Plaintiff v Defendant

Supreme Court of Victoria|2008-10-31|Before: WHELAN J

SUCCESSION - Will - Provision and maintenance - Claimant one of three adult sons - Trust for grandchildren - Undertaking as to use of money - Dispositions within claimant's own family altered in certain respects.

1 Maria Cangia was born in 1929 and died in 2007. At the time of her death she had three adult sons, John, Andrew and Robert. They were each married and had children of their own.

2 After certain specific bequests, Mrs Cangia provided in her will that her residuary estate should be divided into six equal parts. She left one sixth to her son John and one sixth to each of John's sons, Victor and Patrick, on trust until they reach the age of 25. Thus, she bequeathed half of her residuary estate to her son John and his family. As to Andrew's family, she directed that $5,000 be paid to him from one of the one sixth shares and that the balance of that share be held on trust for Andrew's daughter, Isabella, until she turns 25. As to Robert's family, she directed that $1,500 from each of two one sixth shares be paid to him and that the balance of those shares be held on trust for his sons, Dylan and Jacob respectively, until they turn 25. The executor and trustee under the will is John.

3 Robert is dissatisfied with the provision made by his mother for him. He brings this application under s 91 of the Administration and Probate Act 1958 (Vic) ("the Act") seeking an order that a further and additional provision be made for him.

4 The estate is not a large one. John's most recent affidavit indicates that the net assets of the estate are approximately $360,000.

5 Mrs Maria Cangia's husband was some 17 years older than her. They were each of Italian background. They migrated to Australia in 1955 with their infant son John who had been born in 1954.

6 In 1959 their son Andrew was born and in 1964 Robert was born. The family eventually moved to a house in Bundoora where Mrs Cangia lived until not long before she died. Her husband died on 25 April 1977.

7 John was married in September 1978 to Daniela. They lived at the family home until moving into rented accommodation in 1980. In 1984 Andrew left home to pursue his career as an airline pilot; and Robert met his future wife, Angela.

8 After the death of Mr Cangia a $10,000 worker's compensation payment was obtained and was held on trust by the Accident Compensation Tribunal. From time to time Mrs Cangia arranged for amounts to be paid out of this trust fund to or for the benefit of Robert including $2,000 for car repairs in 1988, $2,232 in relation to expenses arising out of a car accident in 1988, and $4,000 to assist Robert in purchasing a car in 1998. In his oral evidence Robert told me, initially at least, that he considered this entire worker's compensation payment of $10,000 to be for him and that his mother was merely "administrator" of the fund. The documents produced in evidence concerning the administration of the fund are inconsistent with this. They indicate, for example, that Robert agreed to repay the sum of $2,232 to which I have referred. In Robert's first affidavit in support of this application he swore that he had made an agreement with his mother to repay the $2,232 to her. When I asked him to explain why he had agreed to repay that sum to his mother if the entire fund was for him he had difficulty, in my view, in giving a satisfactory explanation.[1]

9 There are other documents which indicate that the fund was for both of Mr Cangia's dependents at the time of his death, Robert and his mother, and I find that that was the case.

10 In 1993 Mrs Cangia went to the United Kingdom to visit Andrew, who was at that stage living there. While she was away unauthorised withdrawals were made from her bank account. This prompted her to write to the bank on 22 November 1993, from Andrew's home in the United Kingdom, requesting an immediate stop on all withdrawals and seeking a copy of all transactions which had occurred since she had left Australia. Before me John swore that his mother had left signed withdrawal slips with Robert to enable him to pay household expenses and council rates. He swore that while she was overseas he became aware of disconnection notices in the mail and advised his mother of this. John's evidence was that only Robert had access to the signed withdrawal slips.[2] Robert for his part says that about a week after his mother departed, "to my surprise", John came to the house and said it would be better if he (John) looked after the bills and that he then took the passbook and withdrawal slips. He denies taking any money from his mother's bank account. He implies it was John who did it. Robert says his mother wrote to the bank after John rang Andrew. He said John did this because he always tried to get him (Robert) into trouble. [3] I will return to this issue.

11 While his mother was in the United Kingdom, and not long prior to her letter to the bank requesting an immediate stop on all withdrawals, Robert moved out of the family home and went to live in Wodonga with Angela. Their first child, Dylan, was born in 1994. In November 1994 Robert and his family returned to Melbourne and they stayed with his mother for approximately six months. In about the middle of 1995 Robert and his family moved out into rented accommodation in Mill Park. Robert and Angela married on 16 November 1996. Their second child, Jacob, was born in 1997.

12 In 1999 Robert Cangia was admitted to hospital suffering from depression. There was concern at the possibility of suicide. Whilst he was in hospital Angela and the children returned to Wodonga. When he left hospital he followed them back there.

13 In 1999 a sum of $8,000 was paid out of the worker's compensation fund to a travel agency business in which John was then a partner named Ultimate Travel. John says that this payment was for a trip which his mother had planned and that, when it did not eventuate, the money was refunded. He said the money was not refunded to the trustee but was refunded to his mother personally. He has no record of the receipt of the payment or of the refund. Ultimate Travel collapsed in 2003, causing considerable financial problems for John and his family.

14 In June 2002 Mrs Cangia was diagnosed with cancer. From then on the burden of caring for her was borne very substantially by John and his wife, Daniela. At the time when her cancer was diagnosed Daniela was undertaking further training with a view to improving her English and obtaining other skills so that she could obtain employment. Instead, she became the principal carer for Mrs Cangia. She received a small means tested government payment as a carer. For the initial period of Mrs Cangia's illness the care which John and Daniela gave her largely revolved around taking her shopping and to medical appointments, and assisting with maintaining her home. On occasions they were required to undertake the onerous personal tasks which a person with terminal cancer often requires. There were occasions when Mrs Cangia collapsed and it was Daniela who attended to these emergencies. Mrs Cangia had an emergency call button and the monitoring service would contact John and Daniela when it was activated.

15 In January 2003 John's older son, Victor, visited Robert and Angela in Wodonga. It was not a happy visit, as matters transpired. Robert alleges that when Victor left he stole a number of items from the house, including a sum of money. It is unclear on the evidence of Robert himself what sum of money is said to have been stolen. John refunded a sum of $600 to Robert but Robert swears, in his affidavit sworn 30 November 2007, that the sum of $1,000 was stolen. In his oral evidence before me Robert said $1,600 and then $2,000 was taken.[4] When he was referred to what he had sworn in his affidavit he said that that was a mistake.[5]

16 The incident concerning Victor enraged Robert. The strength and persistence of his rage, as revealed by the evidence, is surprising. According to John, Robert's reaction, and in particular threats that he made to Victor, greatly upset Mrs Cangia. It was put to Robert that he repeatedly threatened to kill Victor. Robert said that as far as his memory recollected he did not make any threats to kill.[6] A transcript of a telephone conversation between Robert and Victor in January 2007 was put to Robert. He broadly accepted the accuracy of the transcript[7] and it was tendered as Exhibit D 1. In that conversation Robert did threaten to kill Victor. The level of abuse revealed in the conversation does seem to me to be surprising given that the conversation occurred four years after the event in question.

17 Victor swore an affidavit and gave oral evidence. In his affidavit he described the close relationship he says he had with his grandmother and the regular visits he paid to her during her illness. In his oral evidence he denied stealing from Robert.

18 In the middle of 2003 Andrew sent Robert a long email concerning the incident with Victor and Robert's reaction to it. Andrew did not give evidence before me and did not file any affidavit or take any other part in the proceeding, save that a solicitor appeared on his behalf to make known his views in relation to a proposed settlement to which I will refer later. In the email Andrew suggests to Robert that he is dubious as to his credibility in relation to this incident because, amongst other things, the amount which Robert says was taken increased over time. As I indicated, that pattern continued during the evidence which he gave before me.

20 In his affidavit sworn on 30 November 2007 Robert said that he had been in receipt of a disability support pension since January 2004 and that he had been doing "casual security work since late 2005, when available". He swore that at the time of swearing the affidavit he was earning approximately $900 per week from casual security work but was working more than 60 hours per week to achieve this. He swore that at that time he was not receiving any pension income due to his security work.

21 John Cangia in an affidavit sworn 6 February 2008 produced pages from a website which showed the plaintiff to have a position of "team leader" with an organisation known as "System Security".

22 In an affidavit of 4 September 2008 Mr Dennis Eastman affirmed that he is the proprietor of a business named "Eastman Security Solutions" and that Robert had commenced working for him in April or May 2006 on a casual basis. In that affidavit he set out Robert's duties, which he said involved "a high level of responsibility". He indicated that Robert held relevant security guard qualifications in both New South Wales and Victoria. He said that while the "Hume Internal Freeway" through Albury was under construction Robert had been working 45 to 50 hours per week and was presently working 37 to 40 hours per week.

23 In his evidence before me Robert said that if additional provision was made for him he would use it in order to help finance the purchase of a house. When it was put to him that he would not be able to get a loan to purchase a house and to service that loan he denied that, saying that he earned a minimum of $1,000 per week and that he sometimes earned $2,000 per week.[8] He also said that his wife was a qualified nurse who was currently undertaking an 18-month traineeship to qualify herself to work in the disability field. While a trainee she is being paid $400 gross per week and will be paid full wages when her traineeship is completed.[9]

24 Mrs Cangia's health deteriorated considerably in late 2006. She moved into John and Daniela's house. She occupied Victor's room and Victor moved into the lounge room. Daniela then nursed and cared for her on a full time basis.

25 At Christmas 2006 Mrs Cangia collapsed and was admitted to hospital. She died in February 2007.

26 As executor John arranged for the contents of Mrs Cangia's house to be valued and either sold or disposed of. He also arranged for the house to be sold. Robert made a number of criticisms of John in relation to the steps he took in this regard, all of which I find to be unfair and unsubstantiated with one exception.

27 One criticism made of John was substantiated. That concerned a trip to Egypt for which John reimbursed himself from the estate.

28 Mrs Cangia's will appoints her son John as executor and trustee. She makes a number of specific bequests which are not relevant for present purposes. She then provides that her estate is to be sold and the proceeds divided into six equal shares, after the payment of debts and funeral expenses. The shares are then divided in the manner which I have set out. The final provisions of her will read as follows:

I acknowledge that my solicitor has explained to me the provisions of the testator's family maintenance legislation. I have not made any further provision in this my Will for the said Robert Paul Cangia or his children because of the advances I have made to him and his family and on his behalf during his lifetime and in further consideration of the manner in which he has previously availed himself of my assets and belongings.
I have made no further provision for my son Andrew Anthony Cangia as both he and the said Robert Paul Cangia have substantially ignored me and have chosen to have little contact with me. My son John Arnold Cangia and his family have provided me with substantial personal assistance during my illness and have always supported me and included me in their lives.
I direct that my body be cremated and that my ashes be poured into the Nile River in Egypt by my Trustee.

29 Mrs Cangia made a number of wills. Robert and his counsel both made implicit suggestions in relation to the timing, and the solicitors involved, in the different wills to the effect that Mrs Cangia had been improperly influenced by John in making her final will. I reject those insinuations. They were never openly advanced and were never sought to be substantiated by reference to the evidence.

30 Criticism was also made of John concerning the manner in which he carried out the direction that Mrs Cangia's body be cremated and her ashes poured into the Nile River by her trustee.

31 Before the trial John had been asked to provide details of the amount which he had claimed from the estate and paid to himself in relation to the trip to Egypt during which he poured the ashes into the Nile. The details provided were set out in a document tendered as Exhibit P 1. John was cross-examined extensively on this document. For present purposes it suffices to say that John's accounting for the expenses was unsatisfactory in my view. What he had provided in P 1 was more a re-construction of what he might have claimed than an account of expenses he did incur. During his oral evidence he produced another justification of his claim which proceeded in a number of respects on a quite different basis to that set out originally. I do not find that John has improperly paid himself any sum, but I do find he has not satisfactorily accounted for the trip.

32 Section 91 of the Act gives the Court power to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make the provision. The section provides that the Court must not make such an order unless the Court is satisfied that the distribution in the will does not make adequate provision for the proper maintenance and support of the person.

33 Sub-section (4) of s 91 enumerates 11 specific matters which the Court must take into account, together with "any other matter the Court considers relevant".

34 Recently, in Boyd v State Trustees Ltd,[10] Robson J summarised the principles applicable under s 91 in a context relevantly similar to the one before me. Robson J said:

Section 91(4) of the Act envisages a three stage approach to each application. The first stage is to determine whether or not the deceased had responsibility to make provision for a person; secondly whether or not the distribution of the estate of the deceased makes adequate provision for the proper maintenance and support of the person and thirdly the amount of the provision (if any) which the court may order for the person. In determining each of these matters the court must have regard to paras 91(4) (e) to (o) and, pursuant to s 91(4)(p), to any other matter considered to be relevant.

45. In Blair v Blair[11] Nettle JA said that:

The court is bound in answering each of those questions to have regard to the matters mentioned in ss 91(4)(e)-(o) and pursuant to s 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters (referring to the matters mentioned) in [sic] are of themselves incapable of providing an answer to either question (referring to the first two questions). To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make a provision for a claimant, or that the testator failed to made adequate provision for the claimant, necessitates the application of a test or standard to the matters considered. The test remains one of whether and if so what provision a wise and just testator would have thought is his moral duty to make in the interests of the claimant.

Nettle JA's observation was expressly approved by Callaway JA in Lee v Hearn[12] and is consistent with Grey v Harrison[13] and Collicoat v McMillan.[14] MacEwan Shaw v Shaw[15] and Lee v Hearn[16] make it clear that the 1997 amendments made by the Wills Act 1997 do not require or justify a different approach from that approved in Grey v Harrison and Collicoat v McMillan.

In Bosch v Perpetual Trustee Co Ltd the Privy Council said in relation to the moral duty test that:

Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father... The Act is ...designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.[17]

Of course the Act is no longer limited to the spouse and children of the testator. But that is not relevant to these applications.
The breach of the moral duty is an objective test to be measured against all the relevant facts and in particular the matters referred to in 91(4)(e) to (o) of the Act and any other matter the court thinks relevant under (p).[18]
In Blair v Blair an adult son was successful in obtaining an order under s 91 of the Act.[19] Naturally each case turns on its own facts. But it is clear from Blair v Blair that an adult son need not establish a special need or special claim before the court can exercise its discretion in his favour.[20]"

35 A number of other authorities were cited by counsel for the parties to these proceedings, including Stott v Cook[21]; Herszlikowicz v Czarny[22]; White v Muldoon[23]; Subasa v State Trustees Ltd[24]; Baulch v State Trustees Ltd[25] and Anderson v Teboneras[26].

36 In the present context it seems to me there is nothing to be added to Robson J's summary of the law, save to emphasise that the Act confers only a limited jurisdiction to interfere with freedom of testation. As Callaway JA said in Grey v Harrison[27]:

"We must not underestimate the significance, both practical and symbolic, of freedom of testation. It is one of the badges of a society that has graduated from primitive conditions and a notable human right. Part IV of the Administration and Probate Act is to be construed accordingly."

37 The issues I must consider are whether Mrs Cangia had a responsibility to Robert to make provision for him, whether Mrs Cangia did make adequate provision for him, and, if not, what provision she, as a wise and just testatrix, should have made. In considering these three issues I must take into account each of the matters specified in the Act. Before addressing those matters individually, I will address the position overall.

38 It seems to me that Mrs Cangia did consider the claims upon her of her three adult sons and their respective families. She determined not to apportion her estate equally. She left half her residual estate to John and his sons, one sixth to Andrew and his daughter, and one third to Robert and his sons. In Robert and Andrew's case, she also determined to leave the bulk of what she was apportioning to their families to their respective children, with John as the trustee. Mrs Cangia explained in her will why she had decided to do this. Pursuant to s 94(c) of the Act I am entitled to have regard to that explanation.

39 On the material before me Mrs Cangia had a sound basis for the explanation which she set out in her will.

40 It seems to me to be likely that she reasonably perceived that Robert had had more than his share of the worker's compensation payment. Amongst the documents in evidence before me is a letter from solicitors acting on her behalf to the Accident Compensation Tribunal dated 26 August 1987 requesting that he no longer be treated as a beneficiary. There is also a note on a document dated 20 September 1988 concerning the advance to Robert of $2,000 by a person within the Accident Compensation Tribunal recording that no further payments should be made to him as the Registrar deemed that he had received his fair entitlement. Finally, there is the agreement made by Robert with his mother to repay the $2,232 (which was not repaid).

41 In this context the issue of the withdrawals from Mrs Cangia's bank account in 1993 is important. On this issue I prefer the evidence of John to that of Robert. The reasons for this are as follows:

(a) When Mrs Cangia wrote to the bank on 22 November 1993 requesting that all withdrawals be stopped she stated: "At present my son, Robert Cangia has had my authority by way of pre-signed withdrawal slips".

(b) I cannot accept that John would have instigated his mother's concern, as both John and Robert say he did, if it was he who had made the withdrawals.

(c) There were a number of aspects of Robert's evidence which caused me to form an adverse conclusion about his credibility. In this respect I refer to his evidence concerning:

(i) the agreement, or the absence of any agreement, to repay the sum of $2,232.[28]

(ii) his expressed belief that the entire worker's compensation payment was beneficially his and that his mother was only an administrator.[29]

(iii) the amount taken by Victor, and particularly the inconsistency between his affidavit evidence and his oral evidence on that issue.[30]

(iv) the content of his phone calls to Victor.[31]

(v) the whereabouts of a letter which his mother left for him and which cannot now be located.[32]

(vi) the issue of whether Andrew had ever lent him money.[33]

(vii) his employment, and in particular what seemed to me to be the contrast between his evidence on affidavit when addressing the issue of his need, and his evidence given orally when addressing the issue of whether he could repay a mortgage, as well as the contrast between his affidavit evidence and that of Mr Eastman.

42 In addition to the workers compensation payments and the unauthorised withdrawals, Robert as an adult with his own family lived in his mother's house for at least one extensive period. He swore in one of his affidavits that he asked for and obtained small cash amounts from his mother from time to time.[34]

43 On the evidence before me, the difference expressed in the will concerning the level of attention paid to Mrs Cangia, particularly during her illness, by John and his family on the one hand, and by Andrew and Robert on the other, was well founded at the time the will was written in 2004; and that difference became greater thereafter.

44 On the material before me, Mrs Cangia had a sound basis for the explanation she set out in her will of the dispositions which she made. Mrs Cangia did make advances to Robert and he did avail himself of her assets while she was alive. Perhaps more importantly, John and his family did have the closest connection with Mrs Cangia in her later years and it was they who undertook the very significant burden of supporting her through her illness. I do not intend any criticism of Robert or Andrew in this. No doubt they had their reasons and they had competing demands on them. They are adults with their own families to look after. The fact remains, however, that it was John and his wife Daniela who bore that heavy burden, and it was Mrs Cangia who received the benefit of their efforts.

45 Notwithstanding these conclusions, I do consider that two aspects of Mrs Cangia's provisions concerning Robert's family mean that her provision for Robert is not adequate to meet her responsibility to him.

46 First, her provision means that it would be impractical for Robert to use his family's inheritance to buy a family home for himself, his wife, and their two sons. At present they live in rented accommodation, as they always have. In the hearing before me Robert offered to give the Court an undertaking to use any sum ordered in his favour towards the acquisition of a family home. John said in his evidence that if his mother had believed Robert would use the money which she left to his family to buy a family home then she would have left it to him. In my view, leaving virtually the entire one third of her estate apportioned to Robert's family to his two young sons (now aged 11 and 14) rather than to him (with conditions), was not what a wise and just testatrix would do.

47 Secondly, in my view it was also unwise and unjust to name John as trustee for Robert's children. There is considerable antipathy towards John from Robert, and considerable mistrust on both sides. In my view John is not an appropriate trustee for Robert's sons. My conclusion in this respect is fortified by my concern as to John's accounting for the trip to Egypt.

48 I turn then to the specified matters to which I am required to have regard.

❖ Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.

This is an important consideration. It is significant that Robert is one of three adult sons. Grandparents do not owe the same kind of responsibility to their grandchildren as they do to their children.[35]

❖ Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.

In my view Mrs Cangia owed no special obligation to Robert and Andrew beyond that which any parent owes to an adult child. In my view Mrs Cangia did owe a special obligation to John because of the care which he and his wife gave her during the very difficult period at the end of her life.

❖ The size and nature of the estate of the deceased person and any charges or liabilities to which the estate is subject.

This is a small estate. In substance the estate represents the former family home.

❖ The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.

Robert is certainly not well off, but he is not poor. He has fulltime work from which he is earning between $1,000 and $2,000 per week. He is qualified as a security officer. His wife is qualified as a nurse and she is currently in training to obtain employment as a qualified nurse in the disability area. The most precarious aspect of Robert and his family's financial situation arises from the fact that they have always lived and continue to live in rented accommodation.

John is also not well off. He and his wife own a house, upon which they have a mortgage of $58,000. That liability relates to the collapse of the Ultimate Travel business. They have significant other debts. John is currently working as a night manager at a hotel. He still conducts a travel agency business in his spare time in partnership with Daniela. Their tax returns for the year ended 30 June 2008 reveal that John had taxable income of $41,143 and Daniela $10,823.

Nothing is known of Andrew's financial position. I proceed on the basis that he is not in financial need.

❖ Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.

Robert has suffered from high blood pressure, depression, type 2 diabetes and sleep apnoea. These conditions are presently under control.

John also suffers from high blood pressure, type 2 diabetes, and sleep apnoea. Victor has type 1 diabetes.

There is no material before me in relation to Andrew and I assume that his health is good and that he does not suffer from any relevant disabilities.

❖ Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased.

❖ Any benefits previously given by the deceased person to any applicant or to any beneficiary.

Robert did receive benefits from the deceased, as I have indicated previously. An issue was raised as to whether John ever did refund the $8,000 paid from the worker's compensation fund to Ultimate Travel. On the evidence before me I cannot determine that question. I do not find that John obtained the benefit of that sum.

❖ Whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased has assumed that responsibility.

No person was relevantly being maintained by the deceased.

❖ The liability of any other person to maintain the applicant.

❖ The character and conduct of the applicant or any other person.

In this respect I refer to my earlier observations concerning Robert, Andrew and John.

❖ Any other matter the Court considers relevant.

The other matter which I do consider to be relevant relates to John and Daniela's care for Mrs Cangia during her illness. Apart from the emotional support which they gave her over her final years, their support must have also meant that Mrs Cangia's estate was not depleted by the necessity to engage paid support and/or accommodation in hospital or some other care facility. As a result of their efforts Mrs Cangia was able to stay at home and then with them until very close to her death.

49 During the course of the hearing what was described as a "settlement" was proposed. The "settlement" involved me making orders under s 91 in favour of both John and Robert in the sum of $80,000 each. The proposal was that the five grandchildren should then equally share the residue. I was not prepared to make the orders sought jointly by counsel for the parties to this proceeding and the matter accordingly continued to a conclusion. In the course of submissions on that matter a solicitor appeared on behalf of Andrew and he handed up a document setting out his instructions which I initialled and placed on the Court file.

50 In final submissions counsel for John maintained the position that I should make orders in accordance with the "settlement". I was not prepared to make those orders when the "settlement" was proposed because in my view the proposal unjustifiably advantaged John and Robert at the expense of Andrew's daughter, Isabella, and because the overall effect of the proposal would very significantly alter the broad allocation between the three families which Mrs Cangia had made in a way I did not consider to be justified. I remain of that view. When I asked counsel for John whether I should interfere with the dispositions within John's family if I did not alter the dispositions between the three families, he said I should not.[36]

51 Counsel for Robert in final submissions submitted I should order a lump sum of $100,000 in his favour. When asked what I should do if I did not alter the dispositions between the three families, he said it would be appropriate to make provision for Robert even if that meant Dylan and Jacob received less.[37]

52 I have concluded that Mrs Cangia failed to make adequate provision for Robert in two respects. First, her dispositions mean it is impractical for Robert to use his family's inheritance to buy a family home. Robert has proffered an undertaking to use any money I order as a further provision for him for a house and the costs of this proceeding (if necessary).[38] Secondly, John is not an appropriate trustee for Robert's children, or for Andrew's daughter.

53 Provided Robert gives the undertaking to which I have referred, I will make an order that provision be made for Robert by varying clauses 9(v) and (vi) of the will so that the reference of $1,500 in each case is a reference to $40,000. Thus, if the estate has sufficient assets Robert will receive $80,000 from the two sixths dealt with in clauses 9(v) and (vi) and any balance will be held for Dylan and Jacob. To the extent necessary to give effect to this conclusion, my order is an order providing that the burden of the provision for Robert is to be borne otherwise than as provided for in s 97(2) of the Act. I will also order that Robert replace John as trustee for Dylan and Jacob and that Andrew replace John as trustee for Isabella.[39]

54 If the parties can agree on orders without the need for any further appearance, and the orders seem appropriate, I will make them. Otherwise I will hear further submissions.

55 As to legal costs, I asked the parties to forward to the Court details of the costs claimed. I had hoped that I might be able to avoid a further appearance. The executor and trustee's solicitors provided a detailed estimate totalling $34,687.50. The solicitors for the plaintiff provided an estimate, with no relevant detail of their own charges, totalling $62,659.50. The entire assets of the estate are approximately $360,000.

56 I have reached a tentative view that I should order that the costs of each of the parties be paid from the estate in an amount not exceeding $30,000. I have tentatively concluded the executor and trustee's claim should be reduced to make allowance for the costs of the time spent on the Egypt trip issue. As to the applicant, I have tentatively concluded that the costs order should reflect the adverse conclusions I have reached on many of the issues addressed by Robert. It also seems to me that there is a need to have regard to the size of the estate when assessing the costs which ought properly to be imposed on it. If the parties can agree on the costs orders, and they seem appropriate, I will make them. Otherwise I will hear further submissions.

[18] Grey v Harrison [1997] 2 VR 359 at 364 per Callaway JA.

[19] Blair v Blair [2004] VSCA 149. But see Coombes v Ward [2004] VSCA 51.

[20] Blair v Blair [2004] VSCA 149 at [20] per Chernov JA.

[34] See also cross-examination at transcript 71.

[35] MacEwan Shaw & Anor v Shaw [2003] VSC 318; (2003) 11 VR 95.

[39] When Andrew's solicitor appeared to address the proposed settlement, he handed up a document which, among other things, submitted Isabella's disposition should be paid to Andrew in trust for Isabella.

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