Plaintiff v Defendant

1 In this proceeding the plaintiff, Jacqueline Cotter, seeks an order pursuant to Part IV of the Administration and Probate Act 1958 (the Act) that provision be made for her proper maintenance and support from the estate of her late father, Ian Sackville Cotter, who died on 1 October 2019.[1]

2 Over his lifetime, Ian accumulated substantial wealth, initially by purchasing and operating hotels and pubs, and later through investments in commercial property. When in August 2017 he separated from his wife of 36 years, Maria Cotter, Ian agreed for Maria to take control of about 81% of that wealth, being assets then worth about $43,000,000.

3 When Ian died some two years later, he left an estate then valued at approximately $5,012,000[2] and a Will dated 16 July 2018 (the Will) by which he left the whole of his residuary estate to Gi Mi Kim (Ms Kim), with whom he had been in an intimate relationship from about 2009 until his death. Ms Kim also received other valuable gifts from Ian during his lifetime, as well as Ian's superannuation death benefit valued at $5,100,000 and $5,500,000.[3]

4 By his Will, Ian did not make any provision for the plaintiff, being the only child of his long marriage to Maria.[4] In the Will he declared that he had not made any provision for the plaintiff 'as it is my understanding and belief that my said wife has made adequate provision for her in her Will from the substantial assets that my wife has acquired from me during my lifetime'.[5] The two wills made by Maria between 1991 and August 2019 provided for the whole of her estate to go to the plaintiff if Ian predeceased Maria. Prior to Ian's death, on 27 August 2019, Maria made a will by which she left her residuary estate on a testamentary trust of which the plaintiff was the primary beneficiary.

5 The first and central issue in this proceeding is whether, at the time of his death, Ian had a moral duty to provide for the plaintiff's proper maintenance and support, being one of the requirements of which the Court must be satisfied before making a family provision order.[6] The executor of Ian's estate, Paul Tomassini, who is the defendant in the proceeding, contends that, in the unique circumstances of this case, Ian did not owe any moral obligation to the plaintiff at the time of his death, for reasons including that their relationship had become dysfunctional, with the plaintiff aligning herself with Maria who Ian knew and understood had abundant resources to support the plaintiff, and who had in fact demonstrated a willingness to support her since 2017.

6 If the Court is satisfied that Ian had a moral duty to provide for the plaintiff's proper maintenance and support at the time of his death, it will then be necessary to determine whether any order for provision from Ian's estate should be made for the plaintiff's benefit and, if so, the quantum of that provision. In that regard, it is to be noted that no competing claim for provision from the estate is asserted by any person, including the sole beneficiary of Ian's estate, Ms Kim.

7 The net value of the estate at trial was $6,106,066.77. Although the plaintiff had initially sought that the whole of the estate should go to her, at trial she submitted that provision for her in the amount of $3,300,00 should be made from the estate. The defendant submitted that if, contrary to his primary position and Ian did owe a moral duty to the plaintiff, any provision should not exceed $300,000.

8 The plaintiff and Maria both gave oral evidence and were cross examined. Evidence was also given by the defendant and Ms Kim.[7] The defendant's evidence was uncontested and no issue of credibility arose in relation to Ms Kim's evidence. The Court also received uncontested expert evidence in the form of a report dated 18 December 2024 prepared by a certified practicing valuer, Mr Antonio Falvo (the Falvo Report).

9 I am satisfied that both the plaintiff and Maria gave truthful evidence to the Court. I have, however, proceeded with caution in accepting aspects of Maria's evidence. It was apparent that her evidence was at times significantly coloured by deeply felt anger and resentment about some of Ian's actions during their marriage, as well as by a desire to assist the plaintiff in her claim. As a result, her evidence was at times selective, exaggerated and unduly dogmatic.

10 Ian was born on 10 May 1935; he was 84 years of age when he died on 1 October 2019.

11 Ian was the only child of hoteliers. He pursued the same calling, purchasing various hotels in the inner suburbs of Melbourne with the assistance of what was referred to in the evidence as a 'significant inheritance' from his mother. In the 1970s and 1980s, he successfully developed and operated various hotels including the New Orleans Tavern in Prahran and the Prince Alfred Hotel in Carlton. Ian sold most of the hotel businesses in the late 1980's and then invested in commercial and residential property.

12 Ian's marriage to Maria in 1981 was his second, his first marriage having ended, without issue, in 1978. Maria was some 18 years younger than Ian; when they married, they were 29 and 46 years of age respectively.[8] Maria was born in Malta and migrated to Australia when she was 20 years old. She found employment in a bank and worked as a cleaner in the evenings.

13 The plaintiff was born in 1983. In the same year, Ian and Maria purchased a property at 725 Toorak Road, Kooyong (the Kooyong house) where they built what became the family home where the plaintiff grew up. Located in an affluent area, it is a substantial and comfortable home comprised of four bedrooms and a swimming pool.

14 Family life for the Cotters was, however, far from conventional. It was common ground that, in the course of his marriage to Maria, Ian had many extramarital affairs. Some of these liaisons occurred at the Kooyong house and with women known to Maria and the plaintiff. The defendant, who met Ian for a weekly coffee over the course of their close friendship spanning 30 years, gave evidence about the range of circumstances through which Ian met women for sexual liaisons, including the gardener, the housekeeper, the plaintiff 's nanny and other women who worked at or visited the Kooyong house. This was generally consistent with the plaintiff's evidence.

15 Before the plaintiff 's birth, Ian had a sexual encounter with a woman so as to conceive a child to be raised by that woman and her same sex partner. This resulted in the birth of Karly Doyle on 13 August 1982. Significantly, Karly Doyle's paternity was not revealed to Maria and the plaintiff until August 2017. As will be explained, this revelation was extremely distressing for Maria and the plaintiff, and very destructive of what remained of their respective relationships with Ian.

16 Although Ian's extramarital affairs were not openly acknowledged in the Cotter family, it is apparent that Maria had some general awareness of his philandering. This did not, however, directly precipitate the demise of Ian and Maria's marriage. The marriage continued with Ian and Maria living at the Kooyong property until their separation in 2017,[9] while Ian continued his extramarital liaisons, including a relationship with Ms Kim from about 2008. The continuance of the marriage also was not affected by the fact that, from about 2005, Maria commenced an extramarital relationship with Toma Stanisic (Toma), a relationship which has since continued and which involved the joint purchase by them in 2006 of a property in Noble Park (the Noble Park property). A further illustration of the unusual familial relations within the Cotter family is the fact that, by a codicil made in February 2013, Ian appointed Toma as the substitute executor of his then will. Late in Ian's life, Toma, an anaesthetist, also assisted Maria in caring for and supporting Ian when he was unwell.

17 It is clear from the evidence that a significant factor in the durability and continuity of Ian and Maria's marriage was Maria's commitment to the family unit comprising herself, Ian and the plaintiff. As the plaintiff put it in her evidence, Maria is 'very Catholic, so family is a big thing for her'. One way in which this was embodied or made manifest was in the 'family business' comprised of the array of property holdings and commercial interests amassed by Maria and Ian through their marriage and which are referred to later in these reasons.

18 Although Ian had been physically healthy and active for much of his life, his health deteriorated after he had a fall at the Kooyong house in January 2016. He was thereafter largely confined to the Kooyong house and relied heavily on the assistance of Maria who cared for him. In October 2016, Ian was admitted for respite care at Arcare aged care. His health continued to deteriorate and he moved into Arcare on a permanent basis in December 2016. Maria continued to be involved in supporting and caring for Ian on a daily basis until her discovery of Ian's paternity of Karly Doyle in August 2017. Before considering the arrangements in respect of Maria and the divorce in 2019, it is necessary to refer to certain trusts which were controlled by Ian and Maria.

The Ian Cotter Family Trust and the Crepes Au Grattan Unit Trust

19 The Ian Cotter Family Trust is a discretionary trust which was settled on 2 April 1986. Ian was the original appointor of the trust. Drealis Pty Ltd (Drealis) was and is the trustee. From 1986 until 14 August 2017, Ian and Maria were directors and shareholders of Drealis, holding one share each. Under the terms of the trust deed of the trust, Ian was (and remains) the specified beneficiary.

20 The trust deed records that it was settled because the settlor 'is desirous of making provision for the Beneficiaries herein described'. 'Beneficiaries' are defined in the trust deed, in the case of natural persons, to include children, grandchildren, spouses and widows of the specified beneficiary (Ian); it does not include former spouses or parents of children. As to corporate entities, 'beneficiaries' is defined in terms which is confined to corporations whose shares are 'beneficially owned or held by any beneficiary [of the Ian Cotter Family Trust] or by the trustees of any trust or settlement under which any beneficiary has any interest'.[10]

21 Under the trust deed, the trustee of the Ian Cotter Family Trust is given power to pay, apply or set aside all or any part of the net income of the trust fund for the benefit of any one or more of the beneficiaries then living.[11] In making any such determination, the trustee may apply or set aside any amount to or in favour of one or more beneficiaries in such proportions and in such manner as it sees fit.[12] Before the vesting day, the trustee may also, in its absolute discretion, pay the capital of the trust fund to any beneficiary for their own use and benefit.[13]

22 The Crepes Au Grattan Unit Trust (the Crepes Trust) was settled on the same day that the Ian Cotter Family Trust was settled. Crepes Au Grattan Pty Ltd was and is the trustee of that trust. Ian and Maria were the sole directors and shareholders of Crepes Au Grattan Pty Ltd from 1986 until August 2016. Under the relevant trust deed, appropriations from the assets of the Crepes Trust may only be made to a unit holder. Drealis, being the trustee of the Ian Cotter Family Trust, is the sole unit holder of the Crepes Trust.

23 According to Rodney Cairnduff, who was formerly Maria and Ian's accountant and who is now Maria's accountant, the Ian Cotter Family Trust never traded or generated any form of income in its own right. Mr Cairnduff describes it as a 'dumping trust for the distributions from the Cotter Groups other entities'. As dealt with later in these reasons,[14] the Ian Cotter Family Trust has, at least since 2018, earned substantial profits from income of the Crepes Trust and the JAMMM Investments Trust, a trust later established by Maria.[15]

24 Maria and Ian divorced on 1 July 2019. The circumstances which preceded the divorce are relevant in considering the plaintiff's application for further provision.

25 In December 2015, Maria discovered that Ian had withdrawn $150,000 from a bank account. This was a source of intense conflict between them. When confronted by Maria about it, Ian first denied that any amount had been withdrawn, and then asserted that it was a loan. Maria demanded that Ian produce documents to confirm that it was a loan. He was unable to do so and the $150,000 was never returned. The funds were in fact paid to Ms Kim.

26 It was in the context of this controversy that Ian and Maria came to an agreement that, in order to protect the assets of the family, assets which had principally been in Ian's name would be transferred into Maria's name. Consistent with this, in July to August 2016, Ian:

(a) transferred the title in the Kooyong house to Maria as sole proprietor;

(b) transferred the title in the Temperance Hotel in South Yarra to Maria as sole proprietor;

(c) resigned as a director of Crepes Au Grattan Pty Ltd, the trustee of the Crepes Trust, and transferred his share in the company to Maria (who has since remained its sole director and shareholder); and

(d) resigned as a director of New Orleans Pty Ltd (New Orleans), the registered proprietor of valuable commercial property, and transferred his 9,999 shares to Maria with the consequence that she became, and has remained, the sole director and shareholder of the company.

27 Ian owned a number of valuable prestige and collectible cars. In 2016, he sold a Daytona Ferrari for about $1,600,000 and gave $500,000 of the proceeds of sale to Ms Kim. Maria became aware of this withdrawal of funds and its payment to an unknown bank account in February 2017.

28 Following upon these events, Maria and Ian separated in about July 2017 and, on 15 August 2017, they entered into a Binding Financial Agreement pursuant to s 90C of the Family Law Act 1979 (the BFA).

29 Amongst other things, the BFA narrated that, having undertaken negotiations and taken advice, Ian and Maria had reached agreement on the settlement of financial matters arising out of the breakdown of their marriage. On the basis of information provided by Ian and Maria's accountant, Mr Cairnduff, and valuations provided by Ian, the BFA recorded Ian and Maria's agreement that their property interests and superannuation were valued at approximately $54,236,503.

30 As I have noted, the BFA delivered 81% of the agreed matrimonial asset pool to Maria. As a consequence, Maria took or retained control of more than $40 million worth of assets as follows:[16]

(a) an apartment at 3/48 St Georges Road, Toorak (the St Georges Rd apartment) valued at $3,000,000;

(b) the Kooyong house valued at $3,000,000;

(c) the Temperance Hotel valued at $7,000,000;

(d) New Orleans, being the registered proprietor of a property at 30-32 Compark Circuit, Mulgrave valued at $10,000,000, and a property at 255 Mary Street, Richmond, valued at $5,000,000;

(e) Golden Era Pty Ltd (Golden Era), being the registered proprietor of a property at 4 Lakeside Drive, East Burwood valued at $8,000,000 and cash investments valued at $5,000,000;

(f) assets (with a nil value) held in the Ian Cotter Family Trust of which Drealis was the trustee;

(g) assets held in the Crepes Trust, of which Crepes Au Grattan Pty Ltd was the trustee and of which the Ian Cotter Family Trust was the sole unit holder, valued at $5,600,503; and

(h) Maria's superannuation entitlements in the New Orleans Pty Ltd Superannuation Fund (the New Orleans superannuation fund) in the form of a property at 29 Wattletree Avenue, St Leonards valued at $360,000, and cash and shares.

31 The BFA delivered 19% of the matrimonial asset pool to Ian which comprised the following:

(a) $1,750,000 received by Ian in the 12 months before the BFA was executed;[17]

(b) a Ferrari California and a Mercedes vehicle collectively valued at $600,000;

(c) the interest in Cotter Medical Pty Ltd, with an estimated value of $850,000;[18]

(d) $4,100,000 to be paid by Maria; and

(e) Ian's superannuation entitlements in the New Orleans superannuation fund in the form of a property at 1 Hobson Street, South Yarra valued at approximately $3,400,000, and cash and shares.

32 The severance of Ian and Maria's financial affairs effected by the making of the BFA was mirrored on the emotional plane when, within days of the execution of the BFA, Maria learned that Ian was the father of Karly Doyle. This precipitated a heated confrontation between Ian and Maria and the plaintiff at Arcare after which, on Ian's request, management at Arcare wrote to the plaintiff and Maria and directed them not to visit him.

33 In December 1991, Ian and Maria made mirror wills, leaving their respective estates to each other and, in the event that one predeceased the other, to the plaintiff.

34 On 25 February 2013, Ian and Maria each made codicils to their 1991 wills by which they each removed their then accountant as one of their executors, leaving Ian and Maria as sole executors of each other's estates, and appointing Toma as substitute executor; they did not otherwise amend the terms of their wills.

35 In the years since he made this codicil, Ian made the following wills:

(a) A will made on 23 August 2017, about a week after he and Maria executed the BFA and very soon after Karly's paternity was revealed to Maria and the plaintiff. By this will, Ian departed from the provision in his will made in 1991 by leaving his residuary estate solely to Ms Kim, as distinct from Maria, and appointing the family accountant, Mr Cairnduff, as executor.

(b) A will made on 10 January 2018 by which he again gifted his residuary estate to Ms Kim, but also added the defendant as a co-executor, and in which he set out his reasons for omitting Maria and the plaintiff as beneficiaries.

(c) The Will, being Ian's final will made on 16 July 2018, in which he named the defendant as sole executor and left his entire estate to Ms Kim. Clause 4 of the Will includes the following statement:[19]

I LIKEWISE DECLARE AND CONFIRM that I make no provision in this my Will to my daughter, JACQUELINE COTTER as it is my understanding and belief that my said wife has made adequate provision for her in her Will from the substantial assets that my wife has acquired from me during my lifetime

36 Further to this clause of the Will, the defendant's uncontested evidence was that Ian told him that he intended Ms Kim to be the sole beneficiary of the Will and that:

[The plaintiff] was specifically excluded from the will, that he was very disappointed with her especially as she had stolen from him, disrespected him and taunted him, [the plaintiff] was the financial responsibility of Maria who had taken more than her fair share from the matrimonial property settlement

37 In the years after making the codicil to her 1991 will, Maria made the following wills:

(a) A will made on 27 August 2019 in which she appointed the plaintiff sole executor. By this will, Maria gave her half interest in the Noble Park property to Toma and, after some small bequests, left her residuary estate to the plaintiff on trust.

(b) A will made on 11 July 2022, being her current will as at the trial of this proceeding. As with her will made in 2019, by this will Maria appoints the plaintiff as sole executor and gives her half interest in the Noble Park property to Toma. She also gives Toma her half interest in a property located at 17 Vanessa Drive, Hampton Park,[20] and a gift of $100,000. After some small bequests, she leaves her residuary estate to the plaintiff.

38 On 16 March 2021, Karly filed a claim for provision from Ian's estate under Part IV of the Act. That proceeding was settled on 13 December 2023 on terms including that the estate would pay Karly $300,000.

39 In November 2022, the plaintiff and Karly commenced a proceeding in this Court challenging the validity of Ian's binding death benefit nominations (the BDBN proceeding) which directed that his superannuation death benefit, valued at approximately $5,000,000, be paid to Ms Kim. That proceeding settled on 23 August 2023 on terms including that Ms Kim would pay the plaintiff $194,000 and Karly $106,000.

40 As at 21 February 2025, shortly before the trial of this proceeding, the defendant estimated that the total net value of the estate was $6,106,006.77 comprised as follows:

33,250 fully paid, ordinary National Australia Bank shares as at 21 January 2025

17,581 fully paid, ordinary Westpac Banking Corporation shares as at 21 January 2025

Loan to Bourbon Street Property Pty Ltd (BSP) as at 30 June 2024

Bank of Melbourne Maxi Saver account, BSB 193-870 Account number 472309575 as at 21 January 2025

Bank of Melbourne Complete Freedom account, BSB 193-879 Account number 205171381 as at 21 January 2025

10 fully paid ordinary shares in Bourbon Street Property

41 This represents the financial position of the estate after $917,000 has been paid from the estate in respect of various costs and expenses.[21] It is anticipated that further legal costs (of this proceeding), as well as legal and accounting costs to finalise the administration of the estate and taxation liabilities, will be paid from the estate.

Jacqueline Cotter: background and circumstances

42 As she stated in her evidence, the plaintiff's childhood was far from ordinary. Although she grew up with the love and affection of both her parents in a large and comfortable home in an affluent part of Melbourne and had the benefits of a private school education, her childhood was not one of leisure and idleness. Rather, from when she was a young girl, she was expected to work and to contribute to the 'family business'. From when she was about six years of age, on Friday and Saturday nights she would sleep upstairs at the Prince Alfred Hotel with Maria and help with the chores of running the hotel: emptying ashtrays, picking up glasses, wiping down tables and cleaning up.

43 As she got older, the plaintiff's weekends were busy, not with friends and excursions, but cleaning and maintaining the family's properties with her mother. She does not remember any relaxing family holidays; the only 'holiday' she recalls was a business trip the family took to Byron Bay where Ian was investigating a potential investment. On this and other occasions, she recalls Ian referring to her as his 'secretary' as she fielded calls from property managers and solicitors in relation to business matters.

44 In her evidence, the plaintiff describes her parents as a very successful 'business team'; they were both financially astute, ambitious and 'hands on' in relation to the properties they owned. The expectation that the plaintiff would work, whether in the family business or otherwise, increased as she got older. Before she was in year 11, she was helping Maria clean houses, working in a fruit shop on Saturdays and then in several cafés. When she stopped paid work on Saturdays around the age of 16 to concentrate on her school work, she was expected to take on more responsibility at home by cleaning the Kooyong house on Saturdays while Maria was at work. Then, from when she was 17, she started working as a waitress at a restaurant in the city.

45 The plaintiff and Ian had a close and loving relationship when she was a young girl. However, her evidence was that, as she went through puberty, her understanding of her family's 'dynamics' changed, and her relationship with her father began to develop 'fractures'. She recalled her parents arguing frequently and Ian threatening to leave home on more than one occasion. As a teenager, she became aware of her father's philandering, including with women she had understood to be 'family friends'. These 'constant betrayals' increased the 'cracks' in their relationship.

46 When she turned 18, the plaintiff travelled to Malta to see her grandparents with her then boyfriend in England. When she returned to Melbourne nine months later, she moved out of the Kooyong house into an apartment in Richmond, found a job at a café and enrolled in a Bachelor of Health Sciences. Some months later she quit her café job, began working in a shop selling health therapies and moved to Fitzroy with her boyfriend.

47 In about 2006, the plaintiff commenced a new relationship with Derek Marr (Derek). It would appear that Ian did not then, or subsequently, approve of the relationship. The plaintiff and Derek moved into a house together in Coburg in 2007. Prior to this, on Maria's suggestion, the plaintiff rented an apartment on St Kilda Road which was owned by the family, in which she sublet bedrooms to university students. As part of this arrangement, the plaintiff was required to maintain the common area in the apartment complex. The plaintiff did this for about a year while studying and working.

48 By 2007, the plaintiff had completed her studies[22] and was working full time as a manager in a shop and practising as a homeopath on a part-time basis. She also began working in the 'family business'. Maria taught her bookkeeping which the plaintiff did twice a week for about two years. She recalled that Ian also taught her skills in relation to the family business, telling her that she would take over and 'keep it all in the family'.

49 Following the death of her father, Maria was overseas for about 13 months from about November 2007. In this time, the plaintiff attended the Kooyong house most days to do the bookkeeping for the family business and to attend to any other issues relating to any of the properties, as well as providing Ian with medication for his health conditions. The plaintiff's evidence was that, in this period, she faced financial difficulties and as a result 'wrote some cheques out to myself over a period of around two months'. The cheques were for a total amount of about $15,000. The plaintiff subsequently repaid this amount after Ian discovered what had occurred and the plaintiff admitted to what she had done.

50 The plaintiff and Derek had a child together, Morris Marr, who was born on 18 January 2010. The plaintiff's evidence was that at that time her relationship with her parents was not good.

51 In December 2010, the plaintiff and Derek purchased a house at 112 Main Road, Riddells Creek (Riddells Creek) for $375,000 which became their home. The house was purchased with their owns funds and a loan of $350,000 secured by a mortgage over the property.

52 In 2011 and 2012, the plaintiff continued her work as a manager while also trying to establish a homeopathy practice from home.

53 Between 2013 and about July 2015, while she continued working as a manager in a retail business, the plaintiff resumed working in the 'family business' again. This included bookkeeping, general administration, dealing with accounts receivable and accounts payable and meeting with the accountant. Her evidence was that, during this time, Ian told her that she would take over and that the succession of the family business and assets would fall to her and then to Morris.

54 By September 2015, the plaintiff had decided to move away from the natural therapies industry and commenced a Certificate IV course in accounting/bookkeeping to consolidate her bookkeeping skills.

55 In September 2016, the plaintiff and Derek moved to northern New South Wales. They leased Riddells Creek and rented a property in Mullumbimby. The plaintiff established a raw pet food business while continuing her bookkeeping work, and Derek found employment. Later in August 2017, Maria provided support for the plaintiff in this endeavour by buying her a new car for about $40,000; it was common ground that this was a gift.

56 While she was in New South Wales, the plaintiff kept in contact with her father by text and telephone, including in relation to her business ideas. Her evidence was that he continued to tell her that he would 'keep it all in the family'.

57 In early July 2017, Maria telephoned the plaintiff to tell her that she was going to separate from Ian. With this news, the plaintiff returned to Melbourne to see her parents on 4 July, remaining there until 12 July before returning to New South Wales for work. During her visit, Maria told the plaintiff that she was worried about family assets remaining in the family; that she needed to take action to protect what was left; and that she wanted to sever the financial relationship between herself and Ian.

58 The plaintiff returned again to Melbourne between 14 and 19 August 2017, during which time the BFA was executed.

59 During her visits to Melbourne in July and August 2017, the plaintiff stayed at the Kooyong house from where she visited Ian each day at Arcare. She would bring him to the Kooyong house to drive his Mercedes and attend to his needs by doing those things which Maria customarily did, but was not then doing: organising his medications, getting him to appointments, getting his preferred food and drink and running errands.

60 After Ian and Maria signed the BFA in August 2017, Ian contacted the plaintiff from time to time asking for money and urging her to persuade Maria to give him more money.

61 The plaintiff was extremely hurt and betrayed by Ian after she learnt, in the days after the BFA was executed on 15 August 2017, that he was the father of Karly.[23] She felt that it destroyed the trust between them, she thought his conduct was selfish and callous, and she did not accept his various explanations for it. Soon after she became aware of this, the plaintiff returned to her life in northern New South Wales, and she and Ian thereafter had little contact, including after the plaintiff later returned to Melbourne as referred to below.[24]

62 The limited subsequent communications between Ian and the plaintiff were marred by some particularly caustic and accusatory exchanges. On 14 November 2017, Ian sent the plaintiff the following text message:

You told me I was the worst father in the world plus much more, your mother and you have 80 percent of my money. God knows how many houses you have, I am living in one room and you could not give a fuck. I hate it and I will die here and you have so much and my sixty years work and investment mean nothing to you.

63 The plaintiff's lengthy reply details why she thought Ian had been a 'crap father' and included vituperative comments about Ian and his relationship with Ms Kim. The plaintiff said that she was 'happy to chat' if there was anything else Ian would like to talk about, 'but I don't think [Ian would] like to hear it'.

64 For his birthday in May 2018, the plaintiff sent Ian a birthday card and a loaf of bread. In earlier years, they had joked about sending a loaf of bread to a famous wealthy neighbour because the neighbour was 'struggling'. The plaintiff's evidence was that, after a telephone conversation in which Ian had pleaded for more money, she had sent him a loaf of bread as an ironic gesture; it would appear, however, that the loaf was mouldy by the time Ian received it. Ian was very upset and about two months later, on 21 July 2018, he sent the plaintiff the following text message:

Thanks for the mail, I can feel your hate for me, where is the stale bread? Make sure Morris hates me too!! Had I not been your father you would have nothing at all. You will lose it all, with all the hate you have for me, nothing would grow.

65 The plaintiff sent a withering text message in reply which commenced by accusing Ian of isolating himself from his family 'to be with that money sucking parasite of a ho', and which went on to refer to the 'disgust' she felt towards him as a result of his treatment of Maria over the years.

66 The plaintiff, Derek and Morris returned to Melbourne in July 2018. They moved into the Kooyong house, where the plaintiff and Morris have since continued to live, and Maria moved to the St Georges Rd apartment which had been unoccupied and untenanted for the past 10 years. Until about February 2024, the arrangement was that the plaintiff, Derek and Morris lived at the Kooyong house rent-free on the basis that they paid the rates, outgoings and repairs on the property. From February 2024, the plaintiff started paying rent, at Maria's request, in the amount of $1,733 per month.

67 The defendant submitted that Maria levied this rent in order to assist the plaintiff at the trial of the proceeding. There was a proper basis for this submission. After more than five years living in the Kooyong house rent free, this change occurred about two months before a directions hearing in the proceeding when it was anticipated that the proceeding would be fixed for trial. More significantly, Maria's evidence that she could not afford to continue the rent-free arrangement was difficult to reconcile with the fact that, in the face of the claimed commercial pressures, she caused a commercial property owned by New Orleans at 255 Mary Street, Richmond (Mary Street) to be sold (for $3,000,000 according to the plaintiff), but then used the proceeds of sale to purchase another property to engage in a restoration project, and leaving the remaining funds ($2,000,000 according to the plaintiff) in the bank.

68 It is, however, unsound to solely assess this evidence against an objective notion of commercial good sense. Throughout her life, Maria has been guided by an idiosyncratic mix of values in dealing with family and with business. As she said about the plaintiff, 'I love her, but I am a businessperson ...'. This duality has meant that, over time, varying prominence has been given to sometimes competing values such as frugality, familial love and dedication, hard work and self-reliance, amongst others. With these impressions in mind, I am satisfied that the payment of rent by the plaintiff followed a genuine decision by Maria to impose this requirement. As she explained in her evidence, she made the decision because, having decided to sell Mary Street due to increased expenses, she lost the benefit of earning rental income from it and, as a result, determined that rent needed to be earnt from elsewhere. This meant 'that [the Kooyong house] has to have a return'.

69 Following the family's return to Melbourne, Derek obtained employment in the community services sector. In the 2019 financial year, his gross salary was $58,883.00. In the 2020 financial year it was $85,060.00.

70 After returning to Melbourne, Morris commenced in second grade primary school at Wesley College on St Kilda Road, Melbourne, a school at which he has since remained; he is currently in year 9. Maria contributed 33% of Morris' school fees from his commencement at Wesley College until October 2021. She has subsequently refused to pay these fees.

71 It is also relevant to note that, from about November 2017, Maria provided financial assistance to the plaintiff by providing her and Derek with an interest-free loan of $272,000 to minimise the interest on their borrowings used to purchase Riddells Creek. The plaintiff and Derek used the loan from Maria to pay down the variable home loan on Riddells Creek to a small amount. On 12 July 2018, a formal loan agreement was executed by Maria and the plaintiff in relation to this loan. Amongst other things, it provides for loan repayments of $2,000 per month. In practical terms, it would appear that this obligation was met by the plaintiff and Derek arranging for the rental income of Riddells Creek to be paid to Maria each month.

72 The plaintiff separated from Derek in October 2022.[25] Proceedings have since been commenced between them in the Federal Circuit and Family Court of Australia in relation to property. In that proceeding, Derek seeks 100% ownership of Riddells Creek plus 20% of any further provision the plaintiff may be awarded in this proceeding. The plaintiff seeks to retain 60% of the equity in Riddells Creek.

73 The plaintiff subsequently commenced a new relationship with David Taylor, who moved into the Kooyong house in September 2024. The plaintiff pays Maria rent of $1,733.00 per month and pays for all bills and council rates. Mr Taylor pays for groceries and meals out, but otherwise their finances are separate. Mr Taylor works as a manager and earns an annual income of $165,000. The plaintiff and Mr Taylor do not have any shared bank accounts or assets.

74 Since she returned to Melbourne from New South Wales in July 2018, the plaintiff's employment and work situation has been as follows:

(a) The plaintiff initially worked from home in a self-managed bookkeeping and administration business. Maria was one of her clients and paid the plaintiff $500.00 per month for bookkeeping until early 2024.[26]

(b) The plaintiff received 50% of the rental income from leasing Riddells Creek. This income ceased in about December 2023 when Derek moved into the property.

(c) Since early 2022, the plaintiff has worked full time as a Project Manager. In her current employment her salary is approximately $145,000.00 per annum.

75 Since 2018, the plaintiff's annual taxable income has been as follows:

(a) $39,778.00 in 2018-2019;

(b) $34,338.00 in 2019-2020;[27]

(c) $55, 721 in 2020-2021;

(d) $60,088 in 2021-2022;

(e) $122,901 in 2022-2023; and

(f) $143,339 in 2023-2024.

76 In accordance with the BFA, on about 17 August 2017, control of the Ian Cotter Family Trust passed to Maria. It was uncontroversial that, on about that date, Ian transferred his share in the trustee company, Drealis, to Maria, having resigned as director of the company several days earlier. He also resigned as appointor of the trust and Maria was appointed in his place. Control of the Crepes Trust had already passed to Maria in July to August 2016.[28] Maria has since remained in control of both trusts.

77 Significantly however, upon her divorce from Ian on 1 July 2019, Maria ceased to be a beneficiary of the Ian Cotter Family Trust because the definition of 'beneficiary' in the trust deed does not extend to former spouses of the specified beneficiary (Ian) or parents of his children.[29] The plaintiff and Morris continued to be beneficiaries. Likewise, New Orleans, of which Maria is the sole shareholder, also ceased to be a beneficiary of the trust.

78 Two other trusts have been established since Maria and Ian separated and which are currently controlled by Maria:

(a) The JAMMM Investments Trust settled on 24 October 2018 (the JAMMM Trust). Maria was the appointor and 'corpus beneficiary'; beneficiaries are defined in the trust deed to include children and grandchildren of the corpus beneficiary. The trustee of the trust was and is JAMMM Investments Pty Ltd, of which Maria was and remains the sole director and shareholder.

(b) The Cotter Childcare Trust settled on 28 June 2022. Maria is the appointor and corpus beneficiary of the trust and beneficiaries are defined to include children and grandchildren of the corpus beneficiary. The trustee of the trust is Cotter Childcare Investments Pty Ltd of which Maria was and is the sole director and shareholder.

79 In the years since 2018, the Ian Cotter Family Trust has received a steady stream of income, on average about $380,143 per annum, principally from the Crepes Trust and the JAMMM Trust. All of this income, a total of $2,661,004 over seven years, has been distributed to Maria, or to companies controlled by her. The payments were as follows:

80 Although she is a beneficiary, the plaintiff has never received any distributions from the Ian Cotter Family Trust.

81 In June 2023, the defendant's solicitors wrote to the plaintiff's solicitors asking whether she had informed the trustees of the Ian Cotter Family Trust, the Crepes Trust, the JAMMM Trust and the Cotter Childcare Trust[30] of her circumstances and made a request for any distributions. The letter relevantly stated:

As an object of a power of appointment in relation to the Trusts, it is open for your client to make requests to the trustee for distributions of income and/or capital. A trustee, acting properly and in the interests of the beneficiaries of a trust, must give 'real and genuine consideration' to such requests when exercising its discretion to make distributions to beneficiaries: see Owies & Owies v JJE Nominees Pty Ltd [2022] VSCA 143 (Kyrou, Niall & Walker JJA) (Re Owies).

Re Owies otherwise stands for the proposition that, when exercising its discretion to make trust distributions, a trustee must make enquiries and inform themselves about the circumstances, needs and desires of beneficiaries for those distributions ultimately made to be valid and not voidable.

It is clear from the Deceased's will that he believed that he had fully satisfied all moral obligations to your client by entering into the [BFA] which grossly favoured your client's mother.

In our client's view, if your client is in need of financial support, it is incumbent on your client to make a request to the trustees of the Trusts to make distributions of income and/or capital to her. We note that the end of financial year is only weeks away and that now is the time that trustees usually make decisions about distributions of income or capital from the trust.

Our client anticipates that the trustees of the Trusts, acting properly, would favourably answer a request by your client with a distribution of income or capital because your client and Mrs Cotter are likely to be the main beneficiaries of the Trusts and Mrs Cotter is independently wealthy in her own right.

We enclose a copy of the [BFA] dated 14 August 2017 between your client's mother, Maria Cotter and the Deceased (Agreement).

The terms of that Agreement disclose that:

1. the pool of matrimonial assets was valued at $54,236,503 (in 2017);

2. Mrs Cotter received approximately 81% of the pool, being approximately $44 million, via titles to real property and cash and indirectly by obtaining control of trustees of trusts and control of companies; and

3. the Deceased received 19% of the pool, being approximately $9.2 million.

If your client has not informed the trustees of the Trusts of her circumstances, needs and desires, our client is of the view that she should do so now before the end of this financial year.

82 In their reply dated 8 August 2023, the plaintiff's solicitors stated that the plaintiff had never made a request for a distribution and that this was not something she 'would ever do'. They also stated in relation to Owies & Owies v JJE Nominees Pty Ltd[31] that:

[the plaintiff] does not have the urgent immediate specific financial needs or health issues that those beneficiaries did, nor is she a specified beneficiary let alone a default beneficiary. It is our view that it would perfectly open to the Trustees, to refuse her request. Accordingly and with respect, we do not consider Re Owies has any application here.

83 Some months later on 10 December 2023, the plaintiff did in fact make requests for distributions of income from the JAMMM Trust, the Ian Cotter Family Trust and the Cotter Childcare Trust. In relation to each trust, she requested that the trustee exercise their powers to pay or appropriate a portion of the trust's income to her personally.

84 The next day Maria, as the controller of the trusts, rejected these requests in emphatic terms (underlining added):

Dear Jacqueline,

I received a request from you asking for income from the trusts under which you are beneficiary due to you being my daughter.

In my mind and understanding you, are listed there to look after the company for me in exchange for living at 725 Toorak Rd.

Our deal was, and is, and will stand till you live at 725 that you are responsible for caring for 725 and outgoings plus all the accounts and helping with the running of the business.

You are not to expect any help under any circumstance from me.

Your requests for income from the Jammm Investments Trust, the Cotter Childcare Trust and the Jan Cotter Trust are declined.

Mum (Maria Cotter).

85 Maria's evidence at trial was consistent with this. When asked in cross examination about the profits generated by the Ian Cotter Family Trust, she was adamant that, 'I am not giving anything to my daughter because it's got to be there for a rainy day'. In relation to the trusts which she controls, she reiterated 'that I will not be giving my daughter any money'.

86 On 12 December 2023, the solicitors for the defendant wrote to the plaintiff's solicitors about Maria's response referred to at [84] above stating as follows:

Maria Cotter's letter could not be clearer evidence of a person who fails to understand their duties as the director of trustees and discretionary trusts. Her statement - that your client is "not to expect any help under any circumstance from me" - shows a pre-determination and a closed mind to the trustee's duty to give real and genuine consideration to the needs and circumstances of the beneficiaries of the trusts. It also shows a determination to continue in that improper course indefinitely. That letter alone is sufficient evidence to have the trustees of the family trust controlled by Maria Cotter removed.

Our client puts your client on notice that if she does not make an application to remove the trustees, our client will submit to the court that her failure to bring such a claim is a fundamental reason for refusing to exercise its discretion to alter the terms of the deceased's will to make provision for your client.

87 Based on Maria's evidence at trial, counsel for the plaintiff conceded that Maria is unaware of her obligations as trustee, or even of the 'details' of the trusts which she controls, and that she is not exercising her discretion as trustee. This concession does not capture the full extent of Maria's abject ignorance of her role and responsibilities as the natural person in sole control of several trustee companies. As the defendant submitted, the following propositions emerge from Maria's evidence generally and in particular from her evidence in relation to the 2018 financial statements for the Ian Cotter Family Trust (she gave evidence to the same effect in relation to subsequent financial years):

(a) Maria has no comprehension of what a discretionary family trust is.

(b) Maria has no comprehension of the role of a trustee of a trust.

(c) Maria has no comprehension about the role of an appointor of a trust.

(d) Although she had some limited understanding of the concept of a beneficiary of a trust, she could not explain the nature of their entitlements.

(e) Although she had heard of the Ian Cotter Family Trust, she could not identify the person or entity who was trustee, the beneficiaries, or its assets. She could not explain how it derived its income.

(f) Although she had 'come across' Drealis 'in [her] accounting', she did not know its function, or even whether she was a director of it.

(g) It had never occurred to Maria to make a distribution of income to the plaintiff or Morris. Until she saw documents produced by the defendant in this proceeding, she did not know that they were beneficiaries of the Ian Cotter Family Trust.

(h) Maria's accountant, Mr Cairnduff, was responsible for deciding to whom the Ian Cotter Family Trust made distributions. When asked about the 2018 tax return which disclosed that the income of the Ian Cotter Family Trust was the result of a distribution from the Crepes Trust, Maria stated that, although she was familiar with that name, she could not explain why that distribution had been made. She said:

I cannot tell you. I only do the work. Please, ask him. Bring him [referring to Mr Cairnduff] to the stand. He's more than happy to come, I am sure. There is nothing wrong. That's why I employ him. He has been 40 years doing this.

88 Mr Cairnduff's responsibility for all decisions relating to the Ian Cotter Family Trust was a consistent theme in Maria's evidence.

89 The plaintiff has not taken any action to have the trustees of the Ian Cotter Family Trust, the JAMMM Trust or the Cotter Childcare Trust removed. Her evidence was that she believed that the trusts operated like companies and she never expected to receive distributions from them, an understanding she says Maria confirmed. She had not taken any action to have the trustees removed because to do so would require her to sue her mother, the effect of which 'would be to hit the implode button on my whole life'. Her evidence was that, if she sued her mother, she would risk her mother's existing financial support, their relationship and it would ultimately result in her being ejected from the Kooyong house. She also could not afford the legal fees required to initiate proceedings to remove Maria as trustee.

90 On 22 January 2025, about a month before the trial of the proceeding, the defendant's solicitors wrote to the plaintiff's solicitors explaining why they considered that the income distributions made by the Ian Cotter Family Trust for the financial years 2020-2024[32] were beyond power and void. The basis of this claim was that despite:

(a) Maria ceasing to be a beneficiary of the trust on 1 July 2019, the date when her marriage to Ian ceased as a consequence of their divorce;

(b) New Orleans likewise then ceasing to be an eligible beneficiary because, being solely controlled and owned by Maria, it did not have a connection to a beneficiary; and

(c) the Cotter Childcare Trust not being a beneficiary because it had not been added in writing as a beneficiary,

Drealis had distributed over the years in question the whole of the income of the Ian Cotter Family Trust, some $1,892,276, between Maria, New Orleans and the Cotter Childcare Trust. The solicitors continued as follows:

[The plaintiff], being the child of the Deceased (putting to one side Karly Doyle and whether she is, technically, a child of the Deceased), and [the plaintiff]'s son, Morris, are beneficiaries of the [Ian Cotter Family Trust] and the obvious beneficiaries to receive the bulk of the trust income from it, given that the Specified Beneficiary is deceased, Maria is not a beneficiary of the [Ian Cotter Family Trust], and [the plaintiff] is the capital beneficiary in default of appointment under clause 5(2)(a) of the [Ian Cotter Family Trust] Deed.

In our client's view, [the plaintiff] should immediately ask Maria to cause Drealis to recover the improper income distributions and distribute that income to her. Acting properly, Drealis would agree to do so. If Drealis will not do so, your client, as a beneficiary of the [Ian Cotter Family Trust], has standing to bring an action against Drealis for breach of trust and (on the basis that Drealis will not do so despite being duty bound to do so) against Maria, New Orleans and the [Cotter Childcare Trust] to recover the improper distributions of [Ian Cotter Family Trust]'s income to them. Such an action would appropriately be coupled with an action to remove Drealis as trustee of the [Ian Cotter Family Trust] due to its failure to properly exercise its duties as trustee of the [Ian Cotter Family Trust]. Such an application would, in light of the whole of the matters set out above, have very high prospects of success.

91 The plaintiff's solicitors provided the above correspondence to Maria, Drealis and New Orleans for their reply. Mr Cairnduff sent a reply on their behalf. He stated that the Ian Cotter Family Trust was used as a 'dumping trust' for distributions from other related entities, with distributions then being made for 'the best tax planning purpose'. The trust had never traded or generated any income in its own right. Distributions by Drealis as trustee were made 'under the assumption' that Maria was a beneficiary of the Ian Cotter Family Trust. Mr Cairnduff explained that, following the execution of the BFA, it had been assumed that Maria had been added as a named beneficiary to the trust. After stating that he had not been advised that this had not occurred, he continued as follows:

If it is found that the documentation was in fact not completed to make Maria a beneficiary of the [Ian Cotter Family Trust], which would seem to be contradictory to the [BFA], then we would look to amend the distributions made to the [Ian Cotter Family Trust] from the originally related entities which generate the income.

The Trustees of these Trusts would look to amend the distributions so that the income generated within would be distributed directly to its intended entity. These amendments would be made as they were initially made under the presumption of the Trustees that the [sic] Maria was indeed a beneficiary of the [Ian Cotter Family Trust].

These distributions would then be made in occurrence with the historical Trustee's wishes.

These adjustments would be inline [sic] with the historical practice and the precedent of ensuring all distributions are keep to entities controlled by Maria.

...

As mentioned previously in the past 20 years I have handled these clients it has been the distinct instructions that the only distributions made were to either Maria, Ian or any entity they had sole ownership of.

If there was a need to adjust the flow through distributions to the [Ian Cotter Family Trust] then this would been done with these historical instructions in mind. Once the adjustment is made there would be no funds left in [Ian Cotter Family Trust] for any other form of distribution.

92 Section 91(1) of the Act gives power to the Court to 'order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person'. However, for that power to be enlivened, s 91(2) requires the Court to first be satisfied of certain matters which, applied to the circumstances of this case, may be identified as follows:

(a) that the plaintiff is an 'eligible person'[33];

(b) that 'at the time of death, [Ian] had a moral duty to provide for [the plaintiff's] proper maintenance and support';[34] and

(c) that the distribution of Ian's estate by the Will 'fails to make adequate provision for the proper maintenance and support of [the plaintiff]'.[35]

93 As Ian's child, it was uncontroversial that the plaintiff is an 'eligible person' within the meaning of the Act. [36]

94 Section 91(4) of the Act provides that, 'in determining the amount of provision to be made by a family provision order, if any, the Court must take into account' certain matters which, applied to this proceeding, are:

(a) 'the degree to which, at the time of the death, [Ian] had a moral duty to provide for [the plaintiff]';[37]

(b) 'the degree to which the distribution of [Ian's] estate fails to make adequate provision for the proper maintenance and support of [the plaintiff]';[38] and

(c) 'the degree to which [the plaintiff] is not capable, by reasonable means, of providing adequately for [her] proper maintenance and support'.[39]

95 In Lennan v Chao,[40] I recently summarised the relevant principles relating to the jurisdictional requirement in s 91(2)(d) that the Court be satisfied that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person:[41]

[24] The right of freedom of testation must be borne steadily in mind when considering the application of this and the other provisions of Part IV of the Act. As Callaway J explained in Grey v Harrison, freedom of testation:

... is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of "proper" maintenance and support but also, and more fundamentally, from those considerations.

[25] The meaning of the words "adequate" and "proper" were considered in Singer v Berghouse in which Mason CJ, Deane and McHugh JJ stated:

The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

[26] As the Court of Appeal stated in Davison v Kempson, in deciding what is adequate and proper:

... the Court's discretion, while broad, is to be exercised carefully and conservatively according to prevailing community perceptions of the provision that would be made by a wise and just testator.

In order for a Court to award provision, an applicant must have shown a "need", which is a relative concept that has to be considered in the circumstances of each case. It is not confined to economic need. If circumstances permit, a testator should go beyond merely providing for the bare necessities of life.

[27] It is also well established that the "need" of an applicant for provision is a "threshold" or "essential" issue for the establishment of a successful claim under Part IV of the Act. "Need" is, however:

... a relative concept that has to be considered in the circumstances of each case. It is not confined to economic need. If circumstances permit, a testator should go beyond merely providing for the bare necessities of life.

[28] The continuing applicability of the above principles to Part IV of the Act in its current form was confirmed by the Court of Appeal in Gash v Ruzicka:

In considering what is necessary for proper maintenance and support the Court must assume the position of a "wise and just" testator judged by current community standards. However, the Court should not be drawn into rewriting the testator's will by reference to general considerations of fairness.

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". ...

...

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

[29] In Bosch v Perpetual Trustee Co Ltd, cited by the Court of Appeal in Gash v Ruzicka, Lord Romer stated:

The first thing to be noticed is that the powers given to the Court only arise when any of the persons mentioned is left without adequate provision for his or her proper maintenance, which word will be used in this judgment where necessary as including education and advancement. The use of the word "proper" in this connection is of considerable importance. It connotes something different from the word "adequate". A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may be quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances. A father with a large family and a small fortune often can only afford to leave each of his children a sum insufficient for his "adequate" maintenance. Nevertheless, such sum cannot be described as not providing for his "proper" maintenance, taking into consideration "all the circumstances of the case" ...

...

The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration.

96 Section 91(5) of the Act stipulates that the amount of provision made by a family provision order 'must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support'.

97 Section 91A of the Act separately specifies the mandatory and discretionary matters to which the Court must and may respectively have regard 'in making a family provision order'. The mandatory considerations set out in subsection (1) are:

(a) the deceased's will;

(b) any evidence of the deceased's reasons for making dispositions in their will; and

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

98 The discretionary considerations listed in s 91A(2) to which the Court may have regard 'in making a family provision order' are:

(a) any family or other relationship between the deceased and the applicant, including the nature and length of the relationship;[42]

(b) any obligations or responsibilities of the deceased to the applicant and beneficiaries of the estate;[43]

(c) the size and nature of the deceased's estate;[44]

(d) the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of the applicant and any beneficiary of the estate;[45]

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;[46]

(f) the age of the applicant;[47]

(g) any contribution, not for adequate consideration, of the applicant to building up the estate or the welfare of the deceased or the deceased's family;[48]

(h) any benefits previously given by the deceased to any eligible person or to any beneficiary;[49]

(i) whether the eligible person was being maintained by the deceased before the 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;[50]

(j) the liability of any other person to maintain the applicant;[51]

(k) the character and conduct of the applicant or any other person;[52]

(l) the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries;[53]

(m) any other matter the Court considers relevant.[54]

99 Although s 91A states that the various matters referred to in the section are considerations to which the Court must or may have regard 'in making a family provision order', these words are not to be construed literally as meaning that they only arise for consideration once the jurisdictional threshold in s 91(2) has been passed.[55] Instead, as the Court of Appeal recently confirmed in McFarlane:[56]

The opening words of s 91A(1) and (2) are ... to be read as respectively requiring or permitting the court to have regard to the identified matters when deciding whether to make a family provision order, including deciding whether the jurisdictional requirements are satisfied, and the amount of provision to be made, if any. This means that the factors in s 91A are relevant to the application of s 91(4) and (5). They are also relevant to the exercise of the discretion in s 91(1) whether to make an order at all.

100 In McFarlane, the Court of Appeal observed that, whereas s 91(2)(c) of the Act specifies the jurisdictional requirement that there be a 'moral duty' to provide for an eligible person, the previous legislative provisions[57] did not use that expression, 'but required that the testator have a more diffuse "responsibility" to provide for the applicant'.[58] Nonetheless, in the context of the former provisions, the courts applied the notion of moral duty to explain the rationale for making an order for provision; the 'existence of a "moral duty" was held to supply the justification for curial intervention, and simultaneously the limit to its legitimate exercise'.[59] The Court continued:[60]

Leaving aside the specific expression "moral duty", the existence of a moral obligation still provides the justification for curial intervention; and the limit to the legitimate exercise of the court's power is still determined by reference to the "adequacy" of the provision made, having regard to that moral obligation. Gleeson CJ said in Vigolo v Bostin,[61] in terms applied by this Court to the current form of the Victorian legislation:[62]

The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member ... The justification for conferring upon a court a discretionary power to intervene, and to make an order modifying the legal effect of the will, was explained in terms of familial obligation, not unnaturally or inappropriately described as moral.[63]

101 In Vigolo v Bostin,[64] Gleeson CJ referred to the seminal statement by Salmond J in Re Allen (dec'd), Allen v Manchester[65] which had been adopted by the Privy Council in Bosch v Perpetual Trustee Co[66] and applied many times by the High Court:[67]

The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.

102 This is not, however, licence for the Court to re-write the testator's will by reference to general considerations of fairness.[68]

103 In Collicoat v McMillan[69], Ormiston J explained that the moral duty to which Salmond J referred:[70]

... reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards. What is right and proper, and thus what the wise and just testator must do, is not determined by the "character and conduct" of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.

104 Ormiston J continued, observing that moral duty was the obligation on a testator:[71]

... to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances.

105 More recently in Kronemann v Papaioannou,[72] Kyrou and Macaulay AJA stated that the statutory concept of a moral duty to provide for the proper maintenance and support of another person: [73]

... concerns the community's expectation that a testator should materially support another, given their relationship, personal circumstances and competing claims on resources. It is not, fundamentally, an examination of the personal honesty, probity, uprightness, virtue, integrity, general goodwill or reputation of the testator.

106 In relation to the moral duty owed by a parent to an adult child, the following general principles summarised by Hallen J in Walsh v Walsh[74] have been referred to with approval in this Court:

(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. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, ... although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

(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 ... 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.

(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.

(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.

107 In Re Christu[75], McMillan J referred to these principles and made the following observations drawn from the authorities:[76]

Further, it has been noted that the wise and just testator will not be blinded by a degree of intergenerational disappointment or disharmony to the needs of her or his child. An order for family provision is also not a means of obtaining compensation or assigning blame.

The conduct of a claimant may be such that it disentitles them from a claim on the moral duty of the testator. However, such conduct must be "considered in the context of, and relative to, other aspects of [the] claim, such as need".

Estrangement does not describe conduct, "but the condition which results from the attitudes or conduct of one or both parties". The Court is to consider all of the circumstances of the case in determining whether "the claim of the applicant on the deceased is totally extinguished, or merely reduced". Of relevance will be the nature of the estrangement and its underlying cause, and the mere fact of estrangement between a parent and child, on its own, should not ordinarily preclude the child from satisfying the jurisdictional requirement for provision. Equally, the Court is to recognise that in certain circumstances the deceased is entitled to make no provision for a child. This is particularly so where the child treats her or his "parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility".

108 Given the overlapping and similar nature of the tasks involved in considering the issues of jurisdiction and discretion, it is appropriate to first address those considerations and to then consider whether, at the time of his death, Ian had a moral duty to provide for the plaintiff's proper maintenance and support.

109 Self-evidently, the most significant feature of the Will is that it makes no provision for the plaintiff, with the entirety of Ian's estate being gifted to Ms Kim.

110 It is also relevant that the Will contains, in clause 4, Ian's declared reason for not making any provision for the plaintiff. He states that he has not made any provision for the plaintiff:

... as it is my understanding and belief that my said wife has made adequate provision for her in her Will from the substantial assets that my wife has acquired from me during my lifetime.

Sub-paragraph (b): Evidence of Ian's reasons for dispositions

111 There is no direct evidence as to Ian's reasons for making the dispositions in the Will.

Sub-paragraph (c): Evidence of Ian's intentions in relation to providing for the plaintiff

112 The defendant gave evidence as to Ian's intentions in relation to providing for the plaintiff. Ian told him that:

[The plaintiff] was specifically excluded from the will, that he was very disappointed with her especially as she had stolen from him, disrespected him and taunted him, [the plaintiff] was the financial responsibility of Maria who had taken more than her fair share from the matrimonial property settlement.

113 On its face, this evidence suggests that Ian did not wish to provide for the plaintiff because he was disappointed by her conduct towards him and because he considered that, with Maria taking or retaining the large majority of their matrimonial assets after the making of the BFA, she was responsible for making provision for the plaintiff.

114 In weighing this evidence, and the significance of clause 4 of the Will to which I have referred,[77] I note McMillan J's observations in Brimelow v Alampi[78] that, although the Act mandates that a deceased's expressions be taken into account:[79]

... it is not intended that such evidence, by will or in other evidence, suddenly takes on some higher status. The weight to be attached to such statements will depend on the circumstances. Reasons can be shown to be incorrect or misconceived, which may enhance or boost the strength or defence of a claim.

115 Counsel for the plaintiff submitted that the statement in clause 4 of the Will was not 'well founded' because a will is a revocable instrument, irrespective of any will Maria may have made at any particular time. It was also said to be 'incorrect' for Ian to 'conflate' the financial circumstances of Maria and the plaintiff as one entity. More generally, it was submitted that, because clause 4 speaks of the Will from the date of death, it does not bear upon the plaintiff's financial circumstances at the time of trial or obviate Ian's moral obligation to make adequate and proper provision for the only daughter of his long marriage.

116 Although the weight to be given to the matters referred to in s 91A of the Act is for the Court to determine having regard to the evidence and the circumstances of the case, a result whereby no, or inconsequential, weight is given to the mandatory considerations in sub-s (1) (in the event they are engaged) would generally be contrary to the apparent purpose and terms of the provision. In that event, by determining, as a matter of discretion, not to give any of those matters weight, the Court would be failing to comply with the directive that it 'must have regard to' each of the matters referred to in sub-s (1). The Court cannot effectively disregard matters which Parliament has required it to have regard to. The position is clearly otherwise in relation to the 'criteria' in sub-s (2) to which the Court 'may have regard'.

117 Accordingly, insofar as it was submitted that the Court should give no weight to, and thereby effectively disregard clause 4 of the Will,[80] that submission is rejected.

118 Furthermore, clause 4 of the Will merely records Ian's subjective reasons why he determined not to make any provision for the plaintiff. There can be no doubt that his stated reasons - that Maria had made adequate provision for the plaintiff in her will from the substantial assets she had acquired from him during his lifetime - are factually true. At that level, there is no basis upon which it may be said that Ian's reasons were ill-founded, incorrect or misconceived. Irrespective of the prudence or good sense (or otherwise) of these reasons, a matter to which I will later return, in the context of s 91A(1), it is therefore appropriate to give weight to these reasons, particularly as they are to be attributed with the solemnity attached to the contents of a formal testamentary instrument. Additionally, the reasons are consistent with what Ian expressed to the defendant about his testamentary wishes in relation to the plaintiff referred to above.[81]

119 The considerations which may be said to be engaged in the facts of this case are considered below.[82]

Sub-paragraph (a): the relationship between Ian and the plaintiff

120 A central fact in this proceeding is that the plaintiff is Ian's only child from his marriage to Maria.

121 Consistent with the submissions advanced on behalf of the defendant, I am satisfied that the facts establish the following general propositions in relation to the course of the relationship between the plaintiff and Ian:[83]

(a) the fractures between Ian and the plaintiff, which emerged during her teenage years, widened during adulthood;

(b) in adulthood, the plaintiff's relationship with Ian was distant and fraught, and she increasingly sympathised and identified with Maria;

(c) before and after Ian and Maria's separation, the plaintiff had aligned herself with Maria;

(d) reflecting the breakdown in Ian and Maria's marriage, from around 2015 the relationship between the plaintiff and Ian became acrimonious and dysfunctional, and they had little contact in the last two years of Ian's life from August 2017.

122 Some indication of the distant and fraught nature of the relationship between Ian and the plaintiff is given by what occurred in relation to important events in the plaintiff's life. The plaintiff effectively moved out of home when she was 18; Ian apparently did not approve of her domestic relationships; the plaintiff defrauded the family business of about $15,000 in 2008; the plaintiff was critical of Ian's reaction to Morris' birth; and Ian never visited Riddells Creek - according to the plaintiff, he 'was never interested as he was too busy with his women'. 'He made little effort to share in my achievements ...'. For his part, in late 2012 or early 2013, Ian gave instructions for a will which included the following provision:

I DECLARE that I have made only limited provision for my daughter JACQUELLINE COTTER after being informed of the existence of the provisions of Pt IV of the Administration and Probate Act 1958. My wife and I have had a difficult relationship with Jacquelline since she moved out of home when she was eighteen. We have very limited contact with her and our grandson. We have previously attempted to involve her in the family business, without success. Jacquelline has chosen not to be involved in our lives.

123 In relation to the plaintiff's sympathies being with Maria, the plaintiff's perception from her teenage years into adulthood of the 'cracks'[84] in her relationship with Ian is confirmed by the highly critical view she formed about his behaviour and character. Ian was 'a huge womaniser', 'arrogant', 'selfish and self-centred', and 'skilled at manipulating people' to the extent of 'openly lying to you'. She was 'morally critical' of the way he conducted himself, including of his indolence, particularly in comparison to Maria's lifelong commitment to hard work, and his propensity for public displays of wealth.

Sub-paragraph (c): the size and nature of the estate

124 The estate, with a net value of $6,106,006.77, is large and is comprised of realizable assets.

Sub-paragraph (d): the financial resources, including earning capacity, and the current and future needs of the plaintiff and any beneficiaries

125 As the sole beneficiary of Ian's estate, it is clear that Ms Kim has substantial financial resources and a capacity to earn, at a minimum, an adequate income from those resources. There was no suggestion that she had or has any unmet financial needs which she might look to Ian's estate to fulfil.

126 It was uncontroversial that the plaintiff is capable of earning an adequate income and that this capacity is unlikely to change in the foreseeable future.[85]

127 Counsel for the plaintiff also did not contest the following analysis and summary of the plaintiff's current financial resources advanced by the defendant:

(a) the plaintiff has an annual after tax income of approximately $110,000, in addition to child support payments from Derek which I accept are about $15,000 per annum;

(b) the plaintiff's expenses (including rent and school fees) are about $110,000 per annum;

(c) based on the above, the plaintiff currently has a surplus of income over expenses of about $15,000 per annum, which is likely to increase to about $40,000 in 2028 when Moris finishes school; and

(d) assuming the plaintiff is successful in her claim against Derek for 60% of the equity in Riddells Creek, she has total assets of about $442,000[86] and total liabilities (aside from further costs of this proceeding) of about $163,000.

128 The defendant also submitted that the plaintiff's rights as a beneficiary of the Ian Cotter Family Trust, the JAMMM Trust and the Cotter Childcare Trust should weigh heavily in her basket of existing financial services. This was contested by counsel for the plaintiff who submitted that, because the plaintiff was not likely to receive any distribution from those trusts in the foreseeable future, the fact that she was a beneficiary of the trusts should not be regarded as a financial resource.

129 The term 'financial resources' appearing in s 91A(2)(d) is not defined in the Act and has not received any explicit judicial consideration in Victoria. However, in Seng Hpa v Walker,[87] McMillan J cited the judgment of Hallen J in Hedman v Frazer[88] for the proposition that, although discretionary trusts are not those of a beneficiary, the identification of the trust's assets and resources can be relevant in determining the financial resources potentially available to the beneficiary.[89]

130 In Hedman v Frazer,[90] Hallen J considered the financial resources of an applicant for provision under the Succession Act 2006 (NSW), where the applicant was an object of a discretionary trust. In the course of an extensive survey of the authorities, his Honour affirmed his previously expressed view[91] that 'financial resources' connotes 'some degree of entitlement to, control over, or relative certainty of receipt of property'.[92] It is of assistance to set out the relevant parts of his review of the authorities which have subsequently been referred to with approval:[93]

[180] As stated earlier, each of Lucie and Georgia is an object of the RMR Discretionary Trust, which is a discretionary trust. As such, other than in respect of distributions already made, each has no enforceable rights to either the property or income of the Trust and is reliant, for any future benefit, upon the exercise of discretion of the trustee in her favour. A discretionary object has no legal, or equitable, interest in the property of a discretionary trust until the trustee exercises its discretion in that beneficiary's favour. Until that point, a discretionary beneficiary's interest is merely an expectation or hope.

[181] In Belfield v Belfield [2012] NSWSCA 416; (2012) 83 NSWLR 189, Campbell JA wrote (at 206 [71]):

... when the [Family Provision Act 1982 (NSW)] was enacted in 1982, it was common and well known that there were significant advantages for a person with some capital (who I will call the instigator) to arrange the setting up of a family trust, with a structure like that of the present trust deed. Common features of such trusts were that the trust was established by a settlor who was not the instigator or someone the instigator wished to benefit, the eligible beneficiaries were relatives by blood or marriage of the instigator, and there could be a discretionary allocation of income each year amongst eligible beneficiaries and ultimately a discretionary allocation of capital amongst eligible beneficiaries. Other common features were that there was power to alter the eligible beneficiaries, certainty achieved by provisions stating where income, and capital respectively would be distributed in default of a specific allocation of income or capital, and distribution of capital delayed for as long as permissible under the rule against perpetuities but with a discretionary power to advance the distribution date: see, for example, I J Hardingham and R Baxt, Discretionary Trusts, (1975) Sydney, Butterworths. Those discretions were usually conferred on the trustee of the trust. Such trusts enabled an instigator who was concerned to provide for a family, usually a parent or grandparent, to arrange for assets that they had accumulated to be made available to different members of the family as the need for money presented itself. Such trusts also had the effect of lessening the impact of death duties, while death duties remained in force in Australia, and of lessening the impact of income tax on the members of a family unit considered collectively, by enabling income to be appointed to those members of a family who had a lower marginal rate of taxation.

[182] In Gregory v Hudson (No 2) (NSWSC, 18 September 1997, unreported), it was said (at pp 10-12):

Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VicRp 3; [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland CJ in Eq. (1959) noted 33 ALJ 240, Norris AJ said at 39, "It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate". He then cites Re Allen [1921] NZGazLawRp 155; [1922] NZLR 218.

Dickey in Family Provision after Death (LBC Sydney 1992) says at p 121, "There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case".

...

I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of a discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended.

...

It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it.

...

[184] In Taylor v Farrugia, Brereton J wrote, at [62]:

Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper [Re WTN (NSWSC, unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240; Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported).]

[185] None of these decisions mean that the court should act in total disregard of the potential availability of wealth to an applicant for a family provision order from sources owned, or administered, by others.

...

[188] In Flathaug v Weaver [2003] NZCA 343; [2003] NZFLR 730, at 737-738, Hansen J discussed the relevance of a discretionary trust in which one of the objects was an applicant for provision. He wrote:

We see no reason why, in a proper case, an entitlement to benefit under a trust, even of a fully discretionary nature, should not be taken into account in assessing a testator's duty to make provision. In this case, the only beneficiaries of the Trust are John and Nils and their children. It would be wholly unrealistic not to have regard to their exclusive rights to benefit from the Trust. By leaving his entire estate to the Trust, the testator plainly saw it as the means by which he would provide for his children and grandchildren. In our view, for the purpose of assessing their competing claims, that may be regarded as equivalent to direct testamentary provision.

[189] In Kelly and Kelly (No 2) [1981] FamCA 78; (1981) 7 Fam LR 762 at 769, it was said that "financial resource" includes "contingent interests or benefits which a party actually received or was likely to receive, whether legally entitled thereto or not". It would also include "a source of financial support which a party can reasonably expect would be available to him or her to supply a financial need or deficiency": Mee and Ferguson [1986] FamCA 3; (1986) 84 FLR 179, at 183 [40].

...

[191] In RK v RK (Financial Resources: Trust Assets) [2011] EWHC 3910 (Fam); [2013] 1 FLR 329, in which English trustees had actively participated by giving evidence both written and orally at a hearing, Moylan J wrote (at [60]-62]):

... Resources held within a bona fide discretionary trust are a party's resources to the extent which, on the balance of probabilities, they are likely to be made available to that party either now or within the foreseeable future. This would encompass provision for that party's own needs as well as provision to enable that party to meet an award made against him or her in favour of the other party. The form in which the provision can be made available or might be made available will of course vary. It might be by way of income or capital distributions, by way of loans or by way of occupation of a trust property.

In determining this issue of fact the court must assess the evidence available to it. There is a very long tradition of the courts seeking to ascertain the reality of a situation. As Merrivale L said in N v N [1928] 44 TLR 324, the ecclesiastical courts "showed a degree of practical wisdom ...They were not misled by appearances ...they looked at realities".

Re: The Esteem Settlement [2004] JRC 92, The Royal Court of Jersey said, at para 166:

In our judgment, where the requests made of trustees are reasonable in the context of all the circumstances, it would be the exception rather than the rule for trustees to refuse such requests.

131 Consistently with these principles and the parties' submissions, the Court must treat the resources held by the trusts of which the plaintiff is a beneficiary as forming part of her financial resources to the extent that, on the balance of probabilities, they are likely to be made available to her now, or within the foreseeable future. On that basis, the Court must determine whether the resources held by the trusts ought be considered part of the plaintiff's financial resources. Having regard to the reality of the current situation as disclosed by the evidence, that question must be answered in the negative.

132 Although the plaintiff has from time-to-time received assistance from Maria, the starting point must be to acknowledge that she has never received a distribution from the Ian Cotter Family Trust, and there is no evidence that she has ever received a distribution from any of the other trusts controlled by Maria. Considering the position prospectively, Maria, as the sole person in control of the trusts, has emphatically and unconditionally declared that the plaintiff will never receive income or benefits from the trusts. However indifferent that attitude may be to her trustee obligations, I am satisfied that it reflects Maria's genuine and firmly held position. I also accept the plaintiff's evidence that, for the reasons she advanced, she is most unlikely to take steps to effectively remove Maria as trustee. In the circumstances of the case, the plaintiff's right to bring such a proceeding does not alter my assessment of the probabilities as to whether the resources of the trusts will, in fact, likely be made available to her.

133 The submissions made on behalf of the plaintiff about her current and future financial needs were cast at a high level of generality. As to her present needs, it was submitted that her financial position was comparatively poor as compared to the other 'protagonists' in the proceeding and that the authorities established that the Court was entitled to be generous. It was submitted that the plaintiff had a need for provision for her proper maintenance and support, and that this was particularly so given the size of the assets of the estate and the ability to provide for her, as well as Ms Kim's substantial asset holdings and the absence of any competing claim by Ms Kim. It was also submitted that, although the plaintiff is a beneficiary of Maria's estate, she presently receives only limited support from Maria and has no certain expectation of future support.

134 The defendant submitted that the analysis of the plaintiff's financial position referred to in [126]-[127] demonstrates that she has no pressing needs at the present time: she accrues a surplus of funds each year and the surplus will grow considerably after Morris completes school.

135 This submission is consistent with the evidence and analysis of the plaintiff's financial position. However, it is essential to recall that need is not confined to economic need. It is a relative concept to be considered in the circumstances of each case and, if circumstances permit, it may be considered that a testator should go beyond merely providing for the bare necessities of life.

136 In terms of the plaintiff's needs in the foreseeable future, the matter which looms large is that her accommodation arrangements are not independent and secure. Following upon the end of her relationship with Derek, the plaintiff, who is now in her early 40s, has, at best, a 60% share in an encumbered property of modest value. Although she enjoyed rent-free accommodation at the Kooyong house for more than five years, that very beneficial arrangement has ended.

137 I accept the plaintiff's evidence as to her wish to secure stable accommodation for herself and Morris, and her related concerns about Maria's volatility (which concerns were also evident in Maria's demeanour and evidence to the Court). Her aspirations in this regard were reasonable in all of the circumstances relating to the estate. The plaintiff's current living arrangements as compared to the size of the estate, the absence of any competing need by the sole beneficiary, and Ms Kim's very secure financial circumstances, reveal a strikingly asymmetrical situation. In my assessment, given the plaintiff's age, her caring responsibilities, the size of the estate and the absence of any competing need, there is a sound basis to conclude that, although she does not have any pressing financial needs in the short term, she does have a genuine need for financial resources to secure her own independent and stable living arrangements into the future.

138 The plaintiff is 42 years of age, having been born on 27 March 1983.

Sub-paragraph (g): any contribution by the plaintiff, not for adequate consideration, to building up the estate or Ian's welfare

139 It was submitted on behalf of the plaintiff that weight should be given to her efforts in working in the family business from a young age.

140 Although an unusual feature of the plaintiff's childhood was the manner and extent to which she helped Maria with various tasks in the hotels which the family operated, I doubt that it can therefore be said that she can be said to have contributed to the 'building up' of Ian's estate in any discernible sense, as contemplated by s 91A(2)(g) of the Act. Likewise, when she was an adult, the plaintiff spent much of her time in employment and activities unrelated to the family business. To the extent that she was involved in the family businesses, the evidence suggests that she was generally remunerated for that work.

141 As to whether the plaintiff had contributed to Ian's welfare, it was submitted that she returned from northern New South Wales to help her parents in 2017, that she made repeated visits to Victoria when she was living interstate, that she visited Ian in Arcare and assisted him with his daily tasks, including bringing him back to the Kooyong house so he could drive his cars.

142 While I accept that the plaintiff did these things from time to time, in my assessment, overall, her contribution to Ian's welfare was limited. The contributions the plaintiff relies on were largely confined to when Ian was in Arcare, after she had moved interstate. Although the plaintiff may have visited Victoria more regularly after June 2017 when she became aware of her parent's separation, she continued living interstate until July 2018. While Ian was in Arcare, it was Maria who was principally responsible for providing him with care and support. The plaintiff's involvement in that regard was largely confined to visits in the three months between June and August 2017. She saw little of him thereafter because of the upheaval precipitated by the revelation of Karly's paternity. The plaintiff's support for Ian's welfare was therefore limited in scope and duration; it is of limited weight in considering the jurisdictional and discretionary matters raised by the Act.

Sub-paragraph (h): benefits previously given by Ian to the plaintiff or any beneficiary

143 This consideration only arises in relation to Ms Kim who was the recipient of payments to the value of $650,000 from Ian in the course of his life.[94] The defendant's submission that this consideration is not relevant in relation to Ms Kim because she does not press a competing need is not supported by the terms of s 91A(2)(h) and is rejected.

144 Contrary to the plaintiff's submission, the fact that Ms Kim is the beneficiary of Ian's superannuation worth approximately between $5,100,000 to $5,500,000 is not properly viewed as a benefit previously 'given' by Ian. Nevertheless, as a substantial valuable benefit which Ian determined should pass to Ms Kim upon his death, in addition to his estate under the Will, it is a relevant consideration to be taken into account under s 91A(2)(m) of the Act.

Sub-paragraph (j): the liability of any other person to maintain the plaintiff

145 It has been observed that this factor 'will frequently call for consideration ... the legal, or moral, liability of others to maintain a person applying' for provision from an estate.[95] No issues arises about the legal liability of any other person to maintain the plaintiff. I also accept the submissions made on behalf of the plaintiff that her relationship with Mr Taylor is not sufficiently established to give rise to any obligation of maintenance. Nor can it properly be said that the trustees of any of the trusts, being discretionary trusts, have a liability to maintain the plaintiff.

146 Maria is, however, in a very different position. Having taken or retained control in 2017 of more than $40,000,000 worth of assets accumulated during her marriage to Ian and having since earned, directly or indirectly through companies she controls, income in excess of $2,600,000 from the trusts which she controls, Maria has a vast and secure wealth. In those circumstances and where there are no other obvious persons who may have a claim on her bounty (other than Morris), it may fairly be said that Maria has some obligation or responsibility, of a moral or familial kind, to maintain the plaintiff, her only child. Maintenance 'is not merely that which is required for subsistence', but the provision of the 'necessaries and of the conveniences of life' which 'provide for existence and comfort in ordinary circumstances'.[96]

147 As has been noted, the defendant put in issue whether the Court could be satisfied that, at the time of death, Ian had a moral duty to provide for the plaintiff's proper maintenance and support.

148 Counsel for the plaintiff acknowledged that the task for the Court was to determine whether a wise and just testator would have thought it their moral duty to provide for a claimant's proper maintenance and support. Consistent with the principles outlined above, it was submitted that this required an objective consideration of the position of the testator at the time of death, armed with the knowledge of the testator and any other relevant matters not known to the testator, but relevant to the assessment of the content of the moral duty.

149 It was submitted that the objective facts as at the date of Ian's death established that he owed the plaintiff a clear moral duty to make adequate provision for her maintenance and support. It was submitted that this was confirmed by the authorities concerning sizable estates.

150 Particular reliance was placed on the reasoning of Hollingworth J in Joss v Joss[97] in which a key issue was whether, and to what extent, the deceased had a moral duty to provide for a claimant pursuant to s 91(2)(b) of the Act. The case has some broad similarities with this proceeding. The deceased and the plaintiff, who was his daughter, had had a dysfunctional relationship prior to the deceased's death.[98] The plaintiff was not in great financial need and the deceased had previously given the plaintiff a generous allowance, which his partner continued to provide her after his death.[99] Ultimately, the deceased similarly made no provision for the plaintiff by his will and left his entire estate to his partner.[100]

151 Justice Hollingworth considered the issue of moral duty as follows:[101]

... In determining whether the deceased had a moral duty the court considers what, in all the circumstances as at the date of death, a "wise and just" testator, rather than a "fond and foolish" one, should have done. The role of the court is to put itself in the position of the deceased and consider what, according to current community standards, that person should have considered their responsibility. ...

A moral duty is not the same thing as a legal responsibility. If the obligation were legal, such as by way of a contract or trust, then enforcement would be the subject of separate proceedings. While previous promises or agreements may have weight in determining whether the test under s 91 is satisfied, they are not determinative of whether a family provision order should be made. It is the test under s 91, and the factors under s 91A, as they apply to the circumstances of the case, that the court must use to determine the "moral duty" of the deceased.

In deciding whether there was a "moral duty", the court considers whether there is some "need" to provide proper maintenance and support. As with "moral duty", "need" is relative, and can only be determined when considering all of the circumstances at the date of death:

... those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support. The extent to which this requirement has been satisfied ... must, of course, be considered in the light of the provisions made for each applicant.[102]

152 After referring to authorities dealing with the concept of 'adequate provision for the proper maintenance and support', Hollingworth J set out the following principles drawn from the authorities concerning relatively large estates:[103]

(1) A generous, and not "niggardly" approach is justified.

(2) The amount of provision should not be limited by the standard of maintenance provided by the deceased or by the standard of living to which the claimant has been accustomed.

(3) A generous approach does not, however, justify the Court in ordering more than is needed for the claimant's "proper maintenance and support", as those words "place a ceiling upon what the Court may properly do".

(4) The Court may be justified in making provision for contingencies that would be disregarded in smaller estates or if there were relevant competing claims:

"For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance".[104]

153 It was submitted that an important feature in assessing Ian's moral duty to the plaintiff was that no question of provision for Maria could be said to arise, and no competing need was asserted for Ms Kim, the sole beneficiary under the Will. It was submitted that Ian's estate was sufficiently large that an order for provision for the benefit of the plaintiff would not make any difference to Ms Kim.

154 It was submitted that the plaintiff had the overwhelming moral claim to receive the testator's bounty. As Ian's only child, she was the natural object of Ian's testamentary freedom and the natural object of his bounty, particularly where Ms Kim was only referred to in the Will as a 'friend' and not, for example, as a 'partner', 'confidante' or 'de facto spouse'. There would be an expectation in line with ordinary community standards that Ian would make provision for his only daughter. The only other possible object of Ian's bounty was his grandson Morris. However, Ian could be taken to have been aware that, as Morris' mother, the plaintiff was responsible for meeting his needs as a child.

155 It was also submitted that it was reasonable for the plaintiff to have a home of her own without being reliant on Maria for accommodation. This was particularly so given what was submitted to be Maria's volatile disposition and changeable nature, and her evidence that she might revoke or change her will in the event of a change of circumstance or a falling out.

156 It was submitted that a fair and wise testator would have also understood at the time of Ian's death that the BFA was wholly in favour of Maria alone and made no provision for the plaintiff whatsoever. The financial accommodation provided by the BFA was reached in the context of a matrimonial property separation and effected a division of assets between Ian and Maria Cotter; it was not between Ian, Maria and the plaintiff. There was no basis to conclude that, in making provision for Maria alone by the terms of the BFA, that Ian had discharged his moral duty to make provision for the plaintiff. A fair and wise testator could not take the view that, having separated from his wife two years earlier and having left her substantial assets, she too would then be responsible for looking after his daughter. Such an approach was unwise and unjust because it did not address the plaintiff's present needs and left the future receipt by the plaintiff of benefits as being contingent upon Maria's actions and affections.

157 The plaintiff also relied upon the inclusion in the Will of clause 4[105] as demonstrating the existence of a moral duty. This clause in which Ian explained his reasons for not making any provision for the plaintiff was said to itself be recognition by Ian of his moral duty to provide for the plaintiff. Ian had in substance recorded that he had discharged his moral duty because Maria had made provision for the plaintiff in her will from assets he had provided Maria.

158 Although the plaintiff is the beneficiary of Maria's estate under her last will dated 11 July 2022, it was submitted that a wise and just testator would have known that a will is an inherently revocable document. Accordingly, although Ian had made ample provision for Maria, there was no guarantee that provision under Maria's will would ultimately flow to the plaintiff. Counsel emphasised Maria's evidence that her will in favour of the plaintiff could be revoked at any time. The Court could therefore not be satisfied that there was any certainty of testamentary provision by Maria in favour of the plaintiff.

159 A similar submission was advanced in relation to the trusts. It was submitted that a wise and just testator in Ian's position at the time of his death would have known that those trusts could be 'rearranged and reconstituted'. A wise testator would also have been aware that the historical pattern of distributions from the trusts were as trading trusts; there had never been distributions from them in favour of the plaintiff.

160 It was also submitted that a wise and just testator, having divorced his wife as Ian had done, ought to have been familiar with his ex-wife's 'character and conduct'. In particular, they would have understood that Maria was not necessarily a dutiful trustee and was a person capable of acting capriciously by cutting people out of her affections and favours.

161 The plaintiff's contribution to the estate from a young age was also submitted to be relevant in identifying Ian's moral duty to provide for her. A fair and just testator would also have appreciated that the plaintiff had been imbued from childhood with a strong sense of self-reliance. When considering the disposition of assets after death, a wise and just testator ought to have considered that the estate assets accumulated over time through the hard work of family members and should be provided to their only child, who had been reared on an ethic of hard-work and self-sufficiency, and who had contributed to building the family's wealth from a young age.

162 It was also submitted that, in comparison to the other 'protagonists' in the proceeding, the plaintiff's financial position was comparatively poor and that she had an immediate need for provision. Further, the plaintiff had received limited support from Maria and had no certain expectation of receiving support in the future. The size of the estate would permit the Court to be generous in making provision.

163 In relation to the plaintiff's submission that clause 4 of the Will was confirmatory of the existence of a moral duty, the defendant accepted that ordinarily the only child of a father with a substantial estate who has considerably less resources would expect to be the subject of moral duty. However, it was submitted that the unusual circumstances of this case meant that a moral duty was not established.

164 The defendant submitted that provisions like clause 4 are common where a person who might ordinarily expect to be made the subject of a bequest, is not, and are often included in the context of consideration of Part IV applications. The defendant also emphasised that moral duty is to be considered at the date of the deceased's death and that the deceased's subjective view of that matter was to be distinguished from the Court's objective assessment of the deceased's position.

165 It was also submitted that the circumstances informing the deceased's conclusion in clause 4 of the Will, that the plaintiff will receive adequate provision from Maria, was well justified because under Maria's current will, the plaintiff will receive the majority of Maria's estate.[106]

166 The defendant's submission that, in the unique circumstances of this case, Ian did not owe the plaintiff a moral obligation at the time of his death rested principally on the seven matters considered below. It was submitted that they demonstrated that, at the time of his death, Ian knew the plaintiff had ample resources to call upon and, as a consequence, did not owe her a moral duty to make provision for her in the Will.

167 It was submitted that the Court should find that, when Ian and Maria were negotiating the BFA in July-August 2017, the plaintiff had turned her back on Ian and had aligned herself with Maria. By this time, the plaintiff's relationship with Ian was utterly dysfunctional, with the limited communications that passed between them characterised by vitriol. Although the plaintiff was not estranged from Ian, it was submitted that her sympathies and allegiances were with Maria.

168 In these circumstances, it was submitted that Ian understood and believed that Maria and the plaintiff were a 'team' and that, to the extent that the plaintiff required financial support, Maria would provide it from the more than $44,000,000 worth of assets which, upon the completion of the BFA, would be either owned or controlled by Maria. The defendant submitted that this was clear from:

(a) the relationship dynamics between the plaintiff and Ian;

(b) the relationship dynamics between the plaintiff and Maria;

(c) the explanation for the plaintiff's exclusion from Ian's estate contained in clause 4 of the Will;

(d) Ian's statement to the defendant about his reason for excluding the plaintiff from the Will;[107]

(e) Ian's text message to the plaintiff on 14 November 2017 in which he said 'your mother and you have 80 percent of my money';[108] and

(f) the 'extraordinarily lopsided' nature of the BFA itself.

(b) Maria's ongoing support for the plaintiff

169 The defendant submitted that, at the time of Ian's death, not only did Maria have the means to meet any of the plaintiff's needs, she had repeatedly demonstrated, since August 2017, her willingness to meet those needs. Maria had:

(a) purchased a vehicle for the plaintiff in 2017;[109]

(b) provided the plaintiff with unfettered and rent-free use of the Kooyong house after she returned to Melbourne from northern New South Wales;[110]

(c) contributed to Morris' school fees;[111] and

(d) provided the plaintiff and Derek with an interest-free loan to enable them to avoid having to pay interest on their home loan.[112]

170 It was submitted that, despite Maria's 'bluster', she had always adopted a relatively relaxed approach to the advancement of funds for the plaintiff as and when the need arose. It was submitted that the Court should infer that, at the time of death, Ian well understood this and, further, that Maria's intention was to allow the plaintiff the use of the Kooyong house for as long as she wanted or required it.

171 In light of all of the above matters, the defendant submitted that the Court should infer that, at the time of Ian's death, it was apparent that any expense which the plaintiff was unable to meet from her own resources, would be met by Maria, as had been the case ever since the BFA was executed in August 2017. It was submitted that it was clear from Ian's last two wills that this was his reasonable expectation.

172 It was submitted that the plaintiff is a capable and eminently employable person with a strong work ethic and that Ian was well aware of this. Further, although the plaintiff was not in highly paid work at the time of Ian's death, her health was good, she had a long track record of independent living with minimum family support and Ian was entitled to have been confident of her ability to earn a reasonable income. The plaintiff's subsequent employment shows that such confidence would have been well placed.

173 It was submitted that, at the time of Ian's death, both the plaintiff and Morris were discretionary objects of the Ian Cotter Family Trust which was controlled by Maria. Although Maria had no idea about how a discretionary family trust operates, it was submitted that the Court should infer that, as a gifted and successful businessman who established the trust, Ian did know. It was submitted that he would have understood that the Ian Cotter Family Trust had a stream of income from the Crepes Trust and that the plaintiff was entitled to call for distributions from the Ian Cotter Family Trust on behalf of both herself and Morris. In that regard, it was submitted that the principles in Re Owies would then arise.

174 It was submitted that, at the time of Ian's death, both the plaintiff and Morris were discretionary objects of the JAMMM Investments Trust which was controlled by Maria. The latest financial statements for the trust as at Ian's death show that it owned around $8,000,000 in assets and had generated distributable income of $183,272 in the 2019 financial year, being income which was available for distribution to beneficiaries of the trust. Although Maria had no idea about how a discretionary family trust operates, the Court should infer, for the reasons set out above, that Ian did know, that he would have understood that the JAMMM Investments Trust had a stream of income from its assets, and that the plaintiff was entitled to call for distributions from the trust on behalf of both herself and Morris at which point the principles referred to in Re Owies come into play.

175 The defendant relied on the fact that the wills made by Maria between 1991 and August 2019 provided for the whole of her estate to go to Ian or, in the event that Ian predeceased Maria, to the plaintiff. Prior to Ian's death on 27 August 2019, Maria made a will by which she left her residuary estate on trust to the plaintiff as primary beneficiary. It was said to be notable that the will was prepared by a solicitor with the firm of solicitors who had acted as the plaintiff's solicitors in this proceeding and for the plaintiff and Karly in the BDBN proceeding. On 11 July 2022, after this proceeding had been on foot for more than a year, Maria made a further will which was prepared by the same solicitor and by which she again left her residuary estate on trust to the plaintiff as the primary beneficiary. On the basis of these matters, it was submitted that, as at 2019, Ian believed that Maria would provide for the plaintiff, and he was correct in that belief.

176 It was submitted that, since the BFA was executed in 2017 and separate from the assets and income of the various trusts, Maria has vast personal wealth. At the time of Ian's death, it was unthinkable that the plaintiff would not receive a sizable inheritance on Maria's death. This would have been well-understood by Ian.

177 Section 91(2)(c) of the Act calls for an evaluative judgment as to whether Ian owed the plaintiff a moral duty in the circumstances which existed at the time of his death. In determining that question, I must have regard to the matters identified in s 91A(1) which I have discussed in [109] to [118] above. I have also had regard to those considerations listed in s 91A(2) to which I have referred in [119] to [147] above (insofar as they relate to circumstances at the time of Ian's death).

178 As Hallen J observed in Walsh v Walsh, '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'.[113] It is because all must depend on the circumstances of the case that the plaintiff's heavy reliance on the authority of Joss v Joss was misplaced.[114] It is sufficient to refer to 'the most important consideration' identified by Hollingworth J as to why the applicant's father in that case did not owe a moral duty towards his daughter: the father's continued support of his daughter for more than 20 years, despite her hostility and behaviour, thereby allowing her to become financially dependent on him.[115] By contrast, the plaintiff in this proceeding was never financially dependent upon Ian in her adult life.

179 The essential question is whether Ian was under an obligation at the time of his death to favour his daughter, the plaintiff, in his testamentary dispositions. This question is to be answered by determining, having regard to current community standards, what testamentary provision a just and wise father would have thought it his moral duty to make in the interests of the plaintiff, had he been fully aware of all the relevant circumstances at the time of death.

180 This determination depends on an objective assessment and weighing of the circumstances subsisting at the time of Ian's death which would have informed a wise and just testator's assessment of the extent of any moral duty owed towards the plaintiff. Although it is an important part of the context in which this judgment is to be made, I do not consider that the acrimony and dysfunction which characterised Ian and the plaintiff's relationship in the last two years of Ian's life should be given particular weight. It was not suggested that there was any disentitling behaviour by the plaintiff and, more generally, a wise and just testator will not be blinded by a degree of intergenerational disappointment or disharmony.[116]

181 The most salient features which I consider would have informed a wise and just testator's consideration of their obligations towards the plaintiff are set out in [182] to [190] below.

182 Ian left a substantial estate worth about $5,000,000 at the time of his death, with no dependents. By way of binding death benefit nominations and by gifts, he had already made generous provision for his friend and long term intimate partner, Ms Kim; she had no need for provision from his estate.

183 The plaintiff was the only child of Ian's marriage to Maria. When he died, the plaintiff was 36 years of age. Over the course of her adult life, the plaintiff had generally lived independently, without significant support from her family. She had worked mainly in managerial roles in the retail industry and at different times had worked as a homeopath and as a bookkeeper in the family business. She had obtained some professional qualifications to support these areas of work. She had also pursued a business venture for several years while in New South Wales. Although she was still relatively young, overall it would appear that the plaintiff had enjoyed only modest financial success from these various occupations and pursuits and had attained only a limited degree of occupational and financial security.

184 At the time of Ian's death, the plaintiff was in a long term domestic relationship with Derek and they had one child together, Morris, who was then nine years of age. The plaintiff and Derek together owned Riddells Creek which they had purchased some years earlier. Although it was subject to a mortgage, since November 2017, very favourable arrangements had been established with Maria whereby she had lent the plaintiff and Derek $272,000 which was used to pay down the home loan on the property and to minimise the interest in relation to that loan.

185 Maria also provided financial support to the plaintiff when she and her family were living in northern New South Wales by purchasing her a new car for about $40,000. After they had returned to Melbourne in July 2018, the plaintiff, Derek and Morris moved into the Kooyong house, the large and comfortable former family home where the plaintiff had grown up and which was owned by Maria. Maria moved out of the Kooyong house and into the St Georges Rd apartment which was located nearby and which had been unoccupied and untenanted for 10 years. The arrangement, which the plaintiff described as temporary, was that the plaintiff and her family could live at the Kooyong house without paying rent on the basis that they paid the rates, outgoings and repairs on the property.

186 In the first year after her return to Melbourne, the plaintiff earnt a low income of about $40,000 per annum and Derek's income was about $59,000. Despite a family income of about $100,000, Morris commenced in year 2 at Wesley College with annual school fees of about $30,0000 per annum. It was agreed that Maria would be responsible for paying about a third of these fees. It would appear that the proceeds from the sale of the dog food business previously operated by the plaintiff in New South Wales were used to pay the remainder of the school fees for that year.

187 Maria had been in an extra-marital relationship with Toma for many years and Ian and Maria separated in 2017, about two years before Ian's death. In the period before and since their separation, the plaintiff had increasingly aligned herself with Maria, and the plaintiff and Ian's relationship had become acrimonious and dysfunctional, such that they had little contact.

188 When Ian and Maria separated, it was agreed that Maria would take or retain about 81% of the matrimonial asset pool. This meant that Maria owned or controlled assets then worth about $43,000,000. Insofar as these assets formed part of Maria's estate, under her will which would have applied immediately after Ian's death, all of those assets would pass to the plaintiff upon her death.[117] This disposition was consistent with Maria's long-expressed testamentary intentions first recorded in the will she made in 1991.

189 Maria had been in control of the Crepes Trust since about July to August 2016 and the JAMMM Trust after it was settled in October 2018. Collectively, these trusts generated income for the Ian Cotter Family Trust of about $350,000 per annum.[118]

190 Maria had been in sole effective control of the Ian Cotter Family Trust from when the BFA was executed in August 2017. The trust is a discretionary family trust which was settled because the settlor wished to make provision for its beneficiaries.[119] After Ian and Maria divorced in July 2019, the beneficiaries were confined to the plaintiff and Morris (and in all likelihood Karly), and any corporate entities in which they held shares.[120] The trustee had wide powers to pay the net income and capital of the trust for the benefit of the beneficiaries. Although the plaintiff had never received a distribution of income from the trust, these discretionary powers were required to be exercised by the trustee in good faith, upon real and genuine consideration and in accordance with the purposes for which they were conferred.[121]

191 In my view, in assessing whether Ian owed the plaintiff an obligation to favour her by provision in his Will, a wise and just testator in Ian's position at the time of his death would draw four key conclusions from the above circumstances.

192 First, as effectively the sole beneficiary of Maria's estate then worth about $43,000,000, the plaintiff's long term financial position was assured. This conclusion is unaffected by the theoretical possibility that Maria might alter her testamentary intentions in the future. As her only child, the plaintiff (together with her grandson Morris) was the natural object of Maria's bounty. Toma appears to be the only other person who might conceivably be favoured by Maria's testamentary wishes in the future. However, that prospect would appear remote given that, during the period of their relationship since 2005, Maria had only altered her testamentary provisions in favour of Toma in one discrete and unsurprising way by gifting him her half interest in the Noble Park property which they jointly owned as tenants in common. There is no evidence that Toma has any particular need which might prompt Maria to further favour him in her testamentary dispositions.

193 Most significantly, despite the length of her relationship with Toma, Maria continued to nominate the plaintiff as effectively the sole beneficiary of her estate for nearly 30 years since she made her will in 1991, and she did so again with the making of her will in August 2019, shortly before Ian's death. At the time of Ian's death, there was no suggestion that this might change in the future. To the contrary, the plaintiff had become more aligned with Maria as her marriage to Ian crumbled, and Maria had provided the plaintiff with additional valuable support after her return to Melbourne by permitting her to live in the Kooyong house on extremely favourable terms and by agreeing to pay one third of Morris' school fees. Maria's evidence to the Court that she could change her will at any time in the future is of little, if any, relevance to the objective task of determining whether, at the time of his death in October 2019, Ian owed the plaintiff a moral duty to provide for her in his Will. In any event, I do not accept this aspect of Maria's evidence as it was contrary to, and unreconciled with, the long history of her testamentary wishes which overwhelmingly favoured the plaintiff. I consider that Maria exaggerated this aspect of her evidence to assist the plaintiff's claim in this proceeding.

194 Another matter relevant to considering the possibility that Maria might change her testamentary provisions in the future is the very large size of her estate. Adopting a conversative view, if it be assumed that Maria's personal estate (that is, excluding assets controlled by any of the trusts), is worth $20,000,000, rather than $43,000,000, a radical change in Maria's testamentary wishes by which the plaintiff would take, for example, only 25% of the estate, rather than 100%, would still result in her receiving a gift worth $5,000,000, a very substantial bequest by community standards. In the circumstances applying in October 2019, a wise and just testator in Ian's position would reasonably consider that the possibility that the plaintiff would not eventually receive a gift of at least substantial value from her mother's estate to be so remote that it could safely be disregarded. However, a wise testator would also appreciate that, given Maria's age, it may be some years before the plaintiff will benefit under Maria's will.

195 Finally, at a general level, further confidence about the plaintiff's long-term financial position is also provided by her position as a beneficiary under the Ian Cotter Family Trust as discussed further below.[122]

196 The second conclusion a wise and just testator would reasonably draw from the circumstances applying at the time of Ian's death is that there was a degree of uncertainty and potential economic insecurity associated with the plaintiff's living and accommodation arrangements. Although the arrangement by which the plaintiff and her family lived at the Kooyong house was extremely favourable and had applied for about 14 months before Ian's death, it was nonetheless said to be a temporary arrangement. A wise and just testator would allow for the possibility that such an arrangement might cease or alter in a way which might impose additional costs on the plaintiff and her family, such as by the imposition of a requirement to pay rent.

197 Further, although the plaintiff and Derek owned Riddells Creek and the benefit of a loan from Maria to effectively avoid interest payments on the associated mortgage, they were indebted to Maria in the amount of $272,000. If they resumed living at Riddells Creek - for example because the temporary arrangement by which they lived at the Kooyong house came to an end - Maria would cease to receive rental income from the property and the plaintiff and Derek would need to find alternative ways to fund the loan repayments of $2,000 per month, equivalent to about 25% of their collective gross annual income.

198 The third conclusion that a fair and just testator would likely draw from the circumstances I have described is that, although the plaintiff's long term financial situation was secure, her short to medium financial position was characterised by a level of need. Two interrelated matters are significant: (a) the prospect, based upon their earnings in the 2019 financial year, that the plaintiff and Derek would collectively earn a modest income of about $100,000 per annum from which they would need to support themselves and Morris; and (b) their responsibility for some two-thirds of the fees associated with Morris' private school education. Although this last matter is an expense that they elected to incur, from the vantage point of a wise and just testator in the shoes of Morris' grandfather leaving a large estate, it is matter properly to be taken into account.

199 The fourth conclusion a fair and just testator would likely draw is that there existed substantial resources to potentially satisfy any of the plaintiff's unmet needs. The first source of those resources was Maria herself. As has been noted, over the years before Ian's death, she had been very generous towards the plaintiff by gifting her a new car worth $40,000; advancing her and Derek a substantial interest-free loan; agreeing to pay one third of Morris' private school fees; and by permitting her family to live rent free in a large comfortable home in a desirable part of Melbourne. A wise and just testator would reasonably conclude from this that Maria had the capacity and the willingness to provide substantial financial support to the plaintiff. However, it is also apparent that Maria's preparedness to support the plaintiff was in some instances conditional and directed to assisting her to meet particular identified needs.

200 The other source of potential resources is the Ian Cotter Family Trust. Although I have determined that the resources of the trust are not to be regarded as forming part of the plaintiff's presently existing financial resources as a matter of fact, the nature of the present inquiry concerning a wise and just testator's assessment of their moral duty to the plaintiff is fundamentally different. It concerns an objective evaluation of relevant circumstances at the time of Ian's death; here, relevantly, the prospect or likelihood that the resources of the Ian Cotter Family Trust will be available in the future to meet the plaintiff's financial needs.

201 In adopting this approach, a wise and just testator would properly assume that the trustee of the Ian Cotter Family Trust would approach the exercise of their powers in accordance with their legal obligations: that they would exercise their discretionary powers in good faith, upon real and genuine consideration and in accordance with the purposes for which the powers were conferred. When considering the position and relevance of a trust of which a claimant for further provision is a beneficiary, the moral duty of a testator is not to be determined on the basis that the trustee will approach the discharge of their duties and the exercise of their powers in an idiosyncratic way divorced from their legal obligations. In adopting the position of a wise and just testator in Ian's circumstances at the time of his death, it would be unsound to fix Drealis with Maria's prejudices and ignorance of the role and duties of a trustee expressed at trial more than five years after Ian's death.[123]

202 Although need is not a qualifying factor for a beneficiary to obtain a distribution under the Ian Cotter Family Trust, given that the trust was established for the purpose of making provision for the beneficiaries in the context of a family settlement, a wise and just testator would readily appreciate that, where unmet need could be shown, the plaintiff and Morris would have strong claims for the making of a distribution of income in their favour. Further confidence in this conclusion stems from three other features of the Ian Cotter Family Trust: (a) its very substantial income flows and secure financial position; (b) that the plaintiff and Morris (and Karly) comprise the small class of natural persons who are beneficiaries; and (c) the fact that the trustee, Drealis, is controlled by Maria. As to this last point, because the plaintiff is Maria's only child and the person she has identified as the object of her bounty for 30 years, and someone to whom she has personally afforded significant benefits in recent times when they have become more aligned since Maria's separation from Ian, a wise and just testator would have a high level of confidence that, in the future, the trustee's discretion would likely be exercised favourably towards the plaintiff in circumstances of demonstrated need.

203 Between Maria's vast wealth and the robust income of the Ian Cotter Family Trust of about $350,000 per annum, a wise and just testator appraised of all relevant circumstances at the time of Ian's death would be comfortably satisfied that, in the future, there would be sufficient resources available to the plaintiff to meet any shortfall in her and Derek's collective capacity to meet her and her family's needs.

204 The plaintiff's living and accommodation arrangements in the short term are, however, in a different position. As I have explained, a wise and just testator in Ian's circumstances at the time of his death would reasonably have perceived those arrangements to be characterised by a degree of uncertainty and potential economic insecurity. A wise and just testator with a substantial estate for which there was no competing need would, I consider, feel obliged to address these weaknesses or vulnerabilities in the plaintiff's circumstances because of her and Derek's likely inability to successfully meet those needs themselves from their own limited financial means, and because of the foundational importance of 'home' to family stability and the capacity of individuals to thrive and develop in their lives. Such an assessment accords with community expectations about the importance of secure housing and stable living arrangements.

205 In the circumstances of the case, a wise and just testator in Ian's position would also consider that suitable provision for the plaintiff's living and accommodation arrangements would most appropriately be provided by testamentary provision, as distinct from relying on gifts or distributions which might be made by Maria or the Ian Cotter Family Trust. This is because the resources required to ensure independence and stability in the plaintiff's living arrangements would likely involve a substantial sum of money in the nature of a capital sum which, unlike the ordinary range of living expenses and costs, may not confidently be expected to be made available either by Maria or the Ian Cotter Family Trust. Furthermore, mindful of the importance of security in living arrangements, testamentary provision would avoid the possibility that either Maria or the Ian Cotter Family Trust might adopt a different view as to whether to provide such support to the plaintiff, or controversy about the value of such financial support, a risk that is heightened given that Maria was and is the natural person in control of the trust.

206 I am accordingly satisfied that, at the time of his death, Ian had a moral duty to provide for the plaintiff's proper maintenance and support by ensuring that she had suitable independent and secure housing. Given the absence of any provision for the plaintiff in the Will, it follows that I am also satisfied that the Will fails to make adequate provision for the plaintiff's proper maintenance and support.

207 The plaintiff sought an order for provision from Ian's estate in the amount of $3,300,000. This amount was calculated as follows:

(a) $2,200,000 to enable the purchase by the plaintiff of a three-bedroom house in the City of Stonnington;

(b) $176,000 for the balance of Morris's school fees at Wesley College to the end of 2028;

(c) $120,000 for the plaintiff's legal costs of her family law proceedings with Derek Marr; and

(d) $800,000 for 'contingencies'.

208 As observed by Callaway J in Grey v Harrison[124] and as reflected in s 91(4)(a) & (b) of the Act, a breach of moral duty is the justification for curial intervention in Part IV of the Act, while also limiting the legitimate extent of the duty. Given my findings in relation to the nature and extent of Ian's moral duty to provide for the plaintiff by his Will, any order for provision is properly confined to addressing the plaintiff's need for independent and secure housing for her and Morris,[125] and in an amount which is no greater than is necessary for her proper maintenance and support.[126] The other elements of the plaintiff's claim for provision referred to in paragraphs (b)-(d) above must accordingly be rejected. Ian did not owe the plaintiff a moral duty to make provision for payment of Morris' school fees, for the plaintiff's legal costs or for 'contingencies'; these are categories of cost or expense which a wise and just testator would reasonably expect would be met by the Ian Cotter Family Trust, or by Maria, upon the plaintiff establishing legitimate need.

209 The plaintiff's claim for $2,200,000 to meet her needs for accommodation proceeds from three key propositions:

(a) that she requires a three bedroom dwelling so that she and Morris can each have a bedroom, and for there to be a spare room which she can use as a home office;

(b) that the dwelling should be located in the City of Stonnington, being the municipality proximate to Morris' school; and

(c) based on the Falvo report,[127] the average price of a three-bedroom dwelling in the City of Stonnington is $2,247,000.

210 The defendant submitted that if, contrary to his primary submissions, the Court was satisfied that the plaintiff had made out her case that she be awarded funds to purchase an unencumbered property, the plaintiff had not established a need for anything more than a two bedroom apartment in Prahran, which the Falvo report identified had a median price of approximately $632,000. This median price, adjusted by the plaintiff's half-share of the equity in Riddells Creek, meant that any entitlement to further provision should not exceed $300,000. The plaintiff had not made out a need for a three bedroom house in the City of Stonnington, a notably expensive set of suburbs. This was particularly so given the school Morris attends is easily accessible via public transport from more affordable suburbs in Melbourne.

211 The defendant also submitted that no evidence was led by the plaintiff as to why an apartment, rather than a house, would not be sufficient for her needs. This omission was important, it was submitted, in circumstances where the Falvo report confirmed that apartments make up at least 65% of the total housing stock in the City of Stonnington, with an equal number of terraces/townhouses and houses making up the balance.

212 The defendant also submitted that the plaintiff had not provided any evidence as to why she should be awarded a three, rather than a two, bedroom dwelling. No evidence had been given in relation to her working from home or the need for a spare room. Given the extent of the plaintiff's evidence, the defendant invited the Court to make a negative inference from this omission, of the type identified in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd.[128]

213 More broadly, it was also submitted that the plaintiff's housing expectations should be seen in the context of her having lived in modest accommodation between about 2002 and her move into the Kooyong house in 2018.

214 In determining the quantum of an amount to secure the plaintiff's independent living arrangements, I am mindful that any amount awarded must be no greater than is necessary for her proper maintenance and support. However, in considering what is 'proper' maintenance and support, the large size of Ian's estate is relevant.[129] It is well established that a more liberal approach to what amounts to adequate provision for proper maintenance and support may be adopted where an estate is large and the claimants of the deceased's bounty are few;[130] this is such a case.

215 As to the three propositions upon which the plaintiff's claim rests, I accept the defendant's submission that the plaintiff has not established an evidentiary foundation for why accommodation comprised of three, rather than two, bedrooms is necessary to accommodate her and Morris. However, I accept the plaintiff's claim that accommodation in the form of a dwelling, rather than an apartment or unit, is appropriate, as it generally accords with the nature of the accommodation inhabited by the plaintiff and her family in recent years. Accommodation in an apartment or flat would be a significant departure from the amenity the plaintiff and her son have enjoyed in their living arrangements for many years.

216 I also accept the plaintiff's submission that, in determining the value of a dwelling, it is appropriate to have regard to valuations in the City of Stonnington. The plaintiff has lived in that municipality (in the Kooyong house) since 2018 and it is where Morris' school is located. The Falvo report establishes that the average sale price for a two bedroom dwelling within the City of Stonnington is $1,444,786.

217 As submitted by the defendant, in determining the quantum of an award, it is appropriate to adjust this valuation by the likely capital value the plaintiff will obtain from her family law proceedings with Derek. Where there is no evidence about the plaintiff's prospects of success in that proceeding, it is reasonable to allow for 50% of the equity in Riddells Creek, being an amount of $292,965.[131] The plaintiff has accordingly established a case for provision from Ian's estate in the amount of $1,151,821.

218 In determining the amount of provision to be made by a family provision order, the Court must take into account the degree to which a claimant is not capable, by reasonable means, of providing adequately for their proper maintenance and support. I am satisfied, given the analysis of the plaintiff's financial circumstances, that she is not capable by reasonable means of providing adequately for her proper maintenance and support in the form of a two bedroom dwelling in the City of Stonnington.

219 In the exercise of my discretion, it is appropriate that provision for the plaintiff from Ian's estate be awarded in the sum of $1,151,821.

[1] Consistent with the manner in which the trial was conducted, to avoid confusion and without intending any disrespect to the parties, I will refer to the members of the Cotter family, other than the plaintiff, by their first names.

[2] As set out in the inventory of assets and liabilities filed in the application for probate in respect of the Will dated 16 July 2018.

[3] Pursuant to binding death benefit nominations in favour of Ms Kim executed by Ian on 6 September 2017 and 27 June 2018.

[4] The plaintiff was born on 27 March 1983.

[7] The Court also received uncontested evidence by affidavit from the defendant's solicitor, Nancy Collins.

[9] Although Ian moved into Arcare in December 2016 as dealt with later in these reasons.

[10] Clauses 1(1)-(2) of the trust deed of the Ian Cotter Family Trust relevantly state as follows:

(1) The "Specified Beneficiary" and the "Specified Beneficiaries" shall mean the person or persons if any named described or defined as such in the Schedule;

(a) the Specified Beneficiary or the Specified Beneficiaries (as the case may be);

(b) the parents brothers sisters spouses widows widowers children and remoter issue of the Specified Beneficiary or Specified Beneficiaries and the spouses widows widowers children and grandchildren of such parents brothers sisters spouses children and remoter issue and next-of-kin:

(c) any corporation wherever incorporated or resident any share in which is beneficially owned or held by any beneficiary or by the trustees of any trust or settlement under which any beneficiary has any interest whether absolute or contingent or by way of expectancy and whether liable to be defeated by the exercise of any power of appointment or revocation or to be diminished by the increase of the class to which he belongs and whether or not any such corporation trust or settlement is in existence at the date of this Deed;

(d) the trustees of any trust or settlement which the Trustees may at any time and from time to time nominate in writing as a beneficiary whether or not any such trust is in existence at the date of this Deed; and

(e) such additional persons if any as are named described or defined in the Schedule as additional beneficiaries.

[11] Clause 4(1) of the trust deed of the Ian Cotter Family Trust.

[12] Clause 4(2)(d) of the trust deed of the Ian Cotter Family Trust.

[13] Clause 7(1) of the trust deed of the Ian Cotter Family Trust. Further, pursuant to cl 7(3), the trustee may at any time pay or apply to or for the benefit of any beneficiary the whole or part of the capital or income to which they are absolutely or contingently entitled or in which they have any expectancy or by any other circumstance whatsoever 'in such manner and subject to such terms and conditions as they shall think fit and without limiting the generality of the forgoing for the maintenance education advancement or benefit of such beneficiary and may in the exercise of such power pay the same to any parent or guardian of any infant beneficiary ...'.

[14] See [79] below.

[15] See [78(a)] below.

[16] Using values as estimated in 2017. It is also to be noted that the payment of $4,100,000 to be made by Maria to Ian referred to in [31(d)] below was to be made from this pool of assets.

[17] Including the proceeds of sale of the Daytona Ferrari.

[18] Which appears to be the value of the refundable accommodation deposit paid in respect of Ian's residency at Arcare.

[19] Which was also included in Ian's will made on 10 January 2018.

[20] Maria and Toma have been the registered proprietors of this property as tenants in common since about 27 July 2022.

[21] Being the costs of this proceeding; the costs of the claim pursuant to Part IV of the Act brought against the estate by Karly and the settlement sum paid to Karly in that proceeding; the costs of the BDBN proceeding; accounting costs; and other administration costs.

[22] Later in 2009 she also completed a Certificate IV in Small Business Management.

[23] See [32] above.

[25] After which time Maria required the loan referred to in [71] to be repaid.

[26] This amount is included in her taxable incomes at [75].

[27] Including Jobkeeper payments received during the COVID-19 pandemic.

[28] See [26(c)] above.

[29] See [210] above.

[30] Referred to as 'the Trusts' in the extract below.

[31] [2022] VSCA 142 ('Re Owies').

[32] See [79] above.

[39] Section 91(4)(c) of the Act, which applies to the plaintiff as she is an eligible person referred to in s 90(f) of the Act (an adult child).

[40] [2025] VSC 220 ('Lennan v Chao').

[41] Ibid [24]-[29] omitting citations.

[55] McFarlane v McFarlane [2025] VSCA 163 [20]-[22] (McLeish, Kaye and Kenny JJA) ('McFarlane').

[57] Being the Act before amendments made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 which commenced on 21 October 2014.

[61] [2005] HCA 11; (2005) 221 CLR 191 ('Vigolo v Bostin').

[62] Scott-Mackenzie v Bail [2017] VSCA 108 [44]-[45] (Beach and Ferguson JJA and McMillan AJA).

[63] Vigolo v Bostin (n 61) 199 [11]; see also 204-205 [25] (Gleeson CJ), 230-231 [122] (Callinan and Heydon JJ).

[65] [1921] NZGazLawRp 155; [1922] NZLR 218, 220-1.

[66] [1938] AC 463, 479 (Lord Romer) ('Bosch's Case).

[67] Vigolo v Bostin (n 61) [15]-[16].

[68] Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1, 12 (Williams and Fullagar JJ), 20-1 (Kitto J).

[69] [1999] 3 VR 803 ('Collicoat v McMillan').

[72] [2020] VSCA 275.

[74] [2013] NSWSC 1065 ('Walsh v Walsh').

[75] [2021] VSC 162 ('Re Christu').

[76] Ibid [12]-[14], citations omitted.

[78] [2016] VSC 135; (2016) 50 VR 219.

[80] No submissions were advanced on behalf of the plaintiff in relation to the defendant's uncontested evidence (see [113] above) about Ian's intentions in providing for the plaintiff.

[82] For completeness, the following matters are also noted: (i) at the date of his death, the plaintiff was not financially dependent on Ian, and Ms Kim, the sole beneficiary of the estate, had no competing need (s 91A(2)(b)); (ii) the plaintiff was not being maintained by Ian at the time of his death (s 91A(2)(i)); neither party sought to rely on the 'character and conduct' of any person, including the plaintiff, as identified in s 91A(2)(k); and as Ms Kim, the sole beneficiary of the estate, has no competing need, the effect a family provision would have on the amount she would receive from Ian's estate (s 91A(2)(l)) is not a relevant consideration. Contrary to the submissions made on behalf of the plaintiff, I also have not separately taken into account under s 91A(2)(m) ('any other mater the Court considers relevant') the proposition that this is a 'special case where the vastly superior wealth of the estate and the beneficiary compared to the applicant should permit generous provision'. In substance, this is an invitation to rewrite Ian's will by reference to general considerations of fairness and in circumstances where the separate elements of the proposition are otherwise to be weighed under relevant paragraphs of s 91A(2).

[83] See in particular [45], [49], [57] and [610]-[65] above.

[84] See [45] above.

[85] See [74]-[75] above.

[86] This includes a half share in Riddells Creek which has an estimated value of $750,000, but which is subject to a mortgage of $164,071, resulting in a total equity of $585,929. In the family law proceedings with Derek, the plaintiff seeks 60% of this sum, being $351,557, the amount by reference to which the total assets of $442,000 is calculated.

[87] [2017] VSC 320 ('Seng Hpa v Walker').

[88] [2013] NSWSC 1915 [180]-[192] ('Hedman v Frazer').

[89] Seng Hpa v Walker (n 87) [121].

[90] Hedman v Frazer (n 88); See also: Dodds v Dodds [2013] NSWSC 1933 (Hallen J) ('Dodds v Dodds').

[91] See Neale v Neale [2013] NSWSC 983 at [14] and also Dodds v Dodds (n 90) at [93] referring to the judgment of the Full Family Court in White and Tulloch v White (1995) 19 Fam LR 696 at 702.

[93] Ibid [180]-[182], [184]-[185], [188]-[189], [191]. See for example Walker v Walker [2025] ACTSC 9 [149]; Re Soulos [2022] NSWSC 1507 [421].

[95] Thompson v MacDonald [2013] VSC 150 [45] (Pagone J).

[96] Dunn v Perpetual Trustee Co Ltd [2021] VSC 755 [54].

[97] [2020] VSC 424 ('Joss v Joss').

[99] Ibid [194]-[196], [203], [207]-[208].

[100] Ibid [172]. This was the case unless his partner predeceased him in which case the plaintiff would have benefitted, which she did not.

[102] Collicoat v McMillan (n 69), 820 [47] (Ormiston J).

[103] Joss v Joss (n 97) [22]. See also Re Buckland [1966] VicRp 58; [1966] VR 404, 415, 417 (Adam J).

[104] Borebor v Keane [2013] VSC 35 [68] (Hargrave J).

[105] See [35(c)] and [111] above.

[111] See [70] above.

[112] See [71] above.

[113] See [107] above; Walsh v Walsh (n 74).

[114] See [151] above; Joss v Joss (n 97).

[115] See [151] - [153] above; Joss v Joss (n 97) [167].

[116] See Re Christu (n 75) discussed at [108] above.

[117] Being her will made on 27 August 2019, noting that the above disposition to the plaintiff's benefit is after a number of small bequests; see [37(a)] above.

[118] The income for the 2018 year having been $357,943; see [79] above.

[121] Karger v Paul [1984] VicRp 13; [1984] VR 161 at 163-164; Re Owies (n 31) [82], [85]-[87], [96]-[97].

[122] See [200] - [202] below.

[123] See [87] above.

[124] [1996] VSC 74; [1997] 2 VR 359, 366; see [94] above.

[125] Noting that her relationship with Derek has now ended; see [72] above.

[126] By reasons of s 91(5) of the Act; see [96] above.

[127] See [8] above.

[128] (1991) 22 NSWLR 389, 418.

[129] See [40] and [124] above and the discussion of what is a 'large' estate in contemporary circumstances in Lennan v Chao (n 40) [68] fn 68.