Plaintiff v Defendant

1 Mr Andreas Katakouzinos died on 1 August 2015. He left behind two adult sons, Sotirios and Aristidis ('Ari'). His wife, Pelagia (the sons' mother), predeceased him. Sotirios, who had been a lifelong sufferer of thalassemia, a blood disorder, died on 5 December 2016, at 49 years of age. Sotirios was survived by his wife, Anastasia, and Ari, who is now aged 49. Ari is the plaintiff in this proceeding. He brings an application for provision from his father's estate under Part IV of the Administration and Probate Act 1958 (Vic) ('Act').

2 Ari's application is opposed by Anastasia, who could be described as the derivative beneficiary of Andreas' estate, being the sole beneficiary of Sotirios' will pursuant to an intestacy. Andreas made a will on 27 January 2011 ('will'). In the will, Andreas left the only substantial asset of his estate, a half share in a property at 320 Purves Road, Main Ridge ('Main Ridge property') to Sotirios. The value of Andreas' interest in the Main Ridge property is agreed to be $802,500, from which needs to be deducted liabilities of approximately $72,500.[1] The other half share of the Main Ridge property was owned by Sotirios. As Sotirios died intestate, subject to Ari's claims in this proceeding, Anastasia stands to inherit the Main Ridge property, in which she currently lives, and has lived for some six years.

3 As noted above, Andreas made his will in 2011, leaving the bulk of his estate to Sotirios. In his previous will, made in 2005, Andreas, after making provision for his wife, left his assets to Ari and Sotirios equally. The will does not make any reference to any reason for Andreas favouring Sotirios over Ari. However, the will was made in the context of an arrangement within the family pursuant to which Ari was in effect given an early inheritance from both his mother's and father's estates.

4 Pelagia died in April 2009. She left her half share in the Main Ridge property equally to Ari and Sotirios, subject to a life interest in favour of Andreas. At the time, the Main Ridge property had been valued at $1.25 million. In 2010, Sotirios paid Ari the sum of $500,000 to enable Ari to purchase his then matrimonial home in Glen Iris ('Glen Iris property') from his estranged wife as part of a matrimonial property settlement. Of this sum, $300,000 was paid by Sotirios to purchase Ari's quarter share in the Main Ridge property. A further $200,000 was advanced by Sotirios by way of a loan, secured by a charge over the Glen Iris property. The loan was made pursuant to a written agreement dated 19 May 2010 ('loan agreement'). The loan agreement provided that Sotirios could lodge a caveat over the Glen Iris property, which he did on 19 August 2010.

5 Clause 10 of the loan agreement provided as follows:

The Lender agrees with the Borrower that in the event of the Lender receiving from the father of the Lender and the Borrower namely Andreas Katakouzinos ('the Father') the whole of the right title and interest of which the Father is presently registered as proprietor in the property 320 Purves Road, Main Ridge, Victoria aforesaid being one of a total of two equal undivided parts or shares as a tenant in common in Certificate of Title Volume 8576 Folio 379 either by gift, Will or otherwise, the Lender will release and forgive the Borrower from repayment to him of the whole of the Principal Sum and any other monies that may be due and payable by the Borrower to the Lender at that time pursuant to this Agreement forthwith and withdraw from the title to the Property at the Lender's expense any Caveat which he may have lodged against the title to the Property pursuant to Clause 9 of this Agreement.

6 What was contemplated by the loan agreement was therefore that, upon Sotirios receiving his father's half share of the Main Ridge property upon Andreas' death, thus becoming the sole proprietor of the Main Ridge property, Sotirios would forgive the loan to Ari of $200,000. The terms of the will gave effect to this understanding. But matters did not go to plan. In 2012, Ari decided to sell the Glen Iris property. Sotirios required repayment of $200,000 prior to removing his caveat, which was paid to him at the settlement of the sale of the Glen Iris property. However, for reasons which might be guessed at, but cannot really be known, Andreas did not alter his will to reflect the fact that Sotirios had been repaid the loan of $200,000.

7 After Andreas' death, there were apparently some discussions between Ari and Sotirios regarding Ari receiving some funds from his father's estate, but no agreement was reached prior to Sotirios' death in December 2016. Probate of the will was granted to Ari on 1 May 2017, and this proceeding was issued on 31 October 2017. Anastasia, as the sole beneficiary of Sotirios' estate, defends the proceeding as a person having a substantial interest in opposing the application.

8 Ari seeks that he be awarded the entirety of the estate, which, if the liabilities of the estate and the legal costs incurred by the parties are taken into account, has a net value of approximately $520,000.[2] Anastasia concedes that Andreas had a moral obligation to make proper provision for Ari, but contends that the amount awarded by way of provision should be closer to the sum of $200,000.

9 The applicable legal principles governing this application are considered later in these reasons. The factual issues of greatest relevance to the current case are the personal circumstances of Ari, and to a lesser extent, Anastasia, the failure (or refusal) of Andreas to alter his will following the repayment by Ari of the $200,000 loaned to him by Sotirios, and the contributions, both personal and financial, made by Sotirios and Anastasia to the wellbeing of Andreas and the value of the Main Ridge property. It is not disputed that Ari is in financial need, that the family arrangement put in place in 2010 did not provide for circumstances where Ari repaid the loan to Sotirios prior to Andreas' death, or that Sotirios and Anastasia made substantial contributions to the welfare of Andreas and the upkeep of the Main Ridge property. What is in dispute is the cause of Ari's financial need and the extent to which he must bear some responsibility for his financial position, the quantum of the financial contributions made by Sotirios and Anastasia, and the relative weight to be given to these factors in making any provision for Ari from the estate.

10 Ari was born on 27 October 1969, and is now 49 years of age. He has no assets apart from household goods, and describes himself as 'destitute'. For reasons which are not entirely clear, because he does not claim any physical or mental disability, and he is well qualified and presentable, Ari's engagement in the workforce over the past decade or so has been infrequent and limited.

11 Ari has qualifications in horticulture, and was employed within that industry until 2007. He operated his own landscaping consulting business between 2004 and 2007. From 2008 to 2013, he was engaged in trading in Australian equities, at first on behalf of his exwife, and then on his own behalf, and pursued some qualifications and certification in wealth management and financial planning. After the sale of the Glen Iris property, Ari was left with approximately $130,000. In 2013 (after the sale of the Glen Iris property) his capital (including some drawdowns from a line of credit secured against the Glen Iris property) was wiped out by improvident investments in the share market. Since then, he has been dependent upon Centrelink benefits, and borrowings in excess of $50,000 from Sotirios.

12 In 2016, Ari met his now fiancée, Nori, an Indonesian national. He visited Indonesia for about six months in 2017, during which period their son was born. A daughter was born in July 2018. He intends to bring Nori and their children to Australia once he can afford to do so. At the time of the trial, he was living in his car, but anticipated securing work with a security company reasonably soon. He did secure employment with the National Australia Bank earlier in 2018, but his employment as an entrylevel banking officer was terminated after a relatively short period of time. In addition to the money he owes Sotirios' estate, he owes a former landlady approximately $13,000.

13 After Sotirios' death, Ari made a claim upon Sotirios' superannuation fund, claiming to be dependent upon Sotirios. This claim was rejected. Ari appealed, but he subsequently withdrew his appeal. When pressed upon his reasons for making this claim, Ari gave evidence that he made this claim because he was in a desperate financial position, and Anastasia had refused to assist him. He considered himself to be dependent upon Sotirios in his time of need, but what he really wanted to do was to settle the 'property matter', that is, his claim against the estate.

14 Ari gave evidence that if he obtains an order for further provision from Andreas' estate, he intends to use the funds to purchase a unit, or put a deposit on a house in a neighbourhood in or around Chadstone, to house himself and his young family. Depending upon the amount of provision ordered, he anticipates being able to fund repayments upon a mortgage of up to $300,000 should he obtain employment, as he expects to do shortly.

15 Anastasia married Sotirios in 2010. She is approximately 45 years of age, and is employed as a teacher at Vermont Secondary College, earning approximately $90,000 per annum gross, and $74,000 per annum after tax. Prior to her marriage, she purchased, with the assistance of a loan from her parents, a unit in Carrum Downs. She had known Sotirios and his family since they were children, and reconnected with Sotirios in 2005. After their marriage in 2010, she and Sotirios lived in her unit at Carrum Downs, although they regularly spent weekends at the Main Ridge property. Andreas also stayed with Sotirios and Anastasia at the Carrum Downs unit on a regular basis.

16 In January 2013, Anastasia and Sotirios went to live at Main Ridge permanently, in part to look after Andreas, whose health was deteriorating, and in part to give effect to their plan to make the Main Ridge property their matrimonial home. By this stage, Sotirios held a half share in the Main Ridge property, and an expectation that he would receive Andreas' half share upon his death. Sotirios had commenced undertaking renovation works at the Main Ridge property in 2012, with the bulk of the renovation works being carried out in 2014. Most of the renovation works were paid for by Sotirios in cash. By this time, Andreas was living in a nursing home. He had suffered a stroke in May 2013. He returned to the Main Ridge property after some months in hospital in late 2013, where he required substantial assistance and care, being largely bedridden. Sotirios and Anastasia cared for Andreas at home for approximately six months prior to Andreas' admission to the nursing home, where he remained until his death in August 2015.

17 It is not entirely clear from the evidence how Andreas' nursing home fees were funded, although Anastasia believes they were paid from his pension. The spreadsheet prepared from Sotirios' banking records suggests that Sotirios paid Andreas' nursing home fees directly, but the spreadsheet does not cover the entire period Andreas was resident in the nursing home. They were not paid for by Andreas' pension, at least not directly, as Andreas' full pension was deposited to his bank account. However, it seems that Sotirios subsidised Andreas' living expenses for many years, paying for private health insurance, and rates and utility bills for the Main Ridge property. No rent was paid by Sotirios and Anastasia for their occupation of the Main Ridge property.

18 Sotirios had taken a substantial amount of time off work to care for his father. He had been employed by the Mornington Shire Council as a town planner for about 27 years by the time he was retrenched in December 2014. Anastasia believes that he was terminated because of the amount of leave he had taken. After December 2014, Sotirios continued to work as a town planner on a contract basis until his death in late 2016. Anastasia believes that the time and effort spent by Sotirios in looking after his father contributed to the deterioration in his health.

19 In mid-2016, Anastasia put her unit in Carrum Downs on the market. One of the reasons advanced by Anastasia for selling this property was to provide funds to enable Sotirios to reach a settlement with Ari regarding the distribution of Andreas' estate. However, no such settlement was reached prior to Sotirios' death. The net proceeds of the sale of the Carrum Downs property (approximately $150,000) have been largely exhausted to fund repayments on a loan secured against the Main Ridge property, other regular outgoings such as rates on the Main Ridge property, Anastasia's living expenses (Anastasia did not work for about nine months after Sotirios' death), and the legal fees associated with this proceeding.

20 Anastasia, as the sole beneficiary of Sotirios' estate, is (excluding Sotirios' interest in Andreas' estate) entitled to a half share of the Main Ridge property, which was agreed to be valued at $802,500, subject to liabilities of approximately $482,000. On 10 December 2018, after judgment was reserved, she received a payment of approximately $703,000 from Sotirios' superannuation fund. She has approximately $100,000 in superannuation herself. Accordingly, her current net asset position (excluding her superannuation for present purposes) is approximately $1 million. She suffers from anaemia, has been diagnosed with a benign tumour, and has suffered psychological distress as a result of Sotirios' passing. She has lived at the Main Ridge property since early 2013, as she and Sotirios intended to make the Main Ridge property their permanent matrimonial home. She has funded all of the outgoings on the Main Ridge property since Sotirios' death. She keeps various pets and other animals, including bees and chickens, at the Main Ridge property.

21 Both Ari and Anastasia gave evidence at trial. The focus of the cross-examination of Ari was the reasons for Ari's current precarious financial position, including the cause of the dissipation of the proceeds of sale from the Glen Iris property, and his apparent inability to obtain gainful employment over the past decade. The focus of the cross-examination of Anastasia was her contention that she and Sotirios spent over half a million dollars on caring for Andreas, and in effecting repairs and improvements to the Main Ridge property. It is not necessary for the purpose of these reasons to dwell extensively upon this evidence, save that the competing propositions of the parties were well advanced by cross-examination. On the one hand, there is considerable support for Anastasia's contention that Ari's current financial predicament is largely of his own making. On the other hand, I can also comfortably reach the conclusion that the funds said to have been expended by Sotirios for the benefit of Andreas and the Main Property were, first, somewhat overstated; secondly, were for the benefit of Sotirios and Anastasia as well as for the benefit of Andreas' estate; and thirdly, were contributed to by Andreas' pension income, with there being withdrawals of over $60,000 from Andreas' bank account between mid-2013 and late 2015. These withdrawals could only have been made by Sotirios.

22 Anastasia called two additional witnesses at trial: Mr Phito Neophitou, a builder who co-ordinated some building works at the Main Ridge property in 2014, and Mr Konstantinou Lollis, a friend of Andreas. Mr Neophitou conceded that a tax invoice relied upon by Anastasia to support her contention that $77,000 had been spent on building works had been created after the event, for the purpose of the conduct of the trial, and represented the 'best estimate' of the cost of those works. Mr Lollis gave evidence that he had known Andreas for about fifteen to twenty years prior to his death. He had been best man at the wedding of Sotirios and Anastasia. Mr Lollis gave evidence that he had spoken to Andreas about the terms of his will in 2010 and 2011, where Andreas said that the Main Ridge property would go to Sotirios, and Ari had been paid off. He said that Andreas had on occasion referred to Ari as a 'dirty dog'. The evidence of both Mr Neophitou and Mr Lollis, while of some assistance, was not particularly determinative of the main issues in the proceeding.

23 Finally, there was some evidence about three properties in Greece previously owned by Pelagia ('Greek properties'). The Greek properties, one of which has a functional two storey house on it, and the two parcels of farmland, are located on the island of Lemnos. There is evidence that under Greek succession law, Ari will be entitled to three-quarters of the value of these properties, and Anastasia will be entitled to a one quarter share. The parties did not seek to rely upon the valuations of the Greek properties, with the full valuation report being only available in the Greek language. I can infer from the admissible evidence that the value of the Greek properties, while not negligible, is likely to be modest by Australian standards. There is no evidence before me as to who has effective control of the Greek properties, whether they are tenanted, or otherwise generating income, or how easy or difficult it would be for Ari and Anastasia to assume control of and/or realise the value of the Greek properties. Accordingly, I have not factored the Greek properties into my calculations for the purposes of evaluating Ari's claim.

24 As noted above, as Andreas died after 1 January 2015, the amendments to Part IV of the Act which came into effects on that date ('2015 amendments') apply to the current application. The nature and effects of the 2015 amendments upon the principles applicable to applications for provision have been summarised and applied in a number of recent decisions of this Court.[3]

25 In Brimelow v Alampi,[4] McMillan J noted that the 2015 amendments maintained the traditional jurisdictional requirement which prohibited the Court from making a family provision order unless, at the time of the death of the deceased, the deceased had a moral duty to provide for an eligible person's proper maintenance and support, and that the Court must be satisfied that the distribution of the deceased's estate (by way of a will or otherwise) failed to make adequate provision for their proper maintenance and support.[5] Her Honour noted the reference to both 'adequate provision' and 'proper maintenance and support' in s 91(2) of the Act, concluding that the size of the estate remains a relevant matter for determining what is 'proper' maintenance and support.[6]

26 Her Honour also noted that the terms of s 91A(1) of the Act require the Court to have regard to the will of the deceased, and any evidence of the deceased's reasons for making the dispositions in the will.[7] However, she considered that the elevation of evidence of a deceased's intentions to a mandatory relevant consideration, rather than such evidence being simply admissible in any proceeding bringing a claim, as was the case prior to the 2015 amendments, does not give such evidence higher status. Her Honour stated:

The weight to be attached to such statements [of intention] 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.[8]

27 Her Honour made the following observations with respect to the principles governing the quantum of any provision which may be made for adult children once the jurisdiction to make a family provision order is enlivened (omitting citations):

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.

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.

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.

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. 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. The Court's role goes no further than making adequate provision for the proper maintenance and support of an applicant.[9]

28 As can be seen from the above, while the 2015 amendments do limit the class of people who may make a claim for provision or further provision under the Act, and is more prescriptive as to what matters the Court must take into account in a proceeding bringing such a claim, the 2015 amendments did not effect a wholesale change in the law. The established authorities concerning the 'moral duty' of a testator, and what amounts to 'adequate provision for the proper maintenance and support' of a claimant remain relevant.

29 For present purposes, the main effect of the 2015 amendments is the introduction of the concept of 'eligible person'. Ari, as a child of Andreas, is an eligible person. Anastasia, being the daughter-in-law of Andreas, is not an eligible person, which affects the weight to which her personal circumstances should be given in the determination of Ari's application. Further, the 2015 amendments introduced a requirement that, in determining the amount of any provision to be made, the Court must take into account, in the case of an adult child without a disability, the capacity of that adult child to support themselves. Further, while prior to the 2015 amendments the Court was required to have regard to the financial resources and needs of an applicant and any other applicant or beneficiary, the effect of the 2015 amendments is that the Court may have regard to the financial resources, including the earning capacity, of the applicant and any other eligible person or beneficiary. That is, prior to the 2015 amendments, the Court was required to consider the actual financial position of an applicant, rather than the capacity of an applicant to provide for themselves, which brings into sharper focus Anastasia's submissions that much of Ari's financial predicament is of his own making. However, the limitation in s 91A(2)(d) to 'eligible persons' and beneficiaries means that the Court is not empowered to evaluate Anastasia's financial position, save under the residual discretion contained in s 91A(2)(m) of the Act.

30 It was conceded by Anastasia that Andreas had a moral duty to make provision for the proper maintenance and support of Ari, and that he failed to do so. I would have made such a finding in the absence of that concession, given that, at the time of his death, the evidence is that Andreas knew that Ari had no home and no other assets of any significance, and that he had repaid Sotirios the money lent to him in 2010. Given that Ari was a child of Andreas, it is not necessary for him to establish that he was wholly or partly dependent upon Andreas.[10] However, in determining the amount of any provision to be made for Ari, the Court must take into account:

The degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support.[11]

31 The factors which may be considered by the Court in making a family provision order are further enumerated in s 91A of the Act, which will be considered in more detail later in these reasons. At this stage, it is convenient to turn to the submissions of the parties.

32 The primary submission advanced on behalf of Ari was that he should receive the entirety of the estate. Alternatively, counsel for Ari submitted that Ari should receive at least $500,000 to enable him to purchase a home for himself and his young family. Given that Ari in effect repaid his 'early inheritance' after the sale of the Glen Iris property, he was dependent upon Andreas to make provision for him which reflected the repayment he had made to Sotirios.

33 Counsel for Ari noted that Ari is destitute. His financial needs at present and for the foreseeable future are considerable. He has two very young children, and needs to be able to put a roof over their heads. This is no evidence of any disentitling conduct: there was no evidence of any estrangement between Ari and Andreas. It is unnecessary to consider the needs of any other eligible person or beneficiary. The only relevant person would be Sotirios, who is deceased.

34 Counsel for Ari submitted that I should reject the evidence of Mr Lollis. In any event, even if Andreas had decided to make no further provision for Ari based upon his asserted profligacy, this would be no answer to Ari's application for a family provision order. He relied upon the decision of the Court of Appeal in Grey v Harrison[12] where the Court made provision for the alcoholic, indigent son of the testator, notwithstanding the testator not wanting 'his estate pissed up against the wall'.[13]

35 Finally, counsel for Ari submitted that I should treat the evidence of Anastasia with some caution, in particular, her evidence about what money had been spent on the Main Ridge property and other expenses incurred by them on behalf of Andreas and/or the estate, and what funds she had received from the sale of her unit in Carrum Downs.

36 Counsel for Anastasia submitted that, while it is conceded that Ari has some entitlement, the starting point must be the terms of the will. Andreas had an opportunity to change the will after Sotirios was repaid, and failed to do so. There is some evidence that Andreas and Sotirios wanted to protect the money from Ari because of his unfortunate financial history.

37 Counsel for Anastasia submitted that Ari must accept some responsibility for his financial predicament. He was paid out early for his share of his mother's estate. He has lost approximately $231,000 on the stock market, and owes Sotirios' estate $59,000. Given his qualifications, he has provided no sensible explanation as to why he has not engaged in remunerative employment. The 2015 amendments require the Court to take into account Ari's ability to support himself.

38 Counsel for Anastasia submitted that the estate is a modest estate, and Anastasia has a significant claim upon the assets of the estate. As the beneficiary of Sotirios' estate , she is entitled to the whole of Andreas' estate. She has been prematurely widowed, and the payout from Sotirios' superannuation fund will simply cancel out her debts.[14] She and Sotirios made a decision to live in the Main Ridge property as their matrimonial home, and she should be entitled to remain there, and not be forced to sell it. She and Sotirios provided substantial support to Andreas and spent substantial sums on renovating the property. Some recognition should be given to these contributions.

39 Counsel for Anastasia submitted that Ari's claim has not been strengthened by Sotirios' death: by reference to community standards, it is appropriate that Anastasia be treated in exactly the same way as her husband would have been had he lived. The loss of her husband has had a detrimental impact upon Anastasia's short term and long term financial position.

40 Counsel for Anastasia submitted that a payment to Ari of $200,000 would represent more than a third of the estate, which would be appropriate in all of the circumstances.

41 In my view, an appropriate provision for Ari from the estate would be a payment to him of the sum of $416,000. This represents a half share of Andreas' estate net of liabilities (excluding the parties' costs of this proceeding), with some adjustments to take into account Ari's debts to Sotirios' estate and his former landlady, and the contributions made by Sotirios and Anastasia to the value of the Main Ridge property. Subject to further submissions which might be made with respect to any offers made by the parties pursuant to Order 26 of the Supreme Court (General Civil Procedure) Rules 2015, or the principles in Calderbank v Calderbank[15], the sum should be payable to Ari outright, that is, exclusive of costs. A payment of this sum will enable Ari to clear his debts and place a substantial deposit upon a property in the Melbourne metropolitan area.[16] While I appreciate Ari is in need, and a larger proportion of the estate was sought by him, I have had regard to the following matters in rejecting his claim to the entirety of the estate: first, the principle of freedom of testation; secondly, the fact that there is no discernible reason why Ari is unable to support himself, and finally, the substantial financial and in kind contributions made by Sotirios (and Anastasia) to Andreas' welfare in the years prior to his death.

42 The principle of freedom of testation is perhaps of less significance in the current case that would ordinarily be the case, given that Andreas made the will in order to give effect to the family arrangement entered into in 2010, that is, an arrangement whereby Ari would receive his inheritance early. While Andreas may well have been upset about Ari's financial mishaps, there is simply insufficient information available for me to reach any conclusion as to whether Andreas' failure to reinstate Ari as a beneficiary of his estate after the repayment of $200,000 to Sotirios was deliberate or inadvertent, noting he suffered an incapacitating stroke only six months after the settlement of the sale of the Glen Iris property. While I have no reason to not accept Mr Lollis' evidence, the highest it reaches is that Andreas on occasion referred to Ari in disparaging terms. The uncontested evidence is that Ari visited Andreas regularly prior to his death.

43 As for the second matter, while I accept that the authorities do confirm that a testator's moral duty to a beneficiary or potential beneficiary is not necessarily negated by the possibility that any benefit to that beneficiary might be wasted, the Act does require that Ari's own ability to support himself be taken into account. As noted above, there appears to be no physical or psychological impediment preventing Ari from obtaining employment, and one might expect that he would be able to work for another two decades.

44 Finally, I accept that Sotirios (and Anastasia) made considerable contributions to the upkeep of the estate and the welfare of Andreas. However, there are limits to the extent which such contributions can diminish the claim of Ari for adequate provision from the estate. First, given that Anastasia is not an eligible person within the meaning of the Act, the balancing exercise which would usually be undertaken between competing beneficiaries, particularly in the case of a modest estate, is not required to be undertaken in the current case, at least to the usual extent. Secondly, the Court should be wary in proceedings for family provision orders of undertaking a detailed accounting exercise with respect to the financial contributions made by family members over time. This jurisdiction of the Court is a beneficial jurisdiction, not a compensatory jurisdiction. Further, the need for caution is highlighted by some of the evidentiary difficulties facing Anastasia in verifying Sotirios' financial contributions to the Main Ridge property. Thirdly, while I accept that Sotirios did undertake significant expenditure upon the Main Ridge property, this expenditure was undertaken in circumstances where he was a half owner of the Main Ridge property, and expected that, subject to any claim by Ari, he would become the full owner of the Main Ridge property in not too distant future. Finally, while Sotirios and Anastasia did look after Andreas, and did subsidise his expenditure, they also had the benefit of living at the Main Ridge property rent-free, with Sotirios only living away from the Main Ridge property for up to three years between 2010 and 2013.

45 Accordingly, using a somewhat broad brush approach, I have taken into account the financial contributions of Sotirios to the estate by making a notional adjustment to the size of the estate, deducting a half share of the increase in the value of the estate said by a valuer engaged by Anastasia to have been attributable to the improvements made to the Main Ridge property between 2012 and 2014. In his report dated 21 February 2018,[17] Mr Fitzgibbon opined that the value of the Main Ridge property was increased by $85,000 by reason of these improvements. A half share of this increase, apportioned over the agreed value of the Main Ridge property, amounts to approximately $42,000, reducing the notional value of the estate (net of liabilities, but excluding the costs of this proceeding) to approximately $688,000. A half share of this amount, plus $72,000 to account for Ari's debts, totals $416,000.

46 Turning now to the relevant factors under s 91A(2) of the Act, I make the following observations:

(a) the relationship between Ari and Andreas: while there is some evidence that Andreas was displeased with Ari's lack of financial responsibility, there was no compelling evidence of any serious estrangement between them;

(b) the obligations of Andreas to Ari or any other eligible person or beneficiary of the estate: apart from Ari, there was no other eligible person or beneficiary of the estate to whom Andreas owed any moral obligation. Anastasia is not an eligible person or a beneficiary of the estate;

(c) the size and nature of the estate: the estate is a modest estate, taking into account the liabilities of the estate. It is constituted of a half share in the family home, at which both Ari and Anastasia have lived for considerable periods, albeit at different times;

(d) the financial resources, including earning capacity, and the financial needs of Ari and any other eligible person or beneficiary of the estate: Ari is the only relevant person, Anastasia not being an eligible person or a beneficiary of the estate. His resources and capacity are to be assessed as at the time of trial and for the foreseeable future. Ari's asset position is minimal, but he ought to be able to obtain gainful employment, although his earning capacity may be impeded by his intermittent participation in the workforce over the past decade or so. He has a foreign fiancée and two very young children, both aged under two years of age at the time of trial;

(e) the age of Ari: he is 49, young enough to engage in employment for some years, but with a narrower window of time to accumulate assets in the future than a younger person would have;

(f) any contributions by Ari to building up the estate of Andreas and towards his welfare: while there is evidence of some contributions on the part of Ari, they are not of a nature or scale which would warrant any particular consideration;

(g) any benefits previously given by Andreas to Ari or any eligible person or beneficiary: Andreas arguably gave Ari a benefit by facilitating his early inheritance. On the other hand, Andreas gave Sotirios a benefit by not altering the will after the repayment of his loan to Ari in 2012;

(h) whether Ari was being maintained by Andreas prior to his death: Ari was not being maintained by Andreas;

(i) the liability of any other person to maintain Ari: there is no evidence about the skills and qualifications of Ari's fiancée Nori, who previously visited Australia on a working holiday visa. One can infer that, as a foreign national with two very young children, Nori's income earning capacity would be limited, at least in the short term;

(j) the character and the conduct of Ari: it is apparent from the evidence of Anastasia and the submissions made on her behalf that Anastasia does not consider that she should be penalised for Ari's fecklessness. To some extent, this position misconceives the nature of this jurisdiction: while some recognition needs to be given to both contributions which are made which are above and beyond the norm, and to disappointing conduct and choices, the focus must be first and foremost upon what amounts to adequate provision for a claimant, particularly where there are no other eligible persons or beneficiaries. In the current case, there is no evidence of any cruelty or morally repugnant conduct on the part of Ari towards his father: the most that could be said is that there is evidence that Andreas disapproved of some poor financial decisions made by him. Ari's conduct in making a claim against Sotirios' superannuation fund when Sotirios left behind a widow is questionable, but apparently that was made on legal advice, and is not of itself disentitling conduct;

(k) the effect that a family provision order in Ari's favour would have on the amounts received by other beneficiaries: the current case is unusual in that the only competing beneficiary, who no doubt had a strong claim upon Andreas' bounty, is now deceased. Anastasia is only a derivative beneficiary of the estate, by reason of her being the beneficiary of Sotirios' estate. Any amount awarded to Ari will come directly from Anastasia's entitlement, but I do not consider that Anastasia has an equivalent moral claim to either Sotirios or Ari; and

(l) any other relevant matter: notwithstanding that Anastasia is not an eligible person or a beneficiary, I do consider that in the circumstances of this case, her situation does need to be taken into account. Along with Sotirios, Anastasia provided support and assistance to Andreas in his final years. For some unspecified period of time she reduced her working hours to provide that assistance. While there is no evidence that she paid personally for any of the improvements to the Main Ridge property, and the inference I can draw from the evidence is that she made no such payments, any payments made by Sotirios diminished the combined resources of the couple. Her income as a teacher is modest, and she has suffered both financially and psychologically from the premature death of her husband.

47 However, further in relation to paragraph 46(l) above, I do not accept the submissions advanced by counsel on her behalf that she should be treated in the same way as Sotirios would have been entitled to be treated, and that she ought not be forced to sell the Main Ridge property. First, the inclusion of the concept of 'eligible persons' within the Act, and her failure to fall within that category reflects the intention of Parliament to limit the class of people whose needs are to be considered in making an order for further provision. In the Second Reading Speech introducing the 2015 amendments, the relevant Minister referred to the history of the jurisdiction of the courts to make family provision orders, noting that:

... the ability to make such claims has historically been confined to cases where the deceased had a clear responsibility to provide for the claimant, which has usually been associated with family members for whom no or insufficient provision is made and a maintenance allowance is appropriate.[18]

To reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws, the bill amends the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made.

Only specified categories of people will be eligible to make a claim. The deceased's children and stepchildren under 18 (and full-time students up to the age of 25), children with a disability, spouses or domestic partners at the time of death, and former spouses and partners who have not had recourse to the Family Law Act 1975 before the death may apply for a family provision claim as of right. For other specified applicants, the court will also need to be satisfied that they were financially wholly or partly dependent on the deceased at the time of the deceased's death. This category includes adult children or stepchildren, registered caring partners, grandchildren and other members of the deceased's household at the time of the deceased's death.[19]

48 Accordingly, while the terms of s 91A(2)(m) of the Act provide the Court with sufficient flexibility to consider any matter which might be relevant in making an award for provision, one must be cautious in using that flexibility to in effect evade the policy behind and the limitations imposed by the 2015 amendments. Nonetheless, the award to Ari of an amount less than the entirety of the estate reflects not only the prohibition upon making an award over and above what amounts to adequate provision in s 91(5)(a) of the Act, but also that Anastasia's competing claim to the estate ought not be entirely ignored.

49 There is no evidence that the deceased intended Anastasia to directly benefit from the will. Further, while I accept that the Main Ridge property is Anastasia's home, and was intended to be her long term home, she has only lived there for six years. And, while Sotirios' death has deprived her of financial and emotional support, she is in a far better financial position than Ari, with current assets of approximately $1 million, of which $700,000 is in cash, compared with nil for Ari. She has no dependants, and there is no evidence that her health problems will prevent her from working until normal retirement age.

50 Accordingly, taking into account all of the relevant factors, Ari should receive the bulk of the estate. An award of $416,000 will enable him to clear his debts, and to place a sizeable deposit upon a property in the suburbs of Melbourne. He would, in effect, receive the inheritance he was prepared to trade away nearly a decade ago, plus a modest additional amount, to cover his debts and thus make a fresh start with his new family. The net sum of $344,000 will, with a mortgage of $300,000, enable him to purchase a home with a value of approximately eighty per cent of the Melbourne median house price, which would provide security for his young family, and put him in a substantially better position than he currently is.

51 Accordingly, I will order that there be further provision from the estate of Andreas in the sum of $416,000. I shall hear further from counsel on the question of costs.

[1] Being the agreed share of a debt pursuant to a line of credit secured against the Main Ridge property, and approximately $25,000 in other liabilities associated with winding up the estate.

[2] Having received further correspondence from the parties regarding the costs incurred by the parties and the liabilities of the estate, this figure may be closer to $500,000, not $520,000. The assumption that it will be ordered that each party's solicitor client costs will be paid from the estate may turn out to be misplaced.

[3] See Brimelow v Alampi [2016] VSC 135; (2016) 50 VR 219 (McMillan J); Re Williams; Smith v Thwaites [2017] VSC 365 (McMillan J)); Re McKenzie [2017] VSC 792 (McMillan J); Re Marsella; Marsella v Wareham [2018] VSC 312 (McMillan J); and Naismith v Fraser [2018] VSC 689 (Zammit J). See also Freeman v Payne & Anor [2017] VCC 1941 per Judge Smith.

[4] [2016] VSC 135; (2016) 50 VR 219.

[5] Ibid [11], s 91(2) of the Act.

[6] Ibid [12], referring to Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

[10] See s 91(2)(b) and the definition of 'eligible person' under s 90 of the Act.

[11] See s 91(4)(c) of the Act.

[12] (1997) 2 VR 359.

[14] This submission was made when it was anticipated that Anastasia would receive only $600,000, not $700,000 from Sotirios' superannuation fund.

[15] [1975] 3 All ER 333.

[16] The median house price in the Melbourne metropolitan area in December 2018 was $797,000, while the median unit price was $589,000 (Source: Real Estate Institute of Victoria).

[18] Victoria, Parliamentary Debates, Legislative Council, 20 August 2014, 2617 (Hon E.J. O'Donohue, Minister for Liquor and Gaming Regulation).