1. After stating the issues that fell for decision, describing the deceased's family, and outlining her Will and the estate to which it related, the judge turned to the respondent's history and present circumstances.
2. The judge gave a careful account of these matters. He noted that the respondent was born in Serbia in February 1958. When she was 12 years old, she migrated with her family to Australia, where she completed a year of primary school and three years of high school.
3. The judge found that the respondent had significant health issues and cognitive impairments, stating:

[The respondent] has a series of health issues. She has lived for a long time with epilepsy. She has osteoarthritis, diabetes, schizophrenia and other ailments. She is on a range of medications to treat those ailments. The evidence is that with medication she copes with daily living.

[The respondent] was assessed by a neuropsychologist in 2023 as demonstrating global cognitive impairments. Compared to her age‑related peers [the respondent] scored results in testing ranging from below the 0.1 percentile to the third percentile. The report of the neuropsychologist formed the basis for the appointment of a litigation guardian in this case.

Nonetheless, despite her obvious physical and mental challenges, [the respondent] copes with day‑to‑day living on her own, receiving some assistance from her niece, Vicki and a cleaner. In particular, as will become evident [the respondent] has shown an impressive capacity to look after her own finances.[11]

1. The judge found that the respondent had been receiving a disability pension since 1976 and had not been in paid employment since then. His Honour noted that she had 'a limited understanding of English';[12] and had lived 'in a range of rental properties generally in and around Melbourne's western suburbs'.[13]

Whether moral duty to the respondent had been discharged

1. His Honour remarked that the executors properly accepted that, in the circumstances of the case, the deceased had a moral duty to provide for the respondent's proper maintenance and support. As his Honour said, when her mother died, the respondent was 'a 40 year old daughter with significant health issues, limited education and living on her own on a disability pension'.[14]
2. The central issues for his Honour were, as his Honour appreciated, whether the distribution of the deceased's estate effected by the Will discharged the deceased's moral duty to provide for the respondent's proper maintenance and support; and if not, what further provision should be made out of the deceased's estate for her?
3. The applicants for leave to appeal in this Court did not challenge his Honour's determination that, by the distribution under her Will, the deceased had not discharged her moral duty to provide for the respondent's proper maintenance and support. It might therefore be thought unnecessary to refer to his Honour's reasons for that conclusion. This is not so, however, because at least some of his Honour's reasons for this conclusion are relevant to the applicant's challenge to his Honour's findings as to the nature of the further provision that should (or should not) be made for her.
4. The judge concluded that the deceased had failed to discharge her moral duty to make adequate provision for the respondent's proper maintenance and support, having regard, first, to the respondent's circumstances at the time of her mother's death, which he described as follows:

At the time of [her mother's] death [the respondent] was 40 years old, suffering from epilepsy, on a disability pension, not having been in paid employment since 1976 and in rented accommodation. Whilst the evidence does not permit me to form a precise view regarding her cognitive challenges at that time, I am persuaded that it is likely that there were cognitive challenges. That said, I find that, as at the date of death of [her mother], [the respondent] had a capacity to look after her own financial affairs and did not require those affairs to be managed by others.[15]

1. Secondly, the judge held that the respondent had only one 'certain entitlement' under the Will, being the 'use and occupation' of the Corio property pending its sale.[16] Once the property was sold, then the respondent had no right to any capital or income. Instead, she was 'entirely dependent on the exercise of discretion by the trustees'.[17] His Honour was not satisfied that

... the provision of use and occupation of the Corio property pending sale provided properly for [the respondent]. Insofar as [she] was entitled to reside at the Corio property pending sale:

(a) It is clear that her preference was to remain in the western suburbs of Melbourne where she had made her life; and

(b) Moving to the Corio property would have left her entirely dependent on the executors as to the duration of her occupation of the property.[18]

Whether the Will made adequate provision for the respondent

1. The judge accepted that cl 4(a) of the Will entitled the respondent to receive rents from the Corio property if she chose not to reside there,[19] but he did not accept that this was adequate provision for the respondent's maintenance and support. As his Honour explained:

First, the duration of any right to receive such rents was entirely subject to the discretion of the executors as to the time of sale of the property. Secondly, in the circumstances ... I am satisfied that proper provision for [her] maintenance and support would have entailed giving her the security of owning her own home.

1. Lastly, the judge held that the Will gave rise to a further significant difficulty that adversely affected the respondent's interest. This arose from the fact that Aleks was both a beneficiary and a trustee under the Will; and, in consequence, Aleks was in the position

where the exercise of his discretion as trustee to provide capital or income to [the respondent] upon sale of the property necessarily conflicted with his personal interest in ensuring that upon her death there were proceeds of the sale left for his benefit.[20]

1. Furthermore, his Honour held that it was clear 'that Aleks took the view that he was entitled to act as an executor with a view to keeping the property so he could inherit it once [the respondent] died'. His Honour added that:[21]

[E]ven without that misplaced view, the reality is that the will left [the respondent] in a situation where, had the property been sold, she was dependent on the exercise of discretion from trustees, one of whom had a positive interest in not exercising any discretion in her favour and the other of whom (his mother) was placed in circumstances of 'potential embarrassment'[22] similar to those of the co‑trustee in Re Lawther.[23]

1. For these reasons, the judge was satisfied that, at the time of her death, the deceased had not by her Will made proper provision for the respondent's maintenance and support. The judge added:

I am satisfied that a wise and just person in [the deceased's] position knowing her circumstances and knowing that [the respondent] did have a capacity to manage her financial affairs on her own would not have left her provision entirely to the discretion of the executors and would have provided her with some level of certain provision.[24]

1. As already indicated, the applicants did not challenge the judge's conclusion that the Will of the deceased failed to make proper provision for the respondent's proper maintenance and support. Rather, their challenge was directed to the form of the further provision that his Honour considered appropriate to make in all the circumstances.

Whether proper maintenance and support should be at the executors' discretion

1. In considering what further provision should be made for the respondent, the judge rejected the submission that the mechanism of the trust in cl 4 of the Will should continue to be utilised. His Honour gave the following reasons.
2. First, the judge held that at least two of the three executors did not understand the role of an executor under the Will. His Honour held that one of the executors 'fundamentally misunderstood' his role as an executor,[25] because the executor thought that, as executor, he was required 'to hold onto the [Corio] property until [the respondent] died so it could be passed to [Aleks, as the residuary beneficiary]'.[26] His Honour held that a second executor had a 'slightly more accurate' understanding of his role in that he understood that, if the Corio property were sold, the proceeds were to be held on trust for the respondent.[27] Nonetheless, the judge found that:

[I]t is clear from his evidence that he did not regard himself as obliged to consider a sale because [the respondent] had never asked for it and she was 'pretty comfortable where she lived'. It is plain from his submissions that [Aleks] had an expectation that the property would come to him under the will.[28]

1. Secondly, the judge noted that neither of these executors apparently understood that cl 4(a) of the Will meant that the respondent was entitled to the net proceeds of the rent on the Corio property. The judge found that 'the evidence establishes that the executors' only payments to [the respondent] from the rental proceeds of the Corio property were "Slava" payments', that is, payments 'to family members with a religious and cultural significance'.[29]
2. His Honour concluded that the evidence showed that both executors 'regarded the Slava payments as an act of generosity on their part' and unrelated to the net rent collected on the Corio property or to any consideration of the respondent's needs.[30]
3. Thirdly, his Honour found that whatever the amount paid by them to the respondent had been, 'it was woefully inadequate in terms of a proper consideration of [her] need ... and bore no relationship to the net rental proceeds of the Corio property'.[31]
4. Fourthly, apart from misunderstanding what was due to the respondent, his Honour also observed that on 'a number of occasions the executors chose to make Slava payments' to the respondent's brothers out of the funds attributable to the Corio property, although there was 'no basis upon which it would have been proper to make such payments' to them from the Corio property account'.[32]
5. Having regard to the executors' failures 'to properly exercise their discretion under clause 4' of the Will, the judge was 'satisfied that it is not appropriate' to leave the respondent's further provision 'in any way subject to the discretion of the existing executors'.[33] His Honour added that '[t]hey have wholly failed to properly exercise their discretions under clause 4 and [the respondent] deserves the security of having property transferred to her in her own right'.[34]

Whether a flexible life interest provided proper maintenance and support

1. The applicants' proposed alternative to the cl 4 mechanism was 'a flexible life interest' granted to the respondent in a property purchased with the sale proceeds of the Corio property.[35] The judge did not accept that this would be appropriate in the circumstances of the case.
2. Having regard to the principles in Downing v Downing ('Downing'),[36] the judge determined that a life interest would not be sufficient to afford the respondent proper maintenance and support. His Honour reasoned as follows:

[The respondent] is 64 and has significant health needs which one anticipates may worsen over the course of her life. The uncontested evidence is that her likely lifespan is a further approximately 22 years. In those circumstances, it is appropriate that [the respondent] be provided with the security of her own accommodation, but is also appropriate that should she choose, she be permitted to utilise the capital in her home for her other needs. For this reason, I do not favour the award of a life interest. Further, as [the respondent] submitted, the will contemplated the distribution of both capital and income to [the respondent] in order to meet her needs. The provision of a life interest would, in that sense, be a step backwards from the provisions of the will.[37]

1. The judge considered that proper provision for the respondent meant that she 'be provided with the opportunity to have the security of her own home in her own name'.[38] Bearing in mind the evidence before his Honour that the respondent would be able to purchase a 'modest two bedroom unit in St Albans' (the suburb in which she had lived for some time) for approximately $450,000, which co‑incidentally was the estimated value of the Corio property, his Honour determined that the appropriate order was for the provision of $450,000 to her in order that she might purchase such a unit.[39] The costs of sale of the Corio property and any capital gains tax were to be borne by the estate.
2. The judge had regard to the respondent's existing savings and to the fact that she was in receipt of a disability pension and rental assistance, but rejected the proposition that her savings disentitled her to further provision of a nest egg in the amount of $100,000. His Honour rejected the executors' submission that the respondent had no need of the nest egg. His Honour found that the respondent had saved in excess of $80,000 while in receipt of a disability pension, but that she had done so by 'leading a life of extraordinary frugality'.[40] This finding was not contested.
3. In stating his reasons for the provision of the nest egg, his Honour held, first, that the respondent 'should not be expected to maintain a lifestyle of that frugality as a necessity'.[41] Secondly, his Honour held that the evidence showed that 'the degree' to which she had been able to save had diminished in recent years.[42] Thirdly, there was evidence, which his Honour accepted, that the respondent would be likely to incur further expenses in the event that her niece, Vicki, was unable to provide the same level of support as she had in the past. Lastly, his Honour also accepted that the respondent would be likely to incur additional expenses for medications, health care and other assistance as she aged.
4. In these circumstances, the judge accepted that the respondent had need of 'a nest egg', and, 'doing the best' he could with the evidence, he concluded that 'the sum of $100,000, in addition to the amount the respondent had saved, was an appropriate sum.[43]
5. The judge also identified a second basis for awarding the respondent a lump sum amount of $100,000. In addition to the matters just mentioned, his Honour accepted that the respondent had a 'prima facie entitlement to the net proceeds of the rent of the Corio property', which 'arguably exceed $100,000'.[44] His Honour explained this as follows:

... The evidence establishes that the amount currently standing in that account as at 15 February 2024 was $61,621.46. The evidence further establishes that the executors paid Slava payments to Michael and Bobby totalling $10,000 from the Corio property account. Whilst [Aleks] suggested in evidence that that amount may have been reimbursed to the Corio property bank account from the Norlane property bank account, there is no record of this having occurred in either the bank statements of the Norlane property or the bank statements of the Corio property. In the circumstances, I would add back this sum of $10,000 to the balance in the Corio property account in determining what amount represents the net rental proceeds of the Corio property.

Further, the evidence shows that prior to 15 February 2024 amounts of approximately $32,500 have been deducted from the Corio property account related to costs in these proceedings ...

If [the respondent] had an entitlement to net rental proceeds (that is gross rent less outgoings) then there is some force in the proposition that the costs of these proceedings should be disregarded in determining her entitlements. If the payments for costs are disregarded her entitlements are approximately $104,000 - if they are taken into account her entitlement is $71,621.46. In either event a provision of a nest egg in the amount of $100,000 is properly to be regarded as a modest intervention in the structure of the will once regard is had to [the respondent's] entitlement to net rental proceeds.

In the circumstances, taking into account [the respondent's] lifestyle, her current savings, her potential future needs and the amounts to which she is entitled under clause 4(a) of the will, I am satisfied that, subject to a consideration of prejudice to other beneficiaries, a further provision of a $100,000 'nest egg' is appropriate.[45]

1. The judge also turned his mind to whether prejudice to the remaining beneficiaries might be a factor standing against the provision of the amount of $550,000 to the respondent. Noting that the deceased's moral duty to her grandsons, David and Aleks, was less than to her daughter, and that her needs were greater than theirs, the judge concluded that the prejudice to the grandsons was not a reason to reduce the amount of adequate provision to the respondent.[46] As a consequence, his Honour ordered the sale of the Corio property and the subsequent payment to the respondent out of the estate of $550,000.

Applicants' submissions in support of their application

Proposed ground 1 - the judge's decision was unreasonable or unjust

1. In support of their first proposed ground, the applicants submitted in writing that the judge's exercise of discretion miscarried, because:

The discretionary decision to prefer a capital sum to provide a home for the respondent to the provision of a home by way of a flexible/portable life interest which provides the same legal security as the arrangements cannot be undone is vitiated by error because it is unreasonable and/or it is plainly unjust.

1. The applicants contended that the family provision order made by the judge (to the effect that the respondent be given further provision by way of a capital sum to purchase a two-bedroom unit) was unreasonable or plainly unjust because, first, 'it unnecessarily interfere[d] with the deceased's freedom of testation. Citing Grey v Harrison,[47] the applicants contended that freedom of testation needed to be achieved both practically and symbolically. They submitted that a flexible life interest of the kind they proposed better aligned with the testator's intention, and gave greater weight to the testator's human right to freedom of testation. Further, the applicants submitted that the family provision order made by the judge was 'plainly unjust' in that it 'visits an undeniable injustice' on the testator's grandson, Aleks, being the person to whom the testator wished her residuary estate to be given, because 'it removes the decision‑making from the deceased to the respondent in circumstances where, in respect of the respondent's home, that ... does not need to occur'. Moreover, so the applicants submitted, Aleks' conflict of interest (arising from the fact that he was both an executor and the residuary beneficiary under the Will) would be mitigated by the adoption of their proposal.
2. The applicants did not dispute that the judge was required to consider the respondent's lifetime needs and that these were affected by her complex health issues and the related need for security in her accommodation. They submitted, however, that their proposal (which they described as in the nature of a 'Crisp order')[48] safeguarded the respondent's interests while ensuring that Aleks would receive whatever remained in the estate after the respondent's death as the testator had intended. They contended that a life interest such as they proposed 'carries with it a bundle of rights', which would 'effectively make [the respondent] the decision‑maker, to the exclusion of the registered proprietors' (that is, the applicants). They referred, in this connection, to Milillo v Konnecke.[49] They submitted that their proposal would have the same outcome as if the respondent had purchased the property herself, because it gave her 'secure accommodation' in 'the locale in which she lives'. For much the same reasons, the applicants submitted that the respondent's need for assisted accommodation in her later years of life would also be satisfied by 'a flexible/portable life interest as a propriety right'.
3. The applicants contended that their proposal safeguarded the respondent's interests because it did not depend on the executors' exercise of discretion. They submitted that, although the property to be purchased for the respondent would be registered in their names, the respondent was to be the decision‑maker with respect to the exercise of rights in respect of the property. They submitted that Aleks' conflict of interest (arising from the fact that he was both an executor and the residuary beneficiary under the Will) would be mitigated by their proposal.

Proposed ground 2 - the judge regarded irrelevant considerations

1. In relation to proposed ground 2, the applicants submitted that the judge's discretion miscarried either because he had regard to an irrelevant consideration (namely, that the executors had 'wholly' failed to exercise their discretion under cl 4 of the Will properly); or because he treated the applicants' past misconduct as determinative of the outcome. The two primary considerations, so the applicants said, were to secure accommodation for the respondent and to honour the Will of the testator. They contended a flexible life interest achieved both those things.
2. The applicants submitted that the judge's 'conduct‑based criticism' did not bear on the appropriateness of their proposal, because the proposal would not involve the exercise of any discretion on their part; and the purchase of a suitable unit 'could be facilitated' without their involvement 'save that they be registered as the proprietors of the property to be purchased'. Counsel for the applicants affirmed that this second ground of appeal was

... attempting to make the point in relation to the exercise of discretion ... that an arrangement by which registered proprietorship is with the estate and a portable flexible life interest with an implicit right of sale to raise money to provide for the next step of accommodation, does not requires any discretion.

1. In any event, the applicants submitted that their conduct was the result of ignorance rather than intentional misconduct, although they conceded that, at its worst, it might be concluded that they administered the estate so as to maximise the residuary estate that would fall to Aleks if he survived the respondent.
2. When counsel for the applicants was asked to explain further why the applicants' past conduct was an irrelevant consideration, counsel reiterated that their past conduct was irrelevant because:

[I]mplicit in the bundle of rights that's attached to the flexible or portable life interest is, the decision-making is with the holder of that portable life interest. The decision-making is not with the registered proprietor of the property.

1. If there were a problem because the registered proprietors were 'intransigent', then, so counsel for the applicants submitted:

... we're back before the Court, and there's no question what would happen. There would be an order.

In counsel's submission, this was, however, an unlikely scenario, because 'once the arrangements are settled, it will be very clear to all the parties as to what is to occur'.

Proposed ground 3 - the judge's reasons were inadequate

1. In relation to proposed ground 3, the applicants submitted that the judge's reasons failed to explain properly why he rejected the applicants' case on the provision of a flexible or portable life interest.

Respondent's submissions in opposition

Response to proposed ground 1 - the judge's decision was not unreasonable or unjust

1. In response to the first ground, the respondent contended that the applicants' submissions failed to demonstrate that the judge committed any error of law. Counsel for the respondent submitted that the applicants incorrectly equated 'unreasonable' with 'unnecessary'. The respondent submitted that just because there was another option available to the judge, that did not demonstrate that the judge's decision was unjust or unreasonable. Instead, it showed only that the decision was a discretionary one. The respondent submitted that '[e]very decision in favour of a claimant ... interferes with freedom of testation', and that an appeal would not succeed unless the judge's decision was 'palpably wrong'.
2. Noting that in the family provision context, no court can re‑write a testator's will and that a court should not 'interfere' in the distribution effected by a will except to the extent appropriate, counsel for the respondent submitted that there was no rule that the court should 'interfere as minimally as possible'. Counsel submitted that the ultimate test was whether there was adequate provision for the proper maintenance and support of those to whom the testator owed that duty.
3. At the hearing, counsel for the respondent conceded that if an order for a flexible life trust were made, the trustees would have limited capacity to make decisions about where the respondent would live. She submitted, however, that the applicants would have the power to veto the respondent's decisions; and, as they would be registered on title, they would be involved as a matter of course in any decision about the use of funds for her future accommodation, for example, in an aged care home. The respondent further contended that at least one of the trustees (Aleks) had a conflict of interest, in that a decision requiring him to consider her interests might well conflict with his own interests as the residuary beneficiary.
4. Quoting Richard v AXA Trustees Ltd,[50] the respondent contended that 'it was perfectly appropriate' for the judge to have said that the respondent needed 'the dignity and security' of her own money and her own home, and that is what his decision achieved. Citing various authorities,[51] the respondent noted other instances where a court had ordered a capital sum for the proper maintenance and support of a special‑needs child of the testator. Counsel for the respondent submitted that, bearing in mind the respondent's intellectual limitations, it would be expected that she too would be well provided for and not 'left at the risk of ... having to fend for herself or at the mercy of charity'. She submitted that, having regard to the case law, it was difficult to say the judge 'ought to have interfered in ... a less invasive manner'.
5. Furthermore, the respondent contended that the applicants' proposed flexible life interest would be worse for her than the trust interest (which included capital and income) in cl 4 of the Will had it been properly administered. Counsel for the respondent submitted that the respondent would be vulnerable and insecure under a flexible life interest in respect of future decisions, particularly where the executors' past conduct demonstrated that they had failed to give any consideration to the respondent's interests. She noted that other than capital for the respondent's accommodation, the flexible life interest was silent regarding any other use of property or funds. Bearing this in mind, the respondent contended that it was not 'unreasonable or unjust' for the judge to reject the applicants' proposal.
6. Moreover, so the respondent submitted, the testator's moral duty to her was higher than any duty to her grandson, Aleks; and the applicants' view that the testator intended the Corio property to go to Aleks at the end of her life was incorrect. Rather, so she contended, the fact that it was open to the executors to advance capital to her indicated that the testator's intention was that [Aleks] was to receive only what might be left at the end of her life.

Response to proposed ground 2 - the judge did not have regard to irrelevant considerations

1. With respect to the second ground, the respondent submitted that the way in which the applicants had managed the existing Will trust was relevant to the judge's consideration, since the only way to measure future conduct is to consider prior conduct. In this context, the respondent referred to the executors' payments to individuals who were not entitled to receive them under the Will; their failure to understand their role as executors; their failure to remit the rent from the trust property to the respondent; and their failure to consider the respondent's needs. Bearing these matters in mind, the respondent submitted that it was appropriate for the judge to determine that further provision for the respondent should not be subject to the executors' discretion.

Response to proposed ground 3 - the judge's reasons were not inadequate

1. In respect of the proposed third ground, the respondent submitted that the judge considered the factors identified in Downing[52] when reviewing the applicants' proposal for a flexible life interest. These factors included the respondent's anticipated lifespan, her autonomy, her need for security and her ability to use the capital for future needs. The respondent further submitted that the failure to refer to a particular matter did not mean the judge failed to take it into account.[53]

Consideration: proposed ground 1 - whether the judge's decision was unreasonable or unjust

1. The jurisdiction of the Court to make an order under s 91 of the APA (as it was at the date of the testator's death) in favour of the respondent depended on whether the Court was satisfied that the distribution of the estate effected by the Will failed to make adequate provision for the respondent's proper maintenance and support.[54] In this case, the Court was so satisfied, and the applicants have not challenged the judge's finding to this effect.
2. In this application, the applicants challenge the order for further provision, which the judge made with a view to ensuring that the respondent received proper maintenance and support. His Honour's decision in this regard involves an exercise of discretion.[55] This means that the principles in House v The King[56] apply to this Court's appellate review of his Honour's decision.
3. It may be recalled that in House v The King, it was said:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[57]

1. By their first proposed ground, the applicants challenged the legal basis on which the respondent was to enjoy her two‑bedroom unit ('the property'). They contended that his Honour's discretion miscarried because his determination that she own her property in her own right, rather than have a 'portable or flexible life interest', was unreasonable or unjust.
2. The parties' positions have not, in substance, altered since the trial. Once the judge was satisfied that the distribution of the deceased's estate effected by the Will failed to make adequate provision for the respondent's proper maintenance and support, the judge was called on to decide whether to make an order conferring a 'portable or flexible life interest' on the respondent, or to make a monetary award that would enable her to purchase a home in her own right.
3. For present purposes, we accept that what the applicants termed a 'portable or flexible life interest' was to be conferred by an order in the nature of a Crisp order.[58] Ipp JA helpfully described an order of this kind in Milillo v Konnecke.[59] In his Honour's words:

A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a person an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purpose of securing, for the plaintiff's benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported), Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to 'cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital'.

Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff's use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a 'portable life interest'.[60]

1. In this case, both the applicants' and the respondent's proposals involved further provision for the respondent designed to ensure that she had security with respect to her accommodation, and a nest egg to ensure that she did not need to continue to live in extreme frugality and she could also meet her future expenses. As already mentioned, the applicants did not seek to challenge the provision of the $100,000 nest egg, but they did contest the judge's decision to order that, on settlement of the sale of the Corio property, the respondent be paid the sum $450,000 out of the estate to purchase a home of her own. As already noted, the applicants argued that a flexible/portable life interest in property would supply her with the same accommodation security and better conform to the testator's intentions by better protecting the interest of the residuary beneficiary.
2. Both parties proposed a means of securing accommodation for the respondent; and no rule required the judge to prefer one proposal over another. The judge's decision in this regard was clearly an exercise of discretion. For the following reasons, his exercise of discretion was neither unreasonable nor unjust.
3. As Osborn J's statement of the applicable principles in Downing makes clear,[61] the judge in this case had to make a decision having regard to the circumstances of the case. In Downing, Osborn J said the following about these principles:

The following general principles can be discerned in the relevant authorities:

(1) The provision of a capital asset to the plaintiff may be appropriate as part of a package of measures intended to provide accommodation, income and a nest egg (Luciano v Rosenblum[62]).

(2) The whole circumstances of each case must necessarily be addressed and may lead to different conclusions in different cases despite the presence of particular factors common to different cases (Bosch v Perpetual Trustee Company Pty Ltd;[63] Re Duncan[64]).

(3) Concern as to the capacity of a plaintiff to meet the vicissitudes and uncertainties of life may favour the provision of a capital asset to the plaintiff (King v White[65]).

(4) Concern as to the capacity of the plaintiff to maintain her or himself independently and autonomously may also bear upon the notion of what is a proper provision (Richard v AXA[66]).

(5) The fact that the provision of a capital asset to a plaintiff may incidentally enable a plaintiff in due course to pass that asset on to children or family contrary to the deceased's wishes is not determinative of the propriety of such a provision (Worladge v Doddridge[67]).[68]

1. Downing illustrates that courts have been alive to the fact that ownership of a capital asset such as a house, unit, or other dwelling is often the preferred means of ensuring that a person can meet the 'vicissitudes and uncertainties of life' with dignity. In Downing, for example, the widowed plaintiff contended that proper provision for her maintenance and support required the devise to her of a residence. The defendants argued that her situation might best be addressed by a combination of undertakings and orders that 'tightened up' but did not alter the structure of the deceased's will.[69] Osborn J rejected this contention on the basis that 'an additional provision of capital to the widow' was 'the fairest means of securing her proper maintenance'.[70]
2. Downing and other cases[71] illustrate that the provision of a capital asset in the form of a dwelling may be most appropriate because such a provision enables an individual in a vulnerable position to meet the vicissitudes and uncertainties of life with dignity including, as Osborn J said in Downing, 'in a financially independent and autonomous manner'.[72] In Richard v AXA Trustees Ltd,[73] for example, the court ordered further provision for a mentally ill plaintiff in an amount of $650,000. Of this amount, $550,000 was to be applied to purchase a dwelling, with the balance to be applied as the plaintiff saw fit. In that case as in this, the judge was satisfied that the plaintiff was capable of managing her own financial affairs and, with this in mind, recognised the importance of her having substantial autonomy and independence.[74]
3. The choice the judge made in the present case was a rational one. We accept that even if an order in the nature of a Crisp order limited the capacity of the applicants to make decisions touching the respondent's accommodation, nonetheless they would have the capacity to veto, or at least obstruct and delay, the implementation of any decision the respondent might make with respect to the sale of the property subject to a life interest of the kind the respondents proposed. This meant that the applicants could thwart any decision the respondent might later make about the sale of the property, including to raise funds for her aged care. This was because they would be named on the certificate of title as the registered proprietors of the property.[75] The fact that, on application to the Court, this difficulty might be removed, as the applicants submitted, was clearly not an adequate answer to this potential problem, especially where there was a viable alternative that would afford the respondent independence and autonomy. This difficulty was compounded by the fact that the registered proprietors or owners of a property subject to the proposed flexible life interest included Aleks, who was also the residuary beneficiary under the Will, and his mother. This meant any decision the respondent made with respect to the property had the potential to conflict with Aleks' interest as the residuary beneficiary and lead him to stand in the way of the decision.
4. If, however, ownership of the respondent's unit was registered in her own name, there would be no risk that the applicants could veto or thwart any decision she might make with respect to the unit. If she wished to sell it so that she could, for example, move into aged care accommodation, she was free to do so. The applicants would have no power to veto, thwart or delay her decision.
5. As already noted, the judge held that any prejudice to the remaining beneficiaries was not a factor tending against the further provision of an amount to the respondent that would enable her to purchase her unit. His Honour took into account that Aleks, as one of the residuary beneficiaries, was entitled to share in what remained in the estate after provision had been made for all valid testamentary dispositions and the estate's debts and expenses had been paid.[76] Of course, Aleks remained so entitled after the judge had made the family provision order. Moreover, for the following reasons, we do not accept that his Honour's decision that there be further provision from the estate for the purchase of a unit for the respondent was unreasonable or unjust in this case simply because such provision had the practical effect of denying Aleks the possibility of enjoyment of the asset that might have vested in him under cl 4.
6. The testator had a 'moral duty', in the sense that she had a moral obligation, to make adequate provision for her daughter's maintenance and support. The nature of this obligation was explained in Vigolo v Bostin,[77] where Gleeson CJ said that:

The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member ... The justification for conferring upon a court a discretionary power to intervene, and to make an order modifying the legal effect of the will, was explained in terms of familial obligation, not unnaturally or inappropriately described as moral.[78]

At the time of her death, the testator had no equivalent obligation to her grandsons.

1. At that time, the APA did not enable a court to intervene where a testator failed to provide for a grandchild. Even if there were such an obligation, it was necessarily less than the obligation the testator owed her daughter, bearing in mind the judge's findings (which were not disputed) that:

[Aleks] is self‑employed, has a house of his own and suffers no disability. I do not have any evidence regarding David's circumstances, but he is aware of the proceedings, was present in Court throughout the hearing and chose not to participate. Counsel for [the respondent], doing the best she could with the evidence, estimated that the level of provision [the respondent] seeks, together with costs out of the estate, would leave an amount of approximately $250,000 for David and [Aleks] to share.[79]

1. In the circumstances of the case, we can discern no reasonable basis to impugn the judge's conclusion that the respondent's needs were greater than those of the testator's grandsons. In these circumstances, we must reject the applicants' argument that the judge's decision that there be further provision out of the estate for the proper maintenance and support of the respondent in the sum of $450,000 for the purchase of a unit in St Albans and $100,000 by way of nest egg was unjust or unreasonable. On the contrary, the judge's decision was carefully considered and plainly fair in all the circumstances of the case.
2. As already stated, in argument, the applicants made much of the testator's freedom of testation, which was described as a 'notable human right' by Callaway JA in Grey v Harrison.[80] Freedom of testation is necessarily qualified by pt IV of the APA, which enables the Court to intervene where a testator has not made adequate provision for the proper maintenance and support of, relevantly here, the testator's children.[81] By enacting pt IV, Parliament has sought to strike a balance between a testator's freedom of testation and the 'basic human rights' of those for whom the testator had a moral duty to provide.[82] In this case, it was only because the testator had failed to discharge her moral duty[83] to make adequate provision for the proper maintenance and support of her daughter that s 91 of the APA[84] specifically authorised the Court to make further provision for her.
3. For these reasons, the applicants' first proposed ground has no reasonable prospect of success.

Consideration: proposed ground 2 - whether the judge had regard to irrelevant considerations

1. As we have seen, in support of their second proposed ground, the applicants contended that the judge erred by taking into account the applicants' prior conduct as executors and trustees under the Will, because, in their submission, such conduct was irrelevant.
2. At trial, the judge heard evidence from two of the three executors. As already stated, his Honour found that one of the executors 'fundamentally misunderstood his role as an executor', because he believed that he was required to 'hold onto the property' until the respondent died 'so it could be passed to [Aleks]'.[85] The applicants did not challenge this finding, which, in any event, was borne out by that executor's evidence. His Honour also found that Aleks expected that the Corio property 'would come to him' under the Will when the respondent died.[86] The applicants did not challenge this finding, which was also borne out by the evidence Aleks gave at trial. The third executor, Mira Stefanovic, was Aleks' mother. She did not give evidence at the trial. It may be inferred from this that her understanding of her role as executor was not appreciably different to that of the other two executors.
3. The outcome of the applicants' approach to the discharge of their duties as executors and trustees under the Will was that they misconducted themselves. This included making payments to the respondent's brothers out of funds attributable to the Corio property, notwithstanding that the brothers had no entitlement to those funds. Furthermore, the applicants did not remit to the respondent the rent to which she was entitled in respect of the Corio property. Moreover, the judge found (and his finding was not challenged) that the applicants did not consider the respondent's needs at all. The applicants' 'Slava payments' to the respondent utterly failed to compensate her for their dereliction of duty.
4. In these circumstances, it was clearly open to the judge to have regard to the executors' past conduct in determining that, in making further provision for the respondent, 'the mechanism of the trust in cl 4 of the Will' should not be utilised;[87] and that any further provision for her should not be 'subject to the discretion of the existing executors'.[88] The fact that the applicants may have been ignorant as to their duties as executors or trustees under the Will does not affect this conclusion. It was also open to the judge to have regard to the potential for the applicants subsequently to exercise any power they might have with respect to the respondent's accommodation or finances; and, having satisfied himself that she was able to manage these matters herself, to accord her the autonomy and independence to do so.
5. For the reasons set out above, it was open to his Honour to conclude that the applicants' proposed flexible/portable life interest did not free the respondent from the risk that the applicants would misuse their power to thwart the respondent's capacity to make decisions concerning the property subject to the life interest, including to stand in the way of any decision she made to sell her unit so that she could move into aged care. Given the applicants' past conduct, it was plainly open to his Honour to take into account the possibility that, through ignorance or otherwise, they might again fail to appreciate the nature of their obligations to her under an arrangement of the kind they proposed. It was plainly open to his Honour in these circumstances to conclude that the provision of funds to purchase a unit in her own name (and additional funds for a nest egg) was preferable. It was also clearly open to him to conclude that, in all the circumstances, and bearing in mind the cost, delay and likely distress to the respondent and perhaps others that would be involved, the availability of court intervention if things went wrong in the administration of a flexible/portable life interest should not alter his conclusion in this regard.
6. In the circumstances of this case, we can discern no error in his Honour's conclusion that the respondent should have 'the security of having property transferred to her in her own right'.[89] For the foregoing reasons, the applicant's second proposed ground of appeal has no real prospect of success.

Consideration: proposed ground 3 - whether the judge's reasons were inadequate

1. In support of the third proposed ground, the applicants contended that the judge's discretion miscarried because he failed properly to consider the whole or a substantial part of the applicants' case on the question of a flexible/portable life interest.
2. This contention does not withstand analysis. We have already set out what his Honour said on this topic.[90] In particular, his Honour referred to Osborn J's analysis of the relevant considerations in Downing before specifically considering the respondent's age and anticipated lifespan, her need for secure accommodation and to be able to use the capital in her home for her future needs, including aged care (if she so chose).[91]
3. Furthermore, as our earlier discussions of the first and second proposed grounds show,[92] his Honour gave careful and considered reasons for his decision and dealt comprehensively with the applicants' case on the suitability of a flexible/portable life interest. There is no real prospect of success on this proposed ground.

1. Accordingly, for the reasons we have stated, leave to appeal should be refused.

• DRAGO MARKOVIC (in his capacity as Executor and Trustee of the estate of ZAGORKA STEFANOVIC, deceased)

• MIRA STEFANOVIC (in her capacity as Executor and Trustee of the estate of ZAGORKA STEFANOVIC, deceased)

• ALEKSANDAR STEFANOVIC (in his capacity as Executor and Trustee of the estate of ZAGORKA STEFANOVIC, deceased)

• NEVENA STEFANOVIC (by her Litigation Guardian,
• BIBI AMIDZIC)

[2] Aleksandar was also referred to 'Alex' in documentation and the judge's reasons.

[3] Michael Stefanovic's claim was dismissed after his death in August 2023: Stefanovic v Markovic [2024] VSC 369, [2], [7] ('Reasons').

[4] An application to the court for a family provision order must be made within six months after the date of the granting of probate of the will, unless the court grants an extension: APA, s 99.

[5] Neuropsychology assessment report by senior clinical neuropsychologist, Dr Nadja Berberovic and psychologist/clinical neuropsychology registrar, Yu Ching Nicole Li, dated 28 March 2023, 11.

[7] This was 11 May 1998, the date on which deceased died.

[8] The parties accepted that the judge had identified the applicable legislation. As his Honour explains in his Reasons at [26]-[29], the identification of this legislation is not altogether straightforward.

[9] Section 95 of the Administration and Probate Act 1958 was repealed on 20 July 1998 by s 57 of the Wills Act 1997.

[14] Reasons, [38]. These circumstances are set out in more detail at [25]-[26] below.

[19] Citing Hillier, Primrose v Kewley [1939] NSWStRp 4; (1939) 39 SR (NSW) 71, 74 and Re Keenan: Fordham v Keenan (1914) 30 WN (NSW) 214, 215.

[22] Re Brown deceased [1972] VicRp 3; [1972] VR 36, 40.

[23] Re Lawther [1947] 2 DLR 510, 524-5 (Williams CJ).

[36] [2003] VSC 28, [44].

[47] [1996] VSC 74; [1997] 2 VR 359.

[48] Referring to an order made in Crisp v Burns Philp Trustee Company Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979) ('Crisp').

[49] (2009) 2 ASTLR 235; [2009] NSWCA 109 ('Milillo'). See also Re Marsella: Marsella v Wareham [2018] VSC 312, [131].

[50] [2000] VSC 341.

[51] Stern v Sekers [2010] NSWSC 59; Smith v Barker [2005] NSWSC 14; Moore v Moore [2005] VSC 95; Tavra v Petelin [2011] VSC 359; Richard v AXA Trustees Ltd [2000] VSC 341; Downing [2003] VSC 28.

[52] [2003] VSC 28.

[54] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208-10 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40 ('_Singe_r'). While this case was governed by New South Wales legislation, the relevant provision (s 9(2) of the Family Provision Act 1982 (NSW)), has a similar effect to that of s 91 of the APA.

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

[56] (1936) 55 CLR 499; [1936] HCA 40 ('House').

[57] House (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

[58] Crisp (Supreme Court of New South Wales, Holland J, 18 December 1979).

[59] (2009) 2 ASTLR 235; [2009] NSWCA 109.

[60] Milillo (2009) 2 ASTLR 235, 243-4 [47]-[48] (Ipp JA); [2009] NSWCA 109.

[61] [2003] VSC 28, [44].

[62] (1985) 2 NSWLR 65, 69.

[63] [1938] AC 463, 477.

[64] [1939] VicLawRp 36; [1939] VLR 355.

[65] [1992] VicRp 72; [1992] 2 VR 417.

[66] [2000] VSC 341.

[67] [1957] HCA 45; (1957) 97 CLR 1, 19; [1957] HCA 45.

[68] Downing [2003] VSC 28, [44].

[69] Downing [2003] VSC 28, [39]. An alternative submission was to similar effect: see [40], [46].

[70] Downing [2003] VSC 28, [46].

[71] See, eg, Richard v AXA Trustees Ltd [2000] VSC 341; Smith v Barker [2005] NSWSC 14, [49]; Moore v Moore [2005] VSC 95, [45].

[72] Downing [2003] VSC 28, [54] (Osborn J).

[73] [2000] VSC 341.

[74] Richard v AXA Trustees Ltd [2000] VSC 341, [26]-[32] (Eames J).

[75] Alternatively, the applicants would be registered as the owners under any other arrangement applicable to unit ownership.

[76] Re Ponder [1921] 2 Ch 59. The judge noted that the residuary beneficiaries would share approximately $250,000: see Reasons, [84].

[77] (2005) 221 CLR 191; [2005] HCA 11 ('Vigolo').

[78] Vigolo [2005] HCA 11; (2005) 221 CLR 191, 199 [11] (Gleeson CJ); [2005] HCA 11.

[80] [1996] VSC 74; [1997] 2 VR 359, 365 (Callaway JA, Tadgell JA agreeing at 360, Charles JA agreeing at 361); see also Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 [6] (Callaway JA agreeing at 285 [54], Batt JA and Buchanan JA agreeing at 285 [57]); [2005] VSCA 127.

[81] When the deceased died in 1998, s 91 of the APA was concerned only with adequate provision for the proper maintenance and support of 'the deceased's widow widower or children'. Part IV now enables a family provision order to be made in respect of an 'eligible person', defined in s 90 to include a child of the deceased.

[82] Schaefer v Schuhmann [1972] AC 572, 593 (Lord Simon of Glaisdale, dissenting); see also Barns v Barns (2003) 214 CLR 169, 184-5 [33]-[34] (Gleeson CJ), 208-9 [114]-[115] (Gummow and Hayne JJ), 210 [123]-[124], 211-12 [129] (Kirby J); [2003] HCA 9; Whitehead v State Trustees Ltd (2011) 4 ASTLR 528, 538-40 [39]-[41] (Bell J); [2011] VSC 424.

[83] See [25] above.

[84] See [31] above.

[85] See [31] above.

[88] See [27] above.

[90] See [39]-[46] above.

[91] Downing [2003] VSC 28, [44] (Osborn J).

[92] See, in particular, [85]-[88] and [91]-[92] above.