McKenzie v Topp [2004] VSC 90

5. Alan McKenzie was born on 23 July 1937 to John Henry McKenzie and Margaret Veronica McKenzie. His mother died in 1943 when he was six years of age. Four years later in 1947 his father married Muriel Beatrice McKenzie who was then a spinster of thirty eight years of age with no children of her own. She owned a house at 19 Grice Crescent, Essendon which had five or six bungalows in the backyard and which she ran as a boarding house, and following the marriage John McKenzie and Alan McKenzie went to live at the property with her. For the first two years or so Alan McKenzie was accommodated in one of the bungalows and then he was given a bedroom in the house.

8. Alan McKenzie left school at 16 years of age and got a job as a cutter in a furniture store in Moonee Ponds measuring and cutting carpet. But he continued to live with his father and stepmother until his father died in 1967 and thereafter with his stepmother until 1969 when he married at the age of 32 years.

11. When John McKenzie died in 1967 he left an estate valued at $12,500 and he left all of it to Muriel McKenzie.

14. After his marriage in 1969 Alan McKenzie bought a house in Woodland Street, Strathmore and over time he and his wife had three children, now aged 33, 30 and 27. But Alan McKenzie continued to have contact with the deceased. She attended the children's birthdays and christenings and he and his wife visited the deceased at her home from time to time.

17. During the 1980s Alan McKenzie started a carpet manufacturing business which failed. He and his wife were forced to sell their home in order to meet debts and the loss of the house led to the failure of their marriage. After their divorce in 1989, Alan McKenzie returned to live with the deceased for some time in 1989 and then again for periods between 1992 and 1993 and between 1994 and 1996. On each occasion he paid the deceased board for his accommodation.

20. Before leaving for the last time in 1996 Alan McKenzie and the deceased argued over the amount of his drinking. He enjoyed a couple of beers at the local pub on most nights during the week before coming home for dinner, but she disapproved. She was a teetotaller and regarded his consumption of alcohol as excessive, even though it is said she had no general aversion to the consumption of alcohol. She also became irritated when he invited one of his children to stay at the house without first giving her notice or seeking her permission.

23. Following the collapse of his business Alan McKenzie was employed as a carpet salesman for a company in Greensborough. But in December 1996 he suffered a nervous breakdown, and was certified as no longer able to work and he was placed on a disability pension. At or about that time the deceased told him that she was lonely living alone and she asked him to return to live with her in order to keep her company. He agreed to do so. Thereafter he continued to live with her until shortly before she died on 30 April 2002. For most of that six year period he paid board and also assisted by cleaning up rubbish that had been left by various former boarders, mowing lawns, painting rooms, carpeting some of the rooms and generally keeping the house clean inside and out.

26. Until about June 2000 the deceased remained in relatively good health and relatively independent but in that month at 90 years of age she broke her hip and her physical and mental health deteriorated markedly. She was admitted to hospital for surgery and then to a rehabilitation facility and she was away from home for a total of approximately three months. Alan McKenzie visited her in hospital every day during that period.

29. The question then arose as to where she would be located following her release from the rehabilitation facility. Since 1991 the deceased's sister had held power of attorney for the deceased and managed her business affairs and she considered that the deceased's condition warranted that the deceased be placed in a nursing home or other similar aged care facility. But the deceased was adamant that she wished to return to her own home. The authorities said that that would not be possible unless she were to have a full time live-in carer, and so in the absence of any other candidate Alan McKenzie agreed to play that role. He ceased at that point to pay board and from then until November 2001 he received a carer's pension.

32. The deceased returned home in the second half of 2000. She was unable to walk without assistance, and she was partly incontinent. Alan McKenzie nevertheless assumed responsibility for her care with the assistance of only a local council aid worker (who visited for only about three hours each week to assist with showering the deceased) and a district nurse (who only attended on occasion to dispense medication). Thus for more than a year Alan McKenzie washed and showered the deceased, changed her bed linen daily, assisted her to dress, washed her clothes, prepared and cooked her meals, brushed her teeth, combed her hair, assisted her with her bodily functions, during the day and at night, and kept her company.

35. By November 2001, however, the deceased's condition had so deteriorated that Alan McKenzie was no longer able to care for her alone. One night she fell out of bed and after getting her back into the bed Alan McKenzie called the local doctor for assistance. The doctor determined that the deceased should be sent to the Northwest Aged Care Assessment Service at Parkville for assessment. She was so assessed as follows:

"...occasionally wakes during the night, occasionally takes clothes off in bed; is unaware of toileting needs, requires lifting machine & 2 nurses for transfers; 1 x nurse full assistance for personal hygiene & toileting. Non ambulant. Requires set-up and encouragement for meals. Wears reading glasses. Confused at times."

39. The deceased remained at Parkville for the next two and a half months until a bed was found for her at a nursing home in Moonee Ponds and she was cared for there until she died on 30 April 2002. But even throughout that period Alan McKenzie visited the deceased every day and fed her every day.

42. The deceased left an estate comprising the house at 19 Grice Crescent, Essendon, which is worth between $650,000 and $700,000, various chattels, some insurance policies and some cash. The liabilities of the estate are limited to a debt of $5,500 owed to the executor for reimbursement of expenses incurred by him on behalf of the estate. By her will dated 2 May 1991 the deceased bequeathed the chattels to various friends and relatives; a sum of $12,500 to be divided amongst Alan McKenzie's three children; sums of $2,000 and $10,000 to two of the children of her sister's daughter; and the proceeds of an insurance policy to the parish priest to be applied to charitable purposes. She left the rest and residue of her estate to her nephew, Benjamin Lawrence Topp.

Jurisdiction to make an order under Part IV

46. Jurisdiction to make an order under Part IV of the Administration and Probate Act 1958 is dependent upon being satisfied that the deceased had responsibility to make provision for the plaintiff[1] and also upon being satisfied that the will does not make adequate provision for the proper maintenance and support of the plaintiff[2]. Each condition invokes consideration of the question of what is the provision that a wise and just stepmother would have thought it her moral duty to make in the interests of her stepson had she been fully aware of all the relevant circumstances[3]. That question is to be answered as at the date of death[4] according to the standards of a wise and just testatrix - or, in other words, according to the standards of a fair and reasonable woman in the community[5] - and in answering the question the court is bound to have regard to the factors adumbrated in s. 91(4)(e) to (o), as well as to any other matter that the court considers relevant. I turn first to the factors referred to in s. 91(4)(e) to (o).

50. It was submitted on behalf of the defendant that the deceased did not regard the plaintiff as a blood relation and the fact that he spent some of the earlier years in a bungalow in the back garden of her home and paid board when he was in work showed that the deceased equated him more closely to a boarder than to a son. It was also submitted there was no evidence that she ever regarded herself as being responsible for his education, training or development or that she had ever provided him with money for such purposes. It was said it ought be concluded that the quality of the relationship between the deceased and the plaintiff was poor, in that they quarrelled and because she had asked him to leave on an occasion during the 1992-1993 period, most probably because she could no longer tolerate his presence. It was said too that the duration of their relationship was irrelevant, and that time was pertinent only to the ascertainment of defacto marital relationships and other such arrangements.

53. I do not accept that the relationship between the deceased and the plaintiff was only that of landlady and lodger. To the contrary, the facts earlier set out lead me to think that the relationship was tantamount to mother and child. Granted that the plaintiff was not the deceased's own child, in that she did not bear him, and granted that he did not come into her life until he was ten years old and she was thirty-eight, from then on until her death she was the only mother figure that he knew and in effect she was the only mother figure that he ever knew.

56. It is true that he spent some of the early years in a bungalow at the back of the house as opposed to the house itself. And it is true that he paid board after he left school and he began to work. But that does not strike me as being any different to what might have been expected of the deceased's own son, if she had had one. It used to be common and I think it may still be for the children of some families to sleep in bungalows and outbuildings behind their parents' home and to live the rest of the time in the house itself. It was also once common and I think it may still be for children who were in work to pay their parents for their board. That the plaintiff did both of those things is in my view unremarkable.

59. But it is remarkable that the plaintiff remained with the deceased up until the time that he was married; for in the era in which that occurred it was unlikely unless the relationship were close; and it is remarkable that when the plaintiff's world fell apart in middle life (with the loss of his wife and his business and his home), it was to the deceased that he turned for love and support, which she did not hesitate to provide. That is the sort of conduct that one might expect of a mother.

62. No doubt the plaintiff and the deceased quarrelled from time to time, which is a matter to which I shall return when I deal with the character of the plaintiff, and it is true that she did ask him to leave in the 1992-3 period, and it is likely that she did so because she had had enough of him for the time being. But in the end it was she who asked him to return for the last time, because she was lonely, and thereafter for the last six years of her life he lived with her constantly and did for her in ways that only the closest of relatives would ordinarily be prepared to do.

65. I do not know of any authority and I do not accept that the duration of their relationship is irrelevant to the matter at hand.

(f) Obligations and responsibilities of the deceased

69. Whatever differences there may be in other cases between the relationship between parent and child and the relationship between step-parent and stepchild, in this case I think it follows from the fact that the relationship was tantamount to mother and child that the testatrix's obligations to the plaintiff were tantamount to those which she would have owed to him if he had been her child.

72. Generally speaking I am also of the opinion that the sorts of obligations and responsibilities that a mother may owe to her son are likely to exceed any obligations or responsibilities she may owe to a nephew, and I see nothing about the facts of this case to suggest that the result should here be different. Indeed apart from the fact that the defendant was the son of the testatrix's sister, which some may think provides a basis for a degree of obligation or responsibility, it is difficult to see that she owed him much at all. Upon the evidence as it stands the only things that the defendant ever did for the testatrix were occasionally take her down a meal that had been cooked by his mother and, before 1996, some times to mow the lawns.

76. I have referred already to the size of the estate. It is not particularly large, although I am told that it exceeds the median size of deceased estates in this State, and there are few claims made against it. In the circumstances it is enough to suggest that a wise and just testatrix would have ensured that more of it flowed the way of the plaintiff.

(h), (i) and (j) Financial resources, age and state of health

80. It was said on behalf of the defendant that there is scant evidence of the plaintiff's financial resources and that such as there is demonstrates that the plaintiff has managed to support himself until now, and that there is no suggestion that he is indebted to anyone. In the defendant's submission the plaintiff has therefore failed to demonstrate that he is in need of support. It was also contended that any alteration of the deceased's disposition in those circumstances would necessitate the sort of speculation that was castigated in Singer v Berghouse[6] and Collicoat v McMillan[7] as unacceptable.

83. I do not think that is correct. No doubt the plaintiff's evidence on this aspect of the matter was brief and to the point. But it established a number of things. The plaintiff is now 67 years of age and in receipt of an old age pension of $430 per fortnight. He suffers from high blood pressure and angina, although they are under control and he is otherwise in good health. But he has no assets apart from a 1992 Hyundai motor car and a few personal belongings of no significant value, and while he has been allowed to remain in the testatrix's house pending the resolution of this proceeding it is the defendant's intention to put him out of the house as soon as it comes to an end. Because he is about to be put out of the house in which he has spent the best part of the last ten years of his life, and in total more than thirty years of his life, he would like very much to purchase a small home of his own; preferably with a back garden in which to keep his dog and the deceased's dog that are at present at the deceased's home. But he has no money with which to do so.

86. There was also evidence, which was objected to but not contradicted, that the plaintiff would be able to purchase a modest house in the Broadmeadows area at a price of between $220,000 and $240,000 (which was based upon what the plaintiff had seen as available for sale of recent times), plus statutory and other on-costs in the order of $7,000 to $10,000.

89. By comparison, the defendant is 53 years of age and apparently in good health. He is a self employed computer consultant who in the last fiscal year generated an income after tax and expenses of approximately $25,000, and he has the ability to deduct the costs of acquisition and operation of his motor car, which is new, and he has savings at bank of approximately $29,000. He has never married and has no children and lives with his mother in her house nearby to the deceased's old home. It is not suggested that he is in need of accommodation or wants for anything else.

92. Despite the foregoing, it was submitted on behalf of the defendant that the plaintiff should be able to support himself, because, it was said, he is not unwell, and while it may be that he once suffered financial disaster with the loss of his business and his home, and thus now has no assets of his own, the court should adopt a careful approach in assessing his claim and in the absence of evidence to the contrary should proceed upon the assumption that he is the author of his own misfortune.

95. I think that submission is unreasonable and unrealistic. As has been seen, the plaintiff is now 67 years of age and until he was put upon the old age pension at 65 years of age he was assessed as being sufficiently disabled for work to qualify for disability pension. His evidence was clear and it was not sought to contradict it that his only income is the old age pension of $430 per fortnight and he has no assets of his own. Whether his financial circumstances are the result of bad luck or ineptitude or lack of judgment seems to me to be irrelevant. He needs to be housed and, without at least some provision in addition to his pension, that is going to be financially very difficult. In that respect the circumstances of this case appear to me to come very close to those which Ormiston JA described in Collicoat v McMillan[8] as follows:

"49. ... if a son has reached late middle age or beyond, then, notwithstanding that he has met with reasonable prosperity during most of his working life, he may well be able to show, especially in recent years, that his prospects of gaining employment (or improving his financial position where he is earning but a bare sufficiency) are such that the testator fairly should have contemplated that he would likely be in needy circumstances for much of the rest of his life. In such a case a moral obligation to make further provision will likewise have rested on the testator. Not only may an plaintiff in the latter circumstances be able to show that he has over the years contributed to the building up of the testator's estate or given other assistance worthy of recognition (a `special claim'), but he may, alternatively or in addition, be able to establish a `special need for maintenance or support' in that: `He may have suffered a financial disaster; he may be unable to obtain employment ...' etc: Hughes' Case at 147."

(k) Contribution to building up the estate and welfare of the deceased

100. It is apparent from what has already been said that the plaintiff made some contributions to building up the estate, in the sense of the maintenance and improvement works which he undertook after returning to live with the deceased. But they do not appear to have been great contributions and I do not regard them as significant for present purposes. On the other hand I am of the view that the plaintiff made a significant contribution to the deceased's welfare during her lifetime, as her principal carer and companion in the period between 1996 and 2001 and following her return from hospital after breaking her hip. As the defendant's mother said in her evidence, it was only because the plaintiff was willing to take on that role that the deceased was enabled to return home to spend the last of her life in accordance with her wishes.

103. It was submitted on behalf of the defendant that it would be inappropriate to place much weight on the things which the plaintiff did for the deceased, and in support of that contention counsel for the defendant invoked the following observations of Harper J in Schmidt v Watkins[9]:

"23. In the context of this case (as will be seen when the facts are examined) it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors. 24. To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it that those who have a duty not so much to reward but rather to provide maintenance and support do so by appropriate testamentary disposition. And the question: `Should I reward my benefactor?' is very different from the question: `Do I have a duty to X to make provision for his or her proper maintenance and support?' Different questions demand different approaches as one seeks to formulate the correct (or, rather, a proper) answer." (Emphasis added).

107. I think, however, that that contention misses the point. Contributions to welfare of the kind made by the plaintiff to the deceased's welfare have always been a relevant consideration in the determination of an plaintiff's claim upon a testatrix's bounty and s. 91(4)(k) gives express recognition to their relevance, as indeed Harper J said in the immediately following passage of his judgment (to which the defendant did not refer):

"25. In saying this, I acknowledge my obligation to have regard to `any contribution (not for adequate consideration) of the plaintiff to building up the estate or to the welfare of the deceased' (Administration and Probate Act 1958, s. 91(4)(k)). Such contribution may perhaps give rise to a duty to make adequate provision for the proper maintenance and support of the benefactor/plaintiff. But generally it will not do so of itself. Generally, it will be a factor in the creation of such a duty, or will enlarge a duty already in existence; as when a spouse or child of the deceased contributed to the deceased's wealth by working at less than award rates in the family business. And very often, of course, an plaintiff will rely not on his or her contribution to the estate of the deceased, but on the opposite: that is, the plaintiff will rely on the fact that he or she was always or has become dependent upon the deceased's continuing provision of maintenance and support. Such dependency may well arise when a testator is in loco parentis to a child who is not a relative, or where a claimant - although unmarried - was in a domestic relationship in which there was a mutual commitment to an intimate personal relationship and a shared life as a couple. One may suppose that it is dependency of the former kind, or a dependency or inter-dependency of the latter, to which the amendments effected by the Wills Act 1997 were primarily directed." (My emphasis).

111. It needs also to be understood that the context in which his Honour made the observations recorded in paragraphs 24 and 25 of his judgment concerned a claim by a man against the estate of a former professional colleague which was based upon allegations that the claimant had been the defacto marriage partner of the deceased and that he had been very generous towards her. His Honour rejected both allegations and thus the claim was held to fail; but not because of any principle of the kind for which the defendant contends. The case was decided quite simply as one of fact on the basis of no more than that the plaintiff failed to discharge the burden of proof which was held to lie upon him. Strictly speaking, the observations at paragraphs 23 to 25 of the judgment, although, if I may say so with respect, plainly right and of considerable assistance, were not part of the ratio.

114. It was also urged on behalf of the defendant that the level of support and contribution which the plaintiff provided to the deceased's welfare pale into insignificance when compared to what was described as the continuous support given by the defendant's mother to the deceased over virtually the deceased's entire life. I reject that submission. The so-called continuous support amounted to no more than visiting the deceased on most days for a brief period of conversation, and not much at all in the last 12 months, acting as her attorney for the last ten years of her life, and in the earlier years cooking a Sunday meal for delivery to her by the defendant. There was no cleaning, no lifting, no feeding, no bathing and nothing else of the kind for which the deceased was dependent upon the plaintiff. Presumably it was of some assistance to the deceased to have her income managed for her and her bills paid for her out of her own moneys. But I doubt that the benefit was great. There was no evidence to explain why it was thought necessary or desirable for the deceased to hand over management of her affairs to her sister as early as 1991, interestingly in the same year in which she made her will, and while it is possible to suppose that the deceased may have found it difficult with increasing age to attend to such matters herself, the thrust of the defendant's evidence was that the deceased was bright and alert and independent up until the time that she broke her hip. In any event, it seems to me that such assistance as was provided by the defendant's mother was no more than the sort of thing that was to be expected of a sister. Contrary to the submission of the defendant I think that by comparison with the contribution made by the plaintiff it is to be regarded as unremarkable.

(l) Benefits previously given to the plaintiff

118. During the early 1990s the testatrix gave $3,000 to the plaintiff to assist him in purchasing a second-hand motor car. There is no evidence of any other benefit and in the scheme of things I regard the gift as relatively insignificant.

122. As has been seen, the testatrix accommodated and supported the plaintiff for a period in 1989 following the breakdown of his marriage, between 1992 and 1993 and between 1994 and 1996 before the final period of six years in which he played the role of her carer. The evidence shows that when he was not with her he lived with two of his children in a home which they rented. He paid the testatrix board of $40 per week, although as I say in a fashion which seems to me no different to what might be expected of any other adult child in similar circumstances. So in effect, once the plaintiff lost his own home the testatrix accepted responsibility for his accommodation and provided it for the better part of the last twelve years of her life. I am confirmed in that conclusion by the fact that in the end he was devoted to helping and supporting her as her health failed. As I see it, he cared for her, just as she had accommodated him, because of the relationship between them.

(n) Liability of others to maintain the plaintiff

126. Apart from his own children, there is no one with responsibility to maintain the plaintiff. He is alone and without support except for the old age pension. I take the pension into account as a relevant consideration[10] but I do not regard it as a substitute for the obligation of the testatrix adequately to provide[11].

130. It appears that the requirement to have regard to character and conduct in s. 91(o) of the Act now stands in place of the former provisions of s. 96(1) (which provided that if the character and conduct of the plaintiff were such as to disentitle that person to relief the court might refuse to grant an order). I take it therefore that the sort of character and conduct to which one is to have regard for the purposes of s. 91(o) is limited, as it was under the former s. 96(1), to misconduct towards the testatrix or which shows that the plaintiff's need is the result of his own default[12]. It may be that there is a difference in the onus of proof as between the new s. 91(o) and the former s. 96(1). Under the former section, disentitling conduct was an exception to an entitlement and so it might be supposed that the evidential onus lay upon those who asserted disentitling conduct to prove its existence[13]. Now that the court is directed to have regard to the subject in determining if there is jurisdiction to make an order, it would seem to follow that the onus of proof lies upon the plaintiff. But practically speaking it does not make a great deal of difference. Until and unless evidence of disentitling conduct is adduced, there will be none to consider.

133. In this case the defendant suggests that the plaintiff misbehaved towards the testatrix during her lifetime and that he was of intemperate habits and that his lifestyle was a source of serious concern to the deceased. But I do not think that there is much in any of those allegations. There is some evidence that the plaintiff enjoyed a drink - indeed he readily admitted as much in his own evidence - and there is some evidence, the admissibility of which is limited[14], that the testatrix expressed concern on several occasions in the period up to 1996 that the plaintiff was drinking too much. The plaintiff also admitted in evidence that the testatrix had on occasion during that period complained to him about his level of consumption and he said that when she did he promised her that he would reduce it. But he also said that he did not consider that his level of consumption was excessive - he limited it to a couple of beers a day and he did not drink on all days - and there is no direct evidence that he ever returned to the testatrix's home in a drunken condition. To the contrary, both the defendant and Gavin Anderson, another of the testatrix's nephews called to give evidence of concerns expressed by the testatrix about the plaintiff's level of drinking, said that they had never seen the plaintiff drunk or otherwise under the weather.

136. It was submitted on behalf of the defendant that I should find that the plaintiff's need for maintenance "arose from the mode of life and the habit and actions of [the plaintiff] for which he was responsible", and reference was made to Wenn v Howard[15], and in elaboration of that submission it was contended that it was open to conclude that the failure of the plaintiff's business and of his marriage and the loss of his home were the result of excessive drinking for which he alone was to blame.

139. I reject each of those contentions. There is no evidence or basis from which to infer anything of the kind suggested, and no such proposition was put to the plaintiff in the course of his cross examination.

142. There was evidence that the plaintiff was convicted in 1996 of driving with a blood alcohol concentration of more that 0.05 grams per 100 millilitres and that his reading was in the order of 0.15 grams per 100 millilitres. That is a high reading and a serious offence. But as he explained the matter in the witness box, it occurred on Christmas day after he had been drinking for the whole afternoon at a Christmas party at someone's home and he had no recollection of getting into the car to begin the homeward journey in the course of which he was detected. Without in any way condoning his conduct or underestimating the serious social consequences of any drink driving offence[16], all of this seems to me to be a long way from the behaviour of the chronic drunkard in Ray v Moncrieff[17] whose intemperance was held to amount to disentitling conduct. There is nothing to connect it with the failure of the plaintiff's business or the loss of his marriage and home some seven years before.

145. There is also very little evidence that the plaintiff ever misbehaved towards the testatrix. Such as there is consists of testimony of the defendant that he had seen the testatrix and the plaintiff arguing on occasion and that on one occasion he had seen the plaintiff storm out of the room after one such argument and call the testatrix a "fucking old cow". The plaintiff also admitted that he and the testatrix sometimes used to argue but he said it was generally about things of no great significance and that they invariably made up rapidly, and he was adamant that he never swore in front of the testatrix except perhaps occasionally to say "bloody" this or that.

148. I am not persuaded that the plaintiff did say to the deceased what the defendant alleges against him, but even if he had I doubt that it would matter very much. It is unreal to think that an old woman and her middle aged stepson living together for as long as the testatrix and the plaintiff would not have argued on occasion and perhaps frequently over many things. Equally, it is to be expected that terse words would sometimes have been spoken and I would not be surprised, although it would be regrettable, if the plaintiff was occasionally reduced to profanity. That is what happens in families, often. Parents and children misbehave towards each other, and the older they get the more they seem to do it. But absent extraordinary circumstances, it does not mean that the parents love the children any less or that their duties and responsibilities towards the children are in any way diminished, and usually it does not mean that the children are any less deserving of the parents' love and support[18]. In this case the love and support which the plaintiff gave to the testatrix when she was old and ill shows that to be so.

152. Authority suggests that the sorts of factors to which regard might be had include the ability of the plaintiff to meet his financial responsibilities, the amount which is necessary for maintenance and survival, the size of the estate and of competing claims upon the testatrix, the standard of living of the plaintiff during the deceased's lifetime[19], the extent of contact between the plaintiff and the testatrix[20], the manner in which the plaintiff conducted himself in relation to the testatrix during her life[21], and the testatrix's wishes, in the sense of statements made by the deceased during her life as to the provision that she has or has not made for the plaintiff[22]. It has also been submitted on behalf of the plaintiff that a further relevant consideration is that the plaintiff's father left the whole of his estate to the testatrix.

155. I do not think that I need say more about the ability of the plaintiff to meet his financial responsibilities, the amount which is necessary for his maintenance and survival, the size of the estate and of competing claims upon the testatrix or the manner in which the plaintiff conducted himself in relation to the testatrix during her life. It is enough to notice that while the plaintiff has an aged pension of $430 per fortnight and that his financial responsibilities are slight, he has no assets worth mentioning and nowhere to live once he is removed from the testatrix's home. He has need of somewhere to live. The defendant has no such need nor I should think anything like the sort of moral claim that the plaintiff has upon the estate. In my view the way in which the plaintiff behaved towards the deceased was exemplary in all the respects that matter. I see nothing which begins to approach it in the conduct of the defendant.

158. The subject of the testatrix's wishes is more complex. Section 94 of the Administration and Probate Act 1958 permits the acceptance of evidence of a deceased person's reasons for making dispositions in his or her will and for not making proper provision for the plaintiff, whether or not the evidence is in writing. But in this case, apart from the contents of the will itself, the only evidence of the deceased's reasons for leaving the bulk of her estate to her nephew to the exclusion of her stepson consists of a couple of observations concerning the testatrix's sense of family (which were deposed to by Gavin Anderson and put to and accepted by the plaintiff in the course of cross examination), and some evidence of the defendant's mother to the effect that the testatrix idolised the defendant, who was her godson, and that the plaintiff "was never really part of the equation of the house".

161. The propositions deposed to in the affidavit of Gavin Anderson and put to and accepted by the plaintiff were as follows:

"The deceased always had a very strong sense of family, didn't she? --- Yes, she did. She was very - had a strong sense too of the bond between blood relatives in the family, didn't she? --- They were a very close family, yes. She also would say things like "Family comes first" and "Blood is thicker than water". Do you recall her saying that? --- They were some of her sayings, yes. She was very proud of the family history in Tasmania and Victoria? --- Yes, that's correct."

165. The evidence given by the defendant's mother was variable. Her affidavit included an elaborate account of the deceased having complained of the plaintiff not paying his board and of the plaintiff living his own life and cooking his own meals and she having to cook her own and of the plaintiff coming in drunk, at times, thereby making him a very unpleasant person to live with. It concluded with the peroration :

"She appeared to be very unhappy about his living there. She indicated to me in some way the he was not acceptable in the house but she was caught with it."

But the defendant's mother's oral evidence was different. Despite several attempts by counsel to lead her to a recitation of details of the kind laid out in the affidavit, the furthest that she was able to go on the subject was what appears in her answers to the following series of questions:

"MR LEVINE: What did Mrs McKenzie say about the plaintiff, Mr McKenzie? --- What did she say about him? Yes? --- That's what I just said. She just said that he was a very unpleasant person to live with. Did she ever explain what she meant by him being a very unpleasant person to live with? --- No, it was just his attitude, I suppose. MR BOADEN: I object, Your Honour. HIS HONOUR: Yes. MR LEVINE: If you can't recall her saying anything then just say you can't recall but do you remember what she said about why he was unpleasant to live with or you just can't recall? --- No..."

171. I take the view that what the defendant's mother's oral evidence is more likely than the contents of her affidavit to represent the truth. The terms in which the affidavit were drafted - of what was said to have "appeared" and as to what had been "indicated" - were enough to excite a degree of suspicion about the reliability of what she said. Her subsequent inability in oral evidence to replicate the detail provided in the affidavit was a fair indicator that the affidavit was more likely an interpretation of conversations than a record of the words which were spoken.

174. The defendant placed emphasis upon the fact that the testatrix is dead and thus unable to defend her decision to exclude the plaintiff from her will, and submitted that in those circumstances the court should scrutinise the evidence carefully, always remembering that she alone knew all the circumstances which motivated her decision. Reliance was also placed upon observations of Harper J in Schmidt v Watkins[23] as to the difficulty of assessing evidence concerning a person who is dead and upon his Honour's adoption of the sort of approach essayed by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales[24] and by Fullagar J, as a member of the Full Court, in Thwaites v Ryan[25]. It was contended that it is not open to restrict freedom of testation unless satisfied that the testatrix has abused her freedom of testation by failure to fulfil a responsibility to the claimant, and bearing in mind the matters to which reference has just been made that the court ought not be satisfied in the circumstances of this case that the testatrix was guilty of such abuse.

177. Much of that submission is unexceptionable. Self evidently it is difficult to assess evidence concerning a person who is dead and it is necessary to scrutinise the evidence carefully and in this case to assume that the testatrix believed that she knew of all the circumstances which motivated her decision. But in the end a decision must be made about such matters, in this case as in others where the intentions of a deceased person are in issue, and all that can be done is to look at such direct evidence as may be available and endeavour to draw from it such inferences as may be permissible.

180. Furthermore, even giving full reign to all of the difficulties identified by the defendant, and bearing steadily in mind that the burden of proof lies always upon the plaintiff, I am unable to see anything of sufficient reliability or probity in what was asserted to be the deceased's preference for blood over water; or about the closeness or worth to her of the blood relations of the family; or about what she told others concerning the behaviour of the plaintiff, to qualify as a matter appropriate to be taken into account under s. 91(4)(p) of the Act. The only inference which I think open to be drawn is that something or someone influenced her to leave most of her estate to her nephew rather than leave any of it to her stepson.

183. No doubt that is a preference which is to be accorded great significance; for as the defendant submitted, the Court is not lightly to interfere with freedom of testation. But in the end it will do so if the results of that freedom constitute a departure from the standards of the wise and just testatrix, and it is the standards of the wise and just testatrix of today, not of an era ago, that are pertinent to that assessment[26]. As matters stand I see nothing in what is known of the testatrix's motivations to suggest that she did not depart from those standards.

186. I turn therefore to the significance of the plaintiff's father's estate. Counsel for the plaintiff submitted that because the plaintiff's father left all of his estate to the deceased there arose a moral obligation or responsibility upon the deceased to continue the arrangements set in place in her latter years whereby the plaintiff was provided with accommodation. The argument was that where a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make adequate testamentary provision for those children. More specifically, it was said, because it is often the case that a husband cannot know with certainty the extent of the support that his widow will require, and in those circumstances it may be that anything less than the entire estate would be inadequate provision for the widow's proper maintenance and support, the children of the first marriage must forgo the provision which they might otherwise have received in order that their stepmother receive adequate provision. But if then later when the stepmother dies there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, it is her responsibility to make it good.

189. The proposition is novel. It is only recently that the legislation was amended to allow stepchildren to make claims under Part IV[27] and so far nothing of this kind has been considered in any of the cases. There are a number of cases in New South Wales that have dealt with the entitlements of stepchildren, but they have been concerned with questions of whether stepchildren were sufficiently accepted as part of the testator's family to have a claim upon his bounty[28]. In Henderson v Rowden[29] Beach J dealt with a claim by a stepson for provision out of the estate of his stepmother, but in that case there was no evidence that the plaintiff's father made any financial contribution to the purchase of the property[30]. Nor is there anything analogous in the decided cases to serve as much guidance. The question only arises because of the way in which the class of possible plaintiffs is now defined in Part IV: in terms of people to whom the testatrix had responsibility to make provision. It does not arise under other States' legislation in which the class of plaintiffs is exhaustively defined in terms of relationships.

192. Be that as it may, however, it appears to me that the proposition should be accepted, up to a point. For just as community attitudes are the touchstone of adequate provision[31], so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.

195. Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision. Furthermore, although the question for present purposes is confined to the first or jurisdictional aspect of the inquiry - of whether children of the first marriage may be regarded as persons for whom the widow of the second marriage has a responsibility to provide - the size of the estate and the circumstances of the children may be critical to the answer. But the need to look forward to the second stage of the inquiry in order to complete the first is endemic to most of the considerations listed in s. 91(4). It is the consequence of defining the class of eligible plaintiffs in terms of persons for whom a testator or testatrix has a responsibility to provide. The first stage of the inquiry is now informed as much by the answer to be given to the second stage as the second stage will be informed by the answer that is given to the first. But there are still two stages.

198. That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them.

201. In this case the evidence shows that the plaintiff's father left to the deceased an estate valued in 1967 at some $12,500 and that according to council records the value of the Grice Crescent property at or about that time was of much the same order. In a sense therefore, the plaintiff's father left to the plaintiff's stepmother an amount of money sufficient to purchase a house much like the house which now comprises the bulk of the testatrix's estate. Evidently the testatrix did not use the money to buy the Grice Crescent property. She owned it at the time of the marriage. But obviously she had the use of the money for the duration of her widowhood and in one way or another it has gone to swell or maintain the value of the estate which she left behind. Given that the only other significant claim upon the estate is the defendant's claim, and that his claim is for the whole of the residual estate, I consider that the amount of money left by the plaintiff's father to the testatrix is a relevant consideration in the determination of whether the plaintiff is a person for whom the testatrix had a responsibility to provide.

205. Having regard to each of the considerations to which I have referred, I am satisfied that the plaintiff is a person for whom the testatrix had a responsibility to make provision. For the reasons already given I consider that the plaintiff has established not only that he gave to the testatrix assistance worthy of recognition (thus constituting a "special claim"), but also a "special need for maintenance or support", in that his financial resources are meagre and he is about to be evicted from his home. I am to some extent confirmed in my view as to the testatrix's responsibility towards him by the size of the estate which his father left to her.

209. Section 91 of the Act confers wide power to make such order as is thought fit in all the circumstances of the case. It is plain, however, that the discretion is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the testatrix's freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just testatrix[32].

212. I approach the task accordingly. I take into account that the plaintiff receives the old age pension and thus that he has a steady albeit minimal amount of income, that he has for some years lived in relatively frugal circumstances, and that he has not for many years owned a home of his own, and that the testatrix left $12,500 to be divided equally among his three children, and that she left a similar amount to her great nephew and niece But I do not accept the defendant's contention that the plaintiff ought be left to find and fund from his $430 per fortnight a place in a boarding house, or that to accord him the sort of provision which would enable the purchase of a small home would be to disregard and elevate him above his station in life[33]. Judged according to standards of today I cannot accept that a wise and just testatrix would wish to see a stepson such as he subjected to the hardship and indignity of a doss house. She would wish instead to do what she could, consistently with her other obligations and responsibilities, to ensure that he is housed for the rest of his life in an environment no less salubrious than that which he shared with her for the last ten years of her life, and to provide him to the extent that she could with sufficient funds to make his life a modest pleasure.

215. An annuity sufficient to pay rent in respect of appropriate accommodation might suffice to achieve that end. But such an annuity might also prejudice the plaintiff's old age pension and hence create the need for greater provision in order to offset that loss. On the other hand, while a life interest in the Grice Crescent property would perhaps achieve all that is required from the plaintiff's point of view, it would in effect deprive the defendant of most of the enjoyment of his share of the estate for perhaps the next twenty years, and thus transgress more than is necessary upon the testatrix's freedom of testation. In the end therefore I conclude that the form of order best suited to achieving the desired result is an order for the payment of a lump sum sufficient to enable the plaintiff to purchase the modest sort of home about which he gave evidence.

218. It was submitted on behalf of the plaintiff that in addition to the funds necessary to purchase an appropriate dwelling there should be provision for some sort of "nest egg" and reference was made to the observations of Byrne J in Giggliotti v Giggliotti[34]. His Honour there made mention of the wisdom of generations of judges dictating that a widow requires not only a roof over her head but also what is called a "nest egg" to provide comfort in face of the unforeseeable vicissitudes which lie ahead.

221. It may be that the idea of a "nest egg" is appropriate in a case of this kind, although I notice that the idea started in cases in which the widow was accorded only a life interest in the family home and hence may be thought to have had less in available assets than a holder of a fee simple. But given the certainty of the plaintiff's pension and the likely effects upon it of a "nest egg" of any substance, I think the idea to be undesirable[35]. The plaintiff seeks a house no grander than one of which the price is in the order of $240,000, and it is said that his costs of acquisition will be no more than about $10,000. Experience suggests that he is also likely to incur some establishment costs apart from the costs of conveyancing and stamp duty and some costs of moving and also maintenance costs and ongoing utility costs, although I doubt that they would exceed a further $25,000 in total. It follows that the amount of the lump sum that he requires is not likely to exceed $275,000. A greater amount would perhaps be necessary if he were required to pay rent to the estate for his occupation of the testatrix's home since the time of her death. But since I consider that the testatrix had a responsibility to provide for his accommodation, I cannot see that he is. Accordingly, the lump sum which I hold to be required is an amount of $275,000.

225. For the reasons given, there will be an order that provision be made out of the estate in favour of the plaintiff by way of lump sum payment in the amount of $275,000. There should be no offset in respect of his occupation of the testatrix's house since the time of her death. I shall hear counsel on the question of costs.

[1] Administration and Probate Act 1958, s. 91(1)

[2] Administration and Probate Act 1958, s. 91(3); White v Barron [1980] HCA 14; (1980) 144 CLR 431 at p. 456

[3] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at p. 478; Grey v Harrison [1997] VR 359 at 365; Collicoat v Mc Millan [1999] 3 VR 803 at p. 815; cf Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at p. 209

[4] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at p. 505-8

[6] [1994] HCA 40; (1994) 181 CLR 201 at p. 213

[7] [1999] 3 VR 803 at p. 820 [47]

[9] [2002] VSC 273 at [23] and [24]

[10] Gapes v Haeberle [2003] VSC 461 at [23] and [30]

[11] Re Barrot [1953] VicLawRp 45; [1953] VLR 308 at p. 318; Re Pope (deceased); Pope v Pope (1974) 11 SASR 571 at p. 574; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at p. 100

[12] Re Sinnott (dec'd) [1948] VicLawRp 48; [1948] VLR 279 at p.281; Re Paulin [1950] VicLawRp 74; [1950] VLR 462 at p.473; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at p.156

[13] Re Ruxton; Ruxton v Trustees Executors and Agency Co Ltd [1946] VicLawRp 52; [1946] VLR 334 at p. 335; Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VicLawRp 74; [1950] VLR 462 at p. 473

[14] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1963) 107 CLR 9 at p. 24

[15] [1967] VicRp 12; [1967] VR 91

[16] See DPP v Webb [1993] VicRp 82; [1993] 2 VR 403 at p. 411, per Ormiston J; DPP v Foster [1999] VSCA 73; [1999] 2 VR 643 at 652 [29], per Winneke P

[17] [1917] NZLR 234

[18] see for example, Wentworth v Wentworth, NSWSC, Unreported, 14 June 1991, Bryson J, BC 9101896 at 126

[19] Bosch v Perpetual Trustee Co Ltd supra at p. 468; Coates v National Trustees, supra at p. 509; Re Hokin [1959] VicRp 94; [1959] VR 711 at p. 712

[20] Stott v Cook (1960) 33 ALJR 447 at p. 448; Hughes v National Trustees, supra at p. 147; Gorton v Parks (1989) 17 NSWLR 1 at p. 7

[21] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at p. 497

[22] Bosch v Perpetual Trustee Co Ltd supra at p. 483

[24] [1962] HCA 19; (1962) 107 CLR 9 at p. 20

[25] [1984] VicRp 7; [1984] VR 65 at pp. 78-9

[26] White v Barron, supra; Kearns v Ellis, unreported, CA (NSW), CA 363 of 1983 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [16]; Baird v National Mutual Trustees, unreported, 22 November 1995; Collicoat v Mc Millan, supra at p. 819[45]; Allan v Allan [2001] VSC 242 at [66]; Penn v Richards [ 2002] VSC 378 at [28]

[27] See Wills Act 1997, s. 55

[28] see, eg., Nagatomi v Hudson, unreported, NSWSC 18/9/97; Macleay v Birchall [1999] NSWSC 219; Novak v Public Trustee [2001] NSWSC 173; Parkinson v Crawford [2001] NSWSC 879

[29] [2001] VSC 267

[31] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 501; White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 440

[32] Hughes v National Trustees, supra at p. 146

[33] cf In re Duncan [1939] VicLawRp 51; [1939] VLR 355 at 358, per Lowe J

[34] [2002] VSC 279 at [13]; see also Penn v Richards [2002] VSC 378 at [33]

[35] cf. De Angelis v De Angelis [2003] VSC 432 at [206]- [207]