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Estate Pascale [2016] NSWSC 443 (15 April 2016)

Last Updated: 18 April 2016



Supreme Court
New South Wales

Case Name:
Estate Pascale
Medium Neutral Citation:
Hearing Date(s):
11 and 12 April 2016
Date of Orders:
15 April 2016
Decision Date:
15 April 2016
Jurisdiction:
Equity - Family Provision List
Before:
Lindsay J
Decision:
(1) Family provision orders made for the deceased’s former de facto partner to receive a legacy of $100,000 (in lieu of $10,000 under his will) and for two adult children each to receive a legacy of $60,000.
(2) Orders for costs payable out of the estate to be capped.
(3) Consequential orders adjusting the rights of a residuary beneficiary.
Catchwords:
SUCCESSION – Family Provision – Whether applicant left with insufficient provision – Claims by former partner and adult children – Competing claims of widow and minor child – Orders made capping costs payable out of estate
Legislation Cited:
Cases Cited:
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656)
Burke v Burke [2015] NSWCA 195 at [101]- [103]
Churton v Christian (1988) 13 NSWLR 241 at 252 A-E
In re Allen, Deceased [1922] NZLR 218 at 220)
Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G-70A
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 20
Re Fulop deceased (1987) 8 NSWLR 679
Texts Cited:
-
Category:
Principal judgment
Parties:
Plaintiff (2015/00090868): Hong Gao
Plaintiff (2015/00171373): Jean-Louis Pascale
Plaintiff (2015/00233467): Patricia Pascale
Defendant: John Anthony Picone
Representation:
Counsel:
Plaintiff (Hong Gao): T Morahan
Plaintiff (Jean-Louis Pascale): S Chapple
Plaintiff (Patricia Pascale): J Brown
Defendant: AL Hill

Solicitors:
Plaintiff (Hong Gao): Chen Shan Lawyers
Plaintiff (Jean-Louis Pascale): Armstrong Legal
Plaintiff (Patricia Pascale): Turnbull Hill Lawyers
Defendant: Picone & Co Solicitors
File Number(s):
2015/000908682015/001713732015/00233467

JUDGMENT

INTRODUCTION

  1. Before the Court are three applications for family provision relief (under chapter 3 of the Succession Act 2006 NSW), requiring an assessment of five competing claims to the bounty of the deceased, in relation to an estate of insufficient amplitude to accommodate them all.

THE DECEASED, HIS WILL, HIS ESTATE

  1. Louis Pascale (“the deceased”) died on 19 February 2015, aged 80 years, leaving a will dated 18 September 2014, probate of which was granted to the executor named in the will, a solicitor, John Picone (the defendant) on 8 July 2015.
  2. By his will, the deceased left a net estate (presently valued, excluding the costs of the proceedings, at about $770,000) to three members of a fractured family:
  3. Estate assets comprise real property at Merrylands (with an estimated value of $650,000) and cash.
  4. Estimates of the parties’ costs of the proceedings are of such a dimension to invite consideration of whether (and, if so, what) effective orders can be made for costs to be capped. If four sets of costs are allowed out of the estate in accordance with estimates, the net distributable estate is likely to be between $475,000-$500,000 or thereabouts.

FAMILY RELATIONSHIPS

  1. The deceased was involved in four long-term relationships attended by marriage or its equivalent. He was married three times, and lived in one long-term de facto relationship.
  2. He was involved in another relationship, and possibly a second, the details of which remain hazy and the whereabouts of his former partner(s) are unknown to the defendant.
  3. The deceased is survived by four children, three of whom are mature adults, the youngest of whom (Laura) is aged 15 years.
  4. The deceased married Madeline Deacon-Shaw in 1956. They divorced in 1982. There were two children of the marriage:
  5. The deceased married Desiree Eckhouse in 1982. They divorced in 1987. There was one child of the marriage: a son, Jean-Louis (“Jean-Louis”), born in 1983 and now aged 32 years.
  6. Thereafter the deceased had one and, possibly, a second, relationship not able to be described in any detail.
  7. The deceased lived in a de facto relationship with Ms Gao between about August 1998 and September 2008. He is on record, in a will dated 24 November 2009, as confining the de facto relationship to the period 1999-2007. Nevertheless, I accept Ms Gao’s evidence that she first met the him in about May 1998; moved into his home in about August 1998; separated from him (albeit living under the one roof) in September 2008; was compelled to maintain a sexual relationship with him until about March 2009; and they finally separated in about September 2009.
  8. There was one child of this relationship: a daughter, Laura, born in December 2000.
  9. After their separation Ms Gao and the deceased continued to share responsibility for Laura’s care and much of the bitterness attending the breakdown of their relationship dissipated.
  10. Ms Gao was born (in China) in 1966 and is now aged nearly 50 years. She applied for permanent residency in 2001 (three years after moving in with the deceased) and was granted that status, as a permanent resident of Australia, in 2004.
  11. The deceased met Ms Vana in 2011, and married her in July 2013. No children were born of this relationship.
  12. Ms Vana was born (in Thailand) in 1980 and is now aged 36 years. She moved to Australia after her marriage to the deceased. She returned to Thailand after his death. She came to Australia, not because of a primary desire to live here, but because her husband lived here.

THE APPLICANTS FOR FAMILY PROVISION RELIEF: Succession Act, ss 57, 58 and 59(1)(a)

  1. Applications for family provision relief have been made by Patricia, Jean-Louis and Ms Gao. Their claims on the deceased’s estate are in competition with the entitlements of Ms Vana and Laura as the deceased’s residuary beneficiaries.
  2. All parties are agreed that each of the three applicants is an “eligible person” within the meaning of the Succession Act 2006, section 57(1). Patricia and Jean-Louis are children of the deceased: section 57(1)(c). Ms Gao is a person who was, whilst in a de facto relationship with the deceased, wholly or partly dependent on him: section 57(1)(e). Accordingly, each applicant meets the requirement in section 59(1)(a) that the Court be satisfied that an applicant for family provision relief is a person eligible to apply for such relief.
  3. It is not necessary to explore the meaning of the expression “de facto relationship” in its application to Ms Gao. Her eligibility to apply for relief rests upon her status as a dependent member of the same household as the deceased, not, in terms, upon her status as a former de facto wife.
  4. It is convenient, nevertheless, to record that the nature of the relationship between Ms Gao and the deceased was such as to fall squarely within the definition of a “de facto relationship” as defined by the Interpretation Act 1987 NSW, section 21C. They lived together, as man and wife, for about 10 years, during the course of which Laura was born to them and Ms Gao performed domestic duties customarily performed by a wife and mother. No party has submitted that her relationship with the deceased was anything beneath that of a wife or, in these proceedings, more accurately, that of a former wife.
  5. Each of the applicants for family provision relief filed a summons - and, hence, made an application for a family provision order - within the 12 month limitation period prescribed by the Succession Act, section 58(2). No application requires an extension of time to be considered by the Court. All are “within time”.

MS GAO’S APPLICATON; “FACTORS WARRANTING” : Succession Act, s 59(1)(b)

  1. Because her status as an “eligible person” depends upon her characterisation as a dependent member of the same household as the deceased, Ms Gao’s application for family provision relief requires the Court to be satisfied that, within the meaning of section 59(1)(b) of the Succession Act, “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of [her] application”.
  2. The parties are agreed (and I accept) that the test to be applied upon consideration of whether there are “factors warranting” the application made by Ms Gao is that first stated by McLelland J in Re Fulop deceased (1987) 8 NSWLR 679 at 681 D-E, and approved by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241 at 252 A-E, in relation to the Family Provision Act 1982 NSW, section 9(1). It has since been applied, routinely, in the context of the current, comparable, but slightly different, provision found in the Succession Act, section 59(1)(b).
  3. “Factors which warrant the making of [an] application” for a family provision order are “factors which when added to the facts which render the applicant an ‘eligible person’ give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition of a deceased”: Re Fulop (1987) 8 NSWLR 679 at 681 D-E.
  4. On an application of this test to the facts of the case, I am satisfied, for the purpose of section 59(1)(b) of the Succession Act, that there are factors which “warrant the making” of Ms Gao’s application.
  5. Ms Gao was not merely a dependent member of the deceased’s household. She was his de facto wife. She occupied that office (if an office it be) for a decade. She is the mother of his child, Laura. She is and was at all material times a principal carer of Laura. The care she has bestowed on Laura since the breakdown of the de facto relationship facilitated his pursuit of another relationship.
  6. During Ms Gao’s relationship with the deceased, she worked in his business without remuneration, and contributed financially, as well as domestically, to the household. When the relationship came to an end, the deceased promised her a modest property settlement of $20,000; but, in the event, he paid her nothing beyond child maintenance. Litigation was contemplated but came to nothing.
  7. The deceased himself recognised Ms Gao as a natural object of testamentary recognition when he made her a beneficiary (admittedly, a minor beneficiary) in his last will and, perhaps, derivatively, when he made Laura one of his two principal beneficiaries, to the exclusion of his other children.
  8. Viewed in this light, I am satisfied that, to a fair-minded, objective observer, Ms Gao would be seen as a natural object of testamentary recognition vis-a-vis the estate of the deceased.
  9. I am reinforced in that view by an impression that the deceased acted in a shabby disregard of Ms Gao’s reasonable expectations of a stable and loving domestic relationship when: (a) in 2007, he declined to allow her teenage son by a previous relationship, upon arrival in Australia from China, to live in the family home; and (b) later, he told her that he had made a will leaving his entire estate to Laura, on terms that allowed him at any time to sell the family home, without any consultation with her or recognition of her as his partner. The relationship having come to an end she felt obliged, by an absence of alternatives, to live for a time under the same roof and to submit to his sexual demands. She felt hurt, and humiliated, by his conduct.
  10. The falling out between Ms Gao and the deceased reached a low point, if not their nadir, on 24 November 2009 when the deceased made his penultimate will leaving everything to Patricia and (upon her attaining the age of 21 years) Laura.
  11. In what appears to have been a calculated insult to Ms Gao, he made a series of gratuitous declarations in his will. He purported to appoint Patricia “to be the testamentary guardian of my infant child”, Laura, “as I do not believe that her mother Gao Hong is a fit and proper person to act as a guardian and parent of my child.”
  12. If this was not enough, he also recorded the following:
“I HAVE MADE NO PROVISION under this my will for GAO HONG who lived with me in a de facto relationship during the years 1999 to 2007 inclusive and for no longer. GAO HONG has not assisted me nor contributed at all towards my asset pool, notwithstanding that she is the mother of my child LAURA. She only became my partner for sinister reasons and to obtain residency in this country. She by her behaviour is not entitled to any bequest under my will, she is dishonest and lives immorally. I understand the implications of not including her as a beneficiary, but I am of the belief that she is not entitled to any part of my estate.”
  1. In a perverse way, the terms of the deceased’s penultimate will confirm, rather than disprove, Ms Gao’s entitlement to be seen as a natural object of the deceased’s bounty. On the hearing of these proceedings, no party sought to make good the deceased’s criticisms of Ms Gao. No party submitted that she was anything other than a worthy wife and a good mother to Laura. No party submitted that she is a person lacking credit. The deceased himself, in his last will, abandoned his aggressive, adversarial language. His gift of a legacy of $10,000 to Ms Gao described her simply as “my former de facto partner and mother of my daughter Laura Pascale” He also recorded that, in the event that Ms Gao should predecease him or be unable for some reason to act as the guardian and parent of Laura, he appointed Ms Vana (by that time his wife) to be Laura’s testamentary guardian.
  2. By the time the deceased re-partnered with Ms Vana, Ms Gao and he, through a shared love for Laura, had re-established a cordial relationship.
  3. That the deceased did not altogether repudiate Ms Gao but, on the contrary, made some testamentary provision for her, in addition to that made for Laura and his new love Ms Vana, suggests an endeavour on his part (to paraphrase older case law, including Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 20, reaching back to In re Allen, Deceased [1922] NZLR 218 at 220) to aim, however imperfectly, for justice and wisdom in his dealings with her.

TOUCHSTONES FOR A FINDING OF (IN)ADEQUACY OF PROVISION : Succession Act, ss59(1)(c), 59(2), 60(2) and 61

  1. Ms Gao having satisfied the requirement of section 59(1)(b) of the Succession Act that there be “factors warranting” the making of her application, attention turns to the requirements of section 59(1)(c) and 59(2) of the Act, having regard to the criteria for which section 60(2) of the Act provides, in the application of the legislation to each applicant for family provision relief.
  2. Sections 59(1)(c) and 59(2) both require the Court to make decisions based upon current circumstances. Section 59(1)(c) requires the Court to determine whether “adequate provision for the proper maintenance, education or advancement in life” of an applicant has not been made in the will of the deceased. Upon an assumption of a finding that “adequate provision” has not been made for an applicant, section 59(2) empowers the Court to make “such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life” of the applicant.
  3. Section 60(2) contains a checklist of factors (including, for example, the existence, nature and duration of family relationships and the availability of resources) bearing upon, or likely to bear upon, decisions about the maintenance, education or advancement in life of an applicant.
  4. The decisions to be made under or by reference to sections 59(1)(c) and 59(2) are decisions involving an exercise of evaluative judgement, discretionary in nature, guided by community standards (Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656) taking into account all the circumstances of the particular case (Burke v Burke [2015] NSWCA 195 at [101]- [103]) .
  5. The evaluative exercise required to be undertaken by the Court requires, in this case, that attention be given to the personal circumstances of the five individuals whose respective claims to the bounty of the deceased are in competition.
  6. That exercise must be taken in the context of section 61 of the Succession Act, which provides as follows:
“61 Other possible applicants
(1) In determining an application for a family provision order, the Court may 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.
(2) However, the Court may disregard any such interests only if:
(a) notice of the application, and of the Court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or
(b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.”
  1. Notice of the current proceedings has been given to each known “eligible person” and, accordingly, the interests of non-beneficiaries who have not made an application for family provision relief can be disregarded.
  2. However, because at least one, and possibly two, of the women with whom the deceased may have had a relationship could, at least in theory, fall within the definition of an “eligible person”, it is necessary for the Court to make (as I do make) a determination, under section 61(2)(b) of the Succession Act, that service of further notice of the proceedings is “unnecessary, unreasonable or impracticable in the circumstances of the case”. The deceased’s tendency to enter, and move on from, a succession of personal relationships outstripped the capacity of family members to keep track, and the capacity of his executor to discover the identity and location of potential claimants on his estate. A relatively small estate needs its administration to progress.

(IN)ADEQUACY OF TESTAMENTARY PROVISION : Succession Act, s 59(1)(c)

  1. Of the three applicants for family provision relief, only Ms Gao is named as a beneficiary in the deceased’s will. The legacy of $10,000 given to her is not exactly nominal, in the context of a small estate, but, relative to her needs, it is not generous either.
  2. The fact that neither Patricia nor Jean-Louis is named as a beneficiary in the deceased’s will is not, of itself, enough to ground findings that they have been left without adequate provision because, to make such a finding, their current circumstances require examination. Nevertheless, the absence of any provision for them in the will is worthy of notice in the context of evidence that each of them can reasonably claim to be in need of assistance from the deceased’s estate.
  3. Without falling into the trap of judging “adequacy” of provision for the maintenance, education or advancement in life of an applicant for family provision relief by reference to a wish list, a catalogue, of perceived needs, I proceed here to outline each applicant’s personal circumstances.

Ms Gao

  1. Ms Gao is an intelligent, 50 year old Chinese-born woman whose command of the English language is competent, but less than perfect. She works as an Accounts Clerk, having studied accountancy in the latter years of her relationship with the deceased. She currently earns $23.00 per hour and generally works a 40 hour week. She is dependent upon her employment for her income. Her income and expenses remain at close quarters.
  2. She lives with her son (now aged 22 years) and Laura in a three bedroom duplex at Merrylands, bought in the joint names of herself and her son, in about August 2013, with $135,000 gifted to the son by his father (Ms Gao’s former husband), still living in China, and a $330,000 mortgage which, in substance, is hers to service. She owns a 2000 model car in need of repair or replacement. She has savings of about $12,000 and superannuation worth about $20,000.
  3. Both Laura (a Year 10 student at a Catholic school) and her son, just beginning to make his way in the world, are dependent upon her. She has an ongoing, close relationship with Laura and, perhaps not uncommonly for mother and son at their respective ages, a strained relationship with her son.
  4. As a measure of her “need” for assistance from the deceased’s estate, her evidence is that, if afforded that assistance, she would endeavour to improve the life of her family, particularly for the benefit of Laura. She would ask Laura to give up part-time work to concentrate on study. She would work one day less, to spend more time with Laura. She would renovate Laura’s bedroom. She would like to take Laura to China to see her 80 year old mother, Laura’s grandmother. She could replace her car. She would see a dentist, for the first time for more than 10 years.
  5. In my assessment, notwithstanding the separate provision made for Laura (still, under the terms of the deceased’s will, six years away from vesting), Ms Gao has a strong claim on the bounty of the deceased. Having grown up in an abusive family in which she suffered beatings from her father when she was young, the deceased (approximately 31 years her senior) was, for her, a “father figure”. Her partial reconciliation with him after the breakdown of their relationship underscores her apprehension, despite the presence of her children, that she is alone in Australia, a single parent, now of mature years, anxious about her future, living in a residence on terms which (if her son seeks to realise his asset) might involve a security of tenure more apparent than real.
  6. There is about presentation of Ms Gao’s case something of an appeal - more accurately an allusion – to the commonly accepted idea (classically articulated in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G-70A) that “as a broad general rule, and in the absence of special circumstances, the duty of a 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”.
  7. This cannot be, should not be, and has not been, pressed very far. Ms Gao is, after all, the deceased’s penultimate partner, not his widow. However, the fact remains, also, that her domestic relationship with the deceased was by far longer than that of his widow, Ms Vana, and she is the mother of the last of his children who is a minor; the welfare of that much loved child, a teenager with all the needs and wants of a teenager, is largely bound up with the welfare of the mother, particularly as the deceased deferred his daughter’s inheritance for a period six years hence without making any provision for her in the meantime (other than a power of advancement residing in the defendant).
  8. All things considered, I find, for the purpose of section 59(1)(c) of the Succession Act, that Ms Gao has been left without adequate provision for her proper maintenance, education and advancement in life.

Jean-Louis

  1. Jean-Louis’ application for family provision relief has been put squarely, fairly and accurately on the basis that he has a strong claim to modest relief, not a larger claim.
  2. He was four years of age when his parents divorced. He continued to live with his mother and, as he grew, he took her side against his father. In the first 10 years following his parents’ divorce he saw his father every fortnight, after which contact visits fell away to every few months for a couple of years. In his middle-teens, at about the same time that the deceased took up with Ms Gao, his father again visited him every fortnight. That pattern fell away in his late teens and early 20s, after which he visited his father on something like a weekly basis for a couple of years. In his late 20s he reached out to his father, despite strains in their relationship, at one point resuming weekly visits. During the period of his father’s relationship with Ms Vana contact between father and son was generally limited to telephone conversations.
  3. To his regret, Jean-Louis was sufficiently estranged from his father at the time of his father’s death that, knowing that his father was dying, he declined an opportunity to visit the older man in hospital. I do not count this as anything like “conduct disentitling” but, rather, a sad, not uncommon, incident of a fractured family relationship.
  4. Jean-Louis’ life experience extends to such relationships both as a child and as an adult. His experience as an adult, has perhaps, in retrospect, required him to reassess his relationship with his father, a parent with whom he did try, with mixed results, to reconnect.
  5. He himself has been married, divorced and become a father. He has re-partnered with a partner who, herself, has a child of an earlier relationship.
  6. He married in 2006, separated in 2011, and divorced in May 2013. There is one child of the marriage: a son born in January 2011, now aged five years.
  7. At about the time he commenced his relationship with his present partner, the deceased commenced his relationship with Ms Vana. Ironically, perhaps, his father took the side of his wife. Not unnaturally, she, in turn, continued to visit the deceased with their son, his grandson. The deceased’s bitterness about Jean-Louis’ separation from his wife strained the relationship between father and son in the last of the father’s living years. Life can be messy.
  8. Jean-Louis and his partner have been together now for about five years. They live in rental accommodation with no immediate prospect of buying a house. Jean-Louis does not have a car of his own. His partner had a car, but it was sold to fund, in part, a trip by his partner, himself and his son to visit his mother, presently living in San Diego, California, USA. She had not previously met the boy.
  9. Aged 32, Jean-Louis remains in the process of re-ordering his life. He has no substantial assets, and no immediate prospect of acquiring substantial assets. He and his partner have lived within their means, but with only limited capacity to save. In recent days, has he changed jobs, from that of a bank officer, to that of a cargo service delivery agent, with a reduction in income but, perhaps, also with a prospect of greater job satisfaction and better long term prospects.
  10. As still a young man, he has needs of youth starting out. A need for a deposit on a home. A need of a car. A need to make provision for family.
  11. Absent competing claims to the deceased’s bounty, he would have a stronger claim to assistance from the deceased’s estate.
  12. I formally find, for the purpose of section 59(1)(c) of the Succession Act, that he has been left without adequate provision for his proper maintenance, education and advancement in life.

Patricia

  1. Unlike Jean-Louis, Patricia appears, consistently, to have had a cordial relationship with the deceased, though she lived for many years, away from him, in the United States. Testimony to the nature of their relationship may be found in the deceased’s penultimate will (dated 24 November 2009) which, although directed against Ms Gao at a time of emotional turmoil in the relationship between Ms Gao and the deceased, also benefited Patricia materially (leaving her half the deceased’s estate) and (by naming Patricia as Laura’s testamentary guardian) demonstrated the deceased’s faith in her.
  2. Throughout the hearing, Patricia’s case was largely directed towards the size of the indebtedness of her husband and herself (with a large mortgage and credit card debts), as well as the fact that, on the eve of her departure from the US to attend the hearing, she lost her part-time job.
  3. Towards the end of submissions, counsel put Patricia’s case with greater emphasis on her need to support her son, Tristan, who has been diagnosed as suffering from an attention deficit hyperactivity disorder and an oppositional defiant disorder, requiring ADHD medication, coupled with a diagnosis of short stature, requiring hormone therapy. The point was made that Tristan (born in March 2001) is roughly the same age as Laura – as Patricia is roughly the same age as Ms Gao – with similar needs for assistance in the teenage years.
  4. Patricia’s parents’ marriage did not break down until she was about 17 years of age, at about which time she also left the family home.
  5. As she recalls her childhood, she had an idylic life, with the loving support of both parents, material well-being and a succession of holidays, including vacations in the Philippines, Hong Kong, Italy, Switzerland and France. [Her father, the deceased, was born in Italy. I infer, from the evidence, that her mother was born in Switzerland.]
  6. For her part, Patricia appears to have fulfilled the obligations of a dutiful child, including work in her family’s service station business from time to time. She does not recall being paid for such work, but neither does she recall wanting anything beyond the material support she was freely given by her parents.
  7. After the deceased remarried (in 1982), Patricia did not see him as much as she had previously done. She nevertheless kept in touch with him.
  8. In her 20s, Patricia lived in the United Kingdom, as well as Thailand and Sri Lanka. In her early 30s she moved to the United States after meeting Brian Crecente, her present husband.
  9. Patricia and Brian married, in a civil ceremony, in 1999 before, in 2000, having a formal church wedding. Tristan is the only child of the marriage.
  10. Between 2000-2011, Patricia, her husband and her son lived in Colorado. In 2011 they moved to New York, where they still reside.
  11. The deceased, in the company of Laura, visited Patricia’s family over the Christmas holiday period in 2010.
  12. Patricia remained in fairly regular contact with her father, despite the geographical distance between them, and, when informed in early 2015, of his final hospitalisation, she returned “home” to Australia for a farewell visit. As it happened, unexpectedly, he died hours before she was able to visit him.
  13. Trained as a nurse, Patricia has worked in a variety of jobs throughout her adult life, supporting herself and contributing as an equal partner to what appears to have been a stable marriage to Brian. Brian, for his part, works as a journalist, an editor, with Vox Media. As a family, Patricia and Brian appear to enjoy the trappings of middle-class success. They own their own home, but subject to a very substantial mortgage. They enjoy a reasonable household income, but with substantial debts.
  14. In an affidavit sworn late last year, Patricia catalogued her “need for provision” from the deceased’s estate by reference to: a need for assistance in reducing the family mortgage and the family’s debts generally; a need to fund repairs to the family home, including a need to replace a 20-year-old carpet with tiles; a need to fund dental work for herself; a need to help pay for Tristan’s education expenses; and a need for a fund for contingencies. The absence from this list of a need for assistance with medical expenses relating to Tristan, illustrates a subtle shift of emphasis in Patricia’s case.
  15. Nevertheless, in my assessment, Patricia’s need for assistance is real, and her claim on the bounty of the deceased is reasonable, subject to moderation in the context of competing claims on that bounty and the limits of available resources. Although her claim is founded upon a life experience different in nature and quality from that of Jean-Louis, it is, in my assessment, of much the same order as his claim on the bounty of the deceased.
  16. I formally find, for the purpose of section 59(1)(c) of the Succession Act, that Patricia has been left without adequate provision for her proper maintenance, education and advancement in life.

WHETHER TO MAKE ANY (AND, IF SO, WHAT) FAMILY PROVISION ORDERS: Succession Act, ss 59(2) and 60(2)

  1. The exercise required to be performed by the Court, for the purposes of sections 59(1)(c) and 59(2) of the Succession Act, is, in a sense, holistic, involving distinct but related questions. Section 59(1)(c) focuses attention on whether or not an applicant has been left without “adequate provision”. Section 59(2) requires the Court to consider whether an order for provision “ought” to be made in exercise of a discretionary power.
  2. A finding that an applicant has been left without “adequate provision” (section 59(1)(c)) may reasonably be expected, in many if not all cases, to anticipate a finding that an order for provision “ought to be made” (section 59(2)). Nevertheless, each statutory provision must be consulted.
  3. At each point the Court needs to remain mindful of competing claims on the bounty of a deceased person, and the limitations on available resources, as well as other factors enumerated in section 60(2).
  4. It is both necessary and convenient, here, to notice expressly the strength of the claims of Ms Vana and Laura on the bounty of the deceased.
  5. In his submissions, counsel for the defendant described Ms Vana as the claimant on the bounty of the deceased most in need. She has, as he has noted, three children from a previous relationship, respectively aged 19 years, 18 years and 12 years. The youngest child lives with his father. Ms Vana has no assets of consequence and is currently unemployed, although she earns some income from selling clothing and food at street markets. At 36 years of age, she has the prospect of a hard life ahead.
  6. Laura’s greatest asset is the devotion, and support, of her mother, Ms Gao. With that support, she is pursuing her secondary education with an aspiration to go to university. The prospect of a career in law has flickered across her imagination. For the foreseeable future, even when contemplating enrolment at a university, she sees herself as continuing to live with her mother. She has recently taken up a part-time job, like many young people of her age, but her mother, like many mothers, would prefer to see her devote her working hours (three hours a week) to study. She has no assets, or income sources, to distinguish her from other teenagers.
  7. In weighing the competing claims on the bounty of the deceased, it is not open to the Court to “rewrite” the deceased’s will. The Court is required to respect to the deceased’s final, formal expression of his testamentary intentions, subject to due consideration of each case according to law.
  8. Each of the applicants for family provision relief has, in my assessment, demonstrated a case that supports a finding that a family provision order “ought to be made”, out of the estate of the deceased, for his or her maintenance, education or advancement in life. The quantum of the relief to be granted is, however, limited by the modest size of the estate and the need to accommodate other claims.
  9. The spectre of the need of each party to the proceedings (and, within limits, the Court) to accommodate the costs of the proceedings hangs darkly over the whole proceedings.
  10. In my assessment, the claims of each of Jean-Louis and Patricia are pretty much on a par, and subordinate to the claims of Ms Gao, Ms Vana and Laura.
  11. Jean-Louis and Patricia have each made their way in the world, more or less independently of the deceased. On one view, Jean-Louis has a greater need to material assistance than Patricia. However, his relationship with the deceased was, in terms of personal relationships, more distant than that which Patricia enjoyed. I intend no criticism in making that observation. It is simply the fact. In contrast, Patricia’s need for material assistance, although real, may not be as great as that of Jean-Louis. However, notice must be taken of the consistency of her standing in the affections of the deceased, and her consistent reciprocation of his affection.
  12. Although Ms Gao’s claim on the bounty of the deceased is, in my assessment, greater than the claims of Jean-Louis and Patricia, it is subordinate to the claims of Ms Vana and Laura, notwithstanding that her relationship with the deceased was significantly longer than that of Ms Vana, and she continues to care for Laura. All three women depended, and depend, greatly upon the deceased, and his estate, for fulfilment of reasonable expectations. Ms Gao gave him a decade or so of service as a wife, in fact, as well as a daughter to whom he was devoted. Ms Vana came to Australia as a wife, left as a widow, and was left without means. Laura was left, without a father, on the verge of an adult life.
  13. Subject to orders being made to cap the costs able to be paid out of the deceased’s estate, I propose to make orders with the intent that:
  14. Having allowed the parties an opportunity to address my concerns as to the costs of the proceedings, I propose, subject to one qualification, to order that the respective costs of Ms Gao, Jean-Louis and Patricia able to be paid out of the estate of the deceased be limited, in each case, to an amount not exceeding $50,000. The qualification is that Ms Gao should be allowed out of the estate, in addition, a contribution of $2,000 to legal costs incurred by her in arranging for Laura to receive independent legal advice as to whether or not, herself, to make an application for family provision relief.
  15. Although my misgivings about the quantum of the parties’ costs is not confined to the costs of the applicants – all parties seem to me to have challenged the limits of what is reasonable – I do not propose to cap the costs of the defendant.
  16. For the purpose of giving effect to the family provision orders made in favour of the applicants, and to afford a just and equitable outcome for Laura in light of the diminution of her share of the deceased’s estate, I propose to make orders (under section 66 of the Succession Act) adjusting her interest under the will by: (a) accelerating her entitlement to be paid a half share of the residuary estate; and (b) pending payment of that share to her, directing the defendant in the exercise of his power of advancement.

ORDERS

  1. Subject to allowing the parties an opportunity to make submissions about the form of the orders, I propose to make the following orders in the three proceedings (heard together) before the Court:

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Amendments

18 April 2016 - In paragraph 12, 1998 is substituted for 1988.

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