Llewellyn v Chitalu and Hopker [2026] VCC 401

Margaret Elizabeth Hopker Llewellyn died on 26 September 2023. She was 81 years of age. The deceased was a widow, whose husband died in 1993. The deceased had one child, Matthew James Hopker Llewellyn, aged 57 years born in April 1969. Matthew's son, James Pedro Hopker Llewellyn, aged 24 years born in July 2001 is the deceased's grandson and the plaintiff in this proceeding.
The deceased executed her last will and testament on 12 September 2023 (Will). The deceased appointed Chewe Chitalu, the first named defendant and the deceased's surviving sister, Olive Marie Hopker, the second named defendant as executors of the Will and trustees to the deceased's estate. According to the Will, the deceased left $200,000 to her son, Matthew, all of her jewellery to her sister, Olive, and all residual estate to be held in trust to Chewe and Chewe's husband, Joseph Nsenduluka, in equal shares.[1] The Will makes no provision or bequest for the plaintiff. Probate was granted to the defendants on 29 January 2024.
Matthew made a testator's family maintenance claim against the estate for further provision. The proceeding settled with a settlement deed executed on 5 September 2025,[2] which provided for a total provision to Matthew out of the estate in the amount of $285,000, inclusive of the provision bequeathed to him in the Will and legal costs.
The most recent inventory of assets and liabilities dated 19 December 2023 estimates the value of the deceased's estate at $1,291,408.79.[3] But $285,000 payable out of the estate to Matthew pursuant to the settlement described above is self-evidently not accounted for in this inventory,[4] because the settlement was made almost two years after it was prepared. The assets primarily comprise real property, the estimated value of which has not been obtained through a formal valuation, but from a market appraisal.[5] The deceased's estate comprises the following assets:

Llewellyn v Chitalu and Hopker [2026] VCC 401 | Case summary | Zoe

[14]

The opening words - "In making a family provision order" - of s 91A(1) and (2) of the Act are read as respectively requiring or permitting the Court to have regard to the identified matters when deciding whether to make a family provision order, including deciding whether the jurisdictional requirements are satisfied, and the amount of provision to be made, if any. In the result the factors in s 91A are relevant to the application of s 91(4) and (5). They are also relevant to the exercise of the discretion in s 91(1) whether to make an order at all.[11]
Both ss 91(2)(b) and 91(4)(d) of the Act raise questions of an eligible person's dependency on the deceased. In Veniou v Equity Trustees Limited,[12] Lansdowne AsJ opined that for the purposes of s 91(2)(b), the Court is to assess the dependence at any point in time prior to the deceased's death, whereas in s 91(4)(d), the dependence must be assessed at the time of the deceased's death:
1. In my view, there is little real difference between the various dictionary definitions put forward in relation to the temporal requirement of being 'dependent'. I consider that the use of the present tense in all the proposed definitions assumes a current state of dependence, not a future state. The Act in turn specifies the point at which that current state of dependence is required. In s 91(2)(b) no particular point in time is specified. The fact that the deceased has died necessarily means that the dependence must have been before her death, but as no particular point in time is specified I proceed on the basis that whole or partial dependence at any point in time prior to that death is sufficient for that paragraph. In s 91(4)(d) by contrast, the dependence must have been at the time of the deceased's death.[13]
This is hardly surprising since s 91(2)(b) of the Act is concerned with a jurisdictional precondition to the exercise of power, while s 91(4)(d) is concerned with the exercise of the power in deciding the quantum, if any, of the provision to be made. And so a plaintiff may establish dependency for the purposes of enlivening the Court's jurisdiction pursuant to s 91(2) of the Act, but fail to show any dependency at the date of the deceased's death.[14] Dependency for proper maintenance and support must have existed prior to the deceased's death, and there must be actual material aid given to that end. Mere emotional dependency is not enough.[15]
The phrase "moral duty" is not defined in the Act and neither party addressed its meaning. In this regard the Court of Appeal in McFarlane v McFarlane[16] recently noted that it was not clear whether 'moral duty' to which the Act refers is the same as that identified in the earlier case law, tied to the deceased's available resources which define its scope, or whether it is a more diffuse responsibility to provide, if circumstances permit, to be considered in a more confined way.[17] The Court of Appeal noted that:
1. 63. . . . Under the previous legislation, which did not use the expression 'moral duty' but required that the testator have a more diffuse 'responsibility' to provide for the applicant, the courts applied the notion of a moral duty to explain the rationale for making an order for provision. The existence of a 'moral duty' was held to supply the justification for curial intervention, and simultaneously the limit to its legitimate exercise. So understood, the court needed to not only identify a moral duty but to decide its scope. This in turn informed the determination whether the provision that had been made was 'adequate'. It was put this way:

[16]

And although expressing reluctance to decide the issue,[19] the Court of Appeal nevertheless at least countenances a "diffuse responsibility" approach as the following passages show:
1. 94. Taking the steps in s 91(2) sequentially, we consider that Brian owed a 'moral duty', in the more diffuse sense of a responsibility, to make provision for Adam, an eligible person, if there were resources available to do so. It may be accepted that the content of the duty is attenuated in circumstances where Adam is gainfully employed and he and Amanda have a significant joint income, but in our view the duty still subsists in circumstances where Adam, aged in his fifties, cannot afford a deposit on a house, having 'fallen on hard times' as a result of his divorce.
We next conclude that the distribution of Brian's estate failed to make adequate provision for Adam. It may be recalled that by his 2018 will, Brian bequeathed Adam a one-fifth share in his estate only in the event that Brian survived Heather. Since Brian predeceased her, however, Heather received the entire benefit of his estate. Adam might have ultimately received a one-fifth share of Heather's estate under her 2018 will, but for his institution of the present proceeding, which led her to make a new will (as she was entitled to do). Although Heather indicated that she might change her will again at some point, at present Adam stands to receive nothing at all.
As appears from what follows, we would reach the same conclusion whether we treated 'moral duty' in s 91(2)(c) as encompassing the extent of the justification for curial intervention, in conformity with the use of that expression in the case law, or whether we applied the provisions sequentially with 'moral duty' meaning a more diffuse responsibility to make provision, if circumstances permit. As we have indicated, it is not necessary, or desirable, for us to decide the question of construction.[20]
Deciding whether an extant 'moral duty' has been fulfilled is relative to the concepts of what is 'adequate' and 'proper' as the Court of Appeal in Gash v Ruzicka[21] accepted:
1. In determining whether the deceased has fulfilled his or her moral duty, and the extent of any provision to be ordered, the Court must have regard to the relative concepts of 'adequate' and 'proper'. Adequacy is assessed by reference to the Court's inherent knowledge and inquiry into current social conditions and standards. In this context, it is necessary that an applicant demonstrate need in order to be successful in his or her claim; mere proof of a moral duty is not in itself adequate. However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is 'not restricted to the requirements of basic necessity or sustenance'.[22](footnotes omitted)
As to the assessment whether the distribution of the deceased's estate fails to make 'adequate' provision for the 'proper' maintenance and support of the eligible person, and if so, what provision should be made, the High Court in Singer v Berghouse[23], explained:
1. The first question is, was the provision (if any) made for the applicant "inadequate for (his or her) proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v. Perpetual Trustee Co. ((8) (1938) AC at 476.). The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
2. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v. Leeder ((9) [1951] HCA 44; (1951) 82 CLR 645.), where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.[24]
Determining the adequate provision for the proper maintenance and support was considered in Smith v Jones,[25] by asking what further provision a wise and just testator would have thought it has a moral duty to provide.[26] Bell J in Whitehead v State Trustees Limited[27] said:
1. The power [to] (sic) 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. 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' ...
2. The courts have frequently emphasised that the provision must be both 'adequate' and 'proper', that 'proper' is 'something different' to 'adequate' and both words 'must be given their full value'. 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'. 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'. What is adequate and proper 'must always be relative' and will depend on 'all the circumstances of the case' ...
3. 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. Interference with the deceased's freedom of testamentary disposition is justified and authorised only in those circumstances and to that extent. 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.[28] (footnotes omitted)
Proper maintenance is not limited to the bare sustenance of the plaintiff. Rather, assessing what proper maintenance may entail requires consideration of the totality of the plaintiff's position in life including his age, status, relationship with the deceased, financial circumstances, the environs to which he is accustomed, and his mobility.[29] Overall, in considering what is necessary for the proper maintenance and support of the plaintiff, the assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations.[30]

[22]

The plaintiff was born in Western Australia in July 2001 and is 24 years of age. He has 2 siblings, Joshua born in 2004 and Jessica born in 2007. The plaintiff's parents started a relationship in 1997 and divorced in 2015. For a while, the plaintiff's parents had been living separately under the same roof, and are currently working on reconciling their relationship.[32] When the plaintiff was 12 years old, he was assessed by the Child Infant and Family Tertiary Service in Southern New South Wales and diagnosed with meeting the criteria for autism spectrum disorder.[33]
The plaintiff and his family moved to Canberra in 2015, and the plaintiff attended Queanbeyan High School in New South Wales. The plaintiff, along with his father and siblings, visited his grandmother in Berwick most school holidays for around a week or two at a time.[34] After the plaintiff completed Year 12 in 2019, he was moved to live with his grandmother at her Berwick home. The plaintiff lived at the property with his grandmother until her death, and for nearly two years thereafter with the first named defendant and her family. The plaintiff's mother, father and siblings live in a rented unit in Queanbeyan.[35]
In 2020 the plaintiff considered pursuing a TAFE qualification but did not. Instead, he decided to look for work whilst receiving Centrelink benefits. In 2021, the plaintiff worked 3 days cleaning with Joseph Nsenduluka, the first name defendant's husband, at Forrest Hill for which the plaintiff says he was not paid. In April of 2022, the plaintiff worked as a janitor at Knoxfield for 2 months, whilst continuing to receive Centrelink benefits. The plaintiff received a $2,000 Centrelink payment on one occasion, and thereafter his payments reduced from $750 to around $350 every fortnight.[36] In July 2023, the plaintiff worked as a casual at a L'Oreal warehouse for 2 months, but left because he was not rostered with sufficient frequency.[37] In September 2023, one week before his grandmother died, the plaintiff started work at Hard Chrome, an electroplating business.[38] The plaintiff continues to be employed at Hard Chrome as an electroplater/process worker, on a full-time basis working night shifts, earning around $1,100.00 to $1,250.00 gross per week, approximately $1,000.00 net per week.[39]
The plaintiff underwent a neurological assessment with a report dated 8 July 2025 prepared by Dr Zhi Xiang On from Back On Track Psychology.[40] Dr On recorded that the plaintiff met the diagnostic criteria of autism spectrum disorder and recorded the following findings:[41]
- The plaintiff presents no evidence of intellectual disability, however, he "exhibited severe deficits in verbal comprehension, new learnings and memory, executive functioning, and social perception ... these domain-specific weaknesses substantially limit his independent functioning and contribute to his high support needs in daily life, communication, and decision-making contexts."
- The plaintiff does not present any evidence of a mood disorder.
- "[The plaintiff] lacks the functional ability to manage complex financial or legal matters independently. While he can manage basic daily finances (with some difficulties), he does not grasp the long-term consequences of financial decisions, has no established savings habits, and exhibits impulse spending. Accordingly, the appointment of an independent financial administrator (i.e., the State Trustee) is strongly indicated should he receive a large settlement / inheritance."
- With respect to daily functioning, "[the plaintiff] demonstrates significantly impaired daily functioning across multiple domains, including self‐care, household management, financial decision‐making, and social engagement. While he can maintain basic hygiene and attend work with support, he relies heavily on others (particularly his friend Ms Orwin) for essential tasks such as washing clothes, managing money, and understanding day‐to‐day responsibilities ... His poor executive functioning, limited adaptive skills, and difficulty navigating social or community situations further reduce his independence. Given these challenges, [the plaintiff] would benefit from ongoing support. He would benefit from the National Disability Insurance Scheme (NDIS), including support coordination, support worker input, occupational therapy, speech pathologist and psychologist input."
Dr On opined:
- The plaintiff requires substantial support in both social communication and restricted (repetitive behaviours) accompanied by expressive language disorder. The plaintiff's presentation "significantly constrains his ability to comprehend, formulate, and articulate complex verbal information ... his cognitive profile is marked with severe impairment in verbal comprehension, new learning and memory, and higher-order executive skills (planning, inhibition, and cognitive flexibility). He exhibit (sic) difficulties to understand abstract or nuanced language, misinterprets social cues, and has great difficulty organising multi-step tasks or adapting to unexpected demands."
- "[The plaintiff] does not have the capacity to independently manage complex financial matters, particularly involving large sums of money. His significant impairments in executive functioning and new learning limit his ability to understand financial concepts, weigh options, and foresee the consequences of financial decisions. He has no savings, unable to do budgeting, engages in impulsive spending, and openly states he would not know what to do with a large amount of money. Given these vulnerabilities, it is strongly recommended that a financial administrator (such as the State Trustee) be appointed to manage any significant funds on his behalf, to ensure his financial well‐being is protected and that resources are used appropriately to support his long‐term needs."
- "[The plaintiff] can attend to basic self-care but is otherwise highly dependent on informal supports ... Instrumental activities of daily living (i.e., budgeting, grocery shopping, meal preparation, laundering, and navigating bureaucratic requirements) are undertaken or supervised by his friend and litigation-support person, Ms Orwin. At work, he manages a repetitive manual role only with a clear structure and routine, but he continues to receive verbal warnings when multitasking demands escalate."
Given the plaintiff's profile, Dr On concluded the plaintiff will "benefit from ongoing support (such as application for the NDIS), targeted interventions in adaptive living skills (occupational therapy and support worker), pragmatic and expressive language training (speech pathology), and neuroaffirming psychological care to address stress and decision-making. These supports, combined with formal financial guardianship, are essential to ensure his well‐being, protect him from exploitation, and allow him to fully engage in community and employment settings his abilities permit".

[23]

After the plaintiff completed Year 12 in 2019, he moved to Melbourne to live with his grandmother at Berwick.[42] At the time, Chewe, Joseph and their 2 children were also living in the deceased's home. The Berwick property had 4 bedrooms - one bedroom was shared by Chewe, Joseph and their youngest child; while James, the deceased, and Chewe's eldest child each occupied separate bedrooms.[43] The plaintiff shared a bathroom with his grandmother.[44]
Prior to the plaintiff's re-location to Berwick, he lived with his mother, father and 2 siblings in his father's rental two-bedroom unit in Queanbeyan.[45] The plaintiff said that the decision to move him was made on short, or with little to no notice, and that he did not know that he was going to move to Berwick to live with his grandmother until the last week or the day before, and he did not know that he was going to live there permanently.[46] The plaintiff said that the relocation was his father's idea and the plaintiff was under the impression that he would stay with his grandmother only for a few days as a holiday,[47] or temporarily as his father's rental unit was too small for the whole family to live in, and the plaintiff had been sleeping on the sofa downstairs as he did his entire school life.[48]
The plaintiff said that he travelled from Queanbeyan to Berwick with his father. The plaintiff explained that when he arrived at his grandmother's house, his father left, and the plaintiff knew about 2 days into his stay with the deceased that his father would not come back for him. The plaintiff felt annoyed by what had happened.[49] The plaintiff said his father did not tell him when he will come back to collect him, and that his grandmother was "dumbfounded" by what had happened.[50] The plaintiff said that when he realised he would not be returning to his father and siblings, his grandmother told him just to stay with her "until something happens"[51] and that he could stay there for as long as he wanted.[52]
During his evidence Matthew explained that the arrangement to send the plaintiff to live with the deceased arose after the plaintiff completed Year 12. The plaintiff was living in his father's rental unit on the couch, along with his 2 siblings. The number of persons living in the unit apparently exceeded the number of residents permitted by the lease, so Matthew said he spoke with the plaintiff and the deceased over the phone about relocating the plaintiff to a spare bedroom at his mother's Berwick property .[53] Matthew said that in addition to the plaintiff having his own large bedroom there, the property was also close to a bus and railway station, making it easier for the plaintiff to commute to jobs if he wished to do so.[54] According to Matthew, during his discussion with his mother, she said "[b]ring [the plaintiff] down, I've got a spare bedroom"[55], because she apparently saw the benefits of the plaintiff staying in a large bedroom rather than sleeping on his father's sofa.[56] Matthew believed, based on his mother's response, that she understood the plaintiff would live with her at Berwick permanently.[57] Matthew said that the arrangement was that the plaintiff be given free accommodation and the deceased sought only a contribution to utilities.[58]
Matthew said that he had an agreement with his mother for her to accommodate the plaintiff, but his evidence about that agreement was vague and appeared to rely on what he thought his mother understood as the transcript extracts below show:

[53]

The plaintiff deposed that he and the deceased had a "very close relationship throughout the deceased's life, up to her final years"[65] and that whilst he was living in Berwick, he assisted the deceased with shopping, lifting and chores.[66] The plaintiff was not paying rent while living with his grandmother, but he contributed to household expenses, such as bills and food - around $150 a fortnight.[67]
The plaintiff gave oral evidence that he generally did not do tasks around the house at his grandmother's request, aside from minimal cleaning[68] and did not do any maintenance or gardening.[69] The plaintiff said that his grandmother would on occasion ask him to do cleaning around the house, which he refused to do.[70] The plaintiff said that his interactions with his grandmother arising from his refusal to do chores would be confrontational and she would be "horrible",[71] but that otherwise, their interactions were generally "neutral".[72]
The plaintiff said that he and his grandmother would visit "a few places here and there", such as a day trip to Tooradin, and that he accompanied his grandmother to physiotherapy but remained in the car outside the building.[73] The plaintiff would also go to Synagogue with his grandmother, but would remain in the car until the service was finished.[74] The plaintiff and his grandmother would occasionally go to cafés to have lunch and coffee, maybe around 2 times a week.[75] The plaintiff said that he had attended the "Scienceworks" museum in Spotswood with his siblings, Chewe, Chewe's children and maybe his grandmother as well.[76] The plaintiff said that he and his grandmother did not share meals at the dinner table; instead he would spend most of his time in his bedroom, playing games or eating ready-made meals.[77]
The plaintiff said that he did not talk to his grandmother about his educational interests or aspirations, nor about what he wanted to do at TAFE. He said that his grandmother did not give him any guidance or suggestions about his education, and he generally did not talk to her about his interests. The plaintiff's grandmother did not play video games with him and that she merely liked to go to the Synagogue and watch TV.[78]
The plaintiff said that when he relocated to Berwick, he needed his grandmother's assistance and support as he did not have a driver's license, so his grandmother would occasionally drive him to the shops, chemist, or anywhere he needed to go.[79] Matthew gave evidence that when he visited the plaintiff and deceased in Berwick during the school holidays, he observed the deceased giving the plaintiff a lift sometimes.[80] The plaintiff said that when he applied for Centrelink benefits, Matthew helped him fill out the form, but his grandmother helped him finish it and drove him to the Centrelink office to hand in the documents.[81] Matthew explained that as the plaintiff had just finished Year 12 when he moved to Berwick, he took the plaintiff immediately to Centrelink to apply for unemployment benefits as the arrangement was that the plaintiff pay for the utilities at the Berwick residence.[82]
According to the defendants' position paper, when the plaintiff arrived at Berwick in 2019, he had limited social skills and that Chewe, Joseph and the deceased assisted the plaintiff to develop his skills so that he could be more self-reliant and self-sufficient.[83] Joseph gave evidence that he would have chats with the plaintiff, gave him driving lessons so that he could work towards obtaining a driver's license and help draft his résumé. Joseph said that the deceased asked him to include the plaintiff in activities so that he could find a job, and so, Joseph arranged for the plaintiff to train and work as a cleaner at Forest Hill to build his work experience. Joseph said that he would occasionally pick up the plaintiff and drop him off wherever he went,[84] including on occasions when the deceased was unable to do so.[85] The defendants also indicated in their position paper that Joseph provided the plaintiff with guidance and support.[86] The plaintiff gave oral evidence that Chewe escorted the plaintiff to collect his vehicle when he purchased it.[87]
Matthew made several trips to Melbourne to visit the plaintiff and the deceased, specifically 2 trips in 2019, once in 2020 for Christmas and Hanukkah, 2 trips in 2021 and 4 trips in 2022, the year before the deceased died. Matthew's observations of the plaintiff and the deceased were that "they'd always been close" and nothing had changed.[88] Matthew said that they would go to Synagogue and do shopping together, and the plaintiff would carry the shopping for the deceased. Matthew deposed that during the 4 years that the plaintiff lived with the deceased, the plaintiff would assist the deceased with shopping, lifting and reaching heights.[89] Matthew said on observation of their interactions, "they seemed to get along okay", it "seem[ed] like a positive relationship on the whole", and that the deceased "always seemed happy for [the plaintiff] to keep living there".[90] Matthew said that the deceased did not express any disquiet about the plaintiff continuing to live with her at Berwick, but that in or around August 2023, Matthew received a phone call from Chewe asking him to come back. Matthew said that he believed it was Chewe who wanted the plaintiff to leave.[91] Matthew's "belief" is however inconsistent with the fact that Chewe allowed the plaintiff to continue living with her and her family at Berwick for almost two years after the plaintiff's grandmother died until the plaintiff left in September 2025 as "it felt uncomfortable" because of these court proceedings.[92]
I do not accept Matthew's evidence about the relationship between the plaintiff and his grandmother. First, Matthew's visits to Melbourne were infrequent and so he is unable to give a complete picture about the relationship upon which he opines. Second, his evidence is inconsistent with the plaintiff's evidence that he rarely interacted with his grandmother at home, that he did not discuss his educational aspirations or needs with his grandmother, that he refused to help out with chores, that his interactions with his grandmother arising from his refusal to do chores would be confrontational and she would be horrible, that he ate meals in his room, that they had no shared interests and that when he attended Synagogue with his grandmother or accompanied her to physiotherapy he stayed in the car. The plaintiff's own assessment of his interactions with his grandmother as generally "neutral" is a much more reliable guide.
It is convenient here to deal with a dispute about the admissibility of a series of text messages said to have passed between the deceased and Matthew in or around the early months of 2023 which the defendants sought be tendered in evidence for the purpose of impugning Matthew's credit. These were marked for identification as MFI 1 pending my ruling. The plaintiff objected to their tender. The defendants argued for the admissibility of the text messages on two bases. First, because the evidence in them tends to prove that Matthew has made a prior inconsistent statement. Second, on the basis that the substance of the evidence in the text messages was put to Matthew, and he denied or did not admit or did not agree to the substance of the evidence and so leave should be given to the defendants to adduce the evidence.
There is no dispute that the evidence sought to be adduced is credibility evidence in that it is relevant only because it affects the assessment of the credibility of Matthew.[93] Consequently the starting point is that credibility evidence about a witness is not admissible.[94] Exceptions to the prohibition are found in, relevantly, s 106 of the Evidence Act 2008. And it is on two of these that the defendants rely.
As to the first, the contention about proving that Matthew has made a prior inconsistent statement is misconceived because "prior inconsistent statement" means a 'previous representation' given by a witness which is inconsistent with the evidence given by that witness and "previous representation" means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.[95]
Here the so-called prior inconsistent statement which the text messages seek to impugn is the evidence given during these proceedings about the good relationship Matthew says the plaintiff had with his grandmother, and specifically whether the plaintiff's grandmother was still content to have the plaintiff live with her. Self-evidently that evidence cannot be a prior inconsistent statement within the meaning of the Evidence Act. Consequently, the first basis advanced does not provide any foundation for admitting the text messages.
As to the second basis, I do not accept that the putting of the substance of the evidence to the witness as contemplated by the exception in s106 (1) of the Evidence Act has been satisfied. Whilst I accept that Matthew was taken to the text messages he was not asked whether he denied or admitted or agreed with the substance of that which is set out in the text messages. Instead, he was asked whether he stood by his earlier evidence about the fact that the relationship between the plaintiff and his grandmother was good and that she was happy to have Matthew living with her.[96]
Matthew was not asked for example whether he accepted that in or around the early part of 2023, the plaintiff's grandmother was unhappy, or frustrated, or angry about the plaintiff's behaviour or the continued viability of having the plaintiff live with her. Matthew simply said he stood by his evidence and that the relationship was good making allowances for the plaintiff's autism.[97]
The exception in s 106(1) requires satisfaction of two things before leave to adduce credibility evidence may be given. First, that the substance of the evidence here in the form of the text messages was put to the witness. I consider that the substance was put in that Matthew was taken to the text messages which are sought to be tendered in evidence and he read the messages. The second is that the witness denied, or did not admit, or agree to, the substance of the evidence. It is the second limb that is not established because he was not asked to do so here. Rather he was simply asked whether he stood by his earlier evidence. That is not in my view the same thing. Consequently, I do not consider there is any basis for leave to adduce the text messages as evidence.
Accordingly, the text messages in documents marked MFI 1 are inadmissible.
The evidence of the relationship does not overtly bespeak a loving, caring and close relationship between the plaintiff and his grandmother. The plaintiff started living with his grandmother at Berwick in 2019 continuing to live there until her death in 2023. The plaintiff described his relationship with his grandmother as "very close" up to her final years, but he also described interactions with his grandmother as generally neutral. The plaintiff appears to have done little by way of contribution to the household, refusing to undertake basic chores, becoming argumentative when asked to do so and spending long periods while at the house in his room including when eating most of his meals. On his own evidence the relationship was somewhat turbulent, arising from his refusal to assist with general household chores around the house. And the plaintiff explained that he would get confrontational and his grandmother would be horrible.
The plaintiff also said that he and the deceased would occasionally go to the shops together, have coffee and lunch, go to Synagogue and accompany her to physiotherapy, albeit the plaintiff said that he would remain in the car until the service and physiotherapy session was finished, and that they would visit a few places here and there, such as a day trip to Tooradin. The plaintiff said that he and his grandmother did not share meals at the dinner table, but he would instead spend most of his time in his bedroom, either playing video games or eating ready-made meals. The plaintiff said that he did not talk to his grandmother about education aspirations, education or general interests. He said his grandmother did not give him any guidance or suggestions about his education.
Chewe gave evidence that the relationship between the plaintiff and the deceased was "up and down ... sometimes good, sometimes not good."[98] Chewe described the relationship as 'good' when the plaintiff would escort the deceased shopping. She would describe the relationship as 'not good' when the deceased would ask the plaintiff to clean the shared shower and the plaintiff would refuse. Chewe said that the deceased would ask her to speak with the plaintiff, and that when she did the plaintiff would sometimes listen to her, but oftentimes, Chewe would do the job herself.[99] Chewe gave evidence that living with the plaintiff "was okay, but became challenging at times", because of the conflict between the plaintiff and the deceased.[100] Chewe said that she observed the plaintiff to be very unhappy with the deceased's requests to assist with cleaning the bathroom or helping around the house and that he would be "aggressive" towards the deceased.[101] Chewe also said that the plaintiff would not assist with the cooking and did not join the family for meals, except for special occasions like Christmas.[102]
Chewe's evidence about the relationship between the plaintiff and his grandmother is consistent with the plaintiff's own evidence and inconsistent with the evidence given by Matthew. I accept Chewe's evidence.
Joseph described the relationship between the plaintiff and the deceased as ok, it was up and down, "sometimes good, sometimes not good."[103] Joseph's evidence about the relationship corroborated Chewe's evidence and was consistent with the plaintiff's assessment of the relationship.[104]
When assessing the relationship all of the circumstances need to be considered, including the plaintiff's autism spectrum disorder.[105] As earlier noted, although the plaintiff does not present with an intellectual disability, he has exhibited severe deficits in verbal comprehension, new learnings and memory, executive functioning, and social perception. And these limit his independent functioning and contribute to his high support needs in daily life, communication, and decision-making contexts. It is not uncommon for tensions to arise between relatives living together as a matter of common human experience. And so, when such arose in the context of housing the plaintiff who has special needs and a more limited independent functioning by reason of his autism, the highs and lows in a relationship of the sort disclosed from the evidence is not atypical - rather it is likely expected.
Viewed in that context, the nature of the relationship between the plaintiff and the deceased does not seem to be out of the ordinary. The plaintiff lived with his grandmother between the ages of 18 to 21. His grandmother was elderly. She was 81 years old when she died and four times her grandson's age. For a young adult thrust into that circumstance, spending much of the time in his bedroom, and not having common interests with his elderly grandmother, and becoming argumentative when asked to undertake household chores is not altogether unusual - all the more so when account is taken of the plaintiff's autism and its impact on his daily functioning.
Moreover, although the evidence does not disclose the plaintiff and the deceased shared any particular interests, I do not accept that from there, one can conclude they had no common bond nor a mutual interest in each other's lives. To the contrary they would occasionally go to the shop together, have coffee or lunch, or go on a day trip. The evidence discloses that the plaintiff and his grandmother spent time together. Indeed, it appears that at the very least the deceased was content to allow her grandson to be with her, there is no evidence that she asked him to leave or that she would likely have taken that step in the foreseeable future had she not died. On the evidence I have earlier accepted, the plaintiff's grandmother was content to allow him to live with her for as long as he needed. Consequently, the defendant's submission that the plaintiff and his grandmother did not have a mutual interest in each other's lives cannot be accepted.

[55]

The plaintiff said that his grandmother did not give him any promises that the house would be left to him after her death, nor was there any expectation that he will continue to live there permanently. The plaintiff said that he was going to leave the Berwick residence after a few years but admitted that he hadn't been looking for anywhere to live at that stage, and that he had no plan with his grandmother about what would happen to him if she wasn't there.[106]
The plaintiff deposed that he planned to live with the deceased for the foreseeable future and that he had no capacity to move out.[107] At the time the plaintiff swore his affidavit on 13 October 2024, he deposed that he is dependent on Chewe and Joseph permitting him to continue to live in the Berwick property since his grandmother's death, but that he will not stay there for long as the property has been put on the market and he has no idea what he will do.[108] During the plaintiff's stay in the Berwick residence with Chewe, Joseph and their 2 children, the plaintiff was paying rent in the amount of $150 every fortnight by cash to Chewe.[109]
The plaintiff gave evidence that he no longer lives at Berwick and has not done so since in or around September 2025. He said that it was nice living with Chewe and Joseph, but that the court proceedings made things uncomfortable and tense, and that Chewe and Joseph told the plaintiff that the house will be put on the market, so it was ideal that he relocate elsewhere.[110] The plaintiff has since left and moved to a property in St Kilda,[111] where he pays no rent, bills nor utilities.[112] The plaintiff's landlord, Miriam Marlin Orwin gave oral evidence that she does not require the plaintiff to pay rent for his accommodation because currently there is no running water at the property. Miriam said that when the plaintiff was rendered homeless, the plaintiff stayed at her house for around a month and that he moved to the St Kilda property she owned on around 12 October 2025. Miriam said that once water is established at the property, the plaintiff will become a rental tenant and she will ask for $560 per week subject to negotiations, but she does not know how long it will take until water is established at the property.[113]
The plaintiff says that he has no assets of any value, no savings, no capacity to purchase or rent a property, and no money to pay a bond or furnish a property.[114] When the plaintiff was asked about his current financial circumstances and whether he has any savings, the plaintiff replied "[o]h, not much now."[115] The plaintiff gave oral evidence that in around 2024 he purchased a Toyota Camry 2016 for around $20,000 on finance at 7 to 8% interest over 3 years with weekly repayments around $160. The vehicle is currently with his friend as the plaintiff lost his license.[116] The plaintiff pays vehicle registration every three months which is $210, and pays insurance monthly in the amount of $240.[117] The plaintiff said that his friend who is currently keeping the car does not contribute to the insurance costs.[118]
As previously mentioned, the plaintiff remains employed as an electroplater/process worker at Hard Chrome, on a full-time basis working night shifts. The plaintiff did not set out his income in his affidavit, but gave oral evidence that he earns about $60,000 per annum, earning around $1,100-1,250.00 gross per week, approximately $1,000.00 net per week.[119] The plaintiff no longer receives Centrelink payments.[120] As the plaintiff's car is with his friend, he says that he has another friend who picks him up from home and drops him off at work every shift.[121]
The plaintiff says his current bank balance is around $200-$300.[122] The plaintiff has a superannuation account with Australian Ethical, but he does not know his superannuation balance.[123]
The plaintiff stated in his position paper that he otherwise has no significant liabilities,[124] but will need to pay for support services as his family lives in Canberra and are unable to support him.[125] However the plaintiff's oral evidence conflicted with this account. The plaintiff said in cross-examination that he does not pay any medical costs for his autism because it is mild, he does not take any medication, has no pharmacy or pharmaceutical costs, he does not see a psychologist and has no psychological costs. The plaintiff said he has no future medical costs, no costs for support services, and has not explored obtaining support from the NDIS as he believes he does not need it because his autism is not that bad.[126]
The plaintiff otherwise spends his money on purchasing video game, eating out and groceries.[127] The plaintiff says that he would like to own a property, in 10 years or so.[128] And if he receives a provision from the deceased's estate, he will keep the cash in a safety deposit box.[129] The plaintiff also says that he has never had any financial advice or assistance with any money matters.[130]

[60]

Chewe's mother met the deceased between 1993-1994 when Chewe's mother arrived in Melbourne from Zambia to study. Chewe's mother and the deceased formed a friendship, and they continued to regularly see one another.[139] In 2004, the deceased sponsored Chewe to live in Australia to study a nursing degree with Holmesglen Institute. Chewe lived with the deceased in a property in Ringwood whilst she was studying, and the deceased paid for Chewe's transportation, flight, nursing diploma and tuition costs. Chewe lived with the deceased in Ringwood until 2007-2008.[140] And she paid $60 a fortnight towards utilities, also cleaning the house weekly.[141]
The deceased met Chewe's partner, Joseph, at the end of 2004 or early 2005.[142] Joseph said that in the time that he, Chewe and the deceased knew each other, they had dinners together, they went sightseeing, they visited Phillip Island and constantly caught up.[143] Chewe described her relationship with the deceased as her only family and that the deceased was like a mother to her. Chewe said that the deceased was her support and guide in her career, well-being, family and everything with life.[144] Chewe moved out and lived on her own in or around 2007 and married Joseph in 2013.[145] Chewe and Joseph's first child was born in 2010 and the second, in 2017.[146]
Prior to the birth of their second child, Chewe and Joseph were renting a property in Pakenham. In around December or January 2016, their landlord told them that the house was going to be put on the market and they had to move out. As they were unable to find another rental property, the deceased had, at around the same time, moved to the Berwick residence and she asked Chewe and Joseph to move in with her. Chewe said that the deceased wanted them to move in with her so that Chewe and Joseph don't have to rush looking for another rental, especially because they had a small child. Chewe and Joseph did not initially agree to moving in with the deceased, but eventually did so, telling the deceased that they will only live with her for 6 months because they were comfortable with their own space and independence.[147]
Chewe and Joseph intended to find another rental property within 6 months after moving in with the deceased.[148] Chewe, Joseph and their only child at the time, moved in on 5 October 2016.[149] Chewe was working at a nursing home for around 20 hours a week, both weekends and nightshifts.[150] In 2022, Chewe and Joseph approached the deceased about wanting to move out, but the deceased told them that it would be sad for her, and as the plaintiff was living at the Berwick residence, the deceased told them that she was afraid to be alone with the plaintiff.[151]
Chewe said that the deceased was present at all Chewe's important events in her life, including the birth of both of her children, and considered the deceased to be a motherly figure in her life. Chewe said that as the deceased was a midwife, she shared advice and helped when Chewe had her children.[152]
Chewe and Joseph's evidence as set out above was not seriously challenged and I accept that evidence.

[62]

Chewe said that there was no arrangement with the deceased to pay rent. The arrangement was that Chewe and Joseph contribute to bills, maintain the property, cook meals and do laundry.[153] Chewe said that she and Joseph were paying the deceased $200 fortnightly, but then agreed to contribute to food, groceries and utility bills. The amount was subsequently increased to $300 a fortnight, and they made payment by cash to the deceased.[154] Chewe said that she and Joseph were paying for internet and Foxtel on a regular basis every month. On some occasions, she would make payments to electricity and water, and she would also occasionally contribute for groceries.[155] Chewe and Joseph gave oral evidence that Chewe did most of the cooking and cooked meals every day, and that Joseph would assist with the cooking on the weekends.[156]
Joseph, however, gave somewhat contradictory oral evidence, saying that he and Chewe were paying the deceased $200 for rent per fortnight, and that the rental amount increased to $300.[157] The amount contributed fortnightly was the same as that which Chewe had spoken about in her evidence but the purpose differed with Chewe suggesting the payment was a contribution to bills and food and groceries and suggesting that in addition they would "contribute to the shopping and groceries and things like that";[158] while Joseph thought the payment was "some sort of rental".[159] Not a lot turns on this apparent inconsistency. In the end, the import of the evidence is that a financial contribution was made, additional contributions were also made and that household cooking was undertaken by Chewe on weekdays and that Joseph would assist on weekends.
Chewe said that when she and her family moved in with the deceased in 2016, the deceased was in good health. In their first year living with the deceased, there were minimal things that the deceased required, however, her needs increased as she became inactive.[160] In December 2016, the deceased had fallen ill and remained in hospital for around a week. Chewe gave oral evidence that she assisted the deceased with cooking, managing the property, cleaning the house and general maintenance, including the yard, which was kept by Joseph.[161] Chewe said that the deceased recovered after a week or so.[162]
After the deceased was diagnosed with cancer in June 2023, Chewe said that the deceased required additional assistance, such as taking her medication on time and eating her food. Chewe said that at this point, she changed jobs and began working for Each, a community health service, as a mental health access worker, and she commenced working from home.[163] Chewe's position at Each was on a full-time basis.[164] Chewe said that the frequency with which she worked from home increased as she needed to support the deceased, such as driving the deceased to chemotherapy, to the St John of God Hospital, and she would go in the hospital with her laptop doing work while the deceased was having treatment.[165]
Chewe said that she also provided the deceased emotional support, and companionship. Chewe said that when the deceased fell ill, either her or Joseph would adjust work arrangements to take the deceased to medical appointments, follow up with doctor's reviews, as well as supporting the deceased after discharge from hospital until she had fully recovered. Chewe also assisted the deceased with activities of daily living including personal hygiene.[166] Chewe said that the only time she did not provide care to the deceased was in 2018 when she travelled to Zambia.[167] Chewe and Joseph sought alternative work arrangements so that they were able to meet the deceased's welfare and ensure that one of them was home with the deceased.[168] When the deceased's health deteriorated, her welfare needs increased and Chewe arranged home care and necessary equipment.[169]
The living arrangements at the Berwick residence were described by Joseph as "automatic" in that Chewe did most of the cooking in the house, Joseph would do most of the cleaning and outside work, the deceased would do the shopping now and then and they all shared the bills. Joseph said that he would perform outside tasks such as lawn mowing, cleaning, sweeping of the garden and cutting the trees.[170] Joseph incurred the costs associated with his work around the house.[171]
Joseph said that when he and Chewe were busy, the deceased would support them by picking their children up from school and dropping them off to piano lessons. Joseph said there were times that the deceased would buy the children school uniforms and pay for their tuition, specifically mathematics tuition.[172]
This evidence was also largely unchallenged and is accepted.

[65]

As already noted, the plaintiff lived with his grandmother at the Berwick property for 4 years until her death in September 2023. The plaintiff's grandmother allowed the plaintiff to live with her rent free, aside from contributing to household expenses, such as bills and food, which totalled around $150 a fortnight. When the plaintiff first arrived, he needed his grandmother's assistance and support as he did not have a driver's license, so his grandmother attended to his transport needs. In substance, the deceased provided shelter to the plaintiff from that time and until her death in circumstances where the plaintiff's father could not and did not provide shelter.
The plaintiff's grandmother helped him claim Centrelink benefits and she had spoken with Joseph to enlist his assistance in obtaining work for the plaintiff. Chewe and Joseph also drove the plaintiff to some places. The deceased, therefore, appears to have assumed responsibility for providing the plaintiff with accommodation, and to an extent, helping with his transportation and obtaining employment.
It may be accepted that the plaintiff was not solely reliant on his grandmother to meet his transport needs, and that he obtained job referrals from Centrelink, but it is also clear that his grandmother met his transport needs from time to time and that she spoke to Joseph about helping the plaintiff obtain a training job. Moreover that she did this and allowed the plaintiff to continue living with her rent free with no obvious plan or demand that he move on, suggests the existence of a moral duty on the part of the deceased to provide for the plaintiff by way of some practical support in his life. True it is that the plaintiff's grandmother did not provide him with advice about any educational or other aspirations or any particular guidance, but that is unsurprising given the significant age disparity and the likely impact of the plaintiff's autism on their relationship. But providing an adult grandson with autism impacting his capacity to function as earlier discussed, with rent-free accommodation for an indeterminate period in circumstances where his father could no longer accommodate the plaintiff is indicative of not only a readiness to provide for the plaintiff in the not insignificant area of accommodation but a moral duty to do so at the time of her death.
At the time of her death the plaintiff's grandmother would have known that he had no tertiary education and was not involved in any course of study. She will have known that the plaintiff had just stopped working as a casual employee at a L'Oreal warehouse and that about one week before she died, the plaintiff started work at Hard Chrome, an electroplating business in low skilled employment as an electroplater/process worker. It is in this context that the provision of free accommodation was significant. Considering his age, autism, patchy employment history and the level of income associated with process work, the plaintiff's capacity to secure alternative housing in the rental market much less look to purchase property was remote. The plaintiff had a financial need for secure accommodation and was dependant on his grandmother to provide him with accommodation. This was material, and in substance, financial, aid. On the evidence, his father Matthew was unable to do so. And so it appears to me that the plaintiff was partly dependent on his grandmother for his proper maintenance and support before and at the time of his grandmother's death and that at the time of his grandmother's death, she had a moral duty to provide for the plaintiff's proper maintenance and support.

[73]

The plaintiff's current earnings, savings and superannuation details are earlier set out. As the plaintiff has not been in paid employment for very long, his current superannuation fund balance is likely minimal. The plaintiff has a car on finance making repayments of around $160 every week. He pays vehicle registration quarterly which is $210, and insurance monthly in the amount of $240. The plaintiff was not at the date of hearing paying any rent for the property in St Kilda, but once the property is connected to water, the plaintiff will be paying about $560 per week subject to negotiations, along with bills and utilities. If the plaintiff's rental cost is to be that high, and there is no evidence to suggest otherwise, then that represents 56% of the plaintiff's net weekly income, meaning that the plaintiff is likely to suffer rental stress.
The plaintiff has no other assets of any value, no savings, no capacity to purchase or rent a property, no furniture, and no money to pay a bond or furnish a property. The plaintiff deposed that he had planned to live with the deceased for the foreseeable future and has no capacity to move out all though he since has done so. The plaintiff also noted in his position paper that he will have no place to live without the support of the deceased and that he will need to pay for support services as his family lives in Canberra and will not be able to support him. But in his oral evidence the plaintiff suggested he does not require support through the NDIS as he believes his autism is not that bad. The plaintiff says he does not see a psychologist and has not incurred any costs for support services. Aside from the liabilities mentioned above, the plaintiff otherwise spends his money on video game purchases, eating out and grocery shopping. Save for the plaintiff's capacity to live on his own, the remainder of the matters in this and the previous paragraph are not contested.
Considering the plaintiff's autism and the fact that he is in low skilled employment, his earning capacity is quite low. At present he is earning about $1000 per week after tax. If allowance is made for likely rental of $560 per week, together with actual car repayments of $160 per week, registration of $16 per week and insurance of $37 per week, that leaves the plaintiff with a sum of $227 per week to meet expenses for food, groceries, utilities, other bills and entertainment. On any view there is little to no juggling or wriggle room. The plaintiff's financial position is therefore precarious. There is certainly no financial capacity for the plaintiff to obtain additional support services if needed. And although the plaintiff gave evidence that he does not consider he needs support because his autism is not that bad, I prefer the expert evidence of Dr On who suggested that the plaintiff would benefit from ongoing support.
Chewe and Joseph continue to live in the Berwick residence with their 2 children who they financially support. Chewe is employed as a mental health access worker on a full-time basis with Each and Joseph is employed full time as a warehouse operations team leader for Samsonite Australia and New Zealand. Details of their earnings, superannuation and expenditure are also earlier set out.
Chewe and Joseph say they do not own any real estate, have no capacity to purchase a property and they do not have assets of any value nor any savings. Chewe's qualifications and experience mean that she has relatively secure and in demand employment and a much greater earning capacity than the plaintiff.
Chewe and Joseph benefit from living rent-free in a property, which forms part of the estate that is bequeathed to them in equal shares. The plaintiff earns substantially less than Chewe and Joseph's combined earnings of $172,744.24 and is likely to commence paying around $560 per week in rent. Taking into account their respective incomes and expenses, as well as their level of education, qualifications, experience and general employability, the plaintiff is clearly in a far more precarious financial position compared to Chewe and Joseph.
As to the plaintiff's future needs, I consider that these are not insignificant. My observations of the plaintiff during the hearing serve only to confirm Dr On's observations earlier reproduced. Although the plaintiff answered questions in examination and cross-examination, it is not altogether clear to me that he understood the import of many of the questions he was asked. Moreover, it seems clear to me that the plaintiff's comprehension of matters financial appears limited and as Dr On recommended, the plaintiff would benefit from ongoing support, perhaps through the NDIS scheme, and through appointing a financial administrator to support the plaintiff in management of his finances. As Dr On pointed out, the plaintiff demonstrates significantly impaired daily functioning across multiple domains, including self‐care, household management, financial decision‐making, and social engagement. It is also not improbable, and I consider it likely that the plaintiff will need some support services for his disability in the future.

[79]

As earlier discussed, the deceased provided the plaintiff a room, rent-free, in the Berwick residence, with the plaintiff making a small contribution to household utilities expenses. The plaintiff, at the time of relocating to Berwick had just completed high school and was around 18 years old. He had no tertiary education, was working sporadically, and receiving Centrelink benefits.
As previously mentioned, when the plaintiff began living at Berwick, he required his grandmother's assistance and support with transport. The plaintiff's grandmother helped the plaintiff with his Centrelink benefits application and spoke to Joseph about assisting the plaintiff in obtaining a job.
Given the plaintiff's autism, his lack of tertiary education or training, his sporadic work history and periods of unemployment, the plaintiff was, as I earlier noted, being partly maintained by the deceased. The partial maintenance consisted mainly of rent-free accommodation with some transportation. And as the defendants indicate in their position paper, when the plaintiff first arrived, he had limited social skills, and so, the deceased, along with Chewe and Joseph, assisted him in developing his skills so that he could be more self-reliant and self-sufficient.
As I have earlier found, I do not accept Matthew's evidence that there was some agreement or arrangement with his mother to accommodate the plaintiff. It seems clear from the evidence that Matthew could not continue to accommodate his son, and beyond explaining to the plaintiff they were going on a trip, did not tell the plaintiff that he intended to leave the plaintiff to live with his grandmother. Although the plaintiff was the deceased's grandson, she did not agree to house and maintain her grandson but ultimately did so because the circumstances dictated it and so she told the plaintiff he could live with her for as long as he needed. This is consistent with the existence of a moral duty the plaintiff's grandmother had to provide for the plaintiff at the time of her death.

[100]

In the circumstances described herein considered as a whole I consider that it is appropriate to order that provision for the plaintiff's proper maintenance and support be made from the deceased's estate. As I have endeavoured to explain, the plaintiff is in a precarious financial position, especially when he will become liable for rental payments. He will struggle to provide adequately for himself particularly in securing appropriate and affordable accommodation and I consider he has established a financial need.
As earlier set out, after account is taken for the payment that is to be made to Matthew in accordance with the settlement terms, the current estimated value of the residual estate is $1,006,408.79. If the plaintiff's claim is to be met in full, this would result in a distribution to him of a little over $500,000. In the circumstances of this case, I consider that amount is greater than is necessary for the plaintiff's proper maintenance and support.
I consider a proportionate amount - which is reflective of the degree of dependency that I have assessed the plaintiff had on the deceased for his proper maintenance and support at the time of her death, and considering the plaintiff's financial position, his disability, the size and nature of the deceased's estate, the totality of the relationship between the plaintiff and the deceased, and the relationship between the deceased and Chewe, Joseph and Matthew in particular who each have legitimate claims - is equivalent to about 25% of the residual estate. The plaintiff suffers from a lifelong disability and will likely need services in the future. He is employed, but his savings and financial management ability are limited. Given his likely level of rental expenditure and his present earning capacity, there is a real risk the plaintiff will suffer rental stress. His father Matthew cannot provide the plaintiff basic accommodation. And ultimately I consider that a wise and just testator would have wanted the plaintiff to have sufficient funds to sustain himself through appropriate accommodation and access to support services. Considering the value of the residual estate after Matthew's distribution, the amount I consider necessary for the plaintiff's proper maintenance and support is a provision for $250,000.00.
However, in view of Dr On's assessment about the plaintiff's financial management capacity and his own evidence about what he would do with any money he might receive from these proceedings,[183] I consider it is appropriate that some form of financial management arrangement be attached to the provision as a consequence of the orders that I make.
Accordingly, pursuant to s 91 of the Act I will order that provision be made from the residual estate of the deceased for the proper maintenance and support of the plaintiff in the amount of $250,000.00.
The parties are to confer about the appropriate form of the family provision order for the purposes of satisfying s 97 of the Act and on costs having regard to my reasons. The parties are to file consent orders within 14 days of judgment, or in default of agreement they are each to file and serve draft orders they propose be made accompanied by a short written submission limited to 4 pages and any dispute as to final orders and costs will be determined on the papers.

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