NSW Court of Appeal Overturns Family Provision Order

The NSW Court of Appeal allowed an appeal against a lower court's decision to grant family provision to a respondent. The Court found that the lower court erred in its assessment of the testator's moral obligations and the respondent's financial needs, ultimately dismissing the respondent's claim for family provision.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [NAME] [2017] NSWCA 326 Hearing dates: 20 September 2017 Decision date: 15 December 2017 Before: [NAME] at [1]; [NAME] at [2]; White JA at [8] Decision:

1. Appeal allowed.

2. Set aside the orders (a), (b) and (c) made on 21 December 2016.

3. In their place, order that the summons be dismissed.

4. Order that the respondent pay the appellant's costs of the appeal and the proceedings below.

5. Grant the respondent a certificate pursuant to the Suitors' Fund Act 1912 (NSW) in respect of the costs of the appeal. Catchwords: SUCCESSION — family provision — appeals — [NAME] left estate to one of two [NAME] – both [NAME] were loving and attentive children – respondent had financial need – respondent had received early inheritance - whether [NAME] judge erred in ordering that provision be made under s 59 of Succession Act 2006 (NSW) in favour of respondent — whether appellate intervention warranted — consideration of correctness of "two-stage" approach in application of s 59 of the Succession Act 2006 (NSW) — whether [NAME] judge erred in assessment of appellant's claim on estate - whether [NAME] judge failed to give proper consideration to [NAME]'s assessment of what was the appropriate testamentary disposition Legislation Cited: Administration and Probate Act 1958 (Vic) Family Provision Act 1982 (NSW), s 7 and s 9(2) Succession Act 2006 (NSW), Ch 3 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Poletti v Jones [2015] NSWCA 107; (2015) 324 ALR 641 Underwood v Gaudron [2015] NSWCA 269 Burke v Burke [2015] NSWCA 195 Andrew v Andrew [2011] NSWSC 115 Bates v Cooke [2015] NSWCA 278 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 de [NAME] v de [NAME] [2003] VSC 432 Golosky v Golosky [1993] NSWCA 111; [ID] Hunter v Hunter (1987) 8 NSWLR 573 [NAME] (a pseudonym) v [NAME] (a pseudonym) [2016] VSCA 178 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McKenzie v Topp [2004] VSC 90 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Poletti v Jones [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 [NAME] v [NAME]; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson [2015] NSWCA 297 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 [NAME] v [NAME] [2016] NSWSC 1869 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Texts Cited: [NAME], "Family Provision Applications: A Critique" (2017) 91 ALJ 750 Category: Principal judgment Parties: [NAME] (Appellant) [NAME] (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2017/11042 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2016] NSWSC 1869 Date of Decision: 21 December 2016 Before: [NAME](s): 2015/311247

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. [NAME]: I agree with White JA's reasons and the orders [NAME] proposes. 2. [NAME]: I have read the decision of White JA in draft and agree with the orders [NAME] proposes. Subject to what appears below, I agree with [NAME]'s reasons for upholding the appeal. I will adopt the same description of the parties as adopted by [NAME].

3. I agree with White JA that the [NAME] judge erred in limiting his consideration of [NAME]'s competing claim on the estate to her contributions to [NAME], both financially and in other ways, during [NAME]'s declining years. Fundamentally, [NAME]'s competing claim was founded upon what all members of the family understood as her claim to the [NAME] property upon her parents' death, [NAME] having earlier received the [NAME] property in a way all members of the family understood as comprising an early inheritance. The failure of the [NAME] judge properly to identify [NAME]'s competing claim gave rise to error warranting intervention by this Court.

4. As White JA explains, whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act 2006 (NSW) has been the subject of significant debate in this Court, but the question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood.

5. The decision in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 makes clear the multi-faceted approach necessary to be adopted in considering the question posed by s 59 of the Succession Act. In [NAME] at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that: "[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".

1. What is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. I agree with White JA that while the Court's assessment of what is proper maintenance, education and advancement in life must be made at a time when the Court is considering the application, that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.

2. In adopting the multi-faceted approach necessary when considering the question posed by s 59 of the Succession Act, I agree with White JA that [NAME] has not been given less than adequate provision for her proper maintenance and advancement in life. It follows that the orders proposed by White JA should be made.

3. WHITE JA: This is an appeal from orders of the Equity Division ([NAME]) made on 21 December 2016. [NAME] ordered that provision be made in favour of the respondent out of the estate of the late [NAME] pursuant to s 59 of the Succession Act 2006 (NSW) ([NAME] v [NAME] [2016] NSWSC 1869 ("Judgment")). 4. [NAME] died on 27 October 2014 aged 88. She was survived by her two [NAME] (the defendant and executrix of the estate and appellant on the appeal) and [NAME] (plaintiff and respondent to the appeal). As did the [NAME] judge, in these reasons I will refer to the appellant as Carmelo and to the respondent as [NAME]. I intend no disrespect, but do so for ease of reading.

5. The only substantial property in the estate was [NAME]'s home in [ADDRESS], [NAME] ("the [NAME] property"). The [NAME] judge recorded (at [15]) that at the hearing the parties were agreed that it was necessary to sell the [NAME] property. The estimated value of the [NAME] property was $800,000 and the estimated costs and disbursements of sale were about $30,000. The estate then consisted of cash held of about $19,000. This represented net rents received from the letting of the [NAME] property. [NAME] had also owned shares in a public company and cash held in bank accounts to the value of only $5413. This was the residuary estate. It had been spent in paying debts, funeral or testamentary expenses. 6. [NAME]'s costs of the proceedings calculated on the ordinary basis were estimated to be $42,000 inclusive of GST. [NAME]'s costs estimated on the indemnity basis were estimated to be $50,000 inclusive of GST of which $2,580 had been paid from the estate.

7. By her will of 16 August 2010 [NAME] appointed [NAME] as her executrix and gave her property at [NAME] to her. The residue of her estate was left to both [NAME] in equal shares. It was common ground that [NAME] would receive nothing after payment of debts, funeral and testamentary expenses from her half share of the residue. 8. [NAME] had a good relationship with their mother. It was accepted that both were loving and dutiful [NAME].

9. The [NAME] judge ordered that provision be made for [NAME] in a lump sum that equated to 40 per cent of the net proceeds of sale of the [NAME] property. [NAME] ordered that [NAME]'s costs calculated on the ordinary basis, and the balance of [NAME]'s costs calculated on the indemnity basis be paid out of the estate. [NAME] ordered that the costs of the proceedings be included in the calculation of the net proceeds of sale.

10. On the basis of the estimated value of the [NAME] property [NAME] estimated that [NAME] would receive $268,400 by way of provision (Judgment [138]). [ADDRESS] was told that the property sold for $820,000 and the effect of the [NAME] judge's orders was that [NAME] was to receive provision of $285,000.

[NAME]'s Circumstances 1. At the time of the hearing [NAME] was 52 years of age. She lived with her husband and three adult children in a house at Ropes Crossing, a suburb of Blacktown. It is a five-bedroom property that, at the time of the hearing, had an estimated value of $840,000. It was subject to a mortgage to secure loans to the Commonwealth Bank totalling approximately $527,000. The property is jointly owned by [NAME] and her husband.

2. In July 2016 [NAME] commenced casual employment as a carer with [NAME].

3. In November 2015 [NAME]'s husband [NAME] was made redundant. He obtained casual employment in August 2016 as a forklift operator and storeman. [NAME] deposed that based on her husband's average weekly income, her average income from part-time employment, and an upcoming Newstart Allowance, her and her husband's weekly income (including board paid by their children) totalled $1,262 and their expenses totalled $1,208. The principal expense was mortgage payments totalling $590 per week. [NAME] deposed that it was only when she received weekend shift allowances that her and her husband's income equalled or exceeded their weekly expenses. She deposed that she and her husband were in arrears in repaying their car loan and in paying council rates. The [NAME] judge observed that their expenditure on mortgage repayments was lower than it would be in the future because the bank had allowed them to enter into a payment schedule under which they made lower repayments until the end of 2016 (at [94]).

4. On 8 April 2016 [NAME]'s solicitors advised [NAME]'s solicitors that [NAME] did not raise her financial circumstances as an issue in the proceeding. That is to say, she did not put forward a competing claim on the estate on the basis of her financial position.

[NAME]'s Early Inheritance 1. There was a reason for [NAME]'s leaving her only substantial asset to [NAME].

2. In 1956 [NAME] and her husband, [NAME] had purchased a property in [ADDRESS], [NAME] (or Granville) ("the [NAME] property"). This was the family home until [NAME] moved to a new house in [ADDRESS], [NAME] in 1975. The [NAME] property was rented, including for a period of about two years, to cousins of the family. [NAME] married her husband, [NAME], on 25 August 1984. [NAME] transferred the [NAME] property to [NAME] unencumbered and as a gift in September 1985. In her oral evidence, [NAME] described the position thus: "[NAME] Q. Then in 1984, round the time you married Mr [NAME] gave you a property? A. Yes. Q. At [NAME], correct? A. Yes. That was before we got married, yes. Q. Shortly before you got married? A. Yes. Yep. Q. You say it was a wedding present at paragraph 31 of your affidavit? A. Part thereof. Q. What do you mean, part thereof? A. It was considered, as my father said, as a wedding present and [early] inheritance. Q. [Inheritance]? A. Yes. Q. You knew that at the time? A. Absolutely, yes. Q. You knew what the [arrangement] was? A. Yes. Q. You knew the [NAME] property was held for your sister? A. Yes, I did. Q. [NAME], I think you said later on, were very concerned to be fair to both of you? A. Mm hmm. Yes."

1. The transfer of the [NAME] property from [NAME] to [NAME] is in fact dated 27 September 1985.

2. On 19 September 1985 [NAME] both made wills by which they appointed [NAME] as their executrix. Each left their whole estate to their spouse if their spouse survived him or her for two months, and in the event of their spouse not doing so they left the [NAME] property to [NAME]; and their personal estate to [NAME] and [NAME] equally. 3. [NAME] deposed that: "4. In or about July 2007 I had a conversation with the defendant in the presence of my father and my mother ('[NAME]'). The conversation contained words to the effect of: She [scil. I] said: 'I am not happy with mum and dad's Will because you're going to get the house at [NAME] and we're not getting enough' I [scil. She] said: 'OK then, if you don't want to pay for a solicitor, I'll make an appointment and we'll get an appointment at [NAME]. You can have that one explained to you and then you can have a new one made.'" 1. [NAME] deposed that she, her mother and her sister attended at the [COMPANY] in September 2007 and met a solicitor, a [NAME], who advised that [NAME]'s will should be updated. According to [NAME], the solicitor suggested that as [NAME] already had the [NAME] property, the fairest way to divide the balance of the estate was for [NAME] to get 75 per cent and [NAME] 25 per cent. She deposed that her mother said "OK, but we'll have to talk about it". The solicitor prepared a draft will which, if executed, would have provided for [NAME] to have left her property to her husband if he survived her by 30 days, and otherwise to have divided personal belongings and contents of the home between the two [NAME] equally, and to have left her estate as to a 75 per cent share to [NAME] and a 25 per cent share to [NAME]. [NAME] deposed that there was a conversation between her and [NAME] to the following effect: "9. I remember having a conversation with [NAME] after we left the solicitor's office. The conversation was something like: [NAME]: 'What do you think of the will?' Me: 'I'm not happy with that will. It is not what our father and mother want. It has always been one house for you which you have already received, and one house for me when they die.'" 1. [NAME] deposed to later conversations with her parents as follows: "11. About a week later when I went to see my mother and father, my father was very upset and said to me something like: 'I do not want trouble with you and [NAME]. I want to do things fair. [NAME] has already received her property and [ADDRESS] is for you. Always has been one house each.'

12. About three weeks later when I was again with my mother and father, my father said something like: 'I am not happy with this will that [NAME] got the solicitor to do. That is not what we want. It has always been one house each and [NAME] has already had hers.'

13. My father then said to my mother: 'Give me a piece of paper and we will write it out again.'"

1. The note that was written out and signed by [NAME], as translated into English, stated as follows: "We [NAME] We declare we have two houses one is [xx] [ADDRESS], Granville and one house at [xx] [ADDRESS], [NAME]. The house at [xx] [ADDRESS], Granville was given to our daughter [NAME], and the house at [xx] [ADDRESS], [NAME] will be given to our daughter [NAME]."

1. The paper is dated 8 October 2007.

2. The [NAME] judge did not refer to this evidence, but [NAME] was not cross-examined on it and it was not disputed by [NAME]. 3. [NAME] died on 6 May 2010. [NAME] gave evidence that after his death her mother moved to live on a farm on which [NAME] and her husband live and decided that she would have the [NAME] property cleaned out and rented. She deposed that she called [NAME] to see if she could come and help move their parents' belongings out of the house, but she refused saying words to the effect: "[xx] [ADDRESS] has nothing to do with me because I already took my house at [ADDRESS]". 1. [NAME] did not dispute this evidence and [NAME] was not cross-examined on it. 2. [NAME] deposed that a few months after their mother's death she asked [NAME] if she was ready to see a solicitor to have the will read and [NAME] replied: "No thanks, it's got nothing to do with me. [NAME] is yours. There's nothing left for me anyway so there's no point in me coming at all."

1. Again, [NAME] did not dispute this evidence and [NAME] was not cross-examined on it.

2. This is not simply a case where [NAME] and her husband had made a substantial gift to [NAME] in 1985. Rather, there was an understanding, shared by all family members, that that gift was an early inheritance for [NAME] and that [NAME] would receive the [NAME] property from the estate of the last surviving parent.

3. During her cross-examination [NAME] disputed that the document referred to at [27] above was in her parents' handwriting. This led to the [NAME] judge's intervening and to [NAME]'s giving the following evidence in response to [NAME]'s questions: "[NAME]: I'm sorry, [NAME], I'm having a little bit of difficulty understanding that evidence. Q. On the one hand you say that it was never in dispute that so long as [NAME] had two properties one property was to go to you and the other property was to go to the defendant? A. That's correct, yes. Q. In the events which occurred, you in fact received the [NAME] property in 1985? A. That's yeah. Q. And in answer to one of the first questions [NAME] asked you you agreed that from that point on you always understood the position to be that [NAME] wanted the [NAME] property to go to the defendant? A. Yes. Q. Have I captured your evidence correctly? A. Yes, your Honour, it's just over the period-- Q. Well, could you just look at paragraph 18? A. In? Q. Of the defendant's affidavit, which is the translation of the Italian? A. Okay. Q. And tell me what in the translation is inconsistent with what you've always known? A. It's not the translation, your Honour. I just don't believe this to be the true handwritten by my mother. Q. But leave that aside, what in the document in relation to intention-- A. Mm-hmm. Q. Is inconsistent with what you've known from at least 1985? A. 1985, that was understanding, that we had our properties. Q. Correct, so that's what this document says, isn't it? A. That's correct, yes. Q. And what I'm troubled about is, if that's what had always been known-- A. Mm-hmm. Q. To you and to the defendant from discussions that you've had with [NAME], I don't understand why you're asserting that this is a document that wouldn't have been written by [NAME] if it did nothing more than confirm what you've known since 1985? A. Mm-hmm. Q. Would you explain that to me? A. It's only with conversations of my father in 2008 and my mother that they wanted me to be considered in, to be given a consideration because as my father said I spent so much money repairing the house that when me and Mummy are gone your sister could give you a little bit of money and-- Q. I see? A. That's all it's about, it's not about getting half or, it's just asking for a little bit of provision, your Honour."

[NAME]'s Financial History 1. [NAME] and her husband sold the [NAME] property in February 1989 for $136,000. ([NAME] deposed that the property was sold for $125,000, but this was erroneous.) She and her husband and young daughter moved in with [NAME] in the [ADDRESS], [NAME] property. [NAME] deposed that she and [NAME] signed contracts for the purchase of a "house/land" package at Plumpton, but withdrew from the transaction and lost their deposit on the purchase. She deposed that they then bought a property at Doonside into which they moved prior to the birth of their second daughter on 16 July 1989. She deposed that in 1990 [NAME]'s courier business started to fail and they struggled to pay their mortgage over the Doonside property. They purchased the Doonside property for $144,000. They executed a mortgage over that property on 8 May 1989 to secure a sum of $80,000. Additional mortgages were taken out between 1997 and 2007. As at April 2007 the mortgage debt was $285,000. The mortgage was discharged in June 2010 when the property was sold for $420,000 (Judgment [31]). 2. [NAME] bought an investment property in Southport in Queensland in February 1998 for $169,900 with mortgage finance of $141,000. The property was sold at a loss in 2002. It was sold for $139,900 (Judgment [32]).

3. The Ropes Crossing property was purchased in May 2009 for $560,000 with a mortgage of $528,958 (at [33]).

4. In cross-examination [NAME] was taken through entries on bank statements for her and her husband's joint account. She gave the following evidence: "Q. … What I'm putting to you is that you haven't made any particular effort to reduce your mortgage? A. We were just allowing it to continue as per normal. Q. Yes? A. Yes. Q. And that instead you have chosen to spend your money on other things? A. Other things, yes. Q. … I want to suggest to you that your pattern of spending was not to make any conscious effort to save. Do you agree with that? A. No, not exactly, no, I don't. Q. … I want to suggest to you, that every time you got a big lump sum, what you did was to put the money either into renovations or into buying another property or buying an investment property and that has resulted in you getting more and more debt over the years. Do you agree with that proposition? A. Not totally. Part thereof. Q. What part do you agree with? A. Yes, we tried to get into negative geared properties, but we didn't – it's just the circumstances of the way things went where you would try to get ahead with buying a purchase of a property and I fell behind-- Q. Yes? A. --through, well, tenants not paying rent and falling behind. So therefore I did spend a lot of time robbing Peter to pay [NAME], so to speak, so juggling accounts, trying to pay outstanding bills. So, yes, there was money spent but it wasn't all on flash cars and fancy holidays. Q. I'm not suggesting that to you. A. I know, it's just how it feels. Q. But what I'm saying to you is-- A. The money has been spent, yes. Q. And the point is, I will try to be very fair to you? A. Mm. Q. You were given a business for free, the hairdressing salon. You were also given a house unencumbered. That, I would suggest to you, on any view, is a good start in life by [NAME]. You would accept that, don't you? A. It was, and the business was at a loss when we first bought it and we built it up. Q. Yes, through [NAME]? A. And I sold it through profit of hard work. Q. And over the years every decision that you have made since then has been to try to get ahead? A. To try and save for the future, for retirement. Q. But they have all been your choices, haven't they? A. Yes, yes, tried to make good choices. Q. Yes. When you have had money, you have a choice whether or not to reduce your mortgage or whether or not to spend it on other things such as getting a bigger property for more debt. You understand that, don't you? A. Yes. Q. And you chose the latter, didn't you? A. Mm, I thought I made the right choice at the time, which was for-- [NAME] … Q. The question was you've had a choice to, for example, put money that you've received into reducing the mortgage but you've chosen to adopt a course which has resulted in, for example, purchasing a larger property which has required more debt. Do you agree or disagree? … A. I agree. Just didn't work out." 1. [NAME] submitted before the [NAME] judge that [NAME]'s and her husband's current financial position was to a large extent of their own making, being partly the result of poor investment choices and partly through over-extending themselves with borrowings used for living expenses. [NAME] noted [NAME]'s submission that she should not have to lose part of her inheritance to bail out [NAME] and her husband from the consequences of their poor investment decisions (at [118]). [1] [NAME] found that there was no suggestion that [NAME] and her husband had acted recklessly or frivolously in choosing the investments that they made, that they had not lived a particularly luxurious lifestyle and their lifestyle choices did not disentitle [NAME] to provision out of the estate (at [118], [120], and [124]). There was no error in those findings but they do not meet [NAME]'s submission.

[NAME] Judge's Reasoning 1. [NAME]'s claim for an order for provision out of [NAME]'s estate was made pursuant to s 59(1)(a) and (c) and (2) of the Succession Act. Section 59 relevantly provides: "59 When family provision order may be made (cf FPA 7–9) (1) [ADDRESS] may, on application under Division 1, make a family provision order in relation to the estate of a [NAME], if the Court is satisfied that: (a) the person in whose favour the order is to be made is an [NAME], and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of [NAME], or by the operation of the intestacy rules in relation to the estate of [NAME], or both. (2) [ADDRESS] may make such order for provision out of the estate of [NAME] as the Court thinks ought to be made for the maintenance, education or advancement in life of the [NAME], having regard to the facts known to the Court at the time the order is made."

1. As a daughter of [NAME] she was an "[NAME]" (s 57(1)(c)). Section 60(1)(b) of the Succession Act provides that the court may have regard to matters set out in subs (2) for the purpose of determining whether to make a family provision order and the nature of any such order. Subsection 60(2) provides a list of numerous matters to which the court may have regard without assigning any priority between them. They include the following: "60 Matters to be considered by Court (cf FPA 7–9) … (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and [NAME], including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by [NAME] 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 [NAME]'s estate, (c) the nature and extent of [NAME]'s estate (including any property that is, or could be, designated as notional estate of [NAME]) 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 [NAME]'s estate, … (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 [NAME]'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 [NAME] or to the welfare of [NAME] or [NAME]'s family, whether made before or after [NAME]'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 [NAME], either during [NAME]'s lifetime or made from [NAME]'s estate, (j) any evidence of the testamentary intentions of [NAME], including evidence of statements made by [NAME], (k) whether the applicant was being maintained, either wholly or partly, by [NAME] before [NAME]'s death and, if the Court considers it relevant, the extent to which and the basis on which [NAME] 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 [NAME], (n) the conduct of any other person before and after the date of the death of [NAME], … (p) any other matter the Court considers relevant, including matters in existence at the time of [NAME]'s death or at the time the application is being considered."

1. The [NAME] judge observed (at [39]) that whether adequate provision is made for the proper maintenance, education or advancement in life of the plaintiff will always, as a practical matter, involve an evaluation of what provision was made for the plaintiff, and an evaluation of his or her needs that cannot be met from his or her own resources (citing Hunter v Hunter (1987) 8 NSWLR 573 at 575 per [NAME]). If taken in isolation, this statement might suggest that a claimant's "needs" when compared with the provision made for the claimant out of the estate, should be the dominant consideration. However, [NAME] immediately added that: "[40] Although the existence or absence of "needs" which the applicant cannot meet from her, or his, 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 [NAME]'s estate was not such as to make adequate provision for his or her proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 ([NAME])." 1. [NAME] further discussed the concept of "need" by reference to Victorian and South Australian decisions (de [NAME] v de [NAME] [2003] VSC 432; Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41]; and [NAME] (a pseudonym) v [NAME] (a pseudonym) [2016] VSCA 178). In relation to the latter decision [NAME] said that: "[43] In [NAME] (a pseudonym) v [NAME] (a pseudonym) [2016] VSCA 178, the [ADDRESS] of Appeal confirmed, at [65], that it was essential to success that a claimant establish need, but, at [38] and [66], that need is a relative concept, which [is] to be assessed in light of all the circumstances having regard to the factors in s 91(4)(e)-(p). It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant's assets and income are just two facts that go into the melting pot to determine whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant."

1. In [NAME] (a pseudonym) v [NAME] (a pseudonym) the [ADDRESS] of Appeal was concerned with the Administration and Probate Act 1958 (Vic) that gave jurisdiction to a court to make an order for provision out of a [NAME]'s estate where the claimant had been left without adequate provision for his or her "maintenance and support" (s 91(3) as it was at the relevant time). [NAME], with whom [NAME] agreed, said (at [65]) that the Victorian authorities made it clear that establishing need was essential under the Act as it stood. Her Honour noted (at [65]) that in Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189, Bryson JA, with whom Giles JA and Stein AJA agreed, said that it was appropriate to look beyond needs because the concept of "advancement in life" could take a consideration well beyond needs. But the Victorian provision was different.

2. The [NAME] judge went on to observe (at [45]) that the inquiry is not confined only to the material circumstances of the applicant, but that the whole context must be examined.

3. In the course of [NAME]'s explication of the relevant principles, [NAME] observed that the jurisdiction to make an order for provision is not to be exercised according to "idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon [NAME]'s freedom of testation" (citing Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ; [1962] HCA 19 and McKenzie v Topp [2004] VSC 90 at [63]). 4. [NAME] referred (at [65]) to what I said in [NAME] v [NAME]; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], citing [NAME] J in Stott v Cook (1960) 33 ALJR 447 at 453-454, that respect should be given to the judgment of a competent testator as to what provision is adequate for a person's proper maintenance and advancement in life if it can be seen that the testator has given due consideration to the claims on his or her estate, in recognition that the testator is better placed to make such a judgment. 5. [NAME] summarised principles applicable to a claim by an adult child (at [69]), observing that those principles were not to be elevated into rules of law or rigid formulae (at [73]-[75]). [NAME] noted that a very similar statement of principles had been cited with approval in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [21] and [65]-[67]).

6. The [NAME] judge then considered additional factual matters by reference to the factors referred to in s 60(2). In relation to s 60(2)(a) [NAME] found that the relationship between [NAME] and [NAME] was close and endured until [NAME]'s death. They kept in contact, with [NAME] visiting or being visited by her mother. They also holidayed together at different places in New South Wales, including at [NAME]'s Central Coast holiday home. In the latter years [NAME] did some housework for [NAME] and cared for her father. [NAME] noted that [NAME] received a carer's benefit whilst doing so. After 2012 [NAME] regularly stayed with [NAME] at the Ropes Crossing property. [NAME] was satisfied that the relationship between [NAME] and her mother was a close and loving relationship.

7. In relation to s 60(2)(b) the [NAME] judge referred to some general principles, without applying them to the facts of this case. Section 60(2)(b) refers to the nature and extent of any obligations or responsibilities owed by [NAME] to the applicant, or, relevantly, any beneficiary of [NAME]'s estate. The [NAME] judge noted that this factor required a balancing of potentially competing obligations as between the applicant and the beneficiary (at [82]). [NAME] did not refer in this connection to the moral obligation of [NAME] to leave the [NAME] property to [NAME] in accordance with the well-understood family arrangement that she would receive that property in recognition of the fact that [NAME] had received an early inheritance of the [NAME] property. [NAME] recognised that obligation in her will.

8. In relation to s 60(2)(d) (which refers to the financial resources and present and future financial needs of, relevantly, [NAME] and [NAME]), the [NAME] judge noted [NAME]'s financial circumstances as summarised above and noted that she ran a very small hairdressing business from which she earned approximately $50 per week. [NAME] said: "[94] However, their current expenditure on mortgage repayments is lower than it will be in the future, because as they were experiencing financial difficulties, they requested the bank to allow them to enter into a payment schedule under which they make lower repayments until the end of 2016. They are also currently in arrears in repaying their car loan and their council rates."

1. The finding that [NAME]'s and her husband's mortgage repayments would increase after the end of 2016 was initially challenged on appeal. However, that challenge was ultimately not pressed.

2. The [NAME] judge noted that [NAME] did not raise her financial "and material" circumstances. The only evidence of [NAME]'s financial circumstances was that she and her husband live on a farm of 6.25 acres from which she operated a chicken-raising business and they own a house at Copacabana on the Central Coast which was mortgaged for about $350,000. No evidence was given as to the value of the farm or the house. [NAME] has two adult children, one of whom has been diagnosed with motor neurone disease and who lives with [NAME] and her husband in a granny flat on the farm. Currently he is relying on his superannuation and savings to support his own family, but [NAME] and her husband will support him when his assets are depleted (at [97]).

3. The [NAME] judge had noted at [25] of his reasons, that [NAME] was entitled to elect to remain silent about her financial resources and needs, and simply look to the Court to not disregard [NAME]'s freedom of testamentary disposition and her preferable disposition to [NAME] as a beneficiary, regardless of her financial position or needs.

4. After considering matters arising under s 60(2)(f), (g) and (h) to which it is not necessary specifically to refer, the [NAME] judge addressed the provision made for [NAME] by [NAME]. [NAME] noted that [NAME] accepted that effectively she had been given the [NAME] property by her parents and she acknowledged that the gift of that property to her had been on the understanding that when both parents had died the [NAME] property would be devised to [NAME]. [NAME] found that this was a "clear and unwavering intention, known by both [NAME] of [NAME] for more than 30 years" (at [102]). [NAME] also acknowledged that her parents had purchased a hairdressing salon for her in about 1981 which she sold several years later for $21,000 (at [103]).

5. In relation to s 60(2)(j) the [NAME] judge again referred to [NAME]'s testamentary intentions to leave the [NAME] property to [NAME] (at [106]-[108]). [NAME] rejected [NAME]'s denial that the document dated 8 October 2007 (referred to at [27] above) had been written by [NAME]. [NAME] considered matters arising under s 60(2)(k), (l) and (m), noting that there was no-one, other than her husband, liable to support [NAME] and noted that there was no relevant (disentitling) conduct.

6. In relation to s 60(2)(n) the [NAME] judge found that [NAME] was a loving daughter to [NAME] and was [NAME]'s principal carer and that [NAME] had a very strong competing claim on [NAME]'s bounty. [NAME] said that the personal care [NAME] provided, particularly in [NAME]'s last years before moving into a nursing home, and the assistance she provided [NAME] with activities of daily living should not be underestimated (at [114]).

7. As noted above the [NAME] judge found that the poor investment decisions, if that was what they were, of [NAME], or other lifestyle choices did not disentitle her from obtaining provision from the estate.

8. Under the heading "DETERMINATION" the [NAME] judge said: "[128] Basten JA wrote in Chan v Chan [2016] NSWCA 222 at [22], that the Court must remember: 'A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator.' [129] Thus, in determining what is adequate for the proper maintenance, education or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what [NAME] regarded as superior claims or preferable dispositions. [130] It is beyond argument that [NAME] made generous provision for the Plaintiff during her lifetime. [NAME] and her husband provided her with a business which was sold for a reasonable amount (indeed three times its purchase price). In addition, they gifted to the Plaintiff an unencumbered home, which the Plaintiff then encumbered to enable repairs and renovations to be made. This demonstrated that [NAME] (and her husband) had done everything in her (and their) power to give the Plaintiff the best start in life possible bearing in mind her (and their) financial circumstances. [131] However, the level of provision made during the lifetime of [NAME] for the Plaintiff, alone, cannot determine what is 'proper' on [NAME]'s death. Of course, the fact that generous provision has already been made is one of the matters to be taken into account in determining what is 'proper'. The situation must be looked at when the Court is determining the Plaintiff's application. [132] Furthermore, even though the applicant manages to live within her, or his, income, does not mean that the income fulfils all her or his reasonable needs. [133] The Defendant is the only other person who would have any claim on [NAME]'s bounty. She has not alleged a financial claim on that bounty. [ADDRESS] does not ignore her claim as a beneficiary, being the principal chosen object of [NAME]'s testamentary bounty. It is necessary for the Court to consider the individual circumstances of each of [NAME]'s children at the date of the hearing. Her competing claim is not founded upon any competing financial need, but on her contributions to [NAME], both financially and in other ways, during [NAME]'s declining years. [134] When the Court considers the Plaintiff's financial and material resources, one cannot but reach the conclusion that the provision made for her in the Will of [NAME] is inadequate for her proper maintenance and advancement in life.

Accordingly, the Court's jurisdiction to make an order is established. … [136] In [NAME] v [NAME] at 366–367, [NAME] 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.' [137] This is a case in which, firstly, the Plaintiff has a need to meet her obligations, all of which cannot be met from her own resources. Secondly, the value of [NAME]'s estate provides the means to alleviate that need, at least in part. Thirdly, having regard to the competing claim upon [NAME]'s bounty, which does not include any competing financial claim by the Defendant, a proportion of the estate can be used to alleviate part of the Plaintiff's needs. [138] It seems to me that the Plaintiff should receive a lump sum that equates to 40 per cent of the net proceeds of sale of the [NAME] property. The net proceeds of sale should be calculated by deducting from the gross sale price, the costs and expenses of sale, including agent's commission, advertising costs, and the legal costs of sale. The legal costs of these proceedings, namely the Plaintiff's costs calculated on the ordinary basis and the balance of the Defendant's costs, calculated on the indemnity basis should also be deducted from the gross sale price. [139] Earlier, I have calculated the estimate of the value of the distributable estate to be about $690,000. Deducting $19,000, being the cash, results in the net proceeds of sale being about $671,000, with the result that the Plaintiff would receive an estimated lump sum of $268,400. This equates to almost one half of the liabilities that the Plaintiff and her husband have disclosed. If used to reduce liabilities, the Plaintiff may have available more income. Alternatively, the amount, or part of it, could provide a sum for exigencies of life."

Grounds of Appeal 1. Counsel for [NAME] contended that the [NAME] judge erred in finding (at [137]) that [NAME]'s obligations could not be met from her own resources. Counsel also contended that the [NAME] judge erred by giving no weight or manifestly inadequate weight to the provision made for [NAME] by her parents during their lifetime and [NAME]'s intention that [NAME] should receive the [NAME] property because [NAME] had received the [NAME] property as an early inheritance. [NAME] submitted that the [NAME] judge's reasons were inadequate. She submitted that paragraphs [133] and [134] of the [NAME] judge's reasons (which are quoted at [60] above) contain the entirety of the reasoning process and there was no attempt to analyse the application of the principles which [NAME] had set out to the particular circumstances of the case. [NAME] also complained that there was no elucidation as to how the judge determined that 40 per cent of the net proceeds of sale of the [NAME] property would be the measure of adequate provision for [NAME]'s proper maintenance and advancement in life. The [NAME] judge noted that based on the estimate of the value of the distributable estate, [NAME] would receive an estimated lump sum of $268,400 (at [139]). In the course of his opening submissions below, [NAME], who appeared for [NAME], was asked by the [NAME] judge to identify how much provision [NAME] was seeking. [NAME] said that her claim was for $200,000. Thus the provision awarded was more than one-third greater than the provision sought. Counsel for [NAME] submitted that this bespoke error.

2. In their written submissions counsel for [NAME] submitted that: "10. … the overarching submission of the appellant is that this was a clear case where the [NAME], who were in a better position than the Court to determine what provision was proper, were seeking to treat each daughter equally over the course of their lifetime, so that the terms of the Will effected a process of effecting an even balance overall between them and fulfilling the promises made to each daughter, by bestowing on the elder daughter a gift equivalent to that received by her younger sister more than 30 years earlier. 11. … It is readily apparent that a wise and just testator, having already given the respondent both an unencumbered property and the means to derive an income over her lifetime was entitled to make no provision for her adult child in the will, so as to fulfil a promise made to accord equal provision to her other adult child." (citation of authority omitted) (emphasis in original)

1. In his oral submissions [NAME], who appeared with [NAME] for [NAME] on appeal, but not at trial, focused on whether the [NAME] judge had erred in his assessment that [NAME] faced a financial need, rather than a desire for a financial advantage (citing Smith v Johnson [2015] NSWCA 297 at [83]-[85]). 2. [NAME], who appeared for [NAME] on appeal as he had below, submitted that the [NAME] judge had taken all relevant matters into account and that the matters identified under the heading "DETERMINATION" were to be read as a continuation of [NAME]'s earlier reasons in which the gift of the [NAME] property to [NAME] and the family understanding that the [NAME] property would be left to [NAME] had been clearly identified (particularly at [102]). I agree with that submission. 3. [NAME] submitted that in dealing with what was said to be the first or jurisdictional question of whether adequate provision had been made for the plaintiff's proper maintenance and advancement in life, the [NAME] judge had regard to the totality of the relationship between [NAME] and [NAME]; the nature, extent and character of the estate and the other demands upon it; the claims which [NAME] regarded as superior to the claim of [NAME]; that generous provision had been made for [NAME] during [NAME]'s lifetime; that [NAME] did not allege a financial claim on [NAME]'s bounty; that [NAME]'s claim was not to be ignored; and that [NAME]'s claim was to be found in her contributions to [NAME], both financially and in other ways during [NAME]'s declining years. [NAME] submitted that the [NAME] judge had taken all relevant considerations into account and that his assessment that adequate provision for [NAME]'s proper maintenance and advancement in life had not been made was an evaluative judgment that should not be interfered with. He also submitted that there was no error in the [NAME] judge's assessment of [NAME]'s financial need.

Consideration 1. The [NAME] judge's finding that inadequate provision had been made for [NAME]'s proper maintenance and advancement in life was an evaluative decision that can only be disturbed on appeal if there were an error of principle, a material error of fact, a failure to take some material consideration into account, or the converse, or the result is so unreasonable or plainly unjust to bespeak error of such a kind (Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [54]-[55] per Beazley P; Bates v Cooke [2015] NSWCA 278 at [59]-[61] per Sackville AJA).

2. It has been said many times that the evaluative judgment made under s 59(2) is fact specific and that the general words of the provision cannot be read down by applying constraints that are not to be found in the text of the legislation (e.g. [NAME] v [NAME] at [67]). 3. [NAME] also submitted that the [NAME] judge erred in applying a two-stage test in the application of s 59. In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 the plurality (Mason CJ, Deane and McHugh JJ), in addressing the structure of predecessor legislation (s 7 and s 9(2) of the Family Provision Act 1982 (NSW) (the "Family Provision Act")) said that a two-stage inquiry was engaged, the first involving a jurisdictional question of whether the applicant had been left without adequate provision for his or her proper maintenance, education and advancement in life that, though it involved the making of value judgments, was a question of objective fact to be determined at the date of hearing (at 211), whereas the second stage did involve an exercise of discretion in the accepted sense (at 211). Whether the same two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act has been the subject of significant debate (e.g. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; Poletti v Jones [2015] NSWCA 107; (2015) 324 ALR 641; Underwood v Gaudron [2015] NSWCA 269; Burke v Burke [2015] NSWCA 195).

4. The question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood. In relation to the task of an appellate court, the reason the question should be of no real significance is that, as the plurality said in [NAME] v [NAME] (at 212), and as has been repeatedly held subsequently, even at the first stage, the principles that govern appellate review of discretionary decisions apply. The plurality approved the following comments of [NAME] in Golosky v Golosky [1993] NSWCA 111; [ID] at 13: "Unless appellate courts show restraint in disturbing the evaluative determinations of [NAME] decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

1. If the two-stage approach is still to be adopted, the same considerations apply at both stages. The plurality said in [NAME] v [NAME] (at 209-210): "The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of [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."

1. The risk of error arises if a two-stage approach is adopted and it is assumed that the first stage requires an evaluation of whether the applicant has been left without adequate provision for his or her maintenance, education or advancement in life, thereby focusing primarily, or perhaps exclusively, on the applicant's financial needs. An applicant's financial needs and the financial needs of other persons with claims on a [NAME]'s testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs."

1. The question is whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant. I agree with Basten JA's reasoning in [NAME] v [NAME] that the structural changes between the Family Provision Act and Ch 3 of the Succession Act mean that a two-stage approach is generally no longer appropriate. In Poletti v Jones [2015] NSWCA 107 Basten JA (with whom [NAME] and [NAME] agreed) accepted that there may be circumstances in which that approach is preferable (at [19]). However, as Allsop P said in [NAME] v [NAME] (at [6]) this may be an analytical question of little consequence.

2. The risk is that if a two-stage approach is adopted, the first stage may be seen as confined to assessing the adequacy of the provision made for the applicant to satisfy his or her financial needs. In [NAME] v [NAME] JA said (at [68]): "If it were correct to adopt a two stage approach, there was some force in the appellant's submission that she should have succeeded at the first stage. Thus it was not in doubt that the will made no provision for her maintenance or advancement in life, let alone 'adequate provision', within the meaning of s 59(1)(c). That she had material needs which might have been diminished by provision under the will was also uncontested.

Accordingly, unless the reference to 'adequate' provision is to be treated as engaging with the various factors which might provide a reason not to make an order, the appellant satisfied s 59(1)(c). If the need to assess adequacy for that purpose did encompass all the factors relevant to determining whether an order ought be made pursuant to subs (2), the elements of the two possible stages would be common; if they were not common, no analysis has been provided as to which factors are relevant only to s 59(1)(c) and which are relevant only in making a determination pursuant to s 59(2)."

1. If a two-stage approach is adopted, it is erroneous to treat the first stage as confined to an assessment as to whether adequate provision has been made for the applicant's material needs. That is clear from [NAME] v [NAME] in the passage quoted at [70] above that at the first stage of the inquiry (under the Family Provision Act) the question was whether the provision was inadequate in all the circumstances for the applicant's "proper" maintenance, education and advancement in life, and that that required regard to be had to not only the applicant's financial position, but the size and nature of the estate, the totality of the relationship between the applicant and [NAME] and the relationship between [NAME] and others with claims upon his or her bounty.

2. Did the [NAME] judge fall into the error of treating the first stage of the inquiry as directed solely or primarily to the adequacy of the provision for [NAME]'s needs? On one reading of [134] of the [NAME] judge's reasons (set out at [60] above) [NAME] considered only [NAME]'s financial position in reaching his conclusion that inadequate provision had been made for her proper maintenance and advancement in life. But the paragraph should not be read in isolation. A fair reading is that the [NAME] judge considered that, notwithstanding the other factors to which he had earlier made reference, the dominant and determinative consideration was [NAME]'s financial need. That in itself does not involve an error of principle.

3. However, in my view the [NAME] judge did err in principle in his assessment of the significance of [NAME]'s having been given the [NAME] property in 1985 as her early inheritance. There is no doubt that the [NAME] judge took that transaction into account as one of the material considerations. [NAME] did so in considering the provision made for the applicant by [NAME] during [NAME]'s lifetime (at [102] referred to at [56] above) and as evidence of [NAME]'s testamentary intentions (at [106]-[108] referred to at [57] above). In the section of his reasons headed "DETERMINATION" the [NAME] judge referred to [NAME]'s having made generous provision for [NAME] during her lifetime by, amongst other things, giving her an unencumbered house (at [130] referred to at [60] above). [NAME] then went on to say that the level of provision made during the lifetime of [NAME] could not alone determine what was proper on [NAME]'s death, albeit it was one of the matters to be taken into account in determining what is "proper".

4. But in considering [NAME]'s competing claim on the estate, the [NAME] judge said (at [133]) that: "Her competing claim is not founded upon any competing financial need, but on her contributions to [NAME], both financially and in other ways, during [NAME]'s declining years." 1. [NAME]'s competing claim was not founded only on her contributions to [NAME] during [NAME]'s declining years. Fundamentally, it was founded upon what all members of the family recognised as her moral claim to the [NAME] property upon her parents' death because her sister had received an early inheritance of the [NAME] property.

2. Moreover, [NAME] and her then husband specifically considered in 2007 whether the passage of time and the changes in their children's circumstances meant that they should change their existing wills to give further provision to [NAME]. They decided that would be inappropriate because "it has always been one house each and [NAME] has already had hers". [NAME] confirmed that position by her will made on 16 August 2010.

3. In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Kitto J (in dissent but in a passage referred to with apparent approval by Gleeson CJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [24]) referred to the necessity of restraint where he could not be satisfied that he understood "… the whole situation so well that I could deal with the estate more justly than the testator dealt with it …" (at 580).

4. In Pontifical Society for the Propagation of the [NAME] v [NAME] CJ said (at 20): "The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. …"

1. In [NAME] v [NAME] J (in dissent) said (at 453-454): "In considering this question it should be remembered that the Testator's Family Maintenance and Guardianship of Infants Act does not invest the Court with a discretion merely to re-make testators' wills upon some abstract principle of fairness. After all a testator's property is his own and he is entitled to dispose of it as he pleases subject only to correction if he omits to make property provision for those whose maintenance, education or advancement is his especial responsibility. The word 'advancement', is, as was pointed out in McCosker v McCosker (1957) (97 C.L.R. 566) a word of wide import but it does not justify the redistribution of a testator's estate merely because it is of considerable value and because those to whom it has been given can well afford to have their interests diminished in order to confer a benefit upon a disappointed son or daughter. There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

1. In his discussion of the general principles, the [NAME] judge quoted what I said in [NAME] v [NAME]; [NAME] v [NAME] at [127] that: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an [NAME] applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with [NAME]. [NAME] will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after [NAME]'s death when the person best able to give evidence on that question is no longer alive.

Accordingly, if [NAME] was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which [NAME] was placed (Stott v Cook (1960) 33 ALJR 447 per [NAME] J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of [NAME]'s death or will."

1. Nowhere in his disposition of the case did the [NAME] judge refer to this consideration. 2. [NAME] did not submit that what I said in [NAME] v [NAME]; [NAME] v [NAME] was wrong. I have considered whether it imposes an unwarranted gloss on the language of the statute analogous to the error identified by the majority of this Court in [NAME] v [NAME] which concluded that the trial judge had erred by holding that it was "essential for the maintenance of the integrity of the process" that the Court acknowledge the entitlement of a [NAME] to make no provision for his or her estranged adult child (Allsop P at [46] quoting Andrew v Andrew [2011] NSWSC 115 at [149]; Basten JA at [54]; [NAME] v [NAME] at [67] per Sackville AJA).

3. I adhere to the view I expressed in [NAME] v [NAME]; [NAME] v [NAME]. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and [NAME], and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.

4. The observations of Dixon CJ in Pontifical Society for the Propagation of the [NAME] v [NAME] (at 19) also need to be borne in mind: " All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance."

1. That observation has current significance. Applications are filed in the Supreme Court's Family Provision List at an average rate of about 80 per month. One commentator has criticised the apparent readiness of courts to vary the expressed will of [NAME] by granting family provision claims ([NAME], "Family Provision Applications: A Critique" (2017) 91 ALJ 750). 2. [NAME]'s evidence (referred to at [35] above) was that her parents wanted her to be considered, that her father had said that [NAME] would give her a little bit of money because she had spent so much money in repairing the house (viz. the [NAME] property), and she was just asking for a little bit of money. [NAME] was appealing to the Court for money to make good what she asserted was her parents', or at least her father's, wish. The [NAME] judge made no finding that such a wish had been expressed by [NAME] or [NAME]'s father. It was clearly not their testamentary wish.

3. As noted above, the [NAME] judge stated some general principles drawn from decided cases relevant to claims made by an adult child, whilst emphasising that such "principles" were not propositions of universal application or rigid formulae and were provided merely as useful guidance to be applied with circumspection (at [69] and [74]). However, the statement of these "principles" was presumably relevant to the [NAME] judge's ultimate assessment. Relevantly to [NAME]'s claim, they included observations of Brereton J in Taylor v Farrugia [2009] NSWSC 801 (at [57] and [58]) as to the moral obligation or community expectation of a parent in respect of an adult child. Relevantly, the statement of general principle in [NAME] v [NAME] included that: "But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute."

1. The [NAME] judge also said, relevantly to the present case, (at [69]) that: "(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566; [NAME] v [NAME] (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at [45] ([NAME]). (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of [NAME]: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]."

1. None of these statements of general principle addresses a case such as the present where the adult child who claims provision from the estate has already received by way of an early inheritance what would otherwise have been his or her share of the estate. The [NAME] judge acknowledged the limitations on the principles he expressed, but when it came to the making of his determination, his central consideration was the financial need of [NAME] and the fact that [NAME] did not raise her financial circumstances as a countervailing claim on the estate. This was an error of principle that requires appellate intervention.

2. I do not consider that the challenges to the [NAME] judge's findings as to [NAME]'s financial need have been made good. But, contrary to the view of the [NAME] judge (at [134]) it does not follow that the provision made for [NAME] was inadequate for her proper maintenance and advancement in life. Such a conclusion elevates [NAME]'s financial needs over what [NAME] regarded as her moral obligation to her [NAME]. I do not know, and there is no means of discerning, what the "community's expectation" would be as to [NAME]'s moral obligation. I see no reason to conclude that [NAME] did not act as a wise and just testatrix in weighing the competing claims of both her [NAME] on her estate, having regard to [NAME]'s early inheritance and the family's understanding as to the consequences of that early inheritance. [NAME] submitted that the gift to [NAME] more than 30 years ago had much less significance than an equivalent recent gift would have had. He submitted that the significance of the gift diminished over time. Whether that is so or not would depend upon the family's circumstances about which [NAME] and her husband were in a superior position than the court to make a judgment. It may be that the [NAME] property was more valuable than the [NAME] property. [NAME] deposed (without objection) that that was so, but she had no qualification to express that opinion. A wise and just testator might well consider that [NAME] should not be disadvantaged because [NAME] did not take financial advantage of the opportunity offered to her. That was evidently the view [NAME] and her husband took in 2007 and which [NAME] repeated in her will of 16 August 2010.

3. There appears to have been no significant deterioration in [NAME]'s financial circumstances after [NAME]'s death, or, for that matter, after she made her will. [NAME]'s financial circumstances were marked by increasing levels of debt as she embarked on unsuccessful investments or borrowed to service her lifestyle choices. Although the details of [NAME]'s financial circumstances undoubtedly changed up to the time of the hearing, it was not suggested that there was a change in kind rather than of degree. 4. [NAME]'s moral obligation to [NAME] is not determinative ([NAME] v [NAME] at [123] per Callinan and Heydon JJ). [NAME]'s competing claim based on financial need must still be evaluated. But giving the respect that I consider is due to [NAME]'s consideration of the competing claims of her [NAME] I do not think that [NAME] has been given less than adequate provision for her proper maintenance and advancement in life, even though that provision is now effectively nil.

5.

For these reasons I consider that the [NAME] judge's evaluative assessment is liable to be reviewed and should be set aside. In my view, [NAME]'s application for a family provision order ought to have been dismissed.

6. I propose the following orders:

1. Appeal allowed.

3. In their place, order that the summons be dismissed.

5. Grant the respondent a certificate pursuant to the Suitors' Fund Act 1912 (NSW) in respect of the costs of the appeal.

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Endnote 1. References to paragraph numbers in the judgment below are to the paragraph numbers in the judgment on Caselaw. Paragraph numbers in the Red Book after para [100] differ, owing to a paragraph between [100]-[101] in the Red Book not being numbered. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2018