Plaintiff v Defendant

2 No provision was made for Mrs Berkelmans in her mother's Will and she contends that there was a responsibility on the part of her mother to provide for her and that a reasonable executrix in her position would have done so.

3 Mr Bulach is independently well off and makes no competing claim. However, he asserts that in the circumstances there was no obligation to make provision for Mrs Berkelmans, nor would a reasonable testatrix have done so.

4 I have determined that Mrs Berkelmans has established a claim under the provisions of Part IV of the Administration & Probate Act. A specific legacy of $600,000 should be allowed for the reasons which I shall now set out.

5 The deceased was born on 15 November 1929. Her first marriage was to John Walkley. They had two children, Trevor, born 8 November 1949, who died at age 50, and Mrs Berkelmans, born 30 July 1952. The couple separated in the early 1950s and divorced in 1957.

6 Mr Bulach is now 79 years of age. He met the deceased in the mid 1950s. In approximately 1957, they commenced living together and married in December 1965. Mrs Berkelmans was brought up by the deceased and Mr Bulach, initially in Melbourne, and later in South Gippsland.

7 Mr Bulach and the deceased moved from Melbourne to South Gippsland in the late 1950s. They initially lived at Noojee, where Mr Bulach operated a logging and timber business. Subsequently, they moved to a farm at Yannathan South. In approximately 1972, they purchased another farm across the road. Both farms ran cattle, a mix of dairy cows, dry cows and beef cattle.

8 When Mrs Berkelmans was 12 years of age, her mother gave birth to the first of three half-brothers, Dieter, who was born on 23 November 1964, Stephan, who was born on 27 August 1966 and Carl on 28 March 1968. Mrs Berkelmans was brought up as part of the Bulach family and helped her mother care for her three siblings.

9 At age 17, after completing Year 12, Mrs Berkelmans left home and went to study at Frankston Teachers College. She returned home to Yannathan South on weekends. Once qualified, she returned home and lived with her parents whilst working as a teacher. She married Mr Bill Berkelmans in January 1973.

10 Shortly after the wedding, the Berkelmans purchased their current property, a dairy farm in Neerim North Road, Neerim North. It is 40.55 hectares in size and ran about 60 cows, Holsteins. In addition, Mr Berkelmans, from time to time, farmed other properties and carried out contract work throughout the district. Mrs Berkelmans worked on the farm and supplemented the farm income by working as a primary school teacher in Warragul and has continued to do so up until the present time.

11 According to the valuer, Mr McMahon,[1] the farm house is a three bedroom single level timber dwelling in fair condition. He describes the floor as being uneven and requiring restumping. Photographs of the house[2] were tendered which confirm the general description provided by the valuer.

12 Mrs Berkelmans' natural father, John Walkley, died in 1995. He left his estate to the two children, Trevor (who subsequently died) and Mrs Berkelmans. The estate comprised a unit in Drouin, valued at the time at $85,000 and personal assets of just over $32,000.[3] Subsequently, the Berkelmans purchased Trevor's share of the unit and it is one of the investment properties now owned by Mrs Berkelmans and her husband.

13 The Berkelmans had three children, each of whom have been highly successful academically; Leon now 33 years of age and who lives in the United States; Ingrid, who is 30 years of age and also lives in the United States; Monica, the youngest, is a primary school teacher at Nilma.

14 In 1989, the Bulachs moved to a small farm at Tynong. The original farm at Yannathan South was found to have a substantial body of sand and, eventually, a licence to extract the sand was obtained. Towards the end of the 1990s, both Yannathan South farms were sold.

15 In the years immediately preceding the deceased's death, the Bulachs lived on the Tynong farm and ran a small herd of cattle and cut some hay on the property.

16 Over the years, Mr Bulach and the deceased (as tenants in common) accumulated a number of pieces of real estate in Victoria and Queensland from which they derived investment income. It is abundantly clear that this was the result of hard work and sacrifice on their part. The Berkelmans also have two investment properties in Gippsland and a flat in Warragul, the latter of which is used by Mrs Berkelmans as accommodation during the school week.

17 The deceased's personal estate (being shares and some cash) was valued at $26,100.[4] Her share of the investment properties was valued shortly before trial in excess of $2.6 million.[5]

18 Up until the death of the deceased, Mrs Berkelmans, her mother and her stepfather, Mr Bulach, all got on well. They visited and saw each other regularly, and Mrs Berkelmans was regarded as part of the Bulach family.

19 After the death of the deceased, the relationship between Mrs Berkelmans and Mr Bulach disintegrated. Several meetings were arranged to discuss the financial aspects of the Will and future provision for Mrs Berkelmans. At a meeting at La Porchetta Restaurant in Sale, in October 2007, the final chapter in this sorry tale appears to have unfolded. Whether it was prudent of the Berkelmans to raise the issue of Mr Bulach's will is neither here nor there. The end result, most unfortunately, is an apparent total rupture of the relationship between Mrs Berkelmans and Mr Bulach and his sons.

20 Mrs Berkelmans has, on three occasions, in 2003, 2007 and 2008, travelled to the United States to see her children and grandchildren. The Berkelmans have also been on overseas holidays to places such as New Zealand and Thailand when not visiting their children.

21 The deceased's Will was made on 11 June 2002. Mr Bulach was appointed the executor and the deceased left her entire estate, real and personal, to him. The Will also made provision (unnecessary in the circumstances) for a bequest of $100,000 to Mrs Berkelmans in the event of Mr Bulach pre-deceasing the deceased.

22 At the time that the deceased executed her will, Mr Bulach also executed a Will, in effect, a mirror of that of the deceased.

23 As I have said, the deceased and Mr Bulach, over the years, built up a portfolio of investment properties, all of which were held by the couple as tenants in common. There was no issue as to the value of the properties, which had been assessed shortly prior to the trial.[6]

Valuations of the deceased's interest in the properties -

(b) Unit 6, 352 Toorak Road, South Yarra - $ 157,500

24 Several of the properties have been occupied by the Bulach sons. Each of the sons paid a commercial rent.

25 Mr Bulach and the deceased also owned, in their joint names, a house in Scarborough, Queensland, that has now passed to Mr Bulach.

26 Both Mrs Berkelmans and Mr Bulach swore affidavits and were cross-examined.[7] Mrs Berkelmans' husband, Bill, also gave evidence. An accountant, Mr Mark Zeldenryk, provided an expert report and was cross-examined. A number of exhibits were tendered relevant to the personal and financial circumstances of the deceased and the Berkelmans.

27 Notwithstanding the petty and bickering nature of some of the assertions contained in the affidavits, by the end of the trial there was little, if any, major factual dispute between the parties. The level of the Berkelmans' income from personal exertion and investments was elucidated and the evidence of Mr Zeldenryk explained the position in relation to superannuation entitlements after Mrs Berkelmans' retirement.

28 In final submissions counsel for Mr Bulach attacked the reliability of Mrs Berkelmans, suggesting that she had, in effect, invented any special needs. It was said that she was less than balanced in her account of her relationship with the deceased and Mr Bulach. I do not accept these criticisms. Overall, I took the view that Mrs Berkelmans' evidence was plausible and I accept her evidence generally as to her relationship with her mother and the deceased and the limited needs she may have.

Part 4 of the Administration and Probate Act 1958 (Vic)

29 As Gleeson CJ explained in Vigolo v Bostin & Ors,[8] testators' family maintenance legislation has existed in this country for almost a century and the legislation is "imbued with concepts of entitlement and disentitlement, claims and obligations, propriety and fitness, related to questions of inheritance".[9]

30 In Victoria, s 91 of the Administration and Probate Act 1958 (substantially amended in 1998)[10] provides as follows:

"Power of the Court to make maintenance order

(1) Despite anything in this Act to the contrary, the Court may 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 provision.

...

(3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

(a) his or her will (if any); ...

does not make adequate provision for the proper maintenance and support of the person.

(4) The Court in determining -

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

(i) the deceased's will; ...

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; ...

must have regard to -

(e) 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;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) 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;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j) the age of the applicant;

(k) 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;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) 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 had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

(p) any other matter the Court considers relevant."

31 The determination of the claim under Part IV of the Act is usually a three step exercise:

(a) Determining whether the deceased had a responsibility to make provision for Mrs Berkelmans. This is contested.

(b) Determining whether the distribution constituted adequate provision for her proper maintenance and support. Given there was no provision, this is not an issue, provided (a) is answered affirmatively.

(c) If (a) is answered affirmatively, then determining what amount is appropriate to provide for Mrs Berkelmans' proper maintenance and support.

The first question: did the deceased have a responsibility to make provision for the applicant?

32 The Court's limited power to interfere with the freedom of testamentary disposition is well recognised. The starting point in any application such as this is that a testator is able to dispose of his or her estate as may be desired.[11] However, it is also well understood that Parliament has authorised curial intervention in appropriate cases. Accordingly, there are occasions when the wishes of a testator will be frustrated by the application of the principles set out in legislation such as Part IV of the Administration and Probate Act. As Gleeson CJ explained in Vigolo:

"The 'testamentary duty' which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based." [12]

33 His Honour went on to cite the principle underlying the legislation as perceived by Salmond J in In re Allen (deceased), Allen v Manchester: [13]

"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."

34 In Blair v Blair[14] Chernov JA (with whom Nettle JA and Hansen AJA agreed) said of the moral obligation upon a testator in the context of the 1998 amendments:

"Thus, it is clear enough that the 'responsibility' of which sub-s.(1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, sub-s.(3) is essentially concerned with whether the deceased - as a wise and just testator - has fulfilled his moral obligation to make adequate provision for the claimant's proper maintenance and support. Given, however, that the court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of sub-s.91(4) when determining the jurisdictional issues, characterisation of the deceased's relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part IV of the Act. Be that as it may, it should be noted that while the criterion in each of paragraphs (e)-(o) of sub-s.91(4) is concerned with a specific matter, paragraph (p) is open ended, enabling the court to consider 'any other matter [it] considers relevant' and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator's moral obligation to the claimant." (Emphasis added.)

35 In McCosker v McCosker,[15] Dixon CJ and Williams J said:

"The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." (Emphasis added.)

36 The nature of the moral obligation of a testator to his or her adult children was considered by Ormiston J in Collicoat & Ors v McMillan & Anor[16] in which His Honour said:

"The "moral obligation", as described in Re Allen and many other later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards".

37 Finally, reference again should be made to Gleeson CJ's observations in Vigolo as to the purpose of testators' family maintenance legislation:

"... courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description 'moral'."

38 Before I turn to the specific provisions of Part IV of the Act, and in the light of the above statements of principle, it may be helpful to make some observations given counsel for Mr Bulach's contention that the deceased had no moral obligation towards her only daughter.

39 First, there was no dispute that the deceased and Mrs Berkelmans had a loving and close relationship over 50 years. They saw each other regularly and Mrs Berkelmans was part of the Bulach family.[17] The bond between mother and daughter is, I think, relevant in determining what, if any, moral obligation existed.

40 Second, although Mrs Berkelmans left home at age 17, for the last five years of her life at home she looked after and assisted in the raising of her three half-brothers. I accept her account of her contributions towards the family during those years. In particular I accept her account that her mother relied upon her considerably in relation to assisting around the house and with domestic chores.

41 Third, Mrs Berkelmans and her husband, Bill, assisted Mr Bulach and the deceased in their farming activities from time to time. True it may be that there was a reciprococity in relation to these activities, but nevertheless, contributions were made by Mrs Berkelmans.

42 Fourth, the relatively modest circumstances in which Mrs Berkelmans lived were well known to the deceased, who visited her daughter and grandchildren regularly. The valuer, Mr Neville Sampson, describes the house as a "weatherboard and hardiplank dwelling with corrugated galvanised iron roof, aluminium frame windows, timber flooring over timber stumps and timber internal walls and a mixture of masonite and plasterboard ceiling linings" built in circa 1900. It comprises three bedrooms. It is located on approximately 40.55 hectares with a 20 megalitre dam and divided into 15 main paddocks. It has fair infrastructure with a disused dairy.[18] Notwithstanding the fact that the Berkelmans own several investments properties (which was relied upon substantially by counsel for Mr Bulach), the reality is that the family, hardworking dairy farmers, live in reasonable but not "flash" accommodation. Counsel for Mrs Berkelmans contended that the house was in a state of disrepair and that this, in itself, was a special circumstance of which the deceased should have been aware. No mention was made of this matter in Mrs Berkelmans' original affidavit and it seems to have been something of an afterthought. My own impression is that the house was kept in a neat and tidy fashion and that, apart from its overall modest trappings, it was not in such a state that it would have occurred to the deceased that provision needed to be made for repairs to it.

43 Fifth, there can be little doubt that the deceased was aware that her daughter would cease teaching in the relatively near future and that therefore she and her husband would be deprived of a significant portion of their income. Whilst she may not have known that Mrs Berkelmans had a limited superannuation entitlement, she must have known that there would necessarily be a decrease in her financial circumstances upon her retirement from teaching. This was particularly significant given that Mr Berkelmans had already retired from farming. In this context, it also had to be known to the deceased that two of the three children, who had been extraordinarily successful academically and professionally, were living in the United States and that part and parcel of Mrs Berkelmans' parental obligations would be to visit them from time to time.

44 Finally, I reject the thrust of the argument put on behalf of Mr Bulach that in determining the moral obligation of the deceased to her daughter, it was incumbent upon her to show "special circumstances". Whilst this was not spelt out as an absolute proposition, it was the undercurrent of the submissions made on his behalf. Clearly, an applicant's case is assisted if it can be shown that there is some special need or circumstance that should have been taken into account by the testator. However, it is not a necessary or essential ingredient. This was made clear by the Court of Appeal in Blair v Blair.[19]

45 I turn now to the specific provisions of Part IV, s 91(4)(e) to (o).

(e) 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

46 I have already remarked upon aspects of the relationship between the deceased and Mrs Berkelmans. When her mother separated from her biological father and commenced to live in Melbourne with Mr Bulach, she (aged 4½) went with her. I accept her evidence that between the ages of 12 and 17 she provided substantial assistance in the upbringing of her stepbrothers. There was some debate during the course of the trial as to how her mother coped with the children.[20] This was a distraction, as the primary point, which was not challenged, was the contribution of Mrs Berkelmans as part of the Bulach family. Indeed, she had changed her name when in her teens to Bulach.

47 There was no serious challenge to her assertion as to the closeness of the relationship between herself, her stepfather and her mother throughout the deceased's life.

48 There was also no challenge to her assertion that for some time after the death of her mother, the relationship between herself and Mr Bulach remained solid. The turning point appears to have been Mrs Berkelmans' frustration with the provisions of her mother's Will, and her decision to then confront Mr Bulach about where she stood in the family.

49 Whatever the position subsequent to her mother's death, the undisputed evidence is that there was a close familial bond between mother and daughter for over 50 years.

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate

50 The obligation to Mrs Berkelmans was that of a mother to her daughter. There is no other applicant. The deceased had a moral obligation to her husband, Mr Bulach, who is the only beneficiary of the estate and who eschews any claim upon it. She also had a moral obligation to her three sons, who make no claim.

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject

51 I have set out the deceased's assets. For present purposes, the estate carries a value of around $2.6 million.

(h) 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

52 This was the subject of a substantial part of the evidence and debate in the course of the trial.

53 Mr and Mrs Berkelmans jointly have the following assets:

(a) The property at Neerim North Road, Neerim North - $770,000

(d) Unit 2/12 Toorak Avenue, Warragul - $205,000[21]

54 The two Drouin units are rented out. The Warragul unit is used by Mrs Berkelmans during the week when teaching. Upon her retirement, it could be rented out. Mrs Berkelmans also has a superannuation entitlement with a present value of approximately $188,700.[22] The Berkelmans' joint savings amount to $36,382[23] with equities of approximately $16,000.[24]

55 The joint taxable income of the Berkelmans was as follows:

56 The bulk of the income of the Berkelmans is Mrs Berkelmans' teaching salary, supplemented by income from the two investment properties and relatively small returns from deposits and equities. Mrs Berkelmans' income to the end of the financial year 30 June 2009, was $68,791 gross or $52,717[26] net from her employment as a teacher.

57 The Act mandates an examination not only of the current financial position of the applicant, but "for the foreseeable future". It is inevitable that Mrs Berkelmans, who has worked as a teacher for over 35 years, will retire in the near future. Once she does so, her sole income (and therefore the predominant source of income of the family) will be her superannuation benefits and income from the rent of the units (including the Warragul unit). On the estimate of Mr Zeldenryk, the accountant, which I accept, the taxable income of both will drop to a maximum of approximately $38,000 assuming that the Warragul unit is rented out - less than 50% of their current taxable income.[27]

58 As the events of the past 18 months and the "GFC" have demonstrated, there is nothing certain in relation to returns from superannuation investments or, for that matter, any investment. Mr Zeldenryk's evidence illuminated these problems.[28] How Mrs Berkelmans will treat her superannuation is in the lap of the gods. What is abundantly clear is that whatever choice she adopts in accessing her superannuation, she will not be left with the type of income she is currently earning ad infinitum.[29] Of course, she may choose, as would be permitted, to use some of the capital to support herself and her husband.

59 Whilst I accept that the precise nature of these calculations would not have been known to the deceased, it must have been obvious to her that once her daughter ceased teaching, there would be a significant effect on her ability to maintain her lifestyle, modest as it was.

60 Counsel for Mr Bulach placed some emphasis on the fact that Mrs Berkelmans has been able to travel overseas each year since 2003. A number of these trips were to visit her children and grandchildren and provide, as she described, "granny care". To describe these as holidays is to do Mrs Berkelmans an injustice. The other trips were clearly not lavish holidays (at least one was on frequent flyer points). The fact of life, now, is that many Australians can travel overseas just as cheaply as they can in Australia,[30] and the proposition advanced by counsel for Mr Bulach that this in some way demonstrates a comfortable lifestyle ignores, I think, the way in which families of limited means take holidays in the 21st century.[31]

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

(k) 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

63 I have already mentioned the contribution made by Mrs Berkelmans to the raising of her half brothers during her teenage years. Counsel for Mr Bulach was inclined to dismiss this contribution - I do not agree. I am satisfied that during her teenage years, Mrs Berkelmans contributed significantly to the raising of the two elder boys and, to a limited extent, her youngest half brother.

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary

64 The deceased provided Mrs Berkelmans' children with a pony and a second-hand motor vehicle. I accept Mrs Berkelmans' suggestion that each probably ended up costing more than their value at the time of the gift. Experience teaches one that horses (racing, stock or pony club - in this case a 20 year old pony) generally occupy the liabilities side of the balance sheet, as does maintaining an 18 year old Datsun 1200.[32]

(m) 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 had assumed that responsibility

65 Mrs Berkelmans was not being maintained, either partially or wholly, by the deceased.

(n) the liability of any other person to maintain the applicant

(o) the character and conduct of the applicant or any other person

67 It was not suggested that there was any disentitling conduct on the part of Mrs Berkelmans which would be relevant to a consideration of the first question.

(p**) any other matter the Court considers relevant**

68 I have dealt with a number of matters at [39] to [47], a number of the matters which I regard as relevant to determining this issue. There are, of course, no competing claims upon the deceased's estate.

69 It may be that the deceased, in leaving her entire estate to Mr Bulach, perceived that Mrs Berkelmans had received sufficient provision in terms of testamentary bounty from her natural father, Mr Wakeley. A wise and just testator would not have reached this conclusion as it had to be apparent to the deceased that Mr Wakely's estate was particularly modest and that Mrs Berkelmans' entitlement, in effect a half share of a unit in Drouin plus a small amount of cash, was a far cry from a windfall.

70 In McKenzie v Topp,[33] Nettle J said:

"For just as community attitudes are the touchstone of adequate provision,[34] 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."

71 It is not uncommon for a spouse to leave his or her estate to the surviving spouse and for such a disposition to remain unchallenged. It can be readily accepted that a moral obligation (and a consequential claim on the bounty) was owed by the deceased to Mr Bulach - but that does not exclude an obligation to the daughter. In a case where there is no competing claim on the estate, then, absent exceptional circumstances, one would expect a child to have a valid claim upon the bounty of the estate. This proposition assumes the existence of a loving relationship between parent and child, as well as contributions from that child during the course of the life of the parent.

72 There is nothing in the evidence in this case which displaces that proposition, other than the contention that Mrs Berkelmans was sufficiently well off so as to be ignored in determining whether there was a moral claim upon the testator's bounty.

73 The Berkelmans, in my view, have lived frugally and made sound investment decisions. They are not independently wealthy. They have not lived an extravagant lifestyle and will not in the future. Indeed, once Mrs Berkelmans stops work, the reality is that their standard of living will decrease. The implicit argument on behalf of Mr Bulach that, in some shape or form, the Berkelmans are living the easy life must be rejected, as must the suggestion that there was some kind of windfall from the estate of Mrs Berkelmans' natural father. Because a child has been prudent in his or her financial decisions and thus accumulated a degree of wealth is no reason, where no other competing claim is made, to conclude that a moral obligation to provide for that child does not exist.

74 I consider that a wise and just testator in the deceased's position would have concluded that she had a responsibility in the circumstances of this case to make provision for her only daughter. I am satisfied that Mrs Berkelmans has established that her mother had a responsibility to make testamentary provision for her.

What constitutes adequate and proper provision for Mrs Berkelmans

75 The estate has a value of approximately $2.6 million. Mr Bulach makes no claim upon it, nor do Mrs Berkelmans' three half brothers.

76 It was urged by counsel for Mrs Berkelmans a figure of $600,000 be allowed, being roughly a quarter share of the estate. Counsel for Mr Bulach said that this figure was disproportionately high.

77 I accept the evidence of Mr Zeldenryk that, once Mrs Berkelmans retires, the joint income with her husband will be between $32,000 and $38,000 per annum, less then half of their present income.[35] Even if Mrs Berkelman draws down on the superannuation capital, as she would be entitled to, she would only have a very limited period over which her superannuation generated income equivalent to her teacher's salary.

78 In addition, Mrs Berkelmans will have the added responsibilities of being a grandmother and all that role entails - particularly as two of her children now reside in the United States. Nothing in her lifestyle or situation would require an allowance for her to be less than that made for her half brothers if they had shared in the distribution of the estate.

79 I take into account the fact that the Australian Bureau of Statistics Life Table suggests that Mrs Berkelmans may well live another 28 years.[36]

80 The deceased died leaving a sizeable estate. I have concluded that she had a moral obligation to make adequate and proper provision for her daughter and that she failed to do so. As the Court of Appeal recognised in Blair v Blair, it is impossible to set out on an arithmetical basis the calculation of this figure. The primary considerations, as I have endeavoured to demonstrate, are the reduction in Mrs Berkelmans' available funds when she retires from teaching, the need to see her children and her life expectancy.

81 A wise and just testator, taking into account the matters I have adverted to, would have recognised the need to provide a capital sum of some substance to enable her daughter to achieve these goals in her retirement years. A lump sum proportionate to the size of the estate should be awarded. An appropriate allowance is, I think, $600,000 by way of a specific legacy.

82 In accordance with the provisions of s 96(2) and s 97of the Administration & Probate Act, there should be a specific legacy in the sum of $600,000 to the benefit of Mrs Berkelmans. I do not think it is necessary, at least at the present time, to determine the source of such legacy as I assume the executor will make the appropriate distribution.

[1] Exhibit MZ1 to the affidavit of Mr Mark William Zeldenryk 29 August 2009.

[4] Inventory of assets and liabilities filed with the Registrar of Probates, 29 May 2007.

[6] Affidavit of Mr Bulach, 20 August 2009 [4]; T6-7.

[8] [2005] HCA 11; (2005) 221 CLR 191.

[10] Wills Act 1997, s 55.

[11] Gray v Harrison (1997) 2 VR 359, 366.

[12] [2005] HCA 11; [2005] 221 CLR 191, [12].

[13] [1922] NZLR 218, 220-221. See also Bosch v Perpetual Trustee [1938] AC 463, 478-479.

[14] [2004] VSCA 149; (2004) 10 VR 69, [13].

[15] [1957] HCA 82; (1957) 97 CLR 566, 571-572.

[16] [1999] 3 VR 803, [818].

[17] Affidavit of Mr Bulach, 1 July 2008, [17].

[18] Exhibit MZ1 to the affidavit of Mr Mark Zeldenryk, 24 August 2009.

[19] [2004] VSCA 149; (2004) 10 VR 69, [20].

[20] Affidavit of Mrs Berkelmans, 24 April 2008, [14] and affidavit of Mr Bulach, 1 July 2008, [13].

[21] Exhibit MZ1 to the affidavit of Mr Mark William Zeldenryk, 24 August 2009.

[33] [2004] VSC 90, [58].

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

[35] T160 - dependent upon whether the Warrigal unit is rented out.

[36] Affidavit of Mr Mark Zeldenryk, 24 August 2009, [18].