1. By letter dated 25 May 2023, the applicant's general practitioner informed the applicant's solicitor that the applicant "should not ever return to heavy manual labour but ok to work 16-20 hours per week (per Dr Michael Nicholson's instructions) in light to medium work conditions". Dr Nicholson's instructions were not in evidence.

1. The applicant's wife, Mrs Sharon Jones, did not give evidence. The applicant adduced only minimal evidence about her financial position at the date of his mother's death other than to say, in summary, that she ceased to work in 2021 because of her own serious health problems and that she too withdrew the entire contents of her superannuation account in about 2022. The applicant said that his wife last worked on 3 January 2021. No corroborating evidence was adduced to support the assertions about Mrs Jones' superannuation account. The evidence about the applicant's wife's financial position was scant and it required corroboration. The Court was left with an incomplete picture of the financial position of the applicant and his family. It is not possible to draw any firm conclusions about the nature and source of Mrs Jones' financial position, her income and present superannuation balance (if any), whether she owns any assets, the nature of the activity evidenced by her bank statements showing a significant volume of gambling transactions and other expenditure, the frequent deposits into Mrs Jones' bank account by Hamish Jones and Sportsbet. The occasional deposits of Jobseeker payment into Mrs Jones' account were not explained.

1. The applicant's counsel submitted that the applicant has partially dependent children. I reject this submission because there is no evidence at all to support it. I assumed that this submission referred to one of the applicant's sons, Hamish Jones, a 31-year-old single man who is employed full-time as a credit officer for Aurora Energy. He earns an annual net salary of $60,000. He lives with the applicant and his wife but makes no contribution towards household expenses other than to "assist with groceries". He makes no contribution to the mortgage, or to energy or water bills. Hamish Jones said that while he owns a Ford XR6 Turbo, he drives his parents' Hyundai I30 (I prefer Hamish Jones's evidence on this point to the applicant's, who said that car is "off the road, and is basically sitting there unregistered now and not really going that well"). Sharon Jones' bank account statements disclose that Hamish Jones makes frequent deposits into - and receives frequent transfers from - her bank account, which appear to have something to do with online gambling via Sportsbet. The nature and rationale for these arrangements was not explained by anyone. The turnover in relation to these transactions amounted to over $23,000 within a period of about 12 months.

1. From the perspective of what the testatrix is taken to have known at the date of her death relevant to the question of the applicant's financial need, I am not satisfied that she ought to have foreseen that he and his wife would withdraw - let alone spend - all their superannuation as the applicant said they did. For the purpose of this point, I have accepted that Mrs Sharon Jones also withdrew and spent all her superannuation.

1. The applicant failed to discharge his obligation to disclose to the Court as fully and as frankly as possible all details of his - and his wife's - financial and material circumstances. He failed to adduce evidence explaining his wife's financial and material circumstances. That obligation extended to the circumstance of Hamish Jones living in the applicant's home "rent-free" while the applicant cannot cover his own weekly expenses. During the course of the hearing, the applicant said that information about Mrs Jones' superannuation was not provided because Shane Jones did not ask for it (see transcript p 30). The applicant's obligation also extended to providing an explanation to the Court of the apparently substantial gambling turnover concerning Mrs Jones and Hamish Jones. Neither the Court nor the interested party should be required to embark upon any search for information which the applicant himself had the obligation to provide: see Foye v Foye [2008] NSWSC 1305, at [14]-[15], cited in Barbuto v Barbuto [2019] NSWSC 1023 at [153]- [156] per Hallen J. Despite my observations on this point, the applicant's failures are not so significant as to totally undermine his credibility as a witness or to justify refusal of the application for that reason alone: the Act s 8. I have not drawn any adverse inferences against the applicant in relation to the gambling transactions except to the extent that they highlight his failure to discharge his obligation of full disclosure.

Totality of the relationship between the applicant and the testatrix

1. The evidence of the relationship between the applicant and the testatrix appears to have been without conflict or difficulty up until the last year or so of the testatrix's life. Strong evidence of that good relationship is to be found in his efforts in maintaining his mother's home. During the last 16-18 months of his mother's life, the applicant explained that he did not visit her because he "did not want her to see her sons fighting". There is no evidence that the applicant attempted to maintain his relationship with his mother at all during this period. It is open to conclude that it was possible for the applicant to maintain contact with his mother in some way that did not involve seeing her sons fighting. The applicant says that Shane did not tell him what nursing home his mother was in while the bathroom renovations were being done. Even so, there is no evidence that the applicant made any attempt at all to ask Shane about his mother's whereabouts.

The relationship between the testatrix and Shane Jones

1. At the date the testatrix executed her will, she effectively bequeathed the entirety of her estate to her son Shane, who had recently moved in with her on the basis (which I accept) that he would care for her for the rest of her life.

1. Shane Jones is the 57-year-old son of the testatrix. He was 54 at the date of her death. He receives a disability support pension due to type 2 diabetes, chronic heart disease and severe back issues due to a workplace accident. He also suffers from serious heart problems and in 2022 he was assessed as having a very high risk of a cardiac event.[6]

1. I accept Shane Jones' evidence that in about 1998 or 1999 at age 32, the testatrix asked him to come and live with her, to help maintain her property and to care for her because she was starting to need assistance around the house. Also, Shane needed somewhere to live after his divorce. The testatrix made her will shortly afterwards, on 14 January 2000. These arrangements endured for the following 24 years during which Shane lived with the testatrix and provided her with social, emotional, domestic and medical support until her death on 12 May 2022. I accept that he performed substantial renovations and maintenance on the testatrix's home. As stated above, I do not overlook that the applicant also provided significant assistance in property maintenance. The testatrix and Shane were very close, and he provided her with wide-ranging care and support extending to all aspects of her life.

1. At the end of the testatrix's life, she had temporarily moved into a nursing home, while renovations were carried out at 2 Havelock Avenue in order to make the house safer for her.

1. I find that Shane Jones had a financial dependence on his mother which was a result of the long duration of the arrangement between him and his mother. This is a significant element to Shane Jones' strong competing claim on the estate.

The applicant was left without adequate provision for his proper maintenance and support

1. The issue for determination is whether, without provision from the estate, the applicant has been left without adequate provision for his proper maintenance and support. The obvious inference to be drawn from the testatrix's will dated 14 January 2000 is that when it was executed, because Shane was living with her and caring for her, that on her death he would have the full benefit of her only substantial asset and the resulting measure of financial and accommodation security that would afford. Those arrangements remained in place during the following 22 years until the testatrix's death on 12 May 2022.

1. When the testatrix made her will, the applicant was not in any financial need. He could support himself comfortably and was likely to be able to do so for the rest of his life. At the date of her death, the situation was different. At that date, a wise and just testatrix would have given close consideration to the fact that the applicant's health had worsened over the years and at that date had a significant impact on his present and future capacity to work and earn money. The applicant's wife's poor health at this time also should have raised reasonable concerns about her present and future capacity to financially contribute. Taking these matters into account, together with all of those considerations above, I am satisfied that the jurisdictional question should be decided in the applicant's favour. I am satisfied that at the date of the testatrix's death, the applicant was left without adequate provision for his proper maintenance and support.

1. I turn now to the second, discretionary, stage. The Court's primary duty is to give effect, as far as possible, to the deceased's testamentary directions, which may only be infringed to the extent necessary to fulfil her moral duty. In exercising the discretion, in addition to the matters considered above, I have had regard to the economic circumstances of both the deceased and the applicant, the size of the estate and the competing claim on the estate. The applicant does not need to demonstrate that his financial needs are greater than Shane's, despite Shane's competing claim being a significant consideration: Dean v Collins (No. 2) [2015] WASCA 151 at [26] (per Chaney J with whom Martin CJ and Buss JA agreed).

1. The applicant is the joint tenant of a home valued at over $675,000 with a mortgage of about $73,000. He has about $50,000 in other assets inclusive of superannuation. He is capable of working but is probably working more hours than he should, given the state of his health. He is presently earning $60,000. His health continues to decline. While the evidence was not particularly clear, it appears to be the case that the applicant had about $10,000 in superannuation at the date of his mother's death, which is accumulating at about $143.75 per week since he returned to work in August 2023.[7] I have mentioned above, the considerable difficulty in reaching a state of satisfaction about the wider financial circumstances of the applicant's family, which in turn causes difficulty in the assessment of the quantum.

1. Shane Jones' competing claim is strong. His working capacity is significantly limited. He has been in receipt of a disability support pension since 2003. He has about $67,000 in superannuation and about $5,500 in savings. He has no other assets of significant value. The Act is not directed at securing a fair outcome as between family members: Dal Pont & Mackie, Law of Succession at 15.14. The Act "does not licence the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the [applicant] has few resources". That is so even where a party with a competing claim such as the residuary beneficiary under the will is relatively well-off. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318 at [213] per Dodds-Streeton J. Shane Jones is not well-off, but the principle is apposite.

1. My assessment of all the circumstances relevant to the question of the proper maintenance and support for the applicant is that the sum of $100,000 amounts to adequate provision. An order will be made in those terms.

1. The order reflecting provision for the applicant operates and takes effect as a codicil to the testatrix's will: s 9(3). Paragraph 3 of the will should reflect that the trustee holds the whole of the estate on trust:
   • - to pay the debts, funeral and testamentary expenses and all duty payable on the testatrix's estate (whether actual or notional);
   • - to pay $100,000 to the applicant;
   • - to distribute the residue of the estate to Shane Desmond Jones;

1. I ask that the parties attempt to agree orders which will give effect to the provision made. The orders should also give effect to the additional following matters. A certified copy of this order is to be made upon the probate of the will, and the grant of probate will need to be brought into Court for that purpose: s 9(2). I also invite the parties to agree what orders should dispose of the question of costs. If agreement to appropriate orders cannot be reached, each party has liberty to submit their draft orders and request a relisting.

[1] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494.

[2] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208; White v Barron [1980] HCA 14, (1980) 144 CLR 431; Gerlach v Public Trustee unreported 153/1997 at 4.

[3] See more generally Karimalis v Kapodistrias [2022] TASSC 25 per Holt AsJ at [12].

[4] Also citing Re Allen, Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218 per Salmond J at p 220; Hughes v National Trustees, Executor & Agency Co of A/asia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147-148.

[5] Litchfield v Smith [2010] VSC 466 at [26]; See also Hughes v National Trustees, Executor & Agency Co of A/asia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147-148.

[6] Judge's papers, p. 45, Annexure SJ-1 to the affidavit of Shane Jones sworn 7 December 2023 (however the annexure sheet erroneously refers to the affidavit as that of Michael Jones).

[7] See Transcript p. 31 and the payslip at Annexure MJJ-2 to the applicant's affidavit affirmed 16 August 2024.