Plaintiff v Defendant

2 Soon after the proceeding was commenced, the Court made typical procedural orders, the first of which required the plaintiff to file any affidavits in support of his claim. The amplitude of evidence is a matter for the plaintiff. The only affidavit filed was that of the plaintiff, sworn on 16 August 2010. It is not said there are more facts to be adduced by affidavit, or to be discovered by interlocutory procedures, to augment that affidavit or to otherwise enhance the case. The plaintiff is legally represented and, as I assess it, his affidavit is expressed with sufficient coherence and order so as not to arouse the judicial sense that sometimes leads a Court, prudentially or in the interests of justice, to give a litigant an adjournment to possibly improve and file any supplementary affidavits, at least at an interlocutory stage. Thus, his affidavit contains the entire facts on which he relies to make his claim at trial. I shall return to its contents later.

3 The affidavit is attuned, as it must be, to the criteria to which the Court must have regard in s 91(4) (e) to (o) of the Act in determining first, whether or not his uncle had "responsibility" to make provision for him and secondly, whether or not the provisions of the will make "adequate" provision for his "proper" maintenance and support. This application concentrates methodically on the first jurisdictional requirement under s 91(1) of the Act that the claimant must be someone "for whom the deceased had responsibility to make provision". Failing that, what must prevail is the principle of freedom of testation.[1]

4 On the basis of the plaintiff's affidavit, the defendant as executor of the will contends the plaintiff's claim cannot succeed, and therefore should not go to trial. He contends that the plaintiff's evidence establishes no more than the testator was the plaintiff's favourite uncle, they had common interests, and he regarded him as a father figure. He contends there is no evidence to show that the testator assumed or accepted any paternal responsibility for the plaintiff, or any other responsibility which might lead a court to conclude that the testator had a moral duty to provide for the plaintiff, or provide any more than what he was given under the will. He contends, correctly, the court cannot interfere with the freedom of testamentary disposition just because it would have been nice of a testator to do so, or because it would demonstrate familial generosity.[2]

5 Accordingly, the executor seeks a dismissal of the claim or seeks judgment under rule 23.01(1)(a) which empowers the Court to do such a thing if, amongst other things, a claim in a proceeding does not disclose a cause of action. Ordinarily, one thinks only of pleadings as failing to disclose a cause of action. Despite the absence of pleadings, it was held in Harris v Bennett[3] that the Court could entertain an application for summary judgment under rule 23.01(1)(a) in a testator's family claim. If choice of procedural rule matters, I would add that rule 23.03 speaks of summary judgment for a defendant "...if the defendant has a good defence on the merits." But for all practical purposes, there will be a good defence if there is shown to be no cause of action.

6 The Court in Harris v Bennett was not asked to consider rule 23.03. But the application there was equated to a summary judgment application so that following the well-known approach stated by Dixon J in Dey v Victorian Railways Commissioners[4] the test is whether there is a real question to be determined. There will be a real question to be determined unless the defendant can show it is certain that the question must be answered in the defendant's favour. Thus as analysed recently by the High Court in Spencer v Commonwealth,[5] the test in Dey is "a test requiring certain demonstration of the outcome of the litigation, not an assessment of the prospects of success."

7 Applications for summary judgment are commonplace. I need hardly dwell on the test or its practical application. What unavoidably creates a digression is that since the commencement of the Civil Procedure Act 2010 on 1 January this year (and since the Court reserved its decision here), the test for summary judgment has altered under s 62 to being that the plaintiff's claim has "no real prospect of success." In Spencer (which was concerned with the expression "reasonable prospect of success" in the Federal Court Act), it was shown that the expression "no real prospect of success" if it is to be faithful to its origin in the British Civil Procedure Rules means that a party must show more than a merely arguable case. That is, it would have to be a case which had a real prospect of winning.[6]

8 It was no part of argument, but as I understand the transitional provisions under s 76 of the Civil Procedure Act, the summary judgment provisions under Part 4.4 apply only to civil proceedings commenced after the commencement that Part. Section 76(2) says that if (as is the case here) the proceeding commenced before the commencement of the Act, but the Court has "not begun to hear and determine that proceeding" then Part 4.4 applies. I think proceeding is not the same thing as an application within a proceeding.

9 I also note that s 65 of the Act says that powers of the court under existing rules remain unaffected. This either means two different tests co-exist or the power is the same, but the Act now prevails to state the test in exercising that power.

10 This Court has heard this application under the "old" body of law concerning the test to be applied for summary judgment applications. An anomaly could possible arise where a view was taken that this case had no real prospect of success, yet it could not be said that it was bound to fail. On the pre-Act test, summary judgment would be refused, but under the Act, summary judgment might be allowed. And in Victoria we still have ― I am afraid to say ― de novo appeals from an Associate Justice. If the application was refused on the old test but an appeal de novo was instituted, then it seems to me that the less stringent "real prospect" test under s 62 would then apply if full faith and credit is to be given to the reforms under the Civil Procedure Act.

11 What can be said at the outset is that summary disposals in this type of case are rare. That is because facts in family claims are invariably in dispute to some appreciable degree, and a fair bit is at large in a field of discretion. The claims usually involve a close examination of human relationships, interpersonal affairs, family stories, beliefs, perceptions, expectations, people's station in life and impalpabilities in life. The Court's evaluation of the testator's moral duty (about which, more later) and the exercise of a discretion that involves some value judgment means that ordinarily family claims are best left to trial to determine their sustainability.

12 But, the executor puts this application carefully. He accepts all that is contained in the plaintiff's affidavit. Thus, questions about contested or additional evidence, the dynamics of trial and the deferral of more extensive argument to trial become immaterial. The question becomes the clinical one of asking now: on the plaintiff's own evidence, is his case bound to fail because there is nothing to show that the plaintiff was a person for whom his uncle had a responsibility to make provision for proper maintenance and support? He says there was no moral duty at all.

13 In effect then, this Court on a summary judgment application is making the same evaluation of the merits as would occur at trial. It does not strike me as a situation where the trial milieu is going to be a different or better forum for an argument of a more extensive kind. One approach is to take a "look and sniff" at the facts and form some instinctive view of whether the matter ought to go to trial. Instinct can succumb to caution because of lawyer's experience that "concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising case into a successful judgment": Lindon v Commonwealth.[7]

14 Another approach is to apply the thinking that where the facts are not in dispute and the law is not controversial (as where the matter is governed by a well practised statutory regime) then even on a summary judgment application argument of an extensive kind may have to take place to truly see if the case is bound to fail. I prefer to take that course, at least in this case. That is especially so if granting summary judgment may save time, expense and litigation anxiety. It will also avoid the erosion of an estate by the cost of litigation (a widespread lament), and enable the executor to finally administer the estate.

15 Thus, this Court is put in the position where it is to assess whether there is a real question to be tried in effect by undertaking what a trial Court will do on the same facts and arguments. And what is being legally assessed is a jurisdictional question of whether there is any evidence of "responsibility".

16 It is the facts that matter, and that inform the just course to take. The facts are not complicated.

17 The testator Charles Sandison was one of three children of Charles and Ethyl Sandison. He had an older sister Millicent. She is the plaintiff's mother, still alive. And he had a younger brother Maxwell (now deceased) married to Kathleen who had a son Timothy. Thus, the plaintiff and Timothy Sandison are cousins. The testator died a widower, and had no children.

18 The testator died leaving a will dated 17 February 2006. According to the executor's inventory of assets and liabilities dated 21 January 2010, he left real and personal property in Victoria valued at $1 160 626.04; personal property in New South Wales valued at $9161.10; and liabilities of $3343.56. The real property was his former home in Hamilton which was valued at $530 000. The Court was told that the Hamilton property was sold for net proceeds of $460 000.

19 Under the will, the testator gave a monetary legacy of $50 000 to his sister (the plaintiff's mother), $100 000 to the plaintiff, and $100 000 to his sister-in-law Kathleen Sandison. He devised the Hamilton property to his nephew Tim. He gave the net residue of his estate to the plaintiff and his cousin Tim as tenants-in-common in equal shares.

20 According to the evidence, the liquid assets of the estate (term deposits and company shares) are worth $1 074 133.90 as at November 2010. Thus, adding the total cash legacies of $250 000 to the net proceeds of sale for the Hamilton home gives a total of $710 000. If that sum is deducted from the total liquidated assets of $1 074 133, there is a residue of approximately $300 000. As the net residue is to be shared by the plaintiff and his cousin Tim in equal shares, the plaintiff stands to gain one-half of $300 000 which together with his legacy of $100 000 gives him a total of $250 000. The plaintiff contends that is inadequate. He seeks one-half of the net estate. It is apparent that his real grievance is that he should have been preferred to his cousin Tim (who got the real estate) because he did more for his uncle.

21 What is the evidence about the family and personal relationship, the obligations and responsibilities of the uncle to the plaintiff, and any contributions to building up this uncle's estate or his welfare?

22 The testator grew up with his parents and siblings on grazing properties in the Balmoral, Cavendish and Hamilton areas. He was educated at Hamilton High School and Hamilton College. He followed his parents on the land and spent his working life as a grazier, as did his brother Max. He married Elsie May Bevis in November 1950. They lived happily together until Elsie's death in 1980. As I have said, they had no children and after Elsie's death the testator remained single until his death.

23 The plaintiff's mother married James Henderson Jackson in January 1945. In 1950, the testator and his brother Max bought a grazing property in Cavendish and worked it in partnership. That was sold in 1959 and a new property "Kanawalla" was purchased in partnership with Max. The testator lived on the property. Max died in 1981. Thereafter a partnership subsisted with the testator and the estate of Max.

24 The plaintiff was born on 26 August 1945. The testator's brother Max married in 1960 and Tim was born as the only son on 21 January 1963 as their only child.

25 The plaintiff was educated at Melbourne Grammar School between 1951 and 1963. He says his parents' marriage was an unhappy one and they eventually divorced. His mother eventually married David Du Preez in 1975.

26 The plaintiff says this about his relationship with the testator starting at paragraph 20 of his affidavit -

1. From my earliest days at school, I spent almost all of each holiday staying with Uncle Jack and Aunt Elsie on the Noarlunga property. I would consistently spend around 14 weeks per year with them. These stays continued after Noarlunga was sold in 1959 and Uncle Jack and Aunt Elsie moved to Kanawalla.
2. I had a poor relationship with my father whilst I was at school. I found him to be an unreliable and uncaring father. I found in Uncle Jack the "father figure" that I found lacking in my real father. Although I was always close to Uncle Max, I developed a particular connection with Uncle Jack. I lacked a caring father and he lacked biological children. Like Uncle Jack and Uncle Max, I was always interested in anything sporting. As I was growing up, I would talk for hours with Uncle Jack about cricket, football and later golf. We followed the same football team in what was then the VFL - Melbourne. As I grew older, I also developed an interest in politics; which interest I shared with Uncle Jack. We would talk for hours about politics and about many other matters.
3. Uncle Jack further provided me with a great deal of advice as I was growing up. I felt that I could approach him about any matters that were troubling me. His relationship with me was much more akin to that of father and son than that of uncle and nephew. Uncle Jack supported me emotionally in ways in which my father never did or could.
4. When I stayed with Uncle Jack during school vacations, I did all I could to assist around the farm. My assistance included rounding sheep up for shearing and crutching, assisting with fencing and assisting with mustering and droving. I also assisted with the work of hay carting. In addition to these farm jobs, I helped Uncle Jack service his and other peoples' cars. I can also recall helping him fix his and other peoples' TVs. When I was old enough, I would also play golf with him. All in all, I spent a very large amount of my time whilst staying at Noarlunga and Kanawalla in Uncle Jack's company. This seemed to please us both.

27 That evidence concerns his relationship with his uncles in the plaintiff's schooling days. After finishing school, the plaintiff pursued a career in pharmacy. He attended Pharmacy College between 1964 and 1967. Between 1967 and 1988 he worked as a locum pharmacist and as a manager in a number of different pharmacies. In the meantime, in November 1974 the plaintiff married Isabella. There were no children of that marriage.

28 After leaving school and before marriage, he says he spent at least three weeks each year staying with Uncle Jack and Auntie Elsie. He telephoned him at least once or twice a fortnight. He says that spoke at length on a wide range of matters from family affairs, work, sports and politics.

29 After his marriage, the plaintiff and his wife would visit the testator a couple of times each year and stay for four or five days on each occasion. He says on those visits he assisted his uncles, Jack and Max (who were running the property in partnership), around the property. After the death of the testator's wife in 1980, he and his wife spent a month with the testator helping him through that difficult period.

30 After 1984 the plaintiff says there were limitations on his ability to see his uncle. He and his wife went into the restaurant business. He maintained telephone contact and tried to travel to Hamilton as much as he could, and also communicated by e-mail. Between 1996 and 2000 he visited his uncle on a number of occasions estimating he would spend about a month each year with him.

31 The plaintiff separated from his wife in 1998 and then divorced in 2001. He says he gained significant emotional support from his uncle at this time.

32 In the late 1990s the testator was suffering from arthritis, especially in his hands. The plaintiff says he did what he could to help his uncle out especially at shearing and crutching times. Come 2000, the testator could no longer continue working the property and it was sold. With his share of the proceeds of sale, the testator purchased the Hamilton property which was ultimately given to his nephew Tim under the will.

33 After 2000, circumstances were such that the plaintiff says he was seeing the testator less often. Between 2003 and 2007 he says on average he spent four days a year with him and on those visits helped him look after his house, took him for drives, cooked for him and kept conversing on sporting, rural, and political matters. By this time, the plaintiff had moved in with his mother in a unit in Glen Waverley.

34 In December 2004 he married his current wife Xiu Ying Lee. She also moved in with the plaintiff and his mother. They cared for his mother whose health was then failing. He became his mother's full time carer. He began receiving a carer's pension in early 2005. All this he says significantly impaired his ability to visit his Uncle Jack after 2005. In those later stages of his life the testator was receiving care from the local council and "meals on wheels" as well as significant daily assistance from his sister-in-law, Anne (wife of the testator's brother Max). The will was signed in February 2006.

35 He says in the last years of his uncle's life communications were limited but he still had around 20 telephone conversations in 2009 before his uncle's death. He says that when his uncle died (in December 2009), "I felt that I had lost a father".

36 I turn now for completeness to the only evidence of the financial affairs of the other beneficiaries. He believes his Aunt Anne would have inherited Max's share in the Sandison partnership when Kanawalla was sold in 2000. It sold for about $2 million. She also has a home in Hamilton which is worth at least $500 000. She was an only child and he believes that on the death of Anne's parents she would have inherited their combined estate. As for his cousin Tim, he was educated at Hamilton College and then at Monash University. He currently has a job in the Department of Defence. He is single and owns a unit in East Kew. The plaintiff's mother was admitted to an aged care facility and nothing more has been said about her in the affidavit.

37 The plaintiff is retired. He and his wife continue to live in the Glen Waverley property which is worth he says between $480 000 and $520 000. The property is owned by his mother to the extent of a five-eighths share. He expects that he will inherit that share. He will then have to purchase the remaining interest which is presently owned by the executor of her deceased former de facto partner.

38 He says he has shares and investments worth around $200 000, and a superannuation fund of around $45 000. He has about $5000 to $6000 in a cash management account and is living on savings and on dividends from his investments. As he turned 65 in August last year, he said he proposes applying for the aged pension. He says he suffers from hypertension for which he now requires medication.

39 That is the plaintiff's case. At the threshold, does he have a case under s 91(1) that his uncle "had responsibility" to make provision for his maintenance and support?

40 Counsel for the executor puts the case pithily by saying that just because the plaintiff regarded the deceased as his favourite uncle in a close relationship (or maybe could be regarded as some sort of mentor in younger years) made stronger by the fact that his relationship with his father was poor, cannot therefore mean that his uncle had "responsibility" or a moral duty to make provision for the plaintiff. He submits there is nothing about the relationship that suggests that the testator assumed or accepted any paternal responsibility for the plaintiff and especially any responsibility which meant that the testator had a moral duty to provide for the plaintiff as a just and wise testator. Just because the plaintiff saw the deceased as a father figure does not provide a foundation for any moral duty to make provision. Neither do the circumstances that he may have visited his uncle regularly and helped his uncle around the farm from time to time establish any foundation for a moral duty.

41 I am bound to say something about "moral duty", as I intend adopting it. There has been restlessness at an appellate level whether one can read into the question of "responsibility" to make provision some notion of moral duty, to overcome the freedom of testation.

42 In Singer v Berghouse[8] Mason CJ, Deane and McHugh JJ doubted that references to moral duty or moral obligation provided any useful assistance in elucidating the statutory provisions in this field. The concern was that such references may well be understood as amounting to a gloss on the statutory language. The Victorian Court of Appeal in Grey v Harrison[9] viewing statements in Singer as obiter, firmly took the view that the authorities so strongly favoured the criterion of what a wise and just testator would consider his or the moral duty to do, that Court would not be free to jettison it. The Court accepted that Singer was a warning against departing too far from the language of the statute but that questions of moral duty or responsibility supplied the norm that the legislature left unexpressed.

43 In Grey v Harrison , Callaway JA illuminated something I regard of great importance in the disposition of this case. That is: the freedom of testamentary disposition; the limitations on a Court's intervention; and the exercise of discretion in a principled way. His Honour said:

... It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take properties from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the widest terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.[10]

44 The question of moral duty arose again in the Victorian Court of Appeal in Coombes v Ward.[11] The case concerns specifically the proper judicial approach when assessing whether the deceased had "responsibility" to make provision. The appeal in that case from a decision of a judge who held that there was no such "responsibility" was that the judge erred in having resort to the fiction of "wise and just testator" having a "moral duty" rather than giving proper effect to the provisions of the legislation which ought to have been paramount. But it could not be shown that the judge had jettisoned the provisions of the Act in favour of an alternative line of enquiry into the testator's moral duty. The case stands for the proposition that the word "responsibility" connotes essentially a moral responsibility, that is, a responsibility that has a moral basis. Yet the Court said it was doubtful whether it is necessary or helpful to refer to the deceased's "moral duty" when applying the list of criteria in the Act.[12] The Court disallowed the appeal viewing the trial judge's reference to a deceased's "moral duty" as no more than a compendious description of a statutory criteria to which regard must be had when resolving the question of whether the deceased had a "responsibility".

45 The view in Coombes coheres with what was said by Ormiston J in Collicoat v McMillan[13] which was: the expression "moral duty" is a simple and convenient, or shorthand way of referring to the obligation resting upon a testator to make a wise and just assessment, hypothetical as it may be in some cases.

46 The problem of course is to not let the judicial function stray into the field of the meaning of the word "moral" or the application of theories of morality. Even then, I think too much has been made of this. As was said in Collicoat, the word "moral" in this context means accepted community standards to do what is right and proper for those members of a testator's family.

47 Yet the question of "moral duty" arose again in the Court of Appeal in Blair v Blair.[14] In that case, Chernov JA with whom Hansen JA agreed, thought it clear enough that the "responsibility" of which s 91(1)(1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. That was more so because the criterion in s 91(4)(p) is open-ended enabling the Court to consider any other matter it considers relevant, which gives the court a wide discretion to look beyond the specific statutory matters. That means, where relevant, bringing into consideration the testator's moral obligation to the claimant.[15] Thus, it was said to be "probably apt" to describe the obligation of the testator as a moral obligation. Nettle JA, fortifying that view, stated that the "test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interest of the claimant."

48 To demonstrate that the rumination would not go away, the High Court came to revisit the question again in the context of similar Western Australia legislation in Vigolo v Bostin.[16] That was another case where at first instance and then on appeal a claim for testator's family maintenance was put on the basis of a moral claim by a son against his father, which the Court rejected. The legislation in question did not involve the word "responsible" but the question was whether there was any moral dimension in the words "adequate" and "proper" when it came to the notion of adequate provision. The Court revisited what had been said on the notion of moral duty in Singer v Berghouse. The Court was divided 3:2 on the question whether the expression "moral obligations" ought be discarded.

49 All judges were unanimous in the view that such expressions could not be used as a substitute for the text. Gleeson CJ regarded the notion of moral obligation as of use as part of an exposition of legislative purpose, saying:

In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of that view, 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 of 'moral'.[17]

50 Callinan and Heydon JJ took the same view. Their Honours said:

For many years therefore several justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to the claimant under the Act. In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of [the statute].[18]

51 Gummow and Hayne JJ took the view that it was better to forego any convenience that the shorthand expression of "moral claims" or "moral duty" may offer in favour of adherence to the relevant statutory language.

52 I can proceed therefore in saying it is not wrong ― nay useful ― to apply notions of moral duty when viewing the statutory criteria including "any other matter the Court thinks fit" under paragraph (o). Moral duty means the norm to be found in society's reasonable expectations of what a wise and just person would do in the circumstances, by reference to contemporary community standards.[19]

53 Mr Moore, counsel for the plaintiff, addresses the first jurisdictional fact of a "responsibility" to make provision by contending that the provision for the plaintiff in the will is the deceased's recognition that he owed a moral duty to the plaintiff. On the second question of adequacy (although there is overlap with the first) he contends there was a moral duty by reference to the mandatory considerations under s 91 (4) (e) to (o), that is:

(a) unlike Tim, the plaintiff's relationship with the deceased was arguably closer to one of father and son than of nephew and uncle;

(b) the estate is substantial;

(c) the plaintiff lives in modest circumstances;

(d) Tim's financial circumstances are likely to be better of the plaintiff;

(e) the plaintiff suffers from hypertension;

(f) the plaintiff is 65 years of age and can be expected to live for about another 20 years;

(g) the plaintiff provided support for the deceased for many years and gave emotional support as well as physical support;

(h) the character and conduct of the plaintiff are entitling rather than disentitling.

54 I cannot accept the proposition that the provisions for the plaintiff in his will was a recognition by the deceased that he owed a moral duty to the plaintiff. The deceased was a widower with no natural children. His provision for the plaintiff is confirmation of the plaintiff's evidence about the depth of their relationship, and maybe gratitude. But it does not bespeak a "responsibility". He had two nephews, the plaintiff and Tim, and has chosen to provide for both in the way he has. The law gave him that freedom.

55 To say that his uncle was a father figure does not therefore amount to saying that he assumed, or his estate should now in effect be made to incur, a paternal responsibility. It was a relationship with a mentor of sorts. But just because the plaintiff says he saw the deceased as a father figure cannot mean that the deceased had a responsibility to make provision for the plaintiff. An uncle can develop and affectionate and enduring relationship with a nephew without apprehending the law might impose a responsibility to provide for him.

56 And I think that is where the fallacy in the plaintiff's case lies. It is not put that a responsibility arose by reason of the support given by the plaintiff in doing work on the grazing property and the emotional support given in his declining years. Even so, I would view that work as being very much part of the togetherness of the two rather than leading to some moral obligation to recognise the work done by providing to the plaintiff more than he did under the will. There is no suggestion let alone evidence that this was a case where the plaintiff has given his uncles non financial contributions or economic worth to convert an undeveloped or run down farm for their benefit. It is more a case of voluntary work (mostly in his school years) borne of affection and part of the togetherness with his uncle.

57 Nor is it enough to say that there was no disentitling conduct of the plaintiff. That does not displace testamentary freedom. There is no evidence, but it may be, as Mr Moore says, that Tim's financial circumstances may be better than those of the plaintiff and that the plaintiff lives in very modest circumstances. But I do not see those factors as being capable of attracting the responsibility or at least attracting the responsibility to give the plaintiff more than he has already been given under the will which amounts to about $250 000.

58 In the end, it seems to me that the grievance is that the two cousins were not treated equally. But according to the legal principles that govern these applications, there is no justification for the Court interfering with the freedom of testamentary disposition for itself saying that the two cousins should have been treated exactly the same. It may be assumed there was good reason for the testator to treat them in different ways. For one thing the plaintiff was living in Melbourne and running pharmacies and then restaurants. Tim is single and lives in a unit he owns in East Kew. The insinuation is that the plaintiff deserves more because he now lives in a unit with his second wife in Glen Waverley taking care of his mother.

59 The law in this field does not transform a great relationship into, therefore, a moral responsibility to provide. I am firmly of the view that the evidence does not disclose facts to give rise to a moral duty or assumption of a responsibility to provide for the plaintiff. I think at the very least the plaintiff's case has no real prospect of success, and I am willing to go further and say it will fail seeing as the peculiar elements of this case really put me in the same position as if the case is being ultimately decided. At least that is so as a practical matter. I think it is inevitable a court will find that the principle of freedom of testamentary disposition will prevail and that having regard to all of the factors in s 91(4) the deceased did not have a moral responsibility to the plaintiff, but even if he did, the provision that has been made for him under the will is adequate.

60 In coming to that conclusion I realise that great caution has to be shown in applications for summary judgment. Mr Moore relied on two Queensland authorities where judges in cases of this sort were not willing to take the step of giving summary judgment.

61 First, reference was made to a decision of Mullins J in Banks v Seemann.[20] That was an application by a child of the deceased. Needless to say, a case being brought by a child of the deceased attracts an immediate sense of responsibility of moral duty. Even so, it is apparent from my reading of the decision that there was a conflict on the facts or at least an attack being made on the sufficiency of the material.[21] Moreover, the judge formed the view that the complicated relationships and the transactions between the family members required a close consideration. In any case, her Honour found that the applicant showed a prima facie case of further and better provision. It was for those reasons that the application was, not surprisingly, refused.

62 More pertinent might be a decision of Applegarth J in Atthow v McElhone.[22] That was an application for summary dismissal for a claim brought by a 66 year old estranged daughter. She received nothing under the will. The court determined, as I have in this case, that a detailed exploration of the causes of the applicant's difficulty of any relationships was not required in order to determine the application because the essential facts were clear enough. The Court said, "the simple fact remains that this is not an application by someone who was dependent on the deceased and prima facie has a claim to be maintained and supported." But the Court assessed the evidence and concluded that it was "extremely hard to see any basis to conclude" that there was any responsibility to make provision. Indeed, the Court concluded that the case was "practically hopeless". But, the Court declined to exercise the discretion to terminate the proceeding because of the "extreme caution that is appropriate to applications for summary judgment."

63 Of course, the power to order summary judgment is one that should be exercised with great care: see Spencer v The Commonwealth:[23] There is a natural uneasiness in taking away the interlocutory process and the trial. But not if, on the latest expression of the test for summary judgment, "there is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way": see Spencer. For my part, if a case is "practically hopeless" as it was described by the judge in Atthow v McElhone,[24] why let the case go on? Where is the injustice? I see no reason why summary judgment should not be granted especially if the facts are not in dispute. To allow a case to run on to trial which is regarded as practically hopeless only results in my view to the accumulation of costs and delays in the administration of the estate, all of which are detrimental.

64 In the end, I would hold that the facts here are bound to lead to the conclusion that the plaintiff was never dependent on his uncle and just because they had much in common and it seems adored each other is not enough to conclude there was a moral duty to provide for him more than was already provided. There is nothing to displace the freedom that the deceased had to deal with his estate in the way he has.

65 Accordingly, I would allow the defendant's application for summary judgment.

[1] See generally Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 and Grey v Harrison (1997) 2 VR 359.

[2] Harris v Bennett [2002] VSC 139; (2002) 8 VR 411 at 421, [66].

[3] (2002) 9 VR 411 at 419 [51], [52].

[4] [1949] HCA 1; (1949) 78 CLR 62, 91.

[5] [2010] HCA 28; [2010] 241 CLR 118 at 139 [54].

[7] [1996] HCA 14; (1996) 70 ALJR 541 at 545 per Kirby J.

[8] [1994] HCA 40; (1994) 181 CLR 201.

[9] (1997) 2 VR 359.

[11] [2004] VSCA 51.

[12] Per Winneke P at [7] and Chernov JA at [12] and [13].

[13] (1999) 3 VR 803 at 818-9.

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

[16] [2005] HCA 11; (2005) 221 CLR 191.

[19] See Vigolo, above at [19] per Gleeson CJ, quoting the Canadian case of Tataryn v Tataryn [1994] 2 SCR 807.

[20] (2008) QSC 202.

[22] (2010) QSC 177.

[23] [2010]241 CLR 118 at 131-2, [24].

[24] (2010) QSC 177.