Plaintiff v Defendant

1. On 31 March 2025, Ms Michelle Wielicki filed an originating motion seeking, pursuant to Part IV of the Administration and Probate Act 1958, an order for provision for her proper maintenance and support from the estate of her deceased husband, Paul Guziak.
2. The deceased left a Will dated 8 May 2006. Probate of the Will was granted on 21 October 2024. The gross value of the estate as shown in the Inventory of Assets and Liabilities is $1,978,326.55 with the estate liabilities listed as $344,600. The Will makes no provision for the plaintiff. Under the terms of the Will the estate passes to a testamentary trust of which the defendant, the deceased's daughter from a previous marriage, is the primary beneficiary.
3. On 4 July 2025 the defendant, in her capacity as executrix of the estate of the deceased, filed a summons seeking summary judgment on the grounds that the plaintiff's claim has no real prospect of success.
4. Relevantly, the Court must not make a family provision order under s 91(1) of the Act unless it is satisfied that:

(a) the deceased, at the date of his death, had a moral duty to provide for the applicant's proper maintenance and support; and

(b) the distribution of the deceased's estate fails to make adequate provision for the applicant's proper maintenance and support.[1]

1. If these two jurisdictional requirements are met then the task for the Court is to apply to relevant factors in s 91(4) of the Act to determine the amount of provision, if any, that should be ordered. In making a family provision order the Court must have regard to the matters in s 91A(1) of the Act and may have regard to the criteria listed in s 91A(2).
2. In this proceeding there was no dispute that the deceased had the responsibility to make provision for the plaintiff's proper maintenance and support. The real issue in dispute involved the type of need required to be demonstrated by an applicant to satisfy the Court that the distribution of the deceased's estate failed to make adequate provision for the applicant's proper maintenance and support. In particular, the defendant contended that an applicant must demonstrate need that includes financial need. The plaintiff argued that neither the Act, nor the authorities require financial need and that other types of need, in the absence of financial need, were sufficient to meet the second jurisdictional requirement.
3. The Court may only grant summary judgment if it is satisfied that the plaintiff's claim has no prospect of success.[2] If so satisfied, the Court is required to consider whether, notwithstanding that fact, the proceeding should be allowed to go to trial because it is not in the interests of justice to dispose of it summarily or the dispute is of such a nature that only a full hearing on the merits is appropriate.[3]
4. For the reasons given below, I have decided to grant the defendant's application for summary judgment. Accordingly, the plaintiff's application will be dismissed.

1. In support of her application for summary judgment the defendant relied upon her written submissions filed 2 September 2025 and 14 October 2025.
2. In opposition to the defendant's application, the plaintiff relied upon:

(a) the affidavit of Ms Wielicki sworn 31 March 2025;

(b) the affidavit of Ms Wielicki sworn 3 October 2025; and

(c) her written submissions dated 3 October 2025.

1. The following is a summary of the plaintiff's evidence drawn from her two affidavits filed in the proceeding.
2. The plaintiff is the widow of the deceased and a medical practitioner.
3. The defendant is the deceased's daughter from a previous marriage.
4. The plaintiff commenced a romantic relationship with the deceased about one year after her first husband died. In 2006, the plaintiff and deceased married and commenced living together in the deceased's house. The plaintiff described her relationship with the deceased as 'wonderful and loving'. The deceased worked as a Development Manager at Centro Properties and the plaintiff worked as a general practitioner in Frankston and Patterson Lakes.
5. The deceased suffered from poor health throughout the relationship. He had been diagnosed with serious heart problems in 2004 and underwent surgery to insert a stent in 2005.
6. In 2009 the deceased had a stroke which left him, among other things, unable to speak, with double vision and poor balance. The deceased's rehabilitation took almost one year during which time the plaintiff stopped working to care for him. The deceased recovered to the extent that he could travel with the plaintiff again but not sufficiently to recommence working.
7. The plaintiff said she returned to work when she was able to do so but reduced her hours so that she could continue caring for the deceased.
8. Sometime after 2011, the deceased's health deteriorated further. The plaintiff again cut her hours of work so that she could care for him, including by taking him to medical appointments.
9. In 2018, the deceased sold a house he owned in Bentleigh to fund a vacation with the plaintiff.
10. By 2019/2020, the deceased's health had deteriorated to the point he was unable to walk for more than 100 metres at a time. He was hospitalised shortly after 29 March 2020 and diagnosed with severe dilated cardiomyopathy. His heart function was greatly reduced. The deceased lost his speech and his balance became worse. He required a walker. From this time, until the deceased's death four years later, the plaintiff became the deceased's full-time carer. The plaintiff reduced her working hours to two shifts of four hours each in which she visited patients who could not travel. In periods when the deceased's condition worsened, the plaintiff took extended periods off work to look after him.
11. By December 2023, the deceased was wheelchair bound and he died from heart failure in May 2024.
12. The plaintiff said she was hurt when she found out the deceased had excluded her from his Will because she regarded their relationship as great and she had sacrificed a lot to look after the deceased for most of their married life.
13. The plaintiff described her financial position as stable. She owns a house in Patterson Lakes, unencumbered and valued at $2,650,000 (as at 31 March 2025 when she swore her affidavit). She also owns two investment properties valued collectively at $3,140,000 (again, at the time she swore her affidavit). The plaintiff has superannuation in the form of a further property which pays $25,000 per annum in rent and a term deposit of $300,000.
14. The plaintiff said that she had reviewed her financial records and discovered that before she reduced her working hours to look after the deceased she was earning approximately $330,000 per annum which decreased to about half that amount on average for the years 2007 to 2024 while she looked after the deceased. She deposed that her projected salary during the period she was caring for the deceased ranged from $350,000 to $410,000. Since the deceased died, the plaintiff has returned to work and expected to earn approximately $330,000 in 2025.[4] In addition she receives approximately $40,000 in rental income.
15. The plaintiff said she is responsible for looking after her mother who is 101 years old (as of 31 March 2025) and lives in one of her investment properties.
16. The plaintiff said that while she is 'far from destitute', she 'sacrificed [her] career and [her] considerable earning capacity' to care for the deceased when he was unwell.

1. There was no real dispute between the parties regarding the legal principles applicable to the operation of s 63 of the Civil Procedure Act 2010 ('CPA').
2. Section 63 of the CPA permits the Court, subject to s 64, to give summary judgment in any civil proceeding if satisfied that a claim, or part of the claim, has no real prospect of success.
3. The principles relevant to the application of s 63 of the CPA were set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[5]

Upon the present state of authority:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

1. Section 7(1) of the CPA sets out the overarching purpose: 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'. The Court is required to have regard to this purpose in making any order or giving any direction in a civil proceeding.[6]
2. Section 64 of the CPA allows the Court to order that a civil proceeding proceed to trial if the Court is satisfied that, 'despite there being no real prospect of success', the proceeding should not be disposed of summarily because 'it is not in the interests of justice to do so' or because the 'dispute is of such a nature that only a full hearing on the merits is appropriate'.
3. In Re Milburn,[7] Zammit AsJ explained why the Court must exercise particular caution in summary judgment applications in Part IV matters:

When considering an application for summary judgment in a Part IV claim, the Court must be particularly cautious, in that Part IV claims tend to be of a type which may fall within s 64 of the CPA, as not being suitable for summary determination. That is because claims under Part IV of the Act involve the Court's evaluation of the testator's moral duty and the exercise of a discretion. As Mukhtar AsJ noted in Jackson v Newns, the exercise of such a discretion involves 'some value judgment' and means ordinarily family claims are best left to the trial to determine their sustainability. Mukhtar AsJ noted that summary disposal in this type of case is rare because facts in family claims are invariably in dispute to some appreciable degree, and a fair bit is, at large, in the field of discretion.

(citations omitted).

1. As Daly AsJ explained in Francis v Martin,[8] there is, however, no reason in principle why summary judgment cannot be granted in Part IV proceedings:

If the indisputable evidence shows that, for example, by reference to the statutory test and by taking the claimant's case at its highest and best, the claimant is not an eligible person within the meaning of s 90 of the Act, or it is clear that the distribution of the deceased's estate did not fail to make adequate provision for their proper maintenance and support, or, in the case of an adult child, that they are capable of providing for their own maintenance and support, then there may be little utility in proceeding to trial, given that the Court's jurisdiction to make an order for further provision could not be enlivened.

1. Section 90A(1) of the Act provides that an eligible person may apply to the Court for a family provision order. The plaintiff, as the spouse of the deceased, falls within paragraph (a) of the statutory definition of eligible person.[9]
2. Section 91 relevantly provides:

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

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

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

...

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

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

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

(ii) the operation of Part IA; or

(iii) both the will and the operation of Part IA.

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

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

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

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

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

1. Section 91A(2) of the Act lists the factors the Court may have regard to when making a family provision order once the requirements of s 91(2)(d) of the Act have been met, and the mandatory considerations in s 91(4) and s 91A(1) have been taken into account:

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

(i) the nature of the relationship; and

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

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

(i) the eligible person; and

(ii) any other eligible person; and

(iii) the beneficiaries of the estate;

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

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

(i) the eligible person; and

(ii) any other eligible person; and

(iii) any beneficiary of the estate;

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

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

(i) building up the estate; or

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

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

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

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

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

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

(m) any other matter the Court considers relevant.

1. The defendant accepted, for the purposes of the summary judgment application, all the plaintiff's evidence at its highest and best, and conceded the plaintiff is an eligible person to bring a claim under Part IV of the Act. The defendant's case is that the plaintiff's claim has no real prospect of success because she has failed to demonstrate any financial or other need.
2. The defendant said that the authorities support the proposition that financial need is an essential element for a claim for maintenance out of an estate. The defendant referred to the following authorities to make good that argument:

In MacEwan Shaw v Shaw [(2003)] 11 VR 95, Dodds-Streeton J said at [50]:

Victorian authority has held that although need is a relative concept, it must be shown in order to establish a claim. A moral claim alone will not suffice.

This was confirmed by the Court of Appeal in Fanning v Harding [2013] VSCA 208, in which Hansen and Tate [JJA] stated at 25:

...the needs of an applicant under Part IV is a relevant and important consideration and provides a threshold issue for the establishment of a claim.

The Court of Appeal confirmed this position again in Jones v Smith [2016] VSCA 178 by Ferguson JA (Whelan and Kaye JJA concurring) at 65:

In oral argument, counsel for Constance submitted that it is not necessary for an applicant for relief under s 91 of the Act to establish 'need'. I do not agree. The Victorian authorities make it clear that establishing need was essential under the Act as it stood.

The Court of Appeal yet again confirmed this position in Gash v Ruzicka [2023] VSCA 189 at [20]- [22].

In a recent case in which a claim by a domestic partner was dismissed, Moore J in Lennan v Chao [2025] VSC 220 reiterated the position regarding need at [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.

Where an estate is large, the Court may be more liberal as to what amounts to 'need'. However, the present case involved a modest estate (particularly after deduction of administration costs and liabilities and selling costs) and it is significantly smaller than the plaintiff's own assets. Moore J said in Lennan v Chao at [68]:

As a general proposition, it is correct that the authorities establish that a more liberal approach to what amounts to adequate provision for the proper maintenance and support of a claimant may be adopted where an estate is large and the claimants of the deceased's bounty are few. However, I do not consider that these principles are engaged in this case. Although an estate of $2.8 million is self-evidently substantial, in contemporary circumstances it is not in the same order as the estate which this Court has characterised as being 'large' so as to enliven the principles summarised by Hargrave J in Borebor v Keane.

In Francis v Martin [2024] VSC 340, the plaintiff was a single woman aged 66 with health issues and unable to work. She brought a claim against her father's estate which was valued for probate purposes at $7,871,612.63. A summary dismissal application was brought by the defendants on the basis of a lack of disclosure of her financial position and further that the evidence available demonstrated that she was a woman of considerable means. The summary dismissal application was successful on the basis that there was no real prospect of the plaintiff establishing that the deceased had failed to make adequate provision for her proper maintenance and support, and it would be a waste of the time and resources of the parties and the Court for the matter to proceed to trial.

Although a precise mathematical calculation is not used for the question of need, the moral obligation of a testator to their spouse has at the highest been said to require the testator to leave the surviving spouse with secure accommodation, an income stream and a fund to meet unforeseen contingencies[: Luciano v Rosenblum (1985) 2 NSWLR 65].

(footnotes omitted).

1. The defendant said the plaintiff's financial position is strong and secure and noted that the plaintiff had not deposed to any need. She summarised the plaintiff's position as being a 69 year old woman with:

(a) secure unencumbered accommodation with the ability to downsize and thereby further increase her nest egg;

(b) a nest egg of over $3,440,000 (noting no value has been included for the Highett property held in her superannuation);

(c) [a]n income stream of $174,000;

(d) [n]o dependants; and

(e) [n]o liabilities.

1. The defendant argued the Court's jurisdiction to award provision from the estate for the plaintiff's proper maintenance and support was not enlivened because, taking the plaintiff's evidence at its highest, the 'plaintiff's position cannot be said to be one of need on any interpretation'. According to the defendant, the plaintiff's financial position exceeded 'the highest moral obligation to a spouse' and left no gap requiring the testator to make provision for her. Furthermore, 'the estate is modest and the deceased has provided for [his] daughter, to whom he owed a moral obligation'.
2. The defendant submitted that '[i]n accordance with the overarching purpose of the CPA, the estate should not be exposed to protracted, expensive litigation' in circumstances where the plaintiff had failed to meet the threshold requirement of financial need. The defendant said it would be inappropriate for the Court to exercise its discretion under s 64 of the CPA to allow the matter to proceed to trial because, on the plaintiff's current evidence, her lack of need is evident without the need for cross-examination. There would therefore be no utility in allowing the matter to proceed to trial and to do so would be against the interests of justice.

1. Counsel for the plaintiff submitted, quoting MacMillan J in Re Christu, that '[t]he concept of need is relevant to considering whether the testator "made adequate provision for the proper maintenance and support of any claimant"'.[10] The authorities make clear that the concept of 'need' is a relative term,[11] 'not confined to economic need'.[12] Counsel argued that while establishing need is essential to a successful claim, the 'need' is not confined to financial need, and requires considerations that reflect a fair assessment of the claimant's just deserts.[13]
2. Counsel pointed out that Dodds-Streeton J in MacEwan Shaw v Shaw,[14] relied on the case of Hallam v Maxwell,[15] as authority for the proposition that:

Victorian authority has held that although need is a relative concept, it must be shown in order to establish a claim. A moral claim alone will not suffice.

1. In Hallam v Maxwell,[16] Hansen J stated:

Each case must depend on its own circumstances: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 576. Among these circumstances is the element of need, although that does not mean solely material need: White v Barron [1980] HCA 14; (1979) 144 CLR 431 at 457 per Wilson J. A moral claim alone is not sufficient to warrant an order for further provision: In re Anderson (1975) 11 SASR 276 at 283 per Zelling J.

1. The reference to White v Barron,[17] is to the following passage of Wison J's judgment:

The Privy Council in Bosch's case made it clear that what is 'adequate provision for proper maintenance' was not a question to be determined solely by reference to the material needs of the widow. All the circumstances, including the size of the testator's estate at the date of death and the style of life to which the widow had been accustomed during his lifetime, are relevant to this question. Generally speaking, it may be wrong in principle for a court to assume jurisdiction under this legislation in order to build up out of the estate of the testator the capital assets of an elderly widow. But conversely I do not think a wise and just testator would think it right for his widow to be required to draw on her own capital assets in satisfaction of her need of proper maintenance, especially when he had the means to protect her from the risk of financial anxiety in the future by a provision which enabled her to conserve her own capital.

1. Next counsel referred to the Court of Appeal's restatement of the relevant principles in the recent decision of Gash v Ruzicka:[18]

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 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.

(citations omitted).

1. In relation to the meaning of the words 'adequate' and 'proper', counsel referred to the judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse,[19] to argue that the totality of the relationship between the applicant is relevant:

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.

(citations omitted).

1. Counsel sought to rely on the Court of Appeal's judgment in Jones v Smith.[20] Here Ferguson JA's judgment sets out the legal principles relevant to Part IV claims under the Act, including:

'[t]he concept of "need" is relevant when considering whether the testator has made adequate provision for the proper maintenance and support of any claimant. However, 'need' is a relative concept and must be considered in all the circumstances of the case'.

...

As noted previously, the question of need is relative. So too is whether the provision that has been made is adequate and proper maintenance and support of Constance. Those matters were to be assessed in light of all the circumstances having regard to the factors in s 91(4)(e)-(p). It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant's assets and income are just two facts that go into the melting pot in determining whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant.[21]

1. Counsel submitted that the Court of Appeal's decision in Fanning v Harding[22] was the only decision that, citing MacEwan Shaw v Shaw,[23] explicitly tied the financial need of a claimant to the question of need:

With respect to the question of the financial needs of Fanning, the needs of an applicant under Part IV is a relevant and important consideration and provides a threshold issue for the establishment of a claim.

1. Next, counsel turned to the Court of Appeal's decision of Davison v Kempson,[24] submitting it was the most significant in understanding the threshold concept of need. The Court of Appeal, after referring to Dixon CJ's discussion of 'adequate' and 'proper' in Pontifical Society for Propagation of Faith v Scales[25] continued:

In deciding what is adequate and proper, the Court's discretion, while broad, is to be carefully exercised 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 '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.

(citations omitted).

1. In stating these principles, the Court of Appeal cited MacEwan Shaw v Shaw,[26] Hallam v Maxwell[27] and Unger v Sanchez,[28] among others.
2. In Unger v Sanchez,[29] Kaye J considered the principles relevant to claims under Part IV of the Act where the claimant was the niece of the deceased. Counsel particularly relied on the final paragraph extracted below. I have included the preceding paragraphs as I think they are instructive of the issues in this case:

One factor, which is relevant in determining the existence, and content, of the moral duty in particular, is the conduct of the applicant to the deceased during his or her life time. That consideration was at the forefront of the case presented for the plaintiff. It finds specific expression in subparagraph (k) of s 91(4), which directs the court to take into account any contribution (not for adequate consideration) of the plaintiff to the building up of the estate, or to the welfare of the deceased, or the family of the deceased.

In a number of cases, the courts have recognised that the nature and extent of the moral obligation of a deceased is measured by reference, inter alia, to the deserts of the claimant, which may derive from contributions made by the claimant to the deceased, or support and care given by the claimant to the deceased during his or her life time. In Goodman v Windeyer, Gibbs J (with whom Mason and Stephen JJ agreed) stated:

One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that gives the claimant a special claim on the testator's bounty... The claimant's conduct does not cease to be relevant if it has not been a financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided.

On the other hand, the courts have emphasised that, although the deserts of the applicant are relevant, it is not the role of the court to recast the testator's will, so as to provide a reward for meritorious conduct of the applicant. That proposition can be found in the judgments of three members of the High Court in Blore v Lang. In Goodman v Windeyer, Gibbs J referred to that principle, and continued:

It is of course perfectly true to say that the power of the court under this legislation is to order that proper provision be made for the maintenance of the claimant, and not simply to reward the claimant for past services, but those dicta cannot mean that, in determining what is proper provision in all the circumstances of a particular case, the fact that a claimant has been a loving, helpful or dutiful spouse or child can or should be ignored.

It follows that the role of the court, in a case such as this, is not to determine whether, in all the circumstances, the testator was under an obligation to reward the plaintiff for the care and devotion which she have to the testator and her husband in their latter years. Rather, the services given by the plaintiff to the testator, and to her husband, are relevant in determining the existence and the nature of any duty owed by the testator to the plaintiff to make adequate provision for her proper maintenance and support. A wise and just testator's views, as to what constitutes adequate provision for a claimant's proper maintenance and support, would relevantly be shaped, among other things, by the conduct of the claimant to the testator during his or her life time. On the one hand, what constitutes adequate provision for an indigent, but undeserving, offspring, may be dictated significantly, if not wholly, by the financial needs and circumstances of the claimant. On the other hand, what constitutes such provision for loyal and devoted child, who is not in dire economic straits, would involve considerations which are not limited to economic need, but which would reflect what, in all the circumstances, would be a fair assessment of the claimant's deserts.

(citations omitted and emphasis added).

1. Counsel submitted that the Act explicitly refers to the financial resources of applicants as one of a number of discretionary factors to which the Court may have regard.[30] In the case of an applicant spouse, however, the Court is not required to consider the extent to which the applicant is not capable by reasonable means of adequately providing for their own proper maintenance and support. Counsel said this supports the proposition that the financial resources of an applicant spouse will not act as a bar to a claim for family provision absent consideration of the surrounding circumstances.
2. Counsel said the plaintiff's need was established by the following:

(a) her relationship with the deceased;

(b) the care she provided to the deceased over the years he suffered ill health; and

(c) the financial and professional sacrifices the plaintiff made in order to care for the deceased.

1. Counsel submitted the plaintiff undertook the role of carer for the deceased for the majority of their relationship and that her responsibilities as carer were substantial. She provided that care to ensure that the deceased's life was enjoyable, prolonged and comfortable. As a result of her caring responsibilities, the plaintiff's career suffered because she had to reduce her hours of paid employment. As a consequence her cumulative gross wages over the years she provided care were reduced by an amount in excess of the deceased's entire estate. The deceased did not provide for the plaintiff in his Will. Counsel said that by virtue of the plaintiff's sacrifices for the deceased throughout their relationship, the Court should order provision from the estate for the plaintiff's proper maintenance and support. Accordingly, counsel said the plaintiff's claim had a real prospect of success.

1. The defendant's counsel submitted that the plaintiff did not identify, or rely upon, any financial need to support her claim for provision. The plaintiff contended that financial need is not an essential requirement for a family provision claim to succeed. In that regard, the defendant did not dispute that need is not confined to financial need. Rather, the defendant's case is that financial need remains an essential requirement of a claim for maintenance and support, the absence of which means a claim must fail. Non-economic considerations may widen or narrow the lens through which the Court determines if proper provision has been made for an applicant, but they do not remove the basic requirement for an applicant to show some level of financial need.
2. Counsel said that if the Court made an award in the absence of financial need it would extend the jurisdiction beyond its statutory purpose, being to provide maintenance and support for an eligible person. In considering whether 'adequate' provision has been made, the Court is required to consider the financial needs of an applicant. The Court also considers non-economic factors to determine what is 'proper' maintenance in the circumstances. It is the element of 'proper' provision that enables the Court to look at the scope of maintenance and support taking into account non-economic factors.
3. Counsel submitted that it is only after an applicant has satisfied the mandatory factors that the discretionary jurisdiction to award provision is enlivened. In this case, the plaintiff cannot meet the requirement to demonstrate that the distribution of the estate fails to make adequate provision for her proper maintenance and support because of her lack of financial need. The plaintiff is able to meet, from her own resources, the maximum provision that is reasonably required, being an unencumbered home, a nest egg and an income stream.
4. Finally, the defendant submitted that the starting point is always freedom of testation and that the Court is not permitted to rewrite a will by reference to abstract considerations of fairness.

1. The plaintiff in this case, being the spouse of the deceased, is an eligible person to make a claim for provision under the Act. I repeat that, under s 91(1) of the Act, the Court must not make a family provision order unless it is satisfied that:

(a) 'at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support';[31] and

(b) 'that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person', including by the terms of the deceased's will.[32]

1. There is no doubt that the deceased had a moral duty to provide for the plaintiff. The content of that moral duty is informed not only by the plaintiff's standing as the spouse of the deceased, but also by the loving a dutiful care she gave to the deceased over many years.[33] The evidence clearly shows that the plaintiff made significant professional and financial sacrifices to ensure that, after the deceased's health issues arose, his life was enjoyable, prolonged and comfortable. The question for the Court on a claim under Part IV is whether that moral duty has been breached. As Ferguson JA said in Jones v Smith,[34] that involves the Court considering 'what, in all the circumstances as at the date of death, a "wise and just" testator should have done'.
2. In a claim for provision under the Act the Court must determine the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the plaintiff. In other words, the Court must consider the relative concepts of 'adequate' and 'proper' in determining whether the deceased has fulfilled his moral duty to the claimant. As was explained by Mason CJ, Deane and McHugh JJ in Singer v Berghouse[35] and extracted above, the Court must assess whether the provision, if any, made for the claimant was inadequate for what, in all the circumstances, was the proper level of maintenance. The proper level of maintenance is that level which is appropriate for the claimant having regard to all the circumstances of the case.
3. As the authorities referred to above make clear, the concept of need is relevant to that assessment. Each case falls to be determined on its own circumstances because need is a relative concept which must be considered in light of all the circumstances of the case. In Singer v Berghouse,[36] Mason CJ, Deane and McHugh JJ explained those circumstances include the applicant's financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other people with legitimate claims upon the deceased's bounty. In White v Barron,[37] extracted above, Wilson J included 'the style of life' to which the widow-claimant had become accustomed during the deceased's lifetime as a relevant consideration. In Unger v Sanchez,[38] extracted above, the Court included the claimant's sacrifices made in the testator's behalf.
4. An assessment of adequate provision for a claimant's proper maintenance and support is relevantly shaped by the conduct of the claimant to the testator during the testator's life. The authorities caution, however, that although the deserts of a claimant are relevant, it is not the role of the Court to recast the testator's will to provide a reward for the meritorious conduct of a claimant.[39]
5. In this case, the plaintiff's counsel identified the plaintiff's need as established by:

(a) her relationship with the deceased;

(b) the care she provided to the deceased over the years he suffered from ill health; and

(c) the financial and career sacrifices the plaintiff made in order to care for the deceased.

1. In expressing the plaintiff's need in this way and in contending that it is not necessary for the plaintiff to demonstrate financial need, the plaintiff's counsel correctly conceded that, notwithstanding the plaintiff made significant professional sacrifices to lovingly care for the deceased, the plaintiff does not have financial need.
2. I cannot agree with the plaintiff's counsel's submission that the weight of the authorities do not require a claimant to demonstrate financial need. While the authorities explicitly say that the concept of need is not confined to financial need, the concept of need, as it is described in the authorities, necessarily includes some element of financial need. Without wishing to repeat what has been extracted above, I note that:

(a) Hallam v Maxwell[40] refers to need not meaning 'solely material need';

(b) MacEwan Shaw v Shaw[41] refers to a moral claim alone not being sufficient to establish need;

(c) In Gash v Ruzicka,[42] the Court of Appeal refer with approval to the trial judge's summary of the relevant principles as requiring an applicant to demonstrate need, but not being required to be destitute;

(d) In Jones v Smith, while Ferguson JA stated that need is a relative concept that required consideration of 'all the circumstances of the case', a close reading of the judgment shows that her Honour was satisfied that the circumstances involved in that case had led to the applicant for provision having 'significantly greater financial need than may otherwise have been the case';[43]

(e) In Davison v Kempson,[44] the Court of Appeal said need is not confined to economic need and that if circumstances permit, a testator should go beyond merely providing for the bare necessities of life; and

(f) In Unger v Sanchez,[45] Kaye J referred to what might be considered adequate provision for an indigent but undeserving child being dictated significantly or even wholly by the financial needs and circumstances of the child. On the other hand what might be adequate for a deserving child who is not in dire economic straights might involve considerations beyond mere financial need. In both examples, Kaye J linked financial need to the Court's assessment of adequacy.

1. For the plaintiff's counsel's submission to be correct that financial need is not required, it would require the Court to read words in the authorities like, 'not solely' or 'not only' as excluding the requirement for financial need. In my view that interpretation strains the clear meaning of the authorities that the concept of need is not limited to only financial need, but that some financial need must be present. So much is clear from the inclusion of words like 'destitute', 'indigent', 'bare necessities' and 'not in dire economic straights', which all refer to the financial needs of a claimant.
2. What constitutes financial need is relative to the particular circumstances of the case. It is not necessary, particularly in the case of a comfortable or large estate, for a claimant to be destitute. What constitutes adequate provision for a loyal and devoted spouse involves considerations which are not limited to but do include financial need. A fair assessment of a claimant's deserts is also a consideration. However, as the authorities make clear, that does not permit the Court to rewrite a will to conform with the Court's views of what is fair. In this case, it is also relevant that the estate is relatively modest and, accordingly, there is less money to go around.
3. I am satisfied that the factors identified by the plaintiff's counsel inform the existence and content of the deceased's moral duty to the plaintiff. Subject to demonstration of financial and other need, they would also be relevant to the Court's assessment of what is required for the proper maintenance of the plaintiff. In my view, the plaintiff has made a strong claim on the basis of the deceased's moral duty alone but has not demonstrated need. Put another way, notwithstanding the plaintiff's strong moral claim, she has not demonstrated that she is unable to adequately provide for her own proper maintenance and support. Unfortunately, the existence of a moral duty alone is not sufficient to found a claim under s 91 of the Act. It is beyond the power of the Court to rewrite the testator's Will to conform with general considerations of fairness or just compensation.
4. It follows that I am satisfied that, while the plaintiff made continued and considerable sacrifices to look after the deceased and ensure his life was comfortable and enjoyable, her claim for provision has no real prospect of success.
5. I am not satisfied that it would be in the interests of justice or otherwise appropriate to allow this matter to proceed to trial notwithstanding the plaintiff's claim has no real prospect of success under s 64 of the CPA. The plaintiff's absence of need and her comfortable financial position are clear on the face of the evidence and are unlikely to change at trial. The relatively modest size of the estate also means that to allow the matter to proceed further would unnecessarily deplete the estate and delay its administration.

1. For these reasons, I have decided to grant the defendant's application for summary judgment. It follows that the plaintiff's proceeding must be dismissed.
2. I request that the parties confer on the question of the costs of the proceeding. If the parties are unable to reach agreement within 10 days of the date of this judgment, the proceeding shall be relisted for submissions on the issue of costs.

[1] Administration and Probate Act 1958, s 91(2)(c)-(d).

[2] Civil Procedure Act 2010, s 63(1) (CPA).

[3] Ibid s 64.

[4] The earlier of the two affidavits said the plaintiff earned approximately $109,000 per annum; however, in her later affidavit, she deposed that she expected to earn $330,000.

[5] [2013] VSCA 158; (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA).

[6] Civil Procedure Act 2010, s 9.

[7] [2014] VSC 229, [34].

[8] [2024] VSC 340, [16].

[9] Administration and Probate Act 1958, s 90.

[10] Re Christu [2021] VSC 162, [17], quoting Jones (A pseudonym) v Smith (A pseudonym) [2016] VSCA 178, [38] (Whelan, Ferguson and Kaye JJA) (emphasis in original).

[11] MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, 104 [50] (Dodds-Streeton J).

[12] Davison v Kempson [2018] VSCA 51, [36] (Tate , Santamaria and Beach JJA).

[13] Unger v Sanchez [2009] VSC 541, [78] (Kaye J).

[14] [2003] VSC 318; (2003) 11 VR 95, 104 [50].

[15] [1998] VSC 131.

[17] [1980] HCA 14; (1980) 144 CLR 431, 457.

[18] [2023] VSCA 189, [20]-[22] (Kennedy, Walker JJA and J Forrest AJA).

[19] [1994] HCA 40; (1994) 181 CLR 201, 209.

[20] [2016] VSCA 178.

[21] Ibid [38], [66] (Ferguson JA, Whelan and Kaye JJA agreeing).

[22] [2013] VSCA 208, [25] (Hansen and Tate JJA).

[23] [2003] VSC 318; (2003) 11 VR 95.

[24] [2018] VSCA 51, [35]-[36] (Tate, Santamaria and Beach JJA).

[25] [1962] HCA 19; (1962) 107 CLR 9, 19.

[26] [2003] VSC 318; (2003) 11 VR 95.

[27] [1998] VSC 131.

[28] [2009] VSC 541.

[29] [2009] VSC 541, [75]-[78] (Kaye J).

[30] In their submissions, counsel said financial resources were a factor to which the Court must have regard. However, s 91A(2)(d) provides that financial resources are a discretionary factor.

[31] Administration and Probate Act 1958, s 91(2)(c).

[32] Ibid s 91(2)(d)

[33] Unger v Sanchez [2009] VSC 541, [76]-[78].

[34] [2016] VSCA 178, [37].

[35] [1994] HCA 40; (1994) 181 CLR 201, 209-10.

[37] [1980] HCA 14; (1980) 144 CLR 431, 457 (Wilson J).

[38] [2009] VSC 541.

[39] See, for example, Unger v Sanchez [2009] VSC 541, extracted above and the cases referred to by Kaye J therein.

[40] [1998] VSC 131.

[41] [2003] VSC 318; (2003) 11 VR 95.

[42] [2023] VSCA 189.

[43] [2016] VSCA 178, [67].

[44] [2018] VSCA 51.

[45] [2009] VSC 541.