Plaintiff v Defendant

2 The will provided that, if Jack was not married with at least one child at the time of his mother's death (which he was not), he was to receive a legacy of $100,000. The will otherwise left the estate to Kay. Clause 4 of the will provides:

I DIRECT all persons to take notice that I have assisted my son JACK PAVLIDIS during my lifetime which enabled him to acquire a property at 1 Zander Court, Doncaster in the State of Victoria and given his inconsistent treatment towards me I say that the bequest made in the preceding paragraph is a statement of my intent as to what I wish him to receive under the terms of my Will if he is not married and has neither a child or children at the time of my death.

3 The will provided that, if Jack had children, then one-third of the estate was to be held on trust for those children until they reached the age of 25.

4 Jack brings a claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (the Act) for further provision from the estate. Jack filed the application on 8 December 2021. As it is beyond the six-month period prescribed by s 99 of the Act, Jack requires an extension of time pursuant to s 99(2). Kay opposes an extension of time being granted.

5 If an extension is granted, the question for the Court will be whether the will makes adequate provision for the proper maintenance and support of Jack. In broad terms, Kay submits that Jack has not established a financial need and so no further provision is necessary. If further provision is to be made, she submits that she also has financial needs that are to be taken into account, and that her present financial position is precarious.

7 The deceased was 66 when she died from endometrial cancer, first diagnosed in around 2012. She married Percy Pavlidis in 1970 and they separated in 2004 and subsequently divorced around 2008. Their children are Jack, born 29 June 1971, and Kay, born 7 August 1974. At the time of her death the deceased was the registered proprietor of 2 Zander Court, Doncaster. She became sole owner as a result of the divorce settlement.

8 In 1999, Kay purchased a property at Doncaster East Rd, Mitcham. In 2001, Kay met her future husband, Lazaros, while visiting family in Greece. They married in Melbourne in July 2002. Kay and Lazaros lived at 2 Zander Court until moving into rental accommodation and then, in 2005, to Kay's house in Mitcham. Kay and Lazaros have two daughters, born in 2006 and 2008. The couple separated in 2017 and became embroiled in a bitter family law dispute that eventually resulted in consent orders made on 30 August 2021.

9 In 2011, Jack purchased 1 Zander Court, Doncaster for $654,000. Title was transferred in February 2012.

10 The deceased had a Commonwealth Bank term deposit account. On 18 October 2019, the account was closed and the balance of funds ($31,152.57) were transferred to a Commonwealth Bank Estate account. On the same day, the balance of funds in another Commonwealth Bank account ($368,416.05) were also transferred to the same Estate account. The total sum of $399,568.62 was deposited in the Estate account.[1]

11 Jack lodged a caveat over the deceased's property at 2 Zander Court on 22 October 2021.

12 By email dated 30 November 2021, Kay's solicitors advised that she was ready to distribute the estate in accordance with the will. The email advised that the bequest of $100,000 would be paid upon withdrawal of the caveat. On 29 November 2021 the Estate account had a credit balance of $146,189.84.[2]

13 By 6 December 2021, the Estate account had a credit balance of $1,189.

14 On 6 December 2021 Jack gave notice of his intent to commence this proceeding.

15 On 21 December 2021, Kay sold 2 Zander Court for $1,350,000. Settlement occurred on 28 April 2022. Adjustments and selling costs reduced the net proceeds to $1,288,553.44. From this has been deducted the amount owing to Kay's former husband in the family law dispute of $399,052.15. The balance held in Kay's solicitor's trust account was $889,501.29.

16 On 12 May 2022, a trust cheque in the amount of $100,000 and payable to Jack was sent to Jack's solicitors.

17 Apart from the above facts and the bare bones of the family relationships, there is very little that the plaintiff and defendant agreed upon. Jack and Kay gave conflicting and irreconcilable evidence in their affidavits and viva voce evidence, even to the point that Jack says they once had a close relationship but Kay denies it was ever so.[3] The following evidence was disputed.

18 Jack's first affidavit deposed to his father having encouraged him to start 'his company', Pot Black Investments, in 1999. He said through this company he purchased a Tattersalls outlet in Preston market,[4] with a loan guaranteed by his parents. Jack said that he ran the outlet for between three and four years, after which he sold it for $400,000 and purchased a property at 150 Johnson St, Collingwood.[5]

19 Jack deposed that he subsequently sold the Johnson St property - receiving approximately $550,000 net proceeds - and that he used 10% of those proceeds to pay a deposit on his purchase of 1 Zander Court, Doncaster. Jack said he funded the remainder of the purchase with a Westpac loan secured by a mortgage.[6]

20 In direct conflict with this account, Kay deposed that Pot Black Investments was a family company. She, Jack and their parents had been directors and shareholders at various times. Kay said that Jack was an employee in the Tattersalls business, and that when it was sold the parents gave a portion of the proceeds, approximately $40,000, to Jack. Kay said that when Pot Black Investments sold the Johnson St property in April 2013, their mother was sole director and shareholder and received the proceeds, which were paid into her Commonwealth Bank account.[7]

21 Kay deposed that Jack did not have the money to purchase 1 Zander Court in 2011. She disputed that he used funds from the proceeds of the Johnson St sale and said Jack borrowed the deposit money from a friend. She said Jack pressured his mother to be a guarantor of the loan for 1 Zander Court and that under pressure she signed a guarantee and provided a mortgage of her own unencumbered property as security.

22 In cross examination Jack conceded that his father set up Pot Black Investments, but maintained it was for his benefit. He agreed that his father organised the purchase and that on selling the Tattersalls business there was a profit of approximately $50,000. He agreed that from 2004 his mother was the sole director and shareholder of Pot Black Investments. He agreed that the company purchased the Johnson St property with funds provided by his parents and not him and that his mother received the rental income from the property and net proceeds from the sale. Jack said that he undertook maintenance work and looked after the property.

23 Jack accepted that his affidavit was wrong when he said that he used some of the proceeds of the sale of Johnson St to purchase 1 Zander Court and agreed that his mother mortgaged her home at 2 Zander Court as security for her guarantee of his loan.

24 Jack maintained in cross-examination that the establishment of Pot Black Investments, the purchase of the Tattersall's business, then Johnson St, and finally the guarantee of 1 Zander Court were all done with the assistance of his parents who wished to help him become established.[8]

25 In his first affidavit, Jack said that he deposited the $500,000 remaining of the net proceeds of the Johnson St property into an offset account that would reduce his loan and from which mortgage repayments would be made on a monthly basis.[9] He said he understood that he and his mother were joint signatories and either could sign on the offset account.

26 When Jack missed mortgage payments, Westpac deducted those payments from the offset account. Jack withdrew additional amounts from the offset account on several occasions.

27 Jack said that he set up the offset account to 'give my mother comfort'.[10] In his first affidavit, he said that the funds in the offset account belonged to him and that the remaining funds from that account - which were subsequently transferred to his mother's account and became part of the estate account - in fact belonged to him.[11] However, Jack accepted in cross-examination that the funds placed in the offset account belonged to his mother.

28 Kay said that in 2014 Jack pressured his mother to transfer $500,000 from the proceeds of the Johnson St sale from her account into the offset account.[12] Like Jack, Kay also said that Jack and his mother were joint signatories on the offset account.

29 Kay's evidence was that Jack misled their mother about the offset account. According to Kay, their mother always intended the transfer to the offset account to be a loan, and her mother was not aware that Westpac was deducting amounts from the account without her consent.[13] Jack disputed the allegation that his mother was unaware of withdrawals.

30 Kay exhibited correspondence showing that the deceased sought legal advice from David Phillips, a solicitor, for the return of the $500,000 and the discharge of the guarantee.[14] In a letter written to Westpac, Mr Phillips noted his instructions were that Jack had lived with his mother most of his adult life and she had not wished to be involved in the purchase of 1 Zander Court. Mr Phillips set out the circumstances in which the guarantee was provided, alleging undue pressure. He said the deceased had been told by the bank that she would be the only signatory, but that she learnt in 2016 that there had been withdrawals about which she was unaware. The letter confirmed that the deceased had helped Jack with his mortgage from time to time.

31 Kay said that although she took her mother to the appointment with Mr Phillips, she did not attend with her and was not party to the discussion or privy to the instructions.

32 Mr Phillips made a complaint to the Financial Services Ombudsman on behalf of the deceased in 2016. Jack was not contacted in the course of that investigation and had no opportunity to address the allegations. The Ombudsman concluded that the funds provided to Jack were a loan and not a gift. The Ombudsman said that withdrawal of funds should have required both signatures, but that $90,694 had been withdrawn (constituting both the loan repayments and Jack's other withdrawals) without the deceased's signature. The investigation therefore recommended that Westpac repay the deceased $77,056 (the amount withdrawn less the amount of the deceased's funds deposited into the offset account).[15] Westpac paid that amount to the deceased.

33 Kay described this amount as a 'windfall' in favour of Jack, because it was Westpac, not Jack, which repaid it to their mother. However, Westpac recouped this amount from Jack when it sold 1 Zander Court.

34 Jack repaid the balance of the funds in the offset account, just over $400,000, to his mother on 31 October 2017.

Care of Evangelia after the divorce and during her illness

35 Jack and Kay gave conflicting evidence about their respective care of their mother both following her divorce and after her diagnosis of endometrial cancer in 2012.

36 Jack deposed that he moved in with his mother approximately 20 years ago.[16] Initially this was in the context of his mother attempting suicide in the aftermath of the divorce. At that time Jack was in a relationship and engaged to be married. Jack said that his relationship ended when he moved back in with his mother. He said he ceased working in 2017 to look after his mother when she became extremely ill. This included paying for the services of a Sydney doctor, including expenses associated with accompanying his mother to Sydney several times.[17]

37 Jack deposed that the only time Kay assisted their mother was during the 12-month period commencing March 2016, when Jack was subject to an intervention order with respect to his mother (detailed below). He said that he returned to live with his mother when the intervention order lapsed 12 months later, and that during the last four months of their mother's life, Kay had nothing to do with her.[18]

38 Kay deposed that Jack lived with their mother because he struggled to maintain stable employment, but said that Jack did not live with their mother for at least the last five years of her life.[19] Kay said Jack would hassle their mother for money repeatedly.[20] Kay deposed that during the period of the intervention order their mother became very sick. Kay said that she travelled to Osaka with her mother in May 2016 so that she could receive treatment, and that her mother moved into Kay's family home, where Kay would care for her. Kay was working part time but had to reduce her hours then cease work in order to care for her mother on a full time basis.[21]

39 Kay refutes Jack's evidence that he cared for their mother.[22] She deposes that their mother told her that she wanted nothing to do with Jack, and did not want to give him any money upon her death.[23] Jack gave evidence of continuous employment, mostly self-employment as a licenced investigator until ceasing work to care for his mother in 2017.

40 Mr Phillips' letter on instructions from the deceased confirmed that Jack had largely lived with her 'for the majority of his adult life, certainly over the last 10-15 years'.[24]

41 Both Jack and Kay gave accounts of their mother's last day of life in palliative care, each disputing that the other attended and sat with her in her final hours.

Jack's alleged violence and the intervention order

42 Kay gave evidence that Jack is prone to violence and aggression. She said that he initiated altercations with Kay frequently, including on one occasion where he grabbed her throat, tried to strangle her and lifted her off the ground.[25]

43 Kay deposed that Victoria Police issued a Family Violence Safety Order against Jack on 2 March 2016 in order to protect their mother. According to the notice, Jack had argued with their mother and damaged her property, and their mother was fearful, leading to concerns for her wellbeing.[26]

44 In his second affidavit, Jack denied much of the above evidence. He denied harassing his mother for money.[27] He deposed that he was not aggressive nor violent, and has never been in an altercation with his sister or mother. He said that Kay instigated the intervention order as a result of a dispute between Jack and Kay's then-husband Lazaros.

45 In oral evidence, Jack conceded that he did have an argument with his mother on 2 March 2016 - a 'disagreement, not a conflict' - and said that the police came to his house in response and served an application for an intervention order against him. He said he did not contest it because he was emotionally distressed.[28] The order prevented Jack from going to his mother's house for 12 months.[29]

Financial assistance provided to her children during the deceased's lifetime

46 Jack deposed that his mother paid school fees for Kay's two daughters, and also gave Kay and Lazaros $150,000 to purchase a café in Brunswick. Jack said that Kay manipulated their mother by threatening to commit suicide if she didn't financially assist her.[30]

47 Kay disputed this evidence. She deposed that her mother did not gift her and Lazaros $150,000, and never assisted with school fees.[31] She said that her parents loaned her and Lazaros $100,000 and that when she and Lazaros separated, Kay repaid that amount using part of the funds Lazaros obtained when he compelled her to re-finance her home. The re-finance that he organised was for $500,000.[32]

48 In cross-examination, Jack said that he did not need to hassle his mother for money as he was financially 'self-sufficient'.[33]

49 The parties were also in conflict about when Jack first received a copy of the deceased's will.

50 Kay deposed that she gave Jack a copy of the will in December 2017, shortly after their mother's death, when she attended 2 Zander Court to inspect the property and saw Jack there. She said that she told him she was the executor and gave him the will.[34] In an email sent to Jack on 1 December 2021, Kay's solicitor writes, 'our client gave a copy of the...Will to your client following the funeral service in November 2017'.[35]

51 Jack denied that he was given the will either following the funeral or at Zander Court in December 2017. He deposed that by October 2018, almost a year after his mother's death, he had still not received a copy of the will. He said that he instructed a solicitor, John Velos of Velos & Velos Lawyers, to enquire about the will. On 11 October 2018, Velos & Velos Lawyers wrote separately to Kay and to her solicitor, D E Phillips & Co, seeking a copy of the will.[36]

52 DE Phillips & Co emailed in response, stating that Mr Phillips had acted on behalf of the deceased, who had left a will nominating Kay as sole executrix, but that he was then advised to cease acting and hand over all files and trust funds to Kay.[37] Kay provided no communication to him as to new lawyers engaged. Jack said that he tried to communicate with Kay repeatedly to obtain a copy, but that she refused to communicate or answer his calls. He alleged that she actively avoided sending him a copy of the will.[38]

53 Kay denied receiving the letter from DE Phillips & Co.[39] Kay also denied avoiding Jack's calls and correspondence, deposing that she and her brother were estranged so he did not have her number to call her.[40]

Impact of Kay's family law proceeding upon the winding up of the estate

54 Although probate was granted in November 2018, Kay did not immediately distribute the $100,000 to Jack. By October 2021, there still had been no communication as to the distribution of the estate in accordance with the will.

55 Jack deposed that in October 2021 he instructed his present lawyers to file a caveat over his mother's property. On 30 November 2021, shortly after filing the caveat, the lawyers received an email from JosephDavid Lawyers, which said that Kay was ready to distribute the estate in accordance with the will, stating that the matter had previously been delayed by Family Court proceedings.[41]

56 Much of Kay's cross-examination focused on her explanation for delaying obtaining probate and not distributing the bequest to Jack in accordance with the will for more than four years.[42] She said that she delayed obtaining probate until November 2018 because she was immersed in the divorce process.[43] When it was pointed out to Kay that her mother died a few months before her divorce, and that she could have obtained probate then, she said that she was unable to do because she was grieving her mother's death.[44]

57 Kay deposed that, after obtaining probate, she delayed distributing the $100,000 to Jack because of the family law proceedings. She said that her lawyers' advice was that it might look unfavourable in the Family Court if she was diminishing and hiding assets from her ex-spouse, and so she should wait until after the proceedings were finalised before selling her mother's property and distributing the $100,000.[45]

58 The family law proceeding reached a settlement in August 2021. Consent orders required Kay to pay to her ex-husband the sum of $395,000 within 180 days, with Kay to retain the house in Mitcham. The property settlement was reached in the light of full disclosure by Kay of the estate property at 2 Zander Court which would pass to her under the will. It was contemplated that if the sum could not otherwise be paid by Kay it would be paid from the proceeds of sale of 2 Zander Court. There was nothing to suggest that Jack was aware of those orders up to or at the time they were made. Kay was unable to pay her former husband and did not pay her brother until after the sale of 2 Zander Court.

59 The sale of 2 Zander Court was further delayed because Jack had lodged the caveat, and also because he been living there and so Kay was unable to present the house for sale. Ultimately Jack removed the caveat and the property sold for $1,350,000.

Evidence of financial need of the plaintiff and defendant

60 Jack and Kay both gave evidence about their financial circumstances. Jack deposed that he has been unemployed since his mother became ill. Although he was defaulting on his mortgage payments, Jack said that he did not receive default notices because he was not living at 1 or 2 Zander Court during the 12 months of the intervention order. Westpac subsequently sold his house at 1 Zander Court for $1,216,000.[46] His oral evidence was that he received about $200,000 net proceeds from this sale.[47]

61 Jack deposed that he does not receive any Centrelink benefits. In February 2022 he deposed to savings of approximately $30,000 and expenses of approximately $300 per week.[48] He paid no rent as at that time he was living at 2 Zander Court. In November 2022 he deposed to approximately $50,000 in savings[49] and living expenses in November 2022 of approximately $785 per week including rent or board of $250.[50]

62 Kay deposed that she has an extremely difficult financial situation. Her evidence was that:

(a) she paid $395,000 plus interest to her ex-husband on 28 April 2022 from the proceeds of sale of 2 Zander Court;[51]

(b) she is a single mother with two children, both of whom have medical conditions that require care;[52]

(c) her employment contract ($66,767 per annum) has not been extended beyond January 2023;[53]

(d) she is in arrears on school fees;[54]

(e) she owns a $1.1m home with an outstanding mortgage of $327,207.40 as at 8 November 2022. She is behind on her mortgage payments and the Commonwealth Bank has obtained a judgment order for the recovery of the land;[55]

(f) Lazaros does not provide periodic child support payments for their eldest daughter. He only assists with school fees and medical expenses;[56] and

(g) she has not applied for Centrelink benefits because she has had bad experiences with Centrelink in the past.[57]

63 Short evidence was called by Jack from three additional witnesses. Sandra Krause gave evidence that she was a friend of the deceased, having met her in about 2013. She said she met the deceased at least once a week for coffee. She said that the deceased spoke well of her son Jack, and that Sandra observed Jack caring for his mother when she was ill. She said that independently of knowing the deceased she had also known Jack for about 10 years. She said in-cross examination that since mid-2022 Jack had lived in her home and paid about $250 per week for board and utilities. There was a discrepancy between the amounts deposed to by Jack and those in Sandra Krause's evidence.

64 Mr Karamouratidis gave evidence. He had been a friend of Jack and his mother for over 30 years. He said he never witnessed a cross word between Jack and his mother. He was unaware of the restraining order and accepted that there might be aspects of Jack's relationship with his mother about which he was unaware.

65 Finally Anna Mahony was called. She is Frank Karamouratidis's sister and said she also had known the Pavlidis family for about 30 years. She described Jack and Kay as being close, as was the relationship between Jack and his mother. She was aware of the intervention order but not the circumstances. She accepted in cross-examination that she had not observed Jack and his mother interacting in the last five years or so of the deceased's life.

66 In broad terms I accept that Jack and his mother had a good relationship over the years. It is not possible to draw any conclusion about the longer term relationship between Jack and Kay, but it is clear that presently Kay holds feelings of enmity and antipathy towards her brother. It is also clear that at least from 2012 when Jack purchased 1 Zander Court, his mother felt pressured to provide financial support in terms of a guarantee for his borrowings and she was unhappy about this. This clearly explained and impacted upon the testamentary disposition towards Jack.

67 I accept however that Jack received no substantial windfall from his mother's support, as the amounts were largely repaid by him or by Westpac, which subsequently obtained reimbursement from him. Westpac's release of funds in the offset account to Jack not co-signed by his mother was an error on the part of Westpac. As Jack had no opportunity to be heard in the Ombudsman's investigation, I draw no adverse conclusion about him from the findings.

68 Section 99 of the Act provides for the timing of applications for a family provision order. An application is to be made within six months of a grant of probate of the will or letters of administration in accordance with s 99(1). If an application is made after that time it can only proceed if the Court grants an extension of time in accordance with s 99(2). The plaintiff bears the burden of satisfying the Court that it is in the interests of justice to grant the extension sought.[58] The Court's task is to take account of all of the individual matters the parties rely on to answer the question: is it in the interests of justice that the plaintiff be relieved from the position that only claims brought within the six month limitation period are permitted? [59]

69 In answering that question, at least three broad matters require attention:

(a) Does the plaintiff have an arguable case?

(b) What is the period of time during which there has been delay and how is the delay explained?

(c) Is there any prejudice to beneficiaries or others if time is extended?

70 As the Court of Appeal said in Maher v Maher,[60] the discretion is not confined by rigid rules. Although the statute does not provide specific criteria relevant to the exercise of the discretion, it is nevertheless to be exercised in accordance with the subject matter, scope and purpose of s 91 of the Act. That purpose is to ensure adequate provision is made for those to whom a testator has an obligation to provide. The Court observed:

...some matters will ordinarily be relevant. They include the length of the delay, the reasons for the delay, whether prejudice to other interested parties would result from making an order (other than the prejudice inherent in disturbing the terms of a distribution which would have been in their favour), and the strength of the case. Other considerations may also be relevant, depending on the nature of the case.

The fact that these factors are relevant does not mean that an applicant is required to satisfy the Court as to each of them individually. For example, it has been noted that an extension may be granted where delay has not been satisfactorily explained. Rather, a balancing exercise is involved in which the Court addresses the question whether an extension of time is in the interests of justice, having regard to the purpose of s91 to enable proper provision to be made for those eligible to make applications.

In particular, while the strength of an applicant's claim for relief is a relevant factor to be considered, along with other factors, that consideration is not determinative except in cases where the prospects are hopeless, so that extending time would be futile. Conversely, the fact that a case is arguable does not, of itself, mean that time must be extended.[61]

71 Further, an application to extend time may only be considered where there has not been a final distribution of the estate.[62] It is common ground that this has not yet occurred. The sum of $930,988.74 held in the estate account remained for distribution after the sale of 2 Zander Court, comprising $1,189 held in the Estate account, shares with an estimated value of $40,298.45 and net proceeds of the sale in the sum of $889,501.29 after deduction of Kay's Family Court Order liability.

72 As to an extension of time, Jack submitted that a benefit of $100,000 when the total estate is worth nearly $2,000,000 is clearly inadequate, subject to demonstrating need. Jack submitted that his present circumstances - being unemployed; without secure accommodation; and not receiving Centrelink benefits - establish an arguable need.

73 Jack's reason for the delay and its length is based upon his evidence that he did not receive a copy of the will until November 2021. As set out above, Jack gave notice of an intent to claim further provision on 6 December 2021 and commenced the proceeding on 8 December 2021 without delay.

74 Kay submits that she is prejudiced, stating that she would not have settled her family law proceeding for the amount that she did had she known of her brother's intention to claim. Jack submits that any such prejudice, though asserted, is not demonstrated by evidence. Kay says that since 2017 she has arranged her financial circumstances in accordance with the will on the basis that Jack would not make further claim, and that this includes the settlement of the family law proceedings in 2021. She says she would suffer prejudice if time is extended as her present financial circumstances are precarious and any further provision will adversely affect her own needs.

75 Kay maintains that she gave her brother a copy of the will at or shortly after their mother's funeral and therefore submits that there is no explanation for the length of the delay. Even if I do not accept this account, Kay submits that Jack could have obtained a copy of the will from the Registrar of Probates.

76 Kay submits that Jack does not have an arguable claim on the basis of need assessed at the time of the deceased's death. She says that as at November 2017, Jack was the registered proprietor of 1 Zander Court and was an able-bodied son who owned his own house.

77 Kay submits further that Jack's conduct towards his mother disentitled him to any further provision from the estate.

78 Jack's explanation for the delay, and its length, is that he was not aware of the content of the will. I accept his evidence on this point largely because his and Kay's actions between 2017 and 2021 are consistent with this conclusion. I do not accept Kay's evidence that she handed Jack a copy of the will when she attended 2 Zander Court in December 2017. Although the original explanation - that it was provided 'following the funeral service' - is not strictly at odds with this explanation, it is unusual to orient in time an event by reference to a funeral service if the event occurred a later meeting at the deceased's home.

79 In any event, letters sent in 2018 seeking a copy of the will are consistent with a lack of knowledge of its contents. Had Jack known of the bequest in the will while the bank was selling his home in 2018, he surely would have sought access to the funds to save his home. Equally, Kay elected to defer payment of the bequest to her brother until 2022. Had she given him a copy of the will in 2017, it was likely that he would have made a request for payment at that time. Given the cash funds available in the estate, the bequest could have been paid in a timely fashion. If so, any claim for further provision would likely have commenced at an earlier time.

80 While it was submitted that lawyers could have searched the probate file, it was not suggested that Jack himself should have known to do this. Any search prior to November 2018 would not have uncovered the will, as probate had not been taken out.

81 Kay did nothing as executor herself or through the lawyers she instructed to notify Jack of the will's terms until she was ready to distribute the balance of the estate. She chose to do this after the conclusion of her family law proceedings and then the sale of her mother's house.

82 Kay submits that she will suffer prejudice if the extension is granted. She says that she resolved her family law proceedings on the assumption that she would receive all of her mother's estate other than the specific gift to Jack. Accepting that this might be so, the extent of any prejudice is not addressed. In the circumstances where the estate is worth about $1,970,000 and the payment on settlement of the family law proceedings was $395,000, the extent of any prejudice is not entirely clear and there is no evidence of what different or more favourable outcome might have been available to Kay. Any prejudice would in any event be ameliorated by the obligation to have regard to the impact of any further provision, if one is necessary, upon the needs of other beneficiaries. Kay's needs could be addressed as at the time of trial and in light of the family law settlement. The prejudice is in my view not so great that Jack's claim should be denied an assessment on its merits.

83 Questions of need and any conduct that might disentitle Jack to further provision are considerations principally for the claim on its merit. Questions about Jack's degree of dependence as an adult on his mother, the degree of care he provided to her and the level of financial assistance provided to him prior to his mother's death are all contentious matters. The factual scenario is not so clear as to provide a basis to refuse an extension of time.

85 Provision may be ordered from a deceased person's estate to an eligible person in accordance with s 90A of the Act. An eligible person, defined in s 90, includes a child of the deceased, incorporating by subsection (f) of the definition an adult child. Jack is an eligible person.

86 The Court must not make provision to an eligible person unless the requirements of s 91(2) of the Act are met. Relevantly, the applicant in this matter must satisfy the Court:

...

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

(d) that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by -

(i) the deceased's will (if any); or

...

87 As Jack is an adult child, s 91(4) is also relevant. It provides that in determining the amount of provision, the Court must take into account:

(c) in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, 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; ...

88 Where an amount is ordered, it must not provide for an amount greater than is necessary for proper maintenance and support,[63] and in the case of an adult child must be proportionate to the degree of dependency on the deceased at the time of her death.[64]

89 In making a family provision order the Court must have regard to the three mandatory factors set out in s 91A(1) of the Act, and may have regard to any of the 11 specific discretionary factors in s 91A(2)(a)-(l) it considers relevant, and the general catchall of 'any other matter the Court considers relevant' in s 91A(m). These factors are dealt with below.

90 The power to make a family provision order displaces the testator's freedom to dispose of her property as she sees fit.[65] It is based upon the recognition that a testator has a responsibility to make provision for certain persons, and intrudes only when satisfied that the obligation has not been met. Historically this has been described as a 'moral duty', distinguishing it from a legally enforceable obligation.[66] The extent of the obligation is judged by the Court placing itself in the position of a 'wise and just testator', and judged according to current community standards.[67]

91 When the Court considers whether the estate has made adequate provision, each word in the phrase 'proper maintenance and support' is to be given weight and meaning.[68] Proper maintenance and support is a broader concept than the alleviation of poverty. The Court can take into account the vicissitudes of life and needs that arise from an eligible person's inability to meet unexpected demands on their resources.[69] It is tempered by the capacity of the estate to meet the need for the claimant and others to whom the testator has an obligation.

92 The exercise does not permit a court to achieve equality or fairness amongst those entitled to share the testator's bounty.[70] In the context of a claim by an adult son it is said:

'Adequate' and 'proper' in particular must be considered as words which must always be relative....What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they may be elastic, cannot be pressed beyond a fair meaning.....it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in a will have only prima facie effect, the real dispositive power being vested in the Court.[71]

93 The way these principles operate for an adult child were summarised by Hallen J in Walsh v Walsh.[72] The summary included:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. ...

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. ... But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute...

(d) If the applicant has an obligation to support others, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons...

(e) There is no need for an applicant adult child to show some special need or some special claim...

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased...

(h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.

94 The adequacy of provision is assessed at the time of death, in light of matters known or reasonably foreseeable to a testator.[73] Where further provision is to be made, the Court assesses need and the claimant's circumstances as at the time of trial.[74]

95 Jack submits that the testator has a moral obligation to provide for him on the basis of a persisting bond as between mother and son, but also on the basis of his care for her over a lengthy period of time. He submits that there is a strong moral obligation, considering that he ended his relationship with his fiancée, gave up work and moved home to live at 2 Zander Court, in order to care for his mother in the aftermath of her separation and divorce from her husband, and then continued to care for her during her illness. Although Jack owned a home when his mother died, he says that he did not live in it and it was subject to borrowings. He had difficulty servicing the loan. The evidence discloses that Jack remained to some degree dependent upon his mother in adulthood.

96 Jack submits that he has demonstrated financial need as at the date of trial. He notes that he is unemployed, he is not receiving Centrelink benefits, he no longer owns a home and he is living in a friend's house and paying board. Although Jack wishes to resume work as a security person and has capacity to do so, he submits that such a wage will be insufficient to allow him to deal with the vicissitudes of life. He submits that he is presently experiencing hard times and is in need of a buffer or security to deal with vicissitudes.

97 Jack submits that an order for payment of $500,000, including the $100,000 provided for in the will, would be a reasonable sum. He submits that this sum would result in Kay receiving approximately $1,200,000 from the estate. Despite Kay's submissions of competing and dire financial need, there is little evidence to substantiate this in circumstances.

98 Kay's principal submission is that Jack has not demonstrated any financial need as at the date of his mother's death and in any event by his conduct has disentitled himself from any further provision. Kay notes that Jack owned his own house and was self-sufficient. She submits that accordingly, the legacy in the will is adequate.

99 As outlined above, Kay submits that she resolved Family Court proceedings on the basis that she was absolutely entitled to 2 Zander Court and the balance of the estate save for the specific legacy of $100,000. Those family court orders cannot now be undone. She says she would be prejudiced by a reduction of her entitlement in order to meet an order for further provision to Jack.

100 The will made specific reference to the reasons why the deceased bequeathed the legacy (and nothing more) to her son, referencing financial assistance she provided him during her lifetime. This is a mandatory consideration.[75] Kay implicitly submitted that I should also take account of the fact that the deceased became aware that Jack took advantage of her by withdrawing her funds for his own benefit. Kay submits that Jack's dishonest and threatening behaviour absolved the deceased of any moral duty to make any more significant provision.

101 Finally, Kay submits that if any further provision is to be made it should be limited to a maximum of a further $100,000.

102 The evidence of both the plaintiff and the defendant was most unsatisfactory. Very little of the assertions made by either have any great evidentiary value. Much of Jack's evidence was demonstrably wrong (although he readily conceded a number of errors in cross-examination). I found Kay's evidence often self-serving and displaying an animosity towards Jack. Therefore I am hesitant to accept her explanations and am cautious about the accuracy of her recollections.

103 Both Jack and Kay had gaps in their evidence about financial matters; Jack glossed over what had happened to funds he received from the mortgagee sale of 1 Zander Court, and Kay made a number of assertions about financial hardship but gave scant supporting evidence. Distributions by Kay to herself from the estate since 2017 are not set out clearly, and an incomplete picture can only be gleaned from those bank statements that are provided. Both adult children are presently in somewhat precarious circumstances financially regarding living arrangements; Jack is living with a friend in a semi-temporary arrangement, and Kay is in arrears of her mortgage.

104 Bearing in mind Jack's circumstances as at 2017 and that there is no presumption that children will be treated equally, I am of the view that the fixed sum of $100,000 does not make adequate provision for Jack's proper maintenance and support.

105 As to the mandatory considerations I accept that the testator clearly wished to favour her daughter. She expressed a limitation on the bequest to her son based upon financial support she provided him during her lifetime. While I accept this was her clear wish, the value of that assistance was overstated given circumstances at the time she prepared the will. The amount she provided of $500,000 placed in the offset account was substantially repaid. Apart from the express words in the will I am not satisfied there is any other reliable evidence of the deceased's intentions regarding provision for her son. I do not intend to place any weight on the comments attributed to the deceased by Kay that Jack should 'not be given a cent'.[76]

106 As to the relevant discretionary considerations:

(a) The relationship between mother and son was, as far as finances are concerned, strained. I accept that in 2014, according to the instructions set out in Mr Phillips' letter to the Financial Services Ombudsman, that the deceased felt pressured to provide a guarantee. Despite the intervention order in 2016, I am not persuaded that the relationship was generally characterised by violent or aggressive behaviour. A longer term perspective as provided by Sandra Krause, Frank Karamouratidis and Anna Mahony demonstrates positive aspects of the relationship;

(b) The deceased had obligations only to her two children as beneficiaries;

(c) The estate is one of approximately $1,970,000. Apart from any land tax liability on 2 Zander Court and costs associated with the funeral arrangements, there are no significant liabilities;

(d) Kay and Jack are presently unemployed; both have financial needs. Neither was in receipt of Centrelink at the time of trial. Kay is now a single parent with two children to support. Although she retained her house in the divorce settlement, her repayments are currently in arrears. She has not been able to make mortgage repayments since 15 July 2022, and as at 8 December 2022 the outstanding mortgage amount was $327,207.40.[77] She has been informed that further enforcement for the re-possession of her home may recommence.[78] As at 8 December 2022 she also owes an outstanding Centrelink debt of $19,736.84.[79] Her children have a number of diagnosed or suspected medical issues that cause both financial and personal stress to manage. Kay deposed to relying on the full entitlement of her mother's estate to maintain and support her daughters and herself;

(e) Neither Jack nor Kay has any physical or mental disability;

(f) Jack is aged 51;

(g) Jack has made no measurable financial contribution to the building up of his mother's estate. Given the conflicting evidence as to care, it is difficult to assess the contribution to his mother's welfare;

(h) The deceased gave substantial benefits, including the deposit of $500,000 into the offset account. However, the majority of this was repaid. While Jack received some support with mortgage payments, benefits during his lifetime were limited. I do not accept that Jack obtained a windfall by Westpac having repaid the deceased for unauthorised withdrawals, as Westpac ultimately recouped that cost from Jack;

(i) The deceased was providing some assistance to Jack with mortgage repayments, which cannot be quantified;

(j) No other person is liable to maintain Jack. He will need to be self-sufficient;

(k) As discussed above, Jack's character and conduct have been less than exemplary but he has not obtained substantial financial advantage by that conduct and the conduct is to be viewed in the context of other aspects of the claim including need.[80]

107 At time of his mother's death, Jack owned a house that was mortgaged and he was not employed. It is hardly surprising that he was having difficulty servicing a mortgage absent outside assistance. I accept that for at least part of the years prior to his mother's death Jack was out of the workforce and took on caring responsibilities for his mother. I also accept that Kay took on caring responsibilities during the year that the intervention order was in place and that her mother's declining health meant that she needed to reduce and then cease employment to meet her caring obligations.

108 Kay's explanation as to why she delayed distributing the estate centred on two reasons. First, because she was dealing with her mother's death and then a 'drawn out and tumultuous'[81] family law dispute that took a toll, such that she could not cope with dealing with the estate as well. Second, because she said she had been advised by her family lawyers not to sell the house while proceedings were on foot because it would be looked on unfavourably by the Family Court.

109 Kay could not explain why this second reason might be so and nor was it apparent to me as a matter of logic - inheritance of the interest in the house was disclosed and the orders that were eventually reached contemplated the house's sale to make the agreed payment. Kay did not call her family lawyer or otherwise put into evidence the explanation for delay. In any event such a delay, if it benefitted anyone, could only benefit Kay.

110 Nor do I accept that Kay was unable to face the additional stress of dealing with her mother's estate. The bequest to her brother was a simple payment. Throughout 2018 and 2019 Kay was able to utilise significant estate funds to meet her own personal obligations while withholding Jack's entitlement.

111 It is tolerably clear that Jack looked to his mother for financial support for a substantial part of his adult life. His employment record, largely in self-employment, had not given him great financial security prior to 2013 and the purchase of 1 Zander Court was only possible and viable with parental financial support. However, the deposit was not paid with funds provided by his mother. As to the guarantee and the $500,000 deposited in the offset account, the deceased was concerned about Jack having use and control of that money. In April 2016 when she wrote her will, she was actively trying to obtain release from the guarantee and return of her funds. As things stood, she would rightly have considered herself as having advanced Jack significant funds to apply towards 1 Zander Court. The Financial Services Ombudsman did not conclude its investigation until October 2017 (shortly before the deceased's death) and as things transpired, most of the funds advanced were repaid either by Jack shortly prior to her death, or by Westpac.

112 I accept that Jack is able-bodied and has work skills that enable him to re-enter the workforce. I accept that this diminishes his need. However at the age of 51, with no assets behind him, I accept that he has demonstrated a level of financial need.

113 The value of the estate in November 2017 was an unencumbered house estimated at $1,425,000, together with personal property of $544,000 comprising funds of $501,451,[82] shares of approximately $40,000 and household effects. No step was taken to distribute the cash bequest of $100,000 from the real property of the estate until 2021, despite the fact that funds were available to do so.

114 Kay deposed to distributing funds being those that had been held in Mr Phillips' trust account and other funds from the estate over time. By 6 December 2021 she had distributed virtually all cash held in the estate - a sum of approximately $500,000 - to herself. There was $1,189 remaining in the estate's bank account prior to the sale of 2 Zander Court.

115 In addition, on 28 April 2022 Kay paid her liability under the Family Court orders from the proceeds of sale of 2 Zander Court. By that time, with interest, the amount was $399,052.15. Before payment of the family law liability, net proceeds of $1,288,553.44 were held.[83] From these funds Kay paid her family law liability and $100,000 - being the legacy to Jack under the will. Since settlement of 2 Zander Court, it appears that Kay has made further distributions to herself. It appears that approximately $40,000 worth of shares remains in the estate in addition to the cash balance.

116 I accept that Jack obtained some assistance from his mother from time to time with mortgage repayments. However, in my view, events after the will was written and before the deceased's death demonstrate a modest provision of assistance beyond the use of funds between 2014 and 2017 in an offset account to reduce the mortgage. The Ombudsman describes circumstances that cast Jack in a very poor light as placing pressure on his mother to provide him with financial security. However, I am conscious that the Ombudsman's investigation did not seek Jack's views or provide him with an opportunity to be heard in relation to the complaint.

117 While Jack's behaviour regarding his mother's finances from 2014 onwards is a relevant matter to consider under s 91(2)(k) of the Act - the character and conduct of the eligible person - it is not in my view disentitling conduct. It does not displace his demonstrable need.

118 Similarly I place little weight on the intervention order taken out in early 2016. The police evidence was never tested and Jack did not attend to contest the charges. No direct evidence was given in support of the charges, Kay was not present and her evidence on the question of physical violence and aggression on other occasions was disputed.

119 Accepting that the family law liability was incurred prior to the commencement of this claim by Jack even though paid afterward, the balance of the estate not distributed on notification of the claim otherwise is approximately $890,000 plus the value of the shares. I observe that $145,000 was distributed out of the estate to Kay on 30 November 2021,[84] the same day an email was sent by her solicitors to Jack's solicitors advising that Kay was ready to distribute the will and pay Jack his entitlement of $100,000, upon withdrawal of the caveat.

120 Both adult children have demonstrated financial need because of present circumstances. Both seem to be in somewhat precarious circumstances. Although neither is working, both have a capacity to work. Both are self-reliant for financial independence. Kay also has responsibility for two school age children. Kay has had access to funds since late 2017 to assist with pressing financial needs and the delay in finalising the estate has worked to her short-term financial benefit. Notwithstanding this, she requires further funds to secure the home for herself and her children. In all the circumstances, noting the discretion is to be exercised carefully and conservatively,[85] I will order provision for Jack of the sum of $240,000 in addition to the amount already provided in the will for his proper maintenance and support.

121 I will hear from the parties as to the form of orders.

[1] Defendant, 'Affidavit of Kay Pavlidis' sworn on 20 June 2022 in Pavlidis v Pavlidis S ECI 2021 04661 which formed part of tendered exhibit D2, exhibit KP-2 20.

[3] Plaintiff, 'Affidavit of Jack Pavlidis' sworn on 2 February 2022 in Pavlidis v Pavlidis S ECI 2021 04661 which formed part of tendered exhibit P1, [14]; Defendant, 'Affidavit of Kay Pavlidis' sworn on 8 April 2022 in Pavlidis v Pavlidis S ECI 2021 04661 which formed part of tendered exhibit D2, [91].

[4] Affidavit of Jack Pavlidis sworn on 2 February 2022, [2].

[7] Affidavit of Kay Pavlidis sworn on 8 April 2022, [34].

[8] Transcript of Proceedings, Pavlidis v Pavlidis (Supreme Court of Victoria) S ECI 2021 04661 (Justice Forbes, 13 December 2022) 20.17-27 ('T').

[9] Affidavit of Jack Pavlidis sworn on 2 February 2022, [16].

[12] Affidavit of Kay Pavlidis sworn on 8 April 2022, [35]-[37].

[15] Affidavit of Kay Pavlidis sworn on 8 April 2022, exhibit KP-1 64.

[16] Affidavit of Jack Pavlidis sworn on 2 February 2022, [3].

[19] Affidavit of Kay Pavlidis sworn on 8 December 2022 in Pavlidis v Pavlidis S ECI 2021 04661 which formed part of tendered exhibit D2, [16].

[20] Affidavit of Kay Pavlidis sworn on 8 April 2022, [21].

[27] Plaintiff, 'Affidavit of Jack Pavlidis' sworn on 24 November 2022 in Pavlidis v Pavlidis S ECI 2021 04661 which formed part of tendered exhibit P1, [4]-[12].

[28] T 41.27-42.27; Affidavit of Jack Pavlidis sworn on 2 February 2022, [6].

[30] Affidavit of Jack Pavlidis sworn on 2 February 2022, [5].

[31] Affidavit of Kay Pavlidis sworn on 8 April 2022, [88].

[34] Affidavit of Kay Pavlidis sworn on 8 April 2022, [58].

[36] Affidavit of Jack Pavlidis sworn on 2 February 2022, [12]-[13].

[39] Affidavit of Kay Pavlidis sworn on 8 April 2022, [91].

[41] Affidavit of Jack Pavlidis sworn on 2 February 2022, [14].

[46] Affidavit of Kay Pavlidis sworn on 8 April 2022, [48], exhibit KP-1 73.

[48] Affidavit of Jack Pavlidis sworn on 2 February 2022, [20].

[49] Affidavit of Jack Pavlidis sworn on 24 November 2022, [5].

[51] Affidavit of Kay Pavlidis sworn on 20 June 2022, [13].

[52] Affidavit of Kay Pavlidis sworn on 8 April 2022, [71].

[56] Affidavit of Kay Pavlidis sworn on 8 December 2022, [11].

[58] Re Winter-Cooke [2020] VSC 588, [94].

[59] Administration and Probate Act 1958 (Vic) ('Act').

[60] [2019] VSCA 161 (Beach, McLeish and Niall JJA).

[62] Act s 99(3).

[63] Act s 91(5)(a).

[64] Ibid s 91(5)(b).

[65] Collicoat & Ors v McMillan & Anor (1999) 3 VR 803 818 [43] (Ormiston J).

[66] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69.

[67] Ibid 76; as discussed and reviewed in Collicoat & Ors v McMillan & Anor (1999) 3 VR 803.

[68] Re Marsella; Marsella v Wareham [2018] VSC 312, [82].

[69] Davison v Kempson (2018) 17 ASTLR 244, [40].

[70] Blair v Blair (n 66) 80 [25]-[27] (Chernov JA , Nettle JA and Hansen AJA agreeing), Brimelow v Alampi [2016] VSC 135; (2016) 50 VR 219, [21] (McMillan J).

[71] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[72] [2013] NSWSC 1065, [121]; adopted in Christu v Christu [2021] VSC 162, [12] (McMillan J).

[73] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J).

[74] White v Barron [1980] HCA 14; (1980) 144 CLR 431, 454 (Wilson J).

[75] Act s 91A(1).

[76] Affidavit of Kay Pavlidis sworn on 8 April 2022, [26].

[77] Affidavit of Kay Pavlidis sworn on 8 December 2022, [12].

[80] See Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 156 (Gibbs J); Gabriele v Gabriele [2015] VSC 115 [56] (Kaye JA).

[82] $30,471.79, and $412,855.16 in accounts held by the deceased and $58,124.76 in D Phillips trust account.

[83] Affidavit of Kay Pavlidis sworn on 20 June 2022**,** exhibit KP-2 23 ($399,052.15 paid to Lazaros plus net proceeds of $889,501.29 held in Kay's solicitor's trust account).

[84] Affidavit of Kay Pavlidis sworn on 20 June 2022, [11], exhibit KP-2 22.

[85] Davison v Kempson (2018) 17 ASTLR 244; Saric v Vukasovic (2019) VSCA 57, [11] (Tate, Niall, Emerton JJA).