Plaintiff v Defendant

1 Has the plaintiff established his claim for further provision for his proper maintenance and support out of his mother's estate?

2 An elderly woman made a will providing for her estate to be distributed in equal shares between her seven adult children. One of them is the plaintiff. For the last 17 years of his mother's life, the plaintiff was dependent on her for free accommodation in the family home. His mother moved to an adjoining property, while the plaintiff remained living in the family home. The plaintiff provided practical support to his mother in various ways, increasing over time as she got older.

3 The family home is the estate's major asset. The plaintiff claims that he has disabilities, no earning capacity or prospects and virtually no savings or other assets, and that he requires further provision from the estate in the form of a life interest in the family home and a lump sum representing about half the value of the estate's other assets.

4 I have decided that the plaintiff is not entitled to the orders he seeks. However, I have decided that the current provision made for him is inadequate to provide him with basic accommodation nearby once he leaves the family home. He should receive sufficient money from the estate to give him the opportunity to acquire and live in basic accommodation such as a one-bedroom unit nearby.

5 There was no evidence adduced by either party as to the cost of basic accommodation in any nearby area. I will give the parties an opportunity to provide affidavit material on this question before making any final orders. If no material is submitted, I will take judicial notice of current one-bedroom unit prices based on public information. I will also give the parties an opportunity to be heard on the question of costs.

6 Being the deceased's child, the plaintiff is an eligible person[1] entitled to make an application for a family provision order.[2] On such an application, the Court may order that provision be made of the estate for his 'proper maintenance and support'.[3]

7 However, the Court must not make a family provision order for the plaintiff unless satisfied that, at the time of death, the deceased had a moral duty to provide for the plaintiff's proper maintenance and support; and that the distribution of the estate fails to make adequate provision for his proper maintenance and support.[4]

8 The two criteria summarised in the preceding paragraph are not only essential preconditions of any family provision order; they are also mandatory considerations that inform its content. In determining the amount of any provision, the Court must take into account the degree to which each of them is met.[5]

9 The plaintiff claimed to have disabilities. If I do not accept this,[6] then I must consider the 'degree to which' he 'is not capable, by reasonable means, of providing adequately for [his own] proper maintenance and support'.[7]

10 The statutory requirement for a moral duty was introduced in 2015 by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. The second reading speech accompanying the bill explained that this change was 'designed to emphasise that simply because a person is eligible to bring a claim, either as of right or in circumstances of dependency, is not sufficient of itself for the person to have provision made for them from the deceased's estate'. It was said that the 'starting point' is 'that a deceased is entitled to dispose of their estate as they see fit, and this should only be departed from where they had a moral duty to provide for the needs of the claimant and yet failed to do so'.[8]

11 Judicial officers of this court have considered the applicable statutory provisions in numerous cases since their introduction in 2015.[9] In making any order, I must have regard to the deceased's will, any evidence of her reasons for making the dispositions in it, and any other evidence of her intentions in relation to providing for the plaintiff.[10] The amount of provision must not 'provide for an amount greater than is necessary for [the plaintiff's] proper maintenance and support'.[11]

12 There are also various additional criteria. Some of those are matters that are relevant to whether the essential preconditions for a family provision order are met, and the amount of any additional provision. Relevantly on the facts of this case, I will have regard to: the size and nature of the estate and any liabilities;[12] the financial resources, earning capacity and financial needs for the foreseeable future of the plaintiff and any beneficiary;[13] any physical, mental or intellectual disability of the plaintiff;[14] his age;[15] any contribution (not for adequate consideration) of the plaintiff to building up the estate or the welfare of the deceased;[16] any benefits previously given by the deceased to the plaintiff or any beneficiary;[17] the extent and basis of any maintenance of the plaintiff by the deceased;[18] the character and conduct of the plaintiff or any other person;[19] and the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries.[20] The plaintiff also relies on the catch-all of 'other matter the Court considers relevant' and I will address what he submits in that regard too.[21]

13 In a recent authoritative decision on the applicable provisions, Gash v Ruzicka, the Court of Appeal provided the following summary of the principles relevant to making a family provision order:

In considering what is necessary for proper maintenance and support the Court must assume the position of a 'wise and just' testator judged by current community standards. However, the Court should not be drawn into rewriting the testator's will by reference to general considerations of fairness. [...] Overall, the assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations.[22]

14 The deceased, Sheila Roper, was born in 1929. She and her husband Leo bought two houses, one of which was a house in Glenroy (the Andrew Street property). Her husband died in 1990. They had seven children, all of whom survive their mother:[23]

(a) the defendant, Michael Roper, born 1959;

(b) Kate (Kathleen) Williams (nee Roper), born 1961;

(c) Andrew Roper, born 1963;

(d) Margaret Roper, born 1964;[24]

(e) Angela Roper, born 1965;

(f) Paul Roper, born 1970; and

(g) the plaintiff, Daniel Roper, born 1973.

15 In these reasons I refer to them by their first names, intending no disrespect by doing so.

16 When Daniel was 17 years old, the deceased told him she wished never to go into a nursing home, and he promised his mother that would not happen.

17 Daniel purchased a property in Ward Street, Glenroy, in 1997 for $83,000.

18 Daniel sustained a back injury at the age of 25, which I infer was in about 1998.

19 Daniel sold the Ward Street property in 1999 for $133,000.

20 He moved back to the Andrew Street property in about 2004.

21 At about this time, or shortly afterwards, the deceased acquired an interest in an adjoining property on May Street in Glenroy and moved there, removing a section of fence along the boundary with the Andrew Street property.

22 On 29 October 2008, the deceased made her Will. At about this time, the deceased was enduring a bout of cancer. At various stages in the years following this, her ability to support herself declined. In 2018 she was hospitalised with a thyroid condition. In the last two or three years of life she was heavily dependent on care from others.

23 The deceased died on 18 June 2021. Michael, who was named as executor in the Will, obtained probate a few months later.

24 Daniel filed this application in early 2022. I have carefully considered all the evidence Daniel relies upon in support of his application.[25] The application is opposed. I have likewise considered the defendant's material with care.[26]

25 In reaching my conclusions, I have applied the applicable principles discussed earlier in these reasons. Under the headings of this section that follow, I have reiterated particular aspects of those principles, and applied each of them to the facts of the case. This has led me to conclude that additional provision from the deceased's estate should be ordered, but not to the extent claimed by the plaintiff. In reaching my conclusion, I have considered the matters set out under the headings below cumulatively.

26 One of the matters I must have regard to in making a family provision order is the deceased's Will.[27] As already noted, by the deceased's Will, after payment of debts and expenses, she left her estate to her seven children in equal shares. She made her Will in 2008.

27 Daniel submitted that no real weight should be placed on the Will, which he described as a pro-forma will and no more than a reflection of the outcome that would have applied if the deceased died intestate.

28 I do not accept this submission. I am satisfied that the Will reflected the deceased's intentions as to the distribution of her estate at the time it was made. It is noteworthy that this occurred four years after Daniel moved back to the Andrew Street property and started living rent-free there, providing occasional support to his mother. These circumstances did not lead her, at that time, to make any special provision for him in her Will beyond the equal provision she wished to make to each one of her children.

29 As mentioned under the next heading, there is no evidence that the deceased ever changed her mind about this.

30 Other matters I must have regard to include any evidence of the deceased's reasons for the dispositions in the Will and any other evidence of the deceased's intentions in relation to providing for the applicant.[28]

31 Each of Michael, Kate, Andrew, Angela and Margaret made affidavits, which I received into evidence. Only Andrew was cross-examined, and the cross-examination did not affect the reliability of anything included in his affidavit.

32 Michael deposed that the deceased never said to him that she made any promise of a life tenancy to Daniel, and that she told the plaintiff repeatedly that he needed to vacate the Andrew Street property at some point and would need to make alternative accommodation arrangements for himself after she had passed away.

33 Kate and Andrew both deposed that the deceased had never said to them that it was her intention for Daniel to remain living in the Andrew Street property after her death, and that she had often complained that she wanted Daniel to vacate it.

34 Andrew deposed that the deceased said to him words to the effect 'I've left everything split seven ways and you can work it out when I'm gone'.

35 Margaret deposed that the deceased told her that she had told Daniel on a number of occasions that the Andrew Street property was to be sold after her death. She deposed that Daniel had once said to her that he was 'preparing himself for homelessness after Sheila passed away'.

36 Daniel acknowledged that there was no agreement that he could remain in the Andrew Street property after the deceased's death.[29]

37 Each of Andrew, Margaret and Angela deposed that the deceased was 'a very fair person' or 'extremely fair person', and that she wanted to make sure 'that all of her children had the same opportunities' or that 'we all had the same opportunities and benefits'. They referred in this regard to the fact that the deceased had provided roughly equivalent sums of money (when adjusted for inflation) to them when they were buying their first properties.

38 Michael and Kate also deposed to receiving a similar contribution toward a land purchase from their mother. In addition, Kate received a $25,000 loan from her mother for legal fees in a court case, which they agreed could come out of her share of the estate if not repaid. In about 1997, the deceased provided $40,000 to Daniel, as a contribution toward his purchase of the Ward Street property for $83,000. The deceased also set aside a lump sum for Paul for that purpose, most recently valued at a little over $61,000.

39 I accept all the evidence noted above. The dates on which these remarks were made by the deceased are unclear, but my impression of the evidence viewed as a whole is that the deceased intended until late in her life to provide an even division of her estate between her children. There is no evidence that this intention ever changed.

Did the deceased have a moral duty to provide for the plaintiff's proper maintenance and support?

40 The existence of a moral duty to provide for the applicant's proper maintenance and support is a mandatory consideration, and an affirmative answer is an essential precondition before the Court is empowered to make a family provision order.

41 The Court is to assess the moral duty from the position of the 'wise and just testator'.[30] Proper maintenance and support is a broader concept than merely the alleviation of poverty.[31] If an applicant for a family provision order is unable to earn, or has limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.[32]

42 Daniel claimed to be living with various afflictions that he characterised as disabilities. I address these in more detail under a further heading of these reasons, below.

43 For 17 years up to the deceased's death, Daniel lived rent free at the Andrew Street property. It is not clear whether he needed free accommodation at that time. The evidence does not disclose what happened to the $133,000 proceeds of Daniel's sale of the Ward Street property, sold in 1999.

44 Whatever his means might have been when he moved to the Andrew Street property in about 2004, it appears that over time he became dependent on his mother for rent-free accommodation. His evidence, which I accept, is that he is now in poverty, owning less than $10,000 in cash and no significant assets.

45 In his submissions in this case, Daniel relied on the principle that 'if you support somebody for an extended period of time, they become dependent on that support' and 'once you've made someone dependent on you, it's immoral to just suddenly withdraw that support'.[33] Relatedly, he later submitted, 'I have been dependent on this place, on the accommodation in this place, for 20 years. It was not my decision to put me here, it was Mum's decision to offer. So that was her choice.'[34]

46 I accept that Daniel was, by the time the deceased died, dependent on the deceased for rent-free accommodation and without the means of obtaining even basic accommodation himself, and that there was in those circumstances a moral duty on the testator to make adequate provision for him from her estate to avoid homelessness. This is what would have been required for the deceased to provide Daniel with 'proper maintenance and support'. 'Proper maintenance and support' in this case does not mean free accommodation for life in the Andrew Street property, still less a life interest of that kind along with a monetary provision of $373,000 needed to maintain that property and meet its outgoings and the other exigencies specified by Daniel in his originating motion and summons. Given the modest size of the estate and the testator's wishes to provide a meaningful bequest to all her children, 'proper maintenance and support' for Daniel means the minimum reasonably required to give Daniel the means of avoiding homelessness and to remain in the area in which he has spent most of his life.

47 That means a small flat, for which he will require funds to meet the purchase price, stamp duty and registration, and a relatively modest lump sum, perhaps in the vicinity of about $150,000, to help him meet outgoings and contingencies. The lump sum is to be quantified on the expectation that he will continue to receive welfare payments because of his reduced capacity for work, and that welfare payments will be sufficient to meet his food, any health and pharmaceutical gap payments, and utility expenses. It appears that his payments from Centrelink have met his expenses of that kind over recent years, leaving him with a small amount of savings. It is reasonable to expect that he will be able to supplement his Centrelink payments with at least some earned income to help meet the additional costs he has not faced for the last 20 years, such as owners' corporation fees and insurance. During the proceeding and the hearing, he showed keen intelligence, eloquence (both written and oral) and skill with IT. He is also assessed by Centrelink as being able to work for up to 22 hours per week. It is therefore reasonable to expect that he can employ his skills to obtain earnings of some kind. Interest earned on the lump sum should also assist. As already mentioned, I will give the parties an opportunity to make submissions and adduce material on the appropriate amount of the provision required, in line with what I have outlined in this paragraph.

Does the distribution of the estate fail to make adequate provision for the plaintiff's proper maintenance and support?

48 The question of whether the distribution currently provided from the estate fails to make adequate provision for the applicant's proper maintenance and support is also a mandatory consideration, and an affirmative answer is an essential precondition of a family provision order.

49 I am satisfied that a one-seventh share of the residuary estate available for distribution[35] would be inadequate to provide for Daniel's proper maintenance and support as outlined in paragraphs 46-47 above. In other words, the distribution of the estate in accordance with the Will would materially fail to make adequate provision for his proper maintenance and support.

50 However, the degree to which the Will fails to meet the moral obligation to provide for Daniel's support, and the degree to which it fails to make adequate provision for his proper maintenance and support, is not as much as Daniel submits.

51 As explained under the next four headings of these reasons below, the value of Daniel's claim in the originating motion and summons (a life interest in Andrew Street property plus up to $373,000) would reduce the amount currently available for distribution to other beneficiaries by up to about $1.3 million, out of the total value of estate assets available for current distribution to the seven beneficiaries of about $1.516 to $1.54 million.[36]

52 This would be a departure from the Will that I am not satisfied I could grant, and would in any event not be inclined to grant.

53 I can only depart from the testator's intentions to the extent needed to meet her moral obligation to Daniel to provide him with proper maintenance and support, and no more.[37] Further or in the alternative, if I had any discretion in the matter, I would not be prepared to depart from the testator's intentions to any greater extent in any event. In the context of this case, proper maintenance and support of Daniel means the maintenance and support outlined in paragraphs 46-47 above.

54 The size and nature of the deceased's estate is a matter to which I may have regard.[38] In order to make an appropriate determination of this application I have done so.

55 At the date of her death, the deceased's estate comprised the following assets, some of which have been valued differently at different times and by different people. In respect of each asset value, I have set out my finding as to what I regard as the best estimate on the evidence before me.

Defendant's revised or sale value[39]

56 Any liabilities affecting the estate are likewise a matter to which I may have regard.[40] In order to make an appropriate determination of this application I have done so.

57 Based on the defendant's affidavits deposing to disbursements from the estate and the other evidence before me, the estate has incurred or is likely to incur the following expenses and liabilities, that I must deduct from the above value in order to gain a better understanding of the net value of the estate:

(a) care of the deceased by an agency, funeral and cemetery expenses, probate fee, removalists, fence replacement, council rates, household bills, an accountant's fee, a minor legal fee, a taxi fare, a postage item, and a valuer's fee: approximately $33,000;

(b) estimated legal costs up to the conclusion of mediation (July 2022) were $25,000; and

(c) mediation fee: $5,250.

(d) Depending on the outcome of the plaintiff's claim in this proceeding, if the Andrew Street property is sold in the near future at the valuation of $925,000, $114,253 in capital gains tax.

(e) Legal costs since the mediation in late 2022 were not disclosed by the evidence.

58 It appears that the total of current estate liabilities and expenses is about $63,000 (without provision for the costs of this proceeding since the mediation). If the Andrew Street property is sold before distributions are made, the figure including CGT would be about $177,000.

59 In addition, I need to take into account a deduction of about $61,000 which the parties agreed must be specifically bequeathed to Paul Roper above his one-seventh share in the residuary estate.

60 It is also likely that the estate has borne significant additional legal costs since the unsuccessful mediation in this proceeding in July 2022. I do not know the amount of those costs.

61 Putting legal costs since the mediation to one side, and if the Andrew Street property is sold for $925,000, and estimated CGT on that sale and the $61,000 due separately to Paul Roper is deducted, I calculate that that would leave about $1,580,000 for distribution to the seven beneficiaries. A one-seventh share is about $226,000.

62 The defendant adopted a different methodology based on current cash holdings of the estate (after disbursements) and the value of past distributions to the beneficiaries. On this basis, the defendant estimated the value of the residuary estate after provision for CGT upon sale of the Andrew Street property and provision for the separate bequest of about $61,000 for Paul Roper, as being $1,516,448. It appears that the difference between my estimate and the defendant's estimate is largely attributable to disbursed legal costs incurred in this proceeding since the mediation. A one-seventh share of the defendant's estimated residue available for distribution is $216,635.

63 The parties are agreed that Paul Roper is to receive a one-seventh share of the value the residuary estate would have if it was unaffected by any orders I ultimately make in this proceeding. In other words, any additional provision I order for the plaintiff is to be borne from the shares of the other five siblings. Quarantining a beneficiary's interest in this manner is perfectly permissible.[41]

64 It is unclear to me whether or to what extent that agreed position concerning the protection of Paul Roper's interest in the estate relates to the costs of this proceeding. The parties reserved their position on costs generally and indicated that they would await the outcome of the substantive claim before making submissions on costs.

Effect of claim on distributions to the other beneficiaries

65 The effect of claim on distributions to the other beneficiaries is a matter to which I may have regard.[42] In order to make an appropriate determination of this application I have done so.

66 The plaintiff's originating motion and summons on originating motion sought a life interest in the Andrew Street property and an additional $373,000.

67 Based on the estimated values of the assets and liabilities I have set out above, and again subject to treatment of the costs of this proceeding, if the plaintiff's entire claim were allowed, I estimate that the distributions to the other five siblings would be about $34,000 each.[43] If the plaintiff's claim for a life estate in the Andrew Street property alone is allowed, the distributions to the other five siblings would be about $109,000 each.

68 This would be an extreme distortion of the outcome contemplated by the Will and would not be supported by any other available evidence of the deceased's intentions.

69 The deceased intended to leave all seven of her children a substantial distribution of equal size. That is the starting point. I can only depart from that to the extent needed for the moral duty owed by the deceased to the plaintiff to be met, and no further than required for the proper maintenance and support of the plaintiff. That means averting homelessness and providing the means for obtaining basic accommodation for the foreseeable future in a nearby area, as outlined in paragraphs 46-47 above.

70 The plaintiff contended that if he were granted a life interest in the Andrew Street property there would be no diminution of the value of the estate. This argument was put on the basis that the value of the remainder interest in the property would endure and would be available for realisation and distribution of proceeds after the plaintiff's death.

71 I do not find this argument persuasive. It ignores timing effects. In other words, the estate would remain partially administered during the plaintiff's life and the other beneficiaries would be affected by being kept from receiving a material amount of the distributions they would otherwise expect to receive. This would probably be the case for many years. The other beneficiaries are older than the plaintiff, so they might never receive any distribution attributable to the net proceeds of the sale of the Andrew Street property (although their children might, in their place).

72 Daniel relied on Katakouzinos, in which a destitute child of the deceased was granted a family provision order of $416,000, representing a half share of the value of the estate net of liabilities save for legal costs of the proceeding. The foreshadowed purpose was to enable the child to obtain a unit for him and his family to have a home. After legal costs, this represented about 80% of the remaining value of the estate. The sole competing interest was the interest of the daughter-in-law of the deceased. I am not persuaded that the facts are sufficiently close to this case to materially influence my conclusion.

Is the plaintiff a 'child with a disability' / is there any physical, mental or intellectual disability of the plaintiff?

73 The question of whether Daniel has a 'disability' is a mandatory consideration and an issue I must determine, for the reasons I will now explain. As a secondary matter, 'any physical, mental or intellectual disability' of the eligible person seeking the order, or any other beneficiary, is a matter I may consider in making a family provision order.[44]

74 Being a child of the deceased, Daniel is an eligible person under one of two possible limbs of the definition of 'eligible person' in the Act, which are relevantly as follows:[45]

...

(b) a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was -

...

(iii) a child with a disability; [or]

...

(f) a child or stepchild of the deceased not referred to in

paragraph (b) ...;

disability means a disability -

(a) that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities -

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

(d) the impairment or impairments affect the person's capacity for social or economic participation;

76 Daniel contended that he is living with disability as a result of three conditions, or perhaps four.

(a) Firstly, he claimed to have sustained a back injury when he was 25 years old resulting in twisted vertebrae. He said that this is now a permanent impairment preventing him from performing any sustained physical activity.[46]

(b) Secondly, he claimed to have damaged tissue of the throat from chronic acid reflux which causes him pain and breathlessness in some situations.[47]

(c) Thirdly, he claimed to have received a 'pre-diagnosis' of another condition. The pre-diagnosis was a response to an online test to which he was referred by a hotline relating to that condition.[48] The claimed condition is of a kind that could affect psychosocial capacities. Daniel did not wish this condition to be on the public record, and I indicated that I would direct that the relevant exhibit be kept confidential in the absence of submissions to the contrary.[49] No such submissions were made, so I have made that direction. He said as a result of the third condition he would never be able to adjust to another place to live in.[50]

(d) Daniel also submitted that he was living with chronic and severe anxiety and insomnia, which I will treat as a potential fourth condition. In submissions he made a connection between his anxiety and the third condition.[51] Under cross-examination he also said the severity was connected with this proceeding.[52]

77 The defendant submitted that the plaintiff bore the burden of proof in establishing disability and had failed to discharge that burden. The defendant pointed to the absence of any expert medical evidence, save for a report about a diagnosis of some early osteoarthritis of the knee, images of labels of acid reflux medication he was prescribed over the years, and a CT image of his spine. Daniel also tendered a GP mental health treatment plan dated 15 August 2022.

78 In his oral submissions, Daniel did not appear to rely on the arthritis in his knees in claiming that he had a disability. Nevertheless, I have considered the arthritis in his knees and concluded that it would not meet the statutory definition of 'disability'.

79 Late in the hearing, Daniel tendered two medical certificates, dated 9 January 2023 and 1 March 2024, which each certified that he had bilateral osteoarthritis of the knees and anxiety, with an expected functional impact of up to 24 months, entailing incapacity for work for 3 months. He also tendered a document relating to his pre-diagnosis with the claimed third condition.

80 I am not satisfied that Daniel has established that he is a 'child with a disability' or that he has a 'disability' within the meaning of the Act. I explain the reasons for this conclusion in the paragraphs that follow.

81 I accept that Daniel experiences back pain, and that he sincerely believes it to be caused by a workplace injury when he was 25, and that he sincerely believes that it severely impairs his physical activities.

82 However, Daniel adduced no medical evidence to support his claims about the nature of his back injury. He provided an image purporting to be a diagnostic image of his spine compared with a healthy one, but I am unable to adequately interpret it. I am not able to identify the cause(s) of the pain he experiences, cannot make any finding about what appropriate treatment would be, or about whether his back would be unresponsive to appropriate treatment. That means that I cannot be satisfied that it is a permanent impairment, and so paragraph (b) of the definition of 'disability' is not met by the evidence Daniel has adduced.

83 Daniel likewise did not adduce evidence on which I could be satisfied that his back condition would meet any of the elements of paragraph (c) of the definition of 'disabled'. Daniel neither adduced medical evidence nor gave lay evidence on which I can be satisfied that his back pain causes him substantially reduced functional capacity to undertake, or reduced psychosocial capacity in undertaking, 'communication', 'social interaction', 'learning', 'mobility', 'self-care', or 'self‑management'.

84 However, there may be a basis on which I could be satisfied that paragraphs (a) and (d) of the definition of 'disability' in the Act are met in isolation from paragraphs (b) and (c).

85 Daniel gave evidence that he has been assessed by Centrelink as having a permanent impairment and only being able to work up to half the usual time, that is, 22 hours per week. He relied on an affidavit containing exhibited documents he described as 'Federal Disability Certification'.

86 I am not satisfied that either of the two pages within the 'Federal Disability Certification' exhibit were in fact certificates of any form of disability assessment by Centrelink or any other Federal body, for the following reasons.

(a) The first page was the top half of a letter dated 24 February 2018 from Centrelink titled 'Your Mutual Obligation Requirements exception'. It stated that Daniel was not eligible to be exempted from his mutual obligations requirements at that time because 'our records show that your incapacity to work is not temporary'. Despite the best efforts of Daniel to explain this document to me, I remain unclear about its precise meaning. However, I am willing to read an implication into those words to the effect that someone at Centrelink had an opinion that Daniel had an incapacity or was at least claiming an incapacity that was permanent.

(b) The second page was a document Daniel said was a pensioners concession card issued to Daniel in March 2018 and expiring in October 2025. It does not have any material descriptive words on it, apart from a serial number beginning with 'CRN'. I do not understand how this is said to evidence permanent incapacity.

87 Daniel gave evidence that he had been sent these two documents because Centrelink had assessed him as able to work for no more than 22 hours per week. I accept this evidence. Centrelink's assessment seems likely to have been because Daniel told them of his back pain. I will infer that Centrelink is satisfied that his back pain limits his capacity to work, from the fact that Daniel is certified as able to work (only) a maximum of 22 hours a week. On this basis, I will assume that Daniel's evidence meets the requirements of paragraphs (a) and (d).

88 However, in order to establish disability, each of the paragraphs (a)-(d) of the definition must be met. Impairment that meets paragraph (b) and at least one of the elements of paragraph (c) is required. Daniel's evidence in this case fails to achieve this.

89 The evidence about Daniel's acid reflux being a source of disability was also thin. There was no medical report about it. Daniel adduced images of medications establishing he has previously, over a number of years, been prescribed medication for acid reflux. I accept he has suffered from acid reflux. However, it is not possible to say how badly this condition might have permanently affected him and impaired him in the ways required by the definition of 'disability' in the Act. Although he gave evidence that it has affected his capacity for oral communication, and at one or two points during the hearing he complained of this, he was ultimately able to manage this issue well at the hearing and I could not discern any material impairment. In particular, he was able to make a lengthy oral closing address at the end of a two day hearing without any sign of difficulty during that address.

90 I do not accept that the 'pre-diagnosis' of the third condition can be given any real weight. There was no medical report of a diagnosis of this condition.

91 I accept, based on a GP mental health treatment plan and the two medical certificates from his GP, that Daniel has been living with anxiety in recent years. The DASS score noted on Daniel's GP mental health treatment plan marked his anxiety as 'extremely severe'. However, on the available evidence, I do not accept that this is a permanent condition or impairment. The two certificates, completed by the same GP who made the mental health treatment plan, each certify that he would be affected for a specified period of time. Neither state that he would be affected indefinitely. One of the certificates stated 'needs to follow up with the psychologist as planned before for stress releaving [sic] strategies'. Daniel gave evidence that he declined to see a psychologist for his anxiety because, as he put it, he was unwilling to take any medication. Further, the death of his mother, potential sale of the house, and the pendency of this proceeding are identified as contributing factors. Daniel said that the proceeding affects the severity of his anxiety. Based on the opinion stated in those certificates, it seems that that the severity of his condition should abate following the conclusion of this proceeding. In any event, in circumstances where Daniel has not obtained suggested treatment, I cannot be satisfied that he is permanently impaired by his anxiety.

92 For all these reasons, I am not satisfied that Daniel is a 'child with a disability' within paragraph (c) of the definition of 'eligible person'.

93 The conclusion in the preceding paragraph leads me to conclude that Daniel is a 'child' within the scope of paragraph (f) of the definition of 'eligible person'.

94 That means I must take into account the extent to which he is not capable, 'by reasonable means', of providing for himself.[53] Putting that a different way, 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.[54]

95 I address this mandatory issue under the next heading.

The age of the plaintiff and his financial resources, earning capacity and financial needs for the foreseeable future

96 As well as it being a mandatory matter for me to consider the extent to which Daniel can or cannot support himself, I am permitted to consider his age, financial resources, earning capacity and needs for the foreseeable future as additional considerations.[55] These matters are all highly relevant in this case and I have considered them.

97 Daniel deposed that he subsists on Centrelink benefits of $17,000 per annum, which he said was only sufficient to cover household bills, basic food and medical expenses.

98 The defendant submitted that Daniel had failed to establish that he was in financial need because he had failed to adduce documentary evidence proving his financial state.

99 The plaintiff tendered a Centrelink payment summary roughly covering the 2022-23 financial year, showing he had received $17,388 from Centrelink in that period. I accept that was the case and that it is a guide (subject to any indexation) to what he will receive in the current financial year and for the foreseeable future.

100 The financial documents Daniel tendered included screenshots showing balances of deposits with two financial institutions, HSBC and St George. An updated balance on 26 April 2024 for what appeared to be the HSBC account showed an available balance of $8,978.30.[56] I accept that this is the amount of his savings. He also tendered a superannuation statement showing that he had $3,169.26 in superannuation on 30 June 2022.

101 Daniel is 50 years old and has not been employed for many years. He is beginning to experience arthritis in his knees. He lacks any significant savings or financial means.

102 Although not living with disability as defined in the Act, I am satisfied that Daniel has diminished prospects for earning income by reason of afflictions he experiences, or believes he experiences. It is difficult to know how much of this is a matter of subjective perception and how much might be an actual impairment with potentially indefinite effects. However that may be, it affects his prospects for earning income.

103 In the absence of any evidence that might be more reliable, I infer that Daniel has half the ordinary earning capacity of a person of his skills and experience, based on his evidence that Centrelink has assessed him as having half of the usual earning capacity, in the form of capacity to work for up to 22 hours per week.

104 Daniel's skills and experience do not appear to qualify him to expect to earn significant levels of income. However, he should be able to find some way of earning a modest amount of income to supplement his Centrelink payments. The additional income would be unlikely to equal or exceed the level of his Centrelink payments.

105 Daniel deposed that he has no prospects of securing accommodation independently of provision from the deceased's estate. I accept this.

The financial resources, earning capacity and financial needs for the foreseeable future of the other beneficiaries

106 The financial resources, earning capacity and financial needs for the foreseeable future of the other beneficiaries are matters to which I may have regard.[57] In order to make an appropriate determination of this application, I have done this.

107 The position of Paul is protected by the agreement reached between the parties.

108 It was common ground that, putting Paul and Daniel to one side, the other siblings are of sufficient means to live comfortably. They are not in financial need. I gave this significant weight.

109 All the same, they have challenges in their lives that would benefit from some provision from their mother's estate, such as health issues and responsibilities for children. Although they would attach less significance to a distribution from their mother's estate than Daniel would, none of them is so wealthy that a distribution would be immaterial or insignificant. I gave this point some weight, but not as much weight as the fact that they are of sufficient means to live comfortably.

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

110 I was permitted to have regard to any contribution (not for adequate consideration) of the plaintiff to building up the estate or the welfare of the deceased.[58] I had regard to this matter.

111 Daniel gave evidence that he had begun helping the deceased with some tasks from the time he moved in to Andrew Street in 2004, had provided significantly more support from 2008, when the deceased had a bout with cancer, and was instrumental in providing support and care from about 2013, when the deceased had faced the possibility of having to move into residential aged care unless Daniel remained nearby to care for and support her. He claimed that his remaining at Andrew Street contributed in two key ways. Not only did this directly benefit the deceased, but without his presence the deceased would not have been able to remain in her home and the likelihood is that both the Andrew Street property and her own home in an adjoining allotment on May Street, Glenroy, would have had to have been sold. He contended that his contribution therefore resulted in the estate accruing about $600,000 of capital gain representing the appreciation of the deceased's interests in both properties from 2013 to the time she died in June 2021. He also submitted that his contribution meant that the deceased avoided incurring aged care costs of about $600,000, meaning that the estate was $1.2 million better off than it would have been had he not provided the care he did. His care extended to shopping, cooking, work on the garden and other matters, valued at an estimated $373,000 in unpaid labour. In return, Daniel received rent-free accommodation for 17 years.

112 I accept the evidence of Daniel's support for his mother. I gave significant weight to this matter, although ultimately I considered it insufficient to lead to the grant of a life interest in the Andrew Street property, still less a life interest plus a lump sum of $373,000.

113 There are certain issues between the parties incidental to this matter that I must address.

114 The defendant claimed that the plaintiff had exaggerated his role in supporting their mother, and that each of the other children to some extent had also contributed to the care of the deceased.

115 I do not consider that the plaintiff has given an exaggerated account of the supports he provided to his mother.

116 I cannot reach a conclusion as to whether it was Daniel's contribution that made the difference, as Daniel claims, between the deceased going into aged care or staying at home.

117 I accept the evidence of Michael, Kathleen, Andrew, Angela and Margaret that they also provided significant care and support to their mother, as set out in their affidavits.

118 In short, all these children of the deceased significantly supported her, especially in the last two or three years of her life.

Any benefits previously given by the deceased to the plaintiff or any beneficiary

119 I was permitted to consider any benefits given by the deceased to Daniel or his siblings.[59] I considered this matter.

120 Daniel claimed that one of his siblings had received a benefit in the form of use of a business asset. I cannot reach any conclusions on this issue and put it to one side.

121 It was common ground that all the children of the deceased received (or, in the case of Paul, will receive) a lump sum of approximately the same inflation-adjusted value to assist them to purchase a home.

122 I did not find this matter particularly probative one way or the other on the question of the making of a family provision order, save that (as already mentioned) it reinforced the impression that the deceased intended to provide evenly for her children.

The extent and basis of any maintenance of the plaintiff by the deceased

123 The extent and basis of maintenance by the deceased of Daniel was a matter I was permitted to consider, and I did so.[60]

124 As already mentioned, the deceased provided rent-free accommodation to Daniel for 17 years at the Andrew Street property. The key significance of this was that, as I have already said, this contributed to Daniel being dependent on the deceased for rent-free accommodation by the time of her death.

The character and conduct of the plaintiff or any other person

125 Another matter I may consider is the character and conduct of Daniel and 'any other person'.[61]

126 There were some suggestions made by Daniel that he perceived an implied slight on his character or conduct directed to him in the proceeding. I could discern no such thing. I am satisfied that Daniel acted as a dutiful son toward his mother and provided significant support to her while she provided him with rent-free accommodation. Some of Daniel's submissions were critical of others. He specifically asked the Court to make findings about the way the 'defense has acted', and about 'the version of the events presented by the defense'. I decline to make those findings. I am not satisfied that anything could reasonably be said against any of the other beneficiaries or anyone else involved in the litigation. As far as I can tell, the conduct of everyone concerned in this litigation has been proper, and there is nothing to be held against anyone's character.

127 It is necessary to make some final comments relating to the catch-all provision of the Act, by which the Court may have regard to any other matter it considers relevant.[62]

128 Daniel claimed that the Court should take into account his evidence that he has 12 biological children born through sperm donation, and that they might wish to experience the family home and garden. They are the majority of the deceased's biological grandchildren. Two of them are male and female twin siblings, and so two bedrooms would be needed if their mother permitted them to stay.

129 This claim is speculative and I place no weight upon it. I do not consider it to be relevant. There was no evidence that Daniel had had any contact with his biological children, but it might be possible in the future. There was no evidence that he had learnt of any concrete plans by any of his biological children to visit him at the Andrew Street property or permission for visits from their mothers.

130 The plaintiff claimed that being able to be found at the address of the Andrew Street property is also an important matter. He gave as an example an instance when the Victorian Assisted Reproductive Technology Authority changed databases and lost his contact details. The reason they were able to track him down was that he was in the same place. I do not consider this is a relevant matter either. When Daniel moves, he should tell that authority his new address and anyone else he wishes to know it.

131 The plaintiff claimed that any prospect he had of supplementing his income from earnings required him to remain at the Andrew Street property, because it was the only example of his skills with gardening and permaculture. I do not accept that this is the only way in which he could supplement his income with earnings, and in any event it does not appear that he has in the past or is currently earning income by reason of being at the Andrew Street property and having access to the garden. The suggestion that having access to the garden would make any difference is speculative and I do not regard it as a relevant matter to consider.

132 The plaintiff also relied on a continuing connection with the Andrew Street property, as a place that members of his family have inhabited for 60 years. He made two claims in this regard.

(a) Daniel claimed this was essential to establishing his credentials in any future dealings with strangers. I do not consider this claim to be a relevant matter. Daniel can explain his antecedents and family history to any strangers even though he will no longer be residing in the family home.

(b) More relevantly to my mind, Daniel also emphasised the intangible value of keeping the property in the family and the significance of the house and garden not only to him but to future generations of the family. I accept that Daniel is sincerely very emotionally and psychologically attached to the Andrew Street property. In an extreme case, this might be a relevant matter to consider.[63] I do not think this is an extreme case, but I have given the matter some weight in reaching my conclusions. In the end I have decided that matter this does not outweigh the other considerations I have addressed above, or permit me to grant a life interest to Daniel.

133 Daniel also submitted that it was inconceivable that his mother would have condoned the cats she cared for being removed from the Andrew Street property and possibly destroyed. It is possible that the deceased overlooked this matter in her Will, but it is insufficient to outweigh the other considerations I have already outlined. Further, it is not a matter that relates to the proper maintenance and support of Daniel.

134 I have concluded that Daniel was, by the time the deceased died, dependent on the deceased for rent-free accommodation and without the means of obtaining even basic accommodation by himself.

135 In those circumstances, there was a moral duty on the deceased to make adequate provision for Daniel from her estate to prevent homelessness. This is what would have been required for the deceased to provide Daniel with 'proper maintenance and support'.

136 I do not accept Daniel's claim in this proceeding to accommodation for life in the Andrew Street property, still less his combined claim of a life interest in the Andrew Street property along with a monetary provision of $373,000 as specified by Daniel in his originating motion and summons.

137 Given the modest size of the estate and the testator's wishes to provide a meaningful bequest to all her children, 'proper maintenance and support' for Daniel means the minimum reasonably required to give Daniel the means of avoiding homelessness and remaining in the area he has spent most of his life, and no more than that. That means a small flat (for which he will require funds to meet the purchase price, stamp duty and registration), and a relatively modest lump sum, perhaps in the vicinity of about $150,000, to help him meet outgoings and contingencies. I have outlined the provision that is required in paragraphs 46-47 of these reasons, above.

138 Before making final orders, I will direct the parties to file and serve any additional affidavit material and submissions on the matters raised in paragraphs 46-47 of these reasons, and the costs of the proceeding.

[1] Administration and Probate Act 1958 (Act) s 90, definition of 'eligible person', sub-para (b)(iii) or (f).

[6] Act s 90, definition of 'eligible person', sub-para (b)(iii).

[8] Victoria, Parliamentary Debates, Legislative Council, 20 August 2014, 2617. See also Dunn v Perpetual Trustee Company Ltd [2021] VSC 766, 19 [59]-[63] (Moore J) (Dunn).

[9] See, in particular, Brimelow v Alampi (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); Naismith v Fraser [2018] VSC 689 (Zammit J); IMO the Will and Estate of Owen Charles Brown, deceased [2016] VSC 258 (Ierodiaconou AsJ); Katakouzinos v Katakouzinos [2019] VSC 3 (Daly AsJ) (Katakouzinos); Re Christu; Christu v Christu [2021] VSC 162 (McMillan J) (Christu); Re Donateo [2021] VSC 792 (Gorton J) (Re Donateo); Pavlidis v Pavlidis [2023] VSC 92 (Forbes J) (Pavlidis); Wilden v Meller [2023] VSC 199 (Daly AsJ); and Gash v Ruzicka [2023] VSCA 189 (Gash v Ruzicka). The plaintiff also relied on Walsh v Walsh [2013] NSWSC 1065 (Hallen J) (Walsh), Baxter v Baxter [2014] VSC 377 (McMillan J) and Stojanovski v Stojanovski [2019] NSWSC 1713 (Robb J).

[11] Act s 91(5)(a); see also Re Donateo 19 [54], 20 [56].

[22] Gash v Ruzicka 5-6 [20]-[22] (citations omitted).

[23] Their birth dates appear in the defendant's outline of opening submissions filed 9 February 2024.

[24] Referred to by the plaintiff as Margaret Wakeman (nee Roper).

[25] The Court received three substantive affidavits from the plaintiff dated 6 April 2022, 31 May 2022, and 9 December 2022. In addition, the Court received separate affidavits exhibiting documents relied upon by the plaintiff reproducing a bundle of emails in the years 2020 and 2021, photographs of the Andrew Street property, a copy and paste of a CT scan of the plaintiff's spine and other spinal images, a valuation which the plaintiff described as a fraudulent valuation, photographs of the garden of the Andrew Street property taken in 2004, a birthday card received from the plaintiff's mother containing a note, 'Thanks for all you do', a map identifying the places in the Melbourne area where his siblings reside, exhibits described as 'intercepted gas and electricity bills and an email', photographs of living aids created by the plaintiff for his mother due to her arthritis, financial records for the plaintiff, an exhibit referred to as 'sperm donor created families', aerial pictures of the Andrew Street property, medical documents relating to the plaintiff, an exhibit described as federal disability certification for the plaintiff, an exhibit showing photographs of the internal condition of the property, and an exhibit of 'miscellaneous' material. The plaintiff tendered four further exhibits on 1 May 2024: a bank balance; a GP mental health treatment plan; two medical certificates; and (confidential) exhibit P23, setting out a score recorded on an online test he took on 9 July 2021 that he relied on in relation to his third claimed condition.

[26] The defendant relied on his own affidavits and affidavits of four of the other five beneficiaries: affidavits of the defendant Michael Roper dated 28 June 2023, Angela Roper dated 20 December 2022, Margaret Roper dated 22 December 2022, Kathleen (Kate) Roper dated 27 January 2023, and her daughter Sabrina Williams sworn 6 February 2023, and Andrew Roper sworn 1 February 2023. In addition, the defendant relied on two affidavits he prepared relating to financial details relating to the estate, and an affidavit containing a valuation of the Andrew Street property contained in an affidavit of Nathan Camac affirmed 27 February 2024.

[32] Pavlidis 21 [93], citing Walsh 41 [121] and Christu 4 [12].

[33] Transcript 1 May 2024 157-158, referring to Joss v Joss [2020] VSC 424.

[35] See paragraphs 61-62 below.

[36] The valuation of the Andrew Street property is $925,000. Combined with the lump sum claim of up to $373,000, this reduces the amount currently available for distribution to other beneficiaries by up to about $1.3 million.

[37] Re Donateo 19 [54], 20 [56]; Act s 91(5)(a).

[39] Defendant's affidavits sworn 14 July 2022 and 1 February 2024 (containing updated share valuation and valuation of furnishings and antiques).

[41] See for example Iacono v Iacono [2021] VSC 444, [52], [94] (Daly AsJ).

[43] This would result from the removal from the assets available for distribution of $925,000 representing Andrew Street (accompanied by removal from the current liabilities of $114,253 in capital gains tax liability), and provision for Paul Roper to receive about $226,000 and the plaintiff to receive $373,000, leaving about $170,000 for distribution between the five other beneficiaries. If the amount quarantined for Paul Roper is about $216,000, the five remaining beneficiaries would receive about an extra $2,000 each.

[48] Transcript 30 April 2024 33-34, 58, 107.

[63] James v Rost; Lanagan v Rost [2022] VSC 98, [143] (Daly AsJ), referring to Warriner v Warriner [2015] VSC 314 and Schmidt v Walter [2019] VSC 385.