Plaintiff v Defendant [2025] VSC 323 | Case summary

Supreme Court of Victoria|2025-06-06|Before: Ierodiaconou AsJ

TESTATORS FAMILY MAINTENANCE - Application for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic) by adult daughter - Where deceased died intestate - Where estate to be equally divided between two adult daughters - Where plaintiff lived in the deceased's property for majority of her life - Whether equal division of the estate adequately provides for the plaintiff's proper maintenance and support - Application dismissed - Administration and Probate Act 1958 (Vic) ss 90A, 91, .

1 The plaintiff, Maria Rimbas, seeks further provision from the estate of her late father, Dimitrios Rimbas ('the deceased'), pursuant to Part IV of the Administration and Probate Act 1958 (Vic) ('the Act'). The defendant, Katina Paganis, is the administrator of the estate, and Maria's sister.[1]

2 The deceased died intestate on 18 March 2023. He is survived by two adult daughters, being Maria and her younger sister, Katina. Maria is 59 years old, and Katina is 56 years old. The deceased's wife, Stavroula Rimbas, and a third child, George Rimbas, predeceased him. George died without a partner or children.

3 It is common ground that under the usual intestacy principles, the only beneficiaries of the deceased's estate are Maria and Katina.

4 In this proceeding, Maria seeks the whole of the estate, and wishes her sister, Katina, to receive nothing from the estate.[2] For her part, Katina is content for the estate to be evenly divided.

5 Both Maria and Katina gave oral evidence and were cross-examined at trial.

6 Katina also called three witnesses to give evidence:

(a) Kerry New, the deceased's niece;

(b) Sophia Anastasiadis, the deceased's sister; and

(c) Ilias Paganis, Katina's father-in-law.

7 Maria declined to call any witnesses.[3]

8 For the reasons that follow, I find in favour of Katina, and order that the estate be apportioned in equal shares between Maria and Katina pursuant to s 70ZG of the Act. In doing so, I find that Maria has failed to justify why she should receive further provision from the deceased's estate under Part IV of the Act, beyond what is provided for in s 70ZG.

9 The deceased owned and lived at 14 Bowler Street in Hawthorn East ('the property').

10 Maria has lived at the property with her parents for most of her life, except for a short period from the ages of 20 to 21, when she was married and lived elsewhere. She is currently residing at the property. Prior to George's death, he also lived at the property with Maria and their parents.

11 Between 1994 and 2012, Katina resided in Greece with her husband, John, and their two children. Upon return to Australia alone, Katina lived at the property with her parents and siblings for approximately three to four months. Once John had returned to Australia, she moved into his parents' house. Katina currently resides with John in a rented property.

12 In or about 2013, George died. In 2017, Stavroula died. Six years later, on 18 March 2023, the deceased also died.

13 These are the uncontested facts. Much of the remaining factual background is in issue between the parties, and is outlined below.

14 On 18 July 2023, letters of administration were granted to Katina.

15 On 19 April 2024, Maria commenced this proceeding via originating motion. Having commenced this proceeding out of time, Maria sought an extension pursuant to s 99(2) of the Act. The Court granted an extension of time on 8 November 2024.

16 On 17 January 2025, with leave of the Court, Maria's solicitors filed a notice ceasing to act.

17 On 28 January 2025, Katina filed an application seeking particular discovery. This application was heard on 5 February 2025. Consequently, on 5 February 2025, Maria was ordered to produce documents evidencing her current shares, dividends, bank statements and tax returns for the period from 1 July 2022 ('the production orders') by 13 February 2025. Orders were also made for the trial to be conducted with viva voce evidence.

18 The trial of this proceeding was heard over three days from 19 to 21 February 2025. Maria represented herself, and Katina (as administrator) was represented by counsel.

19 Following the trial, an application to re-open evidence was made by Katina. That application was heard on 6 March 2025. Ultimately, a letter from the Southern Metropolitan Cemeteries Trust dated 9 December 2024 was tendered by consent.

21 The Inventory of Assets and Liabilities dated 30 June 2023 records the gross value of the deceased's estate as $1,347,052.69. The property is valued at $1,100,000, and the personal estate (comprising two bank accounts, three investments funds, and a motor vehicle) is valued at $247,052.69.[4]

22 A subsequent external valuation report of the property obtained by Katina, dated 27 May 2024, valued the property at $1,400,000 (the 'kerbside valuation'). This valuation was disputed by Maria, who said that she had obtained her own valuation of the property at $1,900,000. There is no evidence to support the valuation obtained by Maria, save for a handwritten note dated 20 February 2025 that attests to the valuation and is signed by 'W.H. Tobin'. This is a reference to Warwick Tobin.[5] I prefer the kerbside valuation of $1,400,000.

23 As at 20 February 2025, Katina estimates the financial position of the estate to be $1,623,081.53, comprised of:

(a) the property;

(b) two bank accounts;

(c) less the deceased's funeral and memorial costs, expenses regarding the upkeep of the property, and two disbursements paid in relation to the current proceeding.

24 In addition, $30,000 in cash was found at the property by Maria and Katina. This has already been distributed equally between them.

25 Per the Court's order made on 5 February 2025, the evidence at trial was presented viva voce, with reference made to specific exhibits tendered during the evidence.

26 Maria represented herself at trial, although she did receive legal assistance during earlier stages of the proceeding. In short, Maria is seeking the whole of the deceased's estate, on the basis that she has nothing because she has 'been abused by them', meaning Katina and John, for her 'entire life', and therefore wants them 'to actually receive nothing'.[6]

27 Maria proved to be a vitriolic and unreliable witness. As well as being untruthful, parts of her evidence were implausible and illogical.

Failure to produce documents relevant to the issues in dispute

28 Maria failed to comply with the production order before or during trial. She did not produce any documents before trial. On the first day of trial, this issue was raised. Despite stating that she did not want her 'financial affairs made public' and that she found it 'hard to believe' that the Court had ordered production,[7] she ultimately produced documents on day two of trial.

29 The documents produced by Maria and tendered included:

(a) notices of assessment issued by the Australian Taxation Office ('ATO') for the years ended 30 June 2023 and 30 June 2024;

(b) a statement of account issued by the ATO for the period from 28 October 2022 to 21 November 2023 to provide supplementary account information in relation to an assessment;

(c) various documents concerning shares held in the following companies: SCA Property Group; Commonwealth Bank of Australia ('CBA'); TABCORP Holdings Limited; Endeavour Group; QR National Limited; The Lottery Corporation; Woolworths Group; Aurizon Holdings Limited; Region RE Limited; and

(d) two handwritten notes, one being unsigned and the other being signed by 'W.H. Tobin'.

30 Maria failed to provide her tax returns for the period from 1 July 2022 to date. She stated she had not contacted the ATO to obtain copies and suggested they ought to have been obtained by Katina.[8] In fact, she replied 'you bet your bottom dollar' when asked to confirm that she had made no effort to obtain her tax returns.[9] In relation to further bank statements, Maria said she only banks with the CBA.[10]

31 The documents produced did not provide a complete picture of Maria's financial situation.

32 Maria initially gave evidence that she received no income 'at all'.[11] This statement proved to be untruthful shortly afterwards, as will be discussed below.

33 Maria said she had previously received the Newstart benefit, however, it ceased in 2013 as she could no longer look for work because her parents and George were ill. She conceded she never received a carer's pension.[12]

34 When taken to two payments of $23,000 and $17,839.30 made on 23 and 24 August 2023 respectively and labelled as 'Direct Credit Pension', as shown on her CBA statements,[13] Maria referred to these deposits as 'back payments' from Centrelink, asserting that most of it had 'gone into legal costs'.[14]

35 Maria gave evidence that she had received a tax return 'ever since' she could remember, and had received payments from the ATO from time to time.[15] She said that she tries to 'live on' the tax returns.[16] Yet, she also said she would put her tax return into a term deposit account.[17] I understand the use of the term 'tax return' to mean a tax rebate.

36 When asked to explain why the ATO was making payments to her, for instance, why they paid her $4,202.16 on 23 October 2015, Maria said the payments resulted from her tax returns. She said that she would complete her own tax return with 'rough' estimates of her dividend payments, however, this would not include the dividends that were reinvested.[18]

37 Maria gave evidence that she has had 'many' term deposits. She was unable to recall the exact figure, although said it was 'much more' than three.[19]

38 In cross-examination, counsel took Maria to the CBA statements,[20] which provided transaction histories for three term deposits held in her name and dated between 2014 and 2024.[21] The general theme from her responses was that she would place money received from her tax returns into term deposits. When asked about an amount of $20,000 that was deposited into a term deposit in 2023, Maria stated, 'there was money put in it in the early stages', going on to say that the money went to 'legal costs'.[22] It is unclear where this money originated.

39 Maria referred to other term deposits that were not contained in the CBA statements. First, she referred to depositing $5,000 in a term deposit in or about 2022, of which the deceased had contributed $200. She said this term deposit had 'vanished' off the CBA's computer system.[23] Second, Maria referred to a term deposit containing $8,000, which she said was spent when an aunt visited from overseas in or about 2013.[24] When asked if she had any documents to show these transactions, Maria replied, '[n]o, but I'm sure the bank's got plenty ... if you wanna pay for it, you can retrieve it.'[25] Maria displayed a noticeable reluctance at the idea of producing documentation to support her oral evidence, but said that she would 'have a look' to see what she could find at home.[26]

40 Maria's evidence as to the value of her share portfolio developed over the course of two days. Needless to say, I do not accept that the evidence she gave or the documents she produced provide an accurate or complete picture of her share portfolio. Examples of her contradictory evidence follow.

41 For context, in her application for an extension of time to commence this proceeding, Maria relied upon her affidavit sworn on 16 May 2024. In that affidavit she deposed to having a share portfolio with a value of approximately $100,000.

42 In her evidence in chief, Maria said that she hadn't looked at her shares 'for years' and she was unaware they had 'increased so much and dramatically'. She said she had a 'friend' assisting her who said her shares were worth 'almost half a million dollars'. She went on to say that she had 'only briefly looked' at her shares, and would need to 'get an accurate figure' by 'get[ting] a copy of the documents', but that there would be 'no more than half a million'.[27]

43 In cross-examination, counsel queried the value of Maria's share portfolio. When asked if its value was about $495,000 in late 2024, she replied, '[s]omething like that'. She went on to say that it 'might even be over half a million today for all [she] know[s]', seemingly citing that the CBA had just had a good year for shareholders.[28]

44 Counsel referred to Maria's earlier affidavit in which she had described her shares as being worth around $100,000. Maria attempted to correct him, stating the amount as: '[o]ver 100,000 ... About 150 ... Between there, 100 and 150'.[29] Counsel reiterated that the amount referred to in the sworn affidavit was $100,000, which he said was wrong, in response to which, Maria said: '[w]ell - well yeah. Why didn't you check it?' When asked why she had not checked it, Maria responded that she was 'busy', and ultimately agreed that she had guessed the value.[30] Maria asserted that it had not been 'a deliberate action to deceive the court'; and effectively placed the onus of determining that information upon counsel, stating '[a]ll you have to do is get a credit check and it's going to bring up everything I've got'. She referred to having provided 'an approximate value', and that '[a]ll they had to do was ask [her] for a true value'.[31]

45 Counsel put to Maria that she had lied in her affidavit. In response Maria stated that 'there is $100,000 there, plus there's another $300,000 ... So it's not a total lie'. She then proceeded to provide an alternative characterisation of what had happened, variously stating, 'I made a mistake', '[i]t wasn't accurate', and '[i]t was an approximation'.[32] On this point, she concluded by stating that:

If you want to look at it as a lie, you can look at it as a lie. It was an approximation, but we were out. But that is not a big crime because you should have got a - anyone that's interested in my financial affairs would have got a credit check on me. [33]

46 Maria was cross-examined by counsel regarding the documents she provided to the Court on the second day of trial. When asked if the documents produced to the Court that day were a complete account of her shareholdings, she stated that 'the seven documents dated roughly September 2024 ... are all the current - my current holdings'.[34]

47 In respect of dividends paid from her share portfolio, Maria's evidence was that she doesn't 'really' receive dividends, going on to say '[t]hey're really slow about it. I've got to wait half a year to receive that $200 or $400'.[35] Further, she explained that she would reinvest her dividends as opposed to accepting a dividend payment.[36]

48 In cross-examination, Maria was taken to various transactions on the CBA statements. When taken to a credit transaction described on the statement as 'QRN DIVIDEND', Maria stated, '[o]h isn't that nice. I did get dividends. It's not a crime to receive dividends'.[37]

49 Counsel took Maria to the handwritten documents produced by her, one of which comprised a note to 'Marie'; and the other of which was headed, '[t]o whom it may concern', and presented as a statement of assets and liabilities as at 20 February 2025.[38] Maria said that Mr Tobin had prepared the statement of assets and liabilities on her behalf, and that he was a certified practising accountant.[39]

50 Listed under 'assets', was the property. Maria said that Mr Tobin had obtained a new valuation of the property from Bryan Cane, who had valued the property at $1.9 million.[40] Counsel put to Maria that if the estate sold the property, then she would be entitled to half of the net proceeds of sale, to which she responded, 'I will not accept that, and that's why I'm here'.[41]

51 Also listed under 'assets', was Maria's share portfolio, which was stated to be $600,000. Maria said that this amount sounded 'correct' and that it was in the 'vicinity of $600,000'.[42] When put to her that this figure exceeded the one that she had referred to on the first day of trial, Maria said that she had referred to '590-something thousand', and had mentioned the 'increase in the profit margin of the Commonwealth Bank'.[43]

52 Listed under 'liabilities' on the statement was '[m]onies owed to Accountant', which was stated to be $10,000. Maria said that this was owed to Mr Tobin for 'accounting work' he had undertaken for her, going on to state that he had covered 'a multitude of avenues', including 'dealing with lawyers'.[44] Maria conceded that Mr Tobin had not provided an invoice.

53 Maria was taken to the handwritten note addressed to 'Marie', which stated that the statement of liabilities did not include $35,000 owed to Stratus Legal Group. When asked if she had paid her previous lawyers, Maria initially responded in the negative. She then agreed that she had taken money out of her CBA accounts to pay her legal fees, and said the $35,000 was owed to her prior lawyers on top of what she had already paid. When asked if she had any documentation to substantiate this evidence, Maria produced the invoice which she said was for $30,000. The invoice dated 14 January 2025 shows the amount due as $30,883.25. Maria was unable to explain the discrepancy between this figure and the figure written on the handwritten note.[45] Her evidence as to what had been paid, what had not been paid, and which proceedings had incurred the costs, was unclear.

54 Maria's evidence regarding her financial situation is not credible. As shown above, it is inconsistent, incomplete and untruthful. She sought to hide the extent of her financial assets. It is implausible that she had amassed a share portfolio valued at $600,000 (as well as holding term deposits) from tax refunds if she was receiving no remuneration or other monies except for the occasional dividend.

55 It is common ground that Maria, Katina and Kerry located an envelope with $30,000 cash at the property that belonged to the deceased, and that this $30,000 was evenly divided between Maria and Katina.

56 In her evidence, Maria admitted to knowing how much was in the envelope as she had 'cleaned up' the deceased's bedroom. She initially denied that it contained more than $30,000; however, she then made a comment about $10,000 missing at one stage, which led her to go to the police, but which 'remarkably ... appeared in the top drawer'.[46]

57 Maria agreed that the deceased had kept cash in the house and said that, at one point, she had taken $800 from his 'everyday wallet', because she had 'no income and no money'.[47]

58 Maria gave contradictory evidence about her relationship with Mr Tobin.

59 On the first day of trial, Maria variously described Mr Tobin as a 'local friend',[48] and 'not [as] a friend', but an 'acquaintance'.[49] When prompted, Maria agreed that he was a neighbour who she had met 'once or twice' prior to the deceased's passing.[50] When asked if she was ever engaged to Mr Tobin, Maria's evidence was that he couldn't 'afford to buy [her] rings' and couldn't pronounce the word fiancé. She went on to say that he was supposed to assist her with legal matters, that he charged $1,600 (although it is unclear what for) and that she had paid him a 'few hundred' dollars.[51]

60 On the second day of trial, Maria referred to Mr Tobin as her 'fiancé' and her 'sweetheart'.[52]

61 Maria's evidence regarding her relationship with Mr Tobin is not credible. It is contradictory. Over the two-day trial, it morphed from a 'neighbour' she had 'met once or twice' who was assisting her in some vague way, to her fiancé. I draw an adverse inference from her failure to call Mr Tobin. I infer that his evidence would have shown that he provides emotional support to Maria. I make no finding as to whether he provides financial support to her.

62 In her evidence, Maria made numerous statements about having cared for both of her parents and managed the household.

63 Maria said that she was home 24-hours a day for the deceased. She said that he would give her '$50 a week, or a fortnight, to go and [...] do the grocery shopping'.[53] She said that she would 'make sure there was food on the table for him'.[54]

64 When asked if she spent any of her own money, Maria replied that she 'always spent money' on the deceased, that she had bought items for him from the op shop (eg, jewellery) and trousers from Target, and that she had 'bought Dad almost everything'.[55] She was unable to produce any documents to support these statements.[56] Counsel suggested to Maria that she had not spent money on her father, but rather had benefited from him. She denied this proposition, except in relation to the later years, when she 'didn't have money ... didn't have an income'. When reminded of the money from her shares, Maria said that she had used this for medical and veterinary bills.[57]

65 Although she lived at the property, Maria's evidence was that she 'never showered', 'never used the water', 'never used the gas much', and 'never used to drink the milk' to illustrate her minimal use of water, gas, and electricity.[58] Later, in cross-examination, counsel suggested that the deceased had paid for all of the utilities, in response to which Maria said: '[w]ell, I didn't use them.'[59]

66 When asked if she had considered selling some of her shares to generate funds to purchase 'food and things', Maria said, '[w]ell, if I didn't need it, why would I ... even think about it?'[60] She reiterated that she 'never used to eat much', '[didn't] drink alcohol', and 'just did enough for the family'.[61] It was suggested by counsel that Maria had spent money at gaming venues. Maria responded that the money was not her parents; that she had stopped all 'entertainment' in October 2023; and denied that she had done so whilst her father was alive.[62]

67 In her evidence in chief, Maria said that she 'didn't get anything [from] staying with [her] parents', but did say that she had once received 'a $200 mattress in, say, 40 years from [her] parents', and said that the deceased had given her $200 to add to a term deposit. In contrast, Maria said that Stavroula had given cheques to Katina, ranging in amount from $200-$500 and, on occasion, $5,000. [63]

68 I find Maria's evidence that she was at home 24 hours a day, always spending money on the deceased, not using any utilities, and not receiving anything from staying with her parents to be implausible.

69 Maria said that she looked after Stavroula when she became ill.[64] Although conceding that the deceased received a carer's pension in respect of Stavroula, Maria's evidence was that he did not care for her, stating that the deceased couldn't cook.[65]

70 In cross-examination, Maria insisted that she had cared for the deceased, after the death of Stavroula. When asked why she had not sought to receive a carer's pension, she replied that '[t]hey wouldn't diagnose him with any illness'. When put to her that this was because he did not need a carer, Maria responded, '[w]ell, you're not a doctor. So you're wrong.'[66] Maria otherwise agreed that the deceased was able to drive until very late in his life.[67]

71 Maria was taken to an order of the Victorian Civil and Administrative Tribunal ('VCAT') dated 28 April 2022, in which VCAT had appointed Maria and Katina as joint supportive guardians of the deceased.[68] Although initially insisting that this order had been made in favour of Katina only,[69] Maria eventually said that she was familiar with this order and went on to describe how Katina how failed to care for the deceased. [70] This is discussed below.

72 In her evidence in chief, Maria said that 'they' (Katina and John) 'never came into the home to ever help ... no chores done, no lawnmowing, no tree lopping, no gardening, no nothing ... [t]hey say everybody has to do it ... [a]nd they felt that I had to do it'.[71] She conceded that Katina had driven the deceased to medical appointments '[j]ust a few times', but described this gesture as 'show and tell', meaning that Katina was '[e]ager to learn' whether or not their father would live, stating that she was 'just that type'.[72]

73 In cross-examination, when asked whether Katina regularly visited the deceased at his house, Maria said '[n]ot that [she] kn[e]w of.' It was put to Maria that, on those visits, she would make coffee for Katina. Maria conceded this point, although suggesting more infrequent visits for religious holidays and special occasions. Counsel said that, on Katina's evidence, when she visited the deceased, Maria refused to make coffee for her father. In response, Maria said that Katina 'demanded one straight away', and that her father '[got] coffee from [her] all day'.[73]

74 Later in cross-examination, Maria again denied that Katina visited the deceased quite regularly or almost weekly, stating Katina could 'say what she likes, I don't remember her coming over.'[74]

75 Although disputing that the deceased was keen to visit Katina and her children, Maria conceded that he would, 'at one stage', attend Katina's house weekly. She said this was 'only because it was on his way home from the cemetery', and that 'he wouldn't stay there terribly long'.[75]

Maria's animosity towards Katina, John and other witnesses

76 Throughout her evidence, Maria made it abundantly clear that she had not commenced this proceeding for 'money reasons'. [76] At one point, she stated that she wasn't 'interested' in an equal division of the estate, but that she was 'interested in winning ... the case' and 'not interested in betweens'.[77]

77 Maria's comments about Katina and John were vituperative, and often accompanied by unfounded allegations; for example, accusing Katina and John of having 'abused' her and the deceased.[78] When asked to expand on one of these accusations, she alleged Katina and John had given the deceased some meat to take home with him after a barbeque at their house, which had been 'chewed by others or picked up out of the bin'.[79] In cross-examination, she referred to these instances as John having 'attempted murder', saying '[p]eople who attempt murder should not be getting the victim's money'.[80]

78 Another allegation of 'abuse' concerned John assisting the deceased with the purchase of a trailer. Maria said her father did not need the trailer and 'nearly lost his arm and leg' moving it.[81] The deceased injured himself when attending to a flat tyre, whilst the trailer was jacked up, and then fell on him. This was said to constitute 'abuse' by John because her father and John 'found the trailer on John's internet'.[82] In addition, she said that John's speech at the deceased's funeral contained 'no compliments' about the deceased, and that he had 'laughed' at the deceased's funeral.[83]

79 Maria ultimately admitted feeling ill will towards Katina and John, as reflected in the following exchange:

COUNSEL: So, Ms Rimbas, you have a degree of ill will against your sister, don't you?

MS RIMBAS: Um sometimes. Sometimes not. Not really because I know - we can't both be stupid. So since she's the stupid one, someone's got to be the intelligent one, correct? [84]

80 The abuse allegations directed at Katina and John by Maria are not just unfounded, but also illogical. Maria's vitriolic comments were not restricted to Katina and John. She made comments of a similar nature in relation to other witnesses.

81 When asked about the deceased's sister, Sophia, Maria said that she did not communicate with her aunt.[85]

82 Maria conceded that following the death of Stavroula, the deceased would call Sophia every morning. Although she denied that Sophia would regularly visit the deceased at home. It was put to her that Sophia would say Maria was either absent or in her room when she visited. This was denied by Maria on the basis that she would make coffee for her aunt.[86] The exchange regarding Sophia and her visits to the property provide an example of how Maria's evidence moved from an outright denial to a forced concession once evidence to the contrary was put to her.

83 Counsel also put to Maria that Sophia would give evidence of the deceased having been capable of caring for himself. In response, Maria said that Sophia was 'criminally minded', adding, 'they're all criminally minded. That's a fact'. [87]

84 In giving evidence about her interactions with her cousin, Kerry, Maria described her as 'a bit demented'.[88]

85 Ilias is John's father, Katina's father-in-law. Maria gave evidence that she knew Illias well and that he had visited the property regularly when George was alive.[89] When asked whether Ilias had visited the property to undertake 'handyman work', Maria agreed but said that 'it was under ... false pretences', although her explanation for this comment was expressed as an unfounded grievance, rather than a substantive allegation. She denied feeling 'ill will' towards Illias because he had 'helped [her] with the fence recently'.[90]

86 Rather than responding to questions from counsel, Maria used the opportunity in reply to obfuscate, evade the question, and/or denigrate one or other of her relatives. She refused to acknowledge or accept evidence that went against her perceived interest or painted others in a positive light. Further, as indicated by the evidence outlined above, her responses on the same subject were not consistent and, at core, self-serving.

87 In cross-examination, it was put to Maria that Sophia would give evidence of having heard Maria and the deceased talking about the property, specifically that Maria had said that she wanted the house all to herself, and that the deceased had voiced opposition to this idea. In response, Maria denied having 'spoke[n] about anything like that ... [e]ver'.[91]

88 Despite her above evidence, Maria went on to say that the deceased had 'brought [it] up once' and that it was 'very casual'. She said, 'we were standing and he said, "[o]h, you know, you'll be in the house and this and that"'.[92] Maria denied making this up, although she conceded that she had not mentioned it in earlier evidence, saying:

MS RIMBAS: Well, we'll put it in now. What's the difference? You know, I mean, that goes in my favour. I'm not doing this for money reasons. I know - I have known these two for years and they've always been greedy. But if it's going to come to money reasons, dad said I can have the house. Where's - where did dad think I was going to go. Dad was proud of that house.

...

COUNSEL: How many times did he say that [that she could have the house], do you say?

MS RIMBAS: Oh well, during - during the times of (indistinct words) passed away, possibly about round the house, one known factors that I can't recall, perhaps three times, just casually. Minimum. [93]

89 When asked to confirm that she hadn't mentioned this earlier in the proceeding, Maria replied, '[y]eah. Wasn't I stupid then'.[94]

90 Given the nature of this proceeding, and the fact that the property is the primary asset in the deceased's estate, Maria's sudden revelation that her father had wanted the property to go to her is implausible. She has no evidence to support this assertion and it is contradicted by Sophia's later evidence. It is completely self-serving and, in the context of her other evidence, cannot be believed.

91 Maria gave evidence that the family cemetery plots were controlled by both herself and Katina. Counsel pressed this point, stating that the plots were under Katina's name. Maria disagreed, stating that this had been 'corrected and modified', that she had the documents at home, and that she would bring them to Court the following day.[95]

92 In her closing submissions, Maria produced copies of a 2013 right of interment document (a bundle comprising one certificate for each of the three plots) and pointed to where it said that the appropriate fee had been paid on behalf of herself and Katina.[96] Maria's submission in relation to this document was that it clearly showed the cemetery plot as being under the names of both herself and Katina.

93 In her evidence in chief, Katina confirmed that she married John in 1988 and has two children and three grandchildren. She said her son, Ilias, is 'very sick at the moment' due to a recent cancer diagnosis, and is unable to work. He is married with a son. Katina's daughter, Dimitria, is married with two daughters.[97]

94 Whilst living in Greece, Katina said she had regular contact with her parents, giving evidence that she had a 'great relationship' with them, that they loved their grandchildren and sent cards, gifts, or money for them, as well as packages of clothing. She said in or about 1996, Stavroula visited her and their extended family in Greece.[98]

95 In 2012, Katina returned to Australia by herself and lived with her parents for about three to four months, after which time she moved in with John's parents. Katina gave evidence that her parents were 'really welcoming' and 'really excited' for her return.[99]

96 In the following few years post her return to Australia, Katina said she was in contact with her parents 'every day', both in person and via telephone and, at that stage, was working two jobs. She also had contact with Maria during this period.[100]

97 Katina said that when Stavroula became unwell, the deceased cared for her.[101] And that despite Stavroula being 'half-blind' and having diabetes, she would sit in the kitchen and prepare meals for the family.[102]

98 From her observations, Katina said Maria's involvement with the care of her mother was 'limited'.[103]

99 Following Stavroula's death, Katina described her relationship with the deceased as follows:

My dad would always come over himself. Um, he loved coming over. I'd have the kids over, he'd pass by, have his coffee, sit down, have something to eat, play around with the kids, he enjoyed their company. It was his only grandkid and his only great grandchildren and he was very proud of them and spoke highly of the family that he felt proud of. [104]

100 Katina gave evidence that the deceased visited weekly; that he was still driving; and that he was able to look after himself. Although she would visit him at his house, it was more common for him to visit her. When she visited him, Katina said that he was able to look after 'his own needs', and that this extended 'until the day he died'. She disputed that Maria cared for him.[105]

101 During COVID, Katina said the deceased's health declined sharply, and he was placed into Normandy House. According to Katina, this occurred after she received an alarming telephone call from him. Unable to leave work, she called social services, and they attended the property with an ambulance. Katina was advised that Maria remained in her bedroom during this situation. The deceased stayed at Normandy House for approximately six weeks.[106] After the deceased returned home, Katina said she had daily contact with him, and organised his doctors. She also organised for carers to attend the property, but said that Maria was abusive to the carers.[107]

102 Katina gave evidence that in April 2022 someone from Normandy House had suggested she obtain a guardianship order in relation to the deceased. This resulted in the VCAT order appointing Katina and Maria as joint supportive guardians as referred to above. Katina said that while the deceased consented to the joint guardianship, Maria 'wanted a sole guardianship', and had sent abusive letters to VCAT to this effect.[108] These letters were not in evidence.

103 In cross-examination, Maria asked Katina if she had ever 'come home' to assist with house duties. In response, Katina queried whether she was 'obliged to help with any house duties', as she was 'working full time and [Maria was] living there'.[109] When asked whether the deceased knew how to cook, Katina described the meals the deceased would prepare for himself.[110] Maria also cross-examined Katina on whether John had ever gone to the house to help the deceased. She said 'yes', when the deceased had 'requested something or needed something, John was there'.[111]

104 There was much disagreement regarding the ownership and control of the family plots at the cemetery. Katina said that the deceased had bought various plots for the family, and that these had been entrusted to her. When she became ill and required surgery, which is discussed below, she 'added' Maria to the family plots. Katina said that Maria had no authority over the plots, but if something were to happen to her, then Maria would be able to access the plots for the family.[112] The document tendered by consent at the application to re-open evidence, is corroborative of Katina's evidence.[113] I accept Katina's evidence.

105 Similarly, there was much disagreement over the deceased's telephone access. Katina gave evidence that she and John connected the property's landline and paid for the deceased's mobile so that he could communicate with family, doctors and 'necessary organisations'.[114] I accept this evidence.

106 Regarding the cash found at the property after the deceased's death, Katina agreed that Maria had taken $800 out of the deceased's wallet because 'she said that she needed' it.[115] On another occasion, Katina said Sophia informed her that the deceased had $130,000 in cash at the property. Sophia's evidence, outlined below, confirms this was her belief. In locating an envelope in the deceased's bedroom and before the envelope was opened, Katina's evidence was that Maria said, '[t]here's only 30 grand in there'.[116] This statement, corroborated by Kerry and outlined below, suggests that Maria had already found the cash. However, I am not satisfied that there is sufficient evidence to establish that Maria took any cash other than the $15,000 each sister received from the cash in the envelope.

107 Katina gave evidence that she has never owned property in Australia, and is currently renting with John, paying $1,700 per month. She said they will have to vacate the rental property soon as it is being sold.[117]

108 In 2015, Katina was diagnosed with multiple incidental intracranial aneurysms, which require ongoing management and occasional surgery. She gave evidence as to how this condition manifests, saying that she experiences 'silent migraines' which cause temporary blindness in one eye. She said that this is 'an ongoing condition that doesn't go away'. A letter from her treating neurologist was tendered.[118]

109 Katina works as a personal banker, but said that she has taken leave at reduced pay to support her son as he undergoes chemotherapy, and to assist with the care of her grandson.[119] When asked if her medical condition affected her work, Katina said that she finds it 'very stressful' but has 'to work or [she] can't survive without work and [she] can't assist [her] family without working.'[120] She said that she had no other source of income. A copy of her income statement for the 2023-24 financial year was tendered, which showed her gross income with entitlements as $73,525.67.[121]

110 Katina gave evidence of having purchased properties in Greece with John whilst living there. She said that although they still own the properties, they were unable to maintain the payments, and their debt was purchased from the bank by a fund. She estimated they owe approximately 60,000 euros, which she calculated as approximately $120,000 in Australian dollars. Katina said that the value of the properties is less than the amount owed on them. She said they are close to foreclosure.[122]

111 In respect of her other assets, Katina said she had approximately $71,652.34 in superannuation[123] and $7,025.61 in savings, with these savings shared with John.[124] She gave evidence that John was also working, and earned roughly $50,000 per year. She said their only other assets are two cars: a 2007 car valued between $2,000 to $3,000; and a 2012 car valued at about $3,500.[125] She also gave evidence that John had a HECS debt of roughly $13,000.[126]

112 I find Katina to be a truthful witness and accept her evidence. Where there is inconsistency between her evidence and that of Maria, I prefer Katina's evidence. Other witnesses corroborated some of Katina's evidence. On the other hand, some of Maria's evidence was contradicted by the other witnesses. I found the other witnesses to be truthful. I accept their evidence and now turn to it.

113 As niece of the deceased and cousin of Maria and Katina, Kerry gave evidence concerning a family gathering in about October 2023.[127] She said the deceased came to the family gathering with John, and that Maria did not attend. When asked if she had seen Maria at other family gatherings, Kerry responded, '[n]ot in the later years when she was an adult,' indicating that she had not seen her at such gatherings for '15, 20 years'.[128]

114 Kerry gave evidence that she had visited the deceased, including when Stavroula was still alive. She said that '[t]hey were capable of looking after themselves' and that, when her aunt became ill, the deceased was 'her main caregiver' and 'would tend to her needs'. She said that he was still driving, but lost his license at some point after her aunt died.[129]

115 Regarding the occasion on which an envelope of money was discovered in the deceased's bedroom, Kerry said that Katina, John and Maria entered the bedroom, whilst she stood in the doorway. She said at one point Maria tried to stop the search. Once the envelope was found, Kerry heard Maria say '[b]ut there's only $30,000 in there.'[130]

116 Ilias gave evidence that he had known the deceased for about 40 years and saw him regularly during that period, stating '[e]very second week I was visiting him.'[131] When asked whether the deceased and Stavroula were able to look after themselves, Ilias said, '[y]eah, always', in relation to the deceased; and then said that the deceased looked after Stavroula when she became ill.[132]

117 In cross-examination, Ilias said that Maria had 'never cooked' for him; and that her mother did the cooking and looked after the house. He said that Maria had made him coffee 'a few times'.[133]

118 Sophie gave evidence of having regularly visited the deceased, stating that she had visited '[t]wice a week'. She said this changed when she became ill, with the deceased visiting her house every morning. [134]

119 When Stavroula became ill, Sophia said the deceased became her carer. She said that he took her to the doctor, did the cooking and shopping, and would 'take her everywhere'; '[t]hey were always together'.[135] When asked if Maria was at the house when she visited, Sophie said, '[s]ometimes she was, sometimes she wasn't'. If she was at the house, Sophia's evidence was that 'she'd go to her bedroom and she'd stay in her bedroom'.[136]

120 Sophia confirmed that although the deceased had lost his licence sometime after Stavroula died, this did not affect her relations with him. She said her son purchased the deceased a mobile so that she could talk to him on the phone, which she did every morning.[137]

121 Sophia said the deceased 'always used to lock his door' and, when she queried it, he said that he had 'some money saved' and didn't 'want anybody to come in and take it.'[138] Further, she said the deceased had told her that he had $130,000 in the cupboard, in case he ever needed it.[139]

122 Sophia said the deceased had a will and wanted to change it, but couldn't travel due to COVID restrictions and then became unwell. [140] This is obviously contrary to Katina's evidence for the purposes of the grant of letters of administration. I accept that this is what Sophia believed based upon her conversations with the deceased. However, it does not prove the deceased had a will. There is no evidence of any will.

123 When asked if the deceased had said anything regarding what he wanted to happen to his property after he died, Sophia said: '[h]e said after he died, "I've got two daughters left. I want them to have half each."' When asked if Maria had ever said anything about the property, Sophia's evidence was that after Stavroula died, Maria said, '[t]his house is mine.' Sophia said that she had turned around and said, '[s]orry, Maria, that's not yours'; and that the deceased had said, '[s]hut up, Maria. This belongs to you and Katina.'[141]

124 Sophia gave evidence that the deceased 'loved' and 'adored' Katina and that Katina would keep her updated on the deceased's health towards the end of his life. Sophia expressed similar sentiments when asked about the relationship between Katina and Stavroula.[142]

125 The evidence from witnesses, excluding Maria, is internally consistent regarding the extent to which Maria exercised caring responsibilities in respect of her parents, and participated in household activities (e.g., cooking, cleaning). The evidence from witnesses, excluding Maria, is also internally consistent regarding the relationship between Katina and her parents.

126 Maria appeared to either resent or dismiss the notion that she should provide evidence to corroborate her account. This is particularly notable in light of the evidence from Katina and other witnesses that was inconsistent with the position advanced by Maria.

127 Maria's animosity towards Katina, John, Kerry and Sophia was tangible. Her animosity towards Katina and particularly John, appears to be her primary motivation for bringing this application. The arguments presented by Maria as to why she was entitled to the whole of the estate were mired in this animosity, rather than the statutory requirements relevant to a Part IV application. Even taking the lack of legal representation at trial into account, Maria showed a marked disregard for the requirements of disclosure and obfuscated attempts to gain a clear understanding of her true financial position. Rather than providing evidence to support her argument, Maria instead sought to rely upon unfounded allegations of abuse regarding Katina and John and denigrating comments directed at her aunt Sophia and cousin Kerry, as a basis for making her case.

128 For the reasons articulated above, the evidence of other witnesses on matters relevant to determination of this proceeding will be preferred over Maria's evidence. Her evidence was consistently self-serving and will only be accepted if it has been corroborated by other evidence.

129 Part IA of the Act relates to intestacy, and provides that where a deceased person leaves no partners, the residuary estate is distributed in accordance with the hierarchy set out in Division 6 of the Act. The relevant hierarchy commences with any children of the deceased. Section 70ZG provides for the residuary estate to be distributed in equal shares to surviving children, in the absence of children who predeceased the intestate and had no children of their own. Under the intestacy provisions, Maria and Katina are the only beneficiaries to the deceased's estate. This is uncontroversial.

130 An 'eligible person' may make an application for a family provision order under s 90A of the Act. It is not in dispute that Maria is an eligible person for the purposes of this section.

(1) Despite anything to the contrary in this Act, on an application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.

(2) The Court must not make a family provision order under subsection (1) unless satisfied -

(a) that the person is an eligible person; and

...

(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 -

...

(ii) the operation of Part IA; or

...

(4) In determining the amount of provision to be made by a family provision order, if any, the Court must take into account -

(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and

(b) the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and

(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; and

(5) The amount of provision made by a family provision order -

(a) must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support;

91A Factors to be considered in making family provision order

(1) In making a family provision order, the Court must have regard to -

...

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

(2) In making a family provision order, the Court may have regard to the following criteria -

(a) any family or other relationship between the deceased and the eligible person, including -

(i) the nature of the relationship; and

(ii) if relevant, the length of the relationship;

(b) any obligations or responsibilities of the deceased to -

(i) the eligible person; and

(ii) any other eligible person; and

(iii) the beneficiaries of the estate;

(c) the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

(d) the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of -

(i) the eligible person; and

(ii) any other eligible person; and

(iii) any beneficiary of the estate;

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

(f) the age of the eligible person;

(g) any contribution (not for adequate consideration) of the eligible person to -

(i) building up the estate; or

(ii) the welfare of the deceased or the deceased's family;

(h) any benefits previously given by the deceased to any eligible person or to any beneficiary;

(i) whether the eligible person was being maintained by the deceased before that deceased's death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

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

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

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

(m) any other matter the Court considers relevant

132 Pursuant to s 91(2)(c) and (d), the Court must not make a family provision order unless satisfied that, at the time of their death, the deceased had a 'moral duty' to provide for the eligible person's proper maintenance and support, and that the distribution of the deceased's estate by operation of the intestacy provisions fails to make adequate provision for such proper maintenance and support. It is necessary for these criteria to be satisfied to enliven the discretionary jurisdiction of the Court to make a family provision order.[143]

133 I gratefully adopt the principles as confirmed by the Court of Appeal in Gash v Ruzicka ('Gash'):[144]

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. ...

The parties accepted that the trial judge correctly set out the applicable principles which relevantly included:

In determining whether the deceased has fulfilled his or her moral duty, and the extent of any provision to be ordered, the Court must have regard to the relative concepts of 'adequate' and 'proper'. Adequacy is assessed by reference to the Court's inherent knowledge and inquiry into current social conditions and standards. In this context, it is necessary that an applicant demonstrate need in order to be successful in his or her claim; mere proof of a moral duty is not in itself adequate. However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is 'not restricted to the requirements of basic necessity or sustenance'. ...

The general principles to be borne in mind when dealing with claims by adult children are succinctly set out by Hallen J in Walsh v Walsh:

(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 ...

(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. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. 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.

Overall, the assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations.[145]

134 In respect of intestate estates, Smith J in Re Wren[146] stated:

The justification for the limitation [on interference] would appear to be as strong in the case of intestacy as in the case where there is a will; for the deceased may have known how his estate would devolve upon intestacy and chosen to die intestate; and even if he did not, nevertheless the mode of devolution upon intestacy is that which is regarded by the legislature as being, in the generality of cases, the fairest and most reasonable.[147]

135 In her opening submissions, Maria indicated that she was seeking the entirety of the property and the deceased's cash, stating 'I've got nothing because I've been abused by them my entire life and so has my mother. So I want them to actually receive nothing'.[148] As discussed above, this was the prevailing theme of Maria's case.

136 Similarly in her closing submissions, much of Maria's time was occupied with attempts to introduce more evidence; uttering statements that denigrated Katina, John, and the other witnesses; repeating unsupported allegations made earlier in the trial; and generally referring to the witnesses as 'liars'. By way of example, Maria stated that she'd never known Sophia to 'be a law-abiding citizen' and referred to Kerry as 'totally criminally insane' and 'totally incapacitated in her mind'. She referred to Katina and John as having an olive grove that they did not disclose, and an insurance company overseas that folded, stating 'they're all criminals, in my eyes'.

137 Maria submitted that she has no source of income; she has relied on charities and the local neighbourhood in times of desperation.

138 Comparatively, Maria submitted that Katina is employed full-time and earns a 'good' income. Further, that Katina had failed to explain what happened to her CBA shares. Maria later conceded that she could not find any reference to this in the transcript. I understand this to be a concession that Katina was never asked about her CBA shares. Maria went on to give further evidence in the form of submissions, suggesting that John engaged in illegal activity and that his finances needed to be scrutinised.

139 Maria said that she felt 'no pity' for Katina in relation to her health issues, and then stated, 'there's no way I can be employed'. She referred to 'physical damage in [her] head' that prevented her from looking for work and severe pain. This was not raised in evidence, but Maria emphasised it at some length in her closing submissions.

140 Regarding the inconsistencies in her evidence as to the value of her shares, Maria submitted that 'shares fluctuate on a daily basis', and that she could not keep 'mental track of them' without 'doing the figures at the time'.

141 Regarding the $30,000 in cash found in the deceased's bedroom, Maria submitted that the money was 'there to ... let me buy a bit of ... milk for myself, and have a bit of bread, and to cover funeral costs, etc, etc'. She submitted that the deceased knew she had 'no other cash'. Further, that there was no time for her to visit a stockbroker to withdraw funds.

142 Maria submitted that it was the deceased's moral duty to provide her with the cash and the reason the cash was stored there. She said it was not the deceased's intention for the money to go to Katina and John, and that they earn 'plenty of money'.

143 Further, Maria submitted that the property was her parents 'pride and joy' and they wanted her to stay in the property. She said her family considered Katina as a separate family as she was married with her own children.

Contribution to caring for the deceased and Stavroula

144 Maria submitted that despite being in her own physical pain, she would take Stavroula for walks. In contrast, Maria submitted that Katina did not contribute to caring for the deceased or Stavroula. Further, that John would demand money.

145 Maria submitted that she cooked for the deceased and Stavroula every night, stating that the deceased could not cook. She further submitted that the deceased 'did nothing' in the property, yet she spent her Centrelink payments buying him gifts, such as watches and jackets.

Criticisms of Maria's evidence and motivations

146 Katina submitted that it is apparent Maria is seeking the title to the property, and is motivated not by a monetary amount to provide for her adequate support, but by her feelings of animosity towards Katina and John.

147 Katina referred to various examples from Maria's evidence in which she deposed she had not commenced this proceeding 'for money reasons', was 'interested in winning the case' and would be the 'unhappiest person on the planet' to receive a distribution of $750,000 because '[i]t's the principle of the matter'.

148 Katina submitted that Maria had expressed ill will and strong opinions about members of the family, including Katina (admitting to some level of ill will and referring to her as 'stupid'); Kerry (referring to her as 'a bit demented'); Sophia (referring to her as 'criminally minded'); John (alleging he attempted to poison the deceased, and describing him as a 'savage beast'); and Ilias (accusing him of doing work under false pretences).

149 In reference to Maria's share portfolio, Katina submitted Maria's evidence was inconsistent: first, she referred to the figure of $100,000 in her affidavit; then, she referred variously to $495,000, $500,000, and 'a bit more than $500,000' in her oral evidence; and finally, she produced a document (referring to the handwritten statement of assets and liabilities) recording the value of the shares as $600,000.

150 Katina submitted that further inconsistent evidence was given in respect of Maria's relationship with Mr Tobin. She suggested that Mr Tobin had played a 'significant role behind the scenes' of the proceeding, yet was not called as a witness.

151 Katina referred to the various occasions in which the Court had invited Maria to explain her need to be given the entire estate. She submitted that Maria had provided non-responsive answers. Katina also submitted that there was 'no suggestion in [Maria's] evidence that she would live differently if she were provided with cash or a sum of money [as] the evidence is that she already has a liquid asset which could be used for that purpose', but she has chosen not to do so, because she does not need to.

152 As a whole, Katina submitted that Maria had failed to provide documentary or witness evidence corroborating her own evidence. Further, that she had failed to provide any evidence of having sought work or of being unable to work; nor had she attempted to obtain social security benefits; nor had she provided consistent evidence of her substantial shareholdings; nor had she presented any evidence regarding her future needs. Given the absence of evidence, Katina submitted that the Court should not make assumptions in favour Maria, on matters about which she did not give evidence.

Application of the evidence to the relevant legislative requirements

Section 91(2): Whether provision should be made

153 Katina accepted Maria is an eligible person, and that the deceased had a moral duty towards his children. Katina's primary submission was that the distribution of the estate by operation of the intestacy provisions made adequate provision for the proper maintenance and support of Maria for the purposes of s 91(2)(d). In support of this submission, Katina referred to the two possible valuations of the estate - based on her property valuation of $1.4 million, and Maria's more recent property valuation of $1.9 million - which provided for an estate value of $1.6 million on Katina's calculations, or a value of $2.1 million on the calculations prepared for Maria. Katina submitted that either outcome clearly provided 'more than provision' for Maria, given her 'frugal lifestyle' and the indication that she was not unhappy with that lifestyle, based on her choice not to use her shares but rather to build her portfolio through reinvestment of the dividends.

Section 91(4)-(5): If provision is made, then the amount of such provision

154 Should the Court not accept the above submission, Katina turned to s 91(4).

155 Referring to sub-s (a), regarding the degree of moral duty owed by the deceased to Maria, it was submitted there was 'no particular or extraordinary moral duty' owed. Katina referred to the deceased having cared for Stavroula, as attested by both his receipt of a carer's pension, and the corroborative evidence of the witnesses called on behalf Katina. In contrast, Maria's evidence of caring for her parents was 'very vague' and 'generalised'. Further, the living arrangements were entirely for her benefit, as she had accommodation without having to provide anything in return.

156 Referring to sub-s (b), regarding the degree to which distribution of the estate would fail to make adequate provision for Maria, Katina submitted that Maria would receive between $800,000 or potentially over $1 million from an equal distribution of the estate. When combined with her share portfolio of $600,000, there was no evidence to indicate why a distribution of the estate would fail to make adequate provision for her.

157 Referring to sub-s (c), Katina referred to the evidence of Maria's shares, and to the absence of material regarding any inability to work, secure benefits, or derive income in addition to her share dividends, to support her submission that Maria was capable of doing so.

158 Referring to s 91(5), Katina submitted there was a lack of evidence on which the Court could make the assessment required under this section. Further, there was a 'complete vacuum' regarding what was needed, which could be explained by Maria's sole objective of obtaining ownership of the property, rather than fulfilling a financial need.

Section 91A: If provision is made, then the relevant mandatory considerations

159 Katina addressed s 91A(1)(c), which relates to any other evidence of the deceased's intentions concerning provision for Maria, and pointed to the evidence of Sophia. In contrast, Maria's evidence, at its highest, concerned casual references that she said were made by the deceased. Katina submitted that it was vague and unsupported, and urged the Court to prefer the evidence of Sophia who, she said, had no reason to make this up.

Section 91A: If provision is made, then the relevant discretionary considerations

160 Katina then shifted to the application of the discretionary considerations in s 91A(2) to the evidence.

161 Starting with sub-s (a), which concerns the relationship between the deceased and the eligible person. Katina referred to the lifelong relationship between a father and a daughter, but said that there was nothing exceptional about it here.

162 Referring to sub-s (b), which covers any obligations or responsibilities of the deceased to the eligible person or other beneficiaries of the estate, this was described this as a 'neutral factor'.

163 Regarding sub‑s (c), and the size and nature of the estate, the value of the estate was described as being sufficient.

164 Referring to sub-s (d), which concerns the future financial resources (including earning capacity) and needs of the eligible person and any beneficiary of the estate, at the time of the hearing. Katina submitted that, on the evidence before the Court, Maria was clearly in a better financial position than her. She referred to her unchallenged evidence regarding her employment, her limited savings, the modest amount of her superannuation, and her debts owed on her properties in Greece.

165 Referring to sub-s (e), which relates to the disabilities of eligible persons or any beneficiaries, Katina submitted that there was no evidence of disability in respect of Maria. Katina did, however, refer to her own evidence of the intracranial aneurysms, the ongoing nature of the condition, and that it has affected her greatly; for example, that she would rather not work because of her condition, but that she has to work.

166 Referring to sub-s (f), it was noted that Maria was 58.[149] Moving to sub-s (g), which concerns contributions of the eligible person towards building up the estate or to the welfare of the deceased or their family, Katina submitted that there was no evidence of the former, and any evidence from Maria regarding the latter should be treated with caution for the reasons articulated earlier, and should be weighed in light of evidence adduced by witnesses called by Katina.

167 Referring to sub-s (h), and any benefits previously given to eligible persons or beneficiaries by the deceased, Katina submitted that the benefit of having accommodation at the family home, and the provision of services provided to that home constituted a prior benefit received by Maria. In contrast, she said that there was no evidence of any prior benefits she received.

168 Katina dismissed the applicability of sub-ss (i) and (j) on the basis that there was no evidence of either, and moved on to sub-s (k), which goes to the character and conduct of the eligible person or any other person. Katina submitted that the Court was entitled to take into account the serious and baseless allegations made against her, John, and other family members by Maria, as a reflection of her character.

169 Referring to sub-s (l), which refers to the effect that an order would have on the amounts received from the estate by other beneficiaries, Katina submitted that Maria's claim for the whole of the property, if so ordered, would have an 'obvious adverse effect' on her. If further provision was provided beyond half of the estate, this would 'eat into the amount' received by Katina, as the only other beneficiary.

Plaintiff v Defendant

At a glance

Court

Decision date

Before

Source

Judgment (253 paragraphs)

Parties

Legislation Cited (1)