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The evidence

4. George's affidavits attest to the following relevant matters: (a) Between the ages of 23 and 40, George remained living in the family home with his father. (b) In 2000, he commenced a relationship with Suli and in 2025, the couple commenced to rent accommodation together in Sydney. (c) In 2006, George was diagnosed with renal failure. Between 2011 and 2016 he received regular dialysis, sometimes daily. He endeavoured to maintain employment working in shift work during that period. (d) George ceased work in 2016 on the basis of his health conditions and has not resumed paid employment. He is currently a recipient of a disability pension and his partner, Suli, is a recipient of an aged pension. (e) George underwent a kidney transplant in 2019 and has enjoyed some improvement in his health status following that surgical procedure, although he continues with some significant disabilities as is reflected in his status as a disability pensioner. (f) George attests to having a continuing close relationship with his father prior to his death. In September 2016, Antonio moved to Canberra with John, the late brother, and John’s wife, Amelia. That move came as a surprise to the other siblings and it subsequently became apparent proceeds of sale for the family home in Sydney had been used to purchase a house in Canberra at Chifley. The Chifley property was owned by Antonio, John and Amelia as tenants in common. (g) John subsequently fell ill and predeceased his father. After John’s death there were legal proceedings between Amelia and Antonio resulting in a resolution whereby Antonio paid to Amelia a sum of $375,000 in exchange for her removal from the title of the Chifley property. (h) George attests to his continuing receipt of the disability pension, his partner's receipt of the aged pension, and to holding some limited assets that may reasonably be described as negligible.

5. Elizabeth attests to the following relevant matters: (a) She disputes some of George's assertions as to the closeness of his relationship with his father. (b) She disputes the level of care their father required in his later years, and questions the financial relationship between George and Antonio, and the level of George's ongoing disability as a consequence of his kidney condition. (c) She claims significant involvement in the management of Antonio’s financial affairs (which George disputes). (d) She makes allegations about the value of the property in Chifley having been reduced because of George's failure to adequately maintain it (which he disputes). (e) In her role as executor, Elizabeth attests to the value of the estate being principally comprised of the property at Chifley and the total value being in the range of approximately $1.2 million to $1.5 million, with liabilities in the vicinity of $30,000. (f) Elizabeth describes her own financial challenges associated with her marital separation and her mental health issues.

6. I have the benefit of detailed written submissions filed on behalf of George and prepared by his counsel. In oral submissions, counsel for Elizabeth indicated, whilst there is a dispute about various factual matters which I have identified above in summary form, there is no dispute about the legal principles set out carefully in George’s submissions and there is consent as reflected in the deed for the approval of the proposed settlement.

Relevant principles

7. Section 8 of the Family Provision Act empowers the court to make orders for provision out of an estate in respect of an eligible person. In Armouti v Nenes [2022] ACTCA 3; 17 ACTLR 237 at [70] and ff, McWilliam AJ, who was in dissent in the outcome in that matter, carefully summarised the relevant principles for consideration on an application for family maintenance. At [95], her Honour quoted with approval the discussion of Brereton J in Henry v Hancock [2016] NSWSC 71 at [68]-[70]. His Honour there highlighted at [68]: [68]…the court's role [in such a matter] is limited to making adequate provision for an eligible person's proper maintenance and advancement.

8. Justice Brereton went on to discuss the particular circumstances of provision for an adult child observing: [70] Fair and reasonable members of the community may well differ as to whether a parent owes a moral or natural obligation to an able-bodied adult child such as to fetter the parent’s testamentary freedom.

9. His Honour then quoted with approval from the decision of Taylor v Farrugia [2009] NSWSC 801, and I note in particular the following passage from that decision at [58]: [58] Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a[s] [a] spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.

10. In considering the role of the court on an application for approval of a proposed settlement of this kind, Mossop J in Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37 set out a series of principles at [39]. His Honour noted particularly at [39(c)] that: (c) The fact of an agreement is a very significant matter for the court in determining whether to make orders. That is particularly so where the parties to the agreement were represented by a solicitor and counsel at the time that the agreement was entered into.

11. His Honour went on to note relevant policy considerations at [39(e)], including that: (i) settlements of such proceedings are to be encouraged; and (ii) the parties, rather than the court, will have the best knowledge of the facts of the case and the interests of the parties. Should further provision be made for George?

12. In this matter, I note in particular, regardless of the dispute between the siblings, the objective evidence is to the effect that George and his partner resided with Antonio through the last years of his life. I am mindful there is no evidence to suggest any significant disharmony or any unhappiness on the part of Antonio with that arrangement.

13. It strikes me as inevitable, given Antonio's advanced years, there would have been some considerable assistance required by him from time to time in the course of that joint living arrangement. There is no evidence to suggest Antonio was in any way mentally impeded in those last years. He had been quick to complain to the other siblings when he was uncomfortable about the nature of the prior arrangement with the deceased brother, John. The absence of any complaint by him concerning the arrangement with George suggests to me it was a harmonious arrangement that provided benefits to both parties.

14. I am also conscious the estate is, by modern standards, not large and the adjustment proposed in George's favour, which amounts to approximately $116,000, is a modest adjustment and reflects a relatively minimal level of interference with the terms of the last will.

15. With a view to the size of the estate and of the adjustment, the information required by the court to be satisfied as to adequacy of provision is, as McWilliam J observed in Rijven v Lynam and Rijven [2023] ACTSC 265 at [39]-[40], at the lower end of the scale. In the circumstances, I consider it appropriate to approve the settlement in accordance with the terms of the deed now in evidence before me.

Orders

16. The orders of the Court are: (1) Further provision for George Pani out of the estate of the late Antonio Pani, to be distributed from the residue prior to the remaining residue being distributed to the beneficiaries in accordance with the terms of the deed of settlement entered into between the parties dated 27 March 2026. (2) No order as to costs. I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Judgment of his Honour Justice Muller.

Associate: Date: