Plaintiff v Defendant

(a) Teresa Brimelow ('the plaintiff') born on 6 May 1965;

(b) Salvatore Alampi ('the defendant') born on 12 September 1972; and

2 By her will dated 4 August 2014 ('the will'), the deceased appointed the defendant as the executor of her will and trustee of her estate. The deceased left her estate to the defendant, with no provision made at all for the plaintiff or Vincenzo Alampi. The deceased's reasons given in her will for failing to provide for two of her children was set out in clause 4 of her will as follows: 'I direct that I have not made any bequests to my children [the plaintiff] and Vincenzo Alampi as I have no meaningful relationship with them'.

3 Probate of the deceased's will was granted to the defendant on 2 April 2015.

4 At the final directions for the trial of this proceeding, the defendant conceded that, at the time of her death, the deceased had a moral duty to provide for the plaintiff's proper maintenance and support and that the deceased failed to make adequate provision for her proper maintenance and support.

5 With the jurisdictional questions conceded by the defendant, the question to be determined is the appropriate amount to provide for the proper maintenance and support of the plaintiff.

6 Part of the defendant's defence of the proceeding was that he had a competing financial need on the basis that he 'carries an injury' and has a mortgage. As a result of the defendant's affidavit evidence compared to his oral evidence, the details of which are set out in these reasons, ultimately the defendant informed the Court midway through the trial that he no longer pursued that defence.

7 The plaintiff seeks provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) ('the Act'), as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014.[1]

8 The amending legislation applies to this proceeding as it takes effect in relation to deaths occurring on or after 1 January 2015.

9 The amendments to the Act introduce a category based eligibility requirement that must be met in order for a claim to be made under the Act. An application for a family provision order may be made by, or on behalf, of an eligible person pursuant to s 90A(1) of the Act. Pursuant to s 91 of the Act, the Court may, on application under s 90A, order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.[2]

10 Certain applicants are required to satisfy the dependency requirements under s 91(2)(b) of the Act, however, the plaintiff, as a child of the deceased, is an eligible person under the Act and is not required to satisfy any dependency requirements.

Matters that must be satisfied before an order can be made

11 Pursuant to s 91(2) of the Act, the Court must not make a family provision order under s 91 of the Act unless it is satisfied that:

(b) at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

(c) the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person.

12 The distinction between 'adequate' and 'proper' in the traditional authorities and how they inter-relate still applies to the amending legislation as the word 'adequate' remains in ss 91(2)(d) and 91(4)(b) of the Act: the Court may only make an order for further provision in favour of the applicant where, inter alia, it is satisfied that the deceased failed to make adequate provision for the them. In Bosch v Perpetual Trustee Co Ltd Lord Romer stated:

The first thing to be noticed is that the powers given to the court only arise when any of the persons mentioned is left without adequate provision for his or her proper maintenance, which word will be used in this judgment where necessary as including education and advancement. The use of the word "proper" in this connection is of considerable importance. It connotes something different from the word "adequate". A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may by quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances. A father with a large family and a small fortune often can only afford to leave each of his children a sum insufficient for his "adequate" maintenance. Nevertheless, such sum cannot be described as not providing for his "proper" maintenance, taking into consideration "all the circumstances of the case" ...[3]

The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration.[4]

Factors that must be taken in to account in making a family provision order

13 In making a family provision order, s 91A(1) provides that the Court must have regard to:

(b) any evidence of the deceased's reasons for making the dispositions in the will; and

(c) any other evidence of the deceased's intentions in relation to providing for an eligible person.

14 Under the amending legislation, the test remains one of moral duty notwithstanding that regard must be had as to what the deceased provided in the will, stated in any reasons or intended in relation to providing for an eligible person.

15 It has always been the case that the courts have taken into account the terms of any expressions of the deceased in admissible form.[5] In respect of applications made where a deceased died after 20 July 1998, the Court may accept any evidence of the reasons of a deceased for making the disposition in his or her will (if any) and for not making proper provision for an applicant, whether or not the evidence is in writing. By mandating that the Court must take such expressions into account it is not intended that such evidence, by will or in other evidence, suddenly takes on some higher status. The weight to be attached to such statements will depend on the circumstances. Reasons can be shown to be incorrect or misconceived, which may enhance or boost the strength or defence of a claim.

Factors that may be taken in to account in making a family provision order

16 In making a family provision order, s 91A(2) provides that the Court may take into account:

(a) the nature of the relationship, including the length of the relationship, if relevant;

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries;

(d) the current and future financial resources, earning capacity and financial needs of the eligible person and any beneficiary;

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary;

(g) any contributions (not for adequate consideration) of the eligible person to building up the estate or to the welfare of the deceased or the deceased's family;

(h) any previous benefits to the eligible person or any beneficiary;

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;

(j) the liability of any other person to maintain the eligible person;

(k) the character and conduct of the eligible person or any other person;

(l) the effect that a family provision order would have on the amounts received from the deceased's estate by other beneficiaries; and

(m) any other relevant matter the Court considers relevant.

17 Pursuant to s 91(4)(a) and (b) of the Act, in determining the quantum of any provision, the Court must take into account the degree to which, at the time of death, the deceased had a moral duty to provide for an applicant and the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of an applicant.

18 In relation to adult children, pursuant to s 91(4)(c) of the Act, the Court must also take into account the degree to which the eligible person is not capable, by reasonable means, of providing adequately for his or her own proper maintenance and support. This is intended to limit claims by adult children who are not suffering financial hardship, however, the financial need of the applicant as well as any other competing claims on the deceased's bounty still needs to be considered in the context of proper maintenance and support.

19 In relation to all claims, pursuant to s 91(5)(a) of the Act, the amount of provision must not provide for an amount greater than is necessary for an applicant's proper maintenance and support.

20 What constitutes proper provision for the maintenance and support of an applicant involves a consideration of the station in life of the applicant, the age, sex, health and financial resources of the applicant, the size and nature of the testator's estate and the totality of the relationship between the applicant and the testator and the relationship between the testator and other persons who have legitimate claims upon his or her bounty.

21 In determining what is adequate for the proper maintenance and support of an applicant, the Court has regard to the necessities or needs of the applicant and his or her own capacity and resources for meeting them.[6] This also involves a consideration of 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. Thus, in determining this question, a balance must be drawn between the established claims of the named beneficiaries, the needs of the applicant, the size of the estate and the benefits provided to the applicant and others with legitimate claims upon the testator. The Court's function is not to ensure a fair distribution of the testator's estate or to achieve equality amongst various claimants.[7] The Court's role goes no further than making adequate provision for the proper maintenance and support of an applicant.

22 In the case outline, the parties agreed on the following matters:

(a) All of their father's estate passed by survivorship to the deceased;

(b) Over the years, the plaintiff resided with her parents for several periods of time;

(c) In around September 2014, the deceased fell ill and was diagnosed with cancer. She was admitted to hospital and during this period the defendant was listed as her next of kin and assisted with her care;

(d) During her illness, the deceased lived at her home and at the defendant's home;

(e) In January 2015, the deceased fell ill again and was admitted to hospital where she died on 10 January 2015;

(f) The plaintiff disputes the reasonableness of the funeral and mausoleum expenses and the costs to finalise a plaque;[8] and

(g) There is a factual dispute as to the nature and extent of the relationship that the defendant had with the deceased, in particular, the extent of the care from 2014 until the deceased's death. At trial, the plaintiff agreed that the defendant provided care to the deceased, especially after the deceased was diagnosed with cancer, and that he enjoyed a reasonably good relationship with the deceased.

23 The parties' case outline stated that there is a factual dispute as to the nature and extent of the relationship between the plaintiff and the deceased from at least September 2008 until her death. At trial, the defendant conceded that estrangement between the plaintiff and the deceased was not alleged, rather it was alleged that over the years their relationship was fractured or strained.

24 The plaintiff disputes the reasonableness of funeral and mausoleum expenses claimed as estate expenses by the defendant. This affects the defendant's assessment of $356,763 as the net value of the estate after the liabilities are paid. The plaintiff contends that the claimed amounts for these expenses were unreasonable and payment of the claimed amounts have not been proved by the defendant.

25 During the trial, other expenses claimed by the defendant as liabilities of the estate were matters of dispute or clarification.

26 The defendant asserted that the only asset of the estate is the deceased's home in Coburg, which he estimated at $775,000.[9] The value of the Coburg property was not disputed by the plaintiff.

27 During cross examination of the defendant, a further estate asset of $22,093 was revealed, which had not been included in his two affidavits filed in relation to the assets of the estate.[10] The further asset was $22,093 that the defendant received on behalf of the estate as a result of an insurance claim made by the estate. The claim was made as a result of a neighbour next door to the Coburg property accidentally driving through the adjoining fence and damaging the deceased's house. The claim was successful and the defendant received a cheque for $22,093 from the insurance company, which he deposited into a bank account said by him to be in the name of the estate.

28 Accordingly, the amount of $22,093 should be added as an asset of the estate, making its gross value $795,097.

29 In his affidavit sworn 11 December 2015, the defendant claimed that the likely net value of the estate is $356,763.77 based on liabilities amounting to $418,245.23 as follows: [11]

Settlement of proceeding of Vincenzo Alampi 184,000.00[12]

Grant of probate and initial Part IV proceedings 4,894.30

Henty's Lawyers (incl. one day for hearing) 22,000.00

30 The plaintiff did not contest that properly incurred funeral costs should be reimbursed from the estate and did not contest that the reasonable costs of their father's funeral and mausoleum costs constitute a liability of the estate.

31 The plaintiff did, however, contest the amounts claimed for the two funerals and the mausoleum. The plaintiff submits that the amount claimed should be discounted by half because of the defendant's failure to prove payment of these amounts.

32 In support of his assertion that he paid $72,348.66 for the funerals and mausoleum costs for his parents, the defendant relies on:

(a) an undated copy estimate from Tripodi Funerals Services Pty Ltd for funeral arranging fees for the deceased at $37,768 which includes $22,000 for a casket;

(b) a copy invoice from Mulqueen Funeral Services dated 20 August 2009 for $12,573.66 for his father's funeral; and

(c) a copy certificate of 'right of interment in mausoleum' dated 8 September 2009 issued to the defendant 'confirming that having paid $22,007' the holder is granted an exclusive right of interment for a mausoleum crypt in the Preston Public Cemetery.

33 The defendant also included copy receipts from the Preston Public Cemetery for a mausoleum at $22,007, burial fees of $787 and accessories of $1,914 in his exhibits to his affidavits sworn 21 July and 21 September 2015 but did not claim these last two amounts.

34 The defendant said that the deceased knew that the plaintiff and Vincenzo Alampi did not have the funds to pay for her funeral expenses or those of her late husband, and she told him that she would leave him extra money in her will so he could be reimbursed for those expenses. In her will dated 28 October 2011, the deceased left a pecuniary legacy of $40,000 to the defendant, which the deceased stated was to pay for her husband's funeral expenses, as well as 60 per cent of the residue, which the deceased stated was in recognition of the defendant's work in maintaining the deceased's property over her lifetime. There is no evidence as to how the deceased came to the view that $40,000 was the amount to be paid by the defendant in respect of Francesco Alampi's funeral. In her final will dated 4 August 2014, the deceased left the entire estate to the defendant with no mention of any funeral expenses.

35 The items referred to in the Tripodi Funerals document are described as estimates and included is an estimate of $22,000 for a casket. In cross examination, the defendant was shown photographs of caskets and he agreed the photographs were like the casket in which the deceased was buried. When told the price for the caskets in the photographs was $10,500 the defendant insisted that the deceased's casket cost $22,000. The defendant denied that the Tripodi Funerals document was a false document with an exaggerated estimate for the price of the casket.

36 At the end of the Tripodi Funerals document are the handwritten words 'paid in full' and underneath these words is an illegible signature. The document is also undated. The defendant did not produce an account or a tax invoice for the funeral services of Tripodi Funerals and did not call a representative from Tripodi Funerals to verify his position as to payment. The defendant's affidavit evidence sworn 11 December 2015 was that he paid for the funeral and burial expenses from a term deposit of $45,000. The defendant produced ANZ Bank statements for the term deposit for the period 27 September 2009 to 20 January 2015 during his re-examination seeking to establish payment or part payment of the Tripodi Funeral estimate. Those statements show that the term deposit was withdrawn sometime between 1 July 2014 to 20 January 2015.

37 The defendant also produced bank statements during his re-examination for another ANZ Bank V2 Plus account for the period 1 January 2013 to 8 December 2015. The statements show that on 20 January 2015, the sum of $37,687.90 was deposited into the account from an unidentified source and then $30,000 was withdrawn on the same day and transferred to an unidentified account which was not in evidence.

38 The defendant's oral evidence was that either three quarters or maybe $22,000 to $25,000 was withdrawn from his ANZ bank account to pay the estimate of $37,768 and the balance was paid by him in cash. He said the words 'paid in full' were written on the estimate before he paid the cash amount.

39 There is no withdrawal of funds of $22,000 to $25,000 from either of the defendant's ANZ Bank accounts.

40 The total of the Mulqueen Funeral invoice is $12,573.66. The copy invoice records that $11,000 has been paid, probably after 20 August 2009, and $1,573.66 remains unpaid. That amount remains unpaid but there was no evidence that Mulqueen Funeral is still demanding payment for that amount, which has been outstanding for seven years.

41 The copy receipt dated 20 August 2009 from Preston Public Cemetery and the certificate of 'right of interment in mausoleum' dated 8 September 2009 supports payment of $22,007 but no bank statements were produced to evidence the payment. The plaintiff did not object to the characterisation of the mausoleum as a funeral or estate expense, objecting only as to proof of payment.

42 There is no evidence, other than the copy invoices, that was produced by the defendant to establish the payment of these amounts. Proof of payment of the account could have been established by production of bank statements but the defendant did not do so.

43 Where proof of payment by the production of bank statements could have been provided by original contemporaneous documentary evidence and was not and where the defendant has been found not to be a credible witness for the reasons set out at [71]-[94], the Court cannot be satisfied as to the payment or the quantum of these accounts.

44 As the defendant has failed to produce such original documentary evidence of payment of these three amounts, the plaintiff's objections to the quantum of the claims is reasonable in the circumstances. In my view, the amount claimed by the defendant for funeral expenses and a mausoleum as a liability of the estate should be discounted by one half to $36,174.33 instead of the asserted amount of $72,348.66.

Upkeep of property, bills and rates and costs of plaque

45 In his affidavit sworn 11 December 2015, the defendant did not depose to any costs concerning the 'upkeep of property since 10/1/15', 'bills, rates and other estate expenses' or the 'anticipated costs to finalise plaque'. In re-examination, counsel for the defendant sought but was not granted leave to adduce new evidence concerning some of these items. This was because on three occasions prior to the proceeding being listed for trial, the parties appeared at the final trial directions and it was not contested that the evidence of the parties was by affidavit. By that stage the parties knew what case they had to meet. Nevertheless, the defendant filed a further affidavit three days before the trial, yet still did not include any of these items in his latest affidavit.

46 The only quantified claim in this category is an estimated claim for the plaque of $3,500, which is removed as a liability of the estate.

47 In his affidavit sworn 21 September 2015, the defendant claimed an amount for executor's commission at three per cent on the capital sum of $775,000. At trial, the percentage for the commission was reduced to one per cent being $7,750. The basis of the foreshadowed claim for commission was that his pains and troubles included dealing with the two claims for provision against the estate and his maintenance of the deceased's house.

48 The plaintiff contends that there should be no commission paid to the defendant as he has had the benefit of the deceased's property since her death, as well as the benefit of the deceased's pension since September 2014 until her death. The plaintiff contended that the defendant made withdrawals from the deceased's account for his own benefit. The defendant denied this saying that any withdrawals during that period were to pay the deceased's bills. No evidence was given in support of either contention and no finding is made on these contentions.

49 The issue as to whether the defendant should be entitled to claim executor's commission is a matter to be determined when the administration of the estate has been finalised. In defending the two claims for provision against the estate, the defendant is, in reality, defending his own interests as the beneficiary of the estate. His claim as to his maintenance of the deceased's house is a matter that requires evidence, and none was given.

50 For the purposes of assessing an amount for the foreshadowed claim for commission, it would be unlikely that a claim for the defendant's pains and troubles would be significant as it relies primarily on resisting the two claims for provision in circumstances where the costs claimed by the defendant's solicitors suggest that most of the work has been done by them, and not the defendant. In any event, a claim for commission is largely illusory as the defendant is entitled to the residue of the estate. The foreshadowed application for commission bears all the hallmarks of an attempt to increase the liabilities of the estate in defending the provision claims and any estimate for commission should be removed as a liability of the estate.

51 Of the $146,539.68 in legal costs claimed, only the sum of $4,894.30 has been paid. The remaining costs total $141,636.38. The defendant has filed two affidavits in reply to the affidavits of the plaintiff and her husband and two affidavits setting out the financial position of the estate.

52 The accounts for the legal costs of $104,456.36 refer to 'family provision claims' and list a figure for costs in five invoices over a period July 2015 to November 2015 but with no detail. Counsel for the defendant asserted that this amount was for both family provision claims, although no evidence was tendered to support that assertion. No costs agreements were tendered in evidence and the basis of the calculation of the costs is not known.

53 The amounts of $22,000 and $15,180 are the estimated costs of the defendant's current solicitors and counsel. Considering that they took the file over shortly before the commencement of the proceeding, the quantum of their estimated costs may not be reasonable and proportionate to the issues in dispute.

54 The plaintiff contends the claimed costs are excessive because the defendant has always resisted the plaintiff's claim in all aspects and it was not until the final directions made in the proceeding that the defendant conceded that the only issue in the proceeding was the quantum due to the plaintiff.

55 At the directions hearing on 5 November 2015, the defendant estimated his costs at $77,500 inclusive of the trial detailed as follows:

Defending plaintiff's claim up to mediation $27,500

56 The defendant was informed at that time that his estimate of costs prime facie were not reasonable and proportionate to the issues in dispute.

57 The estimated legal costs itemised by the defendant are contradictory, do not appear to attempt to ensure that the costs are reasonable and proportionate to the issues in dispute and appear to be inflated in an attempt to reduce the net assets of the estate.

58 The defendant's assertion that the net estate is $356,763.77 is unrealistic and unreasonable. For the purposes of this proceeding, taking into account the foregoing analysis of the claimed liabilities, the net estate should be assessed at approximately 487,000.[13]

59 The plaintiff is aged 50 years. She is married and has a son aged five years with her husband. She has three other children aged 21, 19 and 15 from a previous marriage, two of whom live with her and her husband and are financially dependent on her.

60 The plaintiff's upbringing suffered as a result of his father's illness. From a very young age, as the eldest child in an Italian migrant family, the plaintiff was required to miss school to take care of her father. Her father received medical treatments in a hospital for his suicidal tendencies. As a child, the plaintiff spent weekends with her mother taking her father to and from hospital by public transport. The plaintiff deposed that she felt her childhood was 'robbed' due to 'the constant strain of [her] father's illness'. As a result, she missed a substantial portion of her secondary school education. She left school after failing year 10 and worked as a machinist from the age of 16 years.

61 The plaintiff's working life was interrupted by the births of her children in 1992, 1995, 1999 and 2009. She was married twice before her current marriage and divorced in 1985 and 2006. Between July 2006 and July 2009, she was a bankrupt.

62 Between 1992 and 1995, the plaintiff and her then husband, with their newborn son, lived with her parents. She contributed about $100 per fortnight towards living expenses. The plaintiff conceded that she contributed to her parents only when she could and that her contributions would only partially cover her expenses for living with them.

63 In 2006 the plaintiff moved back to live with her parents with her three eldest children for two years. She paid about $150 per fortnight on a regular basis to contribute towards the expenses of living with her parents. At the time, she was working in a packaging firm and the amount she provided to her parents varied depending on her financial circumstances at the time.

64 The defendant contended that the relationship between the plaintiff and the deceased was fractured or strained. The plaintiff deposed in some detail of her relationship with the deceased over a long period of time. Whilst it is apparent from the evidence that there were periods that the plaintiff and the deceased did not see each other, there is no evidence of estrangement so as to disentitle the plaintiff and the defendant conceded this at trial. [14] Indeed, despite an apparent difference of opinion around the time the plaintiff commenced a relationship with her now husband, the plaintiff and the deceased maintained a normal, loving parent-child relationship and were involved in each other's lives. This is demonstrated by the fact that the deceased attended family events with the plaintiff, including the birth of the plaintiff's youngest son, the plaintiff's engagement to her now husband as well as her youngest son's confirmation. The plaintiff also deposed to visiting the deceased at home and in hospital when she became unwell, albeit not as regularly as the defendant.

65 The plaintiff also gave evidence of her fractured relationship with the defendant. It is possible that the breakdown in the sibling relationship was a source of contention between the deceased and the plaintiff given that the deceased lived with the defendant and was cared for by him in her final years. However, these circumstances do not indicate that the relationship between the plaintiff and the deceased was fractured per se. It is not unusual for disagreements to occur from time to time in an otherwise close and loving parent-child relationship and fault cannot be attributed to one side or the other. On balance, I am satisfied the plaintiff shared a close and loving relationship with the deceased throughout the years, with some differences causing a distance between them for certain periods of time. On the basis of this finding, the question to be determined is the quantum appropriate to satisfy the deceased's moral obligation to the plaintiff in light of her need.

66 The plaintiff is currently employed part time in food preparation at a childcare centre. She earned about $20,195 in the 2013-2014 financial year and receives approximately $490 per fortnight from Centrelink for parenting support for two of her children. When her second youngest child turns 16 next year, the income receipt from Centrelink will be reduced by half as she will only be eligible for parenting support for one child.

67 The plaintiff's husband runs a computer business and earned around $24,379 in the 2013-2014 financial year.

68 One of the plaintiff's children suffers from post-traumatic stress disorder as a result of a serious incident when she was aged 7 years and requires ongoing counselling sessions every month at a cost of approximately $175 per session.

69 The plaintiff and her husband have no substantial assets. Her husband has approximately $160,000 in superannuation. In 2011, he received $65,000 from his late father's estate and he used half of that sum to pay his overdraft and the balance to run his business.

70 The defendant is aged 43 years. He is married and contends that he is separated from his wife but remains living in the family home with her and their three children, aged 14 years, 9 years and 18 months respectively.

71 Whether or not the defendant is separated from his wife was the subject of contradictory evidence by the defendant.

72 In his affidavit sworn 21 July 2015, the defendant deposed that he is married with three children and does not refer to being separated.

73 In his affidavit sworn 11 December 2015, the defendant deposed:

My wife and I live separated under the one roof. This has been the case for a while now and it is not certain what the future of our relationship holds. After I was injured I had periods of depression and our relationship was not good. There were times our relationship was quite bad, to the point that at one stage she got an intervention order in 2005. We have continued to live in the same house, and that has meant that we continue to share parenting of our children. There have been times when we have gotten along alright and sorted things out, but it has been on and off over the years. We have lived separated for most of the time since my injury. At present I do not know if we will stay together. We are living in separate bedrooms, and have been for some time. My wife receives child allowances for the children.

[My wife] has been receiving benefits, which are used for the children and household expenses.

74 In his oral evidence, the defendant stated that when he made his affidavit on 11 December 2015, he was aware that the plaintiff's solicitors had subpoenaed Centrelink documents from his wife. He denied that he and his wife continue to share the expenses for the children. He said he does not contribute towards the upkeep of his three children but he does pay the interest payments on the mortgage of the family home, a two storey five bedroom home. The defendant was unable to state the amount of the mortgage and did not produce any statements that would have shown the amount of the mortgage. In his affidavits sworn 21 September and 11 December 2015, the defendant lists the mortgage at $110,000 whereas, at trial, he stated that it was $125,000.

75 Despite numerous requests by the plaintiff's solicitor, the joint financial position of the defendant and his wife was not disclosed. The defendant's wife produced her documents from Centrelink and was present in Court throughout the trial. The Centrelink documents established that the defendant's wife had received a sole parent pension for the past 10 years. During cross examination, the defendant asserted that he had no knowledge that his wife was receiving the pension or that she had done so over the past 10 years. This was despite the fact that he said their finances were separate and that he was responsible only for paying the interest of the mortgage on the family home and that he was not required to contribute to the upkeep of his three children.

76 The defendant said that he and his wife had been separated for some time, although he was not clear for how long they have been separated but, at all times, they have lived in the family home with the three children. He agreed that two of his three children are aged 9 years and 18 months old, that is, they were born in the period during which his wife received a sole parent pension. The fact that his wife has been receiving the pension for 10 years when two of their children were born in that 10 year period suggests that the assessment of the wife as a sole parent may have been made on incorrect information, particularly where the defendant acknowledged in this proceeding that he has had a gross income of $65,000 for at least for the past three years.

77 With the defendant's ready acknowledgments that he took no responsibility towards the payment of the family expenses, other than to pay the interest on the mortgage, that he lives in the same house as his wife and children and that she pays for their upkeep, it is not credible that the defendant would not know that his wife was receiving the sole parent pension.

The defendant's assets and liabilities and income

78 In his affidavit sworn 21 July 2015, the defendant deposed:

In or around 2007, I was injured at work and received a settlement payout. This amount has been almost entirely spent on general living expenses. I am unable to work full time and I do not currently receive a wage. I anticipate that my limited savings will be further depleted in the next few years as I continue to support my family.

My assets and liabilities are as follows:

Assets

Home $850,000.00

Shares $47,000.00

Home Contents $4,000.00

Bank Accounts $9,000.00

Vehicle $nil

Superannuation $25,000.00

Income

Salary $ nil

Liabilities

Debts $8,000.00

Mortgage $110,000.00

79 In cross examination, the defendant said that at the time his affidavit was sworn on 21 July 2015, he knew that his income was $65,000 a year, although he maintained that because he works as a subcontractor he was not earning a salary.

80 In his affidavit sworn 11 December 2015, the defendant deposed:

Given the nature of my workplace injuries and the length of time I have been out of the work force, I believe I would find it difficult to now find work on a full time basis. I am now capable of doing some work, but as I have a fused foot I struggle walking on uneven ground. I am nervous about a lot of the heavy work I used to do. I believe that my previous injury and claim would mean that I would probably fail a physical check and be slower than other workers. I believe all that would make a building company slow to give me a job. Whereas previously I was able to work on commercial building sites I can only essentially perform maintenance work on domestic dwellings. I am not engaged in full or part time employment for an employer, but I am able to work for myself on a part time basis.

After I was injured I received compensation payouts. I did so under confidential terms, but will reveal them if I am ordered to do so. I received a lump sum compensation amount and an amount for accrued entitlements. I have spent those monies partly on living expenses, together with the money I had saved from when I was working before my injury. In 2009, not long after I received the first payment I bought a second hand boat ($25,000). I also spent approximately $10,000 for my father to have cataract surgery (there was about $2600 refund from [M]edicare, but I let my mother keep that in her bank account). I put $45,000.00 into a term deposit, however these funds were used for the funeral and burial expenses for our parents, as I set out above. I now have $47,000.00 shares and a total of $7,200.00 in bank accounts.

81 This affidavit updated certain aspects of the defendant's financial circumstances as compared with the 21 July 2015 affidavit: the amount in his bank account was $7,200 instead of $9,000; his assets included a boat valued at $25,000 and his gross income was $65,000 instead of 'nil'.

82 The defendant also deposed in his affidavit sworn 11 December 2015 that there are two cars - a Holden Commodore registered in the deceased's name but paid for by him for $500 and a VZ Commodore registered in his wife's name that cost $9,250. The defendant said that the deceased did not have a driving licence in her lifetime but that he registered the car in her name to prevent his wife from getting the car in the event they divorced.

83 The defendant did not state when he purchased and registered the car in the deceased's name but as he asserts that he has been separated from his wife for 10 years and has had two children with her in that time frame, it is unlikely that this is the reason for him registering the car in the deceased's name.

84 As stated previously, the defendant said that his mortgage was $125,000 at trial but conceded that he had no documentary evidence to support this.

85 The substantial differences between the defendant's evidence as to his assets and liabilities in his affidavit sworn 21 July 2015, his affidavit sworn 11 December 2015 and his oral evidence remain largely unexplained and are difficult to reconcile other to conclude that he is not a witness of truth.

86 In his oral evidence, the defendant said that he worked as a plasterer. In 2004, he was injured at work and made a compensation claim for his injuries. He said the claim was settled in either 2008 or 2009. Although reluctant to disclose the amount of the settlement, the defendant received about $240,000 as compensation for his work injuries. He said this was to reflect his physical and psychiatric suffering, that he had about 20 per cent physical impairment and was not able to work.

87 Upon receiving the compensation payment, the defendant placed about $45,000 in a term deposit and used the balance to purchase shares and a second hand boat. He said he paid for his father's cataract surgery and his parents' funeral and mauoleum expenses.

88 Of his income position, in July 2015 he deposed that he received no income and, in December 2015, he deposed that he received a gross income of $65,000. In cross examination, the defendant admitted that he earned income working as a plasterer in the three financial years between 2013 and 2015 and that he was paid in cash, which he keeps at home. He said that he had not filed tax returns for the past 10 years, notwithstanding that he received income for working at least three financial years.

89 He said that he should have 'come clean ... about the income that he earned'. The defendant said he had been advised about and understood the importance of his own financial need in the proceeding yet he also said that he was advised by his lawyers that he did not need to prove his financial position, thereby contradicting his defence of competing financial need that was not abandoned until part way through the trial.

90 In his affidavits setting out his assets, the defendant refers to 'bank accounts' that contained $9,000 in July 2015 and then $7,200 in December 2015. In his oral evidence, the defendant said he had two bank accounts with the ANZ Bank, one being a term deposit account of $7,200 and the other with $98 in it. One of these accounts showed regular deposits of $400-600 being made into it. The ANZ bank documents were produced during the trial for the first time by his counsel during re-examination.

91 The plaintiff subpoenaed the defendant's bank statements from the Commonwealth Bank and they showed that the defendant made regular weekly deposits of around $500 or more from January 2013 that he said were from the cash he took home from his work as a plasterer.

92 Considering that the defendant's evidence as to his assets and earning capacity are within his knowledge, it is remarkable that he even attempted to assert that he had a competing financial need. In doing so, he has increased the costs of the proceeding for the plaintiff by the necessity to include more information in her affidavits than should have been required and to subpoena documents that the defendant failed to produce.

93 In respect of his income, the defendant has been untruthful and even though he has now given oral evidence of his gross income for the past three years, but no documentary evidence, his unreliability as a witness leads to the conclusion that this figure could change upon an investigation of his earnings being undertaken.

94 Overall, the defendant was not a credible witness and his evidence cannot be believed unless it is corroborated by reference to admissible contemporaneous documentary evidence.

Factors that must be taken in to account in making a family provision order: s 91A(1) of the Act

95 The Court must have regard to the deceased's will and any evidence relating to the deceased's reasons for making dispositions as well as any other evidence of the deceased's intentions in relation to an eligible person.

96 In clause 4 of her will, the deceased stated that she had not made any bequests to the plaintiff as she had no meaningful relationship with her.

97 In her affidavit sworn 26 May 2015, the plaintiff referred to the deceased's previous wills and her exclusion in part as a beneficiary under those wills. In respect of her exclusion in the deceased's previous wills, the plaintiff deposed that the statements in those wills were false, stating her reasons for that conclusion. It is unnecessary to make any findings on the deceased's statements in her previous wills as the Court must have regard to the deceased's last will.

98 As stated at [64]-[65], I have concluded that on the basis of the plaintiff's description of her relationship with the deceased, on balance, I am satisfied the plaintiff shared a close and loving relationship with the deceased throughout the years, with some differences causing a distance between them for certain periods of time. I am satisfied that contrary to what is stated in clause 4 of the deceased's will, the plaintiff and the deceased shared a meaningful relationship throughout the years and there are no circumstances that indicate a derogation of the deceased's moral duty to the plaintiff.

Factors that must be taken in to account in making a family provision order: s 91A(2) of the Act

99 In relation to the matters that the Court may have regard to pursuant to s 91A(2) of the Act when making a family provision order, I make the following findings:

(a) the nature of the relationship, including the length of the relationship, if relevant

The plaintiff knew the deceased all her life until the deceased's death. The plaintiff and the defendant shared a close and loving relationship throughout the years, with some differences causing a distance between them for certain periods of time.

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries

The defendant concedes the deceased had a moral responsibility to provide proper maintenance and support for the plaintiff. The deceased also had a moral responsibility to provide for the defendant and for Vicenzo Alampi.

The assets and liabilities of the estate have been set out and considered with the result that, effectively, the net asset position of the estate is approximately $487,000.

(d) the current and future financial resources, earning capacity and financial needs of the eligible person and any beneficiary

The financial resources of the plaintiff are limited. She has no substantial assets, limited income and negligible superannuation. She has significant financial need for the future. The plaintiff's husband also has limited income. The income of the plaintiff would be used for day to day living expenses and she are unable to save for their future.

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary

There was no evidence of any physical, mental or intellectual disability of the plaintiff or the defendant, save that the defendant said that he received a sum of money to compensate him for a work related injury.

(g) any contributions (not for adequate consideration) of the eligible person to building up the estate or to the welfare of the deceased or the deceased's family

The plaintiff does not assert any contributions to building up the estate of the deceased or to her welfare.

(h) any previous benefits to the eligible person or any beneficiary

The plaintiff has had the benefit of living with her parents for some periods of time where she was able to live either rent free or by paying a nominal amount of rent/board to her parents.

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance

The plaintiff was not being wholly or partly maintained by the deceased, other than by the deceased's assistance to the plaintiff when the plaintiff lived with her parents for some periods of time.

(j) the liability of any other person to maintain the eligible person

The plaintiff's husband maintains the plaintiff with his income paying for day to day living expenses, although his income is not significant.

(k) the character and conduct of the eligible person or any other person

The plaintiff is of good character and conduct.

(l) the effect that a family provision order would have on the amounts received from the deceased's estate by other beneficiaries

The defendant conceded at trial that he did not have a competing financial need although he is the residuary beneficiary.

The defendant is not a credible witness and his evidence cannot be believed unless it is corroborated by reference to admissible contemporaneous documentary evidence.

100 The plaintiff has limited education and training for any career in the workforce. In addition, her career prospects have been substantially constrained by her circumstances, both as a child and adult. She enjoys good health for her age but her of lack of qualifications and work skills means that she has no substantial assets, earns limited income and has a limited future earning capacity. The plaintiff has established that she has significant financial need.

101 The plaintiff seeks provision of $170,000 from the estate of the deceased and payment of her costs assessed at $92,000.

102 The defendant submits that, although estrangement between the plaintiff and the deceased was not alleged by him, the fact that the relationship between the plaintiff and the defendant was fractured should be taken into account in assessing the deceased's moral obligation to the plaintiff and this, in turn, should effectively reduce the amount of any provision to the plaintiff.

103 Whilst the relationship between an applicant and a deceased is a matter that may be taken in to account in determining an application for provision from a deceased's estate, where the moral obligation to an applicant is conceded, an alleged fractured relationship would not reduce the moral obligation of the deceased to the applicant save in exceptional circumstances.

104 It would, of course, remain a consideration that may be taken into account in determining the quantum of a claim for provision. However, I reject the defendant's submission as I have determined that the relationship between the plaintiff and the defendant was, on balance, a close and loving relationship with the deceased throughout the years, with some differences causing a distance between them for certain periods of time.

105 The defendant contends that any provision for the plaintiff should be limited to $75,000 so as to enable her to pay a deposit for the purchase of a house or to supplement her current financial position.

106 The plaintiff's claim for provision of $170,000 is sufficient to provide her with some financial security for her immediate and long term future. It is not sufficient for her to buy a house and, in the final analysis, sensibly she did not seek provision to do so in view of the size of the estate and her need. An amount of $170,000 will from the estate will still provide for payment of the legitimate liabilities of the estate with the balance being for the benefit of the defendant. In order to protect the payment of the provision to the plaintiff, I will order that the further provision to the plaintiff be secured by a charge on the Coburg property.

107 The plaintiff also claimed costs assessed at $92,000 without any breakdown of how these costs were made up or calculated. In the circumstances, an order for such a lump sum for costs is not appropriate. The plaintiff is entitled to the payment of her costs from the estate on the basis that those costs be assessed on the standard basis, to be taxed in default of agreement.

(a) Pursuant to s 91 of the Act, provision be made for the plaintiff out of the estate of the deceased by the payment to her of the sum of $170,000.

(b) Pursuant to s 97(1) of the Act, the amount of $170,000 is charged on the estate's property situate at and known as 181 Gordon Street, Coburg in the State of Victoria and described in Certificate of Title Volume 4124 Folio 774.

(c) Pursuant to s 97(3) of the Act, a certified copy of this order be attached to the grant of probate of the will of the deceased.

(d) The plaintiff's costs of the proceeding assessed on a standard basis, to be taxed in default of agreement, be paid out of the estate of the deceased.

109 A further matter arises from my findings in paragraphs [71]-[94]. The evidence indicates that the defendant has not complied with his income tax reporting obligations or with his disclosure obligations in respect of Centrelink payments for his minor children.

110 Accordingly, these reasons for judgment are to be referred to the Deputy Commissioner of Taxation at the Australian Tax Office as well as the Minister of the Department of Human Services to take such action as they wish in reviewing the affairs of the defendant.

[1] Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 2(1); Victoria Government Gazette S4000, 29 October 2014, p.2.

[2] Unlike the previous legislation, there is no reference to 'adequate' in this section but it is included in ss 91(2)(d) and 91(4)(b) as a factor that must be taken into account when determining quantum of the provision.

[3] [1938] AC 463, 476.

[4] [1938] AC 463, 478.

[5] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 149-150, 152 (Gibbs J).

[6] See, eg, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (Mason CJ, Deane and Toohey JJ).

[7] Re Hodgson (dec'd) [1955] VicLawRp 77; (1955) VLR 481; Blair v Blair [2004] VSCA 149; (2004) 10 VR 69; Delaney v Jones [2008] NSWSC 229.

[8] These expenses were for both the deceased and her late husband, who pre-deceased her.

[9] The Coburg property was in the joint names of the deceased and her late husband and, on his death, the property passed by survivorship to the deceased.

[10] Affidavits of the defendant sworn 21 September 2015 and 11 December 2015.

[11] Affidavit of defendant sworn 11 December 2015 [12].

[12] Ibid [8]. Vincenzo Alampi brought a proceeding against the estate seeking provision pursuant to Part IV of the Act as he did not receive a disposition under the will. This proceeding was settled at mediation in July 2015 on the basis that he would be paid $184,000. The defendant has not yet paid the settlement sum to him.

[13] This figure is calculated by deducting half of the funeral expenses ($36,174), the estimated costs of the plaque of $3,500, the foreshadowed claim for executor's commission of $7,750 and $60,000 of the estimated costs making a total of $107,424. When this amount and the additional asset of $22,093 is added to $356,763, the amount is approximately $487,000.

[14] For a discussion of disentitling conduct, needs of an applicant and the moral duty of a testator to their children, see: Hughes v National Trustees, Executors and Agency Company of Australasia [1979] HCA 2; (1979) 143 CLR 134.