Plaintiff v Defendant

1. Sylvia Annette Rizzo (also known as Sylvia Antonietta Rizzo) ('deceased') died on 22 January 2020. She was survived by her two adult children; her daughter, Carmen Rizzo (formerly known as Carmen Barukzai) ('plaintiff or Carmen'), who was born in 1979, and her son, Phillip Joseph Rizzo ('defendant'), who was born in 1981 and is the executor and trustee of the deceased's estate.
2. The plaintiff applies for an order that provision be made for her from the deceased's estate for her proper maintenance and support, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) ('Act').
3. The deceased made her last will on 19 September 2019 ('Will'). The Will relevantly provides that:

...

1. I GIVE DEVISE AND BEQUEATH a life interest in my property situated at 22 Jefferson Street, St Albans, in the State of Victoria, or if I do not own that property at my death such property as is my principal residence at my death, to my son PHILLIP JOSEPH RIZZO of 22 Jefferson Street, St Albans, in the said State, Labourer, provided that he be responsible for paying all rates taxes and other outgoings from time to time payable in connection with my said property and keeping the same in good order and condition (excluding structural repairs) to the satisfaction of my Trustees and insured against such risks and for such amounts as my Trustees shall reasonably require with an insurance company approved by my Trustees.

2. I GIVE DEVISE AND BEQUEATH all the rest and residue of my real and personal estate of whatsoever nature and whatsoever situate to my Trustee UPON TRUST TO PAY the rest and residue (hereinafter referred to as "my Residuary Estate") and to dispose of them to my [sic] PHILLIP JOSEPH RIZZO of 22 Jefferson Street, St Albans, in the said State, Labourer, absolutely.

3. I DECLARE that I have deliberately excluded my former husband FRANK RIZZO, from benefiting from my Estate because we were divorced more than 30 years ago and I have no moral or legal duty towards him.

4. I DECLAR [sic] that I have deliberately excluded my daughter, CARMEN BARAKZAI from benefit under this Will after serious consideration and after being informed of the existence of the provisions of Part IV of the Administration and Probate Act 1958 as she and I are estranged and she has obtain [sic] financial advantage from me during my lifetime that if a provision was made for upon my death would result in an unfair division of my estate between my children.

...

1. On 17 April 2020, probate of the Will was granted to the defendant, who was appointed as executor and trustee. The Will gives a life interest in the property at 22 Jefferson Street, St Albans to the defendant and otherwise leaves the residuary estate to him. No provision for maintenance and support is made for the plaintiff. In cl 8 of the Will, the deceased declared that she deliberately excluded the plaintiff from any benefit due to estrangement and because provision had been provided to her during her lifetime, therefore any benefit would result in unfair division of the estate.
2. The Inventory of Assets and Liabilities dated 6 April 2020, as disclosed at the date of probate, valued the estate at $1,349,886 comprising:

(a) a property at 20 Jefferson Street, St Albans, Victoria valued at $595,000;

(b) a property at 22 Jefferson Street, St Albans, Victoria valued at $672,500;

(c) a 2002 VX Holden Commodore valued at $2,000; and

(d) cash held in the defendant's lawyers' trust account in the amount of $80,386.68.

1. Recent valuations of the properties indicate that they have since increased in value, and due to this proceeding the cash held in the trust account is now in the amount of $30,962.94, with $3,002.75 outstanding in unbilled legal costs.

(a) affidavit of Stella West sworn 25 March 2025;

(b) affidavits of Carmen Barukzai sworn 1 March 2024, 11 July 2024 and 17 February 2025 and several further documents tendered through her at trial;

(c) affidavit of Jodi Lanham sworn 19 December 2022 and 12 February 2025; and

(d) written opening submissions filed on 20 February 2025.

1. The defendant did not appear at trial. I am satisfied that he was aware of the proceeding and had an adequate opportunity to participate based on the following:

(a) the defendant was represented by Lanham Lawyers in this proceeding up until they ceased to act on 9 August 2022, although it appears that an appearance was not filed having regard to ongoing settlement discussions. That representation included several months of communication between his lawyers and the plaintiff's lawyers about the claim. Evidence from the defendant's lawyers indicate that the defendant eventually ceased communicating with them, and failed to respond to numerous attempts to contact him, which resulted in them ceasing to act; and

(b) on 26 November 2024, Burgess JR made Orders for trial and service on the defendant of the Order by email and by leaving a copy at, and posting a copy to, an address at which he had previously been personally served, and known to be his residential address. On 21 February 2025, McCann JR made further Orders, including for service in similar terms. I note that Ms West deposes in her affidavit sworn 25 March 2025 that the Orders were served by post in accordance with those Orders, although she also says the documents were subsequently returned as unclaimed. From the Court file it appears that, in addition to service by post, the Orders were served by a process server by leaving them at the defendant's residential address. Ms West states in her affidavit that she was not able to effect service via the defendant's last known email address, as an email address was not known to the plaintiff or the defendant's lawyers.

1. As the defendant has not filed any material there is no evidence of his circumstances, including any financial need.

1. As a child of the deceased, the plaintiff is an 'eligible person' entitled to apply for a family provision order.[1] The Court may make such an order only if, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support,[2] and the Will fails to make adequate provision for that support.[3]
2. If the jurisdictional requirements are met, the Court may order that provision be made out of the estate. In determining the amount of any order to be made, the Court must have regard to the degree to which each of those criteria are met,[4] and must not order more provision than is necessary for proper maintenance and support.[5] The Court must also have regard to: the deceased's Will;[6] evidence of the deceased's reasons for making the dispositions in the Will;[7] and any evidence of the deceased's intentions in relation to providing for the plaintiff.[8]
3. In addition to those mandatory considerations, the Act sets out a number of factors which the Court may have regard to, including for present purposes:

(a) the size and nature of the estate;[9]

(b) the plaintiff's age[10] and circumstances, including health,[11] finances, and earning capacity as well as future prospects;[12]

(c) any previous benefits given by the deceased to the plaintiff and defendant;[13]

(d) the plaintiff's relationship to the deceased;[14]

(e) the extent to which the deceased owed any obligations or responsibilities to the plaintiff or defendant, and the extent to which the deceased was providing any maintenance to them;[15] and

(f) the defendant's health,[16] financial circumstances[17] and the effect that a family provision order would have on the amounts received from the deceased's estate by him.[18]

Did the deceased have a moral duty to provide for the plaintiff?

1. It is uncontroversial that parents, at least generally speaking, have a moral duty to provide for their children, although the extent of that moral duty depends on the circumstances and may, for example, diminish over time as children become independent adults. In Walsh v Walsh[19] Hallen J discussed parental obligations to adult children as follows:

(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, such as a parent's obligation to support a dependent child, 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.

(g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim.

(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.

(i) There is no obligation on a parent to equalise distributions made to his, or her, children so that each child receive benefits on the same scale as the other. There is no standard measure for the extent of the duty owed by a parent to a child.[20]

1. The above principles have been followed in Victoria,[21] and I adopt them.
2. For the following reasons, discussed in more detail below, I am satisfied that the deceased had a moral duty to provide for the plaintiff's proper maintenance and support. The plaintiff is a single mother of three children aged 19, 16 and 14 years. She has very limited financial resources, practically no savings and superannuation, is living in a rental property, has limited employment opportunities and prospects, and is facing significant health issues. Where, as in this case, there is an estate of approximately $1.5 million available to be distributed, and the plaintiff is one of two adult children, I consider it is within 'community expectations'[22] that the deceased would make some provision for the plaintiff. The difficulties that the plaintiff and deceased faced in their relationship with each other in the final year or two of the deceased's life, also discussed further below, does not preclude that duty.
3. The recognition of a moral duty in the present circumstances is consistent with Hallen J's observation that:

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. [23]

1. Having regard to the plaintiff's financial circumstances, this is a clear case where the deceased had a moral duty to provide. That being the case, I am also satisfied that the deceased failed to make adequate provision for the plaintiff's proper maintenance and support, as no provision at all has been made. Accordingly, I am satisfied that the jurisdictional requirements for making an order are met.

The terms of the Will and the deceased's reason for excluding the plaintiff

1. Section 91A(1) of the Act requires the Court to have regard to the deceased's Will, any evidence of the deceased's reasons for making the disposition in the Will, and any other evidence of the deceased's intentions in relation to providing for the plaintiff.
2. The deceased's Will provides an explanation why the plaintiff was excluded:

I DECLAR [sic] that I have deliberately excluded my daughter, CARMEN BARAKZAI from benefit under this Will after serious consideration and after being informed of the existence of the provisions of Part IV of the Administration and Probate Act 1958 as she and I are estranged and she has obtain [sic] financial advantage from me during my lifetime that if a provision was made for upon my death would result in an unfair division of my estate between my children.

1. The plaintiff's evidence as to her relationship with the deceased is that it was always close, save for a period late in the deceased's life. The plaintiff says that she married her former husband when she was 23 years old and they lived with the deceased 'on and off over the next two years.' After they moved out, the relationship with the deceased 'continued to be close.' The plaintiff says she visited the deceased 'at least once a week' and 'we had meals at her house, went shopping, and spend special occasion together.' The plaintiff says that the deceased 'moved to the 283 Westwood Drive, Burnside property to live with my children and I (sic) in about 2015.' The plaintiff says 'our relationship continued to be close and most days we spent time together and with my children as a family.'
2. The plaintiff says that the deceased moved in with the defendant in 2018 'because he was going through a difficult time and needed support.' The plaintiff says that a couple of months later the deceased told her that she was having a difficult time living with the defendant because of his behaviour. That led to a conversation with the plaintiff, the defendant and the deceased in which the plaintiff says she challenged the defendant's conduct and the conversation became heated. The plaintiff says the deceased seemed to be taking the defendant's side, and that she was hurt by this, and it resulted in the plaintiff and the deceased not speaking for about a year. The plaintiff says they reconnected in March 2019 at her daughter's birthday but things deteriorated again about a month later, after the plaintiff and deceased argued about the price at which 'she was intending to sell 21 Jefferson Street, St Albans property.' The plaintiff says she has experience in real estate and was seeking to help, but the deceased said it was none of her business.
3. The plaintiff says she repeatedly tried to contact the deceased over the next few months to rebuild the relationship but those calls were not answered. The plaintiff says she made five trips to see the deceased in December 2019. On the last visit she took her children with her. The plaintiff and deceased argued and the deceased said she did not want the plaintiff to visit again. The plaintiff's daughter became upset and cried and said she thought the deceased did not want to see them. That was the last contact the plaintiff and the deceased had.
4. The first point to note is that a period of estrangement does not necessarily put an end to a moral duty.[24] Secondly, the effect, if any, that estrangement may have on any provision depends upon the circumstances, including; the length and cause of estrangement, any accompanying hostility, and any reconciliation.[25]
5. In this case, the plaintiff describes a close relationship with the deceased for almost all of their lives. The period that they did not see each other was not a long period of time in the scheme of their lives, but it did coincide with the making of the Will. It is not clear that either party was to blame for the breakdown in communication, and I accept that the plaintiff made several attempts to reconcile with the deceased in the months before her death, which the deceased resisted.
6. The plaintiff submits that any estrangement can be disregarded given its short duration and the attempts at reconciliation.
7. The deceased's wishes are a factor to be taken into account, so I do not disregard them, but given that the period of estrangement was relatively short, and given the efforts of the plaintiff to reconcile with the deceased, I consider that the estrangement is of little weight in determining adequate provision.

1. The other reason the deceased gives for not making provision for the plaintiff is that the plaintiff has obtained 'financial advantage from me during my lifetime.'
2. The plaintiff's evidence is that the financial advantage was constituted by the plaintiff and her husband living with the deceased on and off for two years after the plaintiff's marriage. The plaintiff says she was grateful for that support, but that she did not receive any other financial assistance from the deceased during her lifetime. The plaintiff also says that she supported the deceased financially by buying her groceries and giving her money from time to time.
3. I accept that evidence, and consider that the financial assistance given is that identified by the plaintiff. In the scheme of things, and in the context of the size of the estate, it was modest assistance.

1. The estate is comprised of cash in the amount of $30,962 with $3,002 of unbilled legal fees outstanding, and two properties at 20 and 22 Jefferson Street, St Albans. The plaintiff relies on two recent valuations prepared by Barry Plant on 20 February 2025, which value the properties between:

(a) $650,000 to $700,000 for 20 Jefferson Street; and

(b) $760,000 to $830,000 for 22 Jefferson Street.

1. The total estate is therefore valued at between $1.4m and $1.55m.

The plaintiff's age, circumstances, health, finances, employment and future prospects

1. The plaintiff was born in 1979. She is a single mother with three children aged 19, 16 and 14, all of whom live with her. The plaintiff says her 19 year old daughter is working but is still dependent on her.
2. The plaintiff does not own any property and rents her home. She has $270 in superannuation and savings of $6,664, as at the date of trial. The plaintiff owns a 2011 Subaru Tribecca which is valued on the Redbook website at between $5,850 and $10,550. The car was purchased with the assistance of a $5,000 interest free loan obtained in March 2023, which the plaintiff is paying off at $24.20 per week, out of her Centrelink account. The amount of $2,693 was outstanding at the date of trial. The plaintiff also has outstanding parking and traffic fines of approximately $3,000.
3. The plaintiff is not employed and receives $1,305.76 per week (made up of government benefits and approximately $600 per week in Workcover payments), and approximately $20 per week in child support. The plaintiff's total living expenses, excluding rent (of $900 a fortnight), are approximately $2,000 per month.
4. The plaintiff previously worked as a support worker for a period of three months in 2024, but suffered a workplace injury in July 2024, and has been unable to work since. She was also in a car accident three months after this workplace injury.
5. The plaintiff relies on a medical report from her general practitioner, Dr Malekzadeh, dated 16 January 2024. Dr Malekzadeh states that the plaintiff suffers from 'chronic back and neck pain due to disc disease, severe recurrent migraine headaches and depression and anxiety disorder.' Dr Malekzadeh states that all of these diagnoses 'are permanent and irreversible' and that 'all available treatment options and medication are exhausted.' Dr Malekzadeh also says that they have 'resulted in significant impairments in most aspects of [the plaintiff's] life including significant impact on mobility, social interaction, self-care, communication and self-management.' He states that 'there is no more intervention that would improve her disability and the impairment associated with it.' Those factors will inevitably impact her future employment prospects, which are modest at best, but most likely poor.
6. The plaintiff also relies on a medical report of Dr Karim dated 20 February 2025, and a Certificate of Capacity issued 25 March 2025 for Workcover purposes each of which are consistent with the opinions expressed by Dr Malekzadeh.
7. The plaintiff submits that she has a disability within the meaning of the terms as defined in s 90 of the Act. It is not submitted that the plaintiff will never be able to work, but her prospects are limited by the health issues identified.
8. The medical evidence, such as it is, paints a picture a of woman suffering various physical and mental health issues. It is not necessary to determine whether the plaintiff suffers a 'disability' as defined in the Act, as I propose to take into account those identified issues in any case in considering the earning capacity and financial needs of the plaintiff.

The extent to which the deceased owed any obligations or responsibilities to the plaintiff or defendant, and the extent to which the deceased was providing any maintenance to them**[26]**

1. The deceased owed the moral duty of a mother to an adult daughter. The sense in which that translates into the availability and amount of an order for provision is discussed above in relation to adult children.

The defendant's health, financial circumstances, and the effect that a family provision order would have on the amounts received from the deceased's estate by him.

1. Little is known about the defendant's health or financial circumstances other than that he lives in the 22 Jefferson Street property, but any order for provision would be coming out of funds that would otherwise be his. He may be in a position of need or may not. However, as the defendant has not participated in these proceedings or filed any evidence, the Court cannot conclude what his position is.

1. Taking into consideration all of the relevant factors and surrounding circumstances, I am of the view that a wise and just testator, having regard to her daughter's circumstances, would have concluded that she had a responsibility to make provision for her daughter. The plaintiff is a single mother of three children, who is in poor health and a poor financial situation. She is in a position of some considerable need. The deceased's estate is of a size that can provide substantial sums to each of her children. The deceased's explanations as to excluding the plaintiff are based largely on estrangement, that was relatively short lived, and which the plaintiff attempted to remedy. Such estrangements as there was, is not a factor that weighs heavily against an order for provision. Similarly, the evidence as to financial support given during her lifetime indicates a modest degree of support and also that the support was not only one way.
2. Accordingly, I am satisfied that the deceased failed to make adequate provision for the plaintiff's proper maintenance and support.
3. An order for provision must not provide for an amount greater than is necessary for the plaintiff's proper maintenance and support.[27] The plaintiff seeks orders for the provision of 75% of the deceased's estate. In the circumstances, I consider that the appropriate amount of provision is for 50% of the deceased's estate. It is a significant departure from the terms of the Will, and equally it will mean a significant reduction in the amount the defendant receives from the estate. It is not everything the plaintiff sought, and may not enable the plaintiff to purchase a property outright, but in all the circumstances it represents an amount that will provide proper maintenance and support.
4. Having regard to the assets in the estate, the parties may wish to consider how they should be allocated having regard to these reasons. I will hear the parties as to the final form of orders and on the question of costs.

[1] Administration and Probate Act 1958 (Vic) ('Act') ss 90, 90A and 91.

[2] The background and purposes of the relevant provisions of the Act (n 1) ss 90 and 91, were discussed by the Court of Appeal in Scott-Mackenzie v Bail [2017] VSCA 108, [11]-[16].

[19] [2013] NSWSC 1065, [121] ('Walsh').

[21] Christu v Christu [2021] VSC 162, [12]; Pavlidis v Pavlidis [2023] VSC 92, [93].

[24] Palmer v Dolman [2005] NSWCA 361, [110] (Ipp JA).

[25] John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Australia, 6th ed, 2021) [2.10]-[2.11].