if I were to find that some provision ought to be made for her, then she should receive a lump sum of $40,000. If this amount were ordered to be paid, the Defendant, Jennifer, Lisa and Tracey agreed that the burden of that provision should be borne by the Defendant. If the provision were greater, then the Court should determine how the balance of that provision, above $40,000 should be borne.

The financial and material circumstances of the Defendant are as follows:

(a) He owns a property at Gymea, which is unencumbered.

(b) All his children are adults, although one daughter is financially dependent, as she is about to attend university. He has a daughter, from another relationship, to whom he also provides financial assistance.

(c) There is no evidence of the amount he received from the redundancy payment from Sydney Airport Corporation November 2008.

(d) His wife, Roberta, works full time.

(e) He is employed as a driver/courier earning $650 per week.

(f) He is aged 60 years.

(g) Pursuant to terms of the Will he is entitled to 40% and one quarter of the balance, in total, 55%, of the estate. It is clear from the evidence that, prior to the death of the deceased, it was her intention that the Defendant should receive an extra $50,000 from the estate to compensate him for the work done and any money spent on the creation of a separate unit on the property at Chifley.

The financial and material circumstances of each of the other beneficiaries is as follows:

Jennifer

(a) She is aged 55 years.

(b) She owns her own home which is unencumbered. She has $20,000 in superannuation and personal effects ($10,000). She receives a Newstart allowance. She works occasionally as an upholsterer.

(d) Pursuant to the terms of the Will, she receives 15% of the estate.

Lisa

(a) She is aged 48.

(b) She has worked as a teacher's aide for Education Queensland for nearly 25 years. She also assists her partner in writing up his business books but receives no remuneration for doing so. She is also an artist who undertakes commission work.

(c) She lives with her partner on an unencumbered 25 acre property, which he inherited. Their combined income is about $46,000 per annum. Their expenditure is said to be about $700 per week. They have no financial dependants.

(d) Pursuant to the terms of the Will, she receives 15% of the Estate.

Tracey

(a) She is aged 47.

She has been a public housing tenant for 23 years.

She lives in a relationship with the father of her youngest child, Matthew, who is aged 4. He earns about $35,000 per annum.

(d) She has four children who are adults, all of whom live with her. Three of these children have health issues.

(e) Pursuant to the terms of the Will, she receives 15% of the estate.

It can be seen that none of the daughters of the deceased is particularly well off, although, as submitted, each lives in accommodation that appears to be secure. Each of them has the support of a partner.

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

There is no evidence that the Plaintiff is co-habiting with any other person.

There has been some evidence of the medical condition of the Plaintiff. She is, generally, in good health but has had a primary melanoma and a number of other skin cancers removed. For this reason, she requires ongoing check-ups with a dermatologist.

The Defendant, as a result of the brain aneurysm suffered, has some continuing problems of memory loss and memory unreliability. He has hypertension, an irregular heartbeat, inflammation of the kidney, and gout. He hopes to continue to work until the age of 65 years.

Jennifer has some health problems, including some problems with her knee, neck and elbow.

Lisa suffers from Meniere's syndrome; she has some hearing problems as well as some problems with her neck, back and pelvis. She has been having counselling following the death of each of her parents. She takes some medication to alleviate depression. She has some dental problems.

Tracey has suffered with scoliosis since she was 12 years old, which has led to skeletal problems. She suffers a range of other medical problems, including anxiety depression disorder, for which she takes anti-depressants. She has some dental problems.

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

The Plaintiff is presently 61 years of age. She was born in May 1949.

The Plaintiff does not assert any contributions, financial or otherwise.

(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

The deceased made no provision, during her lifetime, for the Plaintiff. The Plaintiff receives a legacy of $10,000 under the deceased's Will.

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

There is some evidence of the testamentary intentions of the deceased other than her Will. I have referred to the documents written by the deceased earlier.

Lisa gave evidence that, in 2008, the deceased told her that she had seen a solicitor to prepare the Will. The deceased was said to have explained why she did not want the Plaintiff to receive anything from her estate, but was advised, by the solicitor, to provide a legacy of $10,000 for the Plaintiff, and a letter explaining the reason for this. The deceased said that both she and her husband did not want the Plaintiff to receive anything "because of the way she treated us". (The substance of this evidence was confirmed in an affidavit sworn by Jennifer, who was not cross-examined.)

Because of this evidence, the comment, made in some other cases, that the deceased having made some provision by her, or his, Will, for the Plaintiff, provides an acknowledgment by him, or her, that there was an ongoing relationship between them ( Foley v Ellis per Basten JA at [31]), does not assist the Plaintiff in this case.

(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

There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before her death.

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

Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff.

There was evidence by the Plaintiff that her son has offered to assist her financially, now that he is working. However, whilst he may assist her in the future, he is not liable to do so.

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

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

There was much evidence on this topic. As stated previously, it is relevant to the determination of both stages of the determination. I have dealt with that conduct.

There is nothing in the character of the Plaintiff that is relevant. The fact that she has spent her professional life assisting others who are less fortunate is a credit to her.

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

It was not suggested that the deceased's relationship with the Defendant, or with her other children, had, in any way, broken down. Each is a chosen object of the deceased's testamentary beneficence. The Defendant and the other children of the deceased had a very close relationship with her.

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

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

There are no other matters that I consider relevant. Neither party suggested any.

Determination

There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(b) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application.

As the Plaintiff's proceedings have been 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.

I have set out the provision made for the Plaintiff in the deceased's Will. Judged by quantum and looked at through the prism of her financial and material circumstances, 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.

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, are very relevant factors in determining the answer at the first stage.

Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for the Plaintiff. Accordingly, the Plaintiff fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the Plaintiff's proceedings.

However, even if I were wrong in coming to that conclusion, the same considerations, which I summarise below, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made.

Unlike many other cases, the precise reasons for the state of the relationship between the Plaintiff and the deceased have not been made clear in this case. There is no evidence of any conduct, on the part of the deceased, that led to the Plaintiff acting as she did for so many years prior to the death of the deceased.

There is a suggestion that the nature of the estrangement was one arising from the Plaintiff's insecurity. However, the deceased actually being troubled by the Plaintiff's sexuality seems unlikely, since it has not even been established that the deceased was aware of it. Certainly, the Plaintiff's sexuality does not appear to have been the subject of discussion within the family. None of the other children of the deceased put it forward as a cause of the breakdown of the relationship. That it was not even the subject of any conversation between them, suggests that it did not have the significance attributed to it by the Plaintiff.

The relationship of each of the other siblings with the Plaintiff continued, as did the relationship of each with the deceased. This also suggests, since it was not discussed by any of them, that it was not an issue within the family.

Thus, this is not a case where the estrangement was entirely caused, or sustained, by the unreasonable conduct, or attitudes, of the deceased. In such a case, the estrangement alone may not amount to conduct on the part of the Plaintiff that disentitles her to an order for provision. I remember also, that, ultimately, the important matter is not who is at fault or who is to blame.

Neither is this a case where the estrangement was of short duration; nor is it one where there appears to have been a rupture to an otherwise long and loving relationship. The alienation of the deceased by the Plaintiff existed for a long period - in fact for more than half of the Plaintiff's life.

Respectfully, I concur with, and repeat, the view expressed by Bergin CJ in Eq, in Ford v Simes at [71], that it is essential for the maintenance of the integrity of the process, in these types of applications, that this court acknowledges the entitlement of a deceased person, in certain circumstances, to make no (or in this case, virtually no) provision for an adult child. This is particularly so in respect of a child who withholds, without proper justification, her, or his, support and love, from that parent over many years.

There are cases in which the estrangement is such that the deceased is entitled, without interference by the court, to make little, if any, provision for an estranged child. This is particularly so, if the period of estrangement is long; the estate is not large and there are competing claims on the bounty of the deceased. Regrettably, this is such a case.

In reaching this conclusion, I have not forgotten that there is an inter-relationship between the conduct said to disentitle an applicant to relief and the strength of the need for provision out of the deceased's estate. It has been said that the stronger the applicant's case for relief, the more reprehensible must have been that person's conduct to disentitle them to the benefit of any provision: Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 156 per Gibbs J.

The deceased spent more than 35 years of her life without any emotional, or other, support or assistance, from, or even acknowledgement by, the Plaintiff. During the whole of this period, apart from two occasions, there was no communication between them. The deceased lived a major part of her life without the benefit of the love and support of a child whom she had nurtured and assisted during her formative years. The Plaintiff rejected the encouragement of others to communicate with the deceased. In this respect, it seems that the estrangement was self-imposed by the Plaintiff and, on the evidence, appears to have been unjustified.

The fracture of the relationship did not occur in recent times. It was not temporary but long standing. It does not appear to have been brought about by a specific incident. There was no vitriol on either side. No suggestion of unreasonable conduct on the part of the deceased is advanced.

Also, this is not a case, unlike some, in which an applicant for provision, prior to the estrangement, made personal, or financial, sacrifices in caring for the deceased during her life, or in contributing to the estate. On the contrary, the Plaintiff many years ago, completely and unequivocally severed ties with the deceased. As the Plaintiff herself said, "the relationship petered out ... sort of ..." and, thereafter the Plaintiff "pursued her own life and career" to the exclusion of the deceased.

In my view, by withholding love and support, and by her almost complete rejection of the deceased, the Plaintiff abandoned and forfeited any moral claim on the deceased.

I dismiss the Plaintiff's claim. I shall hear the parties on costs.

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Amendments

08 Mar 2011 Typographical error Paragraphs: 108

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