Weekes v Barlow [2014] NSWSC 1776 (11 December 2014)

Last Updated: 16 December 2014

Supreme Court New South Wales

Case Title:	Weekes v Barlow
Medium Neutral Citation:	[2014] NSWSC 1776
Hearing Date(s):	1 December 2014
Decision Date:	11 December 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	See Paragraph [153] for form of proposed orders Stand the matter over for seven days to enable the parties to prepare a form of orders with which they agree or, alternatively, if they are unable to agree, to provide competing forms of orders. In the event that the parties agree upon the form of orders proposed, they should advise my Associate, in writing, within 7 days, following which the orders will be entered.
Catchwords:	SUCCESSION - FAMILY PROVISION - Plaintiff makes claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant is an adult child of the deceased by a prior marriage to whom administration of the deceased's Will granted (with the Plaintiff) - Some provision made in the Will of the deceased for the Plaintiff - Whether provision adequate and proper - Whether family provision order should be made and, if so, the nature and quantum of the provision to be made
Legislation Cited:	Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Anslow v Journeaux [2009] VSC 250 Belfield v Belfield [2012] NSWSC 416 Bladwell v Davis 2004] NSWCA 170 Boettcher v Driscoll [2014] SASC 86 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Chapple v Wilcox [2014] NSWCA 392 Clifford v Mayr [2010] NSWCA 6 Cooper v Dungan (1976) 50 ALJR 539 Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graham v Graham [2011] NSWSC 504 Grey v Harrison [1997] 2 VR 359 Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep) Lawrence v Martin [2014] NSWSC 1506 Luciano v Rosenblum (1985) 2 NSWLR 65 Marcuola-Bel Estate, Re; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 Marinis v Jeweller [2000] NSWCA 282 Marshall v Carruthers [2002] NSWCA 47 Matthews v Wear [2011] NSWSC 1145 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Moore v Moore (Supreme Court (NSW), Court of Appeal, 16 May 1984, unrep) O'Loughlin v O'Loughlin [2003] NSWCA 99 Palaganio v Mankarios [2011] NSWSC 61 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Meier (deceased) [1976] 1 NZLR 257 Richard v AXA Trustees Ltd [2000] VSC 341 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sellers v Scrivenger [2010] VSC 320 Sitch (deceased), Re the Will of; Gillies v Executors of the Will of Sitch [2005] VSC 308 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Verzar v Verzar [2012] NSWSC 1380 Vidler v Ivimey [2013] NSWSC 1605 Vigolo v Bostin [2005] HCA 11; 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v France [2010] NSWSC 845 White v Barron [1980] HCA 14 ; (1980) 144 CLR 431
Texts Cited:	Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5
Category:	Principal judgment
Parties:	Joy Margaret Weekes (Plaintiff) Judith Clare Barlow (Defendant)
Representation
- Counsel:	Counsel: Mr D C Price; Ms B Aniwell (Plaintiff) Mr M W E Maconachie (Defendant)
- Solicitors:	Solicitors: Hannigans Solicitors (Plaintiff) Russell J Baxter, Solicitor (Defendant)
File Number(s):	2014/153549

JUDGMENT

1. HIS HONOUR: By Summons filed on 21 May 2014, subsequently amended on 11 August 2014, the Plaintiff, Joy Margaret Weekes, seeks a family provision order, pursuant to s 59 of the Succession Act 2006 (NSW) (the "Act"), out of the estate of the late Dallas John Rhodes Nunn ("the deceased"). There is no dispute that she is a person with whom the deceased was living in a de facto relationship at the time of his death.

2. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person.

3. There was also a claim in the Summons, and in the amended Summons, seeking an extension of time for the making of the application by the Plaintiff. However, there is no dispute that the Summons was, in fact, filed within the time prescribed by the Act (within 12 months of the deceased's death).

4. Furthermore, despite the relief claimed in the Summons, there is no suggestion of any property to be designated as notional estate of the deceased. Accordingly, the claim is one for provision only out of the estate of the deceased.

5. The Defendant is Judith (also known as "Judy") Clare Barlow, a child of the deceased and one of the two executors of the deceased's Will to whom Probate was granted by this court. Because the Plaintiff is the other executor to whom Probate was granted on 30 August 2013, the Defendant is the only person representing the deceased's estate for the purpose of these proceedings.

6. Although a number of affidavits by the parties, and by each of the beneficiaries named in the deceased's Will, were read, there was no cross-examination of any deponent. This saved a significant amount of time at the hearing and enabled the matter to be completed within one day.

7. The deceased died on 27 May 2013. He was then aged 89 years, having been born in May 1924.

8. The deceased's Will, which was dated 3 July 2003, provided that the Plaintiff was to receive:

(a) Any motor vehicle or caravan owned by the deceased at the date of death (Clause 3);

(b) A legacy of $50,000 (Clause 4.1); and

(c) Household chattels in the residence owned by the deceased, excluding (relevantly) motor vehicles, jewellery, or other items of a personal nature (Clause 5.1).

9. The Will then provided for a "Fund", to be established, to be held on trust for the Plaintiff, for her life (Clauses 5.2 and 5.3). The Fund was to consist of "such residence" owned by the deceased at the date of his death, a sum of $20,000, assets added to the Fund, the proceeds of sale of any assets disposed of from the Fund, any assets purchased using the Fund, and "the sum placed in the Fund in accordance with paragraph 5.4(b) of this my Will".

10. Clause 5.4(b) of the Will, to which reference was made, referred to "a sum sufficient to cover debts charged on, or owing with respect to, the assets placed in the Fund."

11. The Fund was to be used to pay the rates, taxes and other outgoings in respect of assets in the Fund, the premiums on insurance policies on such assets, and the costs of keeping those assets in a reasonable state of repair (Clause 5.5).

12. Pursuant to Clause 5.6(g) of the Will, the Trustee "may ... from time to time pay or distribute, in such amounts and proportions as to them seems fit, income of the Fund to ... [the Plaintiff] or the residue of my estate".

13. Clause 5.8 and 5.9 of the Will provided:

"5.8 IT IS MY WISH that my trustee use their powers to ensure that my partner ... [the Plaintiff] is provided with comfortable and appropriate accommodation out of the assets which I have made available for that purpose. In doing so my trustee shall, as far as it is practical, consult with ... [the Plaintiff] and, so far as is consistent with the general interest of the Fund, give effect to her wishes.

5.9 ON THE DEATH of ... [the Plaintiff] the balance of the Fund shall form part of the residue of my estate"

14. The residue of the estate was divided into eight equal parts to be held, as to four parts, "for such of my ... daughters ... as shall survive me and if more than one in equal shares as tenants in common" and, as to four parts, "for such of the daughters of my deceased wife, Joanne Nunn, as shall survive me and if more than one in equal shares as tenants in common".

15. (In regard to the construction of the deceased's Will, I do not accept the Defendant's submission that the Fund is to be held on trust for the Plaintiff, for her life, if, by that, it is meant that the Plaintiff is entitled to income for her life absolutely. In my view, the distribution of income or capital is to be paid to her "in such amounts and proportions as to the Trustees seems fit". Accordingly, a discretion is to be exercised by the Trustees before any income or capital is to be paid the Plaintiff.)

16. The value of the deceased's estate, at the date of the grant of Probate, was estimated to be $686,364.

17. The parties agreed that, since then, the two legacies, one of $50,000 to the Plaintiff, and the other, $30,000 to the Defendant, have been paid out of the estate. They also agreed that, at the date of hearing, the value of the deceased's estate, which consists of only cash and shares, is $603,521. Of that amount, $382,809 constitutes the Fund (which amount is held in an interest bearing deposit) and $220,712, is the balance of the estate.

18. The parties agreed, also, in calculating the amounts set out above, that $14,106 has been paid to the Plaintiff on account of her living expenses, out of the Fund, and $4,031 has been paid on account of administration expenses, out of the balance of the estate.

19. 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 and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

20. The Plaintiff's solicitor, Mr F G Hannigan, estimated the Plaintiff's costs and disbursements, calculated on the ordinary basis, to be $46,368.

21. The Defendant's solicitor, Mr R J Baxter, estimated the Defendant's costs and disbursements, calculated on the indemnity basis, to be $25,537. (It is difficult to comprehend how the Plaintiff's costs and disbursements are so much more than those of the Defendant, bearing in mind the evidence that has been filed on behalf of each party.)

22. The parties agreed that the costs and disbursements of each party should be paid out of the balance of the estate, rather than out of the Fund, although there was no agreement on what the quantum of those costs will be. Whether the costs estimated are, ultimately, paid entirely, or only partially, by the estate, it is convenient, for the purposes of this judgment, to use the agreed estimated amount of costs. This will provide a guide in determining what will be available, in the estate, to meet the provision to be made for the Plaintiff and what will remain for the residuary beneficiaries named in the Will at the conclusion of the hearing.

23. The amount of $531,616 is agreed as the estimated distributable net value of the deceased's estate. It consists of cash ($495,616) and shares ($36,000). The Fund is estimated to be $382,809 and the balance of the estate is estimated to be $148,807.

24. At the hearing, the parties agreed that the only eligible persons are the Plaintiff and the four children of the deceased, namely, the Defendant, Lesley Frances McFadyen, Gillian Margaret Adrian and Deborah Kathleen Nunn. There are also four children of the deceased's second wife, Joanne Nunn, to whom reference was made in Clause 6(b) of the deceased's Will, who were, initially, said to be eligible persons, namely Robyn Mary Elizabeth Sumner, Kerrin Ann Cahill, Catriona Frances MacLeod and Virginia Ruth Jacobsen. However, there is no evidence that either of Robyn or Kerrin was, at any particular time, a member of the household of which the deceased was a member. There is some evidence, in an affidavit affirmed by the Defendant, that each of Catriona and Virginia, as children, lived with the deceased.

25. All of the children of the deceased and the former step-children, irrespective of whether they are eligible persons within the meaning of that term under the Act, are named as beneficiaries in the deceased's Will. Each has made at least one affidavit that was read by the Defendant in the proceedings.

26. (Although formal objection was taken to the reading of the affidavits of each of the beneficiaries going to her financial and material circumstances (other than the Defendant who did not swear an affidavit on these matters), I permitted the affidavits to be read. Counsel for the Plaintiff could not point to any prejudice suffered by the Plaintiff, since a summary of each beneficiary's circumstances had been provided, on information and belief, in an affidavit affirmed by the Defendant in late July 2014.)

27. None of the eligible persons, other than the Plaintiff, has made an application for a family provision order but each (except for the Defendant) has advanced her financial and material circumstances, as well as a moral claim, upon the bounty of the deceased. In relation to each beneficiary, the court is not entitled to disregard her interests. I shall return to the competing claim of each later in these reasons.

28. I should mention that, in addition to not raising her financial circumstances, the Defendant has disclaimed any further interest in the deceased's estate in favour of the other residuary beneficiaries. This will mean that the estate remaining, after the provision made in favour of the Plaintiff, will be divided into seven, rather than eight, equal shares.

29. Another fact that needs to be mentioned at the outset, relates to the inheritance, by survivorship, of a parcel of real estate by the deceased.

30. In the 1980's, the deceased lived with Joanne Nunn in a property at Terranora. An historical search of the title to that property identifies a Notice of Death registered in May 1990 pursuant to which title passed to the deceased. Other evidence reveals that Joanne died in 1989. Subsequently, in August 1996, the Terranora property was sold by the deceased. A copy of the Transfer, annexed to the Defendant's affidavit, records the deceased as the sole transferor. The Defendant affirms that she believes that the deceased and Joanne owned the property as joint tenants.

31. As a result, none of the children of the deceased's second wife received any share of their mother's interest in the Terranora property. Nor did any of them make a claim for provision out of the estate or notional estate of their mother, with the result that the whole of Joanne Nunn's interest as joint tenant in the Terranora property passed to the deceased.

32. There is no evidence about the value of the real estate at the date of its transmission to the deceased. However, the "consideration" recorded in the 1996 Transfer is $310,000.

33. There was some suggestion, by the Defendant, that other property, including monies in various accounts, was also jointly held by the deceased and Joanne, and that this property, also, passed, by survivorship, to the deceased. However, there is no evidence regarding the nature, or value, of that property.

34. The parties agreed that the only issue in the case is whether, at the time when the court is considering the Plaintiff's application, adequate provision for her proper maintenance or advancement in life has not been made by the Will of the deceased.

The Act

35. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases (see, for example, Lawrence v Martin [2014] NSWSC 1506), in view of the importance of this case to the parties, I shall repeat some of what I wrote in that case. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

36. The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1) (a)). Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1) (b) of the Act. There is no dispute that she is an eligible person or that she has the status to bring proceedings under the Act.

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

38. In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

39. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", 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, per Buss JA, at [72], [77], which seems to invite more subjective criteria.

40. These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

41. Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:

"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement 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."

42. 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."

43. In Vigolo v Bostin [2005] HCA 11; 221 CLR 191, 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 ... 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."

44. In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

45. His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210)."

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

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

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

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

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

47. "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."

48. In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added:

"'Need' is not so synonymous with 'want' such that the two are interchangeable."

49. Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, reference to words of the statute has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree.

50. As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

51. 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."

52. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

53. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

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

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

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

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

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

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

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

57. Any family provision order under the Act takes effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased (s 72(1) of the Act). (As earlier stated, intestacy is irrelevant in these proceedings.)

Other Applicable Legal Principles - Substantive Application

58. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

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

60. 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". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

61. 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, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].

62. In considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

63. As Allsop P said in Andrew v Andrew, at [16]:

"If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1) (c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."

64. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36].

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

66. The size of the estate is a significant consideration in determining an application for provision.

67. In relation to a claim for a family provision order by a person living in a de facto relationship with the deceased at the date of his, or her, death, the following principles are also relevant.

68. In Luciano v Rosenblum (1985) 2 NSWLR 65, at 69-70, Powell J (as his Honour then was), wrote:

"It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."

69. The "broad general rule" may be applicable to a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182, per Palmer J, at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6, at [142] - [144].

70. However, in Marshall v Carruthers, at [73] - [74], Young CJ in Eq (as his Honour then was), commented:

"It must be remembered that Powell J put his proposition as a 'broad general rule'. However, there is in fact no 'standard former spouse' to which one can just apply that proposition as a rule of thumb.

Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue."

71. In Bladwell v Davis [2004] NSWCA 170, Bryson JA, who had reviewed the authorities stated, at [19]:

"In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits."

72. Ipp JA added, at [2]:

"I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."

73. Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there also remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers at [63]; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320, at [68]; West v France [2010] NSWSC 845, at [66]; Vidler v Ivimey [2013] NSWSC 1605, at [125].

74. Ward J (as her Honour then was) referred to many of the authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added:

"Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: 'Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and 'regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts' (para 19)".

75. Where, after competing factors have been taken into account, and it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep).

76. Usually, but not always, a mere right of residence will be an unsatisfactory method of providing for a spouse's accommodation after the deceased's death. This is because the spouse may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the matrimonial residence. The spouse will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (Supreme Court (NSW), Court of Appeal, 16 May 1984, unrep), per Hutley JA, at 2; Golosky v Golosky [1993] NSWCA 111.

77. Concern as to the capacity of the applicant to maintain herself, independently and autonomously, may also bear upon the notion of what is proper provision: Richard v AXA Trustees Ltd [2000] VSC 341; Anslow v Journeaux [2009] VSC 250, at [43].

78. Generally speaking, the Act is not intended to facilitate improvements in the lot of the dependants of an elderly applicant for further provision. In White v Barron [1980] HCA 14; (1980) 144 CLR 431, Mason J wrote, at 444-445:

"Circumstances are infinite in their variety and orders must be moulded to the circumstances of the particular case in order to ensure that the provision which is made is adequate for the proper maintenance of the widow where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy."

79. In Foley v Ellis [2008] NSWCA 288, Sackville AJA, at [88], noted that Singer v Berghouse "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim".

80. The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the adequate provision of the applicant seeking provision.

Qualifications on "Principles"

81. As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

82. It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the myriad of facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar, at [131]:

"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

83. The importance of these qualifications has recently been emphasised in Chapple v Wilcox [2014] NSWCA 392, by Basten JA, at [18] - [20], and by Barrett JA, at [66] - [67].

Further Additional Facts

84. 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(2) of the Act.

85. As stated, the Plaintiff was living with the deceased in a de facto relationship, at the time of his death. They had met in April 1990 and formed a friendship. They began a relationship and moved in together a short time later.

86. The Defendant accepted, in the submissions filed on her behalf, that "[T]he Plaintiff and the deceased had a long and happy relationship. The Plaintiff made [a] significant contribution to the estate, and she is entitled to be provided for so as to live a comfortable life". Based upon the evidence that I have read, I respectfully agree.

87. Bearing in mind the duration of their relationship (about 23 years), the Plaintiff should be treated, to all intents and purposes, as the spouse of the deceased.

88. It was also accepted that, as the Plaintiff was living in a de facto relationship with the deceased at the time of his death, an obligation or responsibility to make adequate provision for her proper maintenance or advancement in life exists. The obligation or responsibility naturally arises from the de facto relationship.

89. In relation to his children, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life is recognised. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation that underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

90. In relation to his step-children, the parties agreed that a similar, but not identical, obligation or responsibility may arise. In this case, it has been put that the obligation arises because the former step-children did not receive any share of their mother's interest in real estate, which passed, by survivorship, to the deceased.

91. In comparing the respective obligations, Davies AJA, in O'Loughlin v O'Loughlin [2003] NSWCA 99, delivered the leading judgment and observed, at [20]:

"Courts give more attention to the needs of a widow than they do to the needs of the children, if the children are adult and well able to support themselves. This point was made clear by the remarks of Lord Romer in Bosch v Perpetual Trustee Company Limited which I have cited above. There are many dicta to the same effect."

92. The net value of the estate in this case is not large. It is estimated to be about $531,616.

93. I set out, now, the financial circumstances of the Plaintiff and of each of the beneficiaries.

94. The Plaintiff has disclosed that she has a total of $176,177, held in different bank accounts, or financial institutions, on deposit. She acknowledges that her income, from a Department of Veteran Affairs pension, is currently $2,675 per month. She did not disclose any interest paid on the funds held on deposit, but counsel for the Plaintiff accepted that I could assume that some interest (say $366 per month) (calculated at about 2.5 per cent per annum) would be received by her. Accordingly, I estimate her income to be about $3,000 per month.

95. I was informed, from the Bar table, by agreement, that the Plaintiff is the holder of a Gold Card, which is attached to her Department of Veteran Affairs pension. The Gold Card entitles the holder to funding for services for various health care needs and for various health conditions. Whilst counsel for the Plaintiff were not able to provide precise details of what is covered, they stated that it included medical consultations and procedures covered by the Medical Benefits Schedule (MBS), medical services and surgical procedures listed on the MBS in public and private hospitals and day surgery facilities, medical specialist services listed on the MBS, pharmaceutical benefits and medication reviews, which are at the Department of Veterans' Affairs' expense. There are limits that apply to some services and some treatments require prior financial authorisation. It was said that the Gold Card does not provide a complete indemnity for the costs of medical conditions and mishaps. The Gold Card is a valuable resource of the Plaintiff.

96. The Plaintiff calculated her expenditure to be about $3,500 per month, which suggests that she currently has a shortfall of income of about $500 per month or about $6,250 per year. Her monthly expenditure included, rent ($1,400), utilities, including water, telephone, gas and electricity ($372), food ($400), clothing ($100), entertainment ($600) and holidays ($625).

97. The parties agreed that the Plaintiff's life expectancy was 4.1 years. Using those figures, and the agreed life expectancy as a guide, and not applying the discount tables in the calculation of the capital sum required, the amount to meet the shortfall for the duration of the Plaintiff's life was calculated to be about $25,625.

98. The Plaintiff gave no specific evidence about her future plans. She gave no evidence about the costs of alternative accommodation of any description. Her evidence on this topic was limited to:

"If I am required to seek accommodation in a nursing home or other care facility, I anticipate that the costs of such accommodation would not be less than $3,000 plus GST per month.

I estimate that I need a fund of a further $200,000 to deal with any contingencies such as significant medical costs if I were to be injured."

99. How the sum estimated as being needed, in relation to accommodation costs and the capital sum, was calculated, was not disclosed. Nor, it would appear, did it take into account the benefits provided by the Gold Card to which I have earlier referred. During submissions, however, it was accepted that her Gold Card would provide some buffer in relation to the Plaintiff's medical costs and expenses that may arise in future.

100. At the hearing, I raised with counsel for the Plaintiff, and they agreed, that, were the Plaintiff to seek accommodation elsewhere, at least some of her present monthly expenses would no longer be payable, including rent and some utilities.

101. As earlier stated, the Defendant has not served any evidence about her financial and material circumstances. Thus, the court may assume that she does not wish her financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ.

102. In relation to each of the other named beneficiaries, the Defendant's counsel, in written submissions, provided a useful summary of the financial circumstances of each. Whilst parts of the summary were accepted, by the Plaintiff's counsel, to be accurate, some were disputed.

103. The following is taken from the affidavit evidence of the beneficiaries:

104. Lesley Frances McFadyen, a daughter of the deceased, is 66 years of age. She resides in Bateau Bay with her husband, Peter. Her weekly income, earned as an administrative assistant, is $1,388 (although, elsewhere, her income is disclosed as $3,799 per month, or $949 per week). Peter earns $450 per week (although, elsewhere, his income is disclosed as $1,586 per month, or $396 per week). Lesley's household expenditure was estimated to be $1,506 per week. Lesley has assets of $242,221, together with superannuation in the order of $129,000. She discloses liabilities of $204,149.

105. Gillian Margaret Adrian, a daughter of the deceased, is 64 years of age. She resides in Balgownie. Her weekly income, earned as an accounts clerk, is $873. She also receives a partial pension of $261 per week. Her weekly expenditure totals $920. Gillian has assets of $640,351, together with superannuation in the order of $253,495. She discloses negligible liabilities.

106. Deborah Kathleen Nunn, a daughter of the deceased, is 58 years of age. She lives in Seaforth, Sydney. Her weekly income, earned as a telephonist, is $1,046. She provided an itemised table of expenditure totalling $450 per week. She has assets of $939,830, together with superannuation in the order of $225,865. She did not disclose any liabilities.

107. Robyn Mary Elizabeth Sumner, a former step-daughter of the deceased, is 67 years of age. She is retired and has an income, in the form of dividends paid by her superannuation fund, of $1,125 per week. She lives with her husband, David, whose income of $1,125 per week, also made up of superannuation dividends. The household expenditure is approximately $1,616 per week. Robyn discloses assets of $1.25 million and liabilities of $376.

108. Kerrin Ann Cahill, a former step-daughter of the deceased, is 65 years of age. She resides in public housing in Woolloomooloo. Her income of $449 per week is derived from a government pension. She has weekly expenses in the order of $378. She has no assets and no superannuation. She has liabilities of approximately $3,672.

109. Catriona Frances MacLeod, a former step-daughter of the deceased, is 63 years of age. She resides in rented accommodation in Tweed Heads South, with a friend. She works as a cleaner, earning $500 per week. Her weekly expenses total about $200. She has assets in the order of $4,000 but does not have any superannuation. She has no liabilities.

110. Virginia Ruth Jacobsen, a former step-daughter of the deceased, is 60 years of age. She lives in Currumbin Valley, in Queensland. Her income is $354 per week. She has expenses of $601 per week. She discloses assets of $159,667 and liabilities of $200.

111. The Plaintiff is not cohabiting with any other person.

112. Whilst the Plaintiff does not have any significant physical, mental or intellectual disability, she has arthritis in her knees and suffers from kidney stones. There is no evidence of any physical, mental, or intellectual disability of any beneficiary.

113. The Plaintiff is 92 years of age having been born in September 1922.

114. The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor. In Goodman v Windeyer, Gibbs J wrote, at 497 - 498:

"One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon CJ in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided."

115. Contributions are broadly defined to include monetary, as well as non-monetary, contributions. The Act does not suggest that a financial contribution is of greater value than a contribution to the welfare of the deceased or his, or her, family.

116. I have earlier set out the Defendant's acknowledgement of the contributions made by the Plaintiff. The contributions included having paid the net proceeds of sale of her unit at Burleigh Heads ($94,000) to the deceased, who used the money to improve a property at Terranora. Subsequently, that house was sold by the deceased and other successive houses, in which he and the Plaintiff lived, were purchased. The Plaintiff did not receive consideration for that contribution.

117. She also provided care to the deceased, especially over the last years of his life. In that period, she "took care of every aspect of his life". The Defendant agrees that the Plaintiff looked after "everything" for the deceased. The Plaintiff did not receive consideration for that care and assistance.

118. There is no evidence of any particular contribution by any of the beneficiaries, other than by the Defendant who, clearly, was a loving and caring daughter.

119. I have earlier referred to the circumstances in which the deceased inherited, by survivorship, certain real estate owned as joint tenants with the mother of the former step-children.

120. The deceased, partially, maintained the Plaintiff during their relationship. Of course, she had lived with him from the commencement of their relationship in one, or other, of the properties that he owned.

121. There is no evidence of any material testamentary intentions of the deceased other than in the Will the subject of the grant of Probate. However, there is some evidence advanced by the Defendant that the deceased stated "on numerous occasions" that "the girls will be looked after". Each of Catriona and Virginia gives evidence that the deceased told her that he had placed money in a trust account for them.

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

123. An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

124. I am satisfied that there is nothing in the Plaintiff's conduct not already referred to, before, or after, the death of the deceased, which is relevant.

125. In relation to the deceased, I am satisfied that there is nothing in the conduct of the other beneficiaries that is relevant.

126. In coming to the ultimate conclusion, it must not be forgotten that the Plaintiff has received a total of $64,106 out of the estate.

Determination

127. Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person.

128. In this case, there is no dispute that the Plaintiff is an eligible person under s 57(1) (b) of the Act. There is also no dispute that she commenced the proceedings within the time prescribed by the Act.

129. Having established eligibility and that the proceedings were commenced within time, relevantly, 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 applicant, has not been made by the Will of the deceased.

130. Even though the Will makes some provision for the Plaintiff, I am satisfied that the provision made for her is neither adequate nor proper. That is so notwithstanding that she is one of two trustees who may exercise a discretion, in her favour, in relation to the Fund established under the Will. There is no certainty that the Defendant will join with the Plaintiff in making advances of capital or income for the Plaintiff's benefit (although I note that the Plaintiff has received slightly more than $14,000 from the Fund to date).

131. Counsel for the Defendant appeared to maintain, at least until the commencement of his oral submissions, that adequate and proper provision had been made for the Plaintiff, a submission that I have no hesitation in rejecting. (At the commencement of the submissions, he stated that the Defendant no longer wished to do so.)

132. Taking into account all the matters, including such matters as the length, nature and quality of the relationship between the deceased and the Plaintiff; her character and conduct; circumstances relating to what once was called the "station in life" of the parties and the expectations to which that has given rise, or in other words, reciprocal claims and duties based on how the parties lived and might reasonably have expected to live in the future; her present and reasonably anticipated future needs; her own capacity and resources for meeting those needs; the size and nature of the estate; any relevant distributions of property from the estate to her; the nature and relative strengths of the competing claims for testamentary recognition; and the contributions made by the Plaintiff to the property or to the welfare of the deceased, I am satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of the Plaintiff.

133. I have set out the competing financial claims of the beneficiaries which I have not forgotten.

134. Age and state of health are factors to which, under the Act, the court may have regard. At the date of hearing, the Plaintiff is not an "able-bodied adult" in the sense that the expression is usually used in connection with family provision litigation. She is not, in this respect, someone who will be able to earn enough by her own exertions to provide for her needs into the future: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82]. She has no reasonable prospect of improving her income now, or in the future; and she may face the prospect of increasing costs of living associated with ageing and ill health.

135. Furthermore, the court cannot decide the question of the adequacy, or inadequacy, of the provision made in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. The word "proper" in the collocation of words in the section of the Act is of considerable importance.

136. It is clear that the Plaintiff has some "needs". As stated above, "need", in the context of the Act, is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to her maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.

137. Yet, I must not forget that, in Marinis v Jeweller [2000] NSWCA 282, the Court (comprising Mason P, Giles JA and Rolfe AJA), wrote, at [26]:

"... We would reject the appellant's submission that adequate provision by a deceased person requires the deceased to ensure that an eligible person must be provided for to such a level as would ensure that his or her available assets are not reduced in consequence of the death and that the eligible person should not be obliged to re-arrange or re-organise his or her available assets."

138. I turn then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the applicant having regard to the facts known to the court. The order should be no more than is necessary to make adequate provision for her proper maintenance and advancement in life. Furthermore, I must take into account the right of the deceased to dispose of his property as he did in his Will, as well as the position of the chosen objects of the testamentary bounty of the deceased, namely his children and his former step-children.

139. In this case, the competing claims of the named beneficiaries, particularly the former step-children of the deceased, are important and must not be forgotten or given no weight. In this regard, the claim of the Plaintiff is different from one made by a first, and only, wife, or de facto partner, where there are no competing claims upon the bounty of the deceased.

140. Her leading counsel submitted that the Plaintiff should receive a capital sum of $464,000 absolutely. He reduced the claim, during his oral submissions, to the amount in the Fund, asserting that she should receive that amount absolutely. In either case, I do not accept the Plaintiff's submission as it does not take into account some of the matters to which the court must have regard, and to which I have referred above.

141. For the same reasons, I do not accept that the submission made on behalf of the Defendant that the Plaintiff's Summons should be dismissed, or that provision to be made for her should be limited to about $25,625 to cover the shortfall of income over expenditure for the estimated duration of her life.

142. Of course, I have considered the decisions of this, and higher courts, that state that an absolute interest, rather than a life interest, should be provided to an applicant who is the spouse, or the de facto partner, of a long relationship. But, as stated previously, cases under the Act are fact specific, and earlier authorities provide no more than useful guidance which must be considered with circumspection.

143. I am satisfied that some provision should be made for the Plaintiff out of the estate of the deceased and that the provision should be expressed in terms of a lump sum received by her absolutely, together with a life interest in the whole of the Fund, with conditions enabling the Fund, or part of it, to be used for the purpose of purchasing alternative accommodation for the Plaintiff to live in, if and when that becomes necessary.

144. In my view, having considered all of the circumstances, the Plaintiff should receive, absolutely, out of the balance of the estate of the deceased, a lump sum of $100,000. She may use that lump sum in any way that she chooses. The receipt of that lump sum will result in the Plaintiff having about $276,000 available for exigencies of life and to provide a supplement to her income. The lump sum should be sufficient to meet any shortfall of income for the remainder of her life and the balance will provide a supplement for exigencies of life. The amount, when added to her current capital, should also be sufficient to free her mind from any reasonable fear of an insufficiency of capital or income as her age increases and her health and strength fail. If necessary, by using some of the capital, she can supplement the amount in the Fund to pay for accommodation.

145. The balance of the amount in the balance of the estate, after the payment of costs, may be distributed to the residuary beneficiaries as set out below.

146. That will leave the Fund of about $381,616, which should be retained by the Defendant and the Plaintiff, as Trustees, to provide for the Plaintiff's accommodation for her life, whether in an alternative home, in a retirement village, in a nursing home, or in a total care facility. If the Fund is not used for that purpose, or to the extent that there is any surplus of capital available after accommodation is purchased, it should provide an income for the Plaintiff for her life.

147. In this way, flexibility will be provided to the Plaintiff by way of a life estate in the Fund, the terms of which could be altered to cover the situation of her moving from the rented accommodation in which she currently lives, to a retirement village, nursing home, or accommodation that provides total care. Of course, if she remains where she is, the income from the Fund will go some of the way towards paying her rent.

148. The Plaintiff may first request the Trustees to use the Fund to purchase accommodation in which she can live if she wishes to, and then request them to sell any property so purchased for the purpose of obtaining, for her, alternative accommodation, or a place in a retirement village, or nursing home, or in total care accommodation. If necessary, no more than 20 per cent of capital, or such other percentage as the court may subsequently order, may be lost out of the Fund if that is necessary to properly accommodate the Plaintiff in accommodation that results in a loss of capital. In this regard, the wish of the deceased, expressed in Clause 5.8 of the Will should be remembered.

149. If the retirement village, or nursing home, or total care accommodation is of the type that requires periodical payments, the income from the Fund should be used to meet those payments. To the extent that the income from the Fund is insufficient, the Plaintiff should meet the difference from her own resources. The saving of the rent that she currently pays, as well as the additional income to which I have referred, should be sufficient, one would think, for that purpose.

150. The capital of the Fund should not be available to the residuary beneficiaries until after the Plaintiff's death.

151. Because there is sufficient cash in the estate to enable the payment of the lump sum, the lump sum should be paid within 14 days; otherwise, interest calculated from that date, at the rate prescribed by s 83A(3) of the Probate and Administration Act 1898 (NSW), is to be paid.

152. Because there was no dispute that the usual costs order for each party should be made, that order should also be made. The quantum of costs, as agreed or assessed, should, in accordance with the agreement of the parties earlier referred to, be paid out of the balance of the estate. One would hope that agreement will be able to be reached as to the quantum of the costs and disbursements.

153. In the circumstances, subject to any submissions as to the precise form of orders, the following orders appear to be appropriate:

(i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, that, in addition to the provision in Clause 4.1 of the Will of the deceased, she is to receive absolutely, out of the estate, a lump sum of $100,000.

(ii) The lump sum provision made for the Plaintiff shall be paid out of the estate not comprising what is described in the Will of the deceased as "the Fund".

(iii) No interest is to be paid on the lump sum if it is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment.

(iv) The balance of the amount of the estate, not consisting of the Fund, after the payment of costs, may be distributed to the residuary beneficiaries in accordance with the terms of the Will.

(v) In addition to the provision made for the Plaintiff in relation to the Fund in Clause 5.2 and following in the Will, the amount comprising the Fund should be retained by the Plaintiff and the Defendant, as trustees, to provide for the Plaintiff's accommodation for her life, whether in an alternative home, in a retirement village, in a nursing home, or in a total care facility, as the case may be;

(vi) The income from any part of the Fund that is not used for the purpose of providing such accommodation for the Plaintiff should be paid to the Plaintiff for her life. That income should be paid each quarter;

(vii) The Plaintiff may request the trustees to sell any property purchased for the purpose of obtaining, for her, alternative accommodation, or a place in a retirement village, or nursing home or total care accommodation. If necessary, no more than 20 per cent of capital, or such other percentage as the court may subsequently order, may be lost out of the Fund, if that is necessary to properly accommodate the Plaintiff; and

(viii) If the retirement village, or nursing home, or total care, accommodation is of the type that requires periodical payments, the income from the Fund should be used to meet the payments. To the extent that the income from the Fund is insufficient, the Plaintiff should meet the difference from her own resources.

(ix) The capital of the Fund should not be paid to the residuary beneficiaries until after the Plaintiff's death.

(x) The Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, are to be paid out of the balance of the estate of the deceased.

(xi) Liberty is granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

154. I shall stand the matter over for seven days to enable the parties to prepare a form of orders with which they agree or, alternatively, if they are unable to agree, to provide competing forms of orders. In the event that the parties agree upon the form of orders proposed above, they should advise my Associate, in writing, within 7 days, following which the orders will be entered.

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