Articles Relating to Contesting A Will

THE IMPACT OF RURAL INTERESTS ON CONTESTING A WILL

In deciding whether to make an order for further provision pursuant to section 41 of the Succession Act 1981 (Qld), the court must consider the needs and interests of the applicant as well as competing beneficiaries. This is particularly difficult when the most significant asset in an estate is a rural property or business, such as a family farm. It is quite common for a farmer to leave his or her farm to only one of his or her children, whilst leaving the remaining children with a smaller inheritance. There are no special rules protecting a family farm from the impact of a family provision application, however the unique needs and circumstances of farming families are taken into account when deciding an application which may affect a family farm.In other states, the court has acknowledged the difficulties of dealing with a family farm in the context of family provision applications. Often, one or more children of the deceased have worked the family land for very little remuneration and in doing so have deprived themselves of other opportunities for education or training. The court recognises that these children may have a greater moral claim to inherit the family farm than their siblings. In those cases, particularly where the livelihood of a child is dependent upon their ability to work the deceased’s farm in the future, it may be just for the court to dismiss an application for further provision made by the non-farming child or children (see Young v Young; unreprorted, Sup Ct WA, FC, Wallace Pidgeon and Walsh JJ, No 64/89, 3 April 1990). However, the courts have noted that such a moral claim does not arise solely on the basis of the sex of the claimant (i.e. in the tradition of farmers handing the family farm down to their sons only); per Macready AJ in Johnston v McCallum [2005] NSWSC 17 at [61].In some circumstances, the court is able to make adequate provision from the estate for the applicant/s without disturbing the gift of the family farm in accordance with the deceased’s will (see Re Monshing (dec’d); Hobley v Stevenson & Anor [2003] VSC 498). However, where the need of an applicant for further provision outweighs the need of those who are to inherit the farm under the will, the court is prepared to make an order which requires the sale of farming property; per Johnston v McCallum at [69] – [71].The Position in QueenslandThe particular difficulties associated with a family farm were recently considered by Lyons J of the Supreme Court of Queensland in Richards v Augustine & Anor [2012] QSC 46. The deceased in that matter had four children, two sons and two daughters, and at the date of his death he was a widower. In his will, the deceased left his substantial rural land holdings and other rural interests to his two sons, with the two daughters each to receive only approximately $71,000.00 each from the estate. The total value of the deceased’s estate was estimated at approximately $1.1 million.The applicant was one of the deceased’s daughters and based upon the evidence before the court she was in a precarious financial position and with significant health issues which affected her ability to work full-time. The deceased’s sons were comparably well-off, though both had some health difficulties. Although it was clear from the conduct of the deceased that he wanted his sons to inherit the family farm, it was relevant in this case that neither son worked as a farmer at the time of the deceased’s death. The applicant’s need was for a lump sum, to discharge her debts, therefore the possibility of charging the farming properties with an annuity or legacy in her favour was not explored in this case.Lyons J ordered that further provision be made for the applicant out of the deceased’s estate in the sum of $250,000.00 however did not make any orders as to which of the deceased’s assets should be applied to satisfy that order. In Richards v Augustine No. 2 [2012] QSC 278, however, Lyons J agreed with submissions from the applicant’s sister (who had not participated in the earlier proceedings) that her inheritance of approximately $71,000.00 ought to be unaffected by the order made in the earlier proceedings.The decision in Richards v Augustine provides a clear indication that the court will not dismiss an application for further and better provision merely for the sake of keeping the family farm intact. While the nature of the competing interests surrounding a family farm will be taken into consideration by the court, where the court accepts that further and better provision ought to be made for an applicant out of the deceased’s estate, there are no rules or principles which operate to prevent the making of an order which would require the sale of the family farm.

Executors/Administrators duties in a contested will case. In Keep v Packham [2012] NSWSC 782 Hallen AsJ said the following:

61. In Morrison v Abbott [2012] NSWSC 320, I set out some general principles that appeared to me to be relevant in a case where this sort of issue is raised. I wrote:

“[72] It is well established that, in proceedings for a family provision order, the primary duty of the executor or administrator, as defendant, is to uphold the deceased’s will and to put before the court any necessary material that can reasonably be found to assist the court: Vasiljev v Public Trustee [1974] 2 NSWLR 497.

[73] Of course, the duty to uphold the deceased’s will is not an absolute duty. In Re Will of Lanfear (1940) 57 WN (NSW) 181, Williams J said, at 183:

In an ordinary case, especially where the estate is a small one, it is the duty of the executors either to compromise the claim, or to contest it and seek to uphold the provisions of the will.

[74] In McCusker v Rutter [2010] NSWCA 318, Handley AJA (with whom Campbell JA agreed), said at [57]:

An executor or administrator with the will annexed, faced with a claim under this legislation, is bound, within reason, to uphold the terms of the will. However in appropriate cases the legal personal representative will be justified in compromising the claim or even consenting to the orders sought: Re SJ Hall (dec’d) (1958) 59 SR (NSW) 219; Vasiljev v Public Trustee [1974] 2 NSWLR 497 CA, 503-4.

[75] Thus, the duty of the executor to uphold the will does not extend to doing so where it is of no commercial benefit to anyone, and regard should be had to the extent to which upholding the will would benefit beneficiaries. The executor or administrator, as defendant, must exercise “a due sense of proportionality in the conduct of any such defence and seek to compromise a claim, if at all possible, in a way that would save both the plaintiff and the other beneficiaries’ costs”: Szlazko v Travini [2004] NSWSC 610; Re Appln of Ferdinando Scali [2010] NSWSC 1254, at [10].

Contesting a will and being a member of the household. In Marando v Rizzo [2012] NSWSC 739 Hallen AsJ discussed section 57(1)(e) of the Succession Act 2006 (NSW):

58. In the alternative, the Plaintiff relies upon s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.

59. It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being “a member of the household of which the deceased person was a member”.

60. There is no dispute, in this case, that the Plaintiff was a member of the household of which the deceased was a member for a period of time. The precise period is in issue, but the Act does not state any requisite time during which an applicant must be a member of the household.

61. The Act contains no definition of the words “dependent on”. In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

62. In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom the other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002):

“44 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

‘Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of “dependants” does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a “dependant” is a member of the workers’ family who was “wholly or partly dependent for support upon the worker at the time of his death”. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'”

68. The question of dependency, whether whole or partial, is one of fact.

De facto relationships and will contests. In Marando v Rizzo [2012] NSWSC 739 Hallen AsJ discussed section 57(1)(b) of the Succession Act 2006 (NSW):

45. The first ground of eligibility upon which the Plaintiff relies is s 57(1)(b) of the Act, namely that she is a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death.

46. There is no definition of “de facto relationship” in the Act. However, that term is defined in s 21C(2) of the Interpretation Act 1987. For the purposes of any Act or instrument, a person is in a “de facto relationship” with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family.

47. Importantly, the definition does not require an exclusive relationship and it can be established even where one, or both, of the parties, is, or are, married to another.

48. In s 21C(3) of the Interpretation Act, in determining whether two persons have a relationship as a couple for the purposes of sub-section (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

49. In Ingamells v Western Australia Trustees Ltd (Full Court of the Supreme Court of WA, 5 March 1993, unreported), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynum v Director General of Social Security (1983) 52 ALR 128 at 131:

“Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test.”

50. Although each of these cases was decided many years ago (as evidenced by the reference to “the opposite sex” in the passage quoted), the general principle stated applies equally now as it did then.

51. Once the physical, or factual aspects, of the relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future.

52. Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, and grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

54. Thus, the determination of the existence of a de facto relationship is essentially impressionistic. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64].

The two stage test in Singer v Berghouse. Stevenson J in Phillips v James [2012] NSWSC 688 reiterated the relevant principles that should be applied when considering a contested will application:

46. This enquiry concerns the “first stage” of the two stage test set out in Singer v Berghouse (No 2) (1994) 181 CLR 201.

47. This first stage is a question of fact, namely whether Hazel has made adequate provision for Brian’s proper maintenance, education and advancement in life.

48. The aim of the first stage is to assess whether the Court can make an order for provision.

49. As Hallen AsJ said in Lajcarova v Todorov [2011] NSWSC 522: –

“Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as “the jurisdictional question”. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.” (at [79]; emphasis in original)

50. This requires a finding of fact, which Basten JA has described as “multi-faceted evaluative judgment” (Foley v Ellis [2008] NSWCA 288 at [3]). Such judgment is to be made having regard to the facts as at the date on which the Court is considering the application: s 59(1)(c) of the Act.

51. The guiding principles were recently summarised by Hallen AsJ in Gersbach v Blake [2011] NSWSC 368 at [94-96] as follows: –

(a) it is not appropriate to endeavour to achieve a “fair” disposition of the deceased’s estate;

(b) it is not part of the court’s role to achieve some kind of equity between the various claimants;

(c) the court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity;

(d) rather, the court’s role is of a specific type and goes no further than a making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant (see also Bryson J in Gorton v Parks (1989) 17 NSWLR 1 at 6);

(e) the court’s discretion is untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or is such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation (see also The Pontifical Society for the Propagation of the Faith v Scales; (1962) 107 CLR 9, per Dixon CJ at 19 and McKenzie v Topp [2004] VSC 90 at [63]; and

(f) freedom of testamentary disposition remains a prominent feature of the Australian legal system; see also Lajcarova v Todorov at [91].

52. In relation to a claim under the Act by an adult child, Hallen AsJ said in Gersbach v Blake at [98]: –

“(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801].

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia .

(d) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45″.

Section 94(3) of the Succession Act 2006 (NSW). Stevenson J in Phillips v James [2012] NSWSC 688 considered the following issue in a contested will case by an adult son:

28. (a) is Brian’s claim defeated by reason of him having consented in writing to the distribution of the estate within the meaning of s 94(3) of the Act…?

29. Subsection 94(3) is in the following terms: –

“No person who may have made or may be entitled to make an application under this Chapter is entitled to bring an action against the legal representative of the estate of a deceased person because the legal representative has distributed any part of the estate if the distribution was properly made by the legal representative after the person (being of full legal capacity) has notified the legal representative in writing that the person either:

(a) consents to the distribution, or

(b) does not intend to make any application under this Chapter that would affect the proposed distribution.”

30. Gary and Gaye submit that Brian has consented “to the distribution” in writing because he has signed two documents, both called “Statement and Receipt of Beneficiary” dated 27 July 2010 and 21 September 2010.

31. In the 27 July 2010 document, Brian stated: –

“I acknowledge receipt of $150,000 on account of an interim distribution of the Estate.”

32. In the 21 September 2010 document, Brian stated: –

“I acknowledge receipt of $14,603.97 on account of the final distribution of the Estate.”

33. Subsection 94(3) is concerned with persons who “may have made or may be entitled to make” an application under Chapter 3 of the Act; that is a claim for provision under s 59 of the Act.

34. Further, the subsection is concerned with eligible persons who, but for the written notification of consent referred to, are entitled to bring an action against the legal representative of the estate “because the legal representative has distributed any part of the estate”.

35. The subsection provides, relevantly to this case, that no such action can be brought if the legal representative has made the relevant distribution after the eligible person has consented in writing to “the distribution”; that is to the distribution which, otherwise, would have given rise to the eligible person’s entitlement to bring action against the legal representatives.

36. I doubt that Brian’s signature on the documents of 27 July 2010 and 21 September 2010 represented his consent to anything; rather he simply acknowledged receipt of the “interim” and “final” distribution of the residue to him.

37. At most, Brian’s signature on those documents notified his consent to the distribution of the Residue to him.

38. Brian does not seek to challenge the distribution made by Gary and Gaye of the Residue to him.

39. Rather, in effect, Brian seeks to challenge the distribution Gary and Gaye have made of the Cameron Street Property and Gibbes Street Property to themselves.

40. In my opinion, on no view of the documents of 27 July 2010 and 21 September 2010, do they represent Brian’s consent in writing to that distribution…

Contesting a will – plaintiff son. In John Patrick Courtney v Maureen Anne Powell; Peter Michael Courtney v Maureen Anne Powell [2012] NSWSC 460 Ball J considered closely an applicant’s circumstances before awarding him an appropriate provision:

79. It follows from what I have already said that John should be entitled to sufficient provision to reduce the risk that he will not be able to continue to live in the hostel. It is not easy to assess what that amount is … Several points, however, should be made about the assessment of an appropriate amount.

80. First, John currently owes a significant amount to Sacred Heart. As at August 2011, that amount was approximately $12,000. His annual fees under his agreement after making allowance for the government subsidy he receives are currently $10,000. Any amount should include the amount that John currently owes Sacred Heart.

81. Second, I do not think the assessment depends solely on determining the net present value of the fees payable under the agreement for the expected duration of John’s life. That amount, if evidence had been led about it, would have formed the starting point of any assessment, but I do not think that that evidence would determine the question. John accepted in cross-examination that he did not need to retain all the storage space he currently has. Although John may find it difficult now to part with many of his possessions, it cannot be assumed that he will keep them indefinitely; and I do not think that the assessment of an appropriate amount should be made on the basis that John need not take any responsibility for paying the amounts owed by him under his resident agreement with Sacred Heart. In this respect, it needs to be borne in mind that any provision for John, if it is to be made, will have to come from Maureen….

82. Third, ss 65 and 66 of the Act give the court broad powers to fashion an appropriate order. That includes a power to order that any provision that is made in favour of a claimant be held on trust for the claimant on terms determined by the court. Mr Butcher, who appeared for John, submitted that it would be appropriate in this case to order that any provision in favour of John be held on trust by the State Trustees Limited. I accept that submission. In my opinion, given John’s failure to pay any of his accommodation fees to date, there is a real risk that he will not use any provision made for him to meet his obligations under resident agreement…

83. Doing the best I can on the evidence before me, in my opinion, an appropriate provision for John is $100,000 in substitution for the $2,000 that has been left to him…

Beneficiaries and silence in a contested will case. Hallen AsJ in Harkness v Harkness (No 2) [2012] NSWSC 35 said the following:

106. Where, as in this case, some of the beneficiaries have declined to provide such evidence to the Defendant, the important question is what inference, if any, should be drawn from the beneficiary’s silence?

107. If satisfied that the beneficiary is aware of the proceedings, and has been informed that the court may have regard to, for example, evidence of his, or her, financial resources (including earning capacity) and financial needs, both present and future, and if the beneficiary does not provide that evidence, the court may assume that he, or she, does not wish his, or her, financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ.

108. Then, the question is what flows from that beneficiary’s silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey & Anor v Frey & Anor (as personal representatives of the estate of HE Frey, dec’d) & Anor [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory and Anor, at [54]…

109. In expressing this view, I do not depart, entirely, from what was said by Sackville AJA in Foley v Ellis. The claims of a beneficiary, as the chosen object of the deceased’s testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant are to be borne in mind. (It is to be remembered that the court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the Act).

110. Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased’s testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester, at 220, the court is not able to have regard to “the means” of the beneficiary, but the court may still consider “the deserts … and relative urgency of the various moral claims upon [the deceased’s] bounty”.

111. The court will, thereby, give due regard to “what the testator regarded as superior claims or preferable dispositions” as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the court gives weight to the principle of freedom of testation referred to earlier.

Costs in a contested will claim. In Harkness v Harkness (No 2) [2012] NSWSC 35 Hallen AsJ at 18 outlined the following principles:

(a) In Singer v Bergouse [1993] HCA 35;(1993) 114 ALR 521, Gaudron J, said, at 522:

“Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.”

(b) Despite the above statement, which, of course, was written in the context of a security for costs application, and in respect of proceedings under the Family Provision Act , s 99 of the Succession Act provides a wide discretion in relation to costs (“in such manner as the Court thinks fit”).

(c) The view of some practitioners advising a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will, very likely, get his, or her, costs out of the estate and that he, or she, will not be significantly out of pocket, and the legal practitioner will receive his, or her, costs and disbursements in any event, has been thoroughly discredited.

(d) Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No. 2) [2009] NSWSC 1199; Forsyth v Sinclair (No. 2) [2010] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant’s costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs.

(e) Where …. the issue is whether the unsuccessful applicant should bear the costs of the successful Defendant, s 98 of the Civil Procedure Act, and the rules quoted above, will apply, and, in the absence of some good reason to the contrary, there should be an order that the costs of the successful defendant be paid by the unsuccessful plaintiff: Moussa v Moussa [2006] NSWSC 509 at [5].

(f) An unsuccessful plaintiff will, usually, be ordered to pay costs where the claim was frivolous, vexatious, made with no reasonable prospects of success, or where she, or he, has been guilty of some improper conduct in the course of the proceedings: Re Sitch (No.2) [2005] VSC 383.

(g) In small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.

(h) Proceedings for a family provision order involve elements of judgment and discretion beyond those at work in most inter partes litigation: Jvancich v Kennedy (No. 2) [2004] NSWCA 397; Re Sherborne Estate (No. 2); Vanvalen v Neaves [2005] NSWSC 1003.

(i) In exercising its discretion in relation to costs, the court will have regard to “the overall justice of the case”: Jvancich v Kennedy (No 2). The “overall justice of the case” is “not remote from costs following the event”. However, the court may be more willing to depart from the general principle in proceedings for a family provision order than in other types of case: Moussa v Moussa; Carey v Robson (No 2); Bartkus v Bartkus [2010] NSWSC 889 at [24].

(j) As proceedings for a family provision order are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an unsuccessful applicant, if it would adversely affect the financial position which had been taken into account in dismissing the application: Morse v Morse (No 2) [2003] TASSC 145; McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484; McCusker v Rutter [2010] NSWCA 318 at [34].

(k) There are also other circumstances that may lead the court to order payment out of the estate of the costs of an unsuccessful Plaintiff. The court may allow an unsuccessful plaintiff costs out of the estate, if in all the circumstances the case was meritorious, reasonable or “borderline”: McDougall v Rogers; Estate of James Rogers; Re Bodman [1972] Qd R 281; Shearer v The Public Trustee (NSWSC, Young J, 21 April 1998, unreported).

Notional Estate and the Succession Act 2006 (NSW). In Davidson v Sampson [2012] NSWSC 481 Stevenson J considered the various notional estate provisions relevant to a contested will claim (some paragraphs omitted):

60. Recently Ball J said in Ogburn v Ogburn [2012] NSWSC 79 at [66]:

“… It is not possible to divorce the question whether a notional estate order should be made from the question whether a family provision order should be made. A court can only make a notional estate order if and to the extent the order is necessary to satisfy family provision order. However, one of the matters the court needs to take into account in deciding whether a family provision order should be made is the size of the deceased’s estate, including the size of the potential notional estate”.

Section 88(b): is [the] estate insufficient to make provision?

64. First, by reason of s 88(b) of the Act, the Court has no power to make an order concerning a notional estate unless satisfied that the deceased person’s estate is insufficient to make an appropriate order for provision.

Section 75(1) and s 80(1): “relevant property transaction” – has “full valuable consideration” been given?

71. Second, by reason of s 80(1) of the Act, the Court can make a notional estate order designating property to be the notional estate of a deceased person if the Court is satisfied that the deceased person entered into a “relevant property transaction” before his or her death, and that the transaction is one to which s 80 applies.

72. The expression “relevant property transaction” is defined in s 75(1) of the Act. A person enters a “relevant property transaction” if that person does “any act that (immediately or at some later time) results in property being … held by another person … and full valuable consideration is not given to the person for doing … the act”.

77. The question of “full valuable consideration” was recently considered by Hallen AsJ in Kastrounis v Foundouradakis [2012] NSWSC 264. His Honour said (at [95] – [98]):

“I accept that ‘full valuable consideration’ means such valuable consideration as amounts to, approximates, or is broadly commensurate with, or is a fair equivalent of, the value of that to which it is given.

Whether full valuable consideration is given is a question of fact and involves no exercise of discretion. In my view, the court should determine the question applying a commonsense approach and ‘avoiding finely balanced mathematical computations involving the value of normal exchanges of support in the domestic sense’: Jelley v Illiffe [1980] EWCA Civ 4; [1981] 2 All ER 29….”

81. I agree with the following analysis given by Hallen AsJ in Kastrounis v Foundouradakis at [101]:

“In determining the answer to the question, I am inclined to the view that when the relevant transaction involves a contract for the disposition of the deceased’s property, the first enquiry must always be, what is the actual value of that property? The second question is whether the monetary consideration, if any, identified in the contract, is commensurate with that value. The next question is what consideration is given by the other party or parties to the deceased? The final question is whether the consideration given amounts to full valuable consideration?”

Section 77: “when did the relevant property transactions” take effect?

90. Third, s 77(4) of the Act provides that a “relevant property transaction” that involves “any kind of contract for which valuable consideration, though not full valuable consideration, is given for the person to enter into the transaction is taken to be entered into and take effect when the contract is entered into”.

Section 80: moral obligation to make adequate provision

93. Fourth, the Court can only make a notional estate order in respect of a “relevant property transaction” if that transaction is one to which s 80 applies.

94. Section 80 applies in the circumstances set forth in s 80(2). Subsections 80(2)(a) and (b) are potentially relevant and are in the following terms: –

(2) This section applies to the following relevant property transactions:

(a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order,

(b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction.”

101. In Kastrounis v Foundouradakis (supra) Hallen AsJ said (at [114] and [115]):

“The expression ‘moral obligation’ is no more than a simple and convenient way of referring to the obligation resting upon a deceased to make a wise and just assessment of the interests of any person who is able to ask to be taken into account in determining what adequate provision for proper maintenance, education and advancement in life, should have been made for him or her: Collicoat v McMillan [1993] 3 VR 803…”

102. Subsection 80(2)(b) calls for a comparison to be made between the moral obligation to make provision, and the moral obligation to enter the “relevant property transaction”.

Section 83: disadvantage to the estate

113. Fifth, by reason of subsection 83(1)(a) of the Act, I must not make an order under section 80 unless satisfied that, amongst other things, the “relevant property transaction” disadvantaged Penny’s estate or Toby’s entitlement to apply for a family provision order.

Section 87: general matters to be considered

116. Sixth, s 87 of the Act provides that the Court must not make a notional estate order unless considering:

“(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order,

(c) any other matters it considers relevant in the circumstances”.

Section 89: determination of property to be subject to notional estate order

122. Finally, when determining what property should be designated as notional estate, I must have regard to the matters enumerated in s 89 of the Act and must not designate as notional estate property that exceeds that which is necessary.

Contesting a will – widow. In Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 Hallen AsJ used a widow’s standard of accommodation enjoyed during the lifetime of the deceased as a useful yardstick to determine the amount of provision she ought to receive:

195. It is necessary, then, to consider whether to make a family provision order and the nature of any such order.

196. There was no dispute that an order should be made, or that in lieu of the provision made for Wendy, an amount which would be utilised by the Defendant to purchase accommodation for her ought to be provided, and that she should have a Crisp order in respect of that accommodation.

197. The real dispute related to what amount should be provided for that purpose, it being submitted, on her behalf, that an amount which would enable the purchase of the Castle Hill property, the home in which she and the deceased lived for over 14 years, and in which she has continued to live, would not only be adequate but proper. The Defendant submitted that the size of the estate and the competing claims would not enable such provision to be made.

198. In my view, Wendy, who was devoted to the deceased, who contributed to the bringing together of the deceased’s children, and who, by providing accommodation to the deceased for the whole of their de facto relationship, is entitled to live in accommodation that provides more than bare subsistence, or accommodation that is simply sufficient to meet a need for a roof over her head. Despite the separation of their assets and finances, they planned to be, and had been, together for many years, which had provided mutual benefits.

199. In the circumstances of this case, Wendy’s claim is such that she has the primary right to be considered. I consider that the standard of accommodation that she enjoyed, during the lifetime of the deceased, is a useful yardstick, as to what would be adequate and proper provision. Such accommodation would, if it were possible to obtain, ensure that the provision was sufficient to enable her to live neither luxuriously, nor miserably, but decently and comfortably according to her station in life.

203. In my view, in lieu of the provision for accommodation, the Defendant should make available out of the estate of the deceased, a lump sum of $650,000, which sum should be made available to purchase accommodation and to pay stamp duty and legal costs on purchase, for Wendy. An order in the form of a Crisp order in respect of that accommodation should be provided to her. A capital loss of up to, say, 20 per cent should be allowed, if further alternative accommodation in a nursing home, or retirement village, is required.

Nicholas J’s judgement in Ivy Agnes Maud Twomey v Neridah McDonald [2012] NSWSC 22 illustrates that sometimes a short delay in filing a summons for an applicant contesting a will is sufficient to warrant an extension of time (some paragraphs omitted):

1. This is an application under s 59 Succession Act 2006 (the Act) for an order that provision be made for the plaintiff’s maintenance, education and advancement in life out of the estate of the late Ivy May Twomey (the deceased).

Extension of time

7. The summons in these proceedings was filed on 12 November 2010, six days out of time. The plaintiff’s application for an order that time be extended to allow the making of an order for provision was opposed…

8. The onus of establishing sufficient cause for the making of an order outside the limit lies on the plaintiff. The principles governing the exercise of discretion to extend time were recently summarised by Hallen AsJ in Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572. He said:

“85 The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John ; John v John [2010] NSWSC 937 at [37]-[51] per Ward J….”

13. The plaintiff submitted that the explanation for the short delay was the solicitor’s oversight. It was common ground that there was no issue of prejudice. It was put that there was no evidence of unconscionable conduct on the part of the plaintiff and, in any event, the beneficiaries had become aware of the likelihood that she would dispute the will. Furthermore, as it was accepted by the defendant that the plaintiff was in need, it was put that there were strong prospects of success in a claim.

15. The delay of six days in filing the summons has caused no impediment to the administration of the estate. No prejudice will be suffered by the defendant if time is extended. The conduct of the plaintiff as described in the defendant’s submissions was not unconscionable. For reasons later given, the nature and extent of the plaintiff’s relationship with the deceased, and her situation of need, demonstrated that her application for an order for provision had reasonable prospects of success.

16. In support of the proposition that the solicitor’s failure to lodge an application in time was not sufficient cause for the court extending time, the defendant relied on the statement of Young J (as he then was) in Charles v Charles [25 March 1988, NSWSC, Unreported] that “… there must be something more than mere incompetence or inattention by a solicitor before time can be extended under this Act”. However, the submission loses force in this case when the solicitor’s oversight is taken into account with the other factors referred to. Relevantly, in Kalmar v Kalmar [2006] NSWSC 437 White J said:

“24 His Honour’s statement that inattention or incompetence by a solicitor is an insufficient ground to warrant an order extending time does not mean that an application for extension must be refused if the limitation period expired through the fault of the solicitor. Contrary to the impression conveyed in the passage quoted from De Groot and Nickel, Family Provision in Australia, it was not held in Charles v Charles that the extension ought not to be granted in that case. In fact, an extension of time was granted as notice of intention to apply had been given before the limitation period expired and the beneficiaries were not prejudiced by an extension.”

17. In Cetojevic v Cetojevic [2006] NSWSC 431 (par 55) Campbell J (as he then was) observed that his Honour’s statement was a rule of thumb which could not confine the statutory discretion. What is required of an applicant in order to show sufficient cause will depend on the particular facts and circumstances of the case. There is no code which governs the exercise of the court’s wide discretion.

18. In my opinion, sufficient cause has been established which, in all the circumstances, justifies an order for the extension of time as sought in par 4 of the summons. In so deciding I have not overlooked the plaintiff’s evidence that she was aware of a limit, but I do not regard her knowledge as fatal to the application (Taylor v Farrugia [2009] NSWSC 801, par 23, per Brereton J). In my opinion the interests of justice require that the plaintiff be given the opportunity to have her application heard and determined; it would be unjust that she be turned away without a hearing.

Comments in the following cases stress the importance of having sufficient evidence to support a contested will claim:

Sheller JA with the concurrence of Cripps JA in the Court of Appeal in Singer v Berghouse 23 July 1992 said:

I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to be the appellants of a lump sum is to do no more than act on speculation and contrary to the prohibition contained in s 9 (2) of the act, to alter the deceased’s disposition of his property in the absence of proof that he has inadequately provided for the appellant.

In Evans v Levy [2011] NSWCA 125 Young JA (with whom Campbell JA and Sackville AJA agreed) said at 38 and 43, inter alia:

The court has to be presented with adequate evidence before it can make an order under the Act. Time and time again the court has been denied what would appear to be very basic material required to support a claimants’ case.

Again, it must be said that if plaintiffs in these case are to be properly served, the court must be given sufficient details of the claim and sufficient evidence to back up that claim.

The use of expert evidence in a contested will case. In Tchadovitch v Tchadovitch [2010] NSWCA 316 Allsop J made the following comments:

3. Most disputes under the Family Provision Act 1982 (NSW) or Chapter 3 of the Succession Act 2006 (NSW) are between ordinary people who have the misfortune to disagree about the just and appropriate distribution of an estate of someone with whom they had a connection, generally of blood, love or friendship. Such proceedings should always be run by the parties and their legal practitioners with a keen eye to the minimisation of costs at all stages. To that end, paragraph 18 of Practice Note SC Eq 7 aims to limit costs by the use of certain kinds of evidence.

4. The unnecessary and often futile attempts at precision when predicting the future of the kind made by the experts here are almost certain to be costly and almost certain only to assist by setting broad parameters. The latter could almost always be achieved by shorter, more truncated general estimates, at vastly less cost.

5. There is also the difficulty, potentially going to admissibility of the evidence, of going well beyond the framework of life and life expectations of the testator.

Disabled adult children and pension entitlements in contested wills cases. This is an extract from McGregor-Lowndes, Myles and Hannah, Frances M. (2008) Every player wins a prize? Family provision applications and bequests to charity. The Australian Centre for Philanthropy and Nonprofit Studies, Brisbane, Queensland, page 33:

A subset of applicants who are adult children are those adult children who have a recognised physical or mental disability, or are otherwise unable to look after themselves. It may be argued that children in this category of claimant have a priority claim on a parent’s estate, particularly where they have substantial care needs or are in a care home. In addition, if disabled adult children are in receipt of a pension, any provision they receive may affect the pension entitlement. In Warland v Reece [2000] NSWCA 380 at [9] the New South Wales Court of Appeal said that the loss of pension entitlement in such cases was something ‘which ought to be avoided at all costs’. The general position in the cases seems to be that where the estate is capable of properly providing for the disabled child, it should do so and provision or further provision will be made accordingly. Where the estate is a small one, the pension entitlement should be preserved.

In Whitmont v Lloyd, (New South Wales Supreme Court, unreported, 31 July 1995, per Bryson J at 14) it was stated that:

The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for the protection of private interests and serves public policy. … In my opinion, the availability of Aged Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part.

More recently, in Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151 Young CJ said:

The question as to how far, if at all, courts should take into account benefits that may flow to applicants and beneficiaries by way of pensions and other public benefits given to the poor is one which has not yet been finally settled. In Parker v Public Trustee, 31 May 1988, unreported, I indicated that, generally speaking, the object of the legislation is to compel persons to make provision for their dependants and not throw the maintenance of the dependants upon the public purse, though a testator has no duty to organise his or her affairs so that the beneficiaries receive the maximum benefit from his estate so long as he or she makes adequate provision for them…Ordinarily, when one has a very disabled person, it does not take much for one to draw the conclusion that that person should have the whole estate. However, as in Ridge’s case, providing the whole estate to the plaintiff in the instant case does very little good in view of my finding that he is better cared for in the…Nursing Home.

Notional Estate explained in the context of contesting a will. This is an extract from Contracts to Leave Property by Will and Family Provision after Barns v Barns (2003) 196 ALR 65 — Orthodoxy or Aberration? By Rosalind Croucher, The Sydney Law Review, June, 2005, 27 Sydney L. Rev. 263:

In New South Wales … the introduction of the notional estate provisions brought to the forefront the distinction of estate versus notional estate’ that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that estate’ and notional estate’ were different. Things subject to contracts (like mutual wills) were not within the definition of estate’. To bring such property within the legislation required now the application of the complex procedures and definitions of notional estate’. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act.

Firstly, the transaction needs to be identified as a prescribed transaction’. This involves an act or omission as a result of which property becomes held by another person’ or property becomes subject to a trust’; and the absence of full valuable consideration in money or money’s worth’ for the relevant act or omission. Secondly, if the transaction involves a contract providing for a disposition of property out of the person’s estate’, which would include a contract of the kind under consideration, then the transaction is deemed to be a transaction involving a relevant act or omission. As for the requirement of consideration, it is further provided that where a prescribed transaction involves any kind of contract, and valuable consideration, although not full valuable consideration, in money or money’s worth is given for becoming a party to the contract, the transaction shall, for the purposes of this Act, be deemed to be entered into and to take effect at the time the contract is entered into. In the context of contracts to leave property by will, if there is considered to be no valuable consideration in money or money’s worth for the contract, then the transaction is deemed to be entered into immediately before, and to take effect on, the death of the relevant person.

Once the date is determined for the coming into effect of the contract, other provisions must be considered. There is a sliding scale of additional considerations depending on this dating. Where the transaction is deemed to take effect on death, the court may proceed to consider whether to designate the property or not. If, however, the transaction is dated at an earlier time, then other questions must be considered before the court may consider designating the property or not. If the transaction is deemed to take effect within three years before the death of the deceased, then the court must consider whether the transaction was entered into with the intention, wholly or in part, of denying or limiting, wholly or in part, provision for the maintenance, education or advancement in life of that or any other eligible person out of the deceased person’s estate or otherwise’. Where the transaction took effect within the period of one year before death, the question is whether the transaction was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of that or any other eligible person which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction’.

Contesting a will – plaintiff children. In Brazier v Dawson [2012] NSWSC 116 Black J congratulated the parties on the settlement of a complex matter:

2. Each of the Plaintiffs is a child of the late Henry Fletcher Brazier (“the deceased”). Each of the Plaintiffs is an eligible person under s 57(1)(c) of the Succession Act 2006 (NSW) as a child of the deceased. None of the Plaintiffs were estranged from the deceased and there is evidence that each of them provided assistance to the deceased during his lifetime in various ways. Another child of the deceased, Ms Valerie Dawson, has conduct of the defence of the proceedings as one of the executors of the Estate.

3. I should make one further comment before turning to the orders that I am asked to approve. Although I have given careful consideration in respect of each of the orders to whether the jurisdiction for the order is established and whether it can properly be made, I can and should also give substantial weight to the fact that all of the parties are represented by experienced Counsel and solicitors and that there is a very significant advantage for the parties in reaching a comprehensive settlement of these matters so as to avoid the continuing costs of the proceedings. The parties and their advisers should be congratulated for reaching a settlement in a matter of considerable complexity, the continuance of which would have imposed significant additional legal costs upon the parties and the Estate.

Macready AsJ in Ford v Simes [2008] NSWSC 1120 came to the following conclusion when deciding whether or not to grant an extension of time in a case involving contesting a will:

45. So far as the explanation is concerned it is plain that the plaintiff did not know of the death of his father until early 2006. He did not know he needed to make a claim within 18 months until 16 March 2007. It took him the best part of a year after hearing of his father’s death to put in motion any inquiries about whether he could make a claim on his father’s estate. Once he did so the matter was processed appropriately by his solicitors. Although there was a delay by the plaintiff for most of 2006 he was in prison without the usual facilities. He did not learn that he had been omitted from the will until the end of the year. In my view there is an adequate explanation.

46. There is no unacceptable prejudice if time were extended in the present case. The defendant does not point to any change in her circumstances.

47. So far as unconscionable conduct is concerned, there is the problem that the defendant did not inform the plaintiff of the death of his parents. The reason is that there was no adequate means of communication between the plaintiff and the defendant. In 2003 the defendant had tried to ring all the numbers that her mother had for him without success. In due course when she found out that the plaintiff was in prison she wrote to him in early 2007 and informed him of the death of his parents but not when they died. By this time he already knew the details of the will and his omission from its provisions. I am not satisfied that the defendant deliberately did not inform the plaintiff of his father’s death so that he would not make a claim.

48. It seems to me that in the circumstances it is appropriate to extend time for the plaintiff to bring the present claim.

Palmer J in Tobin v Ezekiel [2008] NSWSC 1108 made the following comments in relation to the costs of a contested will case:

31. As I have observed, the legal costs expended by the parties in the conduct of the proceedings so far have been grossly disproportionate to the size of the estate and are not justified by the difficulty of the issues for trial. For this state of affairs the Plaintiffs are mostly to blame, although the Defendants’ expenditure is excessive also. The Defendants do not have to respond to every piece of evidence put forward by the Plaintiffs, no matter how remote and inconsequential.

36. If a person in full possession of his faculties wishes to expend the whole of his means and substance upon his lawyers, he is free to do so. If both sides to litigation, being in full possession of their faculties, choose to expend their collective assets and means on their lawyers then, likewise, they are free to do so. What they are not free to do is to expend, in the pursuit of their litigious obsession, as much of the Court’s resources as they wish.

37. Litigants are entitled to a fair opportunity to present their case; that does not mean that they can take as long as they like in doing so. The judicial time and administrative of this State’s courts are strained by the press of litigants seeking to have their cases heard quickly and efficiently. No one litigant has the right to insist that his case will consume as much of the Court’s time and resources as his own pockets will bear.

38. Neither has a litigant the right to insist that a limitless number of citizens who have no interest in the litigation will be put to the expense and inconvenience – often serious – of complying with subpoenas to attend and give evidence or produce documents. The litigant has the right to invoke the coercive power of the subpoena only for the purpose of having a fair trial of the real and determinative issues.

39. Unrestrained and prolific issuing of subpoenas by a litigant may constitute an abuse of the Court’s process. The terms of the subpoenas, considered individually, may not be too wide or oppressive in themselves, but if the number of subpoenas is large and the issues to which they relate are peripheral to the decisive issues for trial, not only are many non-parties to the litigation unnecessarily inconvenienced and put to expense, but a great deal of unnecessary costs will be incurred in the proceedings, bringing the proceedings to trial will be delayed, and the time for trial will be unnecessarily expanded by the raising of false or peripheral issues. All of these mischiefs the Court must be astute to prevent, in accordance with s 56 Civil Procedure Act 2005 (NSW) (“CPA”). It has ample power to do so, both in its inherent jurisdiction to control its own process and under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”): see e.g. Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710, at 719; Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648; Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98.

Ward J in Colantuono v Colantuono [2009] NSWSC 1445 made the following comments while talking about the will contest claims by two sons on their mother’s estate:

119. In my opinion, the proper provision for his sons, assuming this can be achieved without depriving Vincenzo of the ability to maintain a comfortable lifestyle in the remaining years of his life, is for each of them to be put in a position to acquire his own home with a sum to cover his respective debts (and in John’s case ongoing medical treatment) and, to the extent necessary, a small buffer for contingencies, so as to set them on their feet. In that regard, it is no means automatically the case that provision is made to cover the vicissitudes of life. In Howe v Lowry [2009] NSWSC 451, Macready AsJ held that, given the adult daughter’s health and situation in life, the claim for a $200,000 fund for contingencies was not appropriate. John’s claim for a “nest egg” is considerably stronger than that of Antonio, who does not suffer from the mental health issues which have beset John and is in a position to earn a comfortable income, although I accept that John’s property holding in London (acquired with the contribution from his parents) might be thought to provide part if not all of such a nest egg.

120. In my view, proper provision does not mean that each son should necessarily be provided with an unencumbered house but where, as in the case of John, his borrowing capacity may be severely limited by his present circumstances, it would be appropriate for a substantial proportion if not all of the cost of a modest home to be provided by way of legacy. To an extent, the claims put forward by John and Antonio may be said to be a “wish list” and not an itemisation of their objective needs. If that is the case, and their wish lists demonstrably exceed their needs then they should not be expected to be met (see Frizelle v Old [2009] NSWSC 1259 at [174], [176] per Barrett J). It was submitted by their respective Counsel, however, that the claims made (falling within the mid-range for accommodation of the kind said to be suitable to their respective needs) could not be categorised as wish lists.

In determining a will contest claim by an adult son, Ball J in Slack-Smith v Slack-Smith [2010] NSWSC 625 said the following:

25. First, no special principle applies to the claim of an adult son: Gorton v Parks (1989) 17 NSWLR 1 at 7 per Bryson J; Wheatley v Wheatley [2006] NSWCA 262. The question is whether adequate provision has been made for the claimant’s proper maintenance, education and advancement in life. The circumstances of an adult son, and his relationship with the deceased parent, will be different from, for example, the circumstances and relationship of a child; and for that reason an adult son is likely to be treated differently. But that is because his circumstances, and his relationship with the deceased parent, are different. It is not because he is an adult son.

26. Second, the fact that the parent and child saw one another infrequently or that there existed a degree of friction between them is not decisive: Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 at 540 per Holland J; Palmer v Dolman [2005] NSWCA 361 at [107] – [110] per Ipp JA (with whom Tobias and Basten JJA agreed); Wheatley v Wheatley [2006] NSWCA 262. It is just one of the matters that needs to be considered in considering what order, if any, should be made.

27. Third, while the court will consider explanations given by the deceased in the will or elsewhere for excluding a particular person as a beneficiary, those explanations do not relieve the court from engaging in the enquiry required by the Act. All they do is shed light on the relationship between the deceased and that person. It is that relationship which is important, not the fact that the deceased thought that it was appropriate to exclude a particular person. In some cases, the reasons given by the deceased may indicate that the deceased must bear part of the responsibility for the breakdown in the relationship between them: see Wheatley v Wheatley [2006] NSWCA 262.

When contesting a will out of the time limit what happens? In Popovski v Kenjar; Hafizovic & Anor v Kenjar [2011] NSWSC 731 at 84-88 and 91-92 Hallen AsJ made the following comments:

84. Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.

85. The decision of the court to extend time is a discretionary decision. Other than “sufficient cause being shown”, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. Ultimately, where a broad discretion is conferred to grant leave to commence proceedings after the expiry of a prescribed period for commencing proceedings, the general question that has to be asked is what is fair and just or what does the justice of the case require?

86. Apart from the reason(s) for the lateness of the claim, the factors to which the court usually looks, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

87. Ultimately, what the applicant must establish is a sufficient explanation or excuse to justify the granting of an extension of time. The onus lies on her, or him, to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by the defendant or other beneficiaries. It will be for the court to determine the strength of the applicant’s claim.

88. Where a solicitor has been retained during the period prescribed by the Act, and the claim has not been commenced within the prescribed period, the question that arises is whether the solicitor’s failure in not filing the claim provides sufficient reason to extend the time.

91. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of “unconscionable conduct” referred to above was “directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security”. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

92. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Can a bankrupt contest a will? In Popovski v Kenjar; Hafizovic & Anor v Kenjar [2011] NSWSC 731 Hallen AsJ, made the following comments about a bankrupt plaintiff who received a share of the deceased’s assets in the will:

111. In this case, Senada was made bankrupt before, and remained a bankrupt at, the date of the deceased’s death, with the result that the whole of her entitlement under the deceased’s Will passed to her trustee in bankruptcy. This “vesting” was a transfer, by automatic operation of the Bankruptcy Act, to the trustee in bankruptcy of title to all the “property”, as defined, of the bankrupt.

112. Her rights in distribution remained vested in her trustee in bankruptcy, notwithstanding her subsequent discharge after the death of the deceased. Her discharge did not transfer, or revest, the title to any part of the bankrupt estate in her, because that remained vested in her trustee in bankruptcy notwithstanding her discharge: Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306; Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178; (1990) 99 ALR 789, Gosden v Dixon and Metherell v Public Trustee in its Capacity as Executor of the Estate of the late Patricia Helen Peek [2010] WASC 205 at [4].

113. In this case, Mr Ellison SC, on behalf of Senada submits:

“5.15 Prima facie, Senada’s 60% entitlement is adequate provision, so far as quantum is concerned. However, because she was bankrupt at her mother’s date of death, she would receive none of that entitlement. There is more to “adequate and proper” provision than mere quantum…

5.18 Senada submits that by making provision for her, which provision goes immediately to her creditors, the deceased made provision which is not “proper and adequate” and therefore, Senada passes the “jurisdictional test”.

5.19 Senada submits that she can receive provision by way of an entitlement under the Will of her mother which only vests after the bankruptcy is discharged and consequently, that provision can be retained by Senada.

186. I do not accept the submission made by Mr Ellison SC that, by making provision for her, which provision passes, by operation of law, to her trustee in bankruptcy, for the benefit of her creditors, the deceased failed to make provision that is “adequate and proper”. The adequacy and propriety of provision is not determined by the circumstance of the applicant that results in it being paid not to her, but to her trustee in bankruptcy for the benefit of her creditors.

187. This is not the same as the case of a bankrupt, or financially disadvantaged applicant, who does not receive any provision, and who seeks what would be considered to be adequate provision for his, or her, proper maintenance and advancement in life out of the estate, with the result that he, or she, will use it to pay off creditors.

188. In this regard, I note what was said by Basten JA in Diver v Neal, albeit in a different context at [69]:

“A financial benefit in circumstances where an applicant’s business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors, thereby saving the loss of an asset or reducing ongoing liabilities does not diminish the benefit to the applicant.”

190. In my view, Senada’s obligations will effectively be discharged by the payment of the balance of the provision made for her by the deceased’s Will. This will be of some benefit to her since she may be able to receive an acknowledgement from her trustee in bankruptcy that she has met her responsibilities to her creditors to the best of her ability.

When contesting a will what factors does the court take into account? In Popovski v Kenjar; Hafizovic & Anor v Kenjar [2011] NSWSC 731 at 71-74 Hallen AsJ made the following comments about Section 60(2) of the Succession Act 2006 (NSW):

71. It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order , and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender. There is no hierarchy of matters identified.

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

73. Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased’s will, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

74. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

Contested wills cases. The following is an article published in The Australian about Mediation and Family Provision Cases:

Mediation in NSW Supreme Court works: Spigelman

By: Chris Merritt From: The Australian October 01, 2010 12:00AM

MEDIATION has emerged as one of the fastest-growing areas of activity within the NSW Supreme Court.

The number of cases diverted to mediators has grown by more than 128 per cent in three years.

In the past year, the total number of cases diverted to mediation grew by almost 28 per cent to hit 1111.

And 40 per cent of those cases were diverted to private mediators, according to the Supreme Court’s annual review.

NSW Chief Justice Jim Spigelman said there was no doubt that diverting cases to court-annexed and private mediation was leading to lower legal costs for the parties to disputes and also leading to earlier settlements.

He said a cultural change had taken place within the profession and the court, leading to greater appreciation of the benefits of mediation. “Over the last few years we have encouraged, and then made mandatory, mediation in Family Provision cases and that is a significant part of the increase,” Justice Spigelman said.

Anything that saves court time and legal profession time means that both the court has savings and the individuals involved have substantial savings.”

The boom in mediation in the NSW Supreme Court has come to light in the same week that the federal government has introduced legislation aimed at encouraging alternative dispute resolution.

Federal Attorney-General Robert McClelland said the government’s Civil Dispute Resolution Bill, which was introduced to parliament yesterday, encouraged litigants to resolve their disputes outside of the courts.

The bill acknowledged that litigation was not always the best approach, Mr McClelland said.

It will encourage parties to take genuine steps to seek to resolve their disputes before commencing proceedings in the Federal Court and the Federal Magistrates Court. In NSW, the Supreme Court’s annual review shows 666 cases were referred to court-annexed mediation during the 2009 financial year.

Justice Spigelman said his court had adopted a policy some years ago aimed at encouraging mediation and this had led to more registrars being trained and certified as mediators.

“What it does do is bring forward the settlements considerably as well as increase the number of settlements,” he said.

The court had adopted a rule some years ago that enabled it to order mediation irrespective of the wishes of the parties.

“That has now become the default position for all Family Provision Act cases,” he said.

He recognised that it might appear counter-intuitive to be ordering parties to mediate. “But in fact it works,” he said.

“People are reluctant to admit that they might have some weakness in their case and therefore don’t offer to settle or mediate.

“Whereas if they are forced into it, experience is that reluctant starters often become active participants.

“So although it is counter-intuitive, ordering someone to mediate actually works.”

But while he supported mediation, he said he did not “favour judicial mediation”.

“Some courts in Australia have judges mediating. We don’t,” he said. “We draw the line at registrars and that works very well for us.”

Contesting a will by an adult child. In Laidlaw & Anor v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti & Ors [2011] NSWSC 740 Hallen AsJ at paragraph 81 outlined the following principles:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form.

The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.

(d) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker ; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

Contesting a will by a grandchild. In Laidlaw & Anor v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti & Ors [2011] NSWSC 740 Hallen AsJ at paragraph 82 outlined the following principles relevant to a claim by an grandchild:

(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild normally regarded as a natural object of the deceased’s testamentary recognition. Additional factors need to be shown to bring a grandchild into the category of persons for whom the deceased ought to have made provision.

(b) Where a grandchild has lost his, or her, parents at an early age, and when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis , these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent.

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent.

(e) If there is dependence, whether whole or partial, by the grandchild on the grandparent, it must be direct and immediate; it is not sufficient that his, or her, dependence is the indirect result of the deceased providing support and maintenance for his, or her, own adult child, and, thereby, incidentally, benefiting the grandchild who is directly dependent on that child.

An important principle is outlined below in relation to the size of the estate when contesting a will:

In Re Buckland deceased [1966] VR 404, Adam J, at 415, said:

“I consider the proper conclusion to be drawn from the authorities is that the court’s jurisdiction, whatever the size of the estate, is limited by the claimant’s need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. … The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance.”

In Anasson v Phillips (NSWSC, 4 March, 1988, unreported) Young J (as his Honour then was) said:

“With a very large estate … there is great temptation on a Court to be overgenerous with other people’s money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community’s eyes she should have made proper provision for, that anyone can legally complain about another person’s will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the Plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the Plaintiffs. In particular, the lifestyle that has been enjoyed by the Plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor.”

McLaughlin AsJ stated in Lumb v McMillan [2007] NSWSC 386, at [26]:

“The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff.”

Contesting a will by a divorced spouse. In Scott v Scott [2009] NSWSC 567, Ward J considered the authorities on the question of whether a surviving spouse in a Family Provision application has a moral claim in relation to both settled and non settled property disputes prior to the death of a party. Her Honour said:

“130. In Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, Kirby P noted the public policy underlying the finality of settlements of property disputes and agreed with what had been said by Young J (as his Honour then was) in O’Shaughnessy v Mantle (1986) 7 NSWLR 142 (at 149) that in most cases the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision in the will of the other. Kirby P noted (at 652) nevertheless that:

[P]ublic policy, important though it is, must adapt itself to the new provisions of the Act, with its reforming inclusion of a specific entitlement of a former spouse to claim. That provision contemplates there will be cases where such a claim will succeed, notwithstanding the public policy [of finality of property settlement].

132. In Smith v Smith [1986] HCA 36; (1986) 161 CLR 217, however, the High Court pointed out that there was a very real difference between settling financial affairs between living persons under the Family Law Act and the position of persons entitled to make an application under a statute such as the Family Provision Act.

133. Bryson J in Mulcahy v Weldon [2001] NSWSC 474 noted (at [22]), “According to general community standards a former spouse who has been accorded all rights under a property settlement and does not have any continuing entitlement to maintenance, adjudicated or not, is not generally regarded as a natural object of testamentary recognition. Although such testamentary recognition does occur, it is, in my understanding, regarded as altogether exceptional and remarkable when it occurs”.

134. In Ernst v Mowbray [2004] NSWSC 1140, Young CJ in Eq (as his Honour then was) considered what he had said in O’Shaughnessy v Mantle in relation to the effect of the Family Law Act on an application by a divorced spouse. His Honour noted (at [32]) that the ex-spouse might obtain an order under “limited circumstances” under the Family Provision Act such as where the parties had not finally settled all their property dealings at the time of the divorce or where there was continued financial dependency after the divorce.

136. What then is the position of a spouse, separated from her husband, in circumstances where an informal division of assets has taken place and where it would seem the marital relationship is to all intents and purposes at an end?

137. Considering the above authorities, it seems to me that, while Mrs Scott remained the deceased’s wife even after their separation, and hence was a person for whom the community might expect the deceased to have made some provision for her continued support and maintenance in life (in recognition of the long marriage and her contribution to the building up of their joint assets and to his welfare in life), the community might also consider that a testator in the deceased’s position had done “the right thing” by effecting an amicable division of their assets prior to his death and had limited, if any, further moral duty to support his widow.

139. In Armstrong v Sloan [2002] VSC 229, Harper J in the Supreme Court of Victoria, noted (at [43]) that:

[A]rrangements made by a husband during his lifetime which on his death leave his widow in comfortable financial circumstances would ordinarily discharge his moral duty to make in his will adequate provision for her proper maintenance and support. That would (again, generally speaking) only not be so if, although comfortable, her circumstances did not allow her as a widow to maintain a standard of living comparable to that which she enjoyed as a wife.

140. His Honour noted that a settlement reached under the Family Law Act does not necessarily preclude a claim by a former spouse for family provision but that in those circumstances different considerations come into play.

141. In Armstrong v Sloan , Harper J considered that Mrs Armstrong’s position was as close to that of a divorcee as could be in the absence of a divorce. There, his Honour considered that Mrs Armstrong was not left by the deceased without adequate provision for her proper maintenance and support but that, if she was, he would have exercised his discretion against the claim for further provision stating (at [56]) that “by giving effect to the settlement, Mr Anderson discharged his moral duty to his wife, and thereby removed the “legislative justification to abridge freedom of testation”: Grey v Harrison [1997] 2 VR 359 at 365 per Callaway JA.

142. On balance, I consider that Mrs Scott’s position comes very close to that of Mrs Armstrong in that the marital bond had come to an end and the deceased had taken steps to effect what seems to have been an amicable and relatively fair …. division of all of their assets so as to terminate any moral claim the deceased might have had to the spouse from whom he was separated (and with a degree of finality appreciated by both parties from at least six months before his death). Nevertheless, I accept that the deceased himself appeared to recognise that there was scope for Mrs Scott to regard their financial dealings as not finally resolved and I am prepared to accept that from a community perspective there was some moral claim remaining, given the length of this marriage and the subsistence of an amicable relationship between the couple for some period after their separation.”

Contesting a will by an estranged son or daughter. Bryson JA in Wentworth v Wentworth (NSWSC, 14 June 1991, unreported) discussed moral duty in the context of estrangement:

“I do not regard a state of estrangement or even hostility as necessarily bringing to an end any moral duty to make provision for an eligible person, with a wife, son, daughter or other … A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle. Respectful submission to paternal wishes, even if they are reasonable, is not a condition of paternal duty. A whole view of the relationship and the character and conduct of both parent and child should now be taken, and the influence of character can be complex. Sometimes people’s characters cause them to be poorly disposed towards their parents, and the influence of this on a parent’s moral duty is not solely an adverse to the child; people’s behaviour is influenced by their characters in ways from which few can escape and of all people their parents have had most time and opportunity to influence character, understand it, become reconciled to it and tolerate its workings when unpleasant.

In another age a different interpretation of the community’s sense of moral duty was probably correct, but it is my task to interpret moral duty in my own times. The idealised just and wise testator of the present age knows now that he should not expect submission to his wishes, and knows that his children will be themselves no matter whether he likes it or not, and that they will feel free to interact with any hostile or unreasonable conduct of his own. Courts no longer attribute to the characteristic of being stern to the idealised testator, reflecting a marked change in perceptions of moral duty since 1910 when Edwards J spoke in Allardice v Allardice (1910) 29 NZLR 959 at 973 a father who was just and stern but not loving. Long periods of hostility or estrangement are not inconsistent with successful applications and the contribution of the testator is examined: see for example Gorton v Parks (1989) 17 NSWLR 1, Howarth v Reed , Powell J unreported 15 April 1991.”

Contesting a will and seeking a house as provision. In McGrath v Eves [2005] NSWSC 1006, Gzell J referred to the courts approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:

“67. When it comes to children, as Young J observed in Shearer v The Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.

68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352.

69. White J’s decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.

70. It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider.

71. There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order.”

Contesting a will by a widow. In Golosky v Golosky (NSWCA, 5 October 1993, unreported), Kirby P summarised the proper provision for widows in the following terms:

“2. In testing the Master’s decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow’s application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator’s will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor , above, 458; Hunter, above, 576;

(b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testators household and to consider whether, as claimed, the provision made by the will is inadequate for that person’s proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69 to 70;

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouses, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;

(e) Considering what is “proper” and by inference what is “improper” as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252.”

The following is a summary of Section 59 of the NSW Succession Act which commenced 1 March 2009 and relevant to contesting a will (family provision claims).

S.59 of that Act provides that the Court may make a family provision order in relation to a deceased person (who died on or after 1 March 2009), if the Court is satisfied that:

(a) the person in whose favour the order is to be made is an “eligible person” as defined in s.57;

(b) relevantly, having regard to all the circumstances of the case, there are factors which warrant the making of the application; and

(c) at the time the Court is considering the application, adequate provision for the maintenance or advancement in life of the person making the application has not been made by the will of the deceased.

Assuming, their evidence is accepted (i.e. they are believed on their oath and the evidence is admissible) each claimant will establish they are eligible persons pursuant to paragraph (e) of subs. (1) of s.57. However, each must also prove there are factors which warrant their making their applications. The “factors” referred to are those factors which, when added to the facts which make the applicant an eligible person, give her the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. To some extent, the factors will be established by a demonstration of a continuing dependence on the deceased by an applicant and their continuing relationship -although, the “factors” are not limited to these matters.

Section 59 of the Act requires an applicant to establish that adequate provision for her maintenance and advancement in life has not been made by the will in question. This is a question of fact, and requires an assessment of what in all the circumstances was the proper level of maintenance appropriate for the applicant having regard, inter alia, to the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased (including contributions made by the applicant to the deceased’s estate and welfare) and the relationship between the deceased and other applicants for provision and the beneficiaries entitled to take in the estate.

The following order by Hallen AsJ in a 2011 case is an example of a typical order in cases of contesting a will (family provision)

1. Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the Plaintiff is to receive out of the estate of the deceased, a lump sum of $280,000. The burden of the provision should be borne by the Defendant.

2. The lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment.

3. The lump sum and any interest accrued thereon should constitute a charge on the property until it is paid.

4. Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

5. Reserve further consideration.

6. Defer question of costs for further argument if parties unable to agree.

Contesting a will and family provision order was sought by a spouse (plaintiff) of the deceased after a 26 year relationship. Small estate left to children of the deceased from former marriages. Consideration of the financial and material circumstances of Plaintiff and whether the spouse had been left without adequate provision for proper maintenance and advancement in life. Provision to be made for the spouse by way of Crisp order and small capital sum. The decision is what is known as a “Crisp Order”.

The decision by His Honour Hallen AsJ as follows:

1. The Plaintiff should receive, by way of provision, out of the estate of the deceased, an order in the nature of a Crisp order, in the amount of $190,000. That amount is the sum required to purchase the one bedroom plus sunroom unit in Nareen Gardens. The costs associated with the purchase, including stamp duty, if any, payable on the contract for the purchase, and all legal costs thereof should be paid out of the estate. The unit should be held in the name of the estate.

2. The amount of $190,000, less any capital loss (estimated at no more than 30%) should also be available to satisfy any costs and expenses of the following phase of the Plaintiff’s life, namely movement from that unit to other nursing, or similar type, accommodation, until the Plaintiff’s death.

3. The Defendants may enter into a contract for the purchase of the unit, or enter into any other agreement, which might include a clause with the effect be that there will be a capital loss of 30% over 5 years.

4. In addition, the Plaintiff should receive a lump sum of $10,000, absolutely, for exigencies of life. The balance of the estate, if any, up to $25,000 should be retained to provide income for the use of the Plaintiff in paying any expenses of the unit, unless the parties otherwise agree, in writing that such sum is not required. The capital sum may be used if necessary to pay any amount required which cannot be met from the income.

5. The balance of the estate, if any, after the payment of the legal costs ordered to be paid, should be distributed to as part of the share of the estate to which he is entitled.

6. The burden of the provision for the Plaintiff should be borne by the residuary estate.

7. I shall hear the parties on the form of orders and on costs if they cannot agree.

Sometimes Will contest applicants ask the court to take into consideration promises made by a decesed person. In his judgment in Palagiano v. Mankarios on 22 February 2011…His Honour White J.said the following.

“15. I am not satisfied that there was anything promissory in the statements made, as distinct from their being statements of Mr Palagiano’s then intentions and expectation. Circumstances can change. Mr and Mrs Palagiano’s financial circumstances could change. For example they might choose to sell the house for any reason. Family dynamics might also change, as they did. In the family setting there was no intention or expectation that Mr Palagiano’s representations as to the inheritance of the family house, or the steps alleged to have been taken in reliance on the representations, would create legal relations.

16. I do not accept that Tony’s actions in leaving school and starting work, or his handing over his wages to his father, were steps taken by him in reliance upon any representation made by his father that the house would one day belong to him, his brother and sister. On his evidence he was 12 when he left school and took up work. I think it more likely that he was 14 or 15 when he did so, but whatever his age, he had no real choice in the matter. As he said in cross-examination, his father forced him to leave school in order to go to work and bring home a wage. By the same token he continued to live at home and was provided with board until he married in 1988.”

In this will contest case Hallen AsJ in his Judgment in O’Leary v. O’Leary made the following further comments on the 1982 and 2006 Acts.

“27 Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour’s warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

28 The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person’s estate. Nor does it impose any limitation on the testator’s power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. Even then, the court’s power to do so is discretionary.

29 The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

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

When contesting a will how does the Family Provision Act 1982 compare with the Succession Act 2006? In his Judgment 1 December 2010 His Honour Hallen AsJ in the case of O’Leary v. O’Leary said the following.

“25. I shall discuss the statutory scheme that is relevant to the facts of the present case.

26. The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators’ Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator’s family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by “the widow, husband or children of such persons”. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional.”

Judge’s discretion when contesting a will.

When it comes to contesting a will one question that is frequently asked in these cases is… “do i have a good case… how much do you think I will receive and… who pays the costs?” The answer can only be… “It depends upon which judge hears your claim”. The following summary in a will contest case is part of a Judgement delivered by His Honout Palmer J. in the case of Sherbone Estate: Vanvalen & Anor V. Neaves & Anor; Gilroy V Neaves & Anor [2005] NSWSC 1003s.

“56. A claim under the FPA is not quantifiable by the parties’ legal advisers prior to judgment with anything like the prescience possible in a claim for a liquidated sum such as a contract debt, or even in a claim for unliquidated damages for personal injury or for future economic loss. There are statutory and judicial guidelines for the range of damages appropriate for various types of personal injury; expert accountants attempt to quantify damages for future economic loss by reference to historical financial information.

57. However, in a claim under the FPA the Court has to quantify what provision “ought to be made” for the applicant out of the deceased’s estate “having regard to the circumstances at the time the order is made”: s.7. Inevitably, that question involves a large element of subjective assessment by the Judge. Inevitably, on any particular set of facts, there would be a variety of answers given by different Judges. The decided cases offer broad parameters as to what provision “ought to be made” in certain kinds of circumstances but there is no formula and there is no yardstick on which the degrees of measurement are not etched by the Judge’s own experience of life.

58. There will be some FPA cases in which the applicant’s claim is so unreasonable that the applicant is clearly unjustified in commencing the proceedings let alone prosecuting them to a conclusion. In such a case indemnity costs might well be ordered. There will be many cases in which an applicant only just fails to qualify for further provision before one Judge when the same applicant would have only just succeeded in qualifying for provision before another Judge. There will be cases in which the applicant obtains an order for further provision which one Judge would regard as appropriate, another would regard as generous and a third would regard as niggardly”.

When contesting a will how does the Family Provision Act 1982 compare with the Succession Act 2006? In his Judgment 1 December 2010 His Honour Hallen AsJ in the case of O’Leary v. O’Leary said the following.

“25. I shall discuss the statutory scheme that is relevant to the facts of the present case.26. The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:Purposive construction of the ActThere is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators’ Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator’s family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by “the widow, husband or children of such persons”. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional.”

When contesting a will how does the Family Provision Act 1982 compare with the Succession Act 2006? In his Judgment 1 December 2010 His Honour Hallen AsJ in the case of O’Leary v. O’Leary said the following.

“25. I shall discuss the statutory scheme that is relevant to the facts of the present case.26. The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:Purposive construction of the ActThere is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators’ Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator’s family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by “the widow, husband or children of such persons”. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional.”

Judge’s discretion when contesting a will.

When it comes to contesting a will one question that is frequently asked in these cases is… “do i have a good case… how much do you think I will receive and… who pays the costs?” The answer can only be… “It depends upon which judge hears your claim”. The following summary in a will contest case is part of a Judgement delivered by His Honout Palmer J. in the case of Sherbone Estate: Vanvalen & Anor V. Neaves & Anor; Gilroy V Neaves & Anor [2005] NSWSC 1003s.”56. A claim under the FPA is not quantifiable by the parties’ legal advisers prior to judgment with anything like the prescience possible in a claim for a liquidated sum such as a contract debt, or even in a claim for unliquidated damages for personal injury or for future economic loss. There are statutory and judicial guidelines for the range of damages appropriate for various types of personal injury; expert accountants attempt to quantify damages for future economic loss by reference to historical financial information.57. However, in a claim under the FPA the Court has to quantify what provision “ought to be made” for the applicant out of the deceased’s estate “having regard to the circumstances at the time the order is made”: s.7. Inevitably, that question involves a large element of subjective assessment by the Judge. Inevitably, on any particular set of facts, there would be a variety of answers given by different Judges. The decided cases offer broad parameters as to what provision “ought to be made” in certain kinds of circumstances but there is no formula and there is no yardstick on which the degrees of measurement are not etched by the Judge’s own experience of life.58. There will be some FPA cases in which the applicant’s claim is so unreasonable that the applicant is clearly unjustified in commencing the proceedings let alone prosecuting them to a conclusion. In such a case indemnity costs might well be ordered. There will be many cases in which an applicant only just fails to qualify for further provision before one Judge when the same applicant would have only just succeeded in qualifying for provision before another Judge. There will be cases in which the applicant obtains an order for further provision which one Judge would regard as appropriate, another would regard as generous and a third would regard as niggardly”.

The necessity for there to be a grant of representation before a family provision order can be made when contesting a will.

In Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931 there were two claimants seeking provision from the estate of the deceased. The claimants were separately represented and each filed proceedings separately. The deceased died intestate and only one of the plaintiffs sought and obtained a grant of limited letters of administration for the purpose of an application being made under Chapter 3 of the Succession Act 2006.

Hallen AsJ considered whether it was necessary for a grant of administration to be obtained before a family provision order to be made.

At paragraphs 106 to 113 His Honour addressed this issue and concluded that, as was held in Hitchcock v Pratt, a grant of representation in NSW is not a precondition to commence family provision proceedings or for the making of a family provision order. His Honour said:

The requirement for Estate Administration

  1. As has been noted above, whilst there has been a grant of administration in respect of the deceased’s estate for the purpose of Pauline making a claim under Chapter 3 of the Act, no such grant was sought, or made, in Linda’s case. A preliminary question, namely whether it is actually necessary for there to be a grant of administration, was raised, briefly, at the commencement of the hearing.
  2. An application for a family provision order may be made in respect of the estate of a deceased person. In s 3 of the Act, “deceased person” is defined as “including any person in respect of whose estate administration has been granted”. The use of the word “including”, suggests that the phrase is not limited to only such a person. In this regard, the Act is different from the former Act, which, in s 7, specifically referred to “a deceased person in respect of whom administration has been granted”.
  3. Section 55 of the Act sets out the circumstances in which “administration is granted in respect of the estate of a deceased person”. In s 4 of the Act, “administration” is defined by reference to s 55 of the Act. The latter section provides that “administration” is granted in respect of the estate of a deceased person in certain specified events including “where letters of administration of the estate of the deceased person are granted in New South Wales … whether for general, special or limited purposes”: s 55(1)(b).
  4. Recently, in Hitchcock v Pratt [2010] NSWSC 1508, Brereton J noted:

“… I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [ Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order.”

  1. Respectfully, I agree that a grant of administration is not required before the commencement of proceedings under the Act. Leaving aside the decision of Leue v Reynolds (1986) 4 NSWLR 590, s 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
  2. In Cabban v Cabban [2010] NSWSC 1433, Macready As J discussed the principles on this topic. I shall not repeat what his Honour said at [54] to [58].
  3. In this case, which is slightly different to each of Leue v Reynolds and Cabban v Cabban , I have come to the view that a separate grant is not necessary in Linda’s case. I shall refer to s 59(1), which provides when a family provision order in relation to the estate of a deceased person may be made.
  4. Whilst, strictly, it may be possible to make a further grant (s 91(3) of the Act), that is not required. A limited grant has already been made, and although it was not “for the purposes of permitting the application concerned (i.e. Linda’s application) to be dealt with”, the deceased is a person in respect of whose estate administration (albeit for a limited purpose) has been granted.
Articles relating to contesting a will in Victoria.

Estrangement can be a problem when Contesting a Will.

It is often argued that a deceased was justified in omitting a child from a will because there was a long period of estrangement between them. Moreover, there may be a belief that estrangement is evidence of the failure by an applicant in maintaining a proper relationship with the deceased which gives rise to the end of the moral duty to provide. However, this is not necessarily the case.

In Wentworth v Wentworth, Bryson J considered that a state of estrangement or even hostility does not necessarily bring an end to any moral duty to make provision for an applicant. An estrangement should be appraised and its causes considered. A long-standing severance of a relationship with a parent, or even a clearly established termination of all communication, is not in the present age regarded as necessarily putting an end to all moral duty.

Estrangement is a fairly common allegation to make against an applicant in a family provision claim. The courts will have to consider the reason for it. Recent cases involving estrangement tend to consider the emotional and human elements behind the estrangement, as well as the bald facts. These cases also reiterate the relatively high standard of understanding and forgiveness expected of the “wise” and “just” testator when disappointed by adult children. In Foley v Ellis [2008] NSWCA 288, the court accepted that estrangement or even hostility, between a deceased and an applicant does not necessarily terminate the obligation to provide. However, where the behaviour of the applicant descends into morally undeserving conduct or callousness, compounded by hostility, there may be a justification for exclusion from family provision. When it is clear that the estrangement was caused by the applicant, this will be taken into consideration when dealing with the application. However, depending on the seriousness of the conduct, it may only reduce the amount awarded for provision, rather than fully exclude the applicant.

It should also be noted that there is no presumption that fault lies only with an estranged applicant, and the court is well able to find that the deceased lacked forgiveness or reasonableness in their handling of a family dispute.

In Riches v Holdman [2001] WASC 321, lack of contact between a daughter and her mother for a period of almost three years prior to the mother’s death was not held to amount to disentitling conduct when viewed in the context of the facts of the case.

In Perkins v Burke [2003] NSWSC 1167, the mother had abandoned her son at birth. The son had attempted contact with his mother over the years, which was made difficult by her. The plaintiff was in a modest financial position and was awarded a reasonable legacy.

In Rowley v Bouwmeester [2005] TASSC 34, a daughter’s lack of contact with her father over many years, plus a degree of hostility by her towards her father during his final illness, were held to be factors that weighed substantially against her and substantially reduced the strength of her moral claim. However, modest provision was still awarded.

In Vincent v Rae [2006] VSC 346, an estrangement between a mother and daughter of some 20 years, where there was very occasional contact between them, was held not to be disentitling conduct by the daughter.

In some cases, it may be alleged that a relationship of hostility or indifference existed between an applicant and the deceased, rather than a complete estrangement. The court’s approach in these cases has been described by Heenan J in Curran v Duncan [2006] WASC 9 as follows:

“This case (Hawkins v Prestage) also contains a helpful analysis of the principles dealing with the situation where an attitude of hostility or indifference characterises the relationship between the claimant and a testator which will sometimes result in a conclusion being reached that no moral claim exists. However, as in Hawkins v Prestage, the explanation for such an attitude of hostility or indifference may be that the attitude was one-sided on the part of the testatrix or caused as a result of conduct or events on her part in the past. Acute difficulties can arise in such cases in determining whether or not such a moral duty still remains on the part of the testatrix. Even if there is mutual or one-sided hostility or indifference between parent and child, that does not dispense with the obligation of the testator to make proper provision for a child but it may mean that it is, in certain situations, “proper” to make little or no provision for that child. It all depends on the particular circumstances and there can be no universal rule.”

Having regard to the above cases, the following general observations can be made in cases where there is little or no relationship between a parent and child:

  1. A child who had no relationship whatsoever with his or her parent is not automatically excluded from consideration as a natural object of benefaction: Nicholls v Hall [2007] NSWCA 356.
  2. The extent of the parent’s moral obligation to an estranged child is measured by factors such as the size of the estate, the needs of the child and, crucially, the strength of the competing claims against the parent’s bounty. Obviously the stronger the competing claims, the weaker the claim of the child. Indeed estrangement between the applicant and the testator may weigh significantly against the applicant where the applicant has no pressing needs: Dodge v Blissenden [2009] TASSC 116.
  3. A parent who did not have a great or long relationship with their child is prima facie under some obligation to provide for its child. Of course this needs to be considered along with the factors mentioned previously to determine the extent of that obligation.
  4. A child who had little or no relationship with their parent cannot expect to be equated to a sibling or child who enjoyed a normal parent-child relationship.
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