Wills & Estates: Family Provision Claims · Wills & Estates: Family Provision Claims By Jane K....

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Jane K. Petrolo Barrister Liability limited by a scheme approved under Professional Standards Legislation 1 Wills & Estates: Family Provision Claims By Jane K. Petrolo Barrister Elizabeth Street Chambers The Australian Government’s Intergenerational Report (IGR) projects that over the next 40 years, the proportion of the population aged over 65 years will almost double to around 25% 1 . The Australian Bureau of Statistic (ABS) reports that according to the 2011 Census there are 3 million people aged 65 years and over currently living in Australia 2 . It is projected that this figure will increase to 6.2 million by the year 2042 3 with 1.1 million being over the age 85 years in 2042 4 . Given that the latest figures from the ABS estimate that the current life expectancy as at 2011 for males and females was 79 and 84 years respectively. It is a fair projection that over the next 20 to 30 years this country will also experience an increase in the national death rate. With the probability of a higher death rate in the years to come and the fact that 70% of all Australians currently owned their own home, it is reasonable to expect that over the coming years more people will be leaving behind sizable estates upon their death. While it is generally advisable to encourage one’s clients to execute a legally drafted will, ensuring that such assets are distributed upon their death, in accordance to their final wishes, can not always be guaranteed. While the existence of a will may help to limit the number of claims that may be brought against a person’s estate, it is generally impossible to draft a will that will 100% safeguard a person’s estate from a contested claim. One reason for this is that in most cases, the time of a person’s death is unknown and/or difficult to predict. Hence it is not uncommon for many personal relationships to have altered between the time the deceased person made their will and the timing of their death. Often this results in either one or more persons close to the deceased feeling aggrieved by the terms of the will and can often lead to a contested claim being brought against the deceased’s estate. This is often seems particularly with blended families when claims are brought by the children from the first marriage against the surviving widow, second wife. In a traditional family if there is a dispute between a mother and son about their share of the deceased’s estate, the son may be willing to settle the claim on the basis that the mother will ultimately leave her estate to the son. However, in a blended family, if the court orders further provision to the second wife, there is no assurance that the second wife may leave her estate 1 The Australian Government Paper ‘Australia’s Demographic Challenges. 2 The Australian Bureau of Statistics “Who are Australia’s Older People? Reflecting a Nation: Stories from the 2011 Census. 3 The Australian Government Paper ‘Australia’s Demographic Challenges : Appendix – the economic implications of an aging population’ . 4 ibide.

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Wills & Estates: Family Provision Claims

By Jane K. Petrolo

Barrister Elizabeth Street Chambers

The Australian Government’s Intergenerational Report (IGR) projects that over the next 40 years, the proportion of the population aged over 65 years will almost double to around 25%1. The Australian Bureau of Statistic (ABS) reports that according to the 2011 Census there are 3 million people aged 65 years and over currently living in Australia2. It is projected that this figure will increase to 6.2 million by the year 20423 with 1.1 million being over the age 85 years in 20424. Given that the latest figures from the ABS estimate that the current life expectancy as at 2011 for males and females was 79 and 84 years respectively. It is a fair projection that over the next 20 to 30 years this country will also experience an increase in the national death rate. With the probability of a higher death rate in the years to come and the fact that 70% of all Australians currently owned their own home, it is reasonable to expect that over the coming years more people will be leaving behind sizable estates upon their death. While it is generally advisable to encourage one’s clients to execute a legally drafted will, ensuring that such assets are distributed upon their death, in accordance to their final wishes, can not always be guaranteed. While the existence of a will may help to limit the number of claims that may be brought against a person’s estate, it is generally impossible to draft a will that will 100% safeguard a person’s estate from a contested claim. One reason for this is that in most cases, the time of a person’s death is unknown and/or difficult to predict. Hence it is not uncommon for many personal relationships to have altered between the time the deceased person made their will and the timing of their death. Often this results in either one or more persons close to the deceased feeling aggrieved by the terms of the will and can often lead to a contested claim being brought against the deceased’s estate. This is often seems particularly with blended families when claims are brought by the children from the first marriage against the surviving widow, second wife. In a traditional family if there is a dispute between a mother and son about their share of the deceased’s estate, the son may be willing to settle the claim on the basis that the mother will ultimately leave her estate to the son. However, in a blended family, if the court orders further provision to the second wife, there is no assurance that the second wife may leave her estate

                                                                                                               1  The  Australian  Government  Paper  ‘Australia’s  Demographic  Challenges.  2  The  Australian  Bureau  of  Statistics  “Who  are  Australia’s  Older  People?  Reflecting  a  Nation:  Stories  from  the  2011  Census.  3  The  Australian  Government  Paper  ‘Australia’s  Demographic  Challenges  :  Appendix  –  the  economic  implications  of  an  aging  population’  .    4  ibide.  

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to the first wife’s children. In such cases the court often considers the deceased’s primary responsibility to be to the surviving spouse rather than adult able-bodied children who have an earning capacity. This has been demonstrated throughout the years in many cases, which this paper will later refer. There are a multitude of reasons as to why a person may decide to contest a will. However, one of the most common reasons for an application is on the basis that the deceased failed to leave provisions or adequate provisions in his/her will for a person who falls within the definition of ‘eligible person’ as defined under section 57 of the Succession Act 2006 (NSW) (the Succession Act). The Court’s role in determining these type of cases is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Nor is it the purpose of the jurisdiction conferred by the Act to correction the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education or advancement in the life of an applicant5. Who can bring a contested claim? Generally speaking a person can bring a claim to contest a will if:

i) the claim is brought within 12 months of death (unless the court gives leave)6; and

ii) the person can establish that they’re an ‘eligible person’ as defined under section 57(1) of the Succession Act 2006 (NSW); and

iii) with respect to certain provisions (s.57(1)(d),(e) & (f)), whether the person can

establish that there are ‘factors warranting’ a change to certain provisions of the deceased’s will.

The Succession Act applies in respect of the estate of a person who died on, or after 1 March 2009. This Act replaces the Family Provision Act 1982 (“the former Act”), which was repealed, effective from 1 March 2009. The Succession Act is a much more comprehensive piece of legislation which seeks to consolidate all of the various statutes relating to succession, probate administration and family provisions and to harmonise New South Wale laws with the laws of other states within Australia. The key provision in the Succession Act is section 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s.57(1). The former Act is predominately replicated in Chapter 3 of the Succession Act, which chapter is titled ‘Family Provision’. It ought however be noted that the language in the Succession Act is much broader than that which existed in the former Act. Hence, those factors which may now satisfy a court that a provision made is “not adequate”, for the purpose of the

                                                                                                               5  Gorton v Parks (1989) 17 NSWLR 1 at [6], Bryson J.  6  Section  58(2)  of  the  Succession  Act  2006  (NSW).    

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Succession Act, might not have been sufficient to remove the prohibition under the former Act7. Who is an eligible person? Under the former Act an ‘eligible person’ was defined under section 6(1) and included the following six (6) categories of persons:

(i) the wife or husband of the deceased person at the time of the deceased person’s death, or

(ii) the former wife or husband of the deceased person; or

(iii) a person living in a domestic relationship with the deceased person at the time of the deceased person’s death, or

(iv) a child of the deceased person, or

(v) a person who was at any particular time, wholly or partly dependent upon

the deceased person, and

(vi) a person who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

Under the Succession Act, the above six (6) categories of person have been broadened pursuant to section 57(1), which defines an ‘eligible person’ as:

‘ (1)The following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the wife or husband of the deceased person at the time of the

deceased person’s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c) a child of the deceased person,

(d) a former wife or husband of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the

deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

                                                                                                               7  Andrew v Andrew [2012] NSWCA 308 at [26], Basten JA.  

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(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

(1) In this section, a reference to a child of a deceased person includes, if the deceased

person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationship) Act 1984, at the time of death, a reference to the following: (a) a child born as a result of sexual relations between the parties to the relationship, (b) a child adopted by both parties, (c) in the case of a de facto relationship between a man and a woman, a child of the

woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted),

(d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).’

Of the above six (6) categories, only three (3) categories retain the identical wording as set forth in section 6(1) of the former Act8. The three (3) newly drafted categories set forth in the Succession Act are the basis for discussion within this paper. De Facto Relationship Section 57(1)(b) is one of the newly drafted categories of person set forth in the Succession Act. Section 57(1)(b) states that a person falls within the meaning of ‘eligible person’ under the Act if they are: ‘a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death’ The interesting point with respect to this subsection is that the term ‘de facto relationship’ is not defined under the Succession Act. The term ‘de facto relationship’ was recently discussed by Associate Justice Macready at first instance in Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vauclause) [2011] NSWSC 635 (Barnsley). In Barnsley the plaintiff brought a claim pursuant to section 57(1)(b), being that she had been in a de facto relationship with the deceased for 16 years prior to his death. The deceased in this case had left provision in his will for his daughter, step-daughter and grandchildren but no provision for the plaintiff. His Honour at paragraph [17] of his judgment acknowledged the fact that the term “de facto relationship” is defined under the Succession Act. Hence, in this case Honour relied on section 21C of the Interpretation Act 1987 to assist him in determining what constitutes a “de facto relationship under the Succession Act.

                                                                                                               8    Sections  57(1)(a);  (d)  and  (e)(i)  &  (ii)  of  the  Succession  Act  2006  (NSW).  

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Section 21C of the Interpretation Act 1987 states: ‘(1) Meaning of “de facto partner” For the purpose of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b) the person is in a de facto relationship with the other person.

(2) Meaning of “de facto relationship” 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. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purpose of subsection (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.’ It ought be noted that nothing in section 21C of the Interpretation Act 1987 requires a couple who are living together to share the same household full time or to live in one house. Hence the fact that in Barnsley the plaintiff and the deceased never lived in the one house together did not preclude his Honour from finding that in the circumstances of the case there did in

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fact exist a de facto relationship between the plaintiff and the deceased at the date of death. It was on the basis of this finding that the plaintiff in Barnsley was held to be an eligible person under the Act. Blended families similar to that displayed Barnsley have been particularly problematic for the courts throughout the years. The court over the years, in these type of cases, have often considered the deceased’s primary responsibility as being to the surviving spouse rather than adult able-bodied children who have an earning capacity. This has been demonstrated throughout the years in matter such as Singer v Berghouse (1994) 181 CLR 201; Luciano v Rosenblum [1985] 2 NSWLR 65; Golosky v Golosky (NSW Court of Appeal, 5 October 1993, unreported), Herzberg v Hertzberg [2003] NSWCA 311; Tchadovitch v Tchadovitch [2009] NSWSC 1398 where the courts have made further provision to the second wife. In Lucinano v Rosenlum [1985] 2 NSWLR 65 Powell J said:

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

However, there has more recently been reminders about the limitations of such formulations. In Marshall v Carruthers [2002] NSWCA 47, Young CJ in Eq said: “[73] It must be remembered that Powell J put his proposition as a “broad general rule”. However, there is in fact no “standard former spouse” to which one can just apply that proposition as a rule of thumb. [74] Powell J’s broad general rule may not be a good guide as to what the Court will consider as the duty of the testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in the case of other spouses. Indeed, the cases in the first half of the 20th century showed that as far as widowers were concerned, the proposition was quite untrue.” In Marshall v Carruthers Young CJ in Eq held that there was in fact no “standard former spouse” to which the proposition set out by Powell J can be applied. His Honour stated that Powell J’s proposition was a broad general rule and not a good guide as to what the court will consider as the duty of the testator towards a spouse. In this case Young J also rejected submissions that a class (a) eligible person (being the spouse of the deceased) had a stronger claim than a class (b) eligible person (being a de facto spouse) particularly in circumstances where there is a young child involved. In Hertzberg v Hertzberg [2003] NSWCA 311 the Court of Appeal confirmed the decision at first instance to make provisions for the widow, second wife out of a large estate in circumstances where there was no competing claim and no circumstance of need of any will beneficiary. The matter was again dealt with in more detail in Bladwell v Davis [2004] NSWCA 170.

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“[12] There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind in accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts vary widely and in truth are unique to each particular case. “Widow takes all” is not a rule which has been or could be established by judicial decision: the Court cannot resign the functions which it has under s.7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned. [13]Observations on the claim of widows were made by Powell J in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69 -70 in these terms: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforseen contingencies. These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However they are frequently, almost universally cited in applications where provisions for widows are under consideration.” In Golosky v Golosky NSWCA 5 October 1993 (unreported) Kirby P referred to Luciano v Rosenblum briefly for comparison, but also said: Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an “able bodied son” was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See [Hunter v Hunter and Ors (1987) 8 NSWLR 537 (CA); Anderson v Teboneras and Anor [1990] VR 527. So should inflexible rules about spousal provision. Member of the household While it is true that section 57(1)(e) contains identical wording to the section 6(1)(d) in the former Act, neither the former nor the current Act defines the phrase ‘member of a household’. While both the former and current provisions appears to be predominantly aimed at including a grandchild of the deceased as an ‘eligible person’, there is a second part to the subsection which broadens the scope of the definition so as to determine as eligible, any person who was at any particular time wholly or partly dependent on the deceased and who was a person who at that particular time or at any other time, was a member of the household of which the deceased person was a member.

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This situation was looked at in the Court of Appeal case of Skinner v Frappell [2008] NSWCA 296 (Skinner) which was an appeal from a decision of McDougall J at first instance9. At first instance the plaintiff/grandson was unsuccessful in challenging his grandfather’s will which left the entirety of his grandfather’s estate to his grandfather’s sister (the first respondent in the Court of Appeal proceedings). Skinner involved a will made by the deceased six (6) days before his death, which bequeathed the whole of his estate to the first respondent. The will was challenged by the grandson on a number of grounds including a claim under section 6(1)(d) of the Family Provisions Act 1982 (NSW)10. The grandson claimed, as part of his primary claim that he was entitled to the whole of the estate, either pursuant to an alleged earlier will or by intestacy. In the alternative, the grandson argued that he had a substantial claim under the Family Provision Act 1982. There was no dispute in Skinner that the grandson was an ‘eligible person’ under the Act. In Skinner the critical concept that was considered with respect to the grandson’s application, was dependency. In Skinner, Counsel for the grandson submitted that the grandson was dependent on the deceased for emotional support. That submission failed on the basis that dependency while not limited only to financial dependency did not extend to mere emotional dependence11. In Skinner the court held that the appellant had failed to prove dependency as the only dependency that had been established was emotional dependency, and that was insufficient. This issue of emotional dependency was also dealt with in an earlier Court of Appeal case of Benney v Jones (1990) 23 NSWLR 559. Benney v Jones held that a person claiming to be an‘eligible person’ by reason of having been “wholly of partly dependent” on the deceased must show the existence of something more than an emotional relationship between them. This case was an appeal from the decision of Young J who dismissed an application for maintenance and advancement made pursuant to the former Act by a person who alleged to have been in a homosexual relationship with the deceased. In this case, for the plaintiff to establish that he was an ‘eligible person’ within the meaning of the former Act, it was necessary for him to persuade the court that he had, at some particular time, been wholly or partly dependent upon the deceased and that he had also, at some time, been a member of the household of which the deceased was a member. On appeal Mahoney JA agreed with Priestly JA that being “dependent” did not mean emotionally involved with him. It was held that while one person may have a deep emotional attachment to another, and the result of that attachment may be that, when that person dies, the other may be greatly affected. It may mean that the continued emotional wellbeing of the one affected by, that is, dependent upon, the continued availability of the other and the continuation of that attachment. But that this is a different meaning of ‘dependent from that

                                                                                                               9    Skinner v Frappell [2007] NSWSC 1241.  10    Now section 57(1)(e) of the Succession Act 2006 (NSW).  11  Benney v Jones (1990) 23 NSWLR 559 ,Mahoney JA.  

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set forth in section 6(1)(d) of the former Act. It was held that such emotional attachment as the plaintiff had to the deceased was not, as such, within the terms as there used. At first instance, the primary judge decided that the plaintiff had not at any time been wholly or partly dependent upon the deceased. This meant that the plaintiff did not satisfy the threshold of ‘eligible person’ pursuant to the former Act and hence his claim must fail. On appeal counsel for the appellant submitted that a relevant dependency could arise from solely emotional bases, with no element of financial dependence being involved at all. This submission, however, was rejected by both Mahoney and Priestly JA. It was held by the Court of Appeal that the deceased in Benny v Jones did not have a moral obligation to make any provision for the plaintiff at the time of his death, nor did the plaintiff have a moral claim on the estate of the deceased. Another recent case that was commenced by the plaintiff pursuant to this section 57(1)(e) of the Succession Act is the matter of Nowak v Beska [2013] NSWSC 166 (Nowak). In this matter the plaintiff applied for a family provision order pursuant to section 57(1)(e) upon the basis that she was a member of the household of her sister, the deceased, and was wholly or partly, dependant upon the deceased at that, or any other particular time. In Nowak the deceased’s husband had previously died and there were no children from the marriage. The deceased left a will that she made on 15 September 2008. The will left the whole of her estate to the defendants with no provision having been made for the plaintiff. The only property of the deceased at the date of her death was real estate in St Clair worth approximately $450,000 however the distributable estate after the payment of the estimated legal costs and expenses of each of the party was only $78,000. In Nowak his Honour acknowledged that the plaintiff was the only party to the proceedings who fell within the definition of ‘eligible person’ within the meaning of the Act. Further, there was no dispute that the plaintiff was a member of the household of which the deceased was a member for a period of time. There was also no dispute that during part of that time the plaintiff was at least partly dependent upon the deceased. The defendants in Nowak did not assert that they fell within the definition of ‘eligible person’ but instead advance a case that they were the chosen objects of the deceased’s bounty and hence they should be considered as competing claimants. Where an applicant falls within the definition of eligible person as was the case in Nowak, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s59(1)(b))12. In this case the court held that factors warranting the application had been established and that in the circumstances adequate provisions had not been made for the plaintiff. Close Personal Relationship                                                                                                                12  Nowak  v  Beska  [2013]  NSWSC  166  at  [72].  

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Pursuant to section 6(1)(a)(ii) the former Act a person was considered to be an‘eligible person’ if the deceased was living with that person ‘in a domestic relationship at the time of the deceased person’s death’. Under the former Act the term ‘domestic relationship’ was defined pursuant to the Property (Relationships) Act 1984. Section 5 of the Property (Relationships) Act 1984 stated the following:

(1) For the purpose of this Act, a domestic relationship is: (a) a de facto relationship; or

(b) a close personal relationship (other than a marriage or a de facto relationship)

between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purpose of subsection (1)(b) , a close personal relationship is taken not to exist

between two persons where one of them provides the other with domestic support and personal care: (a) for a fee or reward, or

(b) on behalf of another person or organisation (including government or government

agency, a body corporate or a charitable or benevolent organisation)

(3) A reference in this Act to a child or the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties, (b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman: i) of whom the man is the father, or ii) of whom the man is presumed, by virtue of the Status of Children Act 1996,

to be the father, except where such a presumption is rebutted,

(c1) where the domestic relationship is a de facto relationship between two women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(d) a child for whose long-term welfare both parties have parental responsibility (within

the meaning of the Children and Young Persons (Care and Protection) Act 1998).

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.

Section 6(1)(a)(ii) along with the wording of that section has now been repealed. It has been replace by s.57(1)(b) and section 57(1)(f) which states: ‘ a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.’

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The term ‘close personal relationship’ is defined under section 3(3) of the Act as: ‘a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.’ An ‘adult person’ is a person of, or above, the age of 18 years.13 Though it ought be noted that the definition contained in the Succession Act is not prescriptive as to gender of the adult person, so it applies, equally to those who are of the same gender. It can be seen from the definition of ‘close personal relationship’ in the Act, that the requirements that one or each, provides the other with domestic support and personal care, are not themselves definitions but qualifying conditions that must be satisfied before the relationship will fall with the definition of the Act14. Further, it is clear from the indicia of domestic care and personal support, that it need only be given by one of the adult persons to the other. The term ‘domestic’ has in the past been given its natural definition. With respect to the phrase ‘personal care’ the Court of Appeal in Hayes v Marquis [2008] NSWCA 10 at [168] held that:

“…The ordinary meaning to be attributed to this expression is simply the commonsense experience of one person caring in a personal way for the needs of another. In Dridi v Filmore, Master[now Associate Justice] Mcready expressed the view with which I agree, that the expression ‘personal care’ seemed to be directed at matters such as assistance with mobility, personal hygiene, physical comfort and emotional support. Nor would I regard this list as necessarily exhaustive. It is unnecessary to presently determine whether in the absence of the giving of assistance of the type outlined above, the giving of emotional support would qualify on its own as ‘personal care’, although this may well be the case.”

It should also be noted that the phrase ‘living together’ is also not defined by the Succession Act. Given that two adults may be members of the same family, concepts relating to “a couple” may not necessarily be taken into consideration with respect to this phrase. Thus, the existence of a romantic, or sexual, relationship, a practical union of lives and property, and the public aspects are not necessary criteria. In the recent case of Harkness v Harkness [2011] NSWSC 1421 (Harkness), his Honour Associate Justice Hallen considered the phrase ‘living together’ for the purposes of that case. In this case his Honour held that ‘living together’ had the following elements that required evaluation:

(a) Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the person said to be living together had a common residential address; where not absent temporarily for holiday, employment or for other reasons; and

                                                                                                               13  section  3(1)  of  the  Property  (Relationship)  Act  1984.  14  Harkness v Harkness [2011] NSWSC 1421 at [45].  

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where they usually kept their clothing, domestic and personal effects, regardless of the number of days or nights spent, perhaps, at another place;

(b) Physical proximity in the same residence, in the sense of simultaneous physical presence;

(c) Some personal association with each other;

(d) The sharing of facilities of day-to-day living on a regular and recurrent basis,

often described as sharing a household, including but not limited to, the performance of domestic tasks;

(e) Deciding household questions together and, whilst a social and economic

partnership of the parties is not required, there should be a sharing of the burden of maintaining a household;

(f) Regarding the place, or places, in which the two adults live as “their home”;

(g) There being no present intention of definite or early removal, a continuity of

association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently15.

This test of whether the notion or concept of living together is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship. In Harkness the plaintiff was the sister of the deceased who had died leaving a will distributing her estate between the plaintiff, the defendant (the deceased’s brother) and her nieces. The plaintiff commenced a claim pursuant to section 57(1)(f) however this claim of eligibility was dispute by the defendant brother. In this case his Honour held that while there was a close relationship between the plaintiff and the deceased prior to her death, the plaintiff did not in fact live with the deceased, nor was she in anyway maintained by the deceased, either wholly or partly before her death. In Harkness his Honour held that it was undisputed that the plaintiff had provided domestic and personal care to the deceased prior to her death and that this no doubt contributed to the deceased’s welfare. However, his Honour was also satisfied in this case that all the other beneficiaries to the estate also assisted the deceased to the best or his or her ability. In Harkness the defendant brother accepted that there was a relationship between two adult persons, who were related to each other, one or each of whom provided the other with domestic support and personal care. The real dispute in this case related to whether the plaintiff and the deceased were “living together” at the time that the domestic support and personal care was provided. It was held in Harkness that the plaintiff and the deceased were not “living together”. One of the key factors that his Honour took into consideration in this case was that the plaintiff did not have her own key to the deceased’s house. His Honour held that having a key to a home

                                                                                                               15  Harkness v Harkness [2011] NSWSC 1421 at [42].  

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was a relevant aspect to “living together”. As a result his Honour held that he was not satisfied that the plaintiff was an eligible person pursuant to section 57(1)(f) and hence the plaintiff’s claim failed. Factors Warranting an Application The key provision in the Succession Act is section 59. Section 59(1) which states:

‘The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or

(f) of the definition of “eligible person” in section 57 – having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made had not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.’

Once the court is satisfied of an applicant’s eligibility within the meaning of section 57(1), it must then, with respect to persons falling within section 57(1)(d),(e)& (f), consider and be satisfied, having regard to the circumstances of the case (whether past or present), that there are factors which warrant (“factors warranting”) the making of the application16. Neither the current nor under the former Act (s.9(1)) does the legislation specify the “factors which warrant the making of the application”. In considering the meaning of what he described as “this poorly conceived and clumsily expressed subsection” in the former Act M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 68 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. More recent authorities have seemed to suggest that the traditional Re Fulop view of “factors warranting” has been in competition for some years with the Court of Appeal’s statements in Brown v Faggoter (unreported, NSWCA, 13 November 2011), which offered another test of “factors warranting”: that an application might be warranted if the applicant has reasonable prospects of success. This conflict was commented on in the Court of Appeal case Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said at [64]: “On s.9,[of the former Act] the decision of M McLelland J in Re Fulop (dec’d) (1987) 8 NSWLR 679 has stood the test of time.” It ought however be noted that while the trend of authorities to date does not appear to favour the view suggested in Brown v Faggoter, the Court of Appeal has not said that the view expressed in Brown v Faggoter is wrong.                                                                                                                16  Section  59(1)(b) of the Succession Act 2006 (NSW).  

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Looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, it would seem that this aspect of “prospects of success”, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant’s prospects of success cannot be taken into account as a factor warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from the case Churton v Christian17, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant. If the above considerations are satisfied, the court must then determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or both18. The court may take into consideration, then, the matters referred to in section 60(2) of the Succession Act. To this extent, the court at this stage of the consideration is required to carry out a two-stage process. Other than by the 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, section 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 or advancement in life. Hence the court is required to make an evaluation of the provisions actually made in the deceased’s will, or on intestacy, or both, on one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. Generally speaking, the court will take into consideration factors such as:

i) the claimant’s need for accommodation;

ii) medical expenses;

iii) payment of debts; and

iv) any future contingencies. It ought be noted that the term ‘provision’ is not defined by the Succession Act. However, it was stated in the Court of Appeal case of Diver v Neal [2009] NSWCA 54 at [34], the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”. Neither the word “maintenance” nor the phrase “advancement in life”, defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228 – 229, said, of the words “maintenance”, “support” and “advancement”: ‘ “Maintenance” may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. “Support” similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote “advancement” would ordinarily be provision beyond the                                                                                                                17  (1988) 13 NSWLR 241.  18  Section  59(1)(c) of the Succession Act 2006 (NSW).  

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necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstance, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.” In the High Court case of Blore v Lang (1960) 104 CLR 124, Dixon CJ at paragraph 128 said: “The words “advancement in life” have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in members of the family” These words were then cited In the Estate of Puckeridge, Deceased (1978) 20 SASR 72, at 77, per King CJ. The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, whereas “proper” prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No. 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA. Each word was considered by Lord Romer in the Privy Council case of Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: “The use of the word ‘proper’ in this connection is of considerable importance. It connotes something different from the word ‘adequate’. A small sum may be sufficient for the ‘adequate’ maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his ‘proper’ maintenance. So, too, a sum may be quite insufficient for the ‘adequate’ maintenance of a child and yet may be sufficient for his maintenance on a scale that is ‘proper’ in all the circumstances.” This case was later cited by Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, who went on to say, of the word ‘proper’, that: “It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify to testator’s testamentary dispositions to the necessary extent.” In the later High Court case of Vigolo v Bostin,[2005] HCA 11 at 228, Callinan and Heydon JJ said: “The use of the word “proper”…implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here…The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties

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and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.” In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: ‘“Proper maintenance” is not limited to the bare sustenance of a claimant [Gorton v Parkes [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.” The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage19. Until recently, it had been unanimously thought that there were two stages of the determination. The first stage process being provided for by s.59(1)(c). This was described in the High Court case of Singer v Berghouse (No.2) (1994) 181 CLR 201 at 208 -209 as the “jurisdictional question”. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. Whether the applicant has a ‘need’ is a relevant factor at the first stage of the enquiry. It is an element in determining whether ‘adequate provision’ has been made for the ‘proper’ maintenance, education or advancement in the life of the applicant in all of the circumstances20. In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in the life of the person has not been made), then, the court will determine whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. The second stage of the process arises under section 59(2) and s.60(1)(b). In Singer v Berghouse Mason CJ, Deane and McHugh JJ, at 211 affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour. This discretion ought be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testatrix21. In exercising it’s discretion the court may take into account a broad range of factors including:

i) the nature of the relationship; ii) the nature and extent of the deceased’s obligation to the claimant; iii) the nature and extent of the estate;

                                                                                                               19  Bartlett v Commber [2008] NSWCA 100 at 50. 20  Collins  v  McGain  [2003]  NSWCA  190  at  [42]  (Tobias  JA,  with  whom  Beazley  and  Hodgson  JJA  agreed)  21  Hughes  v  National  Trustees,  executors  and  Agency  Co  of  Australasia  Ltd  [1979]  HCA  2;  (1979)  143  CLR  134  at  146  

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iv) the claimant and their partner’s financial resources and needs and that of other persons;

v) the claimant’s age; vi) if the claimant has any disability; vii) the claimant’s contribution to the deceased’s assets or to the deceased’s welfare; viii) provision made for the claimant during the deceased’s life; ix) whether the deceased was maintaining the claimant; x) evidence of the deceased’s testamentary intention; xi) whether any other person is liable to support the claimant; xii) the claimant’s conduct to the deceased before and after the death; and xiii) any other matter the court considers relevant22.

It ought be noted that there is no hierarchy as between these various factors. Weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a 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. Further, 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, whilst others do not. 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. This does not mean, however, that some of the matters referred to in s.60(2) will be irrelevant to the jurisdictional question to be determined at the first stage. In Singer v Berghouse (No.2) (1994) 181 CLR 201 at 209 -210, the High Court of Australia said of the test under the previous legislation: “The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc were explained in Bosch v Perpetual Trustee Co. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder,

                                                                                                               22  Section  60(2)  of  the  Succession  Act  2006  (NSW).    

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where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditor.” This has been supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, who wrote (at [122]):

“We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as her, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claim, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

Whether the two-step test operated with the same full vigour in the current legislation has recently been discussed in the Court of Appeal case of Andrew v Andrew [2012] NSWCA 308. In Andrew v Andrew Basten JA, said of the two stage process referred to: “29 The combination of changes require that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was “inadequate”, followed by discretionary exercise of determining what would be adequate and what should in fact be done. … 41. As noted above, the language of the Succession Act is not consistent with the two-stage inquiry, which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64, the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions.” At paragraph [26] Basten JA put the differences this way: “As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court “shall not make an order…unless it is satisfied that” the provision made by the testator is “inadequate”: s9(2). The Succession Act provides that the Court “may…make a family provision order…if the Court is satisfied that” the testator has not made “adequate provision” for the applicant: s59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is “not adequate”, for the purpose of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was “inadequate”. There may well be no bight line boundary between adequacy and inadequacy.”

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Further in Andrew v Andrew, Allsop P, at [6], said: “The expression of the task in s59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluation character Whether the process engaged in by the Court in s59 can still be described as “two-staged” in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93].” Barrett JA however disagreed with Basten JA, in Andrew v Andrew, saying at [65]: “ This is the second occasion on which this Court has been called upon to deal with a claim under s.59 of the Succession Act. In the earlier case, Keep Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s.7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detailed in the course of argument in the present case. For reason I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. … [79] First, it is necessary, having regard to s59(1)(c), for the court to be satisfied that, at the time when it is considering the application, “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person.” Whereas the former s9(2) provided that an order was not to be made unless the court was “satisfied” in the specified way, the present legislation permits the court to make an order if “satisfied” in the specified way and, by necessary implication, preclude the making of an order if the court is not so “satisfied”. [80] Second (and if the court is “satisfied” in the specified way), the “family provision order” that the court is empowered to make is, under s59(2), “such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”; and the court may, pursuant to s60(1)(b), have regard to the matters specified in s60(2) in deciding whether to make an order and the nature of the order. [81]Under s59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:

(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased’s will or the intestacy laws;

(b) to form an opinion of the adequacy of that provision;

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and

(d) in making that evaluation judgment, to take into account, as discretionary factors, the matters

in s60(2). …

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[88]…leaving aside its relevance to the “eligible person” inquiry, the s60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. [89] It can be said at once that the s60(1)(b) directive corresponds with that in the former s9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s60(1)(b), such weight as they deserve in their own right as indicators of the “adequacy” question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act.” … [94]As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decision of the High Court in Singer v Berghouse and Vigolo v Bostin.” Despite the decision of Basten JA in Andrew v Andrew it still remains uncertain, and open for argument, as to whether the two-stage approach set forth in Singer v Berghouse, ought be applied when determining cases under the Succession Act Once the court has determined to make certain order with respect to the provisions of a deceased’s will it is required to make such orders in accordance with section 65(1) of the Succession Act. Section 65(1) of the Act requires any family provision order made b the court to specify the following:

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

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

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

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

Court Approved Releases It ought be noted that it is possible to attempt to “contract out” of a potential family provision claim by executing a release of rights. Such releases however, must be approved by the court and cannot have been revoked by the court prior to the deceased person’s death although approval of a release by the court may be granted either before or after the deceased’s death. Prior to approving a release the court is to take into account certain factors set forth in section 95 of the Succession Act, including:

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i) whether the release was to the releasing person’s advantage financially or

otherwise; ii) whether it was prudent for the releasing person to make the release;

iii) whether the provisions of the release were fair and reasonable at the time;

and

iv) whether the releasing party has taken independent advice and given due consideration to the advice.

If the court is to find that the release was to the releasing person’s advantage then that person will be prevented from bringing a Family Provision claim with respect to the deceased estate. In other words, the person who is a party to the release has effectively been “paid out”. Generally, if such releases are executed before the deceased’s death they will generally form part of a pre-nuptial agreement or family law property settlement. If such a release is executed after the deceased’s death it is often executed as part of setting a family provision claim. A family provision release can be incorporated into a binding financial agreement under the Family Law Act23. However, it ought be noted that in order for the family provision release clause to be effective it requires approval from the court. This type of situation arose in Singer v Berghouse where the deceased was 65 years of age when he met his widow whom he married the following year. In Singer v Berghouse the deceased died less than a year after marrying his widow and although his widowed had signed a release prior to marriage, the High Court held that the release did not preclude the widow’s claim and that the relevance of the release was merely to show that the parties thought its terms fair when they signed it and that the widow could not say that she had expectations of a more affluent life than she had led before the marriage. Similarly in the case of Hertzberg v Hertzberg [2003] NSWCA 311 the parties executed a deed that had not been approved by the court. The will recited that the deceased had not made provision for his widow because he had made generous provision for her during the marriage and had executed a deed pursuant to which he paid her $1 million and agreed to pay her future expenses. However, the NSW Supreme Court held that the widow was still entitled to make a claim for the family home despite the existence of the release. Commencing A Claim On 12 February 2013 the Supreme Court of NSW issued a new Practice Note (PN) with respect to matters in the Family Provision Act List. This Practice Note replaces the old Practice Note that was issued on 1 June 2009. Among other things, the new PN states that all applications in the list are to be managed by the Family Provisions List Judge each Friday. Item 4 of the PN defines the term ‘Administrator’ to include an executor and, where appropriate, the person appointed to represent the estate of the deceased for the purpose of the hearing.

                                                                                                               23    Section  90UB  Family  Law  Act  1976  (Cth).  

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Proceeding in this list are commenced by way of Summons, the requirements of which are set forth in the PN. A plaintiff commencing a claim must file and serve with the Summons the following documents:

i) a copy of the affidavit of the plaintiff;

ii) a notice of eligible persons which is to be attached either to the Summons or the plaintiff’s affidavit filed with the Summons;

iii) a copy of an affidavit setting out an estimate of the plaintiff’s costs and

disbursements, calculated on the ordinary basis, up to, and including, the completion of a mediation.

Item 9 of the PN states that the Court may make directions at the first direction hearing, in relation to service by the administrator of the following documents:

i) An administrator’s affidavit which is to include: (a) a copy of the deceased’s will and the probate or letters of administration;

(b) a description of the nature and value of the assets and liabilities of the

deceased at the date of death;

(c) what is, or is likely to be the nature and estimate of the value of:

(i) The assets and liabilities of the deceased at the date of swearing the affidavit;

(ii) Any property of the deceased that has been distributed at any time

after the death of the deceased and the date of distribution of that property;

(iii) The gross distributable estate (omitting the costs of the

proceedings).

(d) A description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any prescribed transaction or relevant property transaction;

(e) The name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of any prescribed transaction or relevant property transaction;

(f) Any testamentary and other expenses or other liabilities of the estate that

have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings;

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(g) Whether any commission is to be sought by the administrator and if so, an estimate of the amount proposed to be sought;

(h) The names and addressed of every person who, in the administrator’s

opinion is or who may be: i) an eligible person;

ii) an eligible person under a legal incapacity;

iii) a person beneficially entitled to the distributable estate; and

iv) a person holding property as trustee or otherwise.

Item 9 of the PN continues by setting out other affidavit requirements that the Court may make directions in respect of. Item 24 of the PN currently provides that “[orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000]”. One very unique feature of this List is the mandatory pre-trial mediation, which is imposed on parties unless the Court makes orders otherwise. The mandatory pre-trial mediation is an initiative of the Supreme Court of NSW which began in 2008 to encourage parties involved in contested will disputes to settle such proceedings prior to final hearing in order to avoid the depletion of an estate as a result of ongoing legal proceedings. In 2012 the Supreme Court of NSW reported that 50% of all matters commenced in the Family Provision List were resolved on the day of mediation and that a further 10% settled shortly after24. Meaning that in 2012 only 40% of all matters commenced in the Family Provisions Act List actually made it to hearing.

                                                                                                               24  National  Mediation  Conference  2012:  Attorney  General’s  Opening  Address  Tuesday  11  September  2012.