Faulkner v McLeod [2011] NSWSC 92 (2 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	Faulkner v McLeod
Medium Neutral Citation:	[2011] NSWSC 92
Hearing Date(s):	16 February 2011
Decision Date:	02 March 2011
Jurisdiction:
Before:	Hallen AsJ
Decision:	In lieu of the provision made in the Will, order that the Plaintiff receive a lump sum of $170,000 out of the estate of the deceased; the lump sum should be paid within 28 days out of the estate passing to the Defendant, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment; order that the Plaintiff's costs, calculated on the ordinary basis, be paid out of the estate; and the Defendant's costs calculated on the indemnity basis be paid out of the estate of the deceased; the exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules.
Catchwords:	Succession - Family provision order sought by daughter of the deceased
Legislation Cited:	Evidence Act 1995 Family Provision Act 1982 Probate and Administration Act 1898 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Carey v Robson; Nicholls v Robson [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 Fiorentini v O'Neill [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 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 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 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Vigolo v Bostin [2005] HCA 11 Walker v Walker (NSWSC, 17 May 1996, unreported)
Texts Cited:
Category:	Principal judgment
Parties:	Anne Veronica Faulkner (Plaintiff) Margaret Ruby McLeod (Defendant)
Representation
- Counsel:	Counsel: Mr J Armfield (Plaintiff) Mr L Ellison SC (Defendant)
- Solicitors:	Solicitors: JNT Legal (Plaintiff) Hancock Alldis & Roskov (Defendant)
File number(s):	2010/105557
Publication Restriction:

Judgment

The Application

1. HIS HONOUR : Anne Veronica Faulkner ("the Plaintiff"), who is a daughter of John Douglas McLeod ("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 Summons filed on 29 April 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).
   
3. The Defendant named in the Summons is Margaret Ruby McLeod, to whom administration with the will annexed, was granted, the executor appointed in the Will of the deceased having renounced probate. The Defendant, too, is a daughter of the deceased.
   
4. There is no question, in the present case, of any provision being sought out of notional estate of the deceased.
   

Background Facts

5. The following facts are uncontroversial.
   
6. The deceased died on 28 January 2010. He was then aged 87 years.
   
7. The deceased left a Will that he made on 5 September 2006, administration of which was granted, on 3 May 2010, by the Supreme Court of New South Wales, to the Defendant.
   
8. The deceased's Will, relevantly, provided:
   
   • (a) a legacy of $5,000 to the Plaintiff;
     
   • (b) a legacy of $5,000 to Cheryl Joan Wadick, another daughter of the deceased;
     
   • (c) a legacy of $400 to each of the deceased's six grandchildren;
     
   • (d) the rest and residue of the estate to the Defendant absolutely.
     
9. 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 $724,809. Liabilities of $14,558 were disclosed. The estate was said to consist of real property at Sans Souci ($630,000), money on deposit ($85,118), and shares ($9,690).
   
10. In an affidavit sworn by the Defendant on 19 January 2011, the value of the Sans Souci property was said to be $770,000 (although there was a dispute about this value), the monies held in bank totalled $91,712, and the value of the shares was about $9,388. There was additional cash of $95,000. Some expenses had been paid out of the estate. The gross distributable value of the estate was estimated to be about $956,712.
    
11. At the hearing, the parties agreed that the value of the Sans Souci property was $812,500. Using the other amounts disclosed in the Defendant's affidavit, the gross distributable value of the estate was, therefore, estimated to be about $1,008,600.
    
12. During the course of the hearing, however, an issue arose as to amounts of cash that were in the deceased's home at various times and what had happened to that cash, or at least a part of it. I shall return to that issue later.
    
13. 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 her costs be paid out of the estate.
    
14. The Plaintiff's costs and disbursements of the proceedings, calculated on the indemnity basis, have been estimated to be in the order of $31,000 (inclusive of GST and upon the basis of a one day hearing). The costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, are said to be $25,178.
    
15. 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), have been estimated to be no more than $45,000.
    
16. Subject to any finding I make about other cash amounts that should have been included in the estate, and using the estimates of costs, the parties accept that, for the purposes of the hearing, I should determine the Plaintiff's application upon the basis that the actual net distributable estate, after the payment of such costs as are ordered to be paid out of the estate, will be about $938,000.
    
17. The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, the Defendant and Ms Wadick, who are the children of the deceased. (There is no dispute that the wife of the deceased predeceased him.) Each of those persons participated in the hearing. An affidavit sworn by Ms Wadick was filed on the morning of the hearing and she was cross-examined by Mr Ellison SC for the Defendant. It is not intended to interfere with the legacy of $5,000 to her in the deceased's Will.
    
18. A notice appears to have been sent by the Defendant's solicitors to the Plaintiff's solicitors, for service upon each of the grandchildren of the deceased and upon Ms Wadick. (Each of the grandchildren is either a child of the Plaintiff or of Ms Wadick.)
    
19. I accept that all but one of the grandchildren was provided with the notice and all, otherwise, have been made aware of the proceedings. I was informed that five out of the six grandchildren were present in Court. I was also informed, from the Bar Table, that none of the grandchildren wish to make any claim under the Act. In view of the fact that none is an eligible person in any event, and since it is not sought to interfere with the legacy payable to each of them, to the extent necessary, I dispense with further service of the notice upon each of them.
    
20. Only the Plaintiff has commenced proceedings under the Act.
    

The Statutory Scheme - The Act

21. I shall discuss the statutory scheme that is relevant to the facts of the present case.
    
22. 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."

23. 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.
    
24. 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 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.
    
25. 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.
    
26. 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.
    
27. 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".
    
28. 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).
    
29. 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.
    
30. "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".
    
31. 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."

32. 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."

33. 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."

34. 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.
    
35. 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."

36. 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."

37. In Goodman v Windeyer (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."

38. 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."

39. 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.
    
40. 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).
    
41. 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."

42. 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]."

43. 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.
    
44. 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.
    
45. 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."

46. 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.
    
47. 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.
    
48. 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).
    
49. 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.
    
50. 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."

51. 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."

52. 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:
    
    • (i) 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
      
    • (ii) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.
      
53. Section 65(1) of the Act requires the family provision order to specify:
    
    • (iii) the person or persons for whom provision is to be made; and
      
    • (iv) the amount and nature of the provision; and
      
    • (v) 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
      
    • (vi) any conditions, restrictions or limitations imposed by the court.
      
54. 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).
    
55. The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his 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).
    
56. 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).
    
57. Section 66 of the Act sets out the consequential and ancillary orders that may be made.
    
58. 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).
    

Additional Legal Principles

59. 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 stated in the context of the former Act, they are equally apt in a claim such as this one.
    
60. 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 testator'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.
    
61. 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".
    
62. 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.
    
63. 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.
    
64. 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 he, or she, 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 their retirement, something to assist in retirement where otherwise they 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; Nicholls v Robson [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 ; 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.

Credibility of Witnesses

65. I am satisfied that, generally, there were not many facts seriously in dispute between the parties.
    
66. Mr Ellison SC submitted that the Plaintiff had not been entirely been frank about her expenditure. He pointed to the fact that she disclosed an estimated expenditure on her front door and security door of $4,500. He also said that how she had spent the proceeds of her superannuation, withdrawn in August 2010, had not been properly disclosed.
    
67. Whilst the costs of the front door and the security door may seem high, and whilst the evidence of how she had expended the proceeds of her superannuation was a little confused, I am prepared to accept the evidence that she gave in both respects was truthful. In particular, I accept that she used the superannuation proceeds to reduce the debts that she had and that she incurred additional credit card debts associated with the repairs she then had to effect on her home.
    
68. Overall, I found the Plaintiff to be a frank and forthright witness. I found that she gave her evidence, particularly, about the Defendant's role in the life of the deceased without prevarication, accepting that the Defendant had done what she could as the "main carer" of the deceased. She acknowledged that while the Defendant lived at their parents' house, she had a lot more contact with, and did a lot more for, them than she did.
    
69. She also acknowledged that, whilst "everyone knew [the deceased] had a lot of cash in the house", there had been no conversation with the deceased about cash in envelopes, or the distribution of that cash equally to his three children.
    
70. When asked about any financial assistance provided to her own children, the Plaintiff candidly admitted that she did not seek assistance from either, although, as a result, she is struggling with her expenditure exceeding her income by nearly $120 per week. She also admitted that she spent about $60 per week on cigarettes. Perhaps, that led her to make an equally candid acknowledgement that she "was living beyond her means". That would not be very hard to do if one's income was limited, as the Plaintiff's is, to a disability pension. She even stated that she had made an attempt to reduce her expenditure.
    
71. I found Ms Wadick to be a witness whose evidence I accept unreservedly. To the extent that there is any conflict between her evidence and the evidence of the Defendant, I accept Ms Wadick's evidence. I come to this view not only because of Ms Wadick's demeanour in the witness box, but also because no reason why she would enter the witness box to give untruthful evidence was suggested. Furthermore, Ms Wadick is not making any claim for provision out of the estate. Finally, it was not suggested to Ms Wadick that she was attempting to assist the Plaintiff in her claim, or that she held any dislike of the Defendant, which dislike might provide a motive for giving false, or inaccurate, evidence.
    
72. Having heard and seen Ms Wadick, I am satisfied that there was a conversation that she had with the deceased about a large amount of cash in the deceased's home, which was to be divided between the three children of the deceased. I am also satisfied that the deceased showed her three envelopes containing what appeared to be a large amount of cash.
    
73. I am fortified in reaching this conclusion by the fact that the Defendant has disclosed cash in the estate of $95,000 and that she also referred to being shown a number of envelopes by the deceased, albeit at a different time, the contents of which envelopes she counted to be $167,000.
    
74. However, as Mr Ellison SC submitted, the finding that I have made about the conversation may not take the determination of the Plaintiff's case very far. However, I am required to consider whether I should accept the Defendant's evidence that the deceased did not have a similar conversation with her.
    
75. I was not impressed with the Defendant as a witness. She conceded that she had not disclosed, in a number of affidavits that were read in the proceedings (as well as in the affidavit of administrator filed in support of her application to obtain letters of administration with the Will annexed), the precise amounts that she knew, or that she had found, in the deceased's home.
    
76. Her explanation for the omission to include the accurate information was that the deceased had told her not to disclose the amounts of cash. That explanation does not justify her omission to disclose fully and accurately the nature and value of the deceased's estate.
    
77. Furthermore, her evidence about the amounts that she found in the deceased's home was confused. How the cash that she did find in the house had been spent was more vague and unconvincing. A notice to produce had been served upon her, which required the production of "all documents in relation to ... the expenses and repairs to the Sans Souci property". Only a few documents were produced and the total of the expenses disclosed thereon was inconsequential, although the Defendant gave oral evidence that other amounts, paid in cash, for the repairs and maintenance of the Sans Souci property had been made.
    
78. The Defendant accepted that, subject to any payments made in cash to the nursing home where the deceased had spent the last months of his life, she had not produced any documents, or provided any explanation, that accounted for about $60,000.
    
79. It must not be forgotten that the Defendant is the administrator of the deceased's estate and was duty bound to provide to the court, and to the Plaintiff, precise details of the nature and value of the deceased's estate at the date of death and at the hearing: Fiorentini v O'Neill [1998] NSWCA 79. That obligation would include, in this case, how cash held by the deceased had been spent by the Defendant before the hearing of the proceedings.
    
80. I should point out that when the suggestion was made, in cross-examination, that the Defendant had given false evidence in the affidavits, an objection was taken to answering the question upon the basis that her evidence might incriminate her. No application for a certificate under s 128 Evidence Act 1995 was made, so the matter did not proceed further. I do not draw any inference from the reliance on her legal rights in this regard.
    

Relevant Facts

81. 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

82. The Plaintiff is the daughter of the deceased. There is nothing to suggest that their relationship was not happy, loving or harmonious. She states, and I accept, that she visited her parents, regularly, and that she took them on outings, shopping and to doctor's appointments. I am satisfied that the Plaintiff was a loving daughter to the deceased.
    
83. Mr Ellison SC accepted that the relationship between the Plaintiff and the deceased was a close and loving one. This was hardly surprising bearing in mind the answers given in cross-examination by the Defendant. He also accepted that there was no conduct of the Plaintiff that would disentitle her to provision.
    

(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

84. 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 him by statute or common law.
    
85. However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is recognised in the case of a child.
    
86. The deceased adopted the Defendant at the age of six months. She lived with her parents then until, as an adult, she travelled abroad at various times, although when she did return to Australia, she stayed with her parents. For example, she says that she lived with them in the Sans Souci property between 1985 and 1991, between 1994 and 1998, 2003 and 2004. She returned to live in the Sans Souci property following the death of her mother in November 2006 and has lived there since that time. She was the primary carer of the deceased from then until he was hospitalised in August 2009.
    
87. The deceased did assume some obligation, and responsibility, towards the Defendant, even though she was an adult and in employment. She was dependent upon him at the time of her death for accommodation as he was to her for the care she provided. Any obligation, or responsibility, otherwise, was that naturally arising from his parental relationship to her.
    

(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

88. I have dealt with this earlier in this judgment. On any view, the deceased's estate is not a large one.
    
89. There is no relevant notional estate.
    

(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

90. The Plaintiff is a qualified Medication Endorsed Enrolled Nurse and she is trained as a "Scrub/Scout in general theatres". She previously worked as a nurse, although, currently, she is not employed. She has really not worked at all since Christmas 2009. She does not consider that she will be able to comply with the continuing educational requirements to enable her to continue to be registered as a nurse, although she can register herself as "non-performing". She says that so long as she continues to suffer from depression, she will be unable to work.
    
91. The Plaintiff receives a disability support pension of $358 per week. Although two of her children live with her, one full time, she says that she receives no regular financial assistance from either, although each of her children works. On occasions, each might provide some food or household requirements, but this appears to be rare. The Plaintiff accepts that she has not sought any financial assistance from either of them.
    
92. The Plaintiff estimated her weekly expenditure at about $477. This includes the costs of cigarettes (about $60 per week.) She states that she uses her credit cards to meet the surplus of expenditure (almost $119 per week).
    
93. The assets, as at January 2011, that the Plaintiff has, are a town house at Engadine ($537,500), a car ($12,000) and household contents ($5,000). She has no superannuation (having obtained access to $23,288, which she used to pay off credit card debts, effect repairs to her home and purchase a lounge suite) and no moneys in bank. She has liabilities being credit card debts ($3,700), a HECS debt ($4,006) and legal costs of the proceedings ($31,300). (The HECS debt does not have to be repaid so long as the Plaintiff is unemployed, although it can be repaid if there were sufficient funds to enable her to do so. Furthermore, it is only any difference between indemnity costs and ordinary costs for which the Plaintiff will be liable if she is successful in the proceedings.)
    
94. The Plaintiff says that:
    
    • (f) her home requires urgent repair, the costs of which are estimated to be $18,500;
      
    • (g) she requires a fund to enable her to pay off her debts ($7,706); the difference between costs calculated on the indemnity basis and costs calculated on the ordinary basis, of this claim which is about $7,000) is an amount she will also have to bear;
      
    • (h) costs of ongoing physiotherapy and medication;
      
    • (i) a capital sum for exigencies of life.
      
95. It has been submitted that the Plaintiff should receive a lump sum of $250,000. This submission relies, at least by way of a suggested guide, on calculations of life expectancy and discount tables. It is submitted that the Plaintiff has a life expectancy of 30.38 years. Applying the 3% tables, she would require a capital sum of $125,991 to fund the deficiency of income. To this sum should be added a capital sum of $29,128 to pay for physiotherapy. When one adds the debts ($7,706), the costs of repairs to her home ($18,325), and an amount for contingencies, one arrives at the amount claimed.
    
96. The Defendant has assets, including an apartment at Darlinghurst ($157,000), superannuation ($99,613), and cash and moneys in various financial institutions on deposit ($18,345). Her only liability is a debt secured on the Darlinghurst apartment ($68,951). Of course, subject to any order for provision made under the Act, she has an entitlement to the bulk of the deceased's estate.
    
97. In an affidavit filed in August 2010, the Defendant discloses her annual income, which is said to consist of wages earned in employment ($19,890) and rental income from the Darlinghurst apartment ($9,168). She discloses her total annual outgoings of about $22,030. Accordingly, she has a surplus of income of about $7,000 per year.
    
98. The Defendant says that she would like to remain living in the Sans Souci property as it has been her home for most of her life and because she has many ties in the area.
    

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

99. The Plaintiff is co-habiting with her two daughters, one of whom stays with her only for part of the time. There is no evidence of the income of either of the Plaintiff's daughters.
    
100. I am unable to conclude, from the evidence of the Plaintiff, why one, or both, of her daughters, does not, assist the Plaintiff to meet some of the expenses of the household. It is unlikely, even if one was repaying a debt for her car, that she could not contribute a modest amount to assist the Plaintiff.
     
101. There is no evidence about how long, one, or both, of the Plaintiff's children intend to continue with the present living arrangements.
     

(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

102. There has been some evidence of the medical condition of the Plaintiff. She says that she suffers from depression, chronic back pain, for which she undertakes physiotherapy, asthma, diabetes and hypertension. She previously had a hiatus hernia for which she underwent an operation in May 2009. She describes her health as "overall, poor".
     
103. The Defendant says that she suffers from "major depression", hypertension, eczema, dermatitis of the hands, and hypercholesterolaemia. The prognosis for each of these conditions appears to be good.
     
104. The Defendant was, in December 2010, seeing a cardiologist for the investigation of chest pains. There is no evidence of a diagnosis or prognosis of this condition.
     

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

105. The Plaintiff is presently 58 years of age.
     

(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

106. The Plaintiff does not identify any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased.
     
107. In relation to the welfare of the deceased, the Plaintiff says, and I accept, that she cared for her parents whilst the Defendant was overseas, performing what she describes as "daughterly duties". She says that with her sister, Ms Wadick, she assisted her parents "whenever we could". They would spend time together often and regularly even after the Defendant returned to Sydney.
     
108. In her affidavit, Ms Wadick corroborates the Plaintiff's contributions to the welfare of the deceased. She states that the Plaintiff was "a loving daughter". I accept this evidence.
     
109. The Defendant does not dispute that description of the Plaintiff although Mr Ellison SC did ask her some questions about the regularity of her contact with the deceased.
     
110. It has not been submitted that the Plaintiff received adequate consideration (not including any pension or other benefit) for what she did.
     

(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

111. The deceased made no specific provision, during her lifetime for the Plaintiff. She receives a legacy of $5,000 under the deceased's Will. The amount of cash for the benefit of each of the daughters that I have found the deceased told Ms Wadick about has not been paid to the Plaintiff.
     

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

112. There is some evidence of the testamentary intentions of the deceased other than his Will, administration of which was granted. The Plaintiff says that she was told by the deceased that "my estate is to be split 3 ways". However, in cross-examination, the Plaintiff stated that any conversation of this kind occurred many years ago, in the 1970's and was not repeated subsequently.
     
113. The Will of the deceased expressly provides that "I have left the rest and residue of my estate to my daughter ... as she has not had the opportunity to acquire assets to the extent of assets acquired by my other two daughters".
     
114. The Will also provides that, in the event that the Defendant did not survive the deceased, the Plaintiff was to be the substitute residuary beneficiary. This suggests that the deceased regarded the Plaintiff as a suitable object of testamentary bounty.
     
115. There is an earlier will of the deceased, made in October 1999, in which small legacies are provided to the Plaintiff, to Ms Wadick and to grandchildren. In the event that the deceased's wife did not survive him, the residue of the estate was left to the Defendant.
     

(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

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

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

117. 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.
     

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

118. The Act does not limit the consideration of "conduct" to conduct towards the deceased.
     
119. There was not very much evidence on this topic other than in respect of matters dealt with already. The Defendant did not suggest any conduct towards the deceased of the type that might disentitle the Plaintiff to relief under the Act.
     
120. The conduct of the Plaintiff towards the Defendant does not seem to me to be helpful in the determination of the issues. To their credit, the parties were not critical of each other so far as the relationship of each with the deceased was concerned.
     

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

121. It was not suggested that the relationship with the Defendant had, in any way broken down. She is a chosen object of the deceased's testamentary beneficence. She had a very close relationship with the deceased. The Plaintiff described her as the deceased's "main carer".
     
122. The criticism made by the Plaintiff of the Defendant is that she tried to control the deceased after she moved into the Sans Souci property. She says that the Defendant made her and Ms Wadick "feel unwelcome". That might have been so, but I do not think it is relevant to my considerations.
     

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

123. 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

124. There are no other matters that I consider relevant.
     

Determination

125. 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.
     
126. 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.
     
127. I have set out the provision made for the Plaintiff in the deceased's Will. That adequate provision for the proper maintenance or advancement in life of the Plaintiff 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, is clear. Accordingly, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold. There was no dispute that this finding should be made. In fact, Mr Ellison SC, at the conclusion of the evidence acknowledged that the provision made for the Plaintiff was not adequate and proper.
     
128. It is necessary, then, to consider whether to make a family provision order and the nature of any such order.
     
129. I have set out what the Plaintiff seeks, in lieu of the provision made in the deceased's Will, and how it is calculated. The Defendant submits that she should receive a lump sum of $75,000, plus her estimated costs, calculated on the ordinary basis, of $25,000.
     
130. Mr Ellison SC cross-examined the Plaintiff on a number of items of proposed expenditure. He challenged the estimate of $4,500 for a front door and security door and the need for air-conditioning to be installed in the Plaintiff's bedroom, at a cost of about $4,000. He did this, presumably, in order to reduce the estimate of the amount the Plaintiff said she required to complete repairs on her home.
     
131. In my view, these hardly constitute luxuries and I regard each as providing some degree of security, or comfort, to the Plaintiff, who, so it appears, does not live an extravagant lifestyle.
     
132. In my view, the Plaintiff should receive a lump sum to enable her to pay off her debts (including the HECS debt), to pay for the repairs that she says that are required to be done on her home, and to provide her with a lump sum for exigencies of life. She has no superannuation or other lump sum available. In calculating that lump sum, I remember that freedom of testation is an important right. I also remember that the Defendant has expressed a not unreasonable desire to remain living in the Sans Souci property.
     
133. I should deal briefly with the reliance by the Plaintiff on life tables. In Tchadovitch v Tchadovitch [2010] NSWCA 316, Campbell JA commented at [73]-[74] (Allsop P agreeing at [1]-[5] and Young JA agreeing at [94]):
     

"73 I would not want my finding that it was within the discretion of the trial judge in the present case to take into account the expert evidence, to be taken as encouragement for parties in Family Provision Act cases to provide expert evidence of the type that was provided here. Presumably it would be of little assistance in many such cases because the assets were insufficient to meet all claims. In the present case, a sufficient reason why the judge was justified in taking it into account was that both parties conducted the case on the basis that such evidence was appropriate for him to consider.

74 There is no issue before us concerning the admissibility of such reports, but such an issue might arise in future cases. It might arise at the level of whether the assumptions were adequately established, or at the level of whether a ground for exclusion under section 135 Evidence Act 1995 was made out. Alternatively, if admitted, a question might arise about whether cross-examination should be limited. There are some other matters of potential concern besides admissibility. One is that, many testators manage to write wills that make proper provision for their family without calling on an actuary or accountant to help them do so. When the Act enables the Court to make proper provision for eligible people when a testator has failed to do so, it is far from clear that the Court ought to do so using a type of factual material that a testator is unlikely to have used. Another is that it would be a matter of concern if the costs of Family Provision Act cases were increased through regular use of such reports. The effect of these matters can be left for future decision."

134. Mr Armfield acknowledged the force of the comments made and, ultimately, submitted that the calculations to which he had referred might be used as a guide for the ultimate conclusion on quantum. As Rein J said in Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431 at [88], the court should not treat a claim for a family provision order as if it were a personal injury claim.
     
135. Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I order that, in lieu of the provision made in the Will of the deceased for the Plaintiff, she is to receive out of the estate of the deceased, a lump sum of $170,000. The amount should constitute a charge on the Sans Souci property until such time as it is paid. The burden of the provision should be borne by the Defendant.
     
136. After the payment of the debts and other anticipated expenses, the Plaintiff should have a capital sum remaining, which amount will provide capital and some income for her to meet the shortfall of income over expenditure. The capital will provide for exigencies of life.
     
137. The payment of such an amount to the Plaintiff out of the estate should leave the Defendant with the ability to retain the Sans Souci property, even after the payment of the costs of the proceedings.
     
138. The lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment.
     
139. I order that the Plaintiff's costs, calculated on the ordinary basis, are to be paid out of the estate. I order that the Defendant's costs, calculated on the indemnity basis, are to be paid out of the estate.
     
140. Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules.
     

**********