Claimant Entitled to Modest Estate Provision Under Family Provision Act

The claimant, a stepdaughter, sought a provision from the estate of her stepmother under the Family Provision Act 1982. The court held that the claimant, who lived with her father in the stepmother's house, was partially dependent on the stepmother. An order for a modest provision of $20,000 was granted.

New South Wales Supreme Court

CITATION : [NAME] v [NAME] [2010] NSWSC 99

HEARING DATE(S) : 23/11/09, 11/12/09

JUDGMENT DATE : 24 February 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 64

CATCHWORDS : Family Provision. Claim by [NAME]-daughter. Short period of dependency. Held that plaintiff who lived with her father in [NAME]'s house was dependant on [NAME]. Order for modest provision.

PARTIES : [NAME] v [NAME](S) : SC 1963/08

COUNSEL : [redacted] [NAME] for defendant

SOLICITORS : [redacted] [NAME] for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Wednesday 24 February 2010

1963/2008 [NAME] v [NAME] (Estate of [NAME])

JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 ('the Act') in respect of the estate of the late [NAME] who died on 30 December 2006. [NAME] was survived by her two sons, one of whom is the defendant in the proceedings. The evidence does not indicate whether [NAME]'s former husband is still alive. He was last seen after his separation from [NAME] in 1958 when he went to live in Melbourne. I am satisfied that it is impractical to serve him with notice of these proceedings. 2 The plaintiff is a stepdaughter of [NAME]. [NAME] married the plaintiff's father late in life. The last will of [NAME] 3 [NAME] made her will on 10 July 2003. She appointed her son, [NAME], the defendant, executor of her estate. In her will she set up a fund of $50,000 to provide for her disabled son, [NAME]. The residue of her estate was left to the defendant, [NAME], or if he predeceased her, his share was to go to her son, [NAME]. In default of [NAME] surviving the defendant, the estate would pass to the plaintiff [NAME]. Presently the defendant is entitled to the residue of his mother's estate. Assets in the estate 4 The estate consists of [NAME]'s property at [ADDRESS], Broadmeadow valued at $280,000, furniture and a bank account of some $18,152. The defendant has added $32,000 of his own money to this amount and he has set up the trust fund for his brother pursuant to the will. 5 The defendant's costs are estimated at $32,725 and the plaintiff's costs are estimated at $48,400 on the basis that the matter was a one-day hearing. Unfortunately because of difficulty obtaining a witness the matter was adjourned for a further hearing. Family history 6 The plaintiff was born in [DATE]. Her father was [NAME], and her mother, [NAME]. She was one of four children. 7 [NAME] married [NAME] on 17 January 1942. He was a merchant seaman who spent about one week out of six at home while the rest of the time he would be at sea. 8 In 1952 the plaintiff's parents separated and her father [NAME] was granted custody of the plaintiff and two of her three siblings. 9 In 1952 after the separation, the plaintiff, her brother [NAME], her sister [NAME] and their father, [NAME], moved into [NAME]'s residence at [ADDRESS], Stockton. 10 In order to accommodate the people at [ADDRESS], [NAME] built a room at the back of the house. Shortly after moving to the house [NAME] left to live with her mother while [NAME] moved in with his grandmother. The plaintiff and [NAME] stayed on at the [ADDRESS] home. 11 In December 1954 the plaintiff's parents were divorced. In 1954 or some time thereafter the plaintiff had fainting spells and she received treatment from a doctor that required her head to be shaved so she moved to live with her uncle and aunt at Mason Dieu near Singleton while her hair grew back. She remained with her aunt and uncle for about 9 months. She did not attend school in that year. 12 In January 1957 [NAME], her husband and [NAME] moved to [ADDRESS], [NAME]. Later in 1957 they all moved to [ADDRESS], [NAME] when that was purchased on 23 August 1957. 13 The plaintiff says that she lived with [NAME] when they lived at [ADDRESS], [NAME]. However her evidence on this aspect is a matter of contention in the proceedings. 14 In 1959 the plaintiff married [NAME] and she says she then moved out of the [NAME] property. 15 [NAME] divorced [NAME] on 11 May 1961. In the decree nisi Dovey J noted that: "The two children of the marriage reside with the Petitioner. Since the Respondent deserted the Petitioner on the 10 th October 1957 he has regularly supported the Petitioner and the children of the marriage."

Consistent with this state of affairs she had had the house at [NAME] transferred into her sole name on 25 February 1959. 16 On 16 September 1961, four days after the decree nisi became absolute, [NAME] married [NAME] the plaintiff's father. 17 In 1966 the plaintiff's mother died. In 1980 the plaintiff divorced her husband [NAME]. Her ex-husband transferred the title of their property in [ADDRESS], [ADDRESS] to the plaintiff in 1981. 18 In 1987 the plaintiff had a short relationship with [NAME]. 19 In January 2003, [NAME] died. The plaintiff would assist in taking [NAME] to medical appointments before her father died. After her father's death she continued her frequent contact with [NAME], which still included taking her to medical appointments. As [NAME]'s health deteriorated the plaintiff prepared meals for [NAME]'s son, [NAME], who needed his evening meal prepared due to his disability. In 2006 [NAME] was placed in a community hostel when [NAME] was unable to care for him. Eligibility 20 The plaintiff claims to be an eligible person as she alleged she was a member of the household of [NAME] and that she was partly dependent on her. 21 The relevant period in which the plaintiff says she was part of the household was the time she says she lived with [NAME] before she married [NAME] in 1959. There is no doubt that she lived in the same house as [NAME] for the period from 1952 when she and her father, [NAME], lived at Stockton with [NAME]. 22 Whether the plaintiff was part of the household at Stockton may also depend upon the way the plaintiff was treated in the home. I refer later to the fact that there is some evidence that [NAME] paid board to [NAME]. This raises the question of whether, as a boarder, he and his children were not part of [NAME]'s household. 23 The defendant points to the decision of Needham J in [NAME] v [NAME] (Supreme Court of New South Wales, 1 August 1989, Needham J, unreported) as implicitly stating that a mere boarder would not be "of the household." His Honour's comments were summarised by Young J in [NAME] v [NAME] (Supreme Court of New South Wales, 18 September 1997, Young J, unreported): "There have been judicial observations on the meaning of the word "household" over the last ten years. In [NAME] v [NAME] J - 1 August 1989, unreported, the case involved a man and woman who lived in the same house as companions though had no sexual relationship. The question was whether [NAME] was a member of the household or a boarder. Needham, J said, "It was said that a family type unit is a necessary ingredient in the concept of a household. I think this is to some degree a borderline case, and I think the question of whether a household exists is perhaps a question of degree ... However, ... once the plaintiff commenced to look after [NAME] in the manner in which he did, it could hardly be said that he was not a member of her household. He acted in supporting her at that time as a husband or brother, or son perhaps, would have done, and I think the care which he contributed to her well being certainly constituted him a member of her household." 24 Given that at least meals were provided by [NAME], I think it is appropriate to conclude that while the plaintiff was at Stockton she was part of [NAME]'s household. 25 There was debate as to whether she lived in the houses at [NAME] and [NAME] from 1957 until she married in 1959. 26 The plaintiff and the defendant gave different accounts in their affidavit evidence. The plaintiff, who was born in [DATE], says she lived at Stockton, [NAME] and [NAME]. She concedes that while she was living at Stockton she attended [NAME] where she began having fainting spells. She says she then went to [NAME] for twelve months while she recuperated. She says she then returned from [NAME] to [NAME] and then to [NAME]. 27 [NAME]'s son, [NAME], who was born in [DATE], gave evidence that the plaintiff did not come to reside at [NAME] or [NAME]. There is no doubt that for the relevant period he lived at the homes at [NAME] and [NAME]. 28 The plaintiff's brother, [NAME], gave clear affidavit evidence that the plaintiff left Stockton to go to [NAME] and that after going to [NAME], the plaintiff returned to live with her fiancée, [NAME], in a flat at Lambton. He said that he never saw the plaintiff or her possessions at [NAME] which he described as a "dog box" and he visited [NAME] every two weeks where he saw no evidence of her possessions. He said the plaintiff was not living at that house. He was a year older than the plaintiff. It was demonstrated in cross-examination that his observations of [NAME] were only in the daytime when the plaintiff may have been at school or at work. The title searches show that Stockton was sold on 17 January 1957 and [NAME] purchased on 23 August 1957. Therefore the family's occupation of [NAME] would only have been seven months. This is less than the nine months the plaintiff spent at [NAME]. However, the precise time when the plaintiff left Stockton is not made clear in the evidence. 29 It became clear from cross-examination of the plaintiff that she had difficulty in putting dates to the events which happened many years ago. In respect of [NAME] the plaintiff's memory was confused as to the hot water supply for the shower at the property. She thought it was a gas supply while [NAME] clearly recalled it was a wood chip heater which made "pop pop" sounds. The plaintiff does not remember it being a wood chip heater which is unusual. 30 Although this case does not depend solely on the plaintiff's evidence I bear in mind what was said by Bryson AJ in Zahra v Francica [2009] NSWSC 1206 for the need to carefully scrutinise the evidence where a plaintiff alleges facts that depend for proof very largely on the plaintiff's own evidence: "[1] In these proceedings the plaintiff makes claims against [NAME]'s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of [NAME] CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of [NAME] in Eggins v Robinson (2000) NSWCA 61 at [26]:

'… in a claim based on communications with a [NAME] the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.'

[2] A clear re-statement of the principle showing its continuing applicability was made by [NAME] in [NAME] v [NAME] , see particularly paras [26]–[28] inclusive. Powell JA agreed with [NAME] and [NAME] JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in [NAME]'s para [28] observations in the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities." 31 I am not satisfied that the plaintiff lived at [NAME] and it is more likely that she is reconstructing past events. 32 So far as [NAME] is concerned the plaintiff claims she finished the intermediate certificate after her year away from school at [NAME]. It is hard to imagine that she would have done the intermediate certificate as it would have been in her first year at [NAME] in 1958 when she would have been 18 years of age. 33 The plaintiff herself put the end of her schooling in late 1955 or 1956. 34 The plaintiff's brother, [NAME], said that the plaintiff was living with her fiancée. His evidence has a ring of truth about it particularly as he was a year older than the plaintiff and he has no interest in the proceedings. 35 On the evidence I am not satisfied in respect of [NAME] and [NAME] that the plaintiff was in fact living at the house. It is to be noted that she gave her address in her marriage certificate as [ADDRESS], [NAME] but there could be many explanations for this one of which could be the natural modesty at those times. 36 The next important question is whether or not she was dependent upon [NAME] in respect of the provision of accommodation at Stockton. In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. [NAME] J at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and [NAME] must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

37 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and [NAME] chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

38 This passage emphasises the factual nature of dependency be it financial or otherwise.

39 In Benney v Jones (1991) 23 NSWLR 559, the Court of Appeal returned to the issue in a case where the only dependency was emotional, resulting from a homosexual relationship between a party and [NAME]. [ADDRESS] rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 40 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court had the following to say: "I would respectfully disagree with the Master in both respects. The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what [NAME] said in [NAME] v [NAME] at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as [NAME] said in Re [NAME] or to 'other forms of dependence analogous to but distinct from financial dependence' as [NAME] suggested in [NAME] v [NAME] (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a [NAME] or his or her [NAME]-mother when the child lives with the [NAME]-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in [NAME] v [NAME] (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon [NAME], certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

41 In [NAME] v [NAME] (Court of Appeal, 3 December 1991, unreported) [NAME], although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 42 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive. In the present case the plaintiff was a child aged 12 years at the relevant time. With young children dependency becomes complex, as is illustrated in the cases of grandchildren.

43 In respect of grandchildren and stepchildren, a question often arises as to whether they are dependent upon [NAME] or their parent who is also staying with [NAME]. The matter has been considered in several cases. For example, in [NAME] v [NAME]; Gilroy v Neaves [2005] NSWSC 593, Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said: "The following is a convenient summary of the principles which I understand to be applicable to determination whether a [NAME] is an eligible person:

25. The authorities make it clear that a [NAME] is not normally regarded as to be shown to bring a [NAME] into the category of persons for whom [NAME] ought to have made provision. These additional factors usually show that [NAME] has come to assume, for some significant time in a [NAME]'s life, a position more attuned to that of a parent than a grandparent, with direct responsibility for the [NAME]'s support and welfare, or else that [NAME] has undertaken a continuing and substantial responsibility to support the plaintiff financially: see eg [NAME] v [NAME] (unrep) NSWCA 5 December 1991 per [NAME]; Sayer v Sayer (1999) NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46.

26. The authorities are equally clear that the [NAME]'s dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the [NAME]'s dependence is the indirect result of [NAME] providing support and maintenance for his or her own adult child and thereby incidentally benefiting [NAME]'s grandchildren who are directly dependent on the child: see eg Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fullop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799 ; [NAME] v [NAME] (above).

27. Further, the fact that [NAME] occasionally or even frequently made gifts to or for the benefit of the [NAME] does not in itself make the [NAME] wholly or partially dependent on [NAME] for the purposes of section 6 (1) (d). To qualify the [NAME] as a dependant, the gifts or benefits provided by [NAME] must be of such regularity and significance that one can say that [NAME] had clearly assumed a continuing and substantial responsibility for the [NAME]'s support and welfare: se eg Leahey & Trescowthick [1999] VSC 409; [NAME] v [NAME] (above); [NAME] v [NAME] (above); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223." 44 The quotation of Palmer J perhaps reflects the submissions that were made to him, which he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with [NAME]. He went on to say in respect of that period: "[42] I am unable to accept that the period of three months in 1976 when [NAME] and [NAME] came to live with [NAME] at Willow Vale qualifies as the period during which [NAME] was wholly or partially dependent on [NAME] for the purposes of section 6 (1) (d) of the Act. My reasons are as follows: [43] First, whatever assistance [NAME] was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as [NAME] daughter, rather than as direct support and maintenance of [NAME]." 45 The plaintiff's evidence is that she was wholly or partially dependent upon [NAME], becoming part of [NAME]'s family in 1952 from the age of 12. [NAME] provided her with shelter, food, clothing, school uniforms, birthday and Christmas presents and the plaintiff participated in family activities such as camping, picnics, Christmas and birthday celebrations. On a daily basis [NAME] packed her school lunch and cooked her meals. [NAME] referred to the plaintiff as her "daughter" and the plaintiff called [NAME] "mum." [NAME], the defendant, denied this but having regard to his age and the evidence of [NAME], the plaintiff's brother, I accept that this reference occurred. 46 The defendant and the plaintiff's brother, [NAME], contest the plaintiff's evidence, but have equally vague memories of the sleeping and living arrangements at the Stockton property. The defendant recalls going with [NAME] to visit the plaintiff when she was at [NAME] and under cross examination by [NAME] remembered the following situation: "Q. When you moved in with [NAME], sorry to go back in time, it is a bit confusing, but when you moved in with [NAME] at Stockton, [NAME] moved in about the same time as you? A. We all moved in together.

Q. And [NAME] started calling [NAME] mum, isn't that right? A. Well, we all did because our other mother was separated.

Q. Did you always refer to [NAME] as mum? A. Yes.

Q. And you didn't hear [NAME] call [NAME] anything other than mum, isn't that right? A. Not that I recall.

Q. She didn't call her Mrs [NAME] or anything like that? A. No, nothing like that.

Q. When you were living at Stockton, [NAME] used to make your school lunches, didn't she? A. Yes.

Q. And she would make sure you had a school uniform each year? A. I can't remember that.

Q. You had a school uniform at your school, didn't you? A. No, we were too poor in those days. Didn't even wear shoes and socks at some stages of the game.

Q. You used to see that [NAME] had a school uniform, didn't you? A. I have a picture of her at home with a green and white checked frock, but that is getting on a bit in years, isn't it?" 47 The question of whether [NAME] provided the gifts and benefits on the basis that she had assumed a continuing and substantial responsibility for the plaintiff's support and welfare will in part depend upon the relationship between [NAME] and [NAME]. It seems that [NAME] paid money to [NAME] and according to [NAME] his mother had mentioned when they lived at [NAME] that the payment was for board. When the relationship between [NAME] and [NAME] started this would not have been unusual given that [NAME] and his children were going to live with [NAME] in her house after his recent separation. He was also going to build an extra room to accommodate his children. At that stage plainly [NAME] and her husband were still living together. We know from the comments of Dovey J that the alleged desertion was in October 1957, which is several months after [NAME] was purchased. This accords with other evidence such as that given by [NAME] when he describes his father returning to [NAME] to ask [NAME] for a divorce. This surprised [NAME], as he had no idea there was going to be a divorce "until the [NAME] from the west turned up with the babies". Apparently his father moved to live with her somewhere in Melbourne. [NAME] was bought in the name of [NAME] and her husband. 48 Although it seems clear that the relationship between [NAME] and her husband had ended in October 1957 when [NAME] had just moved to [NAME] the marriage breakdown may have occurred during the period at [NAME] or earlier. [NAME] was questioned on this aspect, albeit in the context of where people slept. He said: Q. When you lived with [NAME] at Stockton, you had a bed in a room out the back, isn't that right? A. Yes, in the sunroom.

Q. Was it a room that your father built on to the place? A. Yes it was.

Q. And you and [NAME] and [NAME] lived there in that room, didn't you? A. Yes.

Q. But your father didn't live in there? A. Sometimes.

Q. But not all the time? A. Not all the time.

Q. Did he only live in there when [NAME] came back? A. Yes. 49 Later in his cross-examination:

Q. And you knew there was a place in [NAME] that [NAME] kept? A. Yes, [ADDRESS].

Q. And you say you visited the house at [ADDRESS]? A. Yes.

Q. How many bedrooms where in [ADDRESS], do you remember at all? A. It is in my affidavit.

Q. Well, do you remember now, just looking at me? A. It would have been three bedrooms.

Q. And did [NAME] and [NAME] share a bedroom or have separate bedrooms? A. It was one room each.

Q. Was [NAME] living there? A. Yes.

Q. And where did he stay? A. In the main room.

Q. With [NAME]? A. Yes.

Q. So [NAME] had gone by then, is that right? A. No, [NAME] had bought the house but he used to be on the seas.

Q. So the relationship by that time was your father [NAME] was sharing a bedroom with [NAME], is that right? A. Yes.

Q. Was that the same situation at [NAME]? A. Couldn't say.

Q. You just don't know? A. I would say I couldn't say, no.

Q. Would it surprise you if it was? A. Possibly.

Q. You just don't know? A. No, because it was never in my time.

Q. And also because you spent most of your time at Stockton, didn't you? A. I did. 50 This evidence suggests that some attachment between [NAME] and [NAME] became evident at the time at Stockton. It is to be remembered that [NAME] did not live at [NAME] hence his reluctance to comment on that situation. The recollections of life at Stockton by the defendant and the plaintiff are unreliable given their ages for the purpose of determining when such a strong romantic attachment may have commenced between [NAME] and [NAME] that the situation moved from the position of merely providing [NAME] and his children with accommodation to that of [NAME] being a person in loco parentis in respect of the plaintiff. 51 This was not a situation where a child has returned home to its parent bringing a [NAME] with her when plainly a [NAME] is still dependent upon its mother for daily needs and accommodation. We have here a middle-aged man recently separated and needing to provide a home for his young teenage family. He is given the opportunity to build a bedroom on the back of [NAME] house and presumably he and his children share the rest of the house including the kitchen. It could also be assumed that this was at a time when what might now be called old-fashioned views of the roles of men and women in the house prevailed. As I have indicated I accept the evidence that [NAME] cooked for the whole family and that she provided lunches for the plaintiff as well as her own children. 52 In the passage, which I have quoted above from [NAME], considers the situation of a child living with a stepmother and being looked after by her. He talks of the practical nature of dependency, which he regards as important. This is quite a different situation to that Palmer J was dealing with in [NAME]. There it was a daughter who had returned home. Although the plaintiff was not a stepdaughter at this stage the likelihood of some closeness between [NAME] and [NAME] and the practicalities of the home for those 2 years means that [NAME] filled a de facto mother role in respect of the plaintiff. Bearing these matters in mind I am satisfied that the plaintiff was dependent upon [NAME] at Stockton. This means she is an eligible person. 53 It is necessary under s 9 (1) of the Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re [NAME] (1987) 8 NSWLR 679 at 681 [NAME] described that expression in the following terms: "… the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a [NAME] (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a [NAME]. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 54 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. [NAME] at page 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with [NAME] are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

55 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of [NAME] v [NAME] (Court of appeal, 13 November 1998, unreported) which is a decision of [NAME] and [NAME]. [NAME], who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in [NAME] v [NAME]. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

56 In the circumstances where I have found that the plaintiff was partly dependent upon [NAME] I am satisfied that the appropriate factors warranting would be available. 57 The High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant ``inadequate for [his or her] proper maintenance, education and advancement in life''? The difference between ``adequate'' and ``proper'' and the interrelationship which exists between ``adequate provision'' and ``proper maintenance'' etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of [NAME]'s estate, the totality of the relationship between the applicant and [NAME], and the relationship between [NAME] and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb [NAME]'s arrangements to pay creditors." 58 I turn to consider the plaintiff's situation in life. The plaintiff is 70 years of age. She lives at [ADDRESS] in a house worth about $350,000 which is subject to a mortgage with the Commonwealth Bank of $56,000. She has a very old car that she would like to replace, clothes, furniture and personal effects of no great value. Her income is from a Centrelink pension of $335.50 a week and part time cleaning work of $90 a week which totals $425.50 a week. She needs to pay for medication for osteoporosis and osteoarthritis. 59 It is plain that the relationship between the plaintiff and [NAME] continued until late in the life of [NAME] and that plaintiff helped [NAME] over many years. 60 It is be necessary to consider others who have a claim on the bounty of [NAME]. It this case the only relevant person is [NAME]'s son, [NAME]. [NAME] is 63 years of age and he has retired from his main occupation and now owns a vehicle wrecking business which he bought for $345,000. His partner in the business has left and the business is not profitable. The land on which the business is operated has a mortgage of $455,000 which was borrowed for its purchase. As at 16 April 2009 [NAME] had cash in the bank of $16,600 which he lives on given that the business was making losses every month. 61 During the lifetime of [NAME] supported [NAME]. He paid thousands of dollars for his mother's council rates. In 2006 he paid $6,500 to have the house painted and he paid $3,000 to install air conditioning. Discussion 62 It will be necessary to consider how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The plaintiff is asking for $22,000 to replace her car and $14,500 for repairs to her house. There is no doubt the need for her car to be replaced and her claim is quite modest. 63 In this regard I would have thought she has been left without adequate and proper provision for her advancement in life. The question of whether the property should be designated notional estate is a difficult matter because of the financial circumstances of the defendant. Bearing in mind the factors in s 27 of the Act, I think it is appropriate to allow her some modest legacy to replace her car by an award of a legacy of $20,000. 64 The orders that I make are as follows:

1. The plaintiff to receive a legacy of $20,000. 2. Subject to submissions I order the plaintiff costs on the ordinary basis and the [NAME] on an indemnity basis to be paid out of the estate of [NAME].

3. Interest to run at the rate provided in the Probate and administration act if the legacy is not paid within 3 months and on and from that date.

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