BOSCOLO -v- AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO [2023] WASC 391 (10 October 2023)

1. The effect of ss 6 and 7 of the Act is that a spouse or a surviving child of Mr Boscolo is entitled to make a claim that the operation of the law on intestacy is such that the estate failed to make adequate provision for their proper maintenance, support, education or advancement in life. It follows that Ms Elgo's claim is that her entitlement of approximately $452,000 failed to make adequate provision for her proper maintenance, support, education or advancement in life. It also follows that the claims advanced by Mariella, Caroline and David were that their entitlements of approximately $111,000 each, failed to make adequate provision for each of their proper maintenance, support, education or advancement in life.

1. The evidence filed by the parties for the purposes of the substantive hearing of the applications was as follows:

(a) Affidavit of Virginia Elgo sworn 23 April 2021 (Exhibit A);

(b) Affidavit of Virginia Elgo sworn 26 July 2022 (Exhibit B);

(c) Supplementary affidavit of Virginia Elgo sworn 13 December 2022 (Exhibit C);

(d) Supplementary affidavit of Virginia Elgo sworn 3 March 2023 (Exhibit D);

(e) Affidavit of Caroline Boscolo sworn 31 March 2022 (Exhibit E);

(f) Second affidavit of Caroline Boscolo affirmed 24 June 2022 (Exhibit F);

(g) Third affidavit of Caroline Boscolo sworn 11 August 2022 (Exhibit G);

(h) Fourth affidavit of Caroline Boscolo affirmed 1 March 2023 (Exhibit H);

(i) Fifth affidavit of Caroline Boscolo affirmed 6 April 2023 (Exhibit I);

(j) Sixth affidavit of Caroline Boscolo affirmed 17 April 2023 (Exhibit J);

(k) Affidavit of Julietta Boscolo sworn 26 April 2022;

(l) Affidavit of Julietta Boscolo sworn 1 March 2023;

(m) Affidavit of Julietta Boscolo sworn 10 April 2023 (Exhibit K);

(n) Affidavit of Karina McDougall sworn 17 June 2022;

(o) Affidavit of Karina McDougall sworn 13 March 2023;

(p) Affidavit of Adrian Boscolo sworn 28 April 2022;

(q) Affidavit of Adrian Boscolo sworn 17 April 2023 (Exhibit L);

(r) Affidavit of David Boscolo sworn 30 May 2022 (Exhibit M);

(s) Supplementary affidavit of David Boscolo sworn 10 August 2022 (Exhibit N);

(t) Further supplementary affidavit of David Boscolo sworn 2 March 2023 (Exhibit O); and

(u) Affidavit of Nicole Woodward (on behalf of the first defendant) affirmed 22 March 2023.

1. In addition to their affidavit evidence, the claimants, Ms Elgo, Caroline, and David gave oral evidence at trial and were cross examined.
2. In my assessment, each of the witnesses sought to give honest and credible evidence to the best of their ability from her or his own perspective. No material credibility issues arose at the hearing.

1. The affidavits set out the family history from the perspective of each of the deponents. Whilst those perspectives differed in some respects, there was no real challenge to the material and relevant background facts which emerged clearly and in large part, despairingly, from the account given by each of the deponents. The evidence established the following.
2. Mario Boscolo's first marriage was to Helene Danilevich from 1956 until they separated in about 1971 and divorced in January 1975.[9] Two children were born from that relationship, namely:

(a) Michael, born 13 June 1957; and

(b) Caroline, born 8 October 1958.

1. Michael died in 2009 without a spouse or children.
2. Following his divorce from Ms Danilevich in January 1975, Mr Boscolo married Sylvia Stramsek (who then became Sylvia Boscolo), on 6 February 1976. By the time they were married, Mariella had been born on 28 November 1973 and Julietta was born on 4 March 1976.
3. Mr Boscolo and Sylvia were divorced on 28 August 1994.[10] Together they had 6 children:

(a) Mariella, born 28 November 1973;

(b) Julietta, born 4 March 1976;

(c) Karina, born 4 September 1977;

(d) Mario, born 25 January 1980;

(e) Adrian, born 24 March 1984; and

(f) David, born 11 October 1991.[11]

1. It is unnecessary to descend into the detail of the family life that was the subject of much affidavit evidence. It is sufficient to observe that the unchallenged evidence established a deeply dysfunctional environment endured by the children of Mr Boscolo. Largely, it appears due to the conduct of Mr Boscolo, it was an atmosphere scarred by physical, verbal and emotional abuse, social and emotional isolation, deprivation and poverty. On the evidence before the court, Mr Boscolo emerged as a narcissistic man quite capable of gross insensitivity and on occasion, intolerable nastiness or even wickedness. The impact of the consequential familial dysfunction was, and remains, palpable. It is to the great credit of each of Mr Boscolo's surviving children who participated in this proceeding that notwithstanding their experiences, they each exuded a resilience and civility that belies the harrowing distresses of their formative years. An overview of those circumstances is sufficient.
2. Mario Boscolo and Sylvia Boscolo lived in Coogee, Western Australia with their children. Sylvia Boscolo and the children moved to New South Wales in the early 1980s. Mr Boscolo did not remain with the rest of the family in New South Wales, and returned to Perth, it appears, not long after the move to New South Wales. Mr Boscolo made intermittent visits back to the family in New South Wales where he would stay with them for periods of time. Those visits were not happy reunions; they were marred by emotional and other forms of distress and familial discord. When Mr Boscolo was in Western Australia, his large family carried on with their lives in Sydney in a challenging environment of financial hardship.
3. Mario Boscolo and Sylvia Boscolo were eventually divorced in or about 1994 and subsequently engaged in acrimonious Family Court proceedings which were resolved in late 1995.[12] In 1995, the Family Court granted sole custody of the youngest child, David, to Mr Boscolo with no access granted to Sylvia Boscolo or any of the other children. At that time, David was only 4 years old. There was no evidence as to the reason the court made those orders, although in his affidavit, David referred to an accident having occurred in his mother's care.[13] At the age of 4, David went to Perth with Mr Boscolo and had no contact with the rest of the family for some years.[14] It is not clear whether that was due to the effect of the orders of the Family Court or whether, as David recalled it in his affidavit, Mr Boscolo prevented David from communicating with his mother and siblings.[15] David later commenced phone contact with the remainder of his family in about 2002.[16]
4. Mr Boscolo's third marriage was to Rosilina Rodrigo on 11 January 1996.[17] According to David's evidence, Mr Boscolo met Ms Rodrigo on a two-week trip to the Philippines. David's evidence was that Rosilina Rodrigo left the marriage in 2001. David's evidence was that approximately one year after Ms Rodrigo left, Mr Boscolo again went to the Philippines and some months later Perlita Orongan arrived from the Philippines and began living with Mr Boscolo and David. Mr Boscolo and Perlita Orongan were married on 8 June 2004. That marriage ended in divorce in 2008.[18]
5. Mr Boscolo married Ms Elgo in 2013 in circumstances I will describe below.
6. Having provided that overview of the family background, I turn to consider the particular circumstances relating to each of the claimants.

1. Mariella did not adduce any evidence at the trial. It is necessary to summarise the circumstances that led to that outcome.
2. Mariella was originally represented in the proceedings by solicitors. However, problems arose in respect of that representation. The first firm of solicitors was replaced. The second firm applied to come off the record. On 18 August 2022, the Principal Registrar made orders allowing Mariella's then-solicitors to come off the record, observing that 'the relationship ha[d] broken down to such an extent that it would be in [Mariella's] interest to [...] seek alternate legal representation'.[19] At that hearing of 18 August 2022, the Principal Registrar allowed Mariella to be represented by her mother, Sylvia Boscolo. The Principal Registrar emphasised to Sylvia Boscolo on that occasion that there were deadlines to be met and that if Mariella was going to be represented by new lawyers, that needed to be done as soon as possible. The Principal Registrar foreshadowed that 'there's not going to be much tolerance to never ending extensions'.[20]
3. On 11 October 2022, the court asked the parties to provide availability for a five-day trial. A further request was made of the plaintiff on 20 October 2022. On that day, Sylvia Boscolo sent a letter to the court from a medical practitioner, Dr Loukakis. Dr Loukakis advised that Mariella was 'unwell' and requested that the trial be deferred to be heard 'from March 2023'. To accommodate Mariella's request, the trial was listed to commence on 18 April 2023.
4. The matter was listed for directions before me on 2 February 2023. In advance of that directions hearing, Sylvia Boscolo sent to the court a further letter from Dr Loukakis stating that due to her complex medical history, Mariella was unable to represent herself and was dependent on her mother Sylvia Boscolo as her primary carer. Sylvia's communications were not copied to the other parties.
5. At that directions hearing, I allowed Sylvia Boscolo to represent Mariella. I reiterated at the hearing that the trial was to proceed on 18 April and that if Mariella was to be represented, it would be necessary for her to arrange that 'very very soon'.[21] Sylvia Boscolo told the court she would do everything she could to arrange Mariella's legal representation. In response to my request, Sylvia also agreed to provide the court with an update one week later.
6. At the directions hearing of 2 February 2023, I made orders to the effect that the parties were required to identify which affidavits they sought to rely upon at the trial and gave leave for the parties to file updated affidavits by 3 March 2023. I also made orders to the effect that the affidavit evidence at trial would be constituted only by those affidavits (subject to leave in respect of any further evidence).
7. The matter was listed for further directions on 8 March 2023. The court received no communication at all from Mariella or Sylvia Boscolo until 7 March 2023. That communication was a telephone call and subsequent email from Sylvia Boscolo. The substance of those communications was that legal representation for Mariella had not been arranged. A further letter from Dr Loukakis was provided, which stated that Mariella had not been able to comply with the court's orders 'because of chronic ill health'. This correspondence was once again not copied to the other parties.
8. At the directions hearing of 8 March 2023, I again allowed Sylvia Boscolo to represent Mariella. I emphasised that there were less than five weeks until the trial. Sylvia Boscolo advised that she was still seeking to obtain representation for Mariella. I made it clear that the trial would go ahead on 18 April and that it could not be held up indefinitely. I also made it clear that because Mariella had not complied with the orders, she had no affidavit evidence to be relied upon at the trial. After a further exchange with Sylvia Boscolo, I extended the time for Mariella to identify the affidavits she wished to rely upon at trial to 15 March 2023. I gave Mariella until 22 March 2023 to provide any updating affidavit evidence.
9. The matter was next listed for directions on 22 March 2023. At that point Mariella had still not complied with the orders of 9 March 2023. At that directions hearing I again allowed Sylvia Boscolo to represent Mariella.
10. Sylvia Boscolo advised at the hearing on 22 March 2023 that she was still seeking to procure legal representation for Mariella and 'it's looking promising'. Once again, I made it clear that Mariella did not have any evidence to be relied upon at trial. The time for compliance with the orders had passed, and she would therefore need leave of the court to adduce any evidence at trial. This would require an urgent application to do so from any lawyers engaged to represent Mariella. I also made it clear on that occasion that any application that relied upon Mariella's health would need to be supported by sworn evidence and that a medical certificate would be insufficient.
11. The court did not hear from Mariella or Sylvia Boscolo until Friday, 14 April 2023. On Friday afternoon the court received communications from Sylvia Boscolo and Dr Loukakis. Dr Loukakis advised, in a letter sent by email from Sylvia Boscolo, that Sylvia had not been able to procure legal representation for Mariella and that Mariella 'continues to suffer from severe mental illness' and 'is unable to appropriately legally represent herself'. This correspondence was not copied to the other parties.
12. There was no other communication, less still any application, by or on behalf of Mariella prior to the morning of the trial on 18 April 2023.
13. On the first morning of the trial on 18 April 2023, Sylvia sought to make an application on behalf of Mariella for the trial to be adjourned. I granted Sylvia Boscolo leave to represent Mariella for that purpose. The application for an adjournment was opposed by the other parties who had received no notice of the proposed application and had prepared for trial. Karina and Adrian had taken leave from work and travelled from Sydney for the trial. The application was not accompanied by any sworn evidence in relation to Mariella's medical conditions, circumstances or otherwise. Sylvia Boscolo gave the same indications that she had been giving since February; that she considered that she would be able to procure legal representation, and that Mariella would be in a position to prosecute her claim, if she was given further time.
14. I delivered ex tempore reasons refusing the adjournment. In short: in light of the absence of any sworn evidence to support the application, the absence of notice to the other parties, the prejudice to the other parties, and the court's clear indications to Sylvia Boscolo on behalf of Mariella over some months of the importance of the trial dates, I refused the application for an adjournment. The prejudice to the other parties went beyond the fact that they had prepared for the trial to proceed and some of them had travelled to Perth and taken leave from work. The prejudice also extended to the lack of resolution of the dispute. I was not satisfied that any sensible or realistic timeframe could be identified by which the court could be confident that an adjournment would serve any purpose.
15. After refusing the application for an adjournment, I asked Sylvia Boscolo if she wished to make an application to represent Mariella at the trial. Sylvia declined to make that application. I then granted Sylvia permission to listen to the proceeding by telephone. After some further exchange, Sylvia Boscolo advised that she did wish to make an application to represent Mariella in the proceeding. Sylvia then said she wished to make an application 'in order to listen in and maybe participate'. I adjourned the court for the morning break, advising that the court would deal with that application after the morning break. The court resumed after the morning break at around 12:00 pm. After the morning break, Sylvia Boscolo did not maintain telephone contact with the court. The court's efforts to resurrect the contact were not successful. Sylvia Boscolo resumed telephone contact with the court at 12:30 pm. I advised Sylvia that I was prepared for her to stay on the line and that if she wished to say something she should indicate that over the phone.
16. On the morning of the second day of the trial, 19 April 2023, the court received further communications from Sylvia Boscolo and a letter from a Dr Pinto. Once again, this correspondence was not copied to the other parties. The communications included a long letter from Sylvia Boscolo together with a 125-page document titled 'Subpoena patient export'. The letter from Dr Pinto advised that Mariella was not 'medically suitable to represent herself in court due to ongoing severe mental health issues'. The ongoing correspondence from Sylvia Boscolo was effectively a further application for adjournment of the trial. There was no substantive material difference from the circumstances that prevailed on the morning of 18 April 2023. I again delivered ex tempore reasons dismissing the second application for an adjournment of the trial.
17. Sylvia Boscolo made a third application to adjourn the trial on 21 April 2023. Again, there was no substantive or material change in circumstances, and I refused the third application for an adjournment.
18. I observe also that in the course of submissions made by Sylvia Boscolo on the first morning of the trial it emerged that she had a law degree, and has some experience in litigation. The publicly available record confirms that Sylvia Boscolo was admitted as a solicitor in New South Wales in 1989.
19. The matters I have set out above provide an overview and summary of the reason why this trial proceeded in Mariella's absence and without her being represented. As hardly needs to be said, that is an unfortunate outcome. In all the circumstances I formed the view that the interests of justice required the trial to proceed.
20. In those circumstances, Mariella, regrettably, did not adduce any evidence for the purposes of the trial. The evidence adduced at the trial was sufficient however to establish that Mariella endured the same dysfunctional environment that was the subject of evidence by others.[22] There is no doubt on the evidence that Mariella suffered the emotional trauma of the oppressive and deficient living conditions of the family's circumstances. Moreover, there was evidence from which I infer that Mariella's own psychological condition was more acute than the other siblings. For example, the evidence was that Mariella had her own bedroom growing up, whereas the other children shared a bedroom. This was due to Mariella's behavioural and emotional condition.[23] Her inability to retain two sets of legal representation is also suggestive of Mariella's ongoing challenging circumstances.

1. Mariella's claim is for further and better provision in the amount of 50% of Mr Boscolo's estate. By reference to the figures set out at [14], that amounts to approximately $615,200 of the funds held by the estate at the trial.
2. I find that although Mariella did not produce any evidence at trial, there was sufficient evidence to establish that she was impacted at least as severely as, if not more acutely than, her siblings by the home environment. It was also uncontroversial that unlike her siblings, Mariella does not, and appears unable to, live independently. She remains living with her mother, Sylvia Boscolo.
3. It is not possible on the admissible evidence presented to the court at trial to make any further assessment of Mariella's circumstances.

1. As noted, Mario Boscolo's fifth and final marriage was to Virginia Elgo. Ms Elgo was born in the Philippines in 1954. Ms Elgo's evidence was that her sister and brother-in-law were working in Perth and met Mr Boscolo who asked if they knew someone who would be willing to be his wife and carer, as he had previously been married to Filipina women and he wanted another wife to care for him rather than going into aged care. Ms Elgo and Mr Boscolo commenced a long distance relationship via telephone and email in 2011.[24] Ms Elgo's first in-person meeting with Mr Boscolo occurred in November 2012 when Ms Elgo visited Australia.[25] The expiry of her visa required Ms Elgo to return to the Philippines after three months.[26] Ms Elgo returned to Australia on 28 June 2013, and Ms Elgo married Mr Boscolo on 8 August 2013 when Ms Elgo was 59 and Mr Boscolo was 84.[27] Ms Elgo was then able to obtain a Bridging Visa and Temporary Residence Visa.[28]
2. Ms Elgo provided Mr Boscolo with companionship and care after their marriage in August 2013. Ms Elgo's unchallenged evidence was, however, that from late 2014, her emotional condition began to deteriorate as a result of Mr Boscolo's conduct and treatment. Ms Elgo was subjected to considerable humiliation. It is not necessary to recount the sordid detail of Ms Elgo's treatment at the hands of Mr Boscolo. It is sufficient to observe that Ms Elgo too was a victim of Mr Boscolo's narcissism and nastiness. Her difficulties were compounded because she felt beholden to Mr Boscolo who regularly threatened to take action that would lead to the removal of her immigration status. Notwithstanding her treatment at the hands of Mr Boscolo, it is to Ms Elgo's credit that she gave her evidence in a calm and dignified manner.
3. In August 2015, while the marriage was still on foot, Ms Elgo applied for a permanent residence visa.[29] In February 2016 and while the application was still pending, Mr Boscolo made good on his threat and advised the Department of Immigration that the relationship was not on foot and indeed had never been genuine.[30] On 12 April 2016, a delegate of the Department of Immigration refused Ms Elgo's application for permanent residence on the basis that Ms Elgo had provided false and misleading information about her relationship when she applied in August 2015. That conclusion was most likely reached on the basis of the information provided by Mr Boscolo.
4. On 15 April 2016, Ms Elgo left Mr Boscolo,[31] having found the relationship no longer tolerable. In her affidavit, she said this was due to domestic violence and abuse that she suffered from Mr Boscolo.[32] Ms Elgo went to live with her sister and her family.
5. Ms Elgo appealed the decision of the Department of Immigration to the Administrative Appeals Tribunal (AAT). By its decision dated 23 May 2017, the AAT upheld the appeal and remitted the application for permanent residence for reconsideration. The AAT accepted that, as at the date of Ms Elgo's application in April 2015, the relationship was still on foot and she had not left the marriage until April 2016.
6. Although there was some confusion regarding these matters at trial, on the evidence before the court I find that Ms Elgo was granted permanent residence in May 2018, and subsequently granted Australian citizenship on 21 October 2021.
7. Ms Elgo had employment as a cleaner on Rottnest Island, but that finished in May 2016, by which time she had left Mr Boscolo.
8. Ms Elgo's evidence was that she did not thereafter receive any financial assistance or contribution from Mr Boscolo, nor is there any evidence that she sought such assistance.
9. Ms Elgo and Mr Boscolo did not reconcile and were estranged at the date of death in February 2018. On 25 January 2018, the Family Court of Western Australia, on the application of Mr Boscolo, made orders for a divorce to take effect and thereby terminate the marriage on 26 February 2018.[33] As Mr Boscolo died on 11 February 2018, the order could not be completed. On 16 March 2018 the Magistrates Court declared that by reason of Mr Boscolo's death, the divorce order of 25 January 2018 was of no effect. Ms Elgo thus remained Mr Boscolo's lawful wife when he died.

1. On the available evidence, I make the following findings regarding Ms Elgo's circumstances as at the time of Mr Boscolo's death. Ms Elgo:

(a) was lawfully married to Mr Boscolo in August 2013, but had been estranged from Mr Boscolo since April 2016;

(b) was not financially supported or assisted by Mr Boscolo and had not been since April 2016;

(c) was living with her sister;

(d) was earning a modest income from cash jobs. The evidence as to the extent of Ms Elgo's earnings in that regard was quite unclear, however it appears to have been very modest;

(e) had completed a Certificate III in Aged Care, but had not obtained secure employment;

(f) did not have any substantial assets or savings in Australia. Ms Elgo did not produce any evidence of her superannuation entitlements that she must have accrued from prior employment, although it is likely this would have been modest;

(g) according to her affidavit evidence, at the time of Mr Boscolo's death, had nominal assets and no liabilities;[34] and

(h) was in reasonable health for her age and did not suffer any particularly debilitating medical conditions.

1. As at the date of Mr Boscolo's death, Ms Elgo's appeal against the rejection of her application for permanent residence had been successful. Although there was no direct evidence on the matter, I infer that as at February 2018 Ms Elgo had some considerable confidence as to the imminent success of her application for permanent residency. The significance of that is that permanent residency would in due course entitle Ms Elgo to social security benefits, and ultimately, Australian citizenship and the age pension.

1. As at the date of the hearing Ms Elgo was 69 years of age. Since December 2019, she has been in a living arrangement with a Mr Enright whom she assists with household chores in exchange for rent-free accommodation. In her affidavit evidence Ms Elgo stated that Mr Enright 'is only allowing me to stay at his residence on the same basis as before until this Court case is over'.[35] That rather vague evidence was not explored in cross examination. I am not in a position to make any findings about Ms Elgo's future arrangement with Mr Enright regarding her accommodation.
2. Ms Elgo secured paid employment with Spotless, a cleaning company, in January 2022, but this was short-lived. However, from mid-2022, Ms Elgo obtained employment as a casual cleaner with HT Cleaning Services,[36] and earns approximately $1,145 per fortnight, net after tax.[37] Ms Elgo's evidence was that she had received superannuation payments from her various employers, including her current employer, however no evidence of any superannuation account or its balance was provided to the court.[38]
3. As noted, Ms Elgo was granted permanent residence in May 2018 and Australian citizenship in 2021. There was some confusion in the evidence regarding Ms Elgo's entitlement to social security payments. The confusion was not resolved either by the evidence or by submissions on behalf of Ms Elgo. Notwithstanding the lack of clarity or precision about exactly when Ms Elgo will become entitled to various forms of assistance, it was clear that in due course Ms Elgo's status as an Australian citizen will enable her to receive any social security payments to which she is entitled, such as the age pension, in the same manner as any other Australian citizen.
4. Ms Elgo gave evidence that she suffers from osteoporosis. However, she does not take any medication for the condition,[39] and there was no evidence that it has any material or debilitating impact on her capacity.
5. At the time of the trial, Ms Elgo's evidence was that she had nominal assets, and $30,000 in liabilities.[40] Ms Elgo expanded on those liabilities when being cross examined on her bank statements. She explained many cash deposits under $1,000 as being loans from her sister.[41] She also gave evidence that she owes money to Mr Enright, as well as her former migration agent.[42] No documentary evidence of these debts was provided to the court.[43] The evidence in relation to the debts was vague and entirely unparticularised.
6. On the evidence available to me, I find that Ms Elgo's present circumstances are that she currently has the benefit of an arrangement with Mr Enright that entitles her to accommodation in exchange for the performance of household duties. There may be some uncertainty about the continuity of that arrangement, but there was insufficient evidence for me to make any finding about that. Ms Elgo has employment in which she earns $1,145 a fortnight and now that she is an Australian citizen, she will in due course become entitled to social security payments including the age pension. She has some superannuation, but she did not adduce any evidence of its quantum.

1. In her initial application, Ms Elgo sought provision from Mr Boscolo's estate totalling $877,368.44 (including her statutory entitlement of approximately $452,000).[44] In the month prior to the commencement of trial, Ms Elgo reduced her claim to total $670,000.45 (also including her statutory entitlement of approximately $452,000).[45] In cross examination Ms Elgo was unable to justify with precision the quantum of her claim, particularly the allowance claimed for 'past and future expenses and contingencies' amounting to $200,000, and the purchase price of homes in the Armadale area, which Ms Elgo estimated at approximately $350,000 to $400,000.[46]
2. In relation to her needs, Ms Elgo's evidence was that she anticipates her expenditure at approximately $2,048 per month.[47] Ms Elgo was also cross examined on her monthly expenditure - in particular, her regular bank transfers to family in the Philippines. She gave evidence that her family overseas were facing financial hardship following the pandemic, and so she sends as much money to them as possible.[48]

1. As outlined above, Caroline is Mr Boscolo's second child with his first wife, Helene. She is 64 years old.[49] I have already given a brief overview of Caroline's relationship with Mr Boscolo, including her traumatic childhood.
2. Caroline's unchallenged evidence cast Mr Boscolo as a violent, complaining, critical and unloving spouse and father. Caroline's perspective was largely shared by Mr Boscolo's other children of his subsequent marriage.
3. Caroline's evidence was that the episodes associated with Mr Boscolo's outbursts and attitudes had a deep and enduring impact on her wellbeing and mental health. After Mr Boscolo separated from his first wife, Caroline had no contact with him for some years. As an adult, Caroline established occasional and limited contact with her father from the late 1980s. This included occasional family gatherings with Caroline's children. Caroline described her relationship with her father in her adulthood as cordial. Caroline's relationship with Mr Boscolo deteriorated after Michael's death due to tensions that arose in relation to Michael's estate. While Caroline says that she maintained a cool but cordial relationship with her father, Caroline's understandable resentment and emotional scarring remained a dominant feature of their relationship.
4. Caroline's mother, Helene Danilevich, passed away in 2008.[50] Caroline received close to half of her mother's estate, which equated to approximately $136,573.[51] Caroline gave evidence that a significant portion of this money was put towards the purchase price of a property she still owns in Bertram.[52] It was established at trial that the total purchase price of the property was in the vicinity of $323,000.[53] Caroline obtained finance in the form of a principal and interest home loan for the remainder of the purchase price.[54]
5. As I have mentioned, in 2009 Caroline's brother and Mr Boscolo's oldest child, Michael, passed away. Following Michael's passing, a dispute arose regarding Michael's estate. This saw the already strained relationship between Caroline and her father deteriorate further. On the evidence given by Caroline, which I accept, this further strain was again the result of Mr Boscolo's preoccupation with his own self-interest. Caroline and Mr Boscolo had limited contact between the time of Michael's passing in 2009 and Mr Boscolo's death in February 2018.
6. Caroline suffers from a range of medical issues, including a hearing impairment which requires her to wear permanent hearing aids, a depressive disorder for which she is medicated, spinal degeneration, cervical spondylosis which manifests itself in cervicogenic headaches, extensive dental issues, osteoarthritis, and cataracts.[55]
7. It was not contentious that Caroline works full time at the Department of Communities and has been employed there in varying capacities for over five years.[56] She has been in her current role as a case support officer since April 2019. Due to the nature of her employment, namely that she has been on a number of fixed contracts with the Department, she is not yet entitled to long service leave.[57]
8. The evidence demonstrated that Caroline's health has in the past impacted her capacity for employment. Caroline's affidavit evidence was that from January 2022 she was declared unfit for full time work for medical reasons.[58] As a result, Caroline was only able to work three days per week.[59] Having exhausted her personal leave entitlements, Caroline was forced to take leave without pay to facilitate this arrangement.[60] Caroline returned to full time work in about August 2022.[61]
9. Caroline's fortnightly income in February 2018 was $1,742.91 net after tax.[62] She was, and is still to this day, supported by the Commonwealth government under a National Disability Insurance Plan. According to her individual care plan under the NDIS, she received total funded supports in the amount of $7,080 for the year 6 July 2017 to 6 July 2018.[63]
10. Caroline's affidavit evidence was that she had filed a worker's compensation claim.[64] Caroline's evidence was that that compensation claim had been dismissed.[65] There was some lack of clarity about that evidence but ultimately, that position was not substantially challenged and I accept that her worker's compensation claim was either dismissed, or very unlikely to succeed.
11. At the time of Mr Boscolo's death, Caroline used three bank accounts.[66] She used a Smart Access Account as an everyday account,[67] and a Netbank Account in which she would deposit her salary.[68] As at February 2018, those two accounts held a total of $3,493.73. Caroline also had a home loan account with Commonwealth Bank.[69] Caroline's mortgage over the Bertram property then amounted to $206,708.09.[70] She later refinanced her home loan with National Australia Bank.[71]
12. It was clear from the evidence that Caroline had modest assets at the date of her father's death, the most significant of which being the Bertram property where she lived with her daughter, who contributed $120 per fortnight in board to put toward household expenses. Caroline had $57,500 in superannuation across two providers - Australian Super and GESB.[72]
13. Caroline's liabilities consisted of the mortgage over the Bertram property, as well as a HECS debt of $9,736.75.[73] Caroline had been working toward a Diploma in Interior Design when her mother became sick in around 2008, and she withdrew from the course at that point.[74] She stated that since that time, she has had neither the time nor the resources to return to studying.[75]

1. Overall, I make the following findings regarding Caroline's position at the date of Mr Boscolo's death. Caroline:

(a) was working full time at the Department of Communities, a position she commenced in July 2017, with fortnightly earnings of $1,742.91 net after tax;

(b) suffered from a number of medical conditions, including but not limited to a hearing impairment, neck pain and chronic headaches caused by cervical spine degeneration, and a depressive disorder;

(c) was receiving NDIS funded supports in the amount of $7,080 for the year 2017 - 2018;

(d) had a fortnightly expenditure of approximately $1,664;

(e) had modest assets, the most significant of which being the Bertram property where she was living with her daughter, and her superannuation which amounted to $57,500;

(f) had cash savings equating to approximately $3,500;

(g) had a mortgage over the Bertram property of $206,708.09; and

(h) had additional liabilities in the form of a HECS debt totalling $9,736.75, and a credit card debt of approximately $2,000.

1. At trial, Caroline's fortnightly income was $2,111 net after tax,[76] and her fortnightly expenditure was $2,534.[77] Of that expenditure, $821 was attributed to the mortgage repayments on her home. She had assets in the amount of approximately $496,000, and approximately $199,000 in liabilities.[78] In March 2022, Caroline's home loan balance was $179,295.[79] In October 2022, Caroline drew down $27,000 on her home loan to pay for legal fees.[80] As of 18 February 2023, her home loan amounted to $197,608.78.[81]
2. Caroline's NDIS funded supports equate to $32,187.93 for the period 31 January 2022 to 29 January 2025.[82] This includes 'core supports' of $22,375.68, and total capacity building supports of $9,812.25.[83] Although there appeared to be no binding evidence in relation to the continuity of that funding, it was not suggested that Caroline could not expect to receive further funding in the future to meet her particular requirements.
3. Caroline continues to be employed by the Department of Communities,[84] and returned, as I mentioned, to full time work in August 2022. She remains ineligible at this stage for long service leave and has exhausted much of her leave entitlements due to health complications. She does not expect to become eligible for long service leave prior to her retirement. As at the date of the trial, Caroline had accrued $91,317 in superannuation.

1. Caroline's claim is for provision out of Mr Boscolo's estate totalling $340,000.85 (including her statutory entitlement of approximately $111,000).[85] This is, as I have stated, an increase from $111,000 that she would be ordinarily entitled to under the Administration Act.
2. Caroline's evidence was that she does not expect to continue in her current position with the Department of Communities past the age of 65 due to her medical conditions.[86] Her evidence was that, if she is unable to work until the age of 67 years, she will be forced to apply for a Jobseeker allowance,[87] but will in any event likely be unable to own her house outright prior to retirement. This is the case even if she applied the entirety of her superannuation to the mortgage over the Bertram property.[88]
3. Caroline will be eligible for the age pension once she reaches the age of 67. However, the current rate is insufficient to meet her fortnightly expenditure.[89]
4. Caroline's evidence was that, without further provision out of Mr Boscolo's estate, her standard of living will decrease significantly, and she will have insufficient funds to sustain her into the future.[90]

1. David is 31 years old, and the youngest child of Mr Boscolo. David has a history of mental health issues. He has been diagnosed with depression, suicidal ideations and hallucinations, and previously struggled with substance abuse.[91]
2. As I have mentioned, Mr Boscolo was granted sole custody of David when David was just 4 years old, and David was consequently isolated from the rest of his family. Once again, I will not descend into the detail of the abhorrent treatment that David was subjected to at the hands of his father. However, it is sufficient to say that David's childhood was, perhaps to an even greater extent than that of his siblings, marred by physical and psychological abuse, neglect, and coercive and controlling behaviour.[92]
3. As I have mentioned, David had minimal contact with his mother and siblings from the age of 4 until he eventually regained contact with Karina in 2002. As mentioned, David later visited his family in Sydney during the summer holidays of 2003/04 when he was around 13 years old. David's evidence was that Mr Boscolo allowed David to live in Sydney with his mother and siblings from 2004 to 2008. While living with his mother and sister Mariella in Sydney, David was exposed to, and at times subjected to, verbally aggressive behaviour and unsanitary living conditions. David had poor attendance at school while living in Sydney, and had little to no contact with Mr Boscolo.
4. In 2008, David returned to Perth on a holiday to visit Mr Boscolo and decided to move back to Perth permanently due to the living conditions in Sydney. David's affidavit evidence was that initially upon his return to Perth, he and Mr Boscolo enjoyed a 'great relationship',[93] however this declined following Michael's death in 2009.
5. In 2009, David moved out of Mr Boscolo's house in Coogee, and began living in another property owned by Mr Boscolo in Hamilton Hill, which was being leased by a friend of Mr Boscolo. David paid rent to Mr Boscolo while living in Hamilton Hill. Following the move, David maintained a relationship with his father, and saw him 'a few times [a] week'.[94]
6. As time progressed, David's evidence was that his relationship with his father drifted, but that they continued to meet around once a month.[95] David lived in Hamilton Hill until approximately the end of 2016, after which time he and Mr Boscolo had a 'falling out' over a rent dispute concerning the Hamilton Hill property.[96] David's evidence was that from that time, David had minimal contact with his father until his passing in February 2018.
7. After completing a bridging course in 2015, David commenced studying a Bachelor of Biomedical Science. He completed three units of that degree. While studying, David was assessed for and informed that he may have dyslexia and was accepted into a support program for students with learning difficulties. However, due to a combination of factors including his unsettled living environment and financial position, David discontinued his tertiary studies.[97]
8. David has lived with Mr Terry Haneveld since 2014. It is unnecessary to explore the precise nature of that relationship for the purpose of these proceedings. The relationship has some of the indicators of a de facto relationship, but perhaps not others. It is neither possible nor necessary to reach a conclusion about the status of the relationship. The more relevant consideration relates to the financial elements of the relationship. It was David's evidence that he and Terry maintain separate finances.[98] David and Terry equally contribute to rent and bills, however David's evidence was that if there is ever a shortfall, Terry contributes David's share.[99] However, David asserted that he owes the money that Terry has lent him.[100] This debt was not quantified in his evidence, and David stated that although there was an 'expectation', there was 'not really a demand' and 'no pressure' for repayment.[101] David appeared to regard the debt as a moral, rather than a legally enforceable, debt but he was emphatic that he regarded himself as duty-bound, and intended, to repay it.
9. In about February 2018, David had $6,365.77 in assets,[102] and $21,219.52 in liabilities.[103] That included a Synergy default in the amount of $4,462,[104] and a credit card debt amounting to $2,500.[105] There was no documentary evidence provided in respect of the credit card debt,[106] and David gave evidence at trial that the account had been closed.[107] He had, as at February 2018, just $1,065.64 in superannuation.
10. In his evidence, David stated that in February 2018 he was struggling with a methylamphetamine addiction, and that there were numerous cash transactions associated with his substance abuse.[108] This explained a number of cash entries in his bank statements, all of which were very modest. David gave candid evidence at trial that he would frequently use methylamphetamine on weekends and would spend between $100 and $200 a week to fund his addiction.[109] David gave evidence that he ceased using methylamphetamine in approximately February 2019.[110]

1. I make the following findings regarding David's position at the date of Mr Boscolo's death. David:

(a) was suffering from severe mental health issues, including (as I have mentioned) illicit drug addiction, depression, suicidal ideations and hallucinations which have at times prevented him from being able to work in order to support himself;

(b) was unemployed, and had until that time only engaged in casual work with limited job security;

(c) had been unable to adequately treat his mental health conditions due to his limited financial resources;

(d) had since 2014 been living in a form of domestic relationship with his partner, Mr Haneveld, who assisted with living costs and other household expenses, and provided companionship and emotional support;

(e) had minimal assets, the most significant of which being his two vehicles which collectively were worth $5,300;

(f) had liabilities totalling $21,219.52, the most significant of which being a HECS debt of $7,007.52, and monthly expenses of $2,280.90; and

(g) had a taxable income of $14,884 for the financial year 2017/18, and received Austudy payments of approximately $508 per fortnight.

1. David currently runs a small business and earns sporadic income doing gardening, reticulation and salvage work, having issued invoices to the value of $2,034 between 11 January 2023 and 16 February 2023.[111] David gave evidence at trial that he charges $45/hour for this labour,[112] and that he had only worked three hours the previous week.[113] At the date of trial David received $784.87 per fortnight through various government assistance programs,[114] and estimated his monthly expenses at $2,795.00.[115]
2. At trial, David had assets amounting to $4,015.58,[116] and $29,555.37 in liabilities.[117] Of the latter, $15,000 was attributed to a loan from Ms Diane Crawford, who is Mr Haneveld's mother. David's evidence was that Ms Crawford has routinely assisted David with living expenses by loaning him small amounts of cash, and had been doing so over an extended period of time. Although there was no documentary evidence of this debt, David gave oral evidence that, although he believed that she had loaned him closer to $20,000, Ms Crawford sought to be repaid $15,000 following the distribution of Mr Boscolo's estate.[118] This debt too appeared to be one which David regarded himself as duty-bound and morally required to pay, rather than a debt that was likely to be enforced through any legal process.
3. David also agreed that he received financial support totalling approximately $1,000 from his brother Adrian between June 2021 and September 2022.[119] He gave evidence that he also feels a strong moral obligation to pay that money back.[120]
4. It was clear from the evidence given by David at trial that his financial position was fairly dire, although he had both the financial and emotional support of Mr Haneveld and his mother. It is not possible to reach any determination regarding the legal status of the debts owed by David to Mr Haveveld and his mother. I accept however, that David considers he has an obligation to pay those debts back, and intends to do so.

1. David's claim is for provision from Mario Boscolo's estate totalling $452,000 (including his statutory entitlement of approximately $111,000).[121] David's claim is made, according to his evidence, in order to obtain stable accommodation, obtain psychological treatment, engage in training or further education, and to invest in his business.
2. David's claim for further provision included a capital amount for the purchase of a home, to which he attributed the sum of $350,000.[122] There was some cross examination directed to the fact that this was a greater sum than David was likely to require for a home for himself. Whilst it may indeed be possible for a home to be purchased for less than that amount, in my view it could hardly be said that that sum is excessive.

1. For the reasons discussed below in the context of the applicable legal principles, it also necessary to consider the circumstances of the others entitled on the intestacy who are not claimants.

1. Julietta Boscolo is Mario Boscolo's second child to his marriage with Sylvia Boscolo. She is 47 years old. The evidence before me as to Julietta's circumstances is contained in the three affidavits she filed in these proceedings. She did not give oral evidence at the trial as the other parties did not seek to cross examine her on her affidavits.
2. Like her siblings, Julietta has suffered severe trauma as a result of the treatment she endured from Mr Boscolo. In her affidavit evidence, Julietta echoed sentiments shared by other parties to these proceedings of the violence, poverty and dysfunction which marked her childhood. Julietta suffers from recurring issues which stem from her childhood.[123]
3. Julietta works as a film and television writer and director. Although successful in the industry, Julietta's evidence was that the work, and therefore her income, is sporadic, and that the nature of the work requires hours of unpaid labour.[124] She says that she feels she does not have the skillset to branch into another field of employment other than the film and television industry due to the years she has invested in her career.[125]
4. Julietta is a single parent and has an eight-year-old daughter.[126] Her affidavit evidence is that she does not own any substantial assets but has liabilities in excess of $57,000. They include a HECS debt of $13,447.34,[127] and a student financial supplement scheme loan totalling $44,237.[128] She says that increased cost of living causes her significant stress which impacts upon her health, and that she feels as though she will never escape the poverty in which she was raised.[129]

1. Julietta seeks to protect her statutory entitlement to Mr Boscolo's estate, which amounts to approximately 9% of the estate or approximately $111,000.[130]

1. Karina McDougall is 46 years old and is Mr Boscolo's third child to his marriage with Sylvia Boscolo. Karina's account of her childhood and the family's circumstances aligned with those given by her siblings.
2. It emerged during the course of proceedings that Karina works as a lawyer in Sydney, New South Wales. She presented as a very capable and astute legal practitioner. No other evidence was provided either by or on behalf of Karina regarding her financial position or her future needs.

1. It is clear from Karina's affidavit evidence that she has provided, and continues to provide, emotional and financial support to her younger brother David.
2. Karina's concern for David is not a recent development. Karina's unchallenged affidavit evidence was that following David's move to Perth with Mr Boscolo in around December 1995, she had grave concerns for David's welfare. Karina was not able to communicate with David for a period of seven years but would regularly send 'care packages' to Perth which included items such as toys, gifts, cash, photos, cards and confectionary. Karina would also send David birthday and Christmas presents. In February 2002, Karina initiated the resumption of contact with David after being provided with his email address. Karina from that time had weekly email contact with David.[131]
3. In about April 2002, David and Karina began to communicate by telephone. In her affidavit evidence, Karina described a discussion between herself, Julietta and Mr Boscolo in November 2022 regarding arrangements for David to visit his mother and siblings in Sydney. Eventually, 'after a lot of persuasion', David and Mr Boscolo travelled to Sydney for one week on 22 December 2002. Karina and Julietta paid for David's airfares for this trip, as well as a portion of Mr Boscolo's airfare.[132] David returned to Sydney with Mr Boscolo on 13 December 2003, after which time David stayed in New South Wales until 2008, when he moved back to Perth to live with Mr Boscolo. Karina later arranged for David to return to Sydney on 'at least 2 occasions'.[133]
4. Karina maintains a close relationship with David and visits him in Perth as frequently as possible.[134]

1. Karina submits that, although she adduced no evidence of any need, on the basis of the evidence she has a moral claim and that her statutory entitlement should not be disturbed.[135]

1. Mario is 43 years old and is Mr Boscolo's fourth child to his marriage with Sylvia Boscolo. No evidence was provided to the court either by or on behalf of Mario Boscolo in these proceedings. There is no evidence before the court as to Mario's circumstances, financial position, or his future needs.

1. Adrian is 39 years old and is Mr Boscolo's fifth child to his marriage with Sylvia Boscolo. Adrian gave no account of his childhood in his affidavit evidence.
2. Little evidence was provided as to Adrian's financial position in these proceedings, other than that he is employed as a doctor and works in a hospital in New South Wales, and has a HECS debt totalling $97,379.16.[136] There was no other evidence provided to the court, either by or on behalf of Adrian, as to his circumstances, financial position or future needs.

1. Adrian's evidence was that, following Mr Boscolo gaining custody of David, he lost contact with his father for several years. Mr Boscolo and Adrian reconnected when Adrian was attending university in 2007, and maintained a relationship until Mr Boscolo's passing in 2018. During that time, Adrian assisted Mr Boscolo with his administrative, financial, banking, medical, and legal affairs. Adrian visited his father regularly in Perth, during which times he would stay at Mr Boscolo's residence in Coogee. Adrian also maintained consistent contact with Mr Boscolo via phone and email while in Sydney.[137]
2. Adrian also made contributions to Mr Boscolo's estate by the provision of advice and assistance with investments and other financial matters including property subdivision and his share portfolio.[138]
3. Correspondence was annexed to Adrian's affidavit which evidences the assistance both he and Karina provided to Mr Boscolo following Michael's passing and the subsequent dispute regarding Michael's estate.[139]
4. In January 2018, Adrian elected to complete his General Practice training in Perth in order to be closer to Mr Boscolo, who was at the time 'very frail'. From that time, Adrian became Mr Boscolo's registered next of kin with Mr Boscolo's home care service agency.[140] Following Mr Boscolo's death in February 2018, Adrian organised and funded Mr Boscolo's funeral arrangements, from which he was reimbursed out of Mr Boscolo's estate.[141]

1. Adrian also provided emotional and financial support to his younger brother, David. This included, but was not limited to, a number of cash transfers which totalled over $1,000 between June 2021 and September 2022, purchase of a flight ticket to Sydney in order for David to visit his family, and the provision of private tutoring when David was enrolled at university.

1. Like his sister Karina, Adrian submits that although he adduced no evidence of any need, on the basis of the evidence, he has a moral claim and that his statutory entitlement should not be disturbed.

1. Each of the applications are brought under s 6(1) of the Act which provides:

If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

1. It may first be observed that the statutory remedy draws no distinction between dispositions created by a will and dispositions effected by the statutory entitlements upon intestacy. In Re Russell [1970] QWN 22, Lucas J said of the equivalent Queensland statute in the context of intestacy:[142]

The shares in the estate which accrue to the various persons entitled to share in the distribution accrue to them, generally speaking, by operation of law and not as the result of any conscious or deliberate act on the part of the deceased, although it is of course possible that a man might make a deliberate decision not to make a will. It seems to me that the most practical way to look at the matter is to imagine that the deceased had made a will whereby he directed that his estate should be distributed as on intestacy, and then to consider the needs and moral claims of the persons who benefit from a distribution in this manner.

1. That passage was cited with approval by Gummow and Hayne JJ in Vigolo v Bostin.[143] Although their Honours' reasoning differed in some respects from other members of the High Court, the explication of Lucas J is not controversial.[144]
2. Section 6(2) is directed expressly to an intestacy. Its background was also the subject of observation by Gummow and Hayne JJ:[145]

In Western Australia, provision respecting intestacy was first made with the enactment of the present legislation in 1972. In the second reading speech on the Inheritance (Family and Dependants Provision) Bill, the Attorney-General said it was "logical" to extend the right of application and to give "the same redress ... to deserving claimants in an intestacy". To accommodate the changes now reflected in s 6(1), s 6(2) was included. This states:

'The Court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.'

1. The result is that the court proceeds in this application as if the entitlements set out in s 14 of the Administration Act had been set out in Mr Boscolo's will.

1. In Devereaux-Warnes v Hall [No 3], Buss JA explained the two‑part nature of an application under the Act as follows (citations omitted):[146]

The first stage involves the determination of whether the disposition of the deceased's estate effected by will or the law relating to intestacy is not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. The first stage has been described as the 'jurisdictional question', which means no more than that the court's power to make an order in favour of the claimant is conditioned upon the court first being satisfied of the state of affairs referred to in the opening passage of s 6(1), ending with the words 'made under this Act'.

The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc.

The second stage, which only arises if the 'jurisdictional question' is determined in favour of the claimant, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the claimant.

1. Buss JA then explained the relevant times at which the first and second stages are to be determined. As to the first stage, his Honour explained:[147]

The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.

At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order.

1. Buss JA provided the following overview of the principles applicable to the issue of whether the applicant has been left without adequate provision (citations omitted):[148]

The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased.

Plainly, the totality of that relationship would include:

(a) any sacrifices made or services given by the claimant to or for the benefit of the deceased;

(b) any contributions by the claimant to building up the deceased's estate; and

(c) the conduct of the claimant towards the deceased and of the deceased towards the claimant.

Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act.

1. These principles were reiterated by Buss P in Lemon v Mead.[149] Buss P explained the task of the court when considering the first stage:[150]

The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.

In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen. Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight'.

1. When determining the jurisdictional question (namely, whether adequate provision has been made for the proper maintenance, support, education or advancement in life of a claimant), what is 'adequate' financial provision is to be assessed by reference to, inter alia, the size of the estate, the need and moral claim of the claimant or claimants, and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator.

1. If an applicant meets the jurisdictional threshold of the first stage, the court then exercises a discretion by evaluating the proper provision that it considers ought to be made out of the deceased's estate, and the manner in which that provision should be granted. How that evaluation is undertaken has been described in various ways.
2. In a widely cited passage of the Supreme Court of Victoria, the Court of Appeal in Grey v Harrison observed:[151]

There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.

1. In Curnow v Curnow, Hallen J gathered a number of other descriptions of the evaluative exercise:[152]

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction 'depends upon a multi-faceted evaluative judgment'. In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved 'an intuitive assessment'. Stevenson J has described it as 'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific': Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61, at [9], per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)).

1. In Haskakis v Hatzopoulos, White J, in relation to the question of what provision for the plaintiff's maintenance and advancement in life ought to be made, concluded:[153]

The question of what provision for the plaintiff's maintenance and advancement in life is proper having regard to all of the circumstances of the case cannot be answered in any logical or reasoned way. It involves an intuitive or evaluative judgment that is not assisted by appeals to community standards or community expectations.

1. In this jurisdiction, Beech J (with whom Buss and Mazza JJA agreed) said:[154]

[T]he court's task in undertaking the second stage must be taken into account. That task has been described as 'instinctive synthesis' or 'intuitive assessment', in respect of which reasons for the appropriate provision need not be fully articulated.

1. Mitchell and Beech JJA in Lemon v Mead said:[155]

It is impossible to describe, in terms of universal application, what adequate provision for proper maintenance etc will entail for a parent in respect of an adult child. In many cases adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his or her life. However, each case will depend on its own circumstances. As the decisions of the High Court in Coates, McCosker and Buckland v Trustees Executors and Agency Co Ltd illustrate, in certain circumstances an award in favour of a capable adult child will be justified.

1. As to the form in which provision may be granted, s 6 of the Act provides that the court may attach such conditions to the order as it thinks fit, and may order that the provision consist of a lump sum or a periodical or other payment.
2. In granting the appropriate relief, the court's assessment is necessarily prospective, at least in part. The relief must take account of the funds likely to be required for the claimant's future advancement and maintenance. It is not uncommon for parties responding to applications of this nature to direct criticisms at the lack of precision in an applicant's evidence regarding future or anticipated expenditure. This case was no exception. To various degrees, criticisms were advanced as to the lack of specificity, quantification and corroboration for the sums sought by the applicants.
3. In my view there will invariably be some lack of precision in the evidence presented in aid of provision for future maintenance. In my respectful view, it is important that courts do not adopt an overly exacting or technical approach to what ought to be a common-sense and intuitive assessment. I would respectfully adopt the position that prevails in New South Wales, in respect of which Kunc J said in Finlay v Pereg:[156]

It is a regrettable commonplace that this jurisdiction is beset by the problem of parties incurring substantial legal costs well out of proportion to the amounts in issue. One way the Court has sought to deal with this is by permitting a level of informality of proof of various matters as set out in Practice Note SC Eq 7.

[...] It would be an unfortunate development in terms of both costs and Court time if issues of adequacy and propriety were regularly to become the subject of expert financial evidence either to demonstrate that a bequest was adequate because, managed in a certain way, the beneficiary would be well taken care of including because of potential future pension entitlements, or that the amount of any Court ordered provision could be limited by a similar analysis, including taking into account potential future pension entitlements. This is not to say that such evidence will never have a place in this jurisdiction, but it should be the exception and not the rule.

1. In addition to those principles of general application there are some matters of particular application in this proceeding.

1. I have already referred above to authority establishing that at the jurisdictional or first stage, it is necessary to take account of the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator. Given the large number of children and a surviving spouse, that principle is especially germane in this matter. The evaluation of whether adequate provision has been made by the application of the laws of intestacy necessarily includes in this case, attention to two particular features.
2. First, the assessment cannot be undertaken without reference to the moral claims of the other beneficiaries or other people who are within the statutory class of claimants.[157] Here, that means in effect that consideration must be given to the moral claims of other people who are entitled to a share in Mr Boscolo's estate under the statutory entitlements. In one of the most commonly cited passages, Salmond J said in Re Allen; Allen v Manchester:[158]

[...] more often than not one cannot decide whether the testator has made adequate provision for a particular claimant without looking at the size of the estate and to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty.

1. Secondly, each of the words 'proper' and 'maintenance' is necessarily and always a relative notion that must be assessed in the context of each case.[159] Proper maintenance may in some circumstances be less than adequate maintenance because the deceased may not have possessed enough to satisfy all the claims on the estate's bounty.[160] That is, a sum may be quite insufficient for the adequate maintenance of the claimant but nevertheless be sufficient for his or her maintenance on a scale that is 'proper' in all the circumstances.[161] It follows, generally speaking, that the more numerous the claims, and the less plentiful the bounty, the greater will be the potential gap between what is proper, and what is adequate. In this matter, there is a large number of people who share in the intestacy. The size of the estate, while not insignificant, is less than abundant. What is 'proper maintenance' must be evaluated in that context.

1. When adding the total of each claimant's claim, and assuming all other parties maintain their statutory entitlement to Mr Boscolo's estate under the Act, the total amount claimed by the parties equates to $2,521,720 - which is more than double the worth of Mr Boscolo's estate:

Claim advanced under Family Provision Act 1972 (WA)

1. It is obvious that an award of more provision from the estate than would otherwise have been the case on the application of the statutory entitlements on intestacy, will require a significant adjustment of the entitlements such that the entitlements of others will be reduced. Plainly enough, entitlements under the terms of a will or under the laws of intestacy cannot be quarantined or immune from disturbance by the exercise of the court's power. If that were so, the statute would have no effective operation.
2. That exercise is part of the broad discretionary power conferred on the court. A question arises as to the source of the additional provision and the manner in which the consequential reduction of other entitlements is to be achieved.
3. Section 14(1) and s 14(2) of the Act provide:

(1) Every order in which provision is made or altered shall specify the part or parts of the estate of the deceased or, where applicable, the part or parts of the distributed estate out of which such provision shall be raised or paid, and prescribe the manner of raising and paying such provision.

(2) Subject to subsection (3), and unless the Court otherwise orders, the burden of any provision shall, as between the persons beneficially entitled to the estate of the deceased, be borne by those persons in proportion to the value of their respective interests in such estate.

1. The reference to 'unless the Court otherwise orders' reflects the breadth of the discretionary power. Save for the terms of s 14(2), the Act is otherwise silent on how those adjustments are to be made. In my view, however, that aspect of the discretion must also be exercised having regard to the moral claims, including the needs of non-claimant beneficiaries (including as here, beneficiaries under the statutory entitlements on intestacy). It would plainly undermine the object of the statute if a non-claimant's share of the estate was reduced in a manner that would deprive that person of proper provision that the estate had otherwise granted them.
2. Moreover, it is well established that if an applicant under the Act cannot demonstrate any need for provision (for example, because the applicant already has substantial means), then a claim otherwise based on the assertion of a moral claim or entitlement, cannot succeed.[162] However, in my view, when assessing the competing claims of non-claimants, a purely 'moral' claim, independent of any financial element, ought nevertheless to be considered. For example, if a court were considering from which part of the estate to make further provision for a successful claimant, there might be other non-claimant beneficiaries, children of the testator, each of substantial means. Yet one child may have cared for or contributed to the estate of the testator and the other may have not done so, or may have engaged in some disentitling conduct. Although each child may have a level of 'moral' claim upon the testator's bounty by virtue of being a child of the testator, and neither has any need at all for provision from the estate, it would in my view be a proper exercise of the discretion conferred by the Act to reduce the entitlement of the latter child to a greater degree than the first child. Although neither child has any basis to succeed in a claim under the Act because neither child has any possible need for further provision, the moral claim of the first child upon the testator's bounty is stronger, and that child's share ought therefore to bear a lesser burden of the further provision to be made to the claimant. Similarly, where someone or some entity who has no relationship with the testator is nevertheless entitled to a share in the estate, that entity may appropriately bear a greater burden of the provision than a child of substantial means. That is because the child has a moral claim even if the child's own financial means would preclude the child from bringing a successful claim under the Act. In my view, this consideration underlies the observation of Gleeson CJ in Vigolo:[163]

Similarly, when courts came to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives. Why is this so? The answer, again, lies in concepts of moral obligation.

1. For that reason, in this matter it is necessary, to the extent possible, to consider the relationship of each of the parties to Mr Boscolo, including those parties who have not demonstrated, or have not sought to demonstrate financial need for provision. That assessment will be relevant to the exercise of the court's discretion under s 14 in identifying from which entitlements any further provision to a successful claimant is to be taken.
2. In the articulation of those principles, it also important to recall that when the cases speak of 'moral claims', it is not the moral claims of applicants or other beneficiaries which are the primary focus, but rather the moral duty or moral obligation resting on the testator.[164]

1. In this matter, the moral duty of Mr Boscolo arises firstly from his familial relationship with his surviving spouse and each of his surviving children. Beyond that, a central aspect of assessing that obligation is a consideration of the needs, and specifically the financial needs, of each of those people. As is set out above, each of the claimants, Ms Elgo, Caroline and David, gave evidence of their financial circumstances such that it is possible to make an assessment of their needs. However, other than Julietta, the non-claimant children against whom the claims of the claimant children are to be weighed, did not give any evidence of their financial circumstances. In Kilkenny v Kilkenny, Murphy and Mitchell JJA said:[165]

An applicant under the Family Provision Act bears the onus of establishing the claim. No onus lies upon a beneficiary of the deceased's estate to uphold the bequest. However, what is adequate provision is assessed by reference to the totality of the circumstances, including the needs and moral claims of other persons having a legitimate claim on the bounty of the testator. Accordingly, if a defendant beneficiary adduces no evidence of need or particular moral claim, that may provide a basis for the court to infer that they have no special claim other than their relationship to the deceased, and that they have sufficient resources to meet their needs.

1. Beech JA held that in the circumstances of that matter where the competing non-claimants had brought no evidence of their need, 'it is to be inferred that none of the other beneficiaries of the deceased's estate had any financial need'.[166]
2. It follows that in assessing the competing moral claims on Mr Bosoclo's estate, including the non-claimant children, where a child of Mr Boscolo has not produced evidence of their financial position, the court is entitled to, and generally will, proceed on the basis that the child has no need for any further provision from the estate for his or her proper maintenance, education or advancement in life.

1. As already noted, the application of the principles referred to above ordinarily means that where the court is persuaded that provision, or further provision, ought to be made in favour of an applicant, that provision will come from the share of a beneficiary whom the court has found, or inferred, does not have a need. That might be thought to produce unfairness. A child who has been the subject of wicked neglect by a parent, but by dint of their own endeavour has emerged to flourish and prosper in spite of that dereliction, and thereby has no financial need, may have his or her entitlement reduced. In contrast, another child of the same environment may have succumbed to the neglect and remain bereft of any substantial means. That might be for a variety of reasons, including the possibility that the less fortunate child did not share the resilience or the diligence of the more prosperous sibling. Yet, the application of the statutory power may require a reduction of the share to which the self-made sibling is entitled and shift the distribution in favour of the less prosperous sibling. It might be said that such an outcome is unjust because it penalises the diligent and the talented child who has persevered over adversity.
2. In addressing that concern it is necessary to reiterate that the object of the Act is not to effect equality or some broad notion of fairness. The statutory power is directed to the redistribution of the gifts flowing from the estate on the basis of a moral duty to fulfil an unsatisfied need. Fairness and equality are not factors that govern such an exercise. The court is not entitled to re-write the will or modify the rules of intestacy in accordance with its own ideas of fairness or justice.[167]

1. A common theme among both the claimants and the non-claimant children of Mr Boscolo, was his poor conduct towards his family which ranged from mere neglect to violence and emotional abuse.
2. It is well established that power to award provision under the Act does not encompass reparations, or compensation, to an applicant for the deceased having failed in his, or her, moral duty to be a good and responsible parent of the child.[168] It is not the purpose of the Act to punish, or redress, past bad or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation.[169] The Act was 'not passed to enable a Court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed years earlier, to comply with a legal, or familial, or moral obligation, where any effect of that failure had not continued up to the deceased's death'.[170] The authority of the court to intervene does not depend simply upon a mere demonstration of morally inadequate behaviour on the part of the deceased.[171] As Palmer J observed in Simon v Permanent Trustee Co Ltd:[172]

The Act is concerned only with the provision out of the estate of the deceased for the financial needs of those who had a claim on the testator's testamentary recognition. It is not the policy of the Act to console with legacies those who, while in no financial need, feel that the testator did not love them enough or feel that they should have a monetary solace for the loss of a loving relationship.

1. Nor is it the function of the court to provide a legacy, by way of damages, for abuse or other derelict behaviour. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant's mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for a claimant should be measured.[173]
2. Hallen AsJ added to those observations in Curran v Harvey:[174]

This does not mean that the deceased's conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant's need for provision, the court may take that into account in determining whether proper provision has been made[.]

1. A further but related feature of this matter is the estrangement between Mr Boscolo and his children. This occurred to various degrees amongst his children. I set out below a summary of the principles relating to estrangement between a testator and his or her child/ren that I outlined in AB v FGH [2022] WASC 244.
2. The relevant principles may be summarised as follows:

(a) Estrangement between an applicant and a testator is relevant because the determination of whether the provision made by the will of the deceased is adequate, necessarily includes an examination of the totality of the relationship between the claimant and the deceased. The totality of the relationship includes the conduct of the claimant towards the deceased and of the deceased towards the claimant.

(b) Estrangement, or 'disentitling' conduct, is relevant not only to the first stage, that is, the determination of whether adequate provision has been made, but also the second stage, that is the quantum or conditions of any provision that the court may be minded to order. Whether the claim is extinguished or merely reduced, and the extent of any reduction, depends on all the circumstances of the case.

(c) To the extent that the estrangement reflects on the character or conduct of a claimant, s 6(3) of the Act provides that the court may attach conditions to, or may refuse to make, an order in favour of a claimant on the ground that the claimant's conduct is such as to disentitle the claimant to the benefit of an order.

(d) Estrangement itself is just the condition which results from attitudes or conduct of one or other or both of the parties. It does not describe the conduct of either party.

(e) The mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement.

(f) If the estrangement is caused and sustained by the testator's unreasonable conduct, then the estrangement alone could not amount to disentitling conduct. If the estrangement from the testator is explicable, a claimant may still achieve an order for provision under the Act.

(g) 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.

(h) When there is an estrangement, it should be appraised, and its causes should be considered. It may be necessary to apportion blame or responsibility. The nature of the estrangement and the underlying reason for it are relevant to an application under the Act.

(i) Even without attribution of blame or responsibility it is nevertheless relevant to the exercise of the court's discretion that there was no relationship between parent and child for many years and there did not therefore exist between them the love, companionship, and support present in normal parent/child relationships.

(j) In some cases, the estrangement is such that a testator is entitled to make no provision for an estranged child. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. This is even more so where that callousness is compounded by hostility.

(k) Legislation of this kind has consistently contained provisions that the court may take into account the character or conduct of an applicant if it has been such as would disentitle that applicant to provision from the estate. However, this is but a reflection of the fact that a principal determinant of proper maintenance or support is what the testator in all conscience should have felt bound to provide, and the plaintiff's behaviour is not the essential determinant. It is primarily to the testator's moral obligations that the court has been required to look, rather than the virtues and vices of those who seek provision.

(l) The applicable principles, consistent with the broad discretion conferred by the Act, may only be stated in generalised terms. Close attention must be paid to the facts of each case. The very general directions in the Act require close attention to the facts of individual cases.

(m) While the authorities make plain that the facts of each case must be carefully considered and that the cause and responsibility for any estrangement may require investigation, it is important to recall the limitations of a court's perspective. As Sackville AJA observed in Foley v Elis:[175]

Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time.

1. Both Caroline and David are adults. The principles to be applied when a claim is made by an adult child were summarised by Hallen AsJ in Wheat v Wisbey[176] and adopted in this court by Smith J in McGeough v Blatchford.[177] I respectfully adopt what their Honours set out in those decisions.

1. Each of the claimants is in receipt of, or is or will very likely become eligible for, various forms of social security payments. This includes assistance from such things as the disability support pension, the age pension and the National Disability Insurance Scheme. That aspect of the case raises for consideration the manner in which such payments ought to feature in the court's assessment of an application at each of the two stages referred to above.
2. The issue of pensions in family provision applications has been considered in a number of cases and helpfully and recently reviewed by Kunc J in Finlay v Pereg.[178] From his Honour's review of the authorities, the relevant principles may be summarised as follows:

(a) The protection of public funds from claims by indigent persons is not of itself a purpose of family provision legislation. It is not the Court's task to be vigilant to throw burdens off public funds and onto private estates.

(b) However, the public purse is incidentally protected by the legislation because a public policy consideration underlying the operation of the Act is the community's expectation that, where circumstances allow, the moral obligation of a testator includes making provision that is adequate from the estate. This reflects an expectation that testators should look after their own to the extent they can, rather than the community having to do so through the mechanism of the aged or other pension. Where there is sufficient wealth in an estate, there is an expectation it should not be directed away from someone in need to whom the testator owes a moral duty, so as to enhance the claim to public funds. The orders that may be made and the manner in which they may be framed by the court will often be informed by that expectation.

(c) An applicant's entitlement to a pension or other form of social security cannot therefore, of itself, answer or defeat a claim for proper provision.

(d) When making provision, a wise and just testator usually makes a will without regard to any means-tested pension that a beneficiary may be able to receive. However, a testator does usually take into account the income that the various beneficiaries would be receiving under superannuation or other pensions. The court, in seeking to redress any moral failure to meet a claim on the estate, may take the same approach.

(e) Where the estate is small and especially where there is a series of claims on the testator's bounty, it may well be proper for the testator when making a will, and the Court when framing its order, to preserve a pension entitlement. It may be appropriate in such circumstances to leave an applicant wholly or partly dependent on a pension entitlement or to mould the provision made so that the entitlement is preserved in whole or in part.

(f) The acceptance of benefits for which the law provides is in every way legitimate. It involves no social stigma and incurs no disapproval from the Court.

(g) The considerations regarding pension entitlements may be relevant at both stages of the application. That is, they may first be relevant to the jurisdictional question of whether the applicant has been left without adequate provision. Account may be taken of such an entitlement in assessing whether in the circumstances an applicant has been left without adequate provision. That is especially so in a small estate and all the more so when there are many claims pressing on the estate. If the point is reached that adequate provision has not been made, the consideration may be relevant again in the exercise of the court's discretion in determining the quantum of provision to be ordered. Again, those considerations may weigh more heavily when dealing with a small estate, and more heavily still where there are many claims pressing on the estate.

1. While in my respectful view it may be said that these principles of broad application may be distilled from the authorities reviewed by Kunc J in Finlay v Pereg, it is to be appreciated that they are not rules of inflexible application. Each case will turn on its own unique facts. That point may be illustrated by the contrasting observations of eminent judges of this court within a relatively short space of time. In Bondelmonte v Blanckensee,[179] a testator left the whole of his estate to charity, and nothing to his only child, an adult daughter who was in very poor financial circumstances and in receipt of the aged pension. The estate was worth $396,000. The judge at first instance awarded the daughter $80,000. The daughter appealed, alleging that $80,000 did not constitute adequate provision. The Full Court (Malcolm CJ, Wallace and Nicholson JJ) allowed the appeal and ordered a sum of $180,000 to the daughter from the estate. It appears that the trial judge was concerned in fashioning the relief, to preserve the daughter's pension entitlement. The relief granted was thus, in effect, provision that would preserve but supplement the pension. Malcolm CJ said:[180]

In my opinion, this approach was in error. The fact that the appellant was in receipt of a widow's pension was relevant to a determination of her financial needs and circumstances [...] That being so, the pension ceased to be of relevance. It was not a proper exercise of discretion to structure the provision for the appellant, so as to preserve her right to a pension, or otherwise to assume its continuance.

For the reasons which I have mentioned, I have come to the conclusion that the discretion conferred on the learned judge, was not properly exercised. This has resulted in a provision which, in my opinion, is not adequate for the proper maintenance, support, and advancement in life of the appellant.

1. Nicholson J expressed a similar sentiment:[181]

The major issues of principle raised by the second ground of appeal are those in pars 2(c) and (d) involving consideration of the relevance of the amount of the pension received by the appellant to the assessment of proper maintenance. His Honour stated in his reasons that he took into account that to provide the appellant with any benefit by way of an annuity would affect her entitlement to receive a pensions under the Social Security Act 1947 (Cth). In so doing he was in my opinion, assessing what constituted proper maintenance by reference to the amount of the pension which she received and in that he was in error: Shah v Perpetual Trustee Co (1918) 7 Fam LR 97 at 100; cf Lieberman v Morris (1944) 69 CLR 69 at 81.

1. In Triplett v Triplett,[182] Ipp J considered an application by two sons for provision from the estate of their father. The father had six children and left an estate of approximately $60,000. The father left a third of his estate to each of three children and 50 cents each to the other three, including the two applicants.
2. Having referred to the decision in Bondelmonte v Blanckensee and the passage from Nicholson J above, Ipp J observed:[183]

In my opinion the present case stands on a different footing. Three of the testator's five children are dependant upon invalid pensions for their incomes. Save for John, whose position I shall explain more fully below, they were dependant on their pensions for some years prior to the testator's death and his will was drawn in the full knowledge of the importance of the pensions to those concerned. This is not a situation where there are substantial funds in the estate, available to be paid to the beneficiaries, but where such payment would reduce the benefits payable by way of pensions (as was the case in Bondelmonte v Blanckensee). In a case where the estate is relatively small and beneficiaries are dependant upon pensions which were payable prior to the death of the testator, then, in my view, the Court should have regard to the pensions and take them into account. The receipt by the parties of their invalid pensions is a relevant fact in the determination of their financial needs and circumstances: cf. the remarks of Malcolm CJ in Bondelmonte v Blanckensee at p. 312.

1. The somewhat contrasting approach to social security entitlements in those two cases, Bondelmonte and Triplett, illustrates the need to assess the issue of pensions with a careful and considered attention to the particular facts of each case.

1. As noted, Ms Elgo was estranged from Mr Boscolo, although lawfully married. Mr Boscolo provided no financial assistance or contribution to Ms Elgo after the separation in 2016.
2. It is likely that had Mr Boscolo not died, Ms Elgo would have been entitled to seek some form of financial assistance or contribution in the Family Court of Western Australia by way of a requirement to pay maintenance, or an alteration of property interests, or both. It is neither possible nor helpful to postulate the likely success of that hypothetical course. However, in the course of the trial some attention was directed to the intersection between the legislative regime that governed or would have governed Ms Elgo's rights under family law, and her application under the Act.
3. Ultimately, in my view the two matters are entirely distinct. Whatever entitlements Ms Elgo may have enjoyed under the Family Law Act 1975 (Cth) or the Family Court Act 1997 (WA), they do not inform Ms Elgo's position under the Act. As Mason, Brennan and Deane JJ observed in Smith v Smith:[184]

[M]aintenance and the determination and adjustment of property interests on the breakdown of a marriage is, generally speaking, a legal topic which is separate and distinct from testator's family maintenance. ..... [L]egislation dealing with maintenance and the determination and adjustment of property interests on the breakdown of marriage is unlikely to evince an intention to occupy the general field of testator's family maintenance.

1. Before turning to a consideration of the individual claims, the review of the relevant principles above directs attention to a number of matters that have general application to each of the claims.
2. First, the estrangement between Mr Boscolo and his children to one degree or another, was a predicament overwhelmingly of Mr Boscolo's own making. It is not a matter that creates any impediment to a claim. There was no relevant disentitling conduct.
3. Secondly, the relatively large number of claimants and others entitled on intestacy and the less than ample size of the estate has significant consequences. It means that attention must carefully be given to the competing moral claims on the estate of all the parties. It also means that the competing moral claims of both claimants and non-claimants are to be carefully considered in identifying from where any additional provision should be taken. Further, the receipt of or entitlement to social security benefits and the like assumes particular importance in this matter.
4. Thirdly, it is important in this matter to keep steadily in mind that the objects of the Act do not include the grant, or indeed the preservation, of provision for those who, while in no financial need, are justifiably aggrieved by the testator's deficiencies or dereliction as a parent. As tragic, or as worthy of condemnation as that may be, it does not of itself warrant the grant of further provision or the preservation of any entitlement.

1. The law of intestacy has made provision for Mariella to receive approximately 9% of Mr Boscolo's estate, amounting to approximately $111,000. Mariella's claim is for 50% of Mr Boscolo's estate.
2. Mariella is the plaintiff in this matter, though as I have outlined above, Mariella ultimately put on no evidence for the purposes of her application and did not participate in the proceedings. On the basis of the authorities I have outlined, in those circumstances the court may infer that Mariella has no financial need. Certainly, Mariella did not put any evidence before the court by which the court could make an assessment of her needs.
3. However, as I have noted, the evidence of her siblings allows the court in this case to infer that Mariella suffered greatly at the hands of her father, and her upbringing was at least equally marked by deprivation and dysfunction. The information available at the trial also makes it plain that Mariella is unable to live independently and has faced challenges relating to her ability to retain legal representation for a variety of reasons.
4. Mariella's lack of evidence regarding her financial circumstances either at the date of Mr Boscolo's death or at the date of trial renders the court unable to conclude that her statutory entitlement out of Mr Boscolo's estate is inadequate or improper. I must therefore dismiss Mariella's application for further and better provision.

1. The law relating to intestacy has made provision for Ms Elgo to receive 37% of Mr Boscolo's estate which approximates to $452,000. Whether that was such as to make adequate provision for Ms Elgo's maintenance, support, education or advancement is a matter to be assessed as at the date of Mr Boscolo's death.
2. Ms Elgo's position at the date of Mr Boscolo's death is set out at paragraphs [62] - [63] above. Although Ms Elgo had no substantial savings or assets, the following matters are of particular significance:

(a) Ms Elgo's marriage to Mr Boscolo lasted in substance for less than three years. Although she no doubt was dutiful in her companionship and care of Mr Boscolo, she made very little, if any, financial contribution to the marriage.

(b) Ms Elgo had lived independently since April 2016.

(c) Ms Elgo was in reasonable health and while she did not have full time employment, there was no evident impediment to obtaining employment.

(d) As at the date of death Ms Elgo, having successfully appealed the rejection of her visa application, must have enjoyed a fair degree of confidence that she would obtain permanent residence and citizenship. That would then in turn give her in due course the benefit of social security entitlements. In the circumstances of this case, where there are many claims upon the estate's bounty, it is in my view appropriate to take account of the prospective entitlement to social security and pension payments.

(e) Ms Elgo's circumstances must be weighed in the balance with the moral claim and needs of the other claimants and Mr Boscolo's other non-claimant children.

1. In all the circumstances, and applying the principles set out above to Ms Elgo's position at the date of death, I am not persuaded that the laws of intestacy left Ms Elgo without adequate provision. In reaching that conclusion, there can be no doubt that Ms Elgo acted tolerantly and dutifully toward Mr Boscolo. Mr Boscolo did not respond in kind. His treatment of Ms Elgo was unjustified and, in some respects, quite wicked. But as noted above, the Act is not directed to compensation for deplorable behaviour. I also accept that Ms Elgo is without substantial means. However, the laws of intestacy have granted her a very considerable sum and, as an Australian citizen, she will ultimately enjoy the same entitlement to social security as any other citizen, including the age pension. In those circumstances, in my respectful view, it cannot be said that the law of intestacy has left her without adequate provision, particularly when regard is had to the other claims upon Mr Boscolo's bounty. I therefore dismiss Ms Elgo's claim for further and better provision.

1. As outlined above, the law of intestacy grants Caroline 9% of Mr Boscolo's estate, which approximates to $111,000. Again, whether that left Caroline without adequate provision is to be assessed at the date of Mr Boscolo's death.
2. I have set out the Caroline's circumstances at the date of Mr Boscolo's death at paragraph [85] above.
3. In contrast to the claimants Ms Elgo and David, and the non-claimant Julietta, Caroline owns her own home. At the relevant time, she was working full time and was paying off the mortgage over her home which at the date of death stood at approximately $206,000. At the date of death, Caroline had accrued superannuation of over $57,000, which could be expected to continue to accumulate.
4. Caroline faced not insignificant health issues which were at least in part attributable or contributed to by Mr Boscolo's lack of parental care and concern. At the same time, Caroline was entitled to and had received funding from the NDIS. On the evidence I infer that that support could be expected to continue, albeit with some uncertainty about its quantum. Caroline could also expect to receive any other social security benefits to which she was entitled.
5. Again, Caroline's provision needs to be assessed in light of the claims of each of the other children. In that regard, as already observed, it is significant that neither David nor Julietta own a home, or have any financial interest in a home.
6. In all the circumstances, and although the matter is finely balanced, I have come to the conclusion that the grant of some $111,000 from Mr Boscolo's estate was not such as to leave Caroline without adequate provision. Again, that is not to say that Mr Boscolo treated Caroline as a parent should, or that her circumstances could be characterised as fortunate. However, applying the principles set out above, the adequacy of the $111,000 needs to be assessed in all the circumstances including the predicament and moral claims and relative positions of the other children of Mr Boscolo. As at the date of death, Caroline's entitlement and prospective superannuation could reasonably be expected to satisfy a significant proportion, if not all, of the debt on her home, thus significantly reducing her monthly expenditure. In my view, this is a case in which it is also appropriate to take account of Caroline's entitlement to payments from the NDIS, and in due course, the age pension, and if necessary other social security payments to which she may be, or become, entitled. These matters were either well established or plainly foreseeable at the time Mr Boscolo died in February 2018. I therefore dismiss Caroline's claim for further and better provision.
7. As will be explained, I have also concluded that although I do not consider that, in all the circumstances, Caroline was left without adequate provision, I do not consider that the provision made for her should be disturbed to provide for any successful claimant. The provision made for Caroline by the laws of intestacy was barely adequate and therefore should not be reduced.

1. David too, under the law of intestacy, is entitled to 9% of Mr Boscolo's estate, which approximates to $111,000. David's circumstances at the date of Mr Boscolo's death are set out at paragraph [103] above.
2. David's financial position at the date of death was dire. He was unemployed, engaging only in causal work with limited job security. David confronted significant mental health and addiction challenges. He had no substantial assets or savings. His education and lack of qualifications were plainly influenced by his upbringing and Mr Boscolo's shortcomings. His difficult circumstances are the direct product of Mr Boscolo's deficiencies as a parent. Thus, while the principles I have summarised above make plain that the Act is not directed to compensation for deficient parenting, on the evidence David's predicament is the regrettable consequence of Mr Boscolo's conduct and treatment of his family generally, and David in particular. David's circumstances growing up afforded him no real opportunity to realise his potential and establish himself in any substantial way. David's oral evidence of the difficulties he has encountered, the circumstances he confronts, and his hope and aspiration for a productive future, was cogent and persuasive.
3. I accept that David has the desire and, in my view, the capacity to develop some sort of career. However, his ability to do so may, I accept, largely depend on his ability to overcome the chronic and enduring nature of his psychological conditions. His ability to do so will be enhanced by some relief from his financial difficulties and the anxiety and instability that brings.
4. In all the circumstances, I have concluded the application of the laws of intestacy left David without adequate provision from the estate of Mr Boscolo.

Further provision for David and adjustment to entitlements

1. In respect of David's claim, it is necessary to turn to the exercise of the statutory discretion at the second stage and determine the appropriate amount of provision. It is also necessary to identify from where that provision should be taken.
2. As noted, David's evidence relating to his prospective needs and aspirations was cogent and persuasive. It included the purchase of stable residential accommodation, the repayment of debts he feels obliged to repay, and expenditure for treatment, training, and establishing himself in an economically sustainable manner. The stark reality is that the estate simply cannot bear the cost that would in all the circumstances be necessary to address all those matters. To do so would require the court to effect a redistribution of the estate that could only be achieved if no account were taken of the competing claims on the estate's funds. In that regard, it is appropriate to recall the principle explained above that the adequacy of the provision is to be assessed relative to all the circumstances. The estate is not capable of adequately meeting all of David's justified needs and aspirations. In that respect the provision may not be objectively adequate. But as explained, the court is not required, nor indeed empowered, to grant provision in that sense. Rather, the court's function under the Act is to grant provision that in all the circumstances is proper for David's maintenance, support, education and advancement.
3. I have also explained that the assessment is intuitive; it is neither mathematical nor precise, but rather an instinctive synthesis having regard to all the factors.
4. Adopting that approach, I consider that David's application for further and better provision should be granted, and that David's share of the net estate should be increased from 9% to 30%.
5. The court must then exercise its discretion to determine the source of David's additional 21% of the estate, that is, which entitlement/s should be reduced. That exercise too can only be undertaken having regard to all the factors set out above.
6. In my assessment, Ms Elgo's entitlement should be reduced by 15% to contribute to David's provision, so that Ms Elgo's entitlement will reduce from 37% to 22%.
7. Having regard to their circumstances that I have explained above, I consider that the entitlements of Mariella, Caroline and Julietta should not be disturbed. To do so would reduce their provision to the point where it might be said the outcome leaves them, in all the circumstances, without adequate provision.
8. The balance of David's further provision should come from Karina, Adrian and Mario's entitlements. Those parties did not provide any evidence of their financial circumstances, and I therefore infer that they have no need. In light of the evidence of Karina's and Adrian's circumstances, it might be appropriate that their entitlements be reduced somewhat more than Mario's entitlement, about whom the matters put before the court established in substance nothing at all. Against that must be weighed the evidence that both Adrian and Karina provided ongoing assistance and support to both David and Mr Boscolo, and in Adrian's case, some level of familial companionship. The emotional and financial support that Karina and Adrian provided to David went above what one might expect of a sibling and were necessitated at least in part by Mr Boscolo's deficiencies as a father. In all the circumstances, I consider that the burden of the additional 6% required to make up David's entitlement should be shared equally between Mario, Karina and Adrian.
9. I would therefore order a modification to the entitlements on intestacy of Mr Boscolo's estate as follows (with these figures to include the $10,000 interim distribution payments already distributed):

(a) David's entitlement be increased to 30% (from 9%);

(b) Ms Elgo's entitlement be reduced to 22% (from 37%);

(c) Mariella's entitlement remain at 9% (undisturbed);

(d) Caroline's entitlement remain at 9% (undisturbed);

(e) Julietta's entitlement remain at 9% (undisturbed);

(f) Mario's entitlement be reduced to 7% (from 9%);

(g) Adrian's entitlement be reduced to 7% (from 9%); and

(h) Karina's entitlement be reduced to 7% (from 9%).

1. It will be necessary to decide whether these percentages are to be allocated to the estate prior to the deduction of costs, or net of costs, or net of some costs but not others. I will hear from the parties in relation to final orders, which will include that consideration.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : BOSCOLO -v- AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO [2023] WASC 391 (S)

AUSTRALIAN UNITY TRUSTEES LIMITED as administrator of the estate of MARIO BOSCOLO

Family provision - Family Provision Act 1972 - Unsuccessful application by wife and adult daughters - Successful application of adult son - Costs of parties - Application for special costs by successful claimant - Applications by other defendants for costs to be paid out of the estate or alternatively to be borne by unsuccessful parties - Settlement offer rejected by plaintiff - Costs in Family Provision Act applications generally - Discretionary considerations

Family Provision Act 1972 (WA)

Supreme and District Courts (Contentious Business) Determination 2020 (WA)

Supreme and District Courts (Contentious Business) Determination 2022 (WA)

Boscolo v Australian Unity Trustees Ltd as administrator of the estate of Mario Boscolo [2023] WASC 391

Daniels v Hall [No 2] [2014] WASC 272

Dean v Collins [No 2] [2015] WASCA 151

Hodder v Australian Executor Trustees [No 2] [2021] WASC 415

Kiernan v Cranston [2019] WASC 410 (S)

1. Following the publication of reasons in Boscolo v Australian Unity Trustees Ltd as administrator of the estate of Mario Boscolo [2023] WASC 391, the parties filed written submissions in respect of costs. These brief reasons deal with that aspect of the matter. I adopt the names of the parties used in the primary reasons.

1. I set out below the positions taken by the parties in relation to costs.
2. The plaintiff, Mariella, filed no material.
3. The first defendant has advised the court of its position that its costs should be paid from the estate as a testamentary expense.
4. The second defendant, Ms Elgo's position is that the first defendant's costs should be paid out of the estate as a testamentary expense prior to any distribution of entitlements, and all parties should otherwise bear their own costs of the proceedings.
5. The third defendant, Caroline, put forward a primary and two alternative positions. In each position she accepts that the first defendant's costs should be paid out of the estate. Her primary position is the same as Ms Elgo, that all parties should otherwise bear their own costs of the proceedings. Caroline's first alternative is that the estate also pay David's costs fixed in the sum of $67,757. The second alternative is that the estate pay David's costs to be taxed in accordance with the Supreme and District Courts (Contentious Business) Determination 2022 (WA) (Scale), and that any permitted uplift on the Scale should be paid by the plaintiff.
6. In her submissions, Caroline also drew attention to an offer made by David dated 1 October 2021 which was made 'without prejudice save as to costs'. The offer was to settle David's claim by the payment to him of $150,000. That offer was acceptable to all the parties who participated in this proceeding, other than Mariella. In the result, David will receive more from the estate than he was prepared to accept by that offer. On that basis, it was submitted on behalf of Caroline that if any party should bear the costs of David's successful application, it should be borne by Mariella who declined the offer and who was unsuccessful in her own claim.
7. The fourth defendant, Julietta, submitted that each party should bear his or her own costs. Julietta also appeared to accept that the first defendant's costs should be paid out of the estate but submitted that the first defendant's costs payable out of the estate should be reduced.
8. The fifth defendant, Karina's position was that the first defendant's costs should be paid out of the estate as a testamentary expense and that the non-successful claimants, that is, Mariella, Ms Elgo and Caroline, should bear the costs of David's successful application. In the alternative, Karina submitted that Ms Elgo alone should bear the costs of David's application. In any event, Karina submitted that Mariella, Ms Elgo and Caroline should bear their own costs.
9. The sixth defendant, Mario, filed no material.
10. The seventh defendant, Adrian submitted that each party should bear their own costs.
11. The eighth defendant, David, also accepted that the first defendant's costs be paid by the estate as a testamentary expense prior to any division of the estate. David submitted that his costs should be paid from the respective entitlements of Mariella, Ms Elgo and Caroline. Further, David submitted that his costs be fixed in the sum of $98,183.67 which includes a total of $67,757 assessed in accordance with the Scale, disbursements, and an uplift of $30,360 for Item 12 of the Scale. The uplift was said to be justified on the basis that David's costs involved not only advancing his own claim but considering and engaging with the claims of Mariella, Ms Elgo and Caroline.

1. In Daniels v Hall [No 2],[185] Heenan J undertook a thorough review of considerations that are applicable to the issue of costs for applications under the Family Provision Act 1972 (WA) (the Act). Before turning to those principles, it is appropriate to note Heenan J's observation following his explanation of the principles:[186]

All these observations and dicta are, undoubtedly, helpful and pertinent but it must never be forgotten that in awarding costs in claims under this litigation the court is exercising a broad and general discretion which must have regard to the circumstances of each particular case and not be limited, controlled or circumscribed by any general rule or practice.

1. The considerations identified by Heenan J included matters that may be summarised as follows:

(a) Although the court will generally order that the successful party to any action or matter should recover his or her costs, any award as to costs is in the discretion of the court. The breadth and generality of the court's discretion with respect to costs in proceedings pursuant to the Act is confirmed expressly by s 14(6) of the Act which provides that the court may make such order as to the costs of any proceeding under the Act as it deems just.

(b) Although the consolidated practice directions of this court cannot limit or control the general discretion of a judge in determining what, if any, orders for costs should be made in any particular case, they are nevertheless illustrative of matters which may be taken into consideration. Those directions include the following:[187]

[...] The Court is concerned by the excessive costs often incurred in Family Provision Act matters [...] and is obliged to ensure that the principle of proportionality set out in O 1 r 4B in the Rules of the Supreme Court applies in the way that proceedings are managed to settlement or trial.

[...] When making final orders after trial the Court will consider whether costs should simply follow the event with the result that an unsuccessful party may be required to pay the costs of the successful party or at least bear his own costs. Practitioners should not assume that the costs of unsuccessful parties will necessarily be awarded from the estate. Further, the costs orders made by the Court and the amount of costs payable to or by a party will take into account any unreasonable conduct by that party or any other party in the course of the application.

(c) The usual practice that, in civil litigation, costs should follow the event or outcome of the litigation is not invariably applicable in proceedings under the Act. Family provision claims uniquely turn on considerations that render an assessment of the nature and prospects of success in any particular case more difficult than in many other types of litigation. These difficulties mean that a degree of restraint and tolerance is necessary in some cases if the court is asked to refuse or limit costs for an applicant, whether successful or unsuccessful. There has been a long-standing recognition that in family provision proceedings, caution needs to be exercised in merely resorting to and applying a general rule that costs follow the event. It may nevertheless be said that a successful applicant is usually, but not always, entitled to his or her costs of the proceedings, such costs to be paid out of the estate as the court may direct.

(d) Other beneficiaries who appear in the proceedings, particularly residuary beneficiaries, have an existing interest under the will or intestacy to protect and, subject to reasonable conduct on their behalf and to their avoidance of unnecessary duplication of representation and other expenses, are usually entitled to their costs of the proceedings on a party and party basis, again regardless of the outcome.

(e) Restraint or limitation on diminishing the estate by large costs orders may be appropriate in order to preserve or, if possible, re-establish family harmony in the longer term. Historically, this was a reason that even an unsuccessful (but not unreasonable) claimant may have had their costs paid from the estate.

(f) The resources available to meet orders as to costs are usually quite limited. If the costs are to be met out of the estate, then it is important to consider the impact of costs which are likely to reduce the entitlement of other beneficiaries, particularly residuary beneficiaries, to the share of the estate which the testator, or the law of intestacy, provided for them.

(g) Not infrequently, an offer of settlement may have been made to an applicant which is declined and then the eventual outcome is less favourable to the party who declined the offer. Again, because of the occasional difficulties in predictability of any outcome in the course of such litigation, the mere failure to obtain a result more favourable than an offer which has been rejected will not necessarily deprive an applicant of his or her costs or result in an order for costs being made against that applicant. However, that factor will be relevant in the exercise of a general discretion to award costs, and if the rejection of the offer was, on an objective basis, unreasonable in the circumstances, it may lead to an order for costs being made against the applicant even on an indemnity basis.

1. In Dean v Collins [No 2], Chaney J (with whom Martin CJ and Buss JA agreed) said:[188]

[I]t is now the general policy of the court to order that the costs of proceedings under the Family Provision Act be borne by the beneficiaries or claimants who were unsuccessful in the proceedings.

1. Notwithstanding that expression of general policy, there can be no doubt that the discretion in the awarding of costs remains at large and broad. Moreover, there is nothing in Dean v Collins to suggest that the considered and thorough examination of the principles by Heenan J in Daniels does not remain relevant and applicable. The principles set out by Heenan J have been applied consistently in this court; see for example Kiernan v Cranston [2019] WASC 410 (S) at [7] and the observations of Hill J in Hodder v Australian Executor Trustees [No 2] [2021] WASC 415 at [23].

1. In light of those principles, I consider that the following matters are of particular significance in the exercise of the court's discretion as to costs.

(a) The estate, while not small, is not ample. A costs order against a party is likely to absorb much and possibly all of the entitlement that party would otherwise receive.

(b) David was the only successful claimant.

(c) David was prepared to settle the claim in October 2021 for less than he will now receive. Other than Mariella, the other participating parties would have been content with that. It is not possible to ascertain whether that would have resolved all the claims against the estate and avoided the proceedings entirely.

(d) While Caroline's claim was unsuccessful, her entitlement was left undisturbed. The practical effect of an award of costs against Caroline would in my view not be a just outcome in light of her circumstances and the fact that her claim, whilst unsuccessful, was not unreasonable.

(e) Ms Elgo's claim was unsuccessful, and her entitlement was reduced significantly. Her circumstances are fairly dire. Again, in my view the practical effect of an award of costs against Ms Elgo would not be a just outcome in the circumstances.

(f) Whether or not Mariella's refusal of David's offer was the cause of the maintenance of this proceeding that would otherwise have been resolved, it is plainly the case that the directions hearings before me of 2 February 2023, 8 March 2023 and 22 March 2023 were necessitated by and directed to, in part, Mariella's ongoing default in complying with the court's orders. In addition, a good portion of the opening day of the trial on 18 April 2023 was spent dealing with Mariella's unsuccessful application for adjournment which she brought without notice to the other parties.

(g) Julietta's circumstances are very difficult. Nevertheless, she did not make a claim and sought only to preserve her entitlement and provide information to the court as requested. She was successful in preserving her entitlement. In my view, Julietta should not bear any of the costs of the proceeding.

1. David has applied for a special costs order to the effect that the scale limits imposed by Item 12 of the Scale, and the 2020 scale,[189] be uplifted. Specifically, David sought an uplift of the 40-hr limit imposed upon Item 11(a). Ordinarily, 11(a) is limited to 50 hours of a practitioner's time. Item 12 reduces that limit to 40 hours where the originating process is filed pursuant to the Act.
2. It was submitted on behalf of David that a 40-hr limit is inadequate in circumstances where there were multiple claimants, and where those overlapping claims increased the complexity of the matter. Attached to written submissions filed on David's behalf was a schedule setting out a calculation of the special costs sought, which totalled 60 hours of time charged at the maximum rate for a senior practitioner. Those calculations were supported by an unsworn document called 'Timesheet Listing', which appears to record the timesheet and costs incurred by David's solicitors between September 2021 and April 2023 - that is, from the mediation conference to the trial.
3. I observe that the calculations contained in Schedule 1 appear to rest on an assumption that David is entitled to recover the maximum allowable rate for a senior practitioner under the Scale, being $506/hr. That is notwithstanding that from September 2021 - July 2022, the 2020 scale applied, limiting the maximum recoverable rate of a senior practitioner to $495/hour. That is also notwithstanding that David's solicitors in fact only charged $450/hr. It is likely that the total amounts claimed in the submissions would need be reduced to account for these discrepancies, even if an uplift of the time limit were ordered.
4. In order to satisfy the court that special costs orders are justified, an applicant must ordinarily establish that by virtue of the proceedings' unusual difficulty, complexity or importance, the amount recoverable by a successful party under the relevant scales will be inadequate. I am unable in this case to be satisfied of those matters. It is not particularly unusual in proceedings of this kind that there will be multiple competing claims on an estate. Nor is it unusual that some of the parties in a matter such as this will be self-represented.
5. In the circumstances, I am not satisfied that the estate should bear a special costs order in respect of David's costs.
6. As the trial judge in this matter, I am satisfied that I have sufficient information to otherwise fix David's costs. To account for the minor calculation issues in respect of the recoverable hourly rate identified at [20], I would reduce the amount claimed to $64,500.

1. In all the circumstances I consider that the court's exercise of discretion in respect of costs should be as follows:

(a) The first defendant's costs should be paid as a testamentary expense.

(b) Julietta's share should be paid from the balance after the deduction in (a).

(c) David's costs fixed in the sum of $64,500 should be paid from the balance after the deductions in (a) and (b).

(d) One third of each party's costs of and associated with the directions hearings of 2 February 2023, 8 March 2023 and 22 March 2023, and the first day of trial of 18 April 2023, should be paid from Mariella's share. I am prepared to fix those costs on the production of evidence to satisfy me of those costs.

1. Each party should otherwise bear his or her own costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Letters of Administration, 17 July 2019.

[2] Affidavit of Mariella Boscolo sworn 26 October 2020 [12], [15].

[3] Orders Master Sanderson, 6 October 2020.

[4] This was the statutory entitlement as at the date of Mr Boscolo's death (and the granting of the Letters of Administration). The Act has since been amended to provide the surviving spouse with significantly increased entitlements. It was not contentious that the relevant statutory entitlement for the purposes of this application was the entitlement as at the date of death.

[5] Affidavit of Nicole Woodward affirmed 22 March 2023, "NTW-2".

[6] Affidavit of Nicole Woodward affirmed 22 March 2023 [10].

[8] MFI 2; ts, 21 April 2023, 320 - 321.

[10] Affidavit of Mariella Gina Boscolo sworn 26 October 2020 [14]; Exhibit A [13] - [14].

[11] Affidavit of Mariella Gina Boscolo sworn 26 October 2020 [15].

[12] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [36] - [37].

[14] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [40].

[16] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [51]; Exhibit M [21].

[22] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [11], [24], [29]; Affidavit of Julietta Christina Boscolo sworn 26 April 2022 [3].

[23] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [20].

[24] Exhibit A [15]; Exhibit B [4].

[48] ts, 18 April 2023, 186 - 188, 190.

[55] Exhibit E [32] - [35]; Exhibit H [2] - [12].

[58] Exhibit E [49]; Exhibit H [8].

[59] Exhibit E [49]; ts, 19 April 2023, 234.

[61] Exhibit H [13]; ts, 19 April 2023, 234, 239.

[64] Exhibit E [52]; ts, 19 April 2023, 237.

[65] ts, 19 April 2023, 250; Exhibit H [7] - [8].

[67] Exhibit J, "CB1", 5; ts, 18 April 2023, 241.

[68] Exhibit J, "CB1", 8; ts, 18 April 2023, 242.

[69] Exhibit J, "CB1", 18; ts, 18 April 2023, 243.

[70] Exhibit E, "CB-4"; Exhibit I [2(c)].

[73] Exhibit E, "CB-4"; Exhibit I [4].

[79] Exhibit E, 101; ts, 18 April 2023, 232.

[81] Exhibit H [19], "CB-11"; ts, 18 April 2023, 251.

[86] Exhibit H [25]; ts, 19 April 2023, 254.

[100] Exhibit N [13]; ts, 19 April 2023, 262 - 263.

[108] ts, 19 April 2023, 273 - 274, 280 - 281.

[119] Exhibit L [51]; ts, 19 April 2023, 292.

[123] Affidavit of Julietta Christina Boscolo sworn 26 April 2022.

[124] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [10].

[125] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [14].

[126] Affidavit of Julietta Christina Boscolo sworn 26 April 2022 [6].

[129] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [13].

[130] Affidavit of Julietta Christina Boscolo sworn 1 March 2023 [17].

[131] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [45]-[50].

[132] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [51], [55], [61] - [62].

[133] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [80] - [84].

[134] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [85].

[135] Affidavit of Karina Sylvia McDougall sworn 17 June 2022 [91].

[137] Affidavit of Adrian Boscolo sworn 28 April 2022 [8] - [14].

[139] Affidavit of Adrian Boscolo sworn 28 April 2022 [19], "M"; Exhibit L [30]-[31], "M"-"Q".

[140] Affidavit of Adrian Boscolo sworn 28 April 2022 [27] - [33].

[142] Re Russell [1970] QWN 22, 56.

[143] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [61] (Vigolo).

[144] See Poole v Barrow [2014] VSC 576 [22].

[146] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [67] - [69].

[147] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [70] - [71].

[148] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [74] - [76].

[149] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76.

[150] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [54] - [55].

[151] Grey v Harrison [1996] VSC 74; [1997] 2 VR 359, 366 - 367.

[152] Curnow v Curnow [2014] NSWSC 896 [109].

[153] Haskakis v Hatzopoulos [2015] NSWSC 1408 [96].

[154] Stone v Braun [2015] WASCA 103 [92].

[155] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [273].

[156] Finlay v Pereg [2022] NSWSC 32 [68] - [69].

[157] Goodchild v James (1994) 13 WAR 229, 240; Kilkenny v Kilkenny [2018] WASCA 197 [60(9)]; Musasghi v Gebremariam [2022] WASCA 37 [134].

[158] Re Allen; Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218, 221.

[159] Anderson v Teboneras [1990] VicRp 47; [1990] VR 527, 535.

[160] Goodchild v James (1994) 13 WAR 229, 239.

[161] Kilkenny v Kilkenny [2018] WASCA 197 [60](3)].

[164] Collicoat v McMillan [1999] 3 VR 803 [40].

[165] Kilkenny v Kilkenny [2018] WASCA 197 [56].

[166] Kilkenny v Kilkenny [2018] WASCA 197 [74(6)].

[167] Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 146 (Gibbs J).

[168] Re Bull; Bentley v Brennan [2006] VSC 113 [30] (Byrne J).

[169] Savic v Kim [2010] NSWSC 1401 [82].

[170] Re Jennings (dec'd) [1993] EWCA Civ 10; [1994] Ch 286, per Sir John May.

[171] Baird v National Mutual Trustees Ltd & Attorney General (Vic) (Supreme Court of Victoria, 22 November 1995, unreported, Harper J).

[172] Simon v Permanent Trustee Co Ltd [2005] NSWSC 223 [43].

[173] Cameron v Cameron [2009] SASC 27; Williamson v Williamson [2011] NSWSC 228 [125].

[174] Curran v Harvey [2012] NSWSC 276 [126].

[175] Foley v Ellis [2008] NSWCA 288 [102].

[176] Wheat v Wisbey [2013] NSWSC 537.

[177] McGeough v Blatchford [2019] WASC 454 [24].

[178] Finlay v Pereg [2022] NSWSC 32.

[179] Bondelmonte v Blanckensee [1989] WAR 305 (Bondelmonte).

[182] Triplett v Triplett (unreported, WASC, Library No 2359, 16 March 1990) (Triplett).

[184] Smith v Smith (1986) 161 CLR 217, 243 - 244.

[185] Daniels v Hall [No 2] [2014] WASC 272 (Daniels).

[188] Dean v Collins [No 2] [2015] WASCA 151 [34].

[189] Supreme and District Courts (Contentious Business) Determination 2020 (WA).