First plaintiff v Defendant

2 Barry never married and had no children. His will was over thirty years old and made no provision for Kim and Alex. It left his estate valued at some $2.1 million to two elderly living siblings and the children of one who had predeceased him.

3 Kim says she and Barry did not live together but were intimate, indeed engaged to be married, for nearly ten years until he died. Barry wanted to build a house for them. When Kim fell pregnant with Alex, he persuaded her to keep the child, although he was not the father. He promised to support Kim and help her care for Alex, which he did. Barry (who was about 28 years older than Kim) treated Alex like a son. Alex said Barry was the 'bestest dad in the whole world'. Kim supported Barry when he became ill and tragically died from cancer, before acting on his expressed intention to make a new will in their favour. Their case is supported by evidence from Kim's family, Barry's best friend Lionel Withers and diaries which Kim kept during the course or their relationship.

4 The application to the court was opposed by the executor of the estate, State Trustees Limited, supported by the beneficiaries. On its case, Kim and Barry were nothing more than friends. He loved Alex only as he loved all children and felt sorry for him. State Trustees called evidence from Barry's family, neighbours and friends and attacked the diaries as fraudulent. Finally, it contended that, even if Kim proved her relationship with Barry, they were not domestic partners. The relationship alleged between Kim, Alex and Barry was much less than those which had previously given rise to an order for provision under the legislation. Now to the will.

5 The one and only will made by Barry was dated 12 December 1975. He intended to make a new will with provision for Kim and Alex, but he did not do so before he died. He appointed his brothers Keith Samson and Neil Samson to be executors. Neil predeceased Barry. Keith authorised[1] State Trustees to apply for probate, which was granted on 2 July 2009.

6 Barry never married and had no children of his own. By his will, Barry made provision for his estate to be realised and for the residue to be invested after meeting expenses. He left the income from the residue to his mother Eva Samson during her lifetime. Eva predeceased Barry.

7 In that event, the will required the residue of the estate to be divided between Keith, Neil and Barry's other sibling, Margaret Schroeders (now Margaret Roberts), in equal shares. As Neil predeceased Barry, the will required his share to be shared equally between Neil's children who were living at the time of Barry's death, being Karen, Steven and Christine.

8 In the result, the beneficiaries under the will in equal one-third shares are Barry's brother Keith, his sister Margaret and his nephews and nieces Karen, Steven and Christine, who share equally the one-third share of their deceased father Neil.

9 Barry was aged 32 years when he made the will. He did not meet Kim until 1998/1999 when he was about 56, and Alex was born on 4 April 2002. The will made no provision for them and there was no codicil.

10 Kim and Alex have made application for proper maintenance and support under Part IV of the Administration and Probate Act.

11 Kim is aged 41 years and makes the application on her own behalf. Alex is aged 9 years and makes application through his litigation guardian, Lorraine Whitehead, who is Kim's mother and Alex's grandmother. Kim and Alex were separately represented in the proceeding. While their applications are connected in certain ways, they must each be separately determined.

12 The defendant to the application is State Trustees in its capacity as the executor of Barry's estate under the will. The beneficiaries have been given notice of the proceeding and most of them have given evidence.

13 In the hearing of the applications, the court received evidence by way of affidavits. On Kim and Alex's side, the affidavits were from Kim (dated 3 September 2009, 21 December 2009, two dated 17 May 2010 and 26 January 2010), Lorraine (4 December 2009 and 19 May 2010), Paul Whitehead (Kim's brother) (21 May 2010), Lisa Bedford (Kim's sister) (27 May 2010), Lionel Withers (Barry's best friend) (31 May 2010) and Hugh Sarjeant (an actuary) (3 November 2010). Kim, Lorraine, Lisa and Mr Sarjeant gave oral evidence and were cross-examined. Paul and Mr Withers did not.

14 On the defendant's side, the court received evidence by way of affidavits from Jacqueline Shaw (of State Trustees) (23 June 2009), Terence Gray (a close friend of Barry's) (18 January 2010), Margaret Roberts (Barry's sister) (22 January 2010), Maureen Sanders (a friend of Barry's) (25 January 2010), Raymond Schafer (a friend of Barry's) (29 January 2010), Peter Schroeders (Barry's nephew and the son of Margaret Roberts) (3 February 2010), Keith Samson (Barry's brother) (3 February 2010), Karen Samson (a niece of Barry's and a beneficiary) (21 April 2010), Christine Samson (Karen's sister, a niece of Barry's and a beneficiary) (27 April 2010), Roslyn Samson (the widow of Barry's brother Neil and Barry's sister-in-law) (27 April 2010), John Sanelli (of State Trustees) (1 June 2010), Michael Richards (of State Trustees) (28 October 2010 and 23 November 2010), Lee O'Shannassy (a good friend and neighbour of Barry's) (18 February 2010) and Steven Samson (Karen and Christine's brother, a nephew of Barry's and a beneficiary) (31 March 2010). Keith, Mr O'Shannassy and Mr Richards gave oral evidence and were cross examined. The other witnesses did not.

15 At the conclusion of the hearing, the value of the estate had not been finalised as two properties were yet to be sold. By agreement between the parties, the court was later informed that the property at Gap Road, Sunbury was sold at auction for $1.55 million and the property at Deverall Road, Sunbury was sold for $605,000. In light of the results of these pending auctions, the parties were all given leave to make further submissions in relation to the value of the estate. No party did. Taking account of those sales, the value of the estate in round figures is $2.1 million.

TESTATOR'S RESPONSIBILITY TO MAKE PROPER PROVISION

16 The power of the court to make an order for the proper maintenance and support of a person is specified in s 91(1) of the Administration and Probate Act, which provides:

Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

17 Under s 91(2), the court cannot make an order in favour of a person unless they make application for the order or someone makes application on their behalf. In the present case, Kim has made application for herself and Alex's grandmother Lorraine has made application on behalf of him.

18 Under s 91(3), the court must not make an order unless (as relevant in this case) it is of the opinion that the distribution of the estate effected by the deceased's will does not make adequate provision for the proper maintenance and support of the person. Barry left a will and it is the contention of Kim and Alex that it failed to make that provision.

19 In determining whether the deceased had a responsibility to make provision for a person, whether the will made adequate provision for the proper maintenance and support of a person and the amount of provision (if any) which should be ordered, s 91(4) requires the court to take account of the considerations specified in pars (e)(p).

20 State Trustees (supported by the beneficiaries) submit that Kim and Alex's claims fall way outside even the extreme margin of relationships which might, under the statutory provisions, found a responsibility to make provision. It is therefore necessary to examine the scope of the court's power to make an order and the principles which govern the exercise of that power.

21 The first family provision legislation enacted in Victoria was the Widows and Young Children Maintenance Act 1906 (Vic). As with similar legislation elsewhere in Australia,[2] Canada[3] and the United Kingdom,[4] the 'forerunner'[5] to the Victorian legislation was the Testators Family Maintenance Act 1900 (NZ). As originally enacted, it permitted only widows and young children to make application and then only if the deceased had died 0testate. Like the analogous legislation elsewhere,[6] our legislation has been amended over time to allow a wider range of persons to make application and also to permit the court to make orders when the deceased has died intestate. That gradual process of reform has been described thus:

At first the legislation was regarded as a revolutionary (and perhaps improper) inroad on the power of a person to dispose of property as he or she saw fit and courts tended to be cautious in exercising their jurisdiction. With the passing years it has become clear that the court's power extends far beyond providing for dependents who are destitute, and allows the court to make substantial distributions of assets in order to effectuate the moral duty of a testator to provide for any dependents.[7]

22 The current provisions of Part 4 of the Administration and Probate Act were introduced by Part 7 of the Wills Act 1997 (Vic). Before being amended, the provisions permitted an application for 'proper maintenance and support' to be made by 'the testator's widow widower or children' (s 91). There were no criteria specified for the exercise of the court's 'discretion' (s 91) to make an order for such provision, although authority of longstanding required the court to be guided by the moral claims of the applicant (see below).

23 Prior to the enactment of the 1997 amendments, the Standing Committee of Attorneys-General gave consideration to Australian succession law. In 1991, the committee approved a project for the development of uniform laws. In 1992, the Queensland Attorney-General requested the Queensland Law Reform Commission to coordinate that project. The commission produced an issues paper[8] and a report.[9] These gave extensive consideration to the question of the eligibility of persons to make application for provision and the basis upon which a court might make such an order.[10] The issues paper put clearly on the agenda for consideration the possibility of adopting a discretionary rather than a category-based system:

It may be possible, if simplification as well as consistency can be achieved, to reduce the number of classified groups of eligible applicants, including, for instance, step-children, grandchildren, parents and de factor spouses, if the focus of the legislation were redirected to the sorts of matters which the Courts should take into account in considering an application, rather than with possibly arid and arbitrary questions of formal eligibility to apply.[11]

24 By the time the commission came to publish its report in 1997, Victoria had already decided to adopt this approach. This followed the consideration of the issue by the Attorney-General's Law Reform Advisory Council. It appears the council did not publish a report on the subject. However, in 1994, it commissioned the noted academic, Dr Rosalind Atherton, to prepare a discussion paper on the desirability of such reform. It asked Dr Atherton to examine '(a) Eligibility; (b) The criteria to be applied when determining entitlements ...' and specify '(a) Possible reform options, indicating the policy objectives each option would support and the advantage and disadvantages of each option; and '(b) The researchers preferred proposals regarding these matters.' Dr Atherton produced a report addressing these issues.[12]

25 In her report, Dr Atherton extensively analyses the history, philosophy and options for reforming the Victorian family provision legislation. She placed some emphasis on identifying the intended function (or policy objective) of any new legislation. In doing so, she drew attention to the way in which the scheme would operate differently depending on whether it was based on the moral obligation of the testator as against the dependence of the applicant or preserving the property of the family dynasty. She said:

It is essential to decide upon the function in order to determine the width of the category of eligible applicants and the width of the court's jurisdiction to hear claims and make orders.[13]

26 Dr Atherton put forward various eligibility options depending on which function or policy objective was chosen by the legislature as being appropriate. If the legislation was to be based on the testator's moral obligation, she recommended that a general category of eligibility be adopted, for example 'any persons for whom the deceased may reasonably have been expected to make provision'.[14] In her report, she made a powerful case for a standard of eligibility which was based on that principle:

If the underlying premise of eligibility either by listing or by using a category such as dependency is really 'moral obligation', should not the premise be elevated into the stated base of eligibility? Would this address the 'over-inclusive' and 'under-inclusive' problem of a general category such as 'dependants'? Lists and dependence-based qualifications are limited in their ability to reach all relationships of moral obligation. If moral obligation is defined as the true basis of the legislation, both in terms of the operation of the jurisdiction and in arguments for extending the definition of eligibility, there is a difficulty where the legislative solutions only extend to dependents and only extend to a power to provide for maintenance. The first point goes to eligibility; the second to jurisdiction. Moral obligations may extend beyond relationships of dependency, which fuels an argument for defining eligibility more widely; moral obligation may require more than maintenance to fulfil it, which fuels an argument for expanding a basis for making awards. 'Testator's Family Maintenance', or even 'Family Provision', legislation is not, of course, defined now in terms of moral obligations as wide as this: even where the basis is defined in terms of moral obligation, it is only defined in terms of moral duty connected with dependency'.[15]

27 Dr Atherton also examined the various jurisdictions which listed criteria for consideration by the court in the assessment of applications, including England,[16] New South Wales[17] and Ontario.[18]

28 It is apparent from the second reading speech of the Attorney-General in relation to the amending legislation and the terms of the new provisions that Dr Atherton's analysis was extremely influential. The Attorney-General criticised the existing category-based provisions as being 'quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased's estate from making a claim.'[19] The Attorney-General described the amendments as being designed 'to enable a wider group of people to apply to the court for testator's family maintenance.'[20] She went on to say that the legislation did 'not include a list of eligible applicants for testator's family maintenance, instead leaving it to the court to determine on a case-by-case basis whether provision should be made for a particular applicant, which is a more equitable method of dealing with testator's family maintenance applications'.[21] She referred to the list of factors which the court was required to take into account 'in determining whether or not provisions should be made for a particular applicant'.[22] The legislation was passed with the support of the whole of the parliament.[23]

29 It can be seen, therefore, that the adoption of a discretionary system, and the repeal of the category-based system, of eligibility was a deliberate policy choice by the legislature which followed careful consideration of the options over a number of years and in the context of national process of reform.[24] In accordance with principles which I will now examine, the public policy objects of the legislation require the courts to give it a purposive interpretation.

30 The proper maintenance and support of people for whom the deceased has a responsibility to provide, especially but not only women and children, is a matter of great social and public importance. The testator family maintenance provisions give effect to that object by allowing the court to make an order where the deceased has failed in their responsibility to make proper provision in their will, as measured by contemporary community standards. Under authorities of long standing, the legislation must be applied and interpreted liberally and beneficially with that purpose in mind, and the imposition of restrictive implications is to be avoided.

31 That the legislation has those public policy purposes was the basis of the decision of the High Court in Lieberman v Morris[25] that no one could bargain away their right to claim proper provision.[26] In the words of Williams J, the 'scope and policy' of the legislation was 'to empower the court in the public interest to control for an important purpose the distribution of a testator's estate'.[27] Rich J explained the provisions were not just a re-enactment of the old laws of private inheritance,[28] but were designed to provide for the proper maintenance and support of persons without adequate provision who might 'become a charge on the community'.[29]

32 The High Court again considered the public policy purposes of the legislation in Barns v Barns.[30] Following Dillon v Public Trustee of New Zealand[31] and Lord Symons' dissent in Schaefer v Schuhmann,[32] the court[33] held a promise to make testamentary provision for a person was always subject to their statutory responsibility to make proper provision for others. In doing so, the court emphasised the 'public, as well as private, importance of the legislation'.[34] Gleeson J said:

The manifest purpose of the [legislation]... is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for, if the court in its discretion thinks that the distribution of the estate should be altered in their favour, even though the testator wishes by his will to bestow benefits on others, and even though he has framed his will as he contracted to do so.[35]

33 The applicable principle of interpretation is that, having those public policy purposes, the legislation is 'remedial in character and "must be so construed as to give the most complete remedy which the phraseology will permit"'.[36] In this court, Lowe J said in the case of In re Liston[37] that 'the courts, from the inception [have] adopted a liberal view'[38] of the interpretation of the legislation.[39] In Vigolo v Bostin,[40] Gleeson CJ said the courts 'have interpreted and applied the legislation by giving it a purposive construction'.[41] That approach to the interpretation of the legislation was again emphasised in Barns v Barns.[42] Gummow and Hayne JJ said 'the court should not be alert in placing a restricted construction upon the terms of such a law'.[43]

34 I would illustrate the operation of this principle of interpretation by reference to analogous legislation. For reasons of public policy, the Settled Land Act 1882 (UK) gave a beneficiary to which had been left a life tenancy the power to sell or lease the land, although the will conferred no such right. There were anti-avoidance provisions, which the court always interpreted according to the 'broad principle' of the legislation and 'in a spirit of wise and reasonable liberality'.[44] The courts have repeatedly emphasised the provisions of the legislation should not be interpreted 'with a mind imbued strongly with the prejudices of old doctrine, and by means of such prejudices to cut down and impair the utility of the legislation'.[45] Those remarks apply equally to the interpretation of the amended provisions of the Administration and Probate Act.

35 In the history of the law, absolute freedom of testamentary disposition has been the exception rather than the rule. In both common law and civil law systems, there have been limitations of greater or lesser extent on the power of a property owner to bequeath it to others by their will. The limitations have been examined in the authorities[46] and textbooks.[47] In the United Kingdom, the limitations were medieval in origin, feudal in nature and arcane in content; they were inconsistent with 'prevalent social doctrine [favouring] a minimum of government interference in economic relations and a maximum of freedom';[48] therefore they could not and did not survive the industrial revolution.

36 Accordingly, the limitations on the right of testamentary freedom were whittled away to virtually nothing by the mid-nineteenth century,[49] if not earlier.[50] In 1873, the absolute right to testamentary freedom could be stated with this absolute clarity:

[B]y the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partly, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued.[51]

37 So, what the old law was designed to limit, the new law expressly permitted: arbitrary disherison.[52] At common law, this still represents the law of Australia.[53]

38 By contrast with what was swept away, the modern law was at least coherent. Its content and its consequences could be understood, indeed only too well. Absolute freedom of testamentary disposition meant men were absolutely free to avoid their financial responsibilities to women and children.[54] As the leading text in the United Kingdom puts it, the freedom meant 'a married man may disinherit his wife and children and leave all his property to his mistress, or vice versa'.[55] Absolute freedom of testamentary disposition thus contained the seeds of its own destruction. As social conditions in the United Kingdom and elsewhere improved, the concern with individual rights which came with the industrial revolution begat the struggle for equal rights for women. When women achieved the suffrage, they used it successfully to attack the extreme principle which permitted such appalling social results. Parliaments passed family provision legislation which modified the principle of testamentary freedom, beginning with the Testators' Family Maintenance Act 1900 (NZ), which established a model which was that country's great legislative gift to the Commonwealth. The legislation, held Lord Simon in Schaefer v Schuhmann,[56] in a dissenting judgment which was later approved by the High Court,[57] ended 'an interval of unbridled testamentary licence'.[58]

39 But no jurisdiction,[59] and certainly not Victoria, has used family provision legislation to abolish freedom of testamentary disposition. That has been frequently emphasised by the High Court. In Pontifical Society for the Propagation of the Faith v Scales,[60] Dixon CJ said the discretion given to the court was not to 're-write the will of a testator'.[61] Freedom of testamentary disposition was not to have 'only a prima facie effect, the real dispositive power being vested in the court'.[62] In Vigolo v Bostin,[63] Gleeson CJ said the legislation 'preserved freedom of testamentary disposition, but subjected that freedom to a new qualification'.[64]

40 To the same effect in Victoria there is Grey v Harrison,[65] in which Callaway JA (Tadgell and Charles JJA agreeing) said 'we must not underestimate the significance, both practical and symbolic, of freedom of testation. It is one of the badges of society that has graduated from primitive conditions and a notable human right'.[66] That statement was made in reference to the pre-1997 legislation, but it was repeated by Callaway JA (Batt and Buchanan JJA agreeing) in Lee v Hearn[67] in reference to the current legislation, and has been oft-cited since.[68] It is therefore clear that, when deciding whether to make an order for provision under s 91(1), preserving the deceased's freedom of testamentary disposition is a significant discretionary consideration.[69]

41 If Callaway JA in Grey v Harrison[70] and Lee v Hearn[71] did not pause to elaborate on the source and content of this human right, neither did Lord Simon in Schaefer v Schuhmann[72] when his Lordship said the legislation was concerned with the 'basic human rights'[73] of people within the family. Taken together, however, these statements draw attention to the two fundamental interests which are at stake[74] and which are reconciled in the concept of the moral duty of the deceased to provide.

42 The most quoted jurisprudential source of the moral duty of the deceased to provide is Banks v Goodfellow.[75] Delivering the judgment of the court, Cockburn CJ described the right of testamentary freedom in these terms:

The law of every civilised people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass. Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given.[76]

43 From the earliest days, the legislation in New Zealand has been interpreted by reference to the concept of the moral duty. This is Edwards J in the case of In re Allardice:[77]

I think that the duty of the court in this respect may be thus best expressed: It is the duty of the Court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be. If the Court finds that the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the Court to make such an order as appears to be sufficient, but no more than sufficient, to repair it.

Later, in the case of In re Allen (deceased),[78] Salmond J gave what is now regarded as the classic formulation:

The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. If it is manifest that the testator has, whether consciously or inadvertently, failed to perform this duty, it is the right and duty of the Court to perform it for him by making such alterations in his testamentary dispositions as may be inadequate, but no more than adequate, for that purpose ...[79]

44 The concept of the testator's moral duty to provide is thus central to the legislative reconciliation of the testator's interest in testamentary autonomy and the public interest in the proper maintenance and support of people for whom the testator has a responsibility to provide.[80] In Australia, with rare exceptions, that is how the legislation in the various jurisdictions has been interpreted.

45 Doubt was thrown on that approach by the judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse,[81] who referred to the exceptions[82] and said the concept of moral duty may be a 'gloss on the statutory language'.[83]

46 This doubt has been resolved in Victoria by the decisions of the Court of Appeal in Blair v Blair,[84] Lee v Hearn[85] and Forsyth v Sinclair,[86] in which an extensive analysis of the authorities is to be found. These decisions in turn approved the decision of Ormiston J in Collicoat v McMillan[87] in which the function of the concept was authoratively described as follows:

In my opinion the expression 'moral claim' has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That 'moral obligation', as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[88]

47 In consequence, the standard which is implicit in the legislation is, in the words of Nettle JA in Blair v Blair,[89] 'whether and if so what provision a wise and just testator would have thought it his duty to make in the interests of the claimant'. Under the amended legislation, the scope of that duty determines not just the amount of the provision which must be made but the persons to whom the deceased has the responsibility to make the provision.

Persons for whom deceased had responsibility to make provision

48 Victoria does not have a category-based eligibility system. Any person 'at all'[90] for whom the deceased had a responsibility to make provision may apply for an order under s 91(1).[91] What was the underlying principle of provision has also become the principle of eligibility so that it applies equally and without discrimination in all cases where the responsibility to provide is established. The existence of 'any family or other relationship' between the deceased and the person, including its nature and length, is a mandatory relevant consideration (s 91(4)(e)). The word 'family' is not defined. 'Family' is not a term of art, 'that is, it is not a technical term with a specified meaning'.[92] The term must take its meaning from its context.[93] Here the context is legislation giving effect to the deceased's moral responsibility for providing proper maintenance and support for a person, which legislation is interpreted purposively and beneficially. The term 'family' would, in this legislation, therefore be given the 'flexible and wide'[94] interpretation which has been adopted in similar contexts, being an interpretation which has regard to contemporary social standards embracing relationships other than those which are based on consanguinity or affinity.[95] The wide meaning of 'family' may not be to the point, for it is to a 'family or other relationship' that the court must have regard. These are not limited to 'a relationship akin to a family or blood relationship'.[96] Indeed the applicant need not have 'a specified relationship with the deceased'[97] at all. That is because the 'amended provisions recognise that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for'.[98] The question always is whether the deceased has failed in their responsibility to make provision for the person and (if so) what provision (if any) should the court order. Describing the scheme as 'testator's family maintenance' is therefore a misnomer and 'testator's responsibility to provide' may now be more accurate.

49 In view of the issues in the present case, I note that indulgent behaviour by adults towards children, such as the loving kindness, practical and emotional support and gifts which grandparents typically give to grandchildren, have not themselves been regarded as sufficient to give rise to a responsibility to provide,[99] although combined with other considerations, such as contributions by the grandchildren to the estate and welfare of the grandparents, the closeness of the relationship will be relevant.[100] The friendship, support and courtesy which neighbours can show towards each other, even when it involves substantial self-sacrifice, has been held not to give rise to a responsibility to provide on the part of the recipient, in the absence of other considerations.[101]

50 It is clear that domestic partners (persons in a de facto marriage-like relationship, such as one coming within s 35(2) of the Relationship Act 2008 (Vic), and whether heterosexual or homosexual) come within the expression 'family or other relationship' in s 91(4)(e) and are persons for whom a responsibility to provide proper maintenance and support can arise under s 91(1).[102] On the other hand, as the present case will demonstrate, the responsibility to make provision is not confined to relationships of that nature nor to persons who were the deceased's dependants. The provision which is required is that which is adequate for the proper maintenance and support of the person.

Adequate provision for proper maintenance and support

51 The court must determine whether the will made 'adequate provision for the proper maintenance and support' (s 91(4)) of a person for whom the deceased 'had responsibility' to make that provision (s 91(1)).

52 The genesis of the words 'adequate provision for ... proper maintenance and support' is the Family Protection Act 1900 (NZ). Those words have never been interpreted to mean mere subsistence. For example, in the 'very important case'[103] of In re Allardice,[104] it was held by Stout CJ that the words meant 'such kind of maintenance as the widow during the life of her husband has been accustomed to'.[105]

53 The power make an order for provision is meant to cover a multifarious range of circumstances which cannot be categorised in advance. Determining what is adequate and proper must be approached on a case by case basis. 'No two cases will be exactly alike', held Fullagar J in the case of In re Sinnott.[106] It has been held that there 'are no fixed standards' and the court must consider the matter 'upon the basis of its own general knowledge and experience of current social conditions and standards'.[107] The task involves 'making a value judgment' or 'a sound discretionary judgment' and has been compared to assessing the quantum of damages for pain and suffering or for loss of amenities of life in personal injuries cases.[108]

54 The courts have frequently emphasised that the provision must be both 'adequate' and 'proper', that 'proper' is 'something different'[109] to 'adequate' and both words 'must be given their full value'.[110] The question is 'not merely adequacy or sufficiency but whether the distribution has measured up to the obligations which the statute imposes on a testator'.[111] The 'station in life' of the parties and their reasonable expectations must be considered, being those 'reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future'.[112] What is adequate and proper 'must always be relative'[113] and will depend on 'all the circumstances of the case'.[114] In Vigolo v Bostin,[115] Gleeson CJ said:

The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution.[116]

55 In the end, what is adequate and proper provision must be that which it was the moral responsibility of the deceased to provide from their estate, for the power of the court to make an order is conditioned upon and can only be exercised for the purpose of giving effect to that obligation.[117] Interference with the deceased's freedom of testamentary disposition is justified and authorised only in those circumstances and to that extent.[118] In forming a view about that critical matter, the considerations in s 91(4)(e)-(p) must be taken into account. The standard of maintenance and support must reflect prevailing community standards.

56 The first introduction of family provision legislation reflected community standards at the time, especially concerning the injustice done to widows and dependent children by the abuse of testamentary freedom by husbands and fathers.[119] Reflecting those standards, the categories of persons eligible to make application in Victoria were limited to widows and young dependent children. As community expectations changed in response to different social conditions, the eligibility categories were widened, typically to include de facto spouses and all children. In jurisdictions other than Victoria, such eligibility categories have been retained, albeit in significantly extended form. Prevailing community attitudes are reflected in the scope of the categories, the assessment of the moral obligation of the deceased[120] and what is 'adequate' and 'proper' for the maintenance and support of the person.[121]

57 In Victoria, the 1997 amendments enable all persons to make application, subject to the specified mandatory considerations. Prevailing community expectations remain critical to the scope of the moral duty to make provision and what is adequate for the proper maintenance and support of the person, as they were under the previous provisions. But prevailing community standards, as reflected in the responsibility of the deceased to make provision, now also determine the eligibility of the person to make application and the jurisdiction of the court to make an order.

58 As the moral responsibility of the deceased to make provision is defined in terms of 'prevailing community standards of what is right and appropriate',[122] it is of the very nature of that responsibility that it will 'change from time to time'.[123] It is not fixed or static and will 'evolve in accordance with the prevailing community views and attitudes'.[124]

59 In other Australian jurisdictions, the comparable legislation requires the court to consider two issues: whether the deceased left the person without adequate provision for their maintenance and support (the jurisdictional question) and whether the court should make an order for provision (the discretion question).[125]

60 As the first issue involves the deceased's moral responsibility to make provision (if any), the date at which this matter is considered is the date of the death of the deceased. All of the material facts and circumstances which existed at that date are considered, whether or not the deceased knew of them, as well as all of those facts and circumstances which were reasonably foreseeable at that time.[126]

61 As the second issue involves determining what (if any) provision the court should make in the exercise of its discretion for the proper maintenance and support of the person, this matter is considered at the date of making the order. All of the material facts and circumstances existing at that time are taken into account.[127]

62 In Victoria, the legislation requires the court to consider three issues: whether the deceased had responsibility to make provision, whether the provision (if any) was adequate for the proper maintenance and support of the person and (if not) what amount of provision (if any) should be ordered.[128]

63 The first and second issues which must be considered under the legislation in Victoria fall into the same category as the first issue which must be considered under the comparable legislation in the other jurisdictions. The third issue which must be considered under the legislation in Victoria is the same as the second issue which must be considered under the legislation in the other jurisdictions. Therefore, in Victoria the date for the consideration of the first and second issues is the date of the death of the deceased and the date for the consideration of the third issue is the date of the making of the order (if any).[129] That was the approach followed in the application of the previous legislation in Victoria, which was based on the two-stage process.[130]

64 Unless it is established that the court should exercise its power to make provision under s 91(1), the duty of the court is to give effect in law to the testamentary wishes of the deceased as expressed in their will.[131] However, in determining whether the deceased has failed to meet their responsibility to make adequate provision for the proper maintenance and support of the person, it may take into account under s 91(4)(p) the wishes of the deceased as expressed otherwise than in the will, including statements made by the deceased during their lifetime that the existing provision for the person was not adequate,[132] that they intended to make provision for the person[133] and (conversely) that the existing provision was adequate or they had no such intention.[134] The wishes of the deceased as so expressed are relevant but not a determinative consideration. The court must make an independent determination about whether the deceased failed to meet their responsibility to make the necessary provision, taking into account all of the considerations specified in s 91(4)(e)-(p). In that determination, the court may make an order for provision which is contrary to the wishes of the deceased, as expressed in the will or otherwise, because it was the responsibility of the deceased to do so.[135]

65 Section 96(1) of the Administration and Probate Act used to give the court a discretion to refuse to make an order for provision if, in the opinion of the court, 'the character or conduct of the applicant [was] such as ... to disentitle him or her to the benefit of any provision'. That discretion was removed by the repeal of that provision by the 1997 amendments.[136] Under the new provision, the court must have regard to 'the character and conduct of the applicant or any other person' (s 96(4)(o)). Notably, unlike the provision which was repealed, that paragraph 'is not confined to character or conduct disentitling'[137] and neither is it confined to the character or conduct of the applicant.

66 As the previous legislation gave effect to the objective moral responsibility of the deceased to make provision, the discretion to refuse an order on the grounds of disentitling conduct was not exercised by reference to the subjective opinion of the deceased about the person or their character or conduct. The accepted principal was that an order was refused on this basis only where 'the conduct of the applicant [was] such as would, in the eyes of the right thinking and reasonable member of the community, disentitle the applicant to relief'.[138]

67 The present legislation gives effect to the same moral responsibility. To the extent that s 91(4)(o) now requires the character or conduct of the person to be taken into account and this is relied upon as a negative consideration, the same approach must therefore be adopted. The character or conduct must be such as would provide objective justification for making provision less than what the responsibility of the deceased would otherwise have required. Accordingly, the objective responsibility of the deceased to make provision has not been regarded as reduced by the kind of disputes which commonly occur within families[139] or even by shameful or embarrassing misbehaviour for which there were significant exculpating circumstances.[140]

68 Section 91(4)(k) requires the court to take into account 'any contribution (not for adequate consideration) of the applicant ... to the welfare of the deceased or the family of the deceased'.

69 This is an important consideration. People commonly make significant contributions to the welfare of others, particularly in times of vulnerability and need due to ill health. Such contributions can be made selflessly, without any expectation of payment or other reward and on pain of the person making a significant sacrifice in terms of their own interests. The provision enables such contributions to be taken into account when determining the responsibility of the deceased to make provision, whether that responsibility has been discharged and what order (if any) should be made.

70 Contributions of this kind have long been recognised as being relevant to how the moral responsibility of the deceased to make provision may be measured. The conduct of the person towards the deceased or their other 'desserts' can give the person a 'special claim on the testator's bounty'.[141] Contributions of various kinds have been treated as falling into this category, including 'co-operation and support' in the conduct of the deceased's affairs[142] and giving to the deceased 'assistance worthy of recognition'.[143]

71 In applying s 91(4)(k), the same approach has been adopted. Where the person has provided 'support and care ... to the deceased during his or her lifetime',[144] that has been taken into account. Regularly cooking, cleaning and visiting have been regarded as 'a significant contribution to the welfare of the deceased'.[145] So has the role of being the 'principal carer and companion' of the deceased for five years, thus enabling her to live at home.[146]

72 Taking contributions into account is not a principle of reward and must not be allowed to degenerate into such a principle.[147] It has been held that 'good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court'.[148] That approach is applied to the consideration of evidence of contributions under s 91(4)(k).[149] In relation to such contributions, the task of the court is always to determine 'the existence and the nature of any duty owed by the testator to the plaintiff to make adequate provision for her proper maintenance and support', not to determine whether 'the testator was under an obligation to reward the plaintiff for the care and devotion which she gave to the testator'.[150]

73 Those are the principles applicable to the interpretation and application of the legislation. I turn now to consider the applications made by Kim and Alex, beginning with the factual controversy about the nature of the relationship between them and Barry.

74 The critical issue in the case concerns the nature of the relationship between Kim, Alex and Barry. It was the principle submission of Kim and on behalf of Alex that the relationship between them and Barry gave rise to a responsibility to make provision out of his estate for their proper maintenance and support. It was the principle submission of State Trustees that the relationship was not such as to give rise to that responsibility. To that issue I now turn.

75 Kim and Alex's separate applications must each be determined on their merits. I will begin with the relationship between Kim and Barry and then move to the relationship between Alex and Barry. I will finally consider the relationship between Kim, Alex and Barry.

76 Barry was aged 66 years when he died on 18 March 2009. The cause of his death was cancer. He was aged about 56 years when he met Kim in 1998/1999. The age gap between them was about 28 years. He was aged about 59 years when Alex was born in 2002. Kim agreed that Barry looked older than his years. The photographs in evidence bear that out. He was a television repair technician by occupation, although he had not worked for some years before he died. He never married and had no children. Before Kim, he had not previously had a relationship of the kind which he had with her.

77 Barry had apparently always lived alone. From when he met Kim up the date of his death, he did so at his five acre property in Gap Road, Sunbury. The house there was extremely untidy (although not squalid). There are photographs in evidence showing the state it was in. In the words of Barry's brother Keith, Barry 'lived in terrible circumstances ... he never cleaned up after himself'. As will be relevant when understanding why he never let Kim and Alex move in with him, Barry had become used to living that way. It was his individual lifestyle and he appeared to be comfortable with it. While his house was untidy, he was not. He maintained a good standard of dress and personal appearance. He took reasonable care of himself, drank little alcohol, did not smoke and appeared to live a healthy life until he took ill. He was fit and strong for his age. Barry had a range of mechanical interests and kept a lot of farming and general machinery at his property. He had an extensive workshop and shed.

78 Barry was regarded by all witnesses as having high standards of personal conduct. Kim said he 'was a man of high morals and high standards'. Kim's mother Lorraine said Barry 'was an absolute and thorough gentleman in his dealings with Kim, Alex and other members of the family'. She said he was 'a very moral and scrupulous man'. Barry's neighbour Lee O'Shannassy described him in exactly the same way.

79 All witnesses said Barry was 'very tight with money', to use the words of his sister-in-law Roslyn Samson (the widow of his late brother Neil). Kim described him as 'a frugal man'. Lorraine said Barry 'was frugal by nature'. On the evidence, he seldom bought anything and it was not in his nature to buy gifts. His brother Keith said he was 'a miser who rarely spent any money on personal comforts'. Barry's niece Karen Samson said he was 'extremely miserly'. Towards the end of his life, he was often short of money and would borrow from Kim, always paying it back with interest. He was asset rich and income poor, for he owned property and also farm machinery and workshop items, but had little actual money to spend. Sometimes he barely had enough money to feed himself.

80 The witnesses agreed Barry was not a physically demonstrative or openly affectionate man, at least not with adults. In Kim's words, he 'did not openly show affection in the company of others'. Despite that reticence, Kim's mother Lorraine said Kim and Barry would 'always kiss hello and goodbye'. He also wrote 'LOVE BARRY' on cards he gave to Kim.

81 Most witnesses said Barry was a private individual. Kim described him as 'a courteous gentleman who kept to himself'. She said 'it was not in his nature to celebrate' and he 'didn't like going to nightclubs' (although they did do that once for her thirtieth birthday). Lorraine agreed. She said 'they didn't celebrate much at all'. Barry's best friend Lionel Withers said 'Barry was a very private person'. His neighbour Lee O'Shannassy described him in exactly the same way. His brother Keith agreed Barry was a 'solitary sort of man' who had 'some problems with intimacy with people', even with him (Keith) and their sister Margaret Roberts (although not with Keith's partner Frieda). Keith said this was consistent with Barry not bragging about sexual exploits or telling Keith about Kim. Kim said Barry never went to Christmas lunch with her family.

82 Kim was born on 28 June 1970 and was aged 38 years when Barry died. She was aged about 28 years when she met Barry in 1998/1999. Alex was her only child, although she had miscarried twice when younger. She was aged 31 years when Alex was born.

83 Kim was a foster carer of children for two years in 2000-2002 and then later in 2004-2006 for another two years. After obtaining a first aid certificate and a certificate in aged care, in 2009 she became an aged carer. At the time of the hearing, she was a personal carer by occupation. Due to diabetes and a severe back injury (a prolapsed disc in her spine), she was not then in full-time work and her main source of income was the disability pension. At the time of the hearing, Kim was on anti-depressant medication. Before she met Barry, she had done some limited modelling work, describing this as 'a bit of catwalk'.

84 At the time of meeting Barry in 1998/1999, Kim was living at Batman Avenue, Sunbury. She sold it after getting pregnant with Alex in 2001. She then lived with her sister in Sunbury for some months. After that, she moved into rented premises in St Albans. She remained living in St Albans for some time but then moved in with her mother in Keilor Downs, where she was living at the time of the hearing.

85 Witnesses also described Kim as being 'a private person', as her sister Lisa Bedford put it. On Kim's evidence, she rarely went out, but visited Barry often. She said more than once in her evidence that she 'didn't have any friends'. As will be relevant, Kim did smoke and sometimes drank alcohol to excess.

86 Kim kept diaries during most of the course of her relationship with Barry. An important question arises about the authenticity of those diaries. Before dealing with that issue, I will briefly introduce Alex.

87 Alex is Kim's son who was born on 4 April 2002. He is aged 9 years and is a primary school student. He is in good health.

88 In her evidence, Kim identified Sam Scarfo as Alex's father. He was an old boyfriend of hers who remade contact at a vulnerable time in her life due to her father's death. Kim's mother Lorraine described those circumstances. Kim conceived Alex during a single sexual encounter with Mr Scarfo, which she described in evidence and which it is not necessary to go into here. She had no continuing relationship with Mr Scarfo.

89 Kim's diaries contained many entries of relevance, indeed crucial relevance, to issues in the case. State Trustees strongly challenged the authenticity of the diaries. In cross-examination of Kim and in closing submissions, it said the entries were false and had been made by Kim later in order to support her and Alex's application to the court.

90 The challenge and submissions were forensically legitimate and really invited by the form and content of the diaries. Much of the writing was in different script and executed with different pens, even in the case of some entries which were made on the same day. Moreover, counsel for State Trustees went through the diaries and discovered highly relevant entries which had not been relied on by Kim or on behalf of Alex in the affidavits which had been prepared by their legal representatives. This seemed only to reinforce the suspicions which were raised about the authenticity of the diaries.

91 However, having seen Kim survive a strenuous cross-examination and having considered the evidence carefully, I find the diaries were genuine. I have come to that conclusion after applying the rigorous standard of examination on which State Trustees insisted in relation to this question.

92 Kim had a bad memory and had been keeping diaries since childhood. Her evidence in that regard was supported by her mother Lorraine. The diaries relevant to this case were a continuation of that habit of a lifetime. The entries in the diaries fit into the objective chronology. On the whole of Kim's evidence, I do not find she was dishonest or an unreliable witness.

93 Kim's evidence was that she made truthful entries in the diaries on the relevant dates. I accept that evidence. State Trustees admitted it had engaged an expert document examiner to assess the diaries for their authenticity. It did not call that witness. I infer that was because the witness would not have assisted its case.[151]

94 As will be apparent, I consider the diary entries discovered by counsel for State Trustees to be of significant importance in the case in Kim and Alex's favour. It is unfortunate that such evidence should have been overlooked by Kim and Alex's legal representatives and omitted from the material filed on their behalf and for it to come to the court's attention later and then only due to the commendable industry and frankness of opposing counsel. I applaud counsel for State Trustees for the way in which they handled this issue. It was in the best ethical traditions of the Victorian Bar. But in what occurred and in the manner of it occurring I find strong support for Kim's honesty as a witness and her testimony that she had a bad memory and maintained an authentic diary. I make that finding after taking into account that Kim did not produce the original of the 2000, 2002 and 2005 diaries to State Trustees, which I have no reason to think would have taken the matter further.

95 That brings me to the commencement of the relationship between Kim and Barry.

96 According to Kim's evidence, which was supported by other witnesses on her side, she met Barry in 1998/1999. After attending at her then home at Batman Avenue, Sunbury to repair her television, they became friendly. Over time, they developed a sexual relationship.

97 In an affidavit, Kim said the sexual relationship with Barry began in 1998. In cross-examination she agreed this was incorrect. She said her sexual relationship with Barry began in late 1999 or early 2000 about 12 months after they met. They were just friends for about a year. The sexual relationship continued until about 2007, two years before Barry's death. Over the first couple of years it was more frequent. It became less frequent when Barry became ill. I do not consider this change in Kim's evidence to be significant. It was a correction to the chronology of the narrative. It does not affect my assessment of her credibility or the reliability of her evidence.

98 It was a feature of the evidence given by some of the beneficiaries and Barry's friends that Barry did not have, and would not have had, a sexual relationship with Kim.

99 Barry's close friend Terence Gray gave affidavit evidence of knowing no sexual relationship between Barry and a woman and of suspecting 'Barry never had sex with a woman'. However, he could 'say with confidence that [Barry] was heterosexual', as he once spoke of his attraction to a treating nurse. He said if Kim and Barry were in a sexual relationship, 'as one of his best friends, I would have known about it'. Another friend Raymond Schafer said his never saw 'any signs of physical affection between Barry and Kim'.

100 Barry's brother Keith gave affidavit evidence that he 'always assumed [Barry] was heterosexual' and Barry had told him in the past about being 'attracted to certain women'. But Keith said he had 'never known Barry to have ever had a sexual relationship with a woman' or 'to have a girlfriend'. If there was a sexual relationship between Kim and Barry, Keith said 'Barry would have told me'. But he agreed in cross-examination that Barry was not one to 'go around telling everyone he was having sex with a girl--woman, or had a girlfriend and so on'. Barry's niece Karen Samson said she had 'never known Barry to have an intimate relationship with either a male or female, although he had many friends'. His sister-in-law Roslyn Samson also said Barry 'never had an intimate relationship with either a woman or a man'.

101 This evidence was no doubt honestly given. I accept it as being truthful from the deponent's point of view. But I find on the whole of the evidence that Barry was not open with these and other witnesses about his sexual relationship with Kim. There are plausible personal reasons why.

102 There was a big age gap (28 years) which may have been embarrassing to Barry. He was always very moral and proper, which may have made that embarrassment more acute. It was not in his nature to be physically demonstrative or to discuss his intimate feelings, so it was hard for his family and friends to see what was really going on. Kim was certainly Barry's first girlfriend. That is difficult to explain and discuss for a man in his fifties. Kim drank and smoked, of which he did not approve. He expressed that disapproval to others, which was consistent with his upright nature. But he still had an intimate relationship with her, on the other evidence. To some of his family and friends, Barry seems to have criticised Kim for various reasons - being a bad mother, handling money badly, being likely to misuse money left to Alex. These criticisms are not borne out in the evidence. It is not unusual for a person to be unjustifiably critical of their partner in discussion with their own friends and family. He may have been letting off steam.

103 Of more significance is the evidence of him being tender and loving towards Kim, persuading her to have Alex, becoming engaged to marry her, giving her touching cards, supporting her in her pregnancy, being a father-figure to Alex and other matters I will come to. Kim was clearly not much liked by Barry's family and friends, so he may not have wanted to trust them with the truth about their sexual relationship. I find that Barry, for personal reasons, tended to keep his relationship with Kim (and Alex) and her family separate from his relationship with his family and friends, which helps to explain why they did not know about its sexual character, with one notable exception. That notable exception was Barry's best friend Lionel Withers, whose affidavit evidence was that 'Kim was his choice'.

104 It was Kim's evidence that, apart from becoming pregnant with Alex, she had not been intimately involved with anybody else after meeting Barry.

105 Kim's sister Lisa Bedford supported Kim's evidence in this regard. In her affidavit, she said 'Kim has not been intimately involved with any other person after she met Barry'. She clarified that in cross-examination to mean Kim had not been in any intimate 'long term relationship', although she agreed that was for Kim and not for her to know. She said her information about the relationship came largely from what Kim told her. In re-examination she said what she meant was that she had not known Kim to have any 'other boyfriends' from the time she met Barry until his death.

106 Kim was cross-examined heavily on whether she had a relationship with one Rob and one Ilia. There are entries in her diary which suggest that she did. Having read those entries and listened carefully to her evidence, I think she was probably flirting with them and was certainly enjoying their attention. But on this evidence I could not and do not find she had a sexual relationship with these men. I do not think it is necessary to go into this matter any further. Whatever the relationship she had with these individuals, it was episodic, ran its short course and was of a wholly lesser order than her relationship with Barry.

107 Notably, neither Rob, Ilia nor Alex's father Sam Scarfo showed any interest in Kim's pregnancy or in Alex. There are few references if any to Rob in Kim's diaries after 2001, and none to Ilia or Mr Scarfo. Barry came to dominate Kim's affections.

Kim becoming pregnant with Alex and Barry's response

108 Kim became pregnant with Alex in mid-2001. Barry was not the father and knew he was not the father. Kim was ill and distressed during the pregnancy. This was connected to two miscarriages she had before Alex, the death of her father and the physical effects of the pregnancy. She was thinking of having an abortion. Kim said in her evidence, which I accept, that Barry talked her out of having an abortion. He told Kim he would 'help her' and 'help her parent the child'. The evidence established that is exactly what he did.

109 Kim did not exaggerate Barry's role in her decision to keep the child. She was not asked and she did not say that without his persuasion she would not have done so. But what mother would say that with the child now aged nine years at her feet?

110 I find on the whole of the evidence that Barry was a significant influence in Kim's decision to have Alex. If it were not for Barry's representations, it is quite possible that Alex would not have been born. Kim was comforted by and relied on Barry's promise to help her and help her parent the child. If followed through, it meant she would not have to bring the child up on her own and the child would have a father-figure. Kim allowed herself to be persuaded to keep the child and thought that Barry would give her and the child the support which he promised. She took a risk, but judged the man well. Consistently with Barry's high moral standards, he felt a sense of responsibility towards her and Alex. Far from being burdened by that responsibility, the evidence showed he embraced it and did everything and more which that responsibility involved. In consequence, Alex thriving was the crowning achievement of Barry's life.

111 Barry supported Kim during her pregnancy from an early stage. Her diary entry for 29 August 2001 records the two attending an ultrasound examination, which Kim was asked about in oral evidence. She referred to the drawing of a little foetus in the diary and said (in the words used in the diary): 'Barry laughed at what the baby looked like (Alien) his eyes watered'. There is a photograph in evidence which Barry took of Kim when she was heavily pregnant. It is a side-on view of Kim looking at the photographer (Barry) smiling. The photograph is contemporaneous proof of the two sharing an intimate moment during Kim's pregnancy.

112 Alex was born on 4 April 2002. On the day of his birth, Barry was at the hospital with Kim's family.

113 Kim gave evidence that in about June 2002, shortly after Alex was born, Barry proposed marriage to her. She accepted that proposal and Barry gave her a gold diamond engagement ring. A photograph of it is in evidence. On Kim's evidence, the ring was lost after Barry cut if off Kim's swollen finger at her request. I accept Kim's account of the engagement and the course of events thereafter.

114 In Kim's words, Kim and Barry did not make a 'great deal' of the engagement. There was no dinner or party. That is unusual but not unprecedented and the evidence shows neither Kim nor Barry would celebrate very much at all.

115 Kim said she informed her family, of which there is some corroboration in the evidence. Although her sister Lisa said in oral evidence she was unaware of a formal engagement, Kim did tell her Barry had asked her to marry him. Kim's brother said Kim and Barry were 'very much like a married couple'. Barry did not tell his family or friends, but that was the general pattern when it came to his relationship with Kim.

116 After the engagement, life went on for Kim and Barry and they did not get married. As Kim said, they 'just didn't get around to it'. That phenomenon is not unknown in human affairs. As was established by the course of later events, it was always Barry's intention to marry Kim, and indeed to adopt Alex. The diary entries discovered by counsel for State Trustees revealed that, shortly before he died, Barry again 'proposed' to Kim. I put that word in quotation marks because the couple were already engaged and it was really a proposal to act on the earlier engagement. Kim's oral evidence on that question was initially unclear, but she clarified it perfectly well.

117 On Kim's evidence, which was only made more convincing by her answers in cross-examination, Barry made the second proposal on 25 January 2009. This was six weeks before he died. A diary entry for that day records 'Barry asked me to marry him so he could adopt Alex, Alex was so happy'. Alex was present when Barry made this proposal to Kim, which itself is of some significance. The conversation occurred at Barry's home in Gap Road, Sunbury. The entry is a little misleading in a way that is unfavourable to Kim. On the whole of the evidence, I find Barry made this second proposal not only so he could adopt Alex but because he loved Kim.

118 Kim did not agree to marry Barry at this time. She said she was concerned about him adopting Alex. They 'were close, they loved each other, but it was a big decision to make'. Indeed it was. Kim said she did not think it would be good for Alex for her to accept a proposal made by Barry on his deathbed'. She said 'getting married, getting adopted and then having him die. It was hard enough having him die for Alex as it was'. She said she wasn't thinking about Barry's money or a legal claim at this time.

119 It would have been extremely difficult for Kim to refuse to get married at that time. It would have been strongly in her material interests to do so. But, as she said, she was not thinking of her material interests. Refusing Barry's proposal may have hurt Barry's feelings at a time of vulnerability, which she would have wanted to avoid. But she had to think, and she did think, of what was right for Alex. I found her evidence of this second proposal completely convincing and it helped to confirm my assessment of her as a credible and truthful witness.

120 Barry kept a framed photograph of Kim at his home in full public view on the entry table. It was taken (according to Kim) during her brief modelling days. It is a photograph of Kim as an attractive young woman.

121 Barry's best friend Lionel Withers said the picture 'was visible to all that entered the front of Barry's house'. He said it 'was the first thing I noticed when I came into Barry's house'. He clearly understood what it meant.

122 Barry's brother Keith agreed the photograph was in 'a prominent position in the house'. But he did not think it was of anyone special. Barry's friend and neighbour Lee O'Shannassy said it 'was just another photograph in the hall' and likewise did not think much of it. They clearly did not understand what it meant either.

123 I find the photograph was significant evidence of the close personal relationship between Kim and Barry. He deliberately displayed it in a prominent position in the home knowing that visitors could see it. It was a photograph of Kim at her attractive best and he liked to see and present her in that way. Having seen the photograph and considered the evidence, only those failing to look beyond their nose could fail to appreciate that this was a photograph of Barry's female companion (with whom he was having a sexual relationship).

124 Over the course of their relationship, Barry gave Kim a number of cards. They were very touching and affectionate, even 'mushy', as Barry wrote on one. For example, there were cards wishing Kim a happy thirtieth and thirty-first birthday, and Christmas cards, with personal messages. All were written in capital letters, which was simply Barry's way of writing. The messages mostly related to things happening in Kim's life at the time.

125 In one Christmas card, Barry describes Kim and Alex as his 'two favourite people'. Other cards mention Alex. Some of the cards are signed 'BARRY' and others 'BARRY SAMSON'. Using his full name was, on the evidence, something Barry sometimes did. Of more significant is his handwritten message on two of the cards, which read 'LOVE BARRY'.

126 In one of the birthday cards which Barry gave to Kim he wrote:

THEY ARE ONLY YEARS AND WHO IS COUNTING THEM (WELL ME!) LUCKY ALEX REMINDED ME HAVE A NICE DAY KIM LOVE BARRY

This message shows a great deal of 'family' intimacy between Barry, Kim and Alex. It is not just what Barry wrote about the age gap between him and Kim, which was to make light of a sensitive subject, one even more so on birthdays. It is not only that Barry wrote 'LOVE BARRY', although I do not overlook the significance of that. It is that Alex reminded Barry about his mother's birthday and Barry responded to the reminder in the way that he did. This speaks volumes about the close personal relationship between the three of them. It is the sort of thing that happens between two adults and a child in an intimate and trusting family. Further, Barry was regarded as a private person who was not given openly to expressing his emotions or affection for others. On this and the other evidence, he could be very different with Kim and Alex. There is simply no evidence of anything like this level of intimacy between Barry and other people, whether family or friends.

127 Kim and Barry did not have joint finances. They had no joint bank accounts or credit cards. They did not have a joint medical benefits card. They did not mix their cash in any way. But as they did not live together and Alex was dependant on Kim and not Barry, there was no practical reason for their finances to be joined. They did, however, lend each other money from time to time. He always repaid his loans from her, with interest. Kim and Barry were not financially dependant on each other.

128 Kim and Barry never lived together. During the course of their relationship from about 1999 until Barry died in 2009, Kim lived in her own home and after Alex was born in 2002 with her sister or mother, and always in Sunbury or St Albans within driving distance of Barry's home in Sunbury.

129 Kim would stay at Barry's home from time to time, and had some of her clothes there. I am not able to say whether the clothes included underwear. Considering the evidence as a whole, it does not matter. Barry visited Kim at her home but did not stay overnight.

130 On the evidence, Barry did not want Kim and Alex to live with him at his home at Gap Road, Sunbury. He told his friend Maureen Sanders that Kim was asking to live with him in the last year of his life but he refused. He said the same thing to his friend Raymond Schafer and also his brother Keith. To his close friend Terence Gray he said there was 'no way' he would allow Kim to become his live-in carer at that time. To others, such as his nephew Peter Schroeders, he made no mention of Kim moving in with him.

131 It is on this and the other evidence, and despite the evidence about Barry wanting to build a 'dream home' for him and Kim, that I find he did not want Kim and Alex to live with him at his home in Gap Road, Sunbury. However, this is not a reason to reject Kim's evidence about the nature of their relationship. Barry's unwillingness to have Kim and Alex live with him at Gap Road, Sunbury was more likely due to the state in which he kept the house, which was no place to bring up a child, and to the change of lifestyle, and the loss of privacy and independence, which cohabitation would have involved. An added complication was that, when he became ill, he was too frail to have Kim and Alex with him too often. So it was that his friend Maureen Sanders said Barry told her 'he could not put up with all the noise and running around of the little boy'.

132 Turning to the proposed new house at Deverall Road, Sunbury, Kim gave evidence that Barry had plans to build a house for them on this property. He told her that he, she and Alex would be living in it together. They would drive around looking at different properties, cut out pictures of houses in newspapers and discuss different types of rooms, where the rooms would go and a swimming pool. Kim's evidence was that Barry said he wanted a veranda all around the house, and bay windows. He drew up a lot of plans, and Kim drew up a couple also. Barry said the house was not to be built until his Gap Road, Sunbury property was rezoned, which had not happened when he died.

133 Kim's evidence is supported by the entry in her diary for 29 January 2001, which reads: 'Barry and I went for a drive getting ideas for the house we want to build in Gisborne'. There are no other diary entries in respect of such visit. I do not find that this one entry was false. I think it was genuine, as were all the diary entries.

134 Kim's evidence was supported by that of her mother Lorraine. In her affidavit, she said both Kim and Barry had told her it was their intention to build a house on the property. In her oral evidence, she said Barry referred to the house as his 'dream home' and 'Kim helped him with plans'.

135 Barry's friend Raymond Schafer agreed that Barry intended to build a house at Deverall Road, Sunbury after his Gap Road, Sunbury property was rezoned. But Barry never mentioned Kim in connection with that plan. The evidence of his close friend Terence Gray, his brother Keith, his good friend and neighbour Lee O'Shannassy and his niece Karen Samson was to the same effect. Barry's friend Peter Schroeders said he never mentioned he was intending to build a house for he and Kim. But it is clear from the whole of the evidence that Barry did not share much, and in some cases none, of the true nature of his relationship with Kim and Alex with his friends and family, with the exception of Lionel Withers.

136 On the whole of the evidence, I find it was Barry's intention to build a 'dream home' for him, Kim and Alex on his property at Deverall Road, Sunbury. This was an intention in the nature of a hope for the future rather than a definite plan. Whether he would have acted, or been capable of acting, on this intention cannot be known because he died. I have my doubts because it would have required a radical change in lifestyle from living as a bachelor in 'terrible circumstances' (to use the words of his brother Keith) in an established home to living with a woman and a child in a new home. Barry would have found that transition very difficult at his age.

137 It was suggested to Kim in cross-examination that, in a court affidavit and a death notice, she had tried to create the impression that Barry was Alex's father. Kim rejected that strongly and I accept her evidence in that regard. The language in these documents could have been better expressed, as Kim conceded, but Kim never represented Barry to be Alex's father and Barry knew he was not. I infer from the evidence that Kim thought the family knew Barry was not Alex's father. It would have been foolhardy for her to suggest otherwise in the death notice or this proceeding and she did not intend to do so.

138 On the evidence, Kim drank to a state of drunkenness on occasions. She admitted doing so in her oral evidence. Her diaries record a number of binge drinking episodes with friends in which she got 'roaring drunk' and had hangovers the next day.

139 There is also evidence Barry disapproved of Kim's drinking and believed she telephoned him in a drunken state at night on occasions.

140 Kim denied having a drinking problem. She referred to the several government clearances she had to obtain for her work as an aged carer. She denied ever telephoning Barry in a drunken state. She said Barry had never complained to her about her drinking. He had told her 'he was proud of the mother I was'. I find Barry would have disapproved of Kim's occasional binge drinking, but it did not prevent them from having the intimate relationship which is established by the other evidence.

141 Kim admitted to smoking and that Barry 'was not fond of smokers'. She said she was not a heavy smoker and only smoked outside. Although this would have annoyed Barry, on the whole of the evidence it too did not prevent him from forming a close personal relationship with Kim and Alex. Accepting that Barry said to his nephew Peter Schroeder and others that 'anyone who smokes or has smoked is out of my will', I do not see this as indicative of his feelings towards or relationship with Kim or his intentions in terms of his will (on that subject, see further below).

142 It was Kim's evidence that Barry maintained her car and did chores around her home, such as mowing. She said he often gave her money when she was in financial difficulty, such as when paying the rent. He would never accept repayment, although he always repaid her loans to him (with interest). Kim took care of Barry's dog when he went to his brother's funeral in Queensland.

143 Kim's brother Paul said Barry installed security outdoor lights at her home and a ramp for her arthritic dog, and regularly did other home improvement tasks. Her sister Lisa's evidence was to the same effect.

144 Kim said Barry bought presents for her (as he did for Alex). The last present he bought for her was a Holden Commodore motor vehicle. For their relationship, there were obvious reasons why it was important for Kim to have that vehicle.

145 Kim and Barry rarely went out, together or with friends. As I have found, Kim and most of the other witnesses described Barry as a quiet, private person. They did, however, go to the beach from time to time, and attend the house of Barry's neighbour Lee O'Shannassy. Kim had few friends of her own whom they could visit.

146 Kim and Barry (and Alex) did occasionally go out publicly together. For example, in 2004 they went twice to the Royal Melbourne Show, which Kim recorded in her diary. She said 'it was good'. Kim's mother Lorraine described going to a mini-railway with Kim, Barry and Alex. There is a picture of the event in evidence of Barry and Alex on a miniature train and Barry looking watchfully on while Alex stood in the cabin of a larger train. Lorraine said Kim and Barry did not hold hands at that event but 'they sat close together'.

147 On the evidence, there were significant contact between Barry and Kim's family. Kim's mother Lorraine said it was not long after Kim met Barry that they became friends and he was a constant visitor at Kim's house in Sunbury. He was also a constant visitor at her next house in Keilor Downs. Lorraine said they 'became a couple, spending a great deal of time in each other's company'. Barry never forgot Kim or Alex's birthday. However, Barry did not have Christmas lunch with Kim and her family.

148 It was Kim's evidence, which I accept, that after a couple of years Barry met her father and brother Paul. Her father is now deceased.

149 Paul gave evidence. He said Barry was a regular visitor to Kim's homes. They 'did many things together and constantly occupied each other's time'. He said they 'were clearly for all intents and purposes an item so to speak and were always together usually with Alex very much like a married couple'.

150 Kim's sister Lisa lived near Barry. She said Kim would drop in on her when she visited Barry. After Alex was born, Kim stayed with her for a few months. She said 'Barry and Kim were even closer than before'. She said 'they appeared to me to be a family' and she wondered why they just did not live together.

151 Lisa's evidence was that Kim had lunch with her family for the last two Christmases before Barry died. On both occasions Kim took a cold plate of food to Barry's place to have for dinner with him. She said 'Barry and Kim were a couple that supported each other'.

152 Lionel Withers was Barry's best friend. His evidence is highly significant.

153 Mr Withers had known Barry since they were young children. He knew Barry's brother Keith, his sister Margaret and his late brother Neil. He kept in regular contact with Barry. After Barry was diagnosed with cancer, he visited him on most weekends. He met Kim at Barry's place before that.

154 When Mr Withers visited Barry, he would ask what, if any, plans Barry had for the week. In reply Barry would often just tell him that 'Kim is coming over'. He said Barry was a 'very private person'. He never questioned or had reason to question Barry's relationship with Kim. He described Kim as 'his choice'. Mr Withers appears to have been the only friend whom Barry trusted enough to reveal the true nature of his relationship with Kim.

155 On the evidence, Kim and Barry's main point of common contact and shared experience was Alex. I will deal with that subject later.

156 It is clear from the evidence that Barry's family and most of his friends, with the notable exception of his best friend Lionel Withers, were not aware of the nature of the relationship between him and Kim and Alex.

157 Barry's brother Keith Samson had a good and close relationship with Barry. They grew up together and had a lot to do with each other over their adult years. In his affidavit, Keith said Barry never mentioned talking Kim out of having an abortion. Keith had no knowledge of the payments made by Barry for Alex's benefit. Barry had told him about loans made by him to Kim (which he worried would not be repaid) and Kim to him (which he repaid with interest). Towards the end of his life, Barry told him Kim was a 'drunkard', a 'bad mother' and a 'heavy smoker'. I have already referred to Keith's evidence about Barry's relationship with women and not bragging about his sexual relationships and will refer to his evidence about Kim cleaning for Barry.

158 In his oral evidence, Keith said he saw Kim with Alex at Barry's home on three or four occasions. He first saw her there in about 2005. Barry started mentioning Kim about three or four years before he died. He said Barry told him about Kim's brother Paul telling Kim to marry Barry for his money. I have found Kim did not marry Barry despite having the opportunity. I will refer later to what Keith said about Barry's relationship with Alex and finding Barry's will. I have already referred to Keith's evidence about Barry having problems with intimacy with people. Of the photograph of Kim in the entry to Barry's house, he said it had been there for three to five years. He never thought to discuss it with Barry.

159 Barry's sister Margaret Roberts is aged about 72 years and lives alone in Mt Rowan, Victoria. She says she was close to her brother and spoke to him often by telephone. He helped her in various ways over a period of many decades. In the telephone calls, Barry never mentioned Kim or any plans with her and only occasionally spoke of Alex. She last saw Barry in June 2008.

160 Barry's sister-in-law Roslyn Samson would speak to Barry at least weekly from her home in Queensland. Barry never mentioned having a female friend and only mentioned Kim in the context of visits by Alex.

161 Maureen Sanders was a friend of Barry's. She said he told her he did not want Kim to move in with him. Barry told her he felt sorry for Alex because he did not have a father. He was pleased to see him when Kim brought him over. But when he was ill he was annoyed when Kim kept turning up with Alex. He found the noise and activity intolerable.

162 Mrs Sanders disputed the evidence of Kim's mother Lorraine that Barry would spend Christmas lunch with her, Kim and Alex. She said that he spent every Christmas lunch from 2002 to 2007 with her family. Barry would arrive at about noon and leave at about 4 or 5 pm, saying he was going home to sleep off the lunch. He did not mention that he was going to see Kim or Alex after lunch. I accept this evidence.

163 Terence Gray described himself as Barry's 'close friend' over many years. They both had been television repair technicians, had common interests and kept in touch regularly. Mr Gray's children called Barry 'uncle Barry'. Mr Gray delivered a eulogy at Barry's funeral, which I infer was organised by Barry's family.

164 Mr Gray's 'impression' was that Barry 'did not like Kim'. Peter Schroeders was Alex's nephew and he too said he 'got the impression' that Barry 'disliked Kim'. Whatever Mr Gray's and Peter's impression, on the whole of the evidence I find Barry loved Kim. I accept Mr Gray's evidence that Barry criticised Kim in various ways - how she mothered Alex, her drinking and smoking, not managing money well etc. Barry's friend Raymond Schafer gave similar evidence of such criticisms. On the whole of the evidence, this was not indicative of Barry's true feelings for Kim and the nature of their relationship. That Barry was 'repulsed', as Mr Gray put it, by the idea of Kim living with him I can only regard as Mr Gray's way of seeing things. I have given an explanation for Barry's opposition to that happening which I consider to be more plausible and objectively expressed. Mr Gray said that if Barry paid fees and expenses on behalf of Alex, he would have been told about it. Kim and her mother Lorraine's evidence establish that Barry made these payments. I cannot say why Mr Gray was not told about the payments, but it confirms my view that, for whatever reasons, Barry was quite selective in what he told friends like Mr Gray.

165 Turning to the evidence of Raymond Schafer, he is the father of Sandra O'Shannassy (Lee O'Shannassy's wife and Barry's neighbour). They had common interests, lent each other tools and talked about various projects. He visited Barry at weekends, often for many hours. After Barry became ill, Mr Schafer took him to medical appointments and lent him small amounts of money. Mr Schafer met Kim and Alex, and Kim's mother Lorraine, at Barry's home in 2005. Over the next two years, he met Kim and Alex there intermittently. After that, he met them there more regularly. He never saw Kim and Barry alone together. I have already referred to Mr Schafer's evidence about Barry not wanting Kim to move in with him and their lack of public displays of affection. I will refer to his evidence about Barry's will and relationship with Alex and of Kim cleaning Barry's home.

166 Returning to Peter Schroeders, he was the son of Margaret Roberts, Barry's sister. He knew Barry all his life and stayed at his home on several occasions. When Peter asked who Kim was, Barry said 'just a lady' and 'no one'. Barry always referred to Kim as Alex's mother. I have already referred to the impression he formed. I find that, for whatever reason, Barry was not frank with Peter about the nature of his relationship with Kim.

167 Lee O'Shannassy was Barry's good friend and neighbour. He visited him four or five times each week and for a meal most weekends. They had a common interest in cars and mechanical equipment. He also never saw Kim and Barry alone together.

168 On this evidence, most of Barry's family and friends had some knowledge of Kim and Alex's relationship with Barry. That provides some corroboration of the evidence presented on Kim and Alex's behalf about their relationship with Barry. But most of Barry's family and friends were not aware of the true nature of that relationship and their evidence is to be understood in that light. Their lack of awareness was mainly due to Barry being selective about the information he shared with them about those relationships. There were plausible personal reasons why he adopted that course. Whatever the reasons, the facts were that his relationship with Kim and Alex was very deep, as described below.

169 The evidence was in dispute about what Kim did for Barry when he became ill.

170 Kim's evidence was that she visited him every second day, cooked and cleaned for him and did household chores as well. She telephoned him on the days she did not visit. It was she, and no-one else, who changed his spoilt sheets when he lost control of his bladder and had to wear a colostomy bag.

171 Kim agreed there were limitations in what she could do for Barry. She had diabetes and a bad back and could not perform heavy cleaning tasks. She said she did basic cleaning - 'vacuuming ... dishes, clean his benches ... wash his clothes'. She said she did what she could to make the house liveable for Barry.

172 Kim's mother Lorraine supported Kim's evidence in this regard. Lorraine said Kim spent a great deal of time looking after Barry, cooking for him, taking him to the hospital and the doctor, and washing his clothes. She witnessed her telephoning him at night when she was not with him. Kim's brother Paul gave evidence to the same effect, as did her sister Lisa.

173 There was evidence that Keith Samson's partner Frieda, and also Sandra O'Shannassy regularly cooked and cleaned for Barry. The family and friends of Barry called on behalf of State Trustees denied his home was cleaned by Kim and said it was usually untidy. Sandra's father Raymond Schafer was a friend of Barry's and visited him when he was unwell. He said he saw very little evidence of the house being regularly cleaned.

174 Barry's brother Keith was a frequent visitor and was never told by Barry that Kim did housework. He said his partner Frieda and Sandra O'Shannassy cleaned Barry's home and cooked for him in the two years leading up to his death. It was Keith who said his brother Barry 'lived in terrible circumstances'.

175 Sandra's husband Lee O'Shannassy (they were Barry's nearest neighbours) never saw Kim cook or help Barry and said only Sandra and Frieda did so. However, Barry and Mr O'Shannassy had a falling out and did not see each other as much towards the end.

176 On the evidence, Barry seems not to have told anyone in his family or any of his friends that Kim was helping him with cleaning and cooking. But then he told them very little of her generally.

177 My finding on the evidence is that Kim, within the limits of her physical capacity and the state of Barry's home, did a considerable amount of cooking, cleaning and personal caring for him and the family witnesses have under-estimated her contribution in this regard.

178 It was Kim's evidence that Barry intended to make a new will specifying her and Alex as beneficiaries. On his request before he became ill, she bought him a will kit which he kept but did not use. She did not understand why Barry did not write a new will. She thought he had done so before he died and only found out afterwards that he had not.

179 Barry's brother Keith recalled Kim saying she was trying to persuade Barry to buy a will kit. He described finding Barry's old will and the will kit in the cupboard in his bedroom after he died.

180 Kim's evidence was that Barry told her he wanted to set up a trust for Alex, leave some money for her support and also to leave money for charity. He said a trust was a better idea than a lump sum because it could not be wasted. The trust was to ensure Alex got a proper education, a car on his eighteenth birthday and a start in buying is first home. Barry expressed shock to Kim when his friend Dorothea died leaving her estate to him. He had not seen her for some years.

181 Kim's mother Lorraine supported this evidence. She said Barry was making a will in which Alex would be provided for because Barry wanted to ensure Alex received a good education and had a good start in life.

182 Barry told his friend Maureen Sanders he was thinking of changing his will. He named Alex as one of the children he was thinking of looking after. He said any money he left would have to be 'tied up' so Kim didn't get it. He did not specify an amount. He also told his friend Raymond Schafer he was thinking of leaving a legacy to Alex but was concerned Kim would get access to it even if he left it on trust.

183 On the other hand, Barry's close friend Terence Gray denied Barry was intending to make a new will. Mr Gray's affidavit evidence was that Barry never mentioned that he wanted Kim or Alex to be beneficiaries. But Barry did not share with Mr Gray the true nature of his relationship with Kim

184 I accept Kim's evidence on this subject. It was consistent and withstood a vigorous cross-examination. Her version found some support in the other evidence, even in that coming from State Trustees' witnesses. Her account was consistent with the physical evidence of the will kit which she obtained for Barry at his request and which was found in his bedroom when he died. I find Barry intended to change his will to make Kim and Alex beneficiaries but he did not act on that intention before he died.

185 On the evidence I have here examined, Kim was Barry's close personal companion and sexual partner (until he became ill). Kim was the first and only relationship of that kind in Barry's life, which was all the more significant because he was in his fifties when he formed this attachment. Their relationship of that nature was of a length of nearly ten years.

186 Alex was born after Barry persuaded Kim not to have an abortion. Barry made a commitment to help Kim and help her care for Alex. She trusted him to do so and had the child. Barry fulfilled his commitment until he died. Kim remained legally responsible for Alex as his mother and was his primary carer, but Barry supported her and him in substantial ways, emotionally, financially and practically. He was a father-figure to Alex and loved him like a son. He loved Kim not just as Alex's mother but for who she was personally. Likewise Kim loved Barry not just as a father-figure for Alex but for who he was personally.

187 Kim and Barry supported each other from their separate but close-by homes until Barry became ill. Then Kim supported Barry with cooking, cleaning and personal care, within the limits of her physical capacity and the state of his house.

188 Kim and Barry were not a de facto married couple in the legal sense, under s 35(2) the Relationship Act 2008 (Vic) or otherwise. That was because they never lived together, did not have joint finances, did not share full responsibility for raising Alex, were not dependant on each other and did not present in that way to Barry's friends and family.

189 Alex was the main focus of Kim and Barry's relationship but it extended beyond raising Alex. They loved each other and after Alex's birth had a mutually supportive and exclusive relationship. They were engaged to be married and would have married but for Barry's untimely death.

190 Barry intended to change his old will to make provision for Kim (and Alex), but he died of cancer before doing so.

191 I have already found Kim did not have an abortion and gave birth to Alex after Barry told her he would look after her and Alex. On the evidence, that is what he did.

192 It was Kim's evidence, which I accept, that Barry paid for some of the fees for Alex's kindergarten, school books, jujitsu and gymnasium lessons and swimming lessons. This evidence was supported by Kim's mother's testimony, which I will come to. However, Barry was not maintaining Alex. Nor was he responsible for his day to day care, which was undertaken by Kim. Alex was dependant on Kim, not Barry.

193 Kim gave evidence that Barry made markings on a doorway at his home recording Alex's growth. He began doing so when Alex was aged about 18 months and continued doing so until six months before he died. There were nine or ten marks. The marks were apparent for people to see. Lorraine's evidence was to the same effect. Other witnesses saw the markings, including Keith Samson.

194 Kim described the daily contact which occurred between Alex and Barry. Barry would telephone Alex after his shower at 7.30 pm, or Alex would telephone Barry. Barry would get Alex to make up a song and they would sing it together. That evidence is supported by Kim's mother Lorraine, who had regular contact with Kim and Alex, and with whom the two lived towards the end of Barry's life, and who frequently witnessed these telephone calls being made and received. She described the song, 'slinkle, slinkle little star,' which Barry loved to hear.

195 Kim said Barry bought presents for Alex (as he did for her). The last present he bought for Alex was a trampoline worth $300. Barry bought a computer for Alex and Kim's brother Paul put games onto it for him. The evidence of Kim's brother Paul was to the same effect. Kim's mother Lorraine told of Barry playing computer games with Alex on that computer.

196 During her visits to Barry with Alex, Kim said he mostly just wanted 'to interact with Alex'.

197 Alex's grandmother Lorraine was an impressive witness who gave extensive written and oral evidence about the relationship between Barry and Alex. She conceded in cross-examination that, especially in the latter years, and except for the personal observations which she made herself, most of what she knew of the relationship between Kim, Alex and Barry came from Kim. For example, she never attended the evening Christmas meal which they had together (although she helped Kim prepare the food which she took there) and nor did she attend each of Alex's birthdays with Kim and Barry (although she did attend some). However, she clearly had a great deal of contact with Kim and Alex and also with Barry and was in a position to say what the nature of the relationship really was. Barry's good friend and neighbour Lee O'Shannassy saw her at Barry's place more that a couple of times.

198 Of Alex's relationship with Barry, Lorraine said 'Alex constantly referred to Barry in the most endearing terms'. She said Alex and Barry had a way of embracing each other which they called a 'huggle'. Barry would say to Alex 'do I get a huggle' or 'Alex would get in first and say "huggle" and put his arms out for a hug then a kiss'. She said Alex would tell Barry he 'was the bestest dad in the whole world' and say ' I love you Barry'. This is consistent with Alex's reaction to witnessing Barry's second marriage proposal to Kim, which (according to Kim's evidence) was to be 'so happy' because (as Alex said to Barry) that would make 'you my real dad'.

199 Of Barry's relationship with Alex, Lorraine said Barry would never miss one of Alex's birthdays. She said he had 'a wonderful influence on Alex'. She described how Barry was at the hospital with Kim's family on Alex's first day - that of his birth. By arrangement with Kim and Lorraine, he was present at 'Alex's first day of everything else', including his kindergarten, school and jujitsu and school swimming lessons. Lorraine said she did not herself go to these first-day occasions as Barry always arranged to do so and she stayed home. She also said Barry used 'to talk about Alex to anybody who would listen as he was so proud of him and loved him so much'.

200 Lorraine said Barry fixed Alex's toys, made him cricket stumps and also large goal posts which he put up in his paddock and which he repainted white every year. Barry taught Alex to play football and cricket, how to ride a motorbike and swim, as well as how to ride a little tractor. Lorraine witnessed these events and there are pictures in evidence of him doing so. Lorraine described the two drawing together for hours at a time (she denied this was an exaggeration) and Barry displaying Alex's drawings at his house. There were present for all visitors to see and were seen, for example by Kim's mother Lorraine and Barry's brother Keith. Barry and Alex went for walks together at Barry's property collecting firewood and they started a vegetable garden. Barry would always keep sweet things in the house for Alex.

201 Lorraine gave a long list of things which Barry bought for Alex, including a blow-up swimming pool (which Barry would repair), sports equipment, Alex's first and second bicycles (which Barry taught him to ride), a television and video player and a large enclosed trampoline. I have already referred to the computer. It was clear from Lorraine's evidence that she had first-hand knowledge of these gifts. She also said Barry paid for Alex's school uniforms and other school fees. She described buying the trampoline as a present for Alex at Barry's direction because he was not well.

202 State Trustee drew attention to and relied on the lack of receipts and other physical proof of these payments. I accept the evidence of Kim and Lorraine that the payments were made. The items and services concerned are mostly personal and domestic in nature. These are not the kind of thing for which receipts or other documents would be kept or necessarily given. The beneficiaries - for example Barry's brother Keith - knew little or nothing of these payments. But that is consistent with their lack of knowledge generally of the nature of the relationship between Kim, Alex and Barry. I do find, as State Trustees submitted, that Barry did not pay for Alex's (or Kim's) health insurance. .

203 Lorraine gave evidence that once Barry had told her on the telephone 'don't worry, I'll look after them', referring to Kim and Alex.

204 According to Lorraine, she and Kim would pick Alex up from school and from after-school activities. Barry did not do so because Kim would not let anyone else but Lorraine drive Alex.

205 The strong relationship between Barry and Alex was noted by Kim's brother Paul and her sister Lisa Bedford. Ms Bedford said 'Barry was great with Alex and was a father figure for Alex' (although she agreed that most of her information about Barry came from Kim, and she only met Barry a few times). Barry's best friend, Lionel Withers, said 'Barry was always very fond of Alex and clearly enjoyed his company'.

206 I find support in the evidence of the beneficiaries for the strength of Alex's relationship with Barry.

207 Barry's sister Margaret recalled a conversation she had with Barry after he found out he was going to die. She said 'he was upset about leaving this world and he told me he did not know how he was going to tell Alex that he was not going to be able to work on cars with him anymore or that they would not be able to do things together anymore'.

208 Barry's brother Keith gave evidence which strongly confirmed the close bond between Barry and Alex. He said there 'was sort of stuff for young Alex' in Barry's house when he died. This included photographs and drawings. The bags of these things were picked up by Barry's neighbour Lee O'Shannassy for giving to Kim. He said some of Alex's toys were in the bags. Keith said emphatically that Barry was 'very, very fond of young Alex'. This evidence made a strong impression on me because it was frankly given against Keith's interests and he was a rather laconic witness who chose his words carefully and was not prone to exaggeration.

209 Barry's sister-in-law Roslyn Samson said Barry mentioned in his telephone conversations with her that Alex was 'a young boy that visited him occasionally' and that 'he was fond of the boy and enjoyed his inquisitiveness'. Barry's nephew, Peter Schroeders, said Barry described Alex as his 'little mate' and was 'close to Alex'.

210 Of Barry's friends, Terence Gray said Barry told him 'he was fond of [Alex] and enjoyed having him visit him and taking him around his property and playing with him'. Barry told him he had bought a Christmas gift for Alex, which 'was unusual, as he normally never spent money on gifts'. Lee O'Shannassy saw Barry engaged in various activities with Alex. He saw Alex at Barry's place from when Alex was aged about three or four years. He saw Barry teaching Alex to ride a bicycle and to swim. On a couple of occasions Barry, Kim and Alex came over to use Mr O'Shannassy's in-ground pool. Barry told Maureen Sanders he was please to see Alex when Kim brought him over. Raymond Schafer said 'Barry enjoyed Alex's company and would give him rides on his mower. Barry would also play cricket and football with Alex and supervised him when he went in Barry's pool'.

211 There was also evidence from Barry's family and friends which suggests the relationship between Alex and Barry was only one of fondness. For example, Barry's sister Margaret said Barry was a father-figure to her children, implying his relationship with Alex was not unique. She said Barry only occasionally talked about Alex. His friend Maureen Sanders said Barry's feelings towards Alex were of feeling sorry for him and Alex sometimes annoyed him. Barry's friend Raymond Schafer said Barry told him he felt sorry for Alex.

212 On the whole of the evidence I have here examined, Barry and Alex's relationship was much more than that. Barry probably did feel sorry for Alex for not having a father. But he was instrumental in bringing Alex into the world because he persuaded his mother Kim to have the child and not an abortion. He promised that, if Kim had the child, he would help her and help her care for Alex, which he did. He committed himself to making up for the absence of a father as far as he could. That placed Barry in a special relationship with Kim and Alex and he accepted the responsibilities which went with that relationship.

213 Having no children of his own and with Kim's active encouragement and support, Barry felt towards and treated Alex as a son. In return, Alex felt towards and treated Barry as a father. Alex and Barry shared an intimate relationship on that basis from the day of the child's birth until Barry died. In that relationship, Alex made a substantial contribution to Barry's welfare, as described below.

214 Alex lived with Kim, who was his primary carer and legally responsible for him. Barry did not maintain Alex as such. But Barry spent a great deal of time with Alex doing many things of the kind which a doting father does with a son. He openly acknowledged the strength of his feelings for Alex with his own family and friends and Kim and her family. Further, Barry frequently made particular payments in respect of Alex's upkeep and support.

215 Barry intended to change his old will to make provision for Alex (and Kim), but he died of cancer before doing so.

216 That brings me to the relationship between Kim, Alex and Barry

217 I have made findings about the relationship between Kim and Barry and Alex and Barry.

218 I also find that Kim, Alex and Barry represented a social unit which was tantamount to a family comprising Kim as the mother of Alex and the woman engaged to marry Barry, Alex as the son of Kim and the child who felt towards and treated Barry like a father and Barry as the person who persuaded Kim to have Alex and not an abortion, who was engaged to marry her and who felt towards and treated Alex like a son. The three of them had a loving and mutually supportive relationship and spent a great deal of time together on that basis, although they did not live together and they maintained separate finances.

219 It was Alex's intention to make a new will making provision not just for Kim and not just for Alex but for both of them.

220 Having made those findings of fact about the main issues in the cases, I can examine the specific statutory considerations.

221 Section 91(4)(e)-(p) of the Administration and Probate Act specifies considerations which must be taken into account in determining the three questions in issue: whether the deceased had a responsibility to make provision for a person, whether the will makes adequate provision for the proper maintenance and support of the person and the amount of provision which the court should order (if any).

222 Having made findings about the nature of the relationship between Kim, Alex and Barry, I will here relate those findings and other factual matters to the specific statutory considerations. Then I will determine the three questions.

Family or other relationship between deceased and applicant (s 91(4)(e))

223 Section 91(4)(e) requires the court to take into account 'any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.' I have already discussed the interpretation and application of this provision.

224 I refer to the findings which I have made about these matters.

Obligations or responsibilities of deceased (s 91(4)(f))

225 Section 91(4)(f) requires the court to take into account 'any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate'.

226 Neither Kim nor Alex were Barry's dependents. I will determine he had a responsibility to make provision for them under s 91(1). Besides that, he had no obligations or responsibilities towards them. There are no other applicants.

227 State Trustees submit, and I determine, that Barry had no obligations or responsibilities towards the beneficiaries under his will, under s 91(1) or otherwise.

Size and nature of estate (s 91(4)(g))

228 Section 91(4)(g) requires the court to take into account 'the size and nature of the estate of the deceased person and any charges or liabilities to which the estate is subject'.

229 According to the evidence of Jacqueline Shaw on behalf of State Trustees, Barry died leaving an estate with a value at the date of his death (18 March 2009) of approximately $1,790,436.86 comprising real estate valued at approximately $1,500,000 and personal property valued at approximately $290,436.86.

230 According to the evidence of John Sanelli on behalf of State Trustees, as at 26 May 2010 the estate was valued at approximately $1,745,086.22 comprising real estate valued at approximately $1,550,000 (being the Gap Road, Sunbury property valued at $950,000 and the Deverall Road, Sunbury property valued at $600,000) and money and other personal property valued at approximately $195,086.22. That estimate took account of expenses of $258,684.15 which had been paid out of the estate. There is a capital commission of $86,641.93 owing to State Trustees. It is also necessary to take into account CGT liabilities and legal costs to which the estate will be subject.

231 There is some dispute about the value of certain small items in the estate, including the value of Barry's last motor vehicle and some of his machinery. This will have little bearing on the ultimate value of the estate.

232 In final submissions, State Trustees submitted the estate was worth approximately $1.6 million net of CGT and estimated accumulated legal costs. Having regard to the other evidence, I think that was a reasonable estimate of the value of the estate at the time.

233 After the hearing, the court was informed by State Trustees that the Gap Road, Sunbury property had been auctioned for $1.55 million and the Deverall Road, Sunbury property had been auctioned for $605,000. The estimated value of the estate of $1.6 million was based on those properties being sold for approximately $1.55 million (see above). In fact they sold for $2.155 million, being $555,000 higher than expected.

234 Taking those auction results into account, I think a reasonable estimate of the value of the estate is now approximately $2.1 million. It is a modestly valuable estate which will enable the court to achieve justice between the applicants for provision and the beneficiaries.

Financial resources and needs of applicant and beneficiaries (s 91(4)(h))

235 Section 91(4)(h) requires the court to take into account 'the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future'.

237 I have given my findings on Kim's work history, receipt of a disability pension and state of ill-health. On that evidence, her earning capacity is at best very limited.

238 Kim's only income is the disability pension (which was $540 per fortnight in 2009) and some part-time work as a personal carer ($270 per week at that time). She has a second-hand motor vehicle which was worth about $5,000 in 2009, but she gave evidence at the hearing that it had broken down. She has household furnishings valued at about $10,000. She lives with her mother and Alex in her mother's home. She has some small savings and no superannuation entitlements.

239 Without an order for provision from the estate, Kim would be likely to be largely dependent on welfare support and possibly some part-time work and would never be likely to own her own home.

240 In terms of s 91(4)(h), Kim's financial resources and earning capacity at the time of the hearing and for the foreseeable future are very limited. Her present and future financial needs are substantial.

241 Alex is aged nine years and a primary school student. He is in good health.

242 Despite attempting to obtain child support payments from Alex's father, Kim has been unable to obtain any. She is not likely to be able to do so in the future. Therefore, Alex has no financial resources available to him from his father. He is wholly dependent on Kim for financial support. Without an order for provision from Barry's estate, he would likely to be so for the whole of his adult life.

243 On the subject of Alex's financial needs, evidence was given on his behalf by Hugh Sarjeant, an actuary. Mr Sarjeant produced a report and was cross-examined. Having read the report and heard his oral evidence, I consider Mr Sarjeant to be a professional actuary who has given objective evidence based on proper instructions and using appropriate assumptions. I consider his evidence to be a reasonable indication of Alex's financial needs, as at Barry's death to age 22 years. In particular, as part of the costs of raising him, it was reasonable to include the cost of educating Alex at Salesian College, Rupertswood, as it was to include the likely costs of giving him a tertiary education by paying the HECS fees upfront.

244 Mr Sarjeant's evidence was that the costs of raising Alex as a child would be $171,819, the costs of educating him at Salesian College, Rupertswood would be $22,551 and the costs of paying HECS (tertiary education) fees upfront would be $16,949, making a total of $211,319. To the extent that Mr Sarjeant relied on certain figures which were given to him in his instructions, the amounts seemed to me to be reasonable and I consider that it was not inappropriate for Mr Sarjeant to rely on these figures. In making these findings, I have taken into account the instructions he was given. I do not find that he was prompted or coached to make the findings which he did.

245 In terms of s 91(4)(h), Alex has no financial resources or any earning capacity at the time of the hearing and will have none for the duration of his infant life. For that period, he will be entirely dependent upon the support of his mother in all respects. During his infancy, he will have very substantial financial needs. With the order for provision I intend to make for him, I think he will obtain a proper education and have a good start in life, such that his financial resources and earning capacity should thereafter be at least reasonable.

246 I turn now to consider the financial resources, earning capacity and financial needs of the beneficiaries. For context, I will repeat some of my findings.

247 Margaret receives a one-third share of the estate under Barry's will. She is his sister, aged 73 years and lives alone in Mount Rowan, Victoria.

248 Margaret's affidavit evidence is that she owns her own home, which the City of Ballarat has valued for rates purposes (in 2009) at $78,000. Although it is probably worth somewhat more, it is clearly a modest home. She has a mortgage of $12,000 which is secured over this property and has debts of approximately $20,000. Her only income for some 35 years has been a disability pension, which in 2010 was $671.90 per fortnight.

249 Margaret is in extremely poor health and suffers from a number of diseases and physical ailments. Her marriage ended in 1973 and she was left destitute with two young children, whom she raised. She has no means of support other than the pension.

250 In terms of s 91(4)(h), Margaret has few financial resources, no earning capacity and substantial financial needs, both presently and in the future.

251 Keith receives a one-third share of the estate under Barry's will. He is Barry's brother, aged 69 years and lives in rented premises in Glenroy, Victoria.

252 Keith's affidavit evidence was that he does not own any property. He sold his former home to fund his forced retirement. Keith receives some limited income from a private pension which he bought and which has a current capital value of about $100,000. He is otherwise wholly reliant on the age pension for his income. He was forced into early retirement by a heart attack and he also suffers from bowel cancer. These problems surfaced in 2004. I observed his state of ill-health when he gave oral evidence. He has no savings and a small credit card debt.

253 In terms of s 91(4)(h), Keith has limited financial resources, no earning capacity and substantial financial needs, both presently and in the future.

254 Karen receives a one-ninth share of the estate under Barry's will. She is Barry's niece and the daughter of his deceased brother, Neil. She lives in Nambour, Queensland.

255 Karen's affidavit evidence was that (as at 2010) she is a single parent with three teenage children. Her eldest child is a son aged 18 years who is a contract worker. Her daughter is aged 16 years and is a school student in year 12 receiving a youth allowance of $200 per fortnight. Her younger son is aged 12 years and I infer is a school student.

256 Karen's sole means of support is a disability pension of $670 per fortnight, rent assistance of $130 per fortnight and a family tax benefit of $250 per fortnight. She receives no child support payments. She does not work, but was expecting to enrol as a full-time student for which she would receive an education supplement of $60 per fortnight.

257 Karen lives with her three children in rented accommodation. She does not own any real estate or have any valuable personal property, besides a second-hand motor vehicle valued at about $3,500 and some personal possessions. She pays rent of $700 per fortnight. After meeting the living expenses of herself and her family, she has very little money left over at the end of each week. To make ends meet, she has been borrowing from her widowed mother Roslyn Samson, whom she owes several thousand dollars.

258 In terms of s 94(1)(b), Karen has few financial resources, limited or no earning capacity and substantial financial needs, both presently and in the future.

259 Christine receives a one-ninth share of the estate under Barry's will. She is Barry's niece and the daughter of his deceased brother Neil. She lives with her parents in Burleigh Waters, Queensland.

260 According to Christine's affidavit evidence (as at 2010), she has Down's Syndrome. She requires care for 24 hours a day. She is incapable of being independent and may need to be institutionalised in the future. Christine attended some of the hearing and I observed her condition and her obvious level of dependency. She said she has other minor medical conditions for which she requires regular blood tests and medication.

261 Christine deposed that she received a disability pension and also worked at the Endeavour Workshop as a general labourer earning $140 per fortnight.

262 According to her evidence, 'Uncle Barry' was very fond of her and rang her every birthday and Christmas for the whole of her life. They spoke more often after he got sick and became very close. She was his special girl and she 'loved him so much'. I find that he loved her as much as any uncle could. She last saw him in June 2008 when her family visited him. He gave her a birthday present.

263 Christine's evidence was supported by the affidavit of her mother Roslyn Samson. Roslyn said Barry was very close to her late husband Neil. They spoke weekly for lengthy periods. She said her daughter Christine suffered from Down Syndrome, under-active thyroid, pernicious anaemia and a heart murmur. Despite her condition, Christine was generally capable of understanding her personal affairs with assistance from Roslyn, who informally managed her finances.

264 Roslyn said Christine was aged 37 years (in 2010). She confirmed what Christine had said about working and said she had about $500 in the bank. Due to her condition, Christine required a permanent carer and (sadly) may need to be institutionalised in the future.

265 Roslyn confirmed that Barry was very close to Christine and maintained regular and increasing contact with her after becoming ill. During their last visit to Barry, he asked Roslyn about Christine's financial position and assured Roslyn that Christine would be taken care of.

266 In oral evidence, Kim Whitehead said that 'Barry told me often how fond he was of Christine'. There was an entry in her diary saying 'Barry loves Christine'.

267 In terms of s 91(4)(h), Christine has few financial resources, very limited present and probably no long-term earning capacity and very substantial present and future financial needs.

268 Steven receives a one-ninth share of Barry's estate under the will. He is Barry's nephew and the son of his late brother Neil. He is a student who lives with his family in Bethania, Queensland.

269 According to his affidavit evidence, Steven was born on 29 January 1969 and is aged 42 years. He is married and has five children aged 18, 17, 15, 13 and nine years. He gave details of his modest family assets and financial resources, and expenses, which I need not here set out. Steven owns his own home, but it is heavily mortgaged. He has a few personal assets of small or modest value and must meet the high weekly household expenses which one would expect with such a family. His health is good.

270 Steven's yearly income is about $28,400. He has started a university course for which he will receive an education allowance of $5,768. On those amounts, he supports a large family.

271 In terms of s 91(4)(h), Steven has modest financial resources, some present and probably better long-term earning capacity and considerable financial needs, presently and in the future.

Physical, mental or intellectual disability of applicant or beneficiary (s 91(4)(i))

272 Section 91(4)(i) requires the court to take into account 'any physical, mental or intellectual disability of any applicant or any beneficiary of the estate'.

273 Kim has physical disabilities, which I have described. I have also taken Kim's state of ill-health into account in relation to her financial resources, earning capacity and financial needs (s 91(4)(h)).

275 Turning to the beneficiaries, Margaret Roberts suffers from physical disabilities, which I have described. She is in extremely poor general health. I have also taken Margaret's state of ill-health into account in relation to her financial resources, earning capacity and financial needs (s 91(4)(h)).

276 Keith Samson has physical disabilities, which I have described. I have also taken Keith's state of ill-health into account in relation to his financial resources, earning capacity and financial needs (s 91(4)(h)).

278 Christine Samson has very severe physical and intellectual disabilities, which I have described. I have also taken Christine's state of ill-health into account in relation to her financial resources, earning capacity and financial needs (s 91(4)(h)).

Age of applicant (s 91(4)(j))

280 As we have seen, Kim is aged 41 years, being born on 28 June 1970.

281 Alex is aged nine years, being born on 4 April 2002.

Contributions of applicant to estate and welfare of deceased (s 91(4)(k))

282 Section 91(4)(k) requires the court to take into account 'any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased'. I have dealt with how this provision is to be interpreted and applied.

283 Neither Kim nor Alex has made any contribution to the building up of Barry's estate. Neither of them made any contribution to building up the estate or welfare of his family.

284 On the evidence, Kim has made a significant contribution to Barry's welfare as his close personal companion and sexual partner (until sexual relations ceased due to his illness). She was engaged to marry Barry and would have married him but for his fatal illness. Barry was never previously engaged or married.

285 Kim facilitated Barry's access to Alex and encouraged and supported the development of the relationship between them. Barry's relationship with Kim and Alex were the most intense and intimate personal engagements of that kind in his life and made a significant contribution to his general welfare. The contribution to his welfare which his relationship with Kim and Alex made was all the stronger because he was a man who had 'problems with intimacy', problems which he was able to overcome to a substantial degree with them.

286 When Barry became ill, Kim provided him with loving companionship, practical assistance with transport and household duties, personal care (such as cleaning his soiled sheets), cooking and general emotional support. The practical help was done within the limits of her personal capacity and the constraints of his lifestyle (in particular, the untidy state in which he kept his home). These things made a significant contribution to his welfare at a time of high need. Kim received no consideration or payment for this support, and expected none. That Barry was moved to make the second marriage proposal is indicative of how he viewed the relationship at this time.

287 Turning to Alex, he was a child who loved Barry as a father, which love Barry returned in that capacity. In the crucible of the reciprocity of their relationship lay a most significant contribution which Alex made to Barry's welfare. I base this finding on the evidence of Alex saying he loved Barry and that Barry was the 'bestest dad in the whole world', the little songs Barry encouraged Alex to sing for him, their 'huggles', Barry and Alex drawing together for hours and Barry displaying Alex's drawing in his home, the time they spent with each other enjoying many activities, Barry teaching Alex to ride bicycles and swim, Barry being present on the first day of significant milestones in Alex's life, including his birth and commencing kindergarten and school, Barry's strong feelings of love for Alex, which Alex returned, and Barry wanting to marry Kim and adopt Alex.

288 In evaluating the nature of the contribution which Alex made to Barry's welfare, I take into account that Barry had a special relationship with other children, especially the children of his sister Margaret, being her daughter Julie (to whom Barry was a father figure) and her son Peter (with whom Barry spent a lot of time). He also had a particularly special relationship with his late brother Neil's daughter Christine, who has Down's Syndrome, and whom he loved dearly and spoke to frequently and always gave birthday and Christmas presents. In this evidence I see a man who loved children.

289 It is not to downplay the importance of these relationships in any way to say that Barry's relationship with Alex was of a different order. It was because Barry was a man who loved children that he acted on the opportunity to form such a relationship with Kim's child. Alex took Barry into his heart as would a son and Barry took Alex into his heart as would a father. What greater contribution can a child make to the welfare of a man than that, particularly a man who loved children but had none of his own?

290 Section 91(4)(k) refers to the contribution in these respects of the applicant, not the beneficiaries. However, I think it is permissible under s 91(4)(p) to take such contributions by beneficiaries into account, where appropriate. On the evidence, I find Christine did make a contribution to Barry's welfare by virtue of their loving relationship which they shared over a long period of time. None of the other beneficiaries made any particular contributions to Barry's welfare and no beneficiary made any contribution to building up his or his family's estate.

291 In terms of s 91(4)(k), Kim and Alex made a significant contribution to Barry's welfare, Kim as Barry's close personal companion and fiancée and in providing practical and emotional support when Barry was ill and Alex as Barry's surrogate son.

292 These contributions of Kim and Alex to Barry's welfare can be considered as relevant in terms of their relationship under s 91(4)(e) or in terms of a contribution to Barry's welfare under s 91(4)(k). I have treated them as a contribution because I think they are more accurately to be so characterised. I make clear, however, that they carry the same weight as considerations however they are so categorised and carry no greater weight by being characterised under s 91(4)(k).

Benefits previously given by deceased to applicant or beneficiary (s 91(4)(l))

293 Section 91(4)(l) requires the court to take into account 'any benefits previously given by the deceased person to any applicant or to any beneficiary'.

294 Barry gave certain benefits to Kim during the course of their relationship, which I have already referred to. These were of significant assistance to her but were not in the nature of maintenance nor of a legacy in advance. The benefits were the kind of thing which a person in a relationship gives to the other person by virtue of the relationship and I view the benefits in that light.

295 Barry also gave certain benefits to Alex, which I have also referred to. The frequency and degree of the benefits given by Barry to Alex exceeds that which he gave to Kim. In giving benefits to Alex, he was also (in effect) giving benefits to Kim because she was his mother and he was dependent on her. The benefits were of significance to Alex and also to Kim in her care of him but were not in the nature of maintenance or a legacy in advance. As in the case of Kim, Barry gave benefits to Alex by virtue of his relationship with him and I view the benefits in that light.

296 There was evidence that Barry performed maintenance work on the house of his sister Margaret. I view that modest benefit in the same light. No other beneficiary received benefits from Barry.

297 In terms of s 91(4)(l), Barry gave significant benefits to Kim and even more so to Alex, but these were not by way of maintenance as such or a legacy in advance. The benefits are indications of the strength of the relationship between him and them and are relevant in that way only. Barry gave modest work-in-kind benefits to his sister Margaret which are to be seen in the same light.

Maintenance of applicant by deceased and basis thereof (s 91(4)(m))

298 Section 91(4)(m) requires the court to take into account 'whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility'.

299 Barry provided certain financial assistance, gifts and benefits to both Kim and Alex but he was not maintaining them as such.

300 I would take into account under s 91(4)(p) any maintenance by the deceased of a beneficiary, but Barry was not maintaining any beneficiary.

Liability of person to maintain the applicant (s 91(4)(n))

301 Section 91(4)(n) requires the court to consider 'the liability of any person to maintain the applicant'.

302 Kim was not Barry's lawful wife. She did not contend, and nor do I find, that she was his de facto wife or otherwise had an entitlement to be maintained by him. Therefore Barry had no liability to maintain Kim.

303 Alex was not Barry's biological son. Barry had no liability to maintain Alex.

304 Alex was Kim's son. She had a liability to maintain him.

305 Alex's biological father also had a liability to maintain him. Despite Kim's best attempts at obtaining that maintenance, she has never been able to do so and probably never will be able to do so.

Character and conduct of applicant and other people (s 91(4)(o))

306 Section 91(4)(o) requires the court to take into account 'the character and conduct of the applicant or any other person'. I have dealt with how this provision is to be interpreted and applied.

307 All aspects of the character and conduct of Kim and Alex, and the beneficiaries, as well as the relationship between Barry and these people, have been taken into account under the other headings.

308 I find that neither Kim, Alex nor the beneficiaries have such a character or have engaged in such conduct as to count as a negative consideration. State Trustees does not submit that Kim or Alex have engaged in disentitling conduct, although it does rely on certain conduct of Kim's (such as her smoking and drinking) in relation to whether it was likely that she and Barry had an intimate relationship. I have taken that into account in other contexts.

309 Besides Kim, Alex and the beneficiaries, there were no other persons whose character or conduct was relevant.

Other matters the court considers relevant (s 91(4)(p))

310 A statement made by a deceased about the provision which they intend for the person may be taken into account under this provision (see above).

311 I have found and taken into account that Barry intended to make a new will with provision for Kim and Alex. His intention was to leave some money for Kim for her support and a lump sum in a trust for Alex so he could get a proper education, have a car on his eighteenth birthday and a start in buying a first home.

Did Barry have responsibility to make provision (s 91(1))?

312 I will first refer to a number of authorities, most of which were relied on by State Trustees, in which the courts have considered whether the deceased had a responsibility to provide for the person in particular factual circumstances.

313 In Coombes v Ward,[152] McDonald J rejected an application by the natural son of the deceased. His Honour accepted the relationship of son and mother was a family relationship under s 91(4)(e), but emphasised the need also to consider the 'nature of the relationship'.[153] He found 'there existed no close relationship between'[154] the son and his mother.

314 In the present case, the relationship between Alex and Barry is the observe. The relationship is not biological but extremely close - like that of a son and father.

315 Schmidt v Watkins[155] is one of several cases to which I have referred in which the claim was made by the alleged domestic partner of the deceased. Harper J made a number of general observations of principle to which I have had regard and referred. His Honour rejected the application on the facts of the case. There were no children involved in the relationship.

316 Harper J found that, despite the special relationship between the applicant and the deceased, they were not domestic partners and no relationship to provide arose.[156] His Honour said: 'Each case in this field must be judged on its own facts'.[157] With respect, I agree. The present case is distinguishable and, in my view, the responsibility is established. I have considered other cases of claims by domestic partners on the same basis.[158]

317 The question arising under ss 91(1) and 91(4)(e) is not whether the person and the deceased are domestic partners, however analytically helpful that may be in a particular case, but whether the deceased had a responsibility to make proper provision for the maintenance and support of the person having regard to the moral claims which arise from 'any family or other relationship' between them and the other specified considerations.

318 The claim of the middle-aged step-son of the testatrix was successful in McKenzie v Topp.[159] It could not have succeeded under the pre-1997 legislation.[160] Nettle J closely analysed the facts and found 'the relationship was tantamount to mother and child'.[161] His Honour found the plaintiff had made a significant contribution to the deceased's welfare 'as her principal carer and companion'.[162] The case shows how, if the facts are established, a parent-like relationship can give rise to a responsibility to provide. The facts are established in the present case. The claim of the step-grandson succeeded in Subasa v State Trustees Ltd,[163] but only to the extent of a deposit on a modest home.[164] That manifestly was a response to the facts of the case.

319 In Iwasivka v State Trustees Ltd,[165] Hansen J upheld a claim by a niece by marriage of the deceased. His Honour closely analysed the facts and found the plaintiff 'was welcomed, treated and nurtured as a daughter by the deceased'.[166] There too the testatrix intended to make a new will favouring the plaintiff, which his Honour took into account.[167] Hansen J said: '[t]here are no simple rules in families'.[168] With respect, that case and this case demonstrate the truth of that remark. The present applications must be decided on their own facts, but the intensity of the focus on the facts which Hansen J applied is the approach which I adopt here.

320 Re Bull (deceased)[169] is an unusual case the main point of which is that the legislation cannot be used as an instrument of punishment or compensation. On the facts, Byrne J found the true nature of the relationship between the claimant and his abuser was not such as to give rise to a responsibility to provide.[170] The present case is nothing like that case. Byrne J did make general remarks about the operation of the legislation which embrace the present case and which I endorse, including that the current legislation

replaces the mechanical approach adopted under the repealed legislation of identifying [a] status by blood relationship of a particular kind. The amended provision recognises that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for.[171]

321 That brings me to the important case of Forsyth v Sinclair[172] in which Neave and Redlich JJA and Habersberger AJA dismissed the appeal against the decision at first instance of Harper J in Sinclair v Forsyth.[173] It was submitted on behalf of State Trustees that this was the absolute high watermark of a legitimate claim and the present case went way beyond it. I reject those submissions for the reasons that follow.

322 The application before the court was a claim by the deceased's domestic partner, not termed that way as such by Harper J but found to be such by the Court of Appeal.[174] Consistently with the proper approach, Harper J went into the facts very carefully. Although the plaintiff and the deceased did not live with each other and there was no financial dependency, they had a relationship 'of deep and intimate affection'.[175] I have made similar findings in the present case. His Honour found the plaintiff 'released [the deceased] from the constraints of bachelorhood'.[176] In effect, that is what Kim did for Barry in the present case, and gave him Alex as a child to be a father to as well. Harper J took into account that the relationship between the plaintiff and the deceased was a public relationship.[177] That indicia is missing on Barry's family's side and on the side of most of his friends, but is present on the side of Kim's family and with Barry's best friend. Further, in the case before Harper J, as in the present case, the deceased concealed the true nature of his relationship with the plaintiff from his brother and sister in law.[178] In the end I think the present case has some similarities with the case before Harper J and the applications before me are not in any way precluded by the decision of Harper J and the Court of Appeal. In my view, the present applications fall squarely within the general principles expounded by the judgment on appeal, to which I have made extensive reference already.

323 State Trustees relied on the remarks of Redlich JA that the case on appeal was 'at the margin'.[179] I do not read those remarks as being intended to erect a barrier which plaintiffs in subsequent like cases must overleap. The remarks were a response to the facts of the case. His Honour's analysis of those facts highlights considerations which are also established in the present case to a great extent, and this case has the important added feature of the promise made by Barry to support and help Kim if she took her pregnancy with Alex to full term.

324 Taking the considerations in s 91(4)(e)-(p) into account, I determine that Barry had a responsibility under s 91(1) for Kim's proper maintenance and support. In the facts and circumstances at the date of his death which have been established, he had a moral duty to make that provision, judged by reference to contemporary community standards.

325 The most important considerations giving rise to that responsibility are the nature of the relationship between Kim and Barry and the contributions which Kim made to his welfare. I refer to my findings about these matters.

326 In summary, Kim was Barry's close personal companion and sexual partner for nearly 10 years until he died. He loved her, she loved him and they were engaged to be married. He persuaded her to have Alex and not to have an abortion. He promised her that, if she did have Alex, he would help her and help her to care for Alex, which he did. I have made findings about the nature of their relationship. While they were not domestic partners, their relationship together and with Alex represented a social unit which was tantamount to a family. They had a shared life to a significant extent, reflecting their love for each other and for Alex and their unique personal circumstances. Kim provided significant support for Barry when he became ill.

327 I also take into account that Barry intended to make a new will specifying Kim and Alex as beneficiaries, but did not do so before he died. He left an estate of modest value worth about $2.1 million. From that estate, Barry had the capacity to make proper provision for Kim (and Alex), whilst at the same time leaving an appropriate amount for his relatives (as was his wish). Being unmarried with no children or other dependents, Barry had no other obligations which prevented him from fulfilling his responsibilities towards Kim (and Alex). Kim (and Alex) had substantial present and future needs and very limited earning capacity. I take the needs and the earning capacities of the relatives into account.

328 Taking into account the same considerations, I also determine that Barry had a responsibility to make provision for Alex. In the facts and circumstances which have been established, Barry had a moral duty to make provision for his proper maintenance and support according to contemporary community standards.

329 The most important considerations giving rise to that responsibility are the relationship between Alex and Barry and the contribution which Alex made to Barry's welfare. I refer to my findings about these matters.

330 In summary, Barry was instrumental in Alex being brought into the world as he persuaded Kim to have Alex and not an abortion. Barry promised to help Kim with Alex, and he actually did so in the many ways referred to in my findings. Barry embraced his responsibilities by reason of the promise he made to Kim and the strength of the loving attachment which he formed with her and him. In return, Alex embraced Barry. Alex and Barry felt and behaved towards each other as a son and a father, although he was not responsible for his day to day care or live with him. Alex was an extremely important relationship for Barry. Barry loved children and he was able to have a father-son relationship with Alex when he had no children of his own.

331 I also take into account the provision which Barry intended to make for Alex in a new will and the other matters I take into account in reference to Kim and in my consideration of the specific statutory criteria.

Did Barry's will make the required provision (s 91(3))?

332 By s 91(3), the court must not make an order for provision under s 91(1) unless the court is of the opinion that, where the deceased person left a will, they did not in that will make adequate provision for the proper maintenance and support of the person.

333 I have determined under s 91(1) that Barry had a responsibility to make provision for Kim and Alex's proper maintenance and support. Barry's made his will over 25 years before he met Kim and it made no provision for them. There was no codicil. Therefore I am of the opinion under s 91(3) that the distribution of the estate effected by Barry's will does not make adequate provision for the proper maintenance and support of Kim and Alex.

What amount of provision should the court order (s 91(4)(c))?

334 This question also requires the specified considerations to be taken into account, and I have done so.

335 The approximate value of the estate is $2.1 million. An amount of provision can and should be ordered out of that estate for Kim and Alex.

336 I have made findings in relation to Kim and Alex's needs and earning capacity, which I take into account.

337 I have identified the beneficiaries under Barry's existing will and their needs and earning capacity, which I also take into account. The interests of no other person require consideration.

338 The amount of provision for Kim and Alex should reflect the promise he made to help Kim and to help her care for Alex. In terms of Barry's responsibilities, that promise implies a proper degree of maintenance and support for both Kim and Alex, especially during his minority, reflecting his separate relationship with them. Barry's intended new will must also be taken into account.

339 The amount of provision for Kim and Alex should leave a substantial amount remaining for the benefit of the beneficiaries who were identified in Barry's will and for whom it was his intention to make provision.

340 In all of the circumstances, the court should make an order in Kim's favour for a substantial legacy. The amount should be enough, separately to the amount which should be ordered in favour of Alex, for Kim to buy (or contribute substantially to the cost of) a unit or other modest accommodation for her and Alex, and in which she can live when he grows up. I think an amount of $400,000 is appropriate for this purpose. I will add $50,000 as for contingencies. The amount of $450,000 should be paid to Kim directly and not be maintained on trust for her.

341 In all of the circumstances, the court should make an order in Alex's favour which will be sufficient to pay for his upkeep and education during his minority, for a motor vehicle when he turns 18 years of age and for a deposit on a home or investment property at that time. Taking into account the evidence of the cost of his upkeep and education, I consider an amount of $400,000 is appropriate for this purpose. This amount should be paid into court and administered by the senior master for Alex's benefit until he attains the age of 18 years.

342 Accordingly, there will be an order pursuant to s 91(1) and (4)(c) of the Administration and Probate Act for the amount of $450,000 to be paid out of Barry's estate for the proper maintenance and support of Kim.

343 There will be an order pursuant to s 91(1) and (4)(c) for the amount of $400,000 to be paid out of the estate of Barry's estate for the proper maintenance and support of Alex. There will be orders for the payment of this amount into court and be administered for Alex's benefit and distribution for his maintenance, education and support by the senior master until he attains the age of 18 years.

344 On those figures, Kim and Alex will get about 40% of the estate and the beneficiaries will get about 60%, which I consider to be appropriate after taking into account Barry's responsibility to make provision for Kim and Alex and his intentions in regard to the beneficiaries.

345 I will hear the parties in relation to costs and the precise form of the orders for provision.

346 The court is empowered by the provisions of the Administration and Probate Act to make an order for the proper maintenance and support of a person for whom the deceased had a responsibility to provide. It has been established in this case that the late Barry Robert Samson had a responsibility to make such provision out of his estate for Kim Diane Whitehead and her son Alex William Whitehead.

347 On the facts I have found on the basis of the evidence, Kim was Barry's loving female companion and sexual partner for nearly ten years until he died in 2009. Barry was in his fifties when he met Kim. When he died, he was aged about 66 years and she was aged 38 years. The age gap between them was 28 years. Despite that difference in age, the two of them had an intimate and exclusive relationship from soon after they met. Barry had never married. He experienced with Kim the first and only such attachment in his life.

348 Not long after they met, Kim fell pregnant. Barry knew he was not the father but he persuaded Kim to have her only child Alex. He promised to support her and help her care for Alex. Barry embraced those responsibilities until the day he died. In doing so, he formed a father-son relationship with Alex, one that was all the more important to Barry because he was a man who loved children but had no children of his own and to Alex because Barry was the 'bestest dad in the whole world' and never saw his real father.

349 Kim and Alex lived separately from Barry and their finances were independent. They were not domestic partners. But the evidence established the three of them were closely involved in each other's lives. Barry supported Alex in emotional and practical ways and, within his very limited means, in financial ways also. Kim and Barry supported each other in emotional and practical ways. Barry especially did so during Kim's pregnancy and with Alex. Kim especially did so when Barry became ill with, and ultimately died of, cancer. Both Kim and Alex made significant contributions to Barry's welfare, but not to his estate. On the evidence, the relationship between Kim, Alex and Barry represented a social unit which was tantamount to a family.

350 There was a serious factual controversy in the case about the authenticity of diaries which Kim kept during the course of her relationship with Barry. After considering the evidence, I have found the diaries to be genuine. They are good evidence of the nature of the relationship between her, Alex and Barry, as I have found it to be. In particular, the diaries confirm Kim's evidence, which I accept, that she and Barry were engaged to be married. They would have married but for his untimely death.

351 Barry had a will which was more than thirty years old. It left all of Barry's $2.1 million estate to Barry's elderly brother and sister and the three adult children (one who had Down's Syndrome) of another brother who had predeceased him. These beneficiaries all have needs, some of them very significant, and no or limited earning capacity. Their interests must be taken into account. But Barry intended to make a new will with provision for Kim and Alex. Kim got him the will kit which he asked for. He died before using it.

352 On those and my other findings of fact, I have determined that Barry had a moral responsibility to make provision out of his estate for Kim and Alex judged by reference to the contemporary standards of the community. In respect of the division of his estate, and in an appropriate amount having regard to the interests of the beneficiaries, Barry should be kept to the promise which he made to support Kim and help her care for Alex if she took her pregnancy to full term, which promise he faithfully kept himself when he was alive. Under the provisions of the Administration and Probate Act, Kim and Alex are both entitled to an order for their proper maintenance and support. I make that determination after taking into account Barry's freedom of testamentary disposition, which is an important consideration. However, with a such an old will and in the circumstances of his relationship with Kim and Alex, that consideration does not fully account for Barry's moral responsibilities towards them.

353 Taking into account the value of the estate of $2.1 million and the interests of the beneficiaries as well as Kim and Alex, I have decided to make an order for provision which will give proper maintenance and support for Kim and Alex (about 40% of the estate) while at the same time leaving a substantial amount for the beneficiaries (about 60% of the estate). There will be an order for a legacy in the lump sum of $450,000 for Kim, payable forthwith. There will be an order in favour of Alex, in the amount of $400,000, payable to the senior master for his benefit during his minority, including his upkeep and education, in the expectation that at least $100,00 will be left for him when he turns 18 years. The residual estate will go the beneficiaries in accordance with the will.

[1] Under s 10 of the Trustees Companies Act 1984 (Vic).

[2] See John de Groot and Bruce Nickel, Family Provision in Australia (3rd ed, 2007) [1.6]-[1.7]; IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989) [3501].

[3] See AH Oosterhoff, Oosterhoff on Wills and Succession (6th ed, 2007) chapter 17.

[4] See Richard Oughton, Tylers Family Provision (3rd ed, 1997) 19-32; Megarry and Wage, The Law of Real Property (7th ed, 2008) [14.003]-[14.004].

[5] IJ Hardingham, MA Neave and HA Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989) 482. In Coates v National Trustees Executors and Agency Co Ltd, Dixon CJ said the 'legislation of the various States is all grounded on the same policy and found its source in New Zealand': [1956] HCA 23; (1956) 95 CLR 494, 507.

[6] For an overview of the gradual expansion of the eligibility criteria, see John de Groot and Bruce Nickel, Family Provision in Australia (3rd ed, 2007) [1.5]-[1.7];

[8] Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories (Issues Paper No 2): Family Provision (Working Paper No 47) (1995).

[9] Queensland Law Reform Commission, Report of the Standing Committee of Attorneys-General on Family Provision (Miscellaneous Paper No 28) (1997). The commission later produced a supplementary report: Queensland Law Reform Commission, Supplementary Report to Standing Committee of Attorneys-General (Report No 58) (2004).

[10] See chapter 2 of the issues paper and chapter 1 of the report.

[12] Victorian Attorney-General's Law Reform Advisory Council, Family Provision, Expert Report No 1 (1997). I have taken the terms of reference from page x. The report was published in 1997 but completed in July 1994.

[19] Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 436 (Jan Wade).

[23] Victoria, Parliamentary Debates, Legislative Assembly, 29 October 1997, 821; Victoria, Parliamentary Debates, Legislative Council, 20 November 1997, 733

[24] The reforms were not made in response to the decision in Popple v Rowe [1998] 1 VR 651, as Winneke P thought may be the case in Coombes v Ward [2004] VSCA 51, [3], although having to reject a claim that might have been meritorious by a step-child who was not the biological child of the deceased certainly illustrated the need for the reform.

[25] [1944] HCA 13; (1944) 69 CLR 69.

[26] On the same public policy grounds, it has been held that a wife cannot contract out of her matrimonial maintenance entitlements: Hyman v Hyman [1929] AC 601, 608, 614 (Lord Hailsham LC), 629 (Lord Atkin).

[27] [1944] HCA 13; (1944) 69 CLR 69, [19]; see also 78 (Latham CJ), 84 (Rich J), 86 (Starke J), 88 (McTiernan J).

[28] See also Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, [10] (Gleeson CJ).

[29] Ibid 85; see also 79 (Latham CJ). After an extensive analysis, that was the view of Jordon CJ (Nicholas CJ in Eq agreeing, Davidson J dissenting) below, which was upheld: see In re Jacob Morris (deceased) (1943) 43 SR(NSW) 352, 356-358. See also Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 513 (Williams J).

[31] [1941] AC 294.

[32] [1972] AC 572, 593ff. Among other things, Lord Symons said the legislation was concerned with the 'vindication of rights and duties of maintenance within the family, ... a fundamental institution of society and with basic human rights': ibid 593.

[33] Gleeson CJ, Gummow, Kirby and Heydon JJ (Callinan J dissenting).

[34] (2003) 214 CLR 169, [34] (Gleeson CJ); see also [114] (Gummow and Hayne JJ), [123]-[124] (Kirby J).

[36] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 513 (Williams J), citing Holmes v Permanent Trustee Company of New South Wales Ltd [1932] HCA 1; (1932) 47 CLR 113, 119 (Rich J, Evatt and McTeirnan JJ agreeing). See also Worladge v Dodridge [1957] HCA 45; (1957) 97 CLR 1, 9 (Williams and Fullagar JJ).

[37] [1957] VicRp 5; [1957] VR 50.

[39] See also Popple v Rowe [1998] 1 VR 651, 659 (Winneke P).

[40] [2005] HCA 11; (2004) 221 CLR 191.

[42] (2003) 214 CLR 169, [34] (Gleeson CJ), [44] (Gummow and Hayne JJ), [124] (Kirby J).

[44] Re Mundy and Ropers Contract [1899] 1 Ch 275, 289 (Chitty LJ).

[45] Re Duke of Marlborough Settlement; Duke of Marlborough v Marjoribanks (1885) 30 Ch D 127, 131 (Chitty J). See also Lord Bruce v Marquess of Ailesbury [1892] AC 356, 361, 364; Re Bruce; Halsey v Bruce [1905] 2 Ch D 372, 375.

[46] Holmes v Permanent Trustee Co of New South Wales Ltd [1932] HCA 1; (1932) 47 CLR 113, 119 (Rich J); Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69, 85 (Rich J); Schaefer v Schuhmann [1972] AC 572, 596 (Lord Simon); Collicoat v McMillan [1999] 3 VR 803, [45] (Ormiston J); Barns v Barns (2003) 214 CLR 169, [43] (Gummow and Hayne JJ).

[47] Megarry and Wade, The Law of Real Property (7th ed, 2008) [14-002]; Richard Oughton, Tyler's Family Provision (3rd ed, 1997) 1-6; John de Groot and Bruce Nickel, Family Provision in Australia (3rd ed, 2007) 1-2.

[48] In re Jacob Morris (deceased) (1943) 43 SR (NSW) 352, 356 (Jordan CJ).

[49] Richard Oughton, Tyler's Family Provision (3rd ed, 1997) 5-6.

[50] Megarry and Wade, The Law of Real Property (7th ed, 2008) [14-002].

[51] Boughton v Knight (1873) LR 3 P&D 64, 66 (Sir J Hannen); see also Banks v Goodfellow (1870) LR 5 QB 549, 563-565 (Cockburn CJ, Blackfellow, Mellor and Hannen JJ).

[52] Disherison is 'the act of disbarring from inheritance': Jowitt's Dictionary of English Law (2nd ed, 1997) 626.

[53] The Trustees of Church Property of the Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394, 414 (Windeyer J).

[54] See generally Rosalind Atherton, 'New Zealand's Testators' Family Maintenance Act of 1900 - the Stouts, the Women's Movement and Political Compromise' [1990] OtaLawRw 2; (1990) 7 Otago Law Review 202; Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?' (2000) 6 Australian Journal of Legal History 5.

[55] Richard Oughton, Tyler's Family Provision (3rd ed, 1997) 1.

[56] [1972] AC 572.

[57] Barns v Barns (2003) 214 CLR 169, [34] (Gleeson CJ),[103], [114] (Gummow and Hayne JJ), [123]-[124] (Kirby J).

[58] [1972] AC 572, 596.

[59] In Canada, the legislation 'did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right': Tataryn v Tataryn [1994] 2 SCR 807, 815 (McLachlin J for the court). In New Zealand, the legislation does not allow the court 'to make a new will for the testator' but 'to alter a testator's disposition ... only so far as it is necessary to provide for the proper maintenance and support of 'the applicants': In re Allardice (1910) 29 NZLR 959, 969 (Stout CJ).

[60] [1962] HCA 19; (1962) 107 CLR 9.

[62] Ibid. See also Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 146 (Gibbs J).

[63] [2005] HCA 11; (2004) 221 CLR 191.

[65] [1997] 2 VR 359.

[67] [2005] VSCA 127; (2005) 11 VR 270, [6].

[68] Schmidt v Watkins [2002] VSC 273, [14] (Harper J); Herszlikowicz v Czarny [2005] VSC 354, [110] (Hargrave J); Cangia v Cangia [2008] VSC 455, [36] (Whelan J); Robertson v Koska [2010] VSC 134, [79] (Vickery J).

[69] See also Collicoat v McMillan [1999] 3 VR 803, [45] (Ormiston J); Downing v Downing [2003] VSC 28, [42] (Osborn J); McKenzie v Topp [2004] VSC 90, [52] (Nettle J); Unger v Sanchez [2009] VSC 541, [64] (Kaye J).

[70] (1997) 2 VR 359, 365.

[71] [2005] VSCA 127; (2005) 11 VR 270,

[72] [1972] AC 572.

[74] See the 'two interests' analysis of McLachlin J in Tataryn v Tataryn [1994] 2 SCR 807, 814-815.

[75] (1875) LR 549 (Cockburn CJ, Blackburn, Mellor and Hannen JJ).

[77] (1910) 29 NZLR 959, 972-973.

[78] [1922] NZLR 218.

[80] See generally Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?' (2000) 6 Australian Journal of Legal History, 5, 25.

[81] (1994) 187 CLR 201.

[82] Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 158 (Murphy J); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 504-505 (Murphy J); see also Coates v National Trustees Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 522 (Fullagar J).

[83] [1994] HCA 40; (1994) 181 CLR 201, 209 (Mason CJ, Deane and McHugh JJ).

[84] [2004] VSCA 149; (2004) 10 VR 69 (Chernov and Nettle JJA and Hansen AJA).

[85] [2005] VSCA 127; (2005) 11 VR 270 (Callaway, Batt and Buchanan JJA).

[86] [2010] VSCA 147 (Neave and Redlich JJA and Habersberger AJA).

[87] [1999] 3 VR 803.

[89] [2004] VSCA 149; (2004) 10 VR 69, [41].

[90] Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270 [7] (Callaway JA, Batt and Buchanan JJA agreeing).

[91] See also Coombes v Ward [2004] VSCA 51, [3] (Winneke P).

[92] Fitzspatrick v Sterling Housing Association Limited [2001] 1 AC 27, 41 (Lord Nicholls).

[93] Sheffield City Council v Wall [2010] EWCA Civ 922, [25] (Ward, Etherton and Sullivan LJJ).

[94] Brock v Williams [1949] 2 KB 388, 393 (Bucknill LJ), referring to cases, including some relating to wills and settlements, in which the term was given such an interpretation: see Snow v Teed (1870) LR 9 Eq 622; Price v Gould 46 TLR 411; Salter v Lask [1925] 1 KB 584, 587 (Salter J).

[95] Fitzspatrick v Sterling Housing Association Limited [2001] 1 AC 27, 35, (Lord Slynn), 44 (Lord Nicholls), 50 (Lord Clyde).

[96] Forsyth v Sinclair (2010) VSCA 147, [85] (Neave JA, Redlich JA and Habersberger AJA agreeing).

[97] Forsyth v Sinclair (2010) VSCA 147, [88] (Neave JA, Redlich JA and Habersberger AJA agreeing); see also MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95. [22] (Dodds-Streeton J).

[98] Re Bull, deceased [2006] VSC 113, [23] (Byrne J).

[99] Leahy v Trescowthick [1999] VSC 409, [37] (Warren J); MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, [65] (Dodds-Streeton J).

[100] Collicoat v McMillan [1999] 3 VR 803, [55] (Ormiston J).

[101] Schmidt v Watkins [2002] VSC 273, [24] (Harper J).

[102] Schmidt v Watkins [2002] VSC 273, [22] (Harper J); In the matter of the will of GG Sitch (deceased) [2005] VSC 308, [71] (Gillard J); Carter v O'Brien [2007] VSC 21, [27] (Mandie J); Anslow v Journeaux [2009] VSC 250, [41] (Beach J); Sinclair v Forsyth [2008] VSC 250, [88] (Neave JA, Redlich JA and Habersberger AJA agreeing).

[103] In re Sinnott [1948] VicLawRp 48; [1948] VLR 279, 281 (Fullagar J).

[104] [1910] 29 NZLR 959.

[105] Ibid 969. Sir Robert Stout, New Zealand's first premier and chief justice and his wife Lady Anna Stout, were responsible for the successful campaign to introduce such legislation: Rosalind Atherton, 'New Zealand's Testators' Family Maintenance Act of 1900 - the Stouts, the Women's Movement and Political Compromise', [1990] OtaLawRw 2; (1990) 7 Otago Law Review 202.

[106] In re Sinnott [1948] VicLawRp 48; [1948] VLR 279, 281 (Fullagar J).

[107] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 502 (Gibbs J, Stephen and Mason JJ agreeing), applying In re Hodgson [1955] VicLawRp 77; [1955] VLR 481, 491 (Southall J).

[108] Singer v Berghouse [1994] HCA 40; [1994] 181 CLR 201, 211 (Mason CJ, Deane and McHugh JJ).

[109] Bosch v Perpetual Trustee Company Ltd [1938] AC 463, 476 (Privy Council).

[110] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 128 (Dixon CJ).

[111] Collicoat v McMillan [1999] 3 VR 803, [40] (Ormiston J).

[112] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, [114] (Callinan and Heydon JJ).

[113] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[114] McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 571, 575 (Dixon CJ and Williams J); see also Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, [228] (Callinan and Heydon JJ).

[115] [2005] HCA 11; (2005) 221 CLR 191.

[117] Coates v National Trustees Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 509 (Dixon CJ); McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 575 (Dixon CJ and Williams J); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 200 (Gleeson CJ).

[118] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[119] Rosalind Atherton, 'New Zealand's Testators' Family Maintenance Act of 1900 - the Stouts, the Women's Movement and Political Compromise' [1990] OtaLawRw 2; (1990) 7 Otago Law Review 202, 220.

[120] White v Barrow [1980] HCA 14; (1980) 144 CLR 431, 440 (Stephen J).

[121] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[122] White v Barron [1980] HCA 14; (1980) 144 CLR 431, 440 (Stephen J).

[123] Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270 [8] (Callaway JA, Batt and Buchanan JJA agreeing); Re Bull, deceased [2006] VSC 113, [24] (Byrne J).

[124] Forsyth v Sinclair (2010) VSCA 147, [83] (Neave JA, Redlich JA and Habersberger AJA agreeing).

[125] White v Barron [1980] HCA 14; (1980) 144 CLR 431, 441-443 (Mason J), 456-457 (Wilson J); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 509 (Aickin J); Singer v Berghouse [1994] HCA 40; [1994] 181 CLR 201, 208-209 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, [4]-[6] (Gleeson CJ), [56] (Gummow and Hayne JJ).

[126] Coates v National Trustees Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ), 515-516 (Webb J), 526-528 (Kitto J); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147-148 (Gibbs J); White v Barron [1980] HCA 14; (1980) 144 CLR 431, 437 (Barwick CJ), 441 (Mason J), 448-449 (Aickin J); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 498-499 (Gibbs J, Stephen and Mason JJ agreeing); Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, [70] (Buss JA).

[127] Coates v National Trustees Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 509 (Dixon CJ); White v Barron [1980] HCA 14; (1980) 144 CLR 431, 441 (Mason J); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 499 (Gibbs J, Stephen and Mason JJ agreeing).

[128] Forsyth v Sinclair [2010] VSCA 147, [58] (Neave JA, Redlich JA and Habersberger AJA agreeing); MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, [42]-[47] (Dodds-Streeton J); Schmidt v Watkins [2002] VSC 273, [8] (Harper J).

[129] Forsyth v Sinclair [2010] VSCA 147, [58] (Neave JA, Redlich JA and Habersberger AJA agreeing); McKenzie v Topp [2004] VSC 90, [15] (Nettle J); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, [11] (Chernov JA, Nettle JA and Hansen AJA agreeing).

[130] Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J).

[131] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[132] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 483 (Privy Council).

[133] Forsyth v Sinclair [2010] VSCA 147, [98] (Neave JA, Redlich JA and Habersberger AJA agreeing).

[134] McKenzie v Topp [2004] VSC 90, [46] (Nettle J).

[135] Churton v Christian (1988) 13 NSWLR 241, 243 (Mahoney JA).

[136] Section 96(1) was repealed by s 58 of the Wills Act 1997.

[137] In the Matter of the Will of GG Sitch (deceased) [2005] VSC 308, [95] (Gillard J).

[138] Wenn v Howard [1967] VicRp 12; [1967] VR 91, 95 (McInerney J); Collicoat v McMillan [1999] 3 VR 803, [45] (Ormiston J).

[139] McKenzie v Topp [2004] VSC 90, [45] (Nettle J).

[140] Herszlikowicz v Czarny [2005] VSCA 354, [156] (Hargrave J).

[141] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 497 (Gibbs J, Stephen and Mason JJ agreeing); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 (Gibbs J).

[142] Coates v National Trustees Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 510 (Dixon CJ).

[143] Collicoat v McMillan [1999] 3 VR 803, 821 (Ormiston J).

[144] Unger v Sanchez [2009] VSC 541, [76] (Kaye J).

[145] Petrucci v Fields [2004] VSC 425, [49] (Mandie J).

[146] McKenzie v Topp [2004] VSC 90, [31] (Nettle J).

[147] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 498 (Gibbs J, Stephen and Mason JJ agreeing).

[148] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 134 (Fullagar and Menzies JJ); see also 137 (Windeyer J).

[149] Schmidt v Watkins [2002] VSC 273, [23]-[24] (Harper J); cf McKenzie v Topp [2004] VSC 90, [32]-[33] (Nettle J).

[150] Unger v Sanchez [2009] VSC 541, [78] (Kaye J).

[151] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308 (Kitto J).

[152] [2002] VSC 61.

[155] [2002] VSC 273.

[158] See Carter v O'Brien [2007] VSC 2 (Mandie J); Anslow v Journeaux [2009] VSC 250 (Beach J).

[159] [2004] VSC 90.

[160] Popple v Rowe [1998] 1 VR 651 (Winneke P, Brooking and Hayne JJ).

[161] McKenzie v Toop [2004] VSC 90, [17].

[163] [2007] VSC 399.

[165] [2005] VSC 323.

[169] [2006] VSC 113.

[172] [2010] VSCA 147.

[173] [2008] VSC 250.

[174] [2010] VSCA 147, [88] (Neave JA, Redlich JA and Habersberger AJA agreeing).

[175] [2008] VSC 250, [41].

[179] [2010] VSCA 147, [106].