Plaintiff v Defendant

2 The plaintiff was represented by Mr T Messer of counsel. Shortly before the trial of the proceeding, the defendant's then solicitor obtained leave, from an Associate Justice, to cease to act as the solicitor for the defendant. On the hearing of the proceeding before me, the defendant was accompanied by an acquaintance, Ms Anne Moore. The defendant requested that Ms Moore be entitled to represent him at the hearing before me. That course was not opposed by Mr Messer.

3 Upon questioning her, Ms Moore satisfied me that she had sufficient understanding of the nature of the application by the plaintiff, and of the processes involved. Ordinarily, a court should only permit a lay 'advocate' to appear as a McKenzie friend[1] in a case where there are special circumstances. The relevant principles, relating to the grant of such leave, have been conveniently stated by the Full Court of the Supreme Court of South Australia in Giancaspro v SHRM (Australia) Pty Ltd[2]. In view of the nature of the dispute in the case, and, in particular, the difficult relationship between the plaintiff and the defendant, I considered that it was appropriate to give leave to the defendant to permit Ms Moore to act on his behalf.

4 In the upshot, Ms Moore was of substantial assistance, both to the defendant and to the court, at the hearing. At the conclusion of the hearing, I commended her for the assistance which she provided, and for facilitating the hearing of the application by her participation in it.

5 The plaintiff and the defendant each gave evidence, but they did not call any witnesses in support of their respective cases. The plaintiff and the defendant are each, regrettably, very hostile towards each other. It appears that in the period preceding their mother's death, their relationship deteriorated significantly. The evidence which each of them gave was coloured by the strong feelings of grievance which they each harbour towards the other.

6 Nevertheless, during the hearing, it emerged that there are a number of common facts in the case. In the end, the factual issues, that I need to determine, while important, are relatively few in number. It is convenient, first, to set out the common facts in the case before turning to those issues.

7 The plaintiff was born in 1968, and the defendant, his younger brother, was born in 1971. They have an older sister, Liliana. She has lived in Italy for some time, and she does not make any claim on the estate of the testatrix.

8 The parents of the plaintiff and the defendant migrated to Australia from Italy when the plaintiff was approximately one year of age. A short time after their arrival in Australia, the testatrix and her husband Antonio ('Antonio') purchased their home in Charles Street, Footscray, in which the family lived for some time. The plaintiff's father, Antonio, was a welder. The plaintiff described his early years as normal happy family life.

9 In the early 1980s, the family returned to Italy for two years. The testatrix and Antonio sold the Charles Street property to fund that trip. While they were in Italy, Liliana married, and (apart from visits to Australia) she has remained there since. It was common ground in the proceeding that the parents spent most, if not all, of the proceeds of the sale of the Charles Street property on living expenses while the family was in Italy.

10 After a couple of years, the family returned to Australia. Initially, they lived in Adelaide, where the plaintiff and the defendant continued their education. The family then returned to Melbourne. They initially lived in rented accommodation in Maidstone, and then they rented the house in Charles Street, Footscray, in which they had previously lived.

11 The plaintiff undertook, but did not complete, Year 11 in secondary school. After he left school, he commenced and completed an apprenticeship as a jeweller. He remained in employment as a jeweller for the next 15 years, until the breakdown of his marriage in 2008.

12 There was some conflict in the evidence as to when Antonio passed away. The most reliable evidence is that he died in 1993. The plaintiff stated that he married his wife in 1990, a short time after his father died. However, it would appear that in that respect he was confused about the dates. I should interpolate that the plaintiff was not a reliable historian in relation to dates and the like. In any event, after the plaintiff married, he and his wife remained living in the Charles Street home for a period of time. While they were living there, they purchased a house in Nicholson Street, Altona, which they leased to a tenant. After approximately one year, they left the Charles Street premises, to live in their Nicholson Street home.

13 In the meantime, the defendant remained at home with the testatrix. He left school at the age of 16, and commenced work as an apprentice tailor with Travellers Apparel. He completed the period of apprenticeship, but he did not complete the training which he was required to undertake at trade school.

14 In 1994, after the plaintiff and his wife had moved out of the Charles Street house, the defendant and the testatrix purchased the Robbs Road property. They became registered proprietors of the property as tenants in common in equal shares. The purchase price of the property was $90,000. A deposit of $10,000 was paid, and the balance of $80,000 was borrowed from the Commonwealth Bank and secured by a mortgage. That loan was paid off within a period of about two years. A significant issue in the case concerns whether the defendant paid the whole, or part, of the purchase price of the Robbs Road property.

15 Allied to that is the question of the extent to which the defendant has been employed during the last 25 years. In his evidence, the defendant stated that he was employed by Travellers Apparel for six or seven years, which would mean that he finished work with that organisation in about 1994. Thereafter, at some stage in the ensuing years, he worked for a couple of years driving water trucks as an employee of a friend, who had a business entitled 'All Four Seasons'. At some stage in the intervening years, he also worked for a period of about eight months as a landscape gardener. Subsequently, he also worked for about two years as a builder's labourer for Permak. The defendant was unable, in his evidence, to be specific as to when he held those periods of employment.

16 As I stated, the plaintiff and his wife, having lived at the Charles Street home for a period of time, moved into their own house in Nicholson Street, Altona. They had two children, who are now aged 22 years and 19 years. In due course, the plaintiff and his wife purchased a further house in Roser Drive, Altona Meadows. The purchase of that house was financed, in part, by a mortgage loan. At some stage, the plaintiff and his family moved from the Nicholson Street home to the Roser Drive home.

17 The plaintiff's marriage broke down in 2008. As a result of a settlement in the ensuing Family Court proceedings, the plaintiff's wife became the sole proprietor of the Nicholson Street home, and the plaintiff became the sole proprietor of the Roser Drive property. The plaintiff lived in that property, alone, for a couple of years. However, by then he had ceased to work. In evidence he told me that, when his marriage broke down, he became very depressed. He has not been able to work since. Ultimately, the Roser Drive property was required to be sold, in order to pay out the mortgage loan to the bank. As a result of that sale, the plaintiff ended up with approximately $70,000.

18 The fate of that sum of $70,000 was the subject of some evidence in the case. It would seem, from the evidence of both the plaintiff and the defendant, that the plaintiff squandered that sum, after he had returned to live with the testatrix in the Robbs Road property. The plaintiff, when questioned by Ms Moore, revealed that he had 'just spent it on stupid things for the kids, for myself, or whatever on just every day'. He stated that he could not say 'no' to his children, and that he had indulged them. In his evidence, the defendant confirmed that, when the plaintiff started living at the Robbs Road property, he was purchasing items such as computer boxes and 'new stuff'. The defendant disputed that those items were purchased for the plaintiff's children, from whom, according to the defendant, the plaintiff was then estranged. The relevant point of that evidence is that when the plaintiff commenced living with the testatrix (and the defendant) after the sale of the Roser Drive property, he had a not insignificant amount of cash, which he squandered quite fruitlessly.

19 The evidence indicates that before Antonio's death, the testatrix had, from time to time, done some (albeit limited) work as a kitchen hand. However, she does not seem to have worked after Antonio died. She was then in receipt of a widow's pension. The testatrix, for some time, did not enjoy robust health. In particular, in the period leading to her death, she suffered significant ill health. She underwent two heart operations. After that, in the last few months of her life, she was required to have dialysis treatment. I shall return to that aspect of the case later.

20 In the meantime, the plaintiff and the defendant continued to live in the Robbs Road home with the testatrix. However, in the last year of the testatrix's life, significant difficulties appear to have arisen. Some months before the testatrix's death, an intervention order was taken out against the plaintiff, requiring him to leave the home. The circumstances leading to the making of that order, and the reasons for it, are in dispute, and are an issue which I shall discuss further. When the plaintiff left the Robbs Road property, he was homeless, and he lived in his old motor vehicle. After a couple of months, he returned to the Robbs Road property. However, he was again excluded (presumably by another intervention order) from remaining in the home, and he left again. He said that at the time of his mother's death, he was then 'living on the streets'. Once again, the circumstances in which, and the reasons why, the plaintiff was again excluded from the Robbs Road property, are in issue.

21 As I stated, since the plaintiff was required to leave the Robbs Road property, he was, effectively, homeless. Initially, he lived in his vehicle. In recent months he has resided in a rooming house in Maidstone. He receives a New Start Centrelink allowance which, with rent assistance, amounts to approximately $600 per fortnight. He pays rent of $140 per week. Unfortunately, he is required to vacate the Maidstone premises in the near future, since they are to be renovated. He does not have any assets at all. Although he is a qualified jeweller, he has not worked in that trade for at least seven years. He stated that he became severely depressed when his marriage broke down, and he is currently receiving treatment for that condition.

22 In cross-examination, the plaintiff agreed that when his father died, he received a gold ring which belonged to his father. He described it as weighing 100 grams, and as being 'pretty bulky and pretty big'. It has two small diamonds. Initially, in cross-examination, the plaintiff valued the ring at $10,000 to $15,000, but he hastily added that that valuation was 'for insurance purposes', and that, for retail purposes, it is worth about $5,000. The plaintiff's evidence, as to how that ring came into his possession, was unsatisfactory and unpersuasive. However, in any event, it appears that that ring is still in his possession.

23 Apart from his interest in the Robbs Road property, the defendant does not have any other assets. As I have already noted, apart from in his early years, the defendant does not have a history of regular employment. He is in reasonable health, although he stated that, because of the family stresses of recent years, he has suffered diverticulitis.

24 The defendant had a defacto partner, who lived with him, and the testatrix, in the Robbs Road home. They have a nine year old son. At some stage, the relationship broke down, because the defendant insisted on staying in the Robbs Road home to act as a carer for the testatrix. In the latter years of the testatrix's life, the defendant assumed the role as the carer for her. In that capacity, he received a carer's pension of about $900 per fortnight. Since the death of the testatrix, he has received a New Start Allowance of approximately $500 per fortnight.

25 As I have already stated, the sole asset of the testatrix's estate was her interest, as a tenant in common in equal shares, with the defendant, in the Robbs Road property. That interest was valued, for probate purposes, at $250,000. The defendant was unable to explain how that valuation was made, although, presumably, it reflected the value of the property for rating purposes. The testatrix also left some jewellery, which the defendant permitted his sister Liliana to have. At the date of her death, the testatrix had approximately $8,000 in her bank account. That money was spent on her funeral. In fact, the defendant stated that he himself also had to contribute approximately $1,000 towards the funeral expenses.

26 As I stated, in the context of the facts that I have just recited, three principal factual issues arise, which are relevant to the claim made by the plaintiff. Those issues, in chronological order, are the following:

(1) The amount and extent of financial contribution made by the defendant to the purchase of the Robbs Road property.

(2) The respective contributions made by the plaintiff and the defendant to the welfare of the testatrix.

(3) The circumstances in which the plaintiff was excluded from the Robbs Road property in the period leading to the testatrix's death.

Contributions to the purchase price of the Robbs Road property

27 In his evidence, the defendant stated that he paid the whole of the purchase price of the Robbs Road property. He said that he paid a deposit of $10,000, and he borrowed the balance of the purchase price, of $80,000, on a mortgage loan from the Commonwealth Bank. He said that he repaid that loan from his earnings over the next two years.

28 The defendant stated that when his father, Antonio, died, his employer, Toyota, gave his mother a cheque for approximately $30,000. It would seem that that payment was an 'ex gratia' payment to a long standing employee. However, the defendant stated that that money was used by the testatrix on some trips which she made to Italy to visit her daughter.

29 The defendant was cross-examined in some detail about his employment history. That cross-examination was directed to demonstrating that the defendant could not have had sufficient funds to pay for the whole of the purchase price of the Robbs Road property.

30 The defendant was employed by Travellers Apparel for a period of approximately six years. In re-examination, his income tax return, for the financial year ending 30 June 1991, was tendered, revealing a taxable income of $12,400 for that year. A notice of income tax assessment for the financial year ending 30 June 1993 revealed that the defendant, for that year, had a taxable income of $18,259. As I have stated, it appears that, after the defendant ceased his employment with Travellers Apparel, he has not held significant other employment in the ensuing years. He worked for All Four Seasons for a couple of years, but he was unable to recall when that period of employment took place. He was also unable to recall when he worked as a landscape gardener. He confirmed that apart from that work, and a more recent period of employment with Permak, he otherwise has not been employed.

31 The plaintiff, in his evidence, stated that he understood that when his father died, Toyota paid a sum of $80,000 to the testatrix. In cross-examination, he agreed that the testatrix purchased a new motor vehicle for $24,000 in 1994. The plaintiff was very critical of the defendant's work record in his evidence, and he claimed that the defendant had hardly worked. However, the plaintiff's evidence, in that regard, was second hand, and was affected by a great degree of hostility to the defendant. He confirmed that the mortgage over the Robbs Road property was discharged quite early, and he conceded that the defendant might have contributed 'a bit' to the purchase price of the property.

32 In her will, the testatrix stated that the reason why she bequeathed all of her estate to the defendant was '... because he paid for all the mortgage in respect to the property 7 Robbs Road, West Footscray which was purchased jointly'. At common law, that statement, by the testatrix, would not be admissible as evidence of its truth, but rather only as evidence of the reason why the testatrix had bequeathed the whole of her estate to the defendant.[3] However, the position under the Evidence Act 2008 is different. Pursuant to s 63 of that Act, the statement, by the testatrix, is admissible, as an exception to the hearsay rule, as evidence of the truth of its contents. It is therefore part of the evidentiary material before me.

33 The resolution of this factual issue is not easy. Four facts, however, emerge from the evidence. First, it would seem that at the time of his death, Antonio, and the testatrix, did not have any significant assets. Secondly, on her husband's death, the testatrix did receive a substantial payment from Toyota. Thirdly, while the defendant was then in gainful employment, he was not, on any view, earning sufficient funds to enable him to pay for the whole of the purchase price of the Robbs Road property. Fourthly, on the other hand, throughout his life, the defendant displayed commendable loyalty and devotion to his late mother.

34 The plaintiff and the defendant disagreed as to the amount paid to the testatrix by Toyota on the death of her husband. However, it is not in dispute that the Robbs Road property was purchased not long after Antonio's death. In light of the rather limited earnings by the defendant at the time, and in view of the fact that the mortgage on Robbs Road was paid out so expeditiously, I would infer that the testatrix made a significant contribution to the payment of the mortgage debt. On the other hand, I am also satisfied that the defendant, by his conduct, has demonstrated, as I stated, significant dedication to the testatrix. In the end, the plaintiff did not dispute that the defendant had made some contribution to the purchase price of the Robbs Road property. That conduct by the defendant would be entirely consistent with the manner in which he related to the testatrix. The statement, by the testatrix, in her will, while not open to being cross-examined, does add some weight to the evidence of the defendant that he made a substantial contribution to the purchase price of Robbs Road.

35 Taking those matters into account, I am satisfied that the defendant made a reasonably substantial contribution to the purchase price of Robbs Road. I am not satisfied that he paid for the whole of the purchase price of the Robbs Road property. I am not able to quantify the amount of contribution made by the defendant to the purchase price of the Robbs Road property. However, I am satisfied that it was fairly substantial.

The contributions of the plaintiff and the defendant to the welfare of the testatrix

36 In his evidence, the plaintiff stated that when he commenced work as an apprentice jeweller, he used to contribute to the household's expenses, and that he also assisted with a number of chores around the house, such as cleaning, shopping and cooking. Subsequently, after the breakdown of his marriage, when he lived with the testatrix and the defendant in the Robbs Road house, he would again contribute to the household chores, including gardening, cooking, cleaning and shopping. He said that he would drive his mother to do some shopping, to attend medical appointments, and to visit her friends. He said that, in particular, he contributed by purchasing food for the household. He said that he would ensure that the refrigerator was fully stocked with food. He also claimed to have helped the respondent to select the Robbs Road property when it was purchased in 1994.

37 The defendant gave short evidence in relation to that aspect of the case. He stated that when the plaintiff lived at the Robbs Road property, he refused to provide any financial assistance, when he was requested to do so.

38 The plaintiff's evidence, as to this aspect of his case, was not persuasive. I accept that when he returned to the Robbs Road property, he did some tasks around the house, which were certainly no more than could be expected of him, given that he was being provided with free accommodation. On the other hand, as I have already noted, when the plaintiff returned to the Robbs Road property, he had a substantial sum of money from the proceeds of the sale of his Roser Drive house. On his own admission, he squandered most of that money, rather than using it for the purposes of the day to day household expenses of the testatrix.

39 On the other hand, the evidence reveals that the defendant did provide substantial support and assistance to the testatrix. In particular, after Antonio died, the defendant stayed with his mother and cared for her. It would appear that he did so to the detriment of the relationship with his defacto partner. The defendant stated that he assisted to pay for the funeral of his father, although, on that aspect of the case, I have some reservations, given the defendant's then limited financial means. When the testatrix was gravely ill in her last months, the defendant took her to hospital, learnt how to administer the dialysis treatment to her at home, and provided that treatment to her on a daily basis. There was no suggestion in the evidence of the plaintiff that the defendant was other than a most devoted and caring son to the testatrix.

The plaintiff's exclusion from the Robbs Road property

40 The evidence, relating to the circumstances in which, and the reason why, the plaintiff was excluded from the Robbs Road property, is conflicting, and difficult to reconcile. The plaintiff stated that he was excluded from the property because 'all of a sudden' the defendant did not want him there, and that he caused an intervention order to be taken out against the plaintiff. In cross-examination, he stated that in fact it was his sister who contacted the police, and he claimed that she had been influenced by untruths told to her by the defendant. He said that he did not attend the testatrix's funeral, because he was living on the street, and he was not told that the testatrix had died until after the funeral had taken place. He said that one or two months before his mother died, he met her in the street and spoke to her. The testatrix was very upset by the refusal of the defendant to permit the plaintiff to reside at her home.

41 In his evidence, the defendant stated that he had become concerned about the conduct of the plaintiff towards the testatrix. He said that when he would go out, his mother would be in a calm state, but when he returned, she would be trembling and upset. He said that he told his sister of the problem, and that she came to the Robbs Road property, and witnessed with her own eyes what was occurring. Accordingly, Liliana telephoned the police and had the plaintiff removed from the house.

42 As I stated, it is difficult to reconcile the conflicting accounts given by the plaintiff and the defendant. The accounts of both witnesses, and particularly the plaintiff, were marked by a strong undercurrent of hostility towards each other. Based on the evidence, I am unable to draw any conclusion as to how, or why, the plaintiff was excluded from the Robbs Road property, other than that it occurred in circumstances in which there was clear hostility between the two brothers. In those circumstances, I am not satisfied that the plaintiff engaged in any particular conduct towards the testatrix, which would be sufficient to disentitle him to a claim on her estate.

43 I also accept that, having been excluded from the Robbs Road property, the plaintiff found it particularly difficult to remain in contact with his mother. I expect that some of that difficulty was also the result of the plaintiff's then lifestyle. However, the fact that the plaintiff had little contact with the testatrix, in her last months, is not a factor that, I consider, should count against him in determining the claim that he makes in this proceeding.

44 Mr Messer, on behalf of the plaintiff, placed significant emphasis on the impoverished circumstances of his client at the date of the testatrix's death and as at the present date. As he stated, the plaintiff is unemployed, has no assets, survives on unemployment benefits, and has no stability of accommodation. Mr Messer submitted that the plaintiff thus has a 'clear and compelling' need for proper provision from the estate. Mr Messer also contended that the plaintiff had made a contribution of a 'good and devoted' son to the welfare of the testatrix, and that he had not been guilty of any disentitling conduct.

45 Based on those propositions Mr Messer submitted that the moral duty of the testatrix required her to make provision out of her estate in favour of the plaintiff. He submitted that the amount of such provision should be one half of the residuary estate of the testatrix.

46 In response, Ms Moore submitted that the plaintiff had made no contribution to the welfare of the testatrix, notwithstanding that his mother was a widow for almost twenty years. He had already received a significant benefit from the testatrix, comprising the valuable ring belonging to his father, Antonio. Ms Moore submitted that the testatrix had been 'very fair' to the plaintiff, by providing him with free accommodation in her home for a number of years. On the other hand, the defendant had assumed the sole responsibility for the care for the testatrix, notwithstanding that, by doing so, he had damaged his relationship with his defacto partner. The defendant had resided with the testatrix throughout his life, and he had made a significant financial contribution to the purchase of the Robbs Road property.

47 The testatrix died before the commencement of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, which introduced a number of amendments to Part IV of the Administration and Probate Act 1958. Accordingly, the plaintiff's claim is to be determined by the provisions of that Part before those amendments came into effect.

48 The claim made by the plaintiff, in this case, raises two questions for the purposes of s 91 of the Act, namely:

(1) Whether, at the date of her death, the deceased had a responsibility to make provision for the maintenance and support of the plaintiff.

(2) If so, what is the amount of provision that should be made, by order of the Court, for the proper maintenance and support of the plaintiff.

49 It is well settled that those two questions are determined by reference to the test whether a wise and just testator would have thought it his or her moral duty to make an appropriate testamentary disposition in favour of the plaintiff. That test, first espoused by Salmond J in Re Allen (deceased); Allen v Manchester,[4] was quoted with approval by the Privy Council in Bosch v Perpetual Trustees Co Ltd,[5] and has been subsequently approved and adopted by the High Court in a number of decisions.[6] In Blair v Blair,[7] the Court of Appeal held that the same test continued to be applied in determining whether, under s 91 (as amended in 1997) a deceased had a responsibility to make adequate provision for the proper maintenance and support of the plaintiff, and, if so, of the amount of such maintenance and support that should be ordered in favour of such a plaintiff.

50 In 1994, in Singer v Berghouse (No 2),[8] the majority of the High Court expressed the view that resort to the moral duty of a testator was neither necessary nor helpful. However, in the court's subsequent decision in Vigolo v Boston & Ors,[9] Gleeson CJ[10] and Callinan and Heydon JJ, in their joint judgment,[11] expressed support for the retention of the test of the moral duty, to be determined by reference to the standards of the hypothetical wise and just testator. On the other hand, Gummow and Hayne JJ[12] supported the approach of the court in Singer, and considered that it was preferable to discard reliance on shorthand expressions such as 'moral duty'. Subsequently, in Lee v Hearn,[13] the Court of Appeal, referring to Vigolo v Boston, expressed the view that the concept of a moral duty continued to be relevant to determining the question, under s 91, whether a deceased owed a responsibility to the applicant to make provision for the applicant's maintenance and support.[14]

51 In considering whether a wise and just testator, in the circumstances, would have considered it his or her duty to make provision for the maintenance and support of the applicant, and if so, the amount of provision that should be ordered, the court is required to take into account the eleven matters specified in s 91(4)(e)-(o) of the Act, and, in addition, to have regard, under s 91(4)(p) to 'any other matter the Court considers relevant'.

52 In determining the test by reference to the moral duty owed by the hypothetical wise and just testator, it is important to bear in mind that, ordinarily, an individual enjoys a fundamental freedom of testamentary disposition. The courts have repeatedly emphasised that Part IV of the Act is not a warrant for a court to rewrite the will of a testator to accord with the court's own individual view as to what provision the testator should, or might, have made in favour of a plaintiff, or anyone else.[15]

53 It is for that reason that it has been emphasised that the responsibility of the testator, postulated by s 91(1) and (3), is to make 'adequate provision for the proper maintenance and support' of the applicant. In Pontifical Society for the Propagation of the Faith v Scales[16] Dixon CJ stated:

It has often been pointed out that very important words in the statutes are 'adequate provision for the proper maintenance and support' and that each of these words must be given its value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but also to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.[17]

54 The plaintiff is the adult son of the testator. For some decades, at least since the 1940s, it had been considered that an able bodied adult son was required to demonstrate some 'special need', or 'special claim', in order to succeed in a claim under Part IV of the Act.[18] That principle was, ultimately, repudiated by the Court of Appeal in Blair v Blair[19]. In that case, Chernov JA (with whom Nettle JA and Hansen AJA agreed) stated:

In my view, (the trial judge) did not err in rejecting the submission that, merely because he was an adult son of the testator, the respondent was required as a prerequisite to obtaining further provision out of the estate, to establish some special need or special claim on the estate. It is plain enough that s 91(4) - particularly paras (e), (f) and (h) - requires the court, in considering the jurisdictional issues, to take into account what could be described as the applicant's moral claims on the estate and his or her financial needs, but they do not elevate them to a 'special' status and do not require these matters to be established as a prerequisite to a successful application. ... [T]he provisions of s 91(4) draw no distinction between the applicant who is a son or daughter of the testator, and there is nothing in its paragraphs that suggests that an adult son must establish a special need or special claim before the court can exercise its discretion in his favour. On the contrary, it seems to me that, by stipulating the matters to which the court must have regard in determining the jurisdictional questions, the legislature has made it apparent that the court should not approach these matters with the predisposition contended for by the appellant.

55 In the present case, much emphasis has been placed on the alleged conduct of each of the plaintiff and the defendant towards the testatrix, and as to their respective 'desserts' in relation to her bounty. The conduct of both the named beneficiaries, and the claimant, is relevant to the questions raised by an application under s 91 of the Act. As Gibbs J stated in Goodman v Windeyer:[20]

The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances when deciding whether proper maintenance has been provided.

56 On the other hand, some conduct, by an applicant, may be such as to disentitle that applicant to a claim on the moral duty of the testator. The conduct, which is under consideration, is not to be viewed in isolation from the other factors which are germane to a consideration of the two questions raised by this application. Rather, the conduct alleged against the defendant must be considered in the context of, and relative to, other aspects of his claim, such as his need. That principle was expressed by Gibbs J in Hughes v National Trustees Executors & Agency Co of Australasia Ltd[21] in the following terms:

The question whether conduct is sufficient to disentitle an applicant to relief must depend not only the nature of the conduct itself, but also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision. The appellant has made out a strong case for relief. His conduct, although not meritorious, consisted in a failure to take positive steps to see and assist his mother rather than in any actual wrongdoing and was contributed to by the actions of the testatrix, which from his point of view were unreasonable and unfriendly. On balance, and having given careful consideration to all the circumstances, I have reached the conclusion that his conduct was not such as to disentitle him to relief.

57 The first question, then, is whether, at the date of her death, the testatrix had a responsibility to make a provision for the proper maintenance and support of the plaintiff. As I stated, that question is to be addressed by reference to whether a wise and just testatrix would have thought it her moral duty to make an appropriate disposition in favour of the plaintiff.

58 That issue is by no means easy of resolution in this particular case. On the one hand, the estate of the testatrix is quite small. It comprised, solely, of a one half interest in the home which she shared with the defendant, who owned the other half interest in the property. The defendant himself has a strong claim to provision from the testatrix's estate. He had made the Robbs Road property his home for almost two decades. As I have found, he made a substantial financial contribution to the purchase of it, and he had been a devoted and caring son to the testatrix. The defendant himself has few other assets apart from his own interest in the Robbs Road property, and the interest which was bequeathed to him by the testatrix under her will. In addition, he has had a limited employment record, and, at his age, his prospects for engaging in further employment must be problematic.

59 On the other hand, and notwithstanding those matters, the plaintiff has demonstrated a very strong and pressing need for financial support. After enjoying a quite successful life, he fell on hard times with the disintegration of his marriage. At the time of the testatrix's death, he was in particularly impoverished circumstances, living in his car, and surviving on unemployment benefits. The testatrix had, previously, recognised the plaintiff's need, by providing him with a roof over his head at the Robbs Road property.

60 The plaintiff may very well have been the author of his own misfortune, as Ms Moore submitted. However, that consideration does not negate or diminish his need for support. As Gibbs J pointed out in Hughes v National Trustees Executors & Agency Co of Australasia Ltd,[22] quoting the dissenting judge of Philp J in Re Hatte,[23] a wise and just testatrix's moral duty extends to providing assistance to 'lame ducks' amongst her offspring, provided they not be morally or otherwise undeserving.

61 The plaintiff might also be considered to be not particularly deserving. After the sale of his matrimonial home in Roser Drive, he wasted his cash assets. He did very little to provide any material or other support to the testatrix. On the other hand, as I have found, there is no evidence of disentitling conduct by the plaintiff.

62 The testatrix was well aware of the plaintiff's impoverished state, and, as I have noted, she recognised that need by providing him accommodation in her own home for some time before he was excluded from it in 2013. At the time of her death, he was homeless, destitute and unemployed. He had not worked since the failure of his marriage some five years previously. His prospects for a return to work, and for the rehabilitation of his dire circumstances, were poor. Without any material support, the plaintiff was at the time of the testatrix's death, and is, destined to a life of homelessness and poverty. In those circumstances, I am driven to the conclusion that a wise and just testatrix would have considered it her moral duty to make some meaningful provision for the maintenance and support of the plaintiff.

63 The small size, and constitution, of the testatrix's estate would complicate the question which confronted a wise and just testatrix in this particular case. Such a testatrix would, no doubt, have been reluctant to disturb the ownership of the Robbs Road property, or to place the plaintiff and the defendant in the position of being registered co-owners of that property. However, that consideration does not outweigh the pressing need of the plaintiff for provision, nor does it preclude the existence of the moral obligation of the testatrix to provide some support to the plaintiff out of her estate.

64 In those circumstances, I have reached the conclusion that the testatrix did have an obligation to make provision for the plaintiff's maintenance and support. In view of the bitter and hostile relationship between the plaintiff and the defendant, I do not consider that that responsibility extended to making a disposition in the form of a bequest to the plaintiff of part of the testatrix's interest in the Robbs Road property. Such a disposition would not be wise or just. In light of the strong enmity between the plaintiff and the defendant, it could not be expected that they would live together under the same roof. Further, in view of their bitter relationship, they could not be expected to share the rights and responsibilities of co-ownership of the same house, without coming into continuous conflict with each other.

65 Rather, in my view, a wise and just testatrix would have left a sum of money to the plaintiff to alleviate his straitened circumstances, by assisting him to afford appropriate accommodation and to pay for some of the necessities of life.

66 Clearly, the estate of the testatrix was insufficient to enable the provision to the plaintiff of a sum that would enable him to acquire his own home. I do not consider that the moral duty of the testatrix extended to the provision of such an amount. In particular, such provision would fail to take into account the responsibility of the testatrix to the defendant, in recognition of the defendant's needs and of his contributions and conduct towards her. Rather, I consider that the responsibility of the testatrix would require the provision to the plaintiff of a legacy in the sum of $70,000. Such a sum would provide to the plaintiff a buffer against his destitute circumstances. In particular, it would assist him to afford some basic accommodation, and to defray some of the cost of the daily necessities of life.

67 I am conscious that, in one form or other, the legacy will need to be paid out of the testatrix's interest in the Robbs Road property. For that reason, it will be necessary to charge the interest in the property, which has been bequeathed to the defendant, with the legacy. I would however be amenable to an application by the defendant for a stay for a reasonable period, to enable him to take appropriate steps to arrange the payment of the legacy.

68 The question arises as to the form in which the legacy, to which I have just referred, should be provided to the plaintiff. As I have already noted, the plaintiff told me that after his marriage failed, he became quite severely depressed. His demeanour, and responses, in the witness box were consistent with his evidence that he has been diagnosed as suffering from depression. In addition, as I have already noted, when he returned to live at the Robbs Road property with the testatrix, he quite rapidly dissipated the balance of the proceeds of the sale of his matrimonial home, by spending it in a most wasteful and improvident manner. That conduct by the plaintiff, together with his psychological state, and his current lifestyle, raise a real concern that, if the legacy were paid to the plaintiff as a lump sum, he may well squander it also.

69 In those circumstances, I have given consideration as to the appropriate form in which I should order that provision to be made in favour of the plaintiff from the estate of the testatrix, and, in particular, whether I should direct that the legacy to the plaintiff be placed on a protective trust for his benefit.

70 Section 96(2) of the Act provides that the court may, in making any order under Part IV, impose '... such conditions restrictions and limitations whether to prevent restrict or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise as it thinks fit'.

71 That provision has been construed, and applied, in a number of cases to empower the court to direct that a sum, ordered to be paid to an applicant under s 91 of the Act, be placed in trust for the applicant, in order to ensure that it is not dissipated wantonly.[24] In particular, in Borebor v Keane[25] Hargrave J made an order, under s 91, that provision be made for the plaintiff in the sum of $680,000, subject to a trust. His Honour directed that the defendant (as trustee of the estate) pay that sum to the Associate Justice who was the Senior Master of the Supreme Court for the benefit of the plaintiff, to be applied in accordance with directions given by his Honour.

72 In the present case, I am minded to make a similar order. However, I have not had the opportunity to canvass this matter with counsel for the plaintiff, and with the defendant or his McKenzie friend, and I shall permit each of them to address me in relation to this aspect of the case, before I pronounce final orders to that effect.

73 For the foregoing reasons, I have reached the following conclusions:

(1) The testatrix, Rosa Ranieri, had a responsibility to make provision for the proper maintenance and support of the plaintiff.

(2) Pursuant to s 91(1) of the Administration and Probate Act 1958, I order that such provision be paid to the plaintiff in the sum of $70,000.

(3) I shall hear from the parties on the following questions:

(a) The form in which the legacy should be paid to the plaintiff, and, in particular, whether it should be placed on a protective trust for his benefit.

(b) Whether I should grant a stay on the order to enable the defendant, as executor of the estate of the testatrix, a reasonable time to pay the legacy to or on behalf of the plaintiff.

74 Accordingly, and subject to hearing from counsel for the plaintiff and from the defendant (or Ms Moore on his behalf), I propose to make the following orders:

(1) Pursuant to s 91 of the Administration and Probate Act 1958, order that provision be made out of the estate of the deceased for the plaintiff in the sum of $70,000, subject to the trust established by paragraph 3 of these orders.

(2) Pursuant to s 97 of the Administration and Probate Act 1958, the burden of payment of the sum of $70,000, referred to in paragraph 1 of this order, is charged on the interest of the testatrix as tenant in common of the property at 7 Robbs Road, West Footscray (certificate of title volume 10077 folio 850).

(3) The defendant, as trustee of the estate, pay the said sum of $70,000 ('the fund') to the Associate Justice who is the Senior Master of the Supreme Court for the benefit of the plaintiff, to be managed on trust for the following purposes:

(a) to invest the fund for the benefit of the plaintiff;

(b) to apply the fund for the benefit of the plaintiff in accordance with the court's reasons for judgment in the proceeding; and

(c) in the event that the plaintiff dies before the fund and the earnings thereon are fully expended, the balance of such fund shall be paid or transferred to those persons who would be entitled according to the law of Victoria to receive his estate upon his death.

75 I shall also hear from the parties in respect of the question of costs.

[1] McKenzie v McKenzie [1971] P. 33.

[2] [2005] SASC 340; (2005) 93 SASR 32.

[3] Hughes v National Trustees Executors & Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 152 (Gibbs J).

[4] [1922] NZLR 218, 220-221.

[5] [1938] AC 463, 469.

[6] See for example Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 519 (Fullagar J), 527 (Kitto J); McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 571-2 (Dixon CJ and William J).

[7] [2004] VSCA 149; (2004) 10 VR 69.

[8] [1994] HCA 40; (1994) 181 CLR 201, 209 (Mason CJ, Deane and McHugh JJ).

[9] [2005] HCA 11; (2005) 221 CLR 191.

[13] [2005] VSCA 127; (2005) 11 VR 270, 274-5 [9] (Callaway JA), 286 [53]-[55] (Batt JA), 286 [57] (Buchanan JA).

[14] See also Forsyth v Sinclair [2010] VSCA 147, [61]-[66] (Neave JA).

[15] See for example Grey v Harrison [1997] 2 VR 359, 363 (Callaway JA); Stott v Cook (1960) 33 ALJR 447, 453 (Taylor J); Worledge v Doddridge [1957] HCA 45; (1957) 97 CLR 1, 20-21 (Kitto J); Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[16] [1962] HCA 19; (1962) 107 CLR 9, 19.

[17] See also Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476 (Lord Romer); McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 571 (Dixon CJ and Williams J).

[18] See for example Re Sinnott (deceased) [1948] VicLawRp 48; [1948] VLR 279, 280 (Fullagar J); Re Buckland deceased (No 2) [1967] VicRp 1; [1967] VR 3, 5 (Gillard J); Re Adams deceased [1967] VicRp 115; [1967] VR 881, 884 (Lush J).

[19] [2004] VSCA 149; (2004) 10 VR 69, 78 [20].

[20] [1980] HCA 31; (1980) 144 CLR 490, 498.

[21] [1979] HCA 2; (1979) 143 CLR 134, 156.

[23] [1943] St R Qd 1, 26.

[24] See for example In Re Liston [1957] VicRp 5; [1957] VR 50, 52 (Lowe J); In Re Wren deceased [1970] VicRp 58; [1970] VR 449, 454-5 (Smith J); Herszlikowicz v Czarny [2005] VSC 354, [176]-[177] (Hargrave J); Borebor v Keane [2013] VSC 35, [115]-[117] (Hargrave J); Carroll v Cowburn [2003] NSWSC 248, [17]-[18], [39] (Young CJ in Eq.).

[25] [2013] VSC 35.