Plaintiff v Defendant

2 By his will made in August 2010, Luigi left half of his residuary estate to Anna's brother, John Napolitano or to his children if John predeceased him. He left the other half to Giuseppe Villano, described in the will as his second cousin or to his children if Giuseppe pre-deceased him.

3 The estate has a gross value of $1 506 917 and a small liability of $92. The assets are constituted by the matrimonial home in Reservoir valued at $480 000 and a personal estate of $1 026 917. That latter amount includes $646 000 as his interest in the estate of his deceased mother, Celestina Cursio, who died in December 2010 not long before Luigi. The executor says that bequest is yet to be distributed.

4 The plaintiff has sued the executor under Part IV of the Administration and Probate Act claiming that his uncle had a responsibility to make provision under his will for his proper maintenance and support. He asks the Court to order that provision be made for him. Typical procedural orders have been made for the conduct of the trial to be by way of affidavit. To that end, the plaintiff has sworn an affidavit on 20 December 2011 which, so the Court has been told, contains the whole of the evidence he wishes to adduce in support of his claim. That is, there is to be no other affidavit from him or anyone else on his behalf. For present purposes the defendant executor is willing to accept the plaintiff's affidavit without adducing any evidence for itself. It contends the plaintiff does not have a case because nothing in the plaintiff's affidavit is capable of showing that his uncle had a responsibility (conveniently spoken of in this field of the law as a moral responsibility on a wise and just testator) to make provision for him, and therefore the jurisdictional threshold for a Court's intervention under the Act is not met. The executor therefore seeks summary judgment or dismissal of the claim under the rules of Court, or under s 63 of the Civil Procedure Act as having "no real prospect of success."

5 I will not concern myself very much with the question of the different tests to be applied under either source of the power to summarily dismiss a proceeding. What is common to both is that the power has to be exercised cautiously and even if a case is dubious or heading for failure, there might be something about the case to make the Court think the matter ought be allowed to proceed in the ordinary way to a trial. However, under the rules of court, the test for summary dismissal has usually been expressed to be whether the cause of action is hopeless or bound to fail. The test under s 63 of the Civil Procedure Act (reformist legislation) is less stringent: see Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd,[1] Matthews v SPI Electricity Pty Ltd,[2] JBS Southern Aust Pty Ltd v Westcity Group Holdings Pty Ltd,[3] and Manderson M & F Consulting v Incitech Pivot Limited.[4] Discussion by the High Court of Australia on the subject of cognate legislation in Spencer v Commonwealth,[5] means the party resisting the application must show there is more than a merely arguable case. To the same effect, Judges of this Court are tending to the view that the qualifying word "real" directs the Court to see whether there is a realistic as opposed to a fanciful prospect of success. Where a case is commenced by writ and pleadings, such an assessment might be approached conservatively because the evidence is not yet in and there is always the prospect of amendments to pleadings to change or improve a case. That was the point about pleadings in Manderson, above. But, an assessment of prospects can be more readily or definitely made in cases where the mode of evidence is by affidavit and the plaintiff presents all his affidavit evidence well before trial, and there is no contest on it.

6 Thus, where all the evidence is in, and (as happened here) the Court had able and extensive submissions from both counsel with reference to authorities as would be expected at the trial, then on a summary judgment application the Court is performing the similitude of the trial function. It is not so much assessing the prospects, but the actual merits. It may not happen in all cases.

7 This leads me to take leave to repeat something which I had occasion to say in Jackson v Newns also a testator's family maintenance case:[6]

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 ... 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.

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? ...

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]

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.

8 I make this point to show that in cases such as this, there might be little room for the Court to say that for some other reason there is a case to be investigated even though the case looks unsustainable, or to say under s 64 of the Civil Procedure Act, that "the dispute is of such a nature that only a full hearing on the merits is appropriate". The facts of the case are also rather confined.

9 The plaintiff's affidavit permits a portrayal of his life in the following phases, within which I shall include my appraisal of the facts.

10 The family of the plaintiff's mother came as Italian immigrants in 1960. A few months after Antoine was born on 6 September 1978, his mother and father separated. His mother Michelle moved to live in a flat in Thornbury which was very close to where his aunt, Anna Cursio (nee Napolitano) and the testator were living. He says, "Anna helped to raise me over the years until she (my mother) married Richard Murphy in 1984 and she and I went to live with him at Bayswater". Before the move he said he had "been seeing my uncle and aunt each day whilst living near them; it was a big part of my young life to see them and they treated me like their own child." But, he does not explain at all how and in what way Anna helped to raise him, and how or in what way he was treated like their own child in those 6 years of his infancy. He was just a child, and there is no evidence from his mother at all. There is certainly no suggestion he was neglected by his mother in his upbringing, or treated any the less as her own child. Anna's help was I would think help lovingly given by an older sister to a single mother because the relationship between Michelle and her sister Anna was close. He says (and I can only suppose much of this has come from what his mother has told him):

It has always been clear to me that my mother and my aunt were very close as sisters. Louie was always in the background and I looked at him affectionately although he, as a male, was quieter than the women. He was at his employment during the week, and he did weekend work as well, but I could see him as an important figure in my life.

11 To say "I could see him an important figure in my life" is not, I am afraid to say, meaningful. What does it mean? I can accept there was not a father in his life so Luigi is conspicuous by his presence perhaps even to a child, but it is naturally more likely that his mother Michelle and Anna were the prominent figures. I think the facts, such as they are, support the view that his relationship with his Aunt Anna was more significant as she was helping to raise him, and such a connection tends to endure. The testator was in the background (to use Antoine's own words) and working on weekends, and however Antoine says he saw the deceased, there is no evidence how the testator saw the plaintiff or what part he played in his upbringing or care in these early years. He was part of an available household in which Antoine and his mother spent much time in these early years but Luigi was not in any way "hands on" in the child's upbringing or even passively so. I do not at this first phase see even the incipience of a moral responsibility on Luigi or an assumption of responsibility.

12 In 1984, when the plaintiff was about six, his mother married Richard Murphy. So there came to be a man, a stepfather, in the household and in the sphere of influence, in union with his mother. There was a daughter of that marriage, Genevieve. Michelle and her husband separated after about nine years. The plaintiff was then about 16.

13 There is no evidence about the relationship between Antoine and his stepfather in this formative stage of a boy's life. Having moved to Bayswater, he says Richard Murphy would take him and his mother back each week to visit Anna and the deceased. He says that they also went every month or so to an Italian social club in Thornbury for functions with the Italian community. He says, "There was a continuing close relationship with Anna and Louie after my mother's marriage, and I was happy to be part of it."

14 For the plaintiff to say that "he was happy to be part it" is not to say very much beyond saying as a matter of self expression it was a source of pleasure. I mean no insensitivity when I say a court of law, being asked to interfere with a will, is not being told how or in what way the relationship was close. I think it right to say, as Mr Smith of counsel for the executor put it, that it was at best a case of having a loving aunt and (therefore by association) a favoured uncle. But the evidence does not establish anything of note in his relationship with the testator or the beginnings of a special connection in a boy's formative years; certainly not the beginnings of a de facto father and son-type relationship, or the relationship of a mentor or something of that close personal nature. In my assessment of the facts, in this phase of his life, the closest connection was between the two sisters especially so after Michelle separated from Richard Murphy, and derivatively between the plaintiff and his Aunt Anna. I do not see the beginnings, or any assumption of a moral responsibility on Luigi in this phase.

15 The plaintiff says he started getting into trouble when he was 12 or 13. He was placed into foster care. The Court is told no more. He says this made him closer to his Aunt Anna and the testator because "I was now old enough to catch the train to visit them, which I did at least every month." By this stage Anna and Luigi had moved to Reservoir. When it comes to specifying the activities which he says made him closer to them, he says that on his visits he would be shown by his aunt how to help with the cooking and he helped her with the housework. He says Luigi would let him help make traditional sauces in season from his garden and to help with making the wine twice each year. Thus he is involved in Italian traditions, but there is not much in the way of communications or emotional connection between him and Luigi. He says:

I was being shown traditional Italian ways, and I loved it, and them for it. My aunt would say to me "Anthony, you are like a son to me". My uncle was not so emotional, but I felt that quietly working in the garden with him was a form of communication between us. At their home there was singing and talking, playing cards, cooking, going for drives and to the market. Some of their friends had children so I would meet those children as friends. I loved them both and I felt they loved me too. Sometimes I stayed with them for weeks at a time, and whilst they had their holiday home at Rosebud I would go there with them too. I think I looked to them for an example of stable family life.

16 As Mr Smith submitted, the hearsay statement "You are like a son to me" is the high point of Antoine's case and might be used to show that Anna took on the role of a mother, although as I have already said there is no evidence that his mother Michelle was in any was neglectful or that he was obtaining from his Aunt Anna and the testator parental love and affection of which he was otherwise deprived in life. His mother has not sworn any affidavit, and I have to infer that she was unwilling to do so, or could not advance Antoine's case. The strength of such an inference under the well known rule in Jones v Dunkel[8] has to be handled with care in this sort of case when it come to retrospective questions levelled at Michelle of how or in what way her child was mothered by others.[9] But at the very lease evidence from her might have elucidated the matter. Whilst some evidentiary latitude has to be given in these cases for the sake of understanding human affairs, sentimental (hearsay) statements such as "You are like a son to me" cannot be given much weight in a court unless fortified with evidence about what she did or what it was about the relationship or the situation that put Anna in the position of a mother to Antoine.

17 But in any case, what matters for the claim is the relationship between him and the testator Luigi. That might be partly or collaterally informed by his relationship with Anna (even though he was in the background with not much direct communication it seems) but the affidavit is bereft of any evidence of the elements and quality of his relationship with him. At best this phase of his life shows at best Antoine viewed Luigi as a favoured uncle because the plaintiff was frequently at their home. After all, he had a mother who was responsible for him and there is no suggestion in the materials that he was somehow being neglected by her even in these troubled years.

18 He says he left school at Year 10 and worked for a time as a builder's labourer when he was about 17 years old (that is, in 1995). He had a short employment at a grocery store owned by an uncle.

19 The plaintiff says that when he was 19 years of age (that is, in 1997) he took anabolic steroids for bodybuilding and this led to a nervous breakdown. He had his first psychotic episode that year and was admitted to hospital for about ten days. Some four years later he was admitted to hospital again and stayed as an inpatient for about nine months. Since then he has had hospital treatments and aftercare rehabilitation and at least nine treatments of electro convulsive therapy. He has been diagnosed as a schizophrenic and has been on medication since his first breakdown.

20 There is no evidence that throughout this unfortunate phase of his life that his aunt and uncle were somehow involved with parental care or otherwise taking responsibility for his welfare. There is no evidence about visitations to hospital, and there was certainly no evidence that somehow throughout this period there was any disconnection or lack of support from his mother.

21 He says that since his breakdown he has not been able to concentrate properly or deal with employment, apart from car washing for a few months. The evidence about his contact with his uncle is scant. He says this:

My Uncle Louie said to me a couple of times over the years that I should get a job and work, but when I tried to explain to him that I would love to but was too sick he seemed to accept that and did not go on further. This must have been disappointing to him because he was a hard worker himself. He would talk to me about his work, and I knew he would go to work even when he was ill.

22 Again, this is not in any way suggestive of some special relationship, let alone a moral responsibility between uncle and nephew. There was no suggestion that after the plaintiff had left school that his relationship with the deceased had somehow intensified or that the deceased had some part to play in his rehabilitation or personal development. Indeed, the insinuation is to the contrary. It appears Luigi had a strong work ethic and according to the evidence he had little more to say to him than on a "couple of times" that he should get a job.

23 Anna died in 2008. This had a big effect on Luigi. The plaintiff says:

He [Luigi] became completely uncommunicative with my mother and me, and I believed he was drinking much more than he used to. We visited him but he would not open the door. I telephoned him to try and make contact but he just hung up the phone. I do not know why he did this or why he left nothing in his will for my mother or myself, although I suspect others tried to influence him. It is impossible to believe that my aunt would have wanted things to be that way, and it is difficult to know why he would so forget those who had been close in his life for so long.

24 This evidence hardly favours the plaintiff's case. Although not said, it is likely that Anna's death devastated Luigi leading him to withdraw socially. I shall ignore Antoine's suspicions because they are vague and are unsubstantiated. But I would assess this evidence, limited as it is, as being consistent with the evidence that preceded it. That is, Luigi was not very communicative with Antoine anyway. The real relationship was between the sisters. He was in the background. Now that Anna was dead, it was not astonishing that Luigi would not be interested in Antoine and his mother. This is largely a matter of inference and construction because of the quality of the evidence. But I certainly will not take the view that suddenly Luigi, under the influence of others, has turned his back on Antoine when before then he had shown deep affections and personal involvement, and exercised personal responsibility. Rather, the unpleasant fact is that Luigi, on the evidence, has not been shown as someone involved in some extraordinary way in the life of Antoine and Michelle. Anna was the one that was. But she died, and left her estate to Luigi, and this claim is not against her estate.

25 There is no doubting that the plaintiff's financial position is very poor. He receives the Disability Support Allowance of $375 per week. He has a unit provided by the Ministry of Housing. He has $100 or less in the bank and has no substantial assets.

26 I think it correct to say, as Mr Smith submitted, that the evidence of the nature, quality and elements of the relationship between Antoine and the deceased is too imprecise, and falls well short of the types of relationship as between nephews or nieces and their aunts or uncles which might be recognised as giving rise to a responsibility to make provision for maintenance and support. The evidence, such as it is, shows I think that the greater "connection" was between Antoine and his Aunt Anna who was helping his mother to raise him in the early years. The high point of the plaintiff's case is a reference to a statement by his Aunt Anna to him that "You are like a son to me" as if to support sentimentally at least that she was like a mother. But even then, it is difficult to assess the weight of such a sentiment if there is no evidence of what his aunt (now deceased) did, or what it was about the relationship, that put her in the position of a mother to him.

27 Human affairs and relationships based on love and affection or sympathy cannot be readily reduced to scientific or regimented facts I know, but the Court has to be able to act on facts to tend to a conclusion about the nature and quality of a relationship. Here, there are no facts coming from Antoine to show that he was like a son to Anna. He quotes only her statement made to him. Moreover, there is no suggestion that Antoine had the special relationship with his aunt because, or in circumstances where, he was in some way deprived of motherly love and affection from his own mother. For part of his life at least there was also the presence of his stepfather.

28 Cases in this Court where successful claims have been made by, for example, a niece from an aunt have demonstrated strong facts are needed to show that the aunt or uncle were like de facto mothers or fathers or had otherwise played a part in the life of a niece of nephew so as to give rise to a responsibility. It requires a demonstration at least that the deceased has taken, in the many ways possible in life, some responsibility for the child's care, upbringing and development or welfare - see for example Iwasivka v State Trustees.[10] In that case the judge accepted evidence from the claimant that "the deceased was the closest thing to a mother she ever had."

29 Here there is no evidence from anyone else - notably Antoine's mother - to support Anna's statement that the applicant was like a son to her. And as I have said, Antoine himself does not put forward facts to show how and what way that was so. Mr Johnson, counsel for the plaintiff, confined himself to saying that the relationship between the plaintiff with his aunt and uncle was "significant" for the nephew "but it is less clear how significant it may have been for the uncle". But I think the evidence of the relationship between the plaintiff and the deceased does not go beyond amounting to saying that he was a favoured uncle. Beyond that there is no evidence of reciprocal favour; dependency; special affection or attention; special support; or a father figure or a mentor. Even evidence of activities as between plaintiff and the deceased are scant. It is clear enough that the deceased was preoccupied with his own working life, and that direct or influential personal communications or togetherness or "bonding" activities between the two of them seemed to be absent. Overall it seems that the deceased's involvement in the plaintiff's life was passive, or at least incidental to the more dominant attention he was getting from his Aunt Anna on his visits to her home, as well as, presumably, the full time love and care from his mother Michelle.

30 That leads, I am afraid to say, to a definite conclusion that on the evidence there really was nothing of note in their relationship. The plaintiff was happy to be part of the various family activities (the visitations, the cooking, the singing, the dancing and the gardening) but beyond that there is no evidentiary foundation to show much more, certainly not as attracting "responsibility" for Antoine. Indeed, there appears not to have been a great deal of communication between them; and after 2008 there was no communication at all.

31 The Court's discretionary power under s 91 of the Administration and Probate Act is cast in very broad terms. But it is important to remember that Courts do not intervene just because it would have been nice or good of a testator to give a benefit. An uncle ought to be able to develop a relationship with a nephew without apprehending the law might impose a responsibility to provide for him. That is why Courts have found it convenient and useful to resort to the concept of a moral duty and a moral claim in deciding whether provision should be made to a claimant: see Blair v Blair,[11] and Vigolo v Bostin,[12] and see the digest of cases in Jackson v Newns.[13] The test is "whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant" having regard to community standards.[14] But that assessment takes place with due regard to the freedom of testamentary disposition. There is a principled approach to the exercise of discretion, explained in this way by Callaway JA in Grey v Harrison:[15]

... 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 her 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 possible 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 legitimate extent.

32 Amongst the factors that the Court must have regard to under s 91(4), those that are pertinent here are: the family or other relationship between the deceased and the applicant including the nature of the relationship and its length; any obligations or responsibilities of the deceased to the applicant; the financial resources and needs of the applicant; and (as relied upon by the applicant) "any other matter the Court considers relevant".[16]

33 Looking at the pertinent factors in s 91(4), there is no doubt Antoine is needy and has certain "disabilities". But I would hold without diffidence that having regard to the very slight evidence of the nature and length of the relationship between Luigi and Antoine, and having regard to the absence of any evidence to say that Luigi had assumed a responsibility, there was no moral responsibility here based on that relationship. It is transparent, I think, that Antoine is looking to cast a moral responsibility on Luigi based on a relationship that Antoine had with Anna. And that is the direction the case took. The proposition put on behalf of Antoine, was this: Luigi incurred by derivation a moral responsibility that someone else (Anna) owed to Antoine. This was conceded to be a novel proposition, but was said to be open under s 91(4) which required the Court to have regard to "any other matter the Court considers relevant". The answer I would readily give in response to that proposition, at its own level of abstraction, is this: so much depends on the facts of a particular case; it may be possible for someone to incur a moral responsibility owed by someone else to a claimant but there would have to something about the relationship between claimant and testator which made it morally just that he incur that other person's responsibility; or something to show he had assumed that responsibility.

34 This was something which might be thought to have analogically occurred in McKenzie v Topp[17] a case which must be approached as carefully as much as it was by the judge in that case. In McKenzie, the claim was by a stepson for further provision from the estate of his stepmother. The claimant's father died and left the entirety of his estate to the stepmother. This was the argument put before Nettle J:

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

35 In other words, the children of the marriage "step aside" from making a claim against their mother or stepmother expecting that they would obtain their fair share after her death.

36 His Honour thought the argument to be "novel" but nevertheless said:

Be that as it may, however, it appears to me that the proposition should be accepted, up to a point. For just as community attitudes are the touchstone of adequate provision, 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.

37 This was accepted by his Honour as a broad generality and it assumed a need for provision for the children of the first marriage. This culminated in the following statement of principle (with my emphasis):

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

38 McKenzie v Topp might be seen, mistakenly I think, as one means, or as an example of a case where a court might order provision out of an estate based upon a relationship not as between the testator and the claimant. But attempts by claimants to elevate what was said in McKenzie v Topp to a general principle have been scotched. So much depends on the facts of a particular case. Hansen J in Petersen v Micevski[18] did not regard there to be such a "principle" in the sense of a gloss upon s 91. First of all his Honour said it requires, faithful to the jurisdictional requirements of the Act, not only an estate of sufficient value to provide for the children of the first marriage, but also, a need for their provision. Secondly, "the standing aside" was a factor to be considered along with facts pertaining to the relationship between the claimant and the deceased and whether the claimant had a need for provision. In McKenzie v Topp, the claimant had established that he had given the testatrix assistance worthy of recognition, and that he had a need for maintenance and support.

39 This all means, I think, that McKenzie v Topp is one example where the Court might look to the relationship between a claimant and someone other than the deceased such as a late father. But the similarities end there. It is a case concerning children of the deceased (and that alone is significant) who have "stepped aside" (nothing of the sort has occurred here) and moreover, and more importantly, there is a relationship of significance between the claimant as stepchild and the testator. Petersen recognises that even then there is no "automatic consequence".[19]

40 In the subsequent case of Robertson v Koska,[20] Vickery J of this Court likewise cautioned against viewing McKenzie v Topp as laying down a rule of general application. At most, and only in an appropriate case, relationships outside the one between the claimant and the testator (particularly blood relations), may be treated as one of the matters the Court considers relevant under s 91(4)(p) which requires the court to consider "any other matter the Court considers relevant".

41 One thing is clear to my mind. McKenzie v Topp is incapable of direct application in this case. Nor is it capable of analogical application. Cases in this field are all fact specific, but at the very least there has been no "stepping aside" here. It was not submitted that Antoine has abstained from making a claim on Anna's will for the sake of Luigi, and he now has a moral claim against Luigi as he Luigi is no longer in need.

42 This led Mr Johnson to put the derivative claim in another way. He submitted that provision could be made by the Court under s 91 regardless of a personal relationship between Antoine and Luigi because the multitude of factors under s 91 could be viewed either as a whole, or severally, so as to be capable of showing the testator had a responsibility to make provision. He looked to isolate and exploit the omnibus factor in s 91(4)(p) that the Court must have regard to "any other matter the Court considers appropriate". For that purpose he said the relationship did not have to reach a particular height; it was enough that a relationship existed and the question was whether a moral duty arose out of that relationship.

43 From there Mr Johnson submitted the moral duty to Antoine arose derivatively from the mutual wills made between Anna and the testator back in 2006. At that time, Antoine was 28 years old and in the aftermath of his breakdown, under medication and unable to work.

44 Under Anna's will she gave all her real and personal property to her husband Luigi. But if he did not survive her, then the will gave the whole estate on trust for her nieces and nephews, with some exclusions. It is significant to see that despite all that is asserted in this case about the relations between Anna and Antoine, she did not see fit to single Antoine out in her will. Luigi her husband made an identical will. It has the same date; prepared by the same solicitors; and it has the same witnesses. And likewise, his will does not single out Antoine.

45 Mr Johnson submits that what matters is that both Anna and Luigi intended apparently that their nephews and nieces should take contingently. The argument then proceeded along these steps:

(a) the mutual wills of themselves show there was an agreement between Anna and Luigi or something in the nature of an estoppel that nephews and nieces should have a benefit;

(b) as Anna was the first to die, Luigi had a moral duty by reason of that agreement to carry out Anna's benefaction under her will to the nephews and nieces, or, to not ignore her wishes that they benefit;

(c) that moral responsibility also arose or was on his conscience (hence the notion of estoppel) because it may be supposed that Luigi got the personal benefit under Anna's will of an enhancement or accretion to his estate referrable to her share of the matrimonial property in Reservoir. Although there is no evidence of her share the Court is, so it was submitted, to infer that their longstanding marriage would have been recognised under family and relationship laws as giving her a benefit over the property.

(d) It would be unconscientious or in breach of some moral responsibility for Luigi to resile from that agreement or apparent intention and deprive Antoine of a benefit under his will because he had a moral duty to carry out Anna's benefaction, especially as Luigi would have observed Anna's affections to Antoine and Antoine's affections for her and the improvement that such a relationship brought to the lives of Luigi and Anna.

46 Mr Johnson seeks to demonstrate the testator's disavowal of the asserted agreement or intention by pointing to the numerous changes that Luigi made to his will after Anna's death in 2008. It is to be remembered that after her death the evidence is that there was a loss of communication between Luigi and the claimant. The evidence is:

(a) after Anna's death, Luigi made a second will dated 5 March 2008. In essence, he split his estate eight ways including a oneeighth share to his brotherinlaw John Napolitano (Anna's brother) who was also a joint executor. The other beneficiaries were nephews and nieces in Italy on Luigi's side of the family;

(b) Luigi then made a third will on 1 July 2008. He gave to his executors Pietro Longo and John Napolitano equally and to their children if they failed to attain a vested interest;

(c) a fourth will was made on 12 October 2008. He gave half his estate to John Napolitano and balance to six others in Italy on his side of the family (as he had previously done in his second will);

(d) a fifth will was made on 21 June 2010. He gave his estate on trust for his brother-in-law John Napolitano and, in the event that he pre-decease Luigi, then to John Napolitano's children as tenants in common in equal shares;

(e) the sixth and final will was made on 17 August 2010 giving 50% each to John Napolitano and Giuseppe Villani or, to their children should either of those beneficiaries die before attaining a vested interest.

47 It was submitted the changes in the wills and the making of the ultimate demonstrated that the testator had unconscientiously ignore the intended purpose of the reciprocal wills, dropped the benefaction to nephews and nieces, and gave the whole estate to his brother-in-law and Villani, being people to whom the testator had no apparent moral responsibility. It was submitted Luigi had a moral duty to stick to the "agreement" back in 2006 especially as he and Anna were childless and all they had were nieces and nephews.

48 I can accept that the nature and length of the family or other relationship between a claimant and testator is but one factor to be considered under s 91 and it may not have to reach tall heights. But it is naturally a dominant factor which, in the nature of human affairs and community standards, heavily informs the question of moral responsibility. Here, the submission there was a moral duty is predicated wholly on the legal characterisation of mutual wills as creating an agreement or an estoppel between Luigi and Anna. I cannot accept that the presence of identical wills therefore amounts to evidence of an agreement or an assumed state of affairs sufficient to create an estoppel. Just because there were mutual wills does not therefore mean there was an agreement or pact between Anna and Luigi that if Anna died first, then Luigi would promise to never change his will and remove his nephews and nieces from his bounty. The agreement would have to be shown to have been something like this: "I Anna agree to give you Luigi all my estate including my share of the matrimonial home in exchange for, or in the expectation that you Luigi promise you will give all your nephews and nieces your estate when you die, or at least recognise them in some way." And there would have to be a reciprocal agreement by Luigi. From there, it would have to be implied they agreed never to change their wills. Put another way: "I Anna only gave you my interest in the matrimonial home on the assumption you would provide in your will for nephews and nieces, and it is unconscientious that you did not".

49 I think this submission, although skilfully put, is fanciful. Agreements or estoppels cannot be distilled in this way. Anna gave to Luigi, and no one else, her estate if he predeceased her. There is nothing in the evidence to raise any legal foundation for a claim that Luigi received his wife's bounty in the expectation or with the intention that he would give to his nephews and nieces on his death. The making of mutual wills does not therefore establish such an agreement or an assumed state of affairs or convention. As it is not self evident, there would need to be evidence of such an agreement to which Luigi's executors should be held. If there was no such agreement, then there is a return to the threshold question. That is, there would have to be other circumstances attributable to his relationship with Antoine to show that Luigi had a moral responsibility for the maintenance and support of Antoine.

50 Therefore I reach two conclusions. The evidence shows the relationship between Antoine and the testator to be unremarkable. He may have adored his Aunt Anna and may have even given her pleasure and loving satisfaction in helping in his upbringing. But he had a mother who it may be presumed was doing no less for him. But none of this creates a moral responsibility on Luigi to attract the Court's intervention under the law. Secondly, even accepting there was some sort of relationship between Antoine and Luigi as an incident to his involvement with Luigi and Anna's household and domestic and social activities, there is no other factor which can be added to that to establish a moral responsibility to Antoine. The making of mutual wills cannot, on any view I think, amount to something on Luigi's conscience making it morally unjust for him to have modified his will and to make no provision for his nephews and nieces.

51 Therefore, in my view the evidence in support of this claim is so weak that I think it has no reasonable prospects of success. I would grant summary judgment. I would order that:

1. The proceedings be dismissed.
2. The defendant's costs of the proceeding be paid out of the estate on a solicitor and client basis. (I do not overlook s 97(7). Costs discretions in these cases generally ought be exercised benevolently)

[1] [2011] VSC 222 at [7] cf.

[2] [2011] VSC 168 at [15] cf.

[3] [2011] VSC 475.

[4] [2011] VSCA 444.

[5] [2010] HCA 28; (2010) 241 CLR 118.

[6] [2011] VSC 32.

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

[8] (1959) 101 CLR 398.

[9] See Cross on Evidence (7th Aust ed) at [1215]ff.

[10] [2005] VSC 323 at [22], [23] and [30].

[11] [2004] VSCA 149; (2004) 10 VR 69 (Ct App).

[12] [2005] HCA 11; (2005) 221 CLR 191.

[13] [2011] VSC 32.

[14] Blair, above, at [41] per Nettle JA.

[15] (1997) 2 VR 359.

[16] Section 91(4)(e), (f), (h) and (p).

[17] [2004] VSC 90.

[18] [2007] VSC 280.

[20] [2010] VSC 134 especially at [95].