Plaintiff v Defendant [2013] VSC 34 | Case summary

Supreme Court of Victoria|2013-04-03|Before: ZAMMIT AsJ

TESTATOR'S MAINTENANCE - Application by cousin - Intestacy - Whether deceased testator had responsibility to provide proper support of cousin - Amount of provision - Administration and Probate Act 1958 s 91 - Order for provision made.

2 I will refer to the plaintiff and the other witnesses by their first names, to avoid confusion given a number of the witnesses share a common surname.

3 Nikos' estate passed under the rules of intestacy contained in Part 1, Division 6 of the Act, in equal shares to his uncle, Christos Moussageas ("Christos"), and his aunts, Georgia Koutouleas ("Georgia") and Evangelia Limpereas ("Evangelia").

4 Nikos' estate at the time of the trial was valued at $317,997. Payment of the plaintiff and defendant's legal costs of the trial and some outstanding liabilities will reduce the estate to something less than $217,000.

5 Nikos' mother, Malamo Vourdoulidis ("Malamo"), is the sister of the beneficiaries and was Theodosis' aunty. All the beneficiaries live permanently in Greece. The beneficiaries are siblings of Konstantinos, Theodosis' deceased father, and Malamo, Nikos' mother. The beneficiaries are Nikos' nearest next of kin. Christos is a 72 year old widower. Georgia is an 80 year old widow, and Evangelia is 75 years old and married.

6 Nikos' father, Kostas Vourdoulidis ("Kostas"), died in 1992 and his mother, Malamo, died on 5 July 2005. Nikos was the sole beneficiary of his mother's will dated 25 May 2005. Nikos' estate is comprised primarily of the inheritance he received from his mother's estate.

7 It is difficult to accurately describe Nikos' medical condition. The evidence before the Court is that Nikos had an intellectual disability and suffered from schizophrenia.[1] Nikos was an individual who never lived independently. In April 2005, one month prior to his mother's death, Nikos went to live in Brunswick Lodge at Loyola Avenue. Nikos continued to live in some form of supported accommodation for the rest of his life.

8 Nikos' only family in Australia other than his parents, were Theodisis and his parents. Christos lived for a brief period in Australia from 1958 to 1967. Otherwise, Nikos only saw the beneficiaries in Greece from approximately 1985 to 1986.

9 Nikos did not leave a will. Letters of Administration on Intestacy were granted to State Trustees Limited ("STL"), the defendant, on 2 July 2009.

10 The jurisdiction of the Court to make an order under Part IV of the Act is dependent upon it being satisfied that the deceased had a responsibility to make provision for Theodosis. The Court is also required to be satisfied that the will does not make adequate provision of Theodosis' proper maintenance and support. Consideration of those matters involves an assessment of the question of what a wise and just person would have thought it their moral duty to make in Theodosis' interest, had they been fully aware of all the relevant circumstances.

11 The factors which the Court must be satisfied of before making an order for provision from Nikos' estate in favour of Theodosis, are not affected by virtue of the fact that Nikos died intestate.

12 The question of what a wise and just person would have thought it their moral obligation to make in Theodosis' interests is to be answered as at the date of death according to the standards of a wise and just testator, that is, the standard of a fair and reasonable person in the community. In answering this question, the Court is bound to have regard to the factors set out in s 91(4)(e) - (p) of the Act.

13 The statutory factors that the Court must consider at all stages of its decisionmaking processes in family provision proceedings are given different weight depending on the facts of the case and some may not be relevant at all.

14 Although the Act does not limit applicants' eligibility by a legislative list of relationship types, the courts still consider the type of relationship and special characteristics of the relationship, between the deceased and the applicant when determining whether the deceased person had a responsibility to provide for the applicant. Section 91(4)(e) of the Act specifically requires the Court to consider:

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.

15 The case law provides guidance as to the types of relationship and the "particular quality" that is likely to give rise to a responsibility on the part of the deceased person in Victoria. Schmidt v Watkins[2] was one of the first authorities dealing with an application of this type in this State following on from the amendments to s 91 affected by the Wills Act 1997 (Vic) which allowed persons who are not related by marriage or blood to make claims for further provision. Harper J observed at [22] (citation omitted):

... It is equally clear that a duty to provide in one's will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of a debtor and creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. ...

16 The Courts have held that the deceased person had responsibility to provide for an applicant, and the applicant should receive a larger share of the estate, in cases involving a range of different relationships, including: adult children of the deceased person,[3] adult children with disabilities;[4] adult stepchildren,[5] domestic partners,[6] former spouses,[7] a "close personal companion" and her child,[8] a foster child,[9] and adult step-grandchild,[10] an adult sibling,[11] a widowed daughterinlaw and children,[12] and a friend/carer of the deceased person.[13]

17 Ultimately, the legislation envisages, each case is decided on its own facts and circumstances, having regard to, the statutory criteria and what a wise and just person in the position of the deceased person would have deemed it their moral duty to do.

18 The present case fundamentally turns on what kind of relationship existed between Nikos and Theodosis. For the reasons I will set out, I consider that Theodosis is entitled to provision from Nikos' estate. The evidence demonstrates that theirs was a relationship founded on a familial tie which for Nikos and Theodosis gave rise to obligations and expectations. At all relevant times, Theodosis and Nikos' relationship was founded on the basis that they were cousins. Their familial tie was the cornerstone of their relationship. It coloured Theodosis' sense of duty and obligation to Nikos and Malamo following Kostas' death in 1992 and it coloured, Malamo and Nikos' expectations of Theodosis. I cannot say whether this relationship with its strong bond emerged from cultural roots or it was particular to this family, however, there is no doubt that the relationship between Theodosis and Nikos was strong and enduring. It was a relationship which placed significant obligations on Theodosis and which for the most part he met. Theodosis met his obligation to Nikos because he was family and as such he considered it was his duty.

(i) Affidavits of Theodosis Moussageas sworn 12 July 2011, 4 January 2012, 20 March 2012 and 31 January 2013.

(ii) Affidavit of George Catsourakis sworn 17 January 2012.

(i) Affidavits of Christos Moussageas sworn 7 October 2011 and 10 December 2012;

(ii) Affidavits of Georgia Koutouleas sworn 7 October 2011 and 13 December 2012;

(iii) Affidavits of Evangelia Limpereas sworn 7 October 2011 and 13 December 2012;

(iv) Affidavit of Anna Demelis sworn 14 January 2013;

(v) Affidavits of Yoha Manickam sworn 7 February 2012 and 31 January 2013.

21 The plaintiff and defendant's arguments are found in their written opening and closing submissions.

22 Much of the affidavit evidence filed in the proceeding was directed to the issue of Theodosis' relationship with Nikos and Theodosis' involvement in Nikos and Malamo's life. While much of that material is uncontradicted, the Court must be careful and bear in mind when considering the evidence that Nikos is not alive to give his version of events. In Schmidt v Wakins, Harper J observed at [19] (citations omitted):

The Courts have often pointed to the difficulty of assessing evidence concerning a person who is dead. An example may be found in the judgment of Dixon CJ in Pontifical Society for the Propagation of Faith v Scales. His Honour referred to the principle that the provision which a court may properly make in default of testamentary provision is that which is just and wise father would have thought it his moral duty to make in the interests of his widow and children had been fully aware of at the relevant circumstances. The Chief Justice continued:

The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his.

23 Theodosis was born in Melbourne on 23 June 1961. He is 51 years of age. Theodosis' aunty Malamo was married to Kostas. Nikos was their only son. Nikos was born on 31 March 1962.

24 Theodosis' father migrated to Australia in 1954. He met Theodosis' mother in Australia and married in late 1950. Theodosis' father died in September 1993. Theodosis' mother is alive and resides in Greece.

25 In the late 1950s Theodosis' father arranged to bring Malamo to Australia.

26 While Theodosis was born in Australia he returned to Greece as a child in 1962. He remained in Greece even though his mother briefly returned to Australia in 1964.

27 Theodosis attended school in Greece and studied radio communications at the Maritime Academy in Greece. In 1982 he obtained employment as a radio officer in the merchant navy.

28 In 1984, during his travels in the merchant navy, Theodosis met Silvia Olan Reyes ("Silvia") in Mexico. Theodosis and Silvia formed a relationship and had two children, Konstantinos born 20 November 1985 and Georgios born on 11 May 1988. In 1991 Theodosis returned to Australia to look for a better future for his family. At this stage Silvia and their sons remained in Mexico.

29 Nikos returned to Greece with his family some time in 1985 to 1996. Nikos and his family lived in Greece for approximately two years and then returned to Australia because of his medical condition. It is not clear how long Nikos and his family stayed in Greece. In Christos' affidavit he says that Nikos and his family lived with him for six months. In that same time Nikos' father placed him in an institution in Athens for approximately three to four months. Evangelia says that Nikos was in Greece between 1990 and 1992 and that he remained in Greece for approximately one year. Theodosis' evidence is that Nikos and his family returned from Greece due to Nikos' medical condition but also because of "lack of support and understanding from relatives".[14]

30 Theodosis returned to Australia in 1991. He lived with his father. It is at this time that Theodosis began to develop a close relationship with his cousin, Nikos. In these early days in 1991, prior to Theodosis obtaining full time work, Nikos and his parents visited Theodosis's father's house on a daily basis. Theodosis obtained full time work in September 1991. In the months from June to September 1991 he spent a lot of his time with Nikos. He noted that Nikos wanted to play like a child and that he would take him to the Victoria Market, local parks and shopping. In September 1991 Theodosis commenced work as a spot welder at Chef in Brunswick.

31 Nikos' father, Kostas died in 1992. Theodosis described how the death of his uncle placed considerable stress on Malamo and "devastated Nikos". At the time Theodosis' own father was in poor health and was limited in what he could do. Theodosis' evidence is that he felt obligated to do his best to help Nikos and Malamo as they were his only blood relatives in Australia and he was their only blood relative in Australia.[15] Theodosis' father died in September 1993.[16]

32 Theodosis described how Malamo needed help with Nikos after her husband died. In addition to help with Nikos, Malamo also needed assistance in everyday activities such as shopping, paying bills and visiting doctors. Malamo spoke little English and could not read or write. Malamo had never worked and had always stayed home caring for Nikos.

33 Theodosis described that Nikos became frustrated and aggressive towards his mother after his father's death.

34 At this time, Theodosis described how there were problems with Nikos which would often result in Nikos leaving home temporarily. At these times Nikos would stop taking his medication.

35 Theodosis says that he was often at Nikos' home in Noble Drive, Epping, calming him down. Nikos would often visit other people's homes and then refuse to leave. On these occasions he would be contacted and asked to collect Nikos and take him home. In this period Theodosis made contact with George Catsourakis, social worker. Theodosis would often call Mr Catsourakis to help with Nikos' behaviour and problems he was having with his mother. Mr Catsourakis' evidence is that after Kostas' death there was ongoing swearing and fighting between Nikos and his mother. He confirms that Theodosis was called by Malamo on numerous occasions, to help resolve the fights. Mr Catsourakis knew of this because Theodosis would call him and inform him.

36 Mr Catsourakis also confirms Nikos was continually running away from home, which created "huge problems, and that Theo endeavoured to try and find him."[17] Mr Catsourakis also confirmed that when Nikos ran away from home he did not take his medication and often when he was found he was in poor medical condition and had to be taken to hospital. Mr Catsourakis' evidence is that after Kostas' death, Malamo would invariably ring Theodosis with their problems. Theo would call Mr Catsourakis and seek his advice as to what could be done to assist Malamo and Nikos and the services available to assist them.[18]

37 Mr Catsourakis' evidence is that Malamo and Nikos were involved in ongoing disputes and arguments with tradesmen and neighbours and that at least on one occasion there was a fight between Malamo and Nikos with neighbours and the police were called. On this occasion Nikos also fought with the police.[19]

38 In 1994 Theodosis arranged for Silvia and his sons, then aged 6 and 9, to come to Australia. Some time in 1995 after Silvia arrived in Australia she became ill with Lupus. Theodosis described how at this time he was under "much stress" from daily phone calls from Malamo and talking to Malamo after work for hours, about her problems with Nikos and his own concerns for his family.

39 Silvia spoke only Spanish, as did his sons at this stage, and were not able to communicate with Nikos. Silvia tried to help Nikos whenever he came to their home and would provide him with food and allow him to sleep at their home.

40 There were occasions when Malamo would call with problems but Theodosis was at work. Silvia would do her best to take the message from Malamo and then pass them on to Theodosis.

41 On occasion in this period after Kostas' death, Nikos escaped from his home and would arrive at Theodosis' home complaining about his mother and asking to stay with them. On one occasion Nikos had an epileptic seizure at Theodosis' home which was very upsetting for Silvia and his sons.

42 In 2001 Theodosis changed jobs as the factory he was working at closed. He trained and worked as a security guard for a short time and subsequently returned to work as a spot welder at a factory in Tullamarine.

43 On 19 September 2003 Theodosis injured his back at work. He returned to work after three weeks, on light duties. On his return to work Theodosis commenced doing his old duties and kept working because he was the sole provider for his family.

44 Theodosis continued to work until 2006, albeit on reduced hours from approximately 2004. In 2006 he ceased working altogether.

45 Theodosis concedes that after 1996 Nikos did not come to his home but that there were other things that he had to deal with for Nikos and Malamo. This included dealing with phone calls from other members of the community who knew Nikos who would contact Theodosis and ask that he organise for Nikos to be returned home.

46 Theodosis acknowledged that he did not personally return to Nikos' home after 2000 and that Nikos was visiting many other people during the night before and after 2000. It would appear from the evidence that Theodosis drove Nikos home on two occasions after 2000.[20]

47 His injury left him with back pain and rendered him disabled from employment from 2006. Theodosis is unlikely to work again[21] and he considers that his medical condition is deteriorating.[22]

Theodosis' involvement with Nikos after Malamo's hospitalisation

48 On 19 April 2005, Malamo was hospitalised with cancer at the Austin Hospital. Nikos was put into care at Brunswick Lodge. Nikos had a case manager appointed from the Department of Human Services, Mr Greg Telgenkanp.

49 At this time, Theodosis was contacted by his Aunt Georgia in Greece. Georgia said, "As I was the only blood relative in Australia and although it would be difficult, she (Georgia) wanted me to be by the side of Malamo as long as she needed me. She told me 'Do not let her die like a dog'."[23]

50 His Aunt Evangelia's evidence is that she would talk to Malamo on the phone. When Malamo's husband was killed, Malamo begged Evangelia for help over the phone. Evangelia suggested that Malamo call Theodosis to help.[24] Ms Demelis gives evidence that she suggested to Malamo that Theodosis may be able to look after Nikos. While Malamo did not ask Theodosis to care for the deceased, the evidence supports the idea that there was an acceptance as Theodosis was Nikos' only family member in Australia, that he should assume responsibility for Nikos.[25]

51 When Malamo was hospitalised, Theodosis would routinely visit her after work at the hospital. He would on occasion pick up other people to visit Malamo.[26] When Theodosis noted Malamo's health was deteriorating he offered to contact Mr Catsourakis, given his experience dealing with Nikos for "the best advice about how to protect Nikos in case of her death".[27]

52 Theodosis contacted Mr Catsourakis about this issue to ensure he was in a position to help. However, it appears that Malamo did not want Mr Catsourakis' assistance.[28]

53 After Malamo's death, Anna Demelis organised the funeral and accompanied Nikos to his mother's funeral. Theodosis was not the executor of Malamo's estate. Ms Demelis was appointed by Malamo as her PowerofAttorney.

Theodosis' involvement with Nikos after Malamo's death on 4 July 2005

54 At paragraph 49 of the 12 July 2011 affidavit, Theodosis says that he visited Nikos at Brunswick Lodge on a regular basis after Malamo's death. Nikos complained to Theodosis that he did not have clothes, shoes and spending money. Theodosis called Greg Telgenkanp from the Department of Human Services and asked that Nikos be allowed to visit his family home at Noble Drive, Epping to pick up his belongings and that he be given $50 per week for expenses. Theodosis was informed by Mr Telgenkanp that Nikos had no money. At this time, Theodosis began to buy Nikos Greek food, which he took to Brunswick Lodge.[29]

55 Mr Catsourakis' evidence is that after Malamo's death he spoke to Theodosis on a regular basis and that he too was concerned that there were insufficient money being provided for appropriate food and accommodation for Nikos. Mr Catsourakis would speak to Theodosis at least once a week about issues and helping Nikos.[30]

56 Theodosis subsequently visited a member of parliament, Kelvin Thompson, about Nikos' situation. The evidence is that Theodosis visited Kelvin Thompson with Angelo Koutouleas. As a result of the visit, Mr Thompson wrote to the then AttorneyGeneral in a letter dated 19 August 2005 and the Public Trustee in a letter dated 3 August 2005.[31] In the letter to the AttorneyGeneral, Mr Thompson writes:[32]

... I am writing on behalf of Mr Nikos Vourdoulidis and his cousin, Mr Theo Moussageas who approached me to discuss the death of Nikos' mother, Mrs Malamo Vourdoulidis and the consequences that followed. ... On their behalf I first wrote to the Public Trustee to enquire as to their role in the administration of Mrs Vourdoulidis' estate and seeking clarification as to why Nikos, who suffers from epilepsy and other disabilities, is not able to reside in the family home where he lived with his mother before she passed away. ...

57 In summary, the letters to the AttorneyGeneral and the Public Trustee raised the following issues:

Clarification as to why Nikos was not able to reside in his home;
what assistance would Nikos have required to live at his Noble Drive home;
whether the Public Trustees Office had the keys to the Noble Drive property, cash and documents and noting that Nikos was effectively locked out of his home;
that the Public Trustee was planning to sell the house and that it may not have been in Nikos' best interests.

58 In addition, Theodosis wrote to the Ombudsman.[33] The letter to the Ombudsman is dated 7 December 2008 after Nikos' death. However, the contents of the letter are consistent with the issues raised by Kelvin Thompson in his letters to the AttorneyGeneral and the Public Trustees Office and the evidence given by Theodosis. In the letter to the Ombudsman, Theodosis raised two main issues: (1) The circumstances of death and the estate of his late Aunt Malamo Vourdoulidis; and (2) the management of the estate and decisions that were taken on behalf of as well as the circumstances of his cousin's death. In the letter he says: "...Nikos Vourdoulidis (my only blood relative in Australia) was born in Melbourne ... ".

59 The letter to the Ombudsman is nine pages long. Theodosis' evidence is that he wrote this letter without assistance.

60 Mr Catsourakis' evidence is that Theodosis "substantially took on the burden of helping Nikos after Malamo's death. He would ring me regularly seeking guidance as to what he could do or couldn't do in helping Nikos with his finances, accommodation and the like. I know that he was involved with meetings with the State Trustees and various other bodies in relation to Nikos' care and welfare."[34]

61 In addition to the advocacy which Theodosis made on behalf of Nikos following Malamo's death, Theodosis arranged to go with Nikos to the family home at Noble Drive, Epping to clean up the yard and collect the mail. He did not have keys to the property and was unable to go inside but collected overdue bills. Theodosis complained to Mr Telgenkamp about the state of the house, including the fact that the grass was overgrown, because he believed it was the Department of Human Service's responsibility.[35] Theodosis took Nikos to the ANZ Bank and deposited a cheque which he had collected from the Noble Drive property.

62 Theodosis contacted Mr Telgenkamp and told him that Nikos had his own money and that he should be allowed a weekly allowance. Following this, Nikos was given $300 to buy clothing and subsequently he started to receive an allowance of $10 per week.[36]

63 Theodosis also took Nikos to Forges to buy some clothes and gave the receipt for the clothes to the manager of Brunswick Lodge.

64 On 9 August 2005 Theodosis and Angelo Koutouleas had a meeting at the Office of the Public Advocate ("OPA") with Mr Patrick McGee who had been appointed Nikos' guardian. At the meeting there was a representative from Flinders Trustee Group, Evelyn Goldberg "as supervisor of Nikos' case". At the meeting he discussed Mrs Demelis' involvement with the estate and in effect: "I told them I wanted to be sure that Nikos would be well protected and looked after."[37] Theodosis told Mr McGee that Nikos wanted to return home and that he should be allowed to do so under supervision and that an assessment should be conducted to see if Nikos was able to do so.

65 Theodosis' evidence is that he continued to buy Greek food for Nikos and to visit him regularly, taking him to local parks and the local church while Nikos resided at Brunswick Lodge. Theodosis was on light duties from 2004, working approximately four hours per day.

66 The evidence demonstrates that Theodosis was concerned and attempted to assist Nikos in relation to his living situation. Theodosis spoke to Nikos about the issue of returning to Noble Drive and his evidence was that Nikos became angry.[38]

67 At one stage Theodosis was contacted by a priest, Father Fannasis, who worked at the church which Nikos attended. The priest asked Theodosis why he was forcing Nikos to sell his home. Theodosis tried to explain to the priest the situation and asked the priest if he would be willing to assist him in relation to Nikos. Theodosis went to see the priest and the priest indicated that he did not want to become involved in the matter. Following the meeting with the priest, Theodosis went to Brunswick Lodge to speak to Nikos again. On this occasion, Nikos became upset and would not allow Theodosis in. In his evidence, Theodosis said,

"I was trying to help, I feel it was my duty but he no have a reason what I was doing ... He was very upset ... He was screaming ... about I want to sell his house and why I call him [bother him] and his mother is a whore and I and he was talking like ... He is a sick person and I have that and him in my power to help him but Nikos in the moment when you try to get from him a straight answer or something ... he was very aggressive and upset ... ".[39]

68 When Nikos was living at Brunswick Lodge in 2006, Theodosis received a phone call at the Royal Melbourne Hospital. He was informed that Nikos was at the hospital and the doctor asked if he could help provide some information in relation to Nikos' background and previous condition. Theodosis went to the hospital and spoke to the doctor. At the time, Theodosis told Nikos that the tests were important and that he would return to see him the next day.

69 The next day Theodosis returned to the hospital and was informed that Nikos had refused blood tests and had returned to Brunswick Lodge. Theodosis went to Brunswick Lodge and told Nikos that it was important that he cooperate in having the tests.

70 Nikos was subsequently moved from Brunswick Lodge in the middle of 2006 to a hostel in Heidelberg. By the middle of 2006, Theodosis' health was poor and he described being in "very difficult position myself because my psychological health and my physical health was deteriorating." Theodosis had a discussion with his family doctor in approximately the middle of 2006 at which time the doctor suggested that he should cease his involvement with Nikos.[40]

71 From the middle of 2006, Nikos did not have any contact with Theodosis for "more than three months". The evidence is that from that time onwards Theodosis did not see Nikos as often. Nikos had moved to a residential facility in Heidelberg which was not as close as Brunswick Lodge. The more regular contact that Theodosis had had with Nikos ceased from this period onwards. In his evidence, Theodosis said,

"The every day contact we have because we have this kind of contact. This contact that was lost is not - was to take you know parks, you know, was to - to buy things for him or anything. No, it was just like contact a phone if he wanted to something, we met at the church. That's it. No was - the contact was there before it was missing - no have this kind of contact any more."[41]

72 From the middle of 2006, Theodosis did not physically visit Nikos at the Care Life Hostel in Heidelberg or the Corandirk Hostel in Moonee Ponds.[42] Theodosis only saw Nikos on 4 November 2008, some three weeks after he had been informed that Nikos had had an accident on 10 October 2008. Theodosis saw Nikos on occasion at church. Theodosis' evidence in this regard was vague but it would seem he saw Nikos at church no more than once a fortnight and that he was informed by people who attended the church of how Nikos was. At most, it seems that the contact between Theodosis and Nikos was confined to a monthly telephone call from approximately October 2006 to Nikos' death.

73 In crossexamination, counsel for the defendant referred to a statement of Atilla Yazar.[43] Mr Yazar spent approximately ten hours per week with the deceased while he resided at Corandirk House from early 2008. In a statement provided to the Coroner, Mr Yazar noted that "Nikos did not speak about his family much, he hasn't had any contact with them since his mother died a few years ago."[44]

74 On 11 October 2008, Nikos had a fall leading to an admission to hospital. Theodosis attended the hospital but Nikos had already been discharged. He subsequently saw Nikos at Corandirk House on or about 4 November 2008. Nikos died on 25 November 2008.

75 After Nikos' death, Theodosis was asked by an individual from State Trustees, Bill Alexion, if he would assist with funeral arrangements. Theodosis was concerned about the circumstances of Nikos' death. As a result of his concerns he took various steps, including:

(1) speaking with Senior Constable Elliott at the Moonee Ponds Police Station about the investigation into Nikos' death;

(2) Theodosis wrote two letters to the State Coroner's office dated 5 December 2008 and 31 March 2009;

(3) Theodosis wrote a letter to the Ombudsman dated 7 December 2008 about the care provided to Nikos and his aunt and the management of his estate; and

(4) Theodosis contacted Kelvin Thompson MP, during 2009.

76 Theodosis sustained spinal injuries in September 2003 in the course of his employment. This led to a reduction in work hours in 2004 and then ceasing to work in April 2006. Theodosis has not returned to work since then and the medical material is that it is unlikely he will be able to return to work.

(a) radiculopathy which effects both legs, and numbness in the right leg;

(b) lower back problems with pain and stiffness. He is unable to undertake activities that involve bending or twisting;

(c) bilateral carpal tunnel syndrome;

(d) injury to the right shoulder;

(e) depression;

(f) glaucoma; and

(g) high blood pressure.[45]

78 In a letter dated 4 September 2008, Theodosis' general practitioner, Dr Alekozoglov, described Theodosis' condition as follows:

On April 2006 due to being in a great deal of pain he was sent by his employer to Sunshine Hospital Emergency Department. From that day he has been off work, because of low back pain radiating to both legs with the right leg suffering the most. During 2006 Theo developed hypertension and severe gastritis. Because of the stress related to his injuries, and the constant use of anti-inflammatory medication, overall Mr Moussageas suffers lumbar spine injury, with persistent radiculopathy affecting mainly his right leg, and restriction in active range of lumbar mobility. Bilateral carpal tunnel, right should pain, depression, hypertension, gastritis, and glaucoma.[46]

79 Theodosis owns his home at 50 Anderson Street, Pascoe Vale in the State of Victoria ("the property"). The property is unencumbered and is valued at approximately $500,000.[47] This was Theodosis' estimated value of the property.

80 The property is in need of substantial repair.[48] Theodosis gave evidence that he has received a verbal quote for repairs to a back room in the property ranging from $15,000 - $20,000.[49]

81 Theodosis owns a car which requires repairs.[50]

82 Theodosis has investments in the bank of $213,000.[51]

83 Theodosis is 51 years of age. He has two adult children who are not dependent on him and do not live with him. Theodosis separated from his wife, Silvia, in 2004.

84 In his affidavit sworn 20 March 2012, Theodosis set out his current living expenses totalling $33,045 per annum. His evidence was that the various items listed fluctuate but that as a general estimate the figure was reasonably accurate.

85 Theodosis has been informed that he will require future dental work estimated between $12,000 - $13,000.[52]

86 Theodosis has a credit card debt of approximately $2,000.

87 The shortfall in expenses was canvassed in evidence. Theodosis' affidavit shows a shortfall between his annual income and expenditure of between $213,000.[53] Theodosis explained that he has continued to reduce his expenditure and when necessary lives on his credit card. The small discrepancy in the shortfall does not in any significant way alter Theodosis' financial status. It appears that Theodosis' shortfall may not be as high as stated in his affidavit. However, I accept that Theodosis' financial circumstances are difficult. He does not currently attend a physiotherapist because he cannot afford it.[54] He has had temporary dental work done as he cannot afford the estimated cost of the full dental work. He has not had the repairs done to the property or his car.

88 Mr Catsourakis' affidavit sworn 17 January 2012 was tendered into evidence by consent. Mr Catsourakis was not called for cross-examination by the defendant.

89 Mr Catsourakis was a social worker from 1985 to 1999, employed by Moreland Community Health. Since 1999 he has been employed as Co-ordinator for the Association of Greek Elderly Citizen Clubs of Melbourne and Victoria. Mr Catsourakis was involved with the deceased and his parents since 1986.

90 His affidavit provides valuable insight into Nikos' behaviour and Theodosis' involvement in Nikos' life. It is convenient to set out in some detail Mr Catsourakis' evidence:

[7] ... I notice from my observations of seeing Theo and Nikos together that there was a very strong attachment between them at the time of my first contact with the Vourdoulidis family who had recently returned to Australia from Greece.

[8] At that time they were renting in the Brunswick area. Kostas had not worked for a considerable period of time due to medical issues and Malamo also did not work. Their son Nikos had mental problems and was not able to work.

[9] It soon became clear that most of their issues and problems related to their son Nikos.

[10] I noted that Kostas did nearly all of the talking in the family and seemed to be controlling.

[11] The issues in relation to Nikos were essentially that:

(a) he needed constant supervision;

(b) he was unhappy;

(c) he was exhibiting types of compulsive behaviour such as continually shaving, taking excessively long showers.

(d) he had been diagnosed from suffering epilepsy;

(e) he was extremely religious and spent a lot of time in churches.

...

[15] Nikos because of his behaviour required constant supervision and to provide his parents with respite I arranged for Nikos to do volunteer work at the centre ...

[17] In 1992 Kostas died and after his death problems with the family dramatically increased.

[18] After the death of Kostas there was ongoing swearing and fighting between Nikos and Malamo. Theo was called by them on numerous occasions to help resolve these fights and I know this because Theo would ring me and inform me.

[19] Nikos was continually running away from home which created huge problems. Theo endeavoured to try and find him. On occasions he was found at the Salvation Army where he had been living with the homeless for a couple of days. When he ran away he did not take his medication and often when he was found he was in a poor medical condition and had to be taken to hospital.

[20] After the death of Kostas, Malamo would invariably ring Theo with their problems. Theo would then ring me and seek my advice as to what could be done to assist Malamo and Nikos and the services available to assist them.

[22] Theo was continually involved in the issues and problems of the family including Nikos continually running away. Theo would regularly inform me of these matters. I can remember in the early hours of one morning after Nikos had run away seeing him walking in High Street, Northcote wearing one shoe in a confused state. After parking the car and a short confrontation with me he requested that I take him to Theo's home which I did.

[23] Malamo died in 2005 after an illness in hospital.

[24] Theo had contacted me and told me that Malamo was in hospital and was dying and asked if I could assist. I offered my assistance but Malamo did not want this assistance.

[25] ... After the death of Malamo in 2005 I spoke to Theo on a regular basis and like Theo was concerned that there were insufficient monies being provided for appropriate food, accommodation etc for Nikos. I would speak to Theo at least once a week about issues and helping Nikos.

...

[27] I noticed that there was a very strong attachment between Nikos and Theo. Theo tried very hard and committed a lot of his time and effort to helping Nikos. On many occasions this came at a significant cost to Theo. I can remember on one occasion when Nikos had an epileptic fit at Theo's home which was a very distressing situation particularly for Theo's wife and his two young children. I know that Theo's children were somewhat apprehensive of Nikos.

[28] I know that Nikos could be violent and whilst I never saw that side of him I was told by Malamo that he had attacked her on occasion and also was informed by the police that he had attacked them.

[29] Theo injured his back but continued to endeavour to help Nikos and his family and on occasions I could see he was in obvious pain and discomfort.

[30] Theo substantially took on the burden of helping Nikos after Malamo's death. He would ring me regularly seeking guidance as to what he could do or couldn't do in helping Nikos with his finances, accommodation and the like. I know that he was involved with meetings with the State Trustees and various other bodies in relation to Nikos' care and welfare.

...

[32] At no time did I have any contact whatsoever with any family member of Nikos other than his mother, father and Theo.

91 Christos is a 72 year old widower. He is retired and receives a pension in the sum of €610 per month. He retired ten years ago due to health reasons. The pension is Christos' only source of income.

92 Christos suffers from diabetes, he has a slipped disc, and a hip injury.

93 Christos owns a home in Athens. He lives in and has a 60-70% interest in the family home in Kastanea. The value of the property in Kastanea, according to Christos, is somewhere between €50-70,000. He has approximately €25-30,000 in savings. In his second affidavit, sworn 10 December 2012, Christos' evidence was that his savings were approximately €60,000. In the course of giving viva voce evidence, he estimated this amount to be between €25-30,000.[55]

94 Christos gave evidence that there is a coffee shop in one of the buildings he controls but denies receiving any rent. Christos has an interest in olive groves but no value was given to this interest.

95 Christos lived in Australia for approximately ten years. In that time Malamo lived with Christos for approximately six years. The house they lived in was owned by Theodosis' father in Brunswick.

96 In 1986 when Nikos and his parents went to Greece, they stayed with Christos and his family for six months. In that same year, Nikos was placed in an institution in Greece for approximately four to six months.

97 Georgia is an 80 year old widow. She has four adult children. Georgia is retired and receives a pension of €330 per month.

98 Georgia owns her own home; 25% of an old village house in Kastanea and an interest in an olive grove; and 50% share of a ground floor house in Kalamata. The value of her 25% share of the old village home is approximately €10,000; the 25% interest in an olive grove is valued at €5,000; and the 50% share of an uninhabited ground floor house in Kalamata is approximately €40-50,000.

99 Georgia has health issues including a heart condition, respiratory problems, blood clotting disorder and a section of her intestine has been removed because of cancer.

100 Georgia says that she had "excellent relations" with her sister Malamo and the deceased and that they telephoned each other regularly. Malamo asked Georgia to come to Australia to look after her when she was ill but due to Georgia's health and financial situation, she was unable to do so.

101 Evangelia is 75 years old and married. She has seven adult children. Evangelia receives a pension of €400 per months. Evangelia owns her own home which is described as small and basic. She has a small supplement to her pension from an olive grove.

102 Evangelia described her relationship with Malamo as very good. Evangelia was unable to travel to Australia when Malamo asked her to during her illness due to her health and financial situation.

103 Theodosis' case, put simply, is that Nikos had a duty to make provision after death, for his first cousin who carried out what he felt was a duty to provide assistance to his cousin, Nikos during his lifetime.

104 Iwasivka v the State Trustees Ltd[56] was a case dealing with a claim made by a niece by marriage of the deceased. Hansen J said, referring to the amendments to Part IV of the Act:

The plaintiff is enabled to make her claim by the 1997 amendments to Part IV which empowers the Court to: "order that provision be made out of the estate of the deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision."
The amendments abolished the former approach, traditional in such legislation in Australia and New Zealand, of defining and thereby limiting, those who may apply under Part IV by reference to their relationship to the deceased, as for example in Victoria, widow, widower or children. The requirement of the Act now being that the deceased had responsibility to make provision for the proper maintenance and support of "a person", without a requirement that the person be related by blood or even by marriage to the deceased, means that the present applicant, a niece by marriage, is enabled to apply.
Section 91 is the critical section. It directs attention to three stages or issues which the Court must address:

(a) First, whether the deceased had responsibility to make provision for the proper maintenance and support of the application;

(b) Secondly, whether the distribution of the estate of the deceased does not make adequate provision for the proper maintenance and support of the applicant; and

(c) Thirdly, the amount of the provision (if any) which the Court may order.

In determining each of these issues, and as to any other matter related to an application for an order, the Court "must have regard to" a series of matters specified in section 91(4) (e) to (p).

As in the present case the deceased died intestate, the question at the second stage is whether the distribution of her estate effected by the intestacy provisions of the Act, do not make adequate provision for the proper maintenance and support of the plaintiff. For this purpose the deceased is to be regarded as having died leaving a will by which she dealt with her estate in accordance with the intestacy provisions. In short, the question whether the deceased had responsibility to make provision for the applicant is "unaffected by whether the deceased died testate or intestate". (Citations omitted)[57]

105 In Blair v Blair,[58] Nettle JA said,[59] in relation to the relevance of the concept of moral duty to the jurisdictional questions posed by sections 91(1) and (3), that:

The Court is bound in answering each of those questions to have regard to the matters mentioned in ss 91(4) (e) to (o) and, pursuant to 91(4)(p), to any other matter considered to be relevant. Self-evidently such matters are of themselves incapable of providing an answer to either question. To reason from matters mentioned in section 91(4)(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. 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 interests of the claimant.

106 It has been said that the concept of moral responsibility "is not static or idiosyncratic".[60]

107 In Petrucci v Field,[61] a case where applications for provision were made by a daughter-in-law and a grandchild of the deceased, Mandie J said at [64] in relation to the first issue of responsibility to make provision:

It seems to me that grandchildren can neither be "ruled in" nor "ruled out" until all the facts are examined. It is important to distinguish between the general obligations of parents to provide for and support their children and the potential responsibility, in a statutory sense, of a testator, who is a grandparent, to make provision out of his estate for the proper maintenance and support of grandchildren.

108 Commenting on the passage in Petrucci v Field by Mandie J, Hansen J in Iwasivka v State Trustees Ltd [62] at [12] said:

Later in his judgment, at [64] Mandie J made an observation with which I would, with respect, agree. The observation was made in relation to a submission that the deceased had no responsibility to make provision for the grandchild, as to which His Honour referred to several authorities. The point made by Mandie J was that whether a grandchild could succeed in a claim must depend on a consideration of all of the facts of the case, and not be restricted by an a priori approach based on the relationship of grandchildren. As he said, "grandchildren can neither be 'ruled in' or 'ruled out' until the facts are examined". The same is true in relation to a person standing in a different relationship to the deceased, such as the plaintiff in the present case. (Citations omitted).

109 Theodosis bears the onus of proving that inadequate provision has been made.

110 As Nikos died intestate, he is taken to have made a will in terms and to the effect of the intestacy provisions of the Act.[63] The matters the Court must consider when determining whether Nikos had responsibility to make provision for Theodosis and whether inadequate provision has been made is not affected by the fact that Nikos died intestate.

111 The Court in a case where the deceased died intestate, must have regard to those factors set out in section 91(4)(e) to (p) of the Act applying the standard of the wise and just testator.

112 Counsel for Theodosis, Ms Sparkes, submitted that the concept of testamentary freedom or the "right of the testator to do what he pleased with his own"[64] can have no real value in this case. Ms Sparkes noted that Nikos may have chosen to die intestate, or that the statutory distribution under the intestacy provision is "the fairest and most reasonable".[65] However, Ms Sparkes submitted that in this case "the accident of intestacy does not create the fairest and most reasonable situation".[66] It was submitted that the Court should give little weight to the statutory choice of beneficiaries in this case.

113 I do not accept the latter submission. The authorities are clear that where the deceased died intestate, the deceased is to be regarded as having died leaving a will by which he or she dealt with their estate in accordance with the intestacy provisions.[67]

114 I now turn to consider the discretionary factors which are prescribed at section 91(4) (e) to (p) of the Act. I will avoid where possible, repeating facts referring to evidence which has already been set out in my reasons.

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

115 Theodosis was Nikos' first cousin, his father being the brother of the deceased's mother. I have described how from 1991 up to Nikos' death on 25 November 2008, they had a close relationship arising out of their familial tie as cousins and Nikos' special needs and circumstances. After Nikos' father's death in 1992 and Theodosis' father's death in 1993, Theodosis assumed the role his father previously had with Malamo and Nikos.[68]

116 Theodosis impressed me as an honest person, quite emotional when giving evidence, which in part was reflected in the speed with which he spoke and his desire to provide examples of incidents which he thought were responsive to questions he was asked. This often led to long answers which were sometimes unresponsive to the questions he was asked. It was clear that Theodosis had on occasion difficulty understanding the questions asked, as English is not his first language. Mr Bolkas, counsel for the defendant, submitted that the Court should be cautious about accepting Theodosis' evidence on certain matters. In particular Theodosis' evidence about the assistance he provided to Malamo and Nilos after Kostas' death in 1992, which he described as weak and unconvincing and should be treated with caution.

117 The evidence in this case about the nature of the relationship between Nikos and Theodosis cannot be described as akin to the relationship found in cases such as Iwasizka v State Trustees Ltd[69]or Unger v Sanchez.[70] In Iwasivka's case the Court found the deceased was the closest thing to a mother the applicant ever had and the true characterization of the relationship between the deceased and the applicant was that of mother and daughter.[71]

118 However, as in Iwasivka's case, the relationship between Theodosis and Nikos should be seen in the context of the family relationship arising from Theodosis' father and Nikos' mother, Malamo being brother and sister. There is the factor of migration to Australia by Nikos' family and Theodosis' family and the support the families gave to each other which later extended to Theodosis aiding Malamo and Nikos.

119 The relationship between Theodosis and Nikos must also be found in the context of Nikos' disabilities and Theodosis' own health issues and personal circumstances.

120 The evidence before the Court is that Nikos had an intellectual disability, a significant mental health issue and suffered from epilepsy. In the relevant period, from 1991 to November 2008, Nikos demonstrated ongoing social difficulties and challenging behaviours. It appears Nikos demonstrated challenging difficult behaviour even as a child.[72] Ms Demelis gave evidence about Nikos being polite when he would come to her home, and also described how Nikos was known to have pulled his mother's hair and had bitten his mother.[73]

121 In the relevant period Nikos and his family received support from social workers and other members of the community. Nikos did not live with Theodosis at any stage.

122 Mr Bolkas tried to quantify the actual time that Theodosis spent with Nikos or assisting Malamo. It is submitted that Theodosis exaggerated the time he spent with Nikos and Malamo. It is difficult to quantify in the way the defendant has endeavoured to do, just how much time at any given moment Theodosis spent with Nikos and/or Malamo. It is clear that from the middle of 2006 until Nikos' death in November 2008, that Theodosis' involvement with Nikos dramatically reduced. However, this must be seen in the context of Theodosis' own personal circumstances. Theodosis had stopped working in May 2006 due to serious medical problems arising from his work injury in 2003. It was his doctor who told him that he needed to stop his involvement with Nikos or risk serious health repercussions. At the time Nikos was in assisted care and his needs were being attended to. When he went to live in Corandirk Hostel he had a carer who assisted him to get to activities he loved, most notably attending Church. The level of care Nikos received from that period and in particular after Malamo's death in July 2005 until his death was such that his medication appeared to be controlled and there was no evidence of absconding or difficult behaviour that was seen previously.

123 From the middle of 2006 until Nikos' death, the period where Theodosis is not as involved in Nikos' life, Nikos is being cared for adequately. The period of approximately 18 months does not in my mind undermine or diminish the nature of the relationship between these two men or the contribution that Theodosis made to Nikos' life.

124 From 1993 until the middle of 2006, Theodosis was "the go to man" for Nikos and for Malamo in her lifetime. Even though the services of others, most notably Mr Catsourakis, were employed to assist Malamo and Nikos, Theodosis was the first port of call. It was Theodosis as a family member who was contacted by friends and acquaintances when Nikos would arrive unexpectedly at their homes. It was Theodosis' responsibility ultimately to make sure that Nikos was returned home. It was Theodosis who Malamo called when Nikos had violent outbursts and it was Theodosis who would go to Nikos' family home in Noble Drive, Epping to assist.

125 In the relevant period, Theodosis had endured a significant work injury, had a wife and family and subsequently went through a separation with his wife in 2004. Immediately after Kostas' death Malamo would call Theodosis for assistance with her daily living, such as shopping and making appointments. The evidence was that Theodosis did not necessarily take Malamo to various appointments or do the shopping for her. However, he was the person that would put things in place for her by making appointments and organising people to assist her.

126 Other than the involvement of Angelo Koutouleas who attended the appointments with Theodosis to see Kelvin Thompson, there was no evidence from any other family member or friend in Australia or in Greece who provided ongoing assistance to Malamo or Nikos in the relevant period. The only evidence before the Court is that Mr Catsourakis had assisted and that occasionally Nikos would unexpectedly visit Mrs Demelis. Mrs Demelis was appointed Power of Attorney for Malamo and organised Malamo's funeral.

127 The period after Malamo's death was an extremely difficult time for Nikos who lost his mother who had cared for him for his whole life and was placed in a care facility. Theodosis cannot be criticised for not taking in Nikos to live with him. Nikos' behaviour was complex and difficult and Theodosis had his own health issues and a family that he was still caring for in that period.

128 Theodosis tried to improve Nikos' quality of life. He bought him Greek food and actively tried to help Nikos to return to live in his home in Noble Drive, Epping or at least to have Nikos assessed to see if it was a reasonable option. Theodosis wrote to the Ombudsman and went to see his local Member of Parliament to get assistance for Nikos and to ensure Malamo's wishes were being met. Theodosis' efforts resulted, in Nikos receiving a small allowance, new clothes and if nothing else, consideration being given to the prospect of him returning to live in Noble Drive, Epping.[74]

129 Nikos' situation and his needs were not ordinary. Theodosis considered by virtue of the family tie, that he was the central person other than Nikos' parents in Nikos' life. His role was not of an occasional visitor or a family friend. It was a role which Nikos' family and Theodosis, expected he would assume and which he did assume under difficult circumstances from 1992/1993 to the middle of 2006.[75] Theodosis considered it his duty to help Nikos.[76]

130 The fact that Nikos and Theodosis were first cousins does not give rise to any presumption in an application of this kind. What is important is distilling from the evidence the nature and quality of the relationship between these two men and the contribution that Theodosis made to Nikos' life. For Theodosis and Nikos, the fact that they were cousins was extremely important in understanding the nature and quality of their relationship.

131 The relationship between Theodosis and Nikos is not in the type of relationship as found in Iwasivka v State Trustees Ltd[77] and Unger v Sanchez,[78] as akin to mother and child.

132 However the relationship in this case when looked at over the relevant period, demonstrates a close relationship, a relationship where Nikos and Malamo assumed that Theodosis would be available for them and where Theodosis willingly and lovingly assumed the responsibility. In my view, the relationship had the "particular quality" required in Harper J's formulation in Schmidt v Watkin.[79]

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

133 Nikos had no obligation or responsibility to make any provision to Theodosis or the beneficiaries.

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

134 Theodosis owns his own home, which is valued at $500,000 to $550,000. His home is in need of some repair. His only source of income is a disability pension. Theodosis has approximately $213,000 in savings. Theodosis has not worked since the middle of 2006. Given Theodosis' age and work related injuries he has no real earning capacity.

135 Theodosis has numerous expenses he will incur in the future, including repairs to his home, dental work and ongoing car repairs. These costs, given his limited income will reduce his modest savings. In summary, Theodosis' financial position is one which enables him to just get by without eroding his savings which are his only "nest egg" for the future. I consider that Theodosis has a need for financial assistance or to use the language of section 91(1) "Maintenance and Support".

136 The position of Nikos' next of kin (the beneficiaries) is that they are all pensioners, residing in Greece. They receive small monthly pensions and own their own homes.

137 Christos receives some income from rental properties but is not clear what the amount is or whether it is significant.

138 In addition to her own home, Georgia has some additional properties. It is not clear what income Georgia derives from her properties.

139 In addition to owning her own home Evangelia derives some income from olive groves and the related olive cooperative. The extent of this income is not clear.

140 The evidence regarding the beneficiaries' financial position was vague. Christos was unable to explain the differences in his savings which he said was €60,000 in December 2012 and yet at trial he estimated the savings to be €30,000. On the whole, I am satisfied that the beneficiaries' financial situation is very modest.

141 The Estate is valued at approximately $317,000 made up of cash. If legal costs are deducted, counsel agree that the value of the Estate is approximately $217,000.

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

142 I will not repeat the extent of the plaintiff's health issues, save to say that they are sufficiently serious to stop him from returning to work.

143 The next of kin all have some medical problems which appear to be age related.

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

145 Theodosis did not in a financial sense contribute to Nikos' estate. Nikos' estate was made up of his inheritance from Malamo. However, Theodosis contributed to Nikos and his family's welfare. I will not repeat the matters which I have already canvassed about Theodosis' contribution to Malamo and Nikos from approximately 1992 to the middle of 2006.

146 Mr Bolkas submits that the contribution made by Theodosis to Malamo and Nikos' welfare was not as significant as Theodosis would like the Court to believe. It is submitted by the defendant that Theodosis could not drive Nikos home when he ran away from home prior to 2000 as Theodosis did not have a car. Theodosis agreed that he did not personally drive the deceased home prior to 2000 but that he was the person who was contacted and was usually responsible for organising Nikos' return home. The evidence suggests that Nikos visited other people when he ran away from home but that these people would contact Theodosis and it was ultimately Theodosis' responsibility to return Nikos home.

147 In his evidence under crossexamination, Theodosis conceded that after 2000 he only drove Nikos home on two occasions[80] and that Nikos did not visit his home when he ran away after 1995.[81]

148 I am satisfied that Theodosis significantly contributed to Nikos' welfare after Kostas' death in 1992 to the middle of 2006. Even though Nikos was in care from April 2005, Theodosis was the main if not only person who was not employed, such as Atilla, to contribute to Nikos' welfare. Theodosis organised for Nikos to receive a weekly income. He went to Nikos' home in Noble Drive, Epping with Nikos to collect his belongings and to clear the yard and collect mail. Theodosis commenced buying Nikos Greek food when he was at Brunswick Lodge. Theodosis took Nikos to the bank and took him to buy clothes. He took phone calls from Nikos and tried to explain to Nikos why he could return to Noble Drive.

149 Significantly, Theodosis went a step further and acted as an advocate for Nikos after Malamo's death. It should be recalled that in this period Theodosis had a serious work injury which reduced his working hours to 4 hours. He, along with Angelo, went to their local MP on Nikos' behalf. Theodosis wrote a lengthy, carefully thought out letter to the OPA. Theodosis, with Angelo, met with representatives of the OPA and Nikos' administrator, Flinders Trustees, on 9 August 2005 to discuss the handling of Nikos' affairs and with Mr McGee of the OPA to ask if Nikos could be returned to his Epping home.

150 After Malamo's death Theodosis took Nikos to local parks and churches, albeit only in the period when Nikos lived in Brunswick Lodge. Nikos moved from Brunswick Lodge to a facility in Heidelberg in December 2006.[82]

151 I will not repeat what I have said in relation to the period from the middle of June 2006 until Nikos' death. The evidence is clear that Theodosis had little contact with Nikos in that period.

152 The defendant submits that the contribution made by Theodosis towards Nikos' welfare "while significant at times was episodic and not characterised by the degree of consistency and devotion that would elevate the plaintiff's contributions to the deceased's welfare beyond what Harper J in Schmidt v Watkins described as "acts of kindness or consideration".[83] Further, the defendant submits that there was an absence of compelling evidence of the relationship between Theodosis and Nikos "of the type of family warmth and intimacy which has led the Court to find a moral responsibility under s 91 of the Act in circumstances such as exist in this case.[84] The defendant submits that the facts in Unger v Sanchez[85] as found at paragraphs [80] to [84] and [101] are not the same as in the present case.

153 The passages referred to by the defendant in Unger v Sanchez describe how the Court found that in effect the relationship that existed in that case between the plaintiff and the deceased was akin to the relationship of an adult child and his or her elderly parents, in the latter years of their life. At [81] Kaye J described the attention the plaintiff gave to the deceased and the deceased's husband as being "marked by an extraordinary degree of devotion and sacrifice. The plaintiff regularly visited each of them on a daily basis, took them to outings, attended to their needs and became their primary source of company and comfort". Without labouring over the facts in Unger v Sanchez, what is salient is that the plaintiff in that case was a neighbour living three doors away, and during the last years of the deceased and the deceased's husband's lives, the plaintiff adopted the role of carer and guardian to them both and during that period, the plaintiff formed a close relationship with them, so that they regarded her as their adopted child. In Iwasivkas' case, the plaintiff had from 11 years of age lived with the deceased for some years and even after she ceased living with the deceased continued to visit the deceased, sometimes staying with her. Hansen J found that the true characterisation of their relationship was "that of mother and daughter or as close to that as it may be".[86]

154 It cannot be said, nor was there any submission on behalf of Theodosis, that his relationship with Nikos was akin to that of brothers or son and mother with Malamo. It was a relationship which, as I have said, must be seen in the context of Nikos' needs and demands due mostly because of his mental health problems and disabilities, along with Malamo's needs which arose upon the death of her husband and Theodosis considering himself as the only family member whose obligation it was to be there to assist and meet their needs. In this case the fact that Theodosis and Nikos were cousins had a special significance. It created for Theodosis a belief that he had a duty to care for Nikos and Malamo, especially after Kostas' death in 1992. Further, Malamo, friends and even the beneficiaries had an expectation that Theodosis would assist Nikos and Malamo. There was no evidence before the Court that Theodosis did not provide assistance when required to or asked by Nikos or Malamo or any other person who knew Nikos. Theodosis' contribution to Nikos' life extended over a significant period of time.

155 Dealing with Nikos over the relevant period, in what were more often than not crisis-type situations or requests for help, could not have been easy for Theodosis. I am satisfied that Theodosis' involvement and contribution to Nikos' family was significant over a significant period in time in what were difficult personal circumstances for Theodosis and dealing with a challenging individual such as Nikos. The ongoing care and support of an individual with the challenging behaviours demonstrated by Nikos cannot be underestimated.

Any benefits previously given by the deceased to any person or to any beneficiary not applicable

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

Any liability of any person to maintain the application

The character and conduct of the applicant or any other person

159 There is no evidence of disentitling conduct by Theodosis or the beneficiaries.

160 There was evidence before the Court that the beneficiaries considered Theodosis should receive a share of Nikos' estate. In Georgia's affidavit she considers Nikos' estate should be divided in four parts, with one share passing to Theodosis and his brothers. Christos' evidence was that he told his sisters to "give him something, he is one of our brothers".[87]

161 There was no real relationship between the beneficiaries and Nikos. Evangelia and Georgia say they spoke to Malamo regularly over the phone. When Malamo asked her sisters if they would care for Nikos after her death, they declined. None of the beneficiaries came to Australia to see their sister or Nikos after Kosta died or when Malamo was ill.

162 In my view, having regard to all the relevant circumstances, Nikos had responsibility to make provision for proper maintenance and support of Theodosis. The relationship between Theodosis and Nikos and all its attendant circumstances was such as to warrant recognition by Nikos.

163 Nikos having failed to make any proper provision for Theodosis, failed to discharge his responsibility in the sense in which that has been explained in the authority.

164 Hanson J in Iwasivka v the State Trustees Ltd 49 205 VSC 323 at 96 said:

In determining the nature and the amount of the provision that the deceased as a wise and just testatrix should have made in satisfaction of a moral duty to the plaintiff in light of current community standards, I have regard to all the circumstances. And I do so without any consideration of rewarding the plaintiff for her past kindnesses, support and company of the deceased. The question is what a wise and just testatrix ought to have done in the circumstances, approaching the question as indicated in the cases referred to earlier.

165 I will not repeat the facts concerning Theodosis' health and financial position. I take account of those matters including the fact of his nest egg of $213,000 and receipt of a pension.

166 Theodosis is unlikely to return to work, he requires dental work and ongoing physiotherapy which he cannot afford, it is likely that he will need to use some of his savings to meet his medical expenses. Theodosis is only 51 years of age and gave evidence that his home and car are in need of repair. No submissions were made on behalf of Theodosis or the defendants as to what would be an appropriate amount of provision for Theodosis. The difficulty of course is that the estate in real terms once costs are removed, is worth approximately $217,000. Having regard to all the circumstances of this case and the matters referred to in s 91(4)(e) to (p) in my opinion, provision should be made for Theodosis by providing a legacy of $150,000. That will provide him with an amount to enable him to make the necessary repairs to his property, undergo the dental work and continue with his physiotherapy. I consider that to be conservatively assessed as a minimum which Nikos should have provided.

167 The order will be that the estate of the deceased be administered on the basis that out of the estate there be paid a legacy of $150,000 to the plaintiff. Subject to anything counsel may say there will be the usual orders for costs and I will hear the parties as to the precise form of the orders to be made.

[1] Affidavit of Theodosis Moussageas sworn 31 January 2013, exhibit TM-18.

[3] Collicoat v McMillan [1999] 3 VR 803; Allan v Allen [2001] VSC 242 (25 July 2001); Blair v Blair [2002] VSC 95 (4 April 2002); Re Carn; Moerth v Moerth (No 1) [2011] VSC 176 (4 March 2011 - one applicant was successful); Hyatt & anor v Covalea [2011] VSC 334 (8 August 2011); Greely & ors v Greely [2011] VSC 416 (31 August 2011); Youn v Frank & Ors [2011] VSC 649 (16 December 2011).

[4] Costigan v Norton [2005] VSC 208 (11 November 2005); White v Muldoon [2006] VSC 204 (8 June 2006); Tavra v Petelin & anor [2011] VSC 359 (8 August 2011).

[5] McKenzie v Topp [2004] VSC 90 (30 March 2004); Quinn v Robertson [2009] VSC 245 (10 June 2009); Robertson & ors v Koska [2010] VSC 134; Paola v State Trustee Ltd [2012] VSC 158 (26 April 2012).

[6] Eins v Kammerhofer [2004] VSC 417; Re Sitch [2005] VSC 308; Carter v O'Brien [2007] VSC 21; Sinclair v Forsyth [2008] VSC 250, upheld by the Court of Appeal in Forsyth v Sinclair (No 1) [2010] (20 February 2010); Re Watchorn; Allen v Huntley [2011] VSC 175; Estrella v McDonald & ors [2012] VSC 62.

[7] Coller v Coller & ors [1999] VSCA 11; Draskovic v Bogicevic [2007] VSC 36.

[8] Whitehead v State Trustees Ltd [2011] VSC 424. (This decision was upheld on appeal: State Trustees Limited v Bedford (No 2) [2012] VSCA 319)

[9] Sellers v Hyde [2005] VSC 382.

[10] Subasa v State Trustees Ltd [2007] VSC 399.

Plaintiff v Defendant

At a glance

Court

Decision date

Before

Source

Judgment (262 paragraphs)

Parties

Legislation Cited (1)