Plaintiff v Defendants

2 The defendants' summary judgment application is pursuant to s 62 of the Civil Procedure Act 2010 (Vic) (CPA) and Rule 23.01 of the Supreme Court Rules.

3 To avoid confusion I will refer to the parties by their first names.

4 By originating motion dated 10 December 2010, Megan Story (Megan) seeks an order that provision be made for her proper maintenance and support out of Violet's estate. Megan claims that she is a person for whom Violet had a responsibility within the meaning of s 91 of the Administration & Probate Act 1958 (Vic) (the Act).

5 Violet is Megan's grandmother. Violet died on 10 April 2010.

6 The defendants, John Christopher Semmens (John) and Janet Helen Wile (Janet) are Violet's surviving children. Violet's third child Barbara Dawn Story, is Megan's mother. Barbara predeceased Violet.

7 Barbara had four children. Megan's siblings do not make a claim on Violet's estate.

8 Megan filed an affidavit sworn 27 April 2011 in support of her claim. Megan does not submit that there are more facts to be adduced by affidavit. Megan is legally represented. Her affidavit in effect contains the entire facts that Megan relies upon to make this claim at trial.

9 The defendants do not dispute the facts as deposed to in Megan's affidavit.

10 During submissions, I queried whether the summary judgment provisions contained in Part 4.4 of the CPA applied to this application. Having had the benefit of reviewing submissions from both parties, I am satisfied that s 62 of the CPA applies.

11 The test adopted in the CPA is similar to the tests adopted in the Federal Court[1] and in the United Kingdom.

12 Foster J, in Wang v Anying Group Pty Ltd[2] summarised the principles applicable to s 31A of the Federal Court of Australia Act 1976:

The critical words of s 31A(1), when applied to the present case, require me to be satisfied the respondents have " ... no reasonable prospect of successfully defending the proceeding ... ". The following principles may be extracted from the authorities:

(a) the moving party does not have to demonstrate that the defence is hopeless or unarguable;

(b) the Court must consider the pleadings and the evidence with a "critical eye" in order to see whether the respondent party has evidence of sufficient quality and weight to be able to succeed at trial (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAF 60; [2008] FCAFC 60; (2008) 167 FCR 372 at [23] (p 382) (per Finkelstein J);

(c) the respondent party is not obliged to present its whole case in order to defeat the summary judgment applicant but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b) (footnotes omitted); and

(d) the test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial.

13 A requirement of the new test for summary judgment under s 62 of the Civil Procedure Act is to show that the claim, defence or counterclaim, has "no real prospect of success". This is intended to be a liberalisation of the requirements for summary judgment. This new test was recommended by the Victorian Law Reform Commission:[3]

The threshold issue is whether there should be a liberalisation of the criteria for summary disposal of a claim or defence. On balance, the Commissioners concluded that the present requirements to show that there is no defence, or no cause of action, or no real question to be tried are unduly restrictive. Summary disposition should be available where a claim or defence has "no real prospect of success". This is arguably a more liberal test, is consistent with the rules applicable in some other jurisdictions, and a change in the formulation may encourage a more robust approach to be adopted by parties and the courts.

14 The language of the new test, "no real prospect of success", is cast differently and more liberally than the previous test for summary judgment adopting the well-known approach stated by Dixon J in Dey v Victorian Railway Commissioners;[4] that is, whether there is a real question to be determined.

15 In the recent decision of Jackson v Newns,[5] His Honour Mukhtar AsJ noted that in Spencer v Commonwealth,[6] which was concerned with the expression "reasonable prospect of success" in the Federal Act:

If it is to be faithful to its origin in the British Civil Procedure Rules means that a party must show more than a merely arguable case. That is, it would have to be a case which had a real prospect of winning.[7]

Megan's Affidavit in Support of her Part IV application

16 Megan was born on 9 November 1970. She is currently 40 years of age.

17 Megan's mother, Barbara Dawn Story, died on 19 March 2000.

18 Megan's affidavit tells an unremarkable story. She had a loving relationship with her parents and her relationship with her siblings was quite typical. At paragraph 11 of her affidavit Megan refers to her father having had an extramarital affair. Megan describers her parents' marriage of 30 years at that stage as being in serious trouble but goes on to describe how the situation resolved itself and that her parents were able to resolve the issues in their relationship and went on to live a very happy life together.

19 Megan's description of the relationship with Violet was of a fairly typical caring grandchild to grandparent relationship.

20 Megan's grandfather founded a company called Semac which specialised in household appliances. Megan describes a significant family dispute after her grandfather passed away when she was 19 years of age. Megan describes her grandfather's business as finding itself in some trouble. At the time, the family business was conducted by the John, Janet, Barbara, and Violet; all of whom were company directors.

21 After the grandfather's death, Megan's father offered some assistance to the business which meant that John would still be involved but not in charge. The offer was declined. Megan's mother and father had no control over the day to day running of the business. Her mother resigned from the board of directors. Megan says that this caused considerable family friction.

22 At paragraph 32 of Megan's affidavit she refers to a meeting her father had with Janet after Violet's funeral. Megan deposes that Janet stated that Violet never forgave her father about the affair and that she changed the will shortly after Barbara's death.

23 Megan describes a memorable conversation she had with Violet on Violet's eightieth birthday some two months after Megan's mother passed away. On this occasion Violet took her aside and explained how terrible the situation was for Megan and her brothers and sisters to be without their mother and expressed with much anguish, the terrible emotional burden of outliving her daughter.

24 Megan continued a relationship with her grandmother after her mother's death. This included on occasion running small errands for her grandmother and visiting her grandmother when she was in hospital and in a nursing home. Megan describes how her uncle had found a nursing home for Violet but that there was some difficulty with the bond money. Megan asked her father if he could assist. Megan believes that her father contacted John but that her father's help was not required.

25 Megan completed a civil engineering degree at RMIT. She works as an engineer for a consulting engineering company. Megan's present salary is approximately $150,000 per annum inclusive of superannuation. Megan owns her own house in Thornbury which is valued at approximately $750,000. She purchased that house approximately eight years ago.

26 The house is presently encumbered with a mortgage securing a loan of $235,000. Megan has accumulated superannuation entitlements of approximately $100,000 and has approximately $5,000 in a savings account. She owns a 1996 Honda CRV motor vehicle valued at approximately $5,000.

27 Megan lives alone at her Thornbury property. She has a partner and that relationship has spanned approximately eight years. They do not live together or share finances or have any children.

Ian Redvers Maclaine Morrison's Affidavit filed on behalf of the defendants

28 The only other affidavit filed in the proceeding is that of Ian Redvers Maclaine Morrison sworn 3 August 2010. Mr Morrison acted as Violet and her husband John Semmens' solicitor from the early 1970s until their respective deaths.

29 Mr Morrison deposes to the fact that he is unable to locate a copy of Violet's penultimate will but that he clearly recalls the circumstances surrounding the instructions for it, its contents and its execution.

30 At paragraph 4 of his affidavit Mr Morrison deposes that within one year of Barbara's death, Violet telephoned him with a request to call on her at her home in Carnegie and take instructions for a new will. When he attended on Violet she was alone in her house and he was instructed to prepare a will that appointed her son John and her daughter Janet executors and to divide her estate equally between them with substitutional gifts-over to their children should either predecease her. There was no provision made for Barbara's children.

31 Mr Morrison deposes that Violet revoked that will and that the sole reason for preparation of the last will as explained to him by Violet was that after discussion between her and her two children, they had agreed the two houses she owned should be specifically devised and at the time of making the will each was of approximately the same value.[8]

32 At the time of the last will, Mr Morrison considered that Violet had very poor eyesight and hearing but was clear of mind and he had no doubt of her capacity or her ability to make dispositions of her assets rationally.[9]

33 Violet left an estate worth approximately $2.3 million. By her last will, Violet left her estate as follows:

(a) the Carnegie property to John, valued at approximately $900,000;

(b) the Sorrento property to Janet, valued at approximately $725,000; and

(c) the residue consisting largely of shares and a nursing home deposit worth approximately $700,000 to John and Janet in equal shares and if either of John or Janet predeceased Violet to their children.

34 Jurisdiction to make an order under Part IV of the Act is dependent upon being satisfied that the deceased had a responsibility to make provision for the applicant and also upon being satisfied that the will does not make adequate provision for the proper maintenance and support of the applicant.[10]

35 Section 91(4)(e)-(p) specifies 12 matters to which the Court must have regard in determining, first, whether the deceased had a responsibility to make provision for the applicant, secondly, whether the distribution of the estate of the deceased person affected by the will, makes adequate provision for the proper maintenance and support of the applicant, and thirdly, the amount of provision (if any) which the Court may order for the applicant.

1. Whether Violet had a "responsibility" to make provision for the "proper maintenance and support" of Megan.
2. Whether, in her will, Violet failed to make adequate provision for the proper maintenance and support of Megan, pursuant to that responsibility.
3. If so, the amount of provision (if any) which the Court should order to be made out of Violet's estate for the proper maintenance and support of Megan.

37 The defendants submit that as a general rule a grandparent does not have a responsibility to make provision for a grandchild. Such a moral obligation rests on the parent of the grandchild.[11]

38 The defendants referred to the decision of Harris v Bennett (No 1),[12] in which McDonald J refused to summarily dismiss the claim by a grandchild on the basis that it could not be said the claim was bound to fail. In that case the plaintiff was an infant who brought the proceeding by her litigation guardian. The infant had a learning disability; the infant's father, the son of the deceased, had rejected her and the infant's mother was a nurse earning $45,000 per annum with minimal assets. The defendants submit that the case of Harris v Bennett is in stark contrast to the present case and can be distinguished on the basis of its facts.

39 The defendants relied on the decision of Dodds-Streeton J in MacEwan Shaw v Shaw[13] and submit that a number of principles can be distilled from the MacEwan Shaw case in relation to claims by grandchildren:

(a) Usually, the moral obligation to provide for a grandchild rests on the child's parents, not the grandparents.

(b) The mere fact of a family relationship between grand parent and grandchild does not of itself establish responsibility to provide for the grandchild.

(c) Generosity by grandparent to a grandchild, including contributions to the education of the child, does not convert the grandparental relationship into one of obligation to the recipient.

(d) The fact that the grandchild resided with one or more of his or her grandparents is a most significant factor. If the parent provides shelter, accommodation, food and clothing then the Court is most unlikely to find that a deceased grandparent assumed responsibility to provide in his or her will for the grandchild.

(e) If the deceased grandparent is survived by his or her spouse, the spouse's claim to the estate of his or her late spouse would normally be paramount over any claim the grandchild might have.

(f) Where a grandchild has lost his or her parents at an early age, been taken in by the grandparents in circumstances where the grandparents assume the role of surrogate parents, and the parents die when the child was still dependent upon them, these factors would prima facie give rise to a claim by a grandchild to be adequately provided for out of the estate of the deceased grandparent.

(g) The fact that the parents, or either of them, of a grandchild has predeceased the grandparent may be a relevant factor in support of the claim made by a grandchild.

40 The defendants referred to the decision of Mandie J in Petrucci v Fields[14] in which his Honour confirmed the overarching principle that grandchildren can neither be ruled in nor ruled out until all the facts are examined.

41 In Petrucci's case the applicants were the daughter-in-law of the deceased and the widow of the deceased's son who predeceased the testator. The second, third and fourth plaintiffs were all grandchildren of the deceased. At the time of the application the grandchildren were 35 years of age, 30 years of age and 28 years of age. In Petrucci's case his Honour, when considering whether the deceased had a responsibility to make provision for the plaintiff grandchildren made the following observations: they were adults, they had never been dependent on the deceased, they were all in employment and two of them had spouses who were themselves in employment. Their relationship was at best unremarkable.[15] From paragraph 65 his Honour said:

In the present case, the plaintiff grandchildren had a normal relationship with the deceased until the death of their father, but not a special dependent relationship. They do have, I think, a clear need for some provision for their long term security. They will probably not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and contingencies of life for themselves. In addition, as I have said, they have lost any possibility of immediate or continuing support from their father. In that context, according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provisions for them.

I consider that a wise and just testator would not have been bound to make any provision for the immediate needs of the grandchildren. However, I think that a wise and just testator would, looking at the family line constituted by the first plaintiff and her adult children, and considering the loss of their husband and father, conclude that he had a responsibility in the particular circumstances to make some provision for the grandchildren's future needs.

42 The defendants submit that the plaintiff is able to look after herself financially and is "well insulated against the vicissitudes or uncertainties of life ahead."

43 The defendants rely on the fact that Violet made a considered decision in relation to her obligation towards Barbara's children including Megan. Violet prepared her penultimate will in 2002 at which time provision was not made for Megan or her siblings. The defendants submit that the will appears to be one of a wise and just testatrix acting sensibly in all the circumstances.

44 The defendants made submissions in relation to ss 91(4)(e) to (p).

(e) Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.

45 There was nothing remarkable about the relationship between Violet and Megan. Violet was not in loco parentis for Megan.

(f) Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.

46 Violet does not owe any obligation to Megan. Violet did not assume any responsibility for Megan while she was alive. Megan was a self-made successful university graduate practising as a civil engineer and is gainfully employed. Megan has no dependents. This is in contrast to the two beneficiaries under the will who are Violet's two remaining children. The two beneficiaries are persons for whom Violet had a responsibility to provide.

(g) The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject.

47 Violet has left an estate with a net value of over $2 million.

(h) The financial resources including earning capacity and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.

48 Megan's current salary is $150,000 per annum, she owns a house valued at $750,000 (mortgage of $235,000). She has superannuation of $100,000 and this would be expected to grow substantially in the next 20 to 30 years. Megan has savings of $5,000. She lives alone but has a partner and they do not share finances.

49 In essence, the defendants submit that Megan is financially independent and it is likely that she will continue to work and earn good money for at least another 20 years. The defendants submit that Megan's financial position is very good and she does not appear to be in any need whatsoever. This is to be contrasted with the two beneficiaries who are more advanced in years and their financial need is likely to increase in the years ahead.

(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate.

50 There were no matters applicable to this sub-section.

(k) Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased.

52 Megan has not made any contribution to the building up of the estate or the welfare of Violet or Violet's family. John and Janet cared for Violet in her later years. They ensured funds were available so that Violet was put in good care at Broughtonlea. They made sure Violet's needs were met.

(l) Any benefits previously given by the deceased person to any applicant or to any beneficiary.

(m) Whether the applicant was being maintained by the deceased person before the person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.

54 The defendants submit that it is incongruous that Megan now sees Violet as a person who had a responsibility to provide for her yet she did not seek it nor was she given any formal support or assistance from her grandmother during her life.

(n) The liability of any other person to name the applicant.

(o) The character and conduct of the applicant or any other person.

56 The defendants submit that there was nothing relevant under this sub-section but considered that Megan's claim appears to be an opportunistic claim.

(p) Any other matter the Court considers relevant.

57 The issue of Barbara predeceasing Violet is not compelling. There is no evidence of any loss which Megan has suffered as a result of this.

58 Megan relied upon the decision in Anderson v Teboneras,[16] in which His Honour Ormiston J considered the meaning of "maintenance and support" in the context of a Part IV application brought by an "ex nuptial son" of the deceased. The decision of Anderson v Teboneras pre-dates the amendments to Part IV of the Act. In Anderson's case it was submitted that the plaintiff had no right to further maintenance and support and that even if he could make out some claim for further provision for his "advancement in life" that was not a basis for the exercise of jurisdiction in Victoria. His Honour said:

The natural meaning of the word "support" is at least as wide as "advancement in life", but, even if it were not, the combined expression "maintenance and support" has been given so consistently wide an interpretation by the High Court that apparent distinctions between the criteria for the exercise of the Court's jurisdiction in the various States should be seen as insignificant. An exact interpretation may not have been given to each of the words used in several Acts, but this is indeed an area of law in which the purposes of interpretation of that legislation has been accepted for many years by the High Court. It follows that, in so far as the plaintiff may have made out some claims that the testator overlooked his moral obligation to make provision for the plaintiff's advancement in life, such a claim can properly be comprehended by the requirement in the Victorian Act for adequate provision for his proper maintenance and support.[17]

59 Megan submits that when the Court is looking at whether provision has been made for the proper maintenance and support of an applicant, the Court is required to look at the overall financial picture of the applicant and project into the applicant's financial future.

60 While Megan's present position can be described as comfortable, it is not known what her position will be in the future. It is not possible to account for the contingencies of life or that Megan will always be able to provide for herself in the future.

61 Megan refers to the dispute following her grandfather's death and the family friction relating to the family business and her father's extramarital affair. Megan submits that the relevance of this evidence is that at trial it will need to be tested whether Violet's will was that of a wise and just testatrix or whether these events affected her judgment. The evidence is not contradicted at this stage by the defendants.

62 Megan submits that there is no material before the Court demonstrating what John and Janet's financial needs are at the moment.

63 Megan argues that the ordinary community standards are such that where a person outlives their children that ought to give rise for provision of the issue. Whilst the factors set out in ss 91(4)(e) to (p) must be taken into account by the Court when considering whether the testator had a responsibility to make adequate provision for a claimant, the ultimate question that the Court is required to answer is what a wise and just testator would have done in the circumstances.

64 Megan relies upon the decision of Petrucci v Fields.[18] In that case, Mandie J considered that the deceased had no special responsibility of duty to the plaintiffs other than what existed merely by virtue of the deceased being the father-in-law or grandfather of the plaintiffs. His Honour considered that the testator's responsibility to the beneficiaries of his estate was greater to the extent that they were his surviving children as compared to the claimants who were his daughter in law and grandchildren.

65 Megan submits that in this case, as in Petrucci's case, while there may not have been a special responsibility of duty to Megan there was one that existed merely by virtue of Violet being Megan's grandmother. While Violet's responsibility to the beneficiaries of this estate may be greater, that does not mean there is no responsibility owing to Megan.

66 At paragraph 41 of Petrucci's case Mandie J noted that the children of the testator were entitled to expect that the deceased's freedom of testation should be respected. However, he noted that the estate was large enough to make some provision for the plaintiffs if they satisfied the statutory requirements.

67 Megan submits that this is a large estate valued in excess of $2.4 million and that provided she meets the statutory requirements, provision should be made out of her grandmother's estate.

68 At paragraph 55 in Petrucci's case His Honour noted that the grandchildren plaintiffs while adults, lost the benefit of any support from their father and in all probability, the long term benefit of the same shared inheritance. Megan submits that the same comments are applicable in this case. If Megan's mother had not predeceased Violet, her mother would have taken the benefit of the estate and Megan may have had the long term benefit of the inheritance.

69 Megan submits that financial need alone does not disqualify her from a finding that provision should be made for her out of her grandmother's will. Mr Wells, Megan's counsel noted that he was unable to find any authority where a plaintiff was disqualified from obtaining provision in a Part IV application solely on the basis of their financial position.

70 Mr Wells referred to the decision of J. Forrest J in Berkelmans v Bulach.[19] That was an application by an adult daughter of a testator for provision out of her mother's will. His Honour found that the testator had a moral obligation giving rise to responsibility under s 91(4) of the Act to make provision for an adult daughter. In Berkelmans case his Honour referred to the decision of Ormiston J in Collicoat and ors v Macmillan and anor,[20] in which his Honour said:

That "moral obligation", as described in Re Allen and many later cases, 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.

71 In Berkelmans' case the evidence was that Mr and Mrs Berkelmans jointly had assets consisting of four properties valued in total at $1,325,000. Two of the properties were rented out. Upon her retirement, Mrs Berkelmans had a superannuation entitlement with present value of approximately $188,700 and there was joint savings of $36,382 with equities of approximately $16,000.

72 Mrs Berkelmans was a teacher and at the time of the application was 57 years of age. His Honour, from paragraph 57, said:

The Act mandates an examination not only of the current financial position of the applicant, but "for the foreseeable future". It is inevitable that Mrs Berkelmans, who has worked as a teacher for over 35 years, will retire in the near future. Once she does so, her sole income (and therefore the predominant source of income of the family) will be her superannuation benefit and income from the rents of the units. ...

1. As events of the past 18 months and the "GFC" have demonstrated there is nothing certain in relation to returns from superannuation investments or, for that matter, any investment.

73 Megan submits that the question of financial need is a relative concept and that the Court should have regard to present needs and the foreseeable future. Megan submits that in the event that she were to lose her job, there is no guarantee that she could maintain herself for her whole life.

74 Mr Wells referred to the decision of Unger v Sanchez.[21] In Unger's case the plaintiff was not a member of the testator's family. The plaintiff cared for the testator and the testator's husband in later years of their lives. The Court considered that the relationship was akin to parent and child. In Unger's case the plaintiff was 66 years of age. There were competing claims and the estate was valued for probate purposes at $1,718,985. At paragraph 96 His Honour Kaye J noted:

Bearing those matters in mind, I turn to consider the financial means and resources of the plaintiff. I have already set out, in some detail the present financial position of the plaintiffs. In summary the plaintiff's half interest in a home in Caulfield is worth $500,000. She has other assets including her interests in two houses, her accrued superannuation entitlement, her shares in Caulfield Floors Pty Ltd ... , and cash, worth approximately $1,000,000. She has a low income. She has ceased earning a wage from Caulfield Floors Pty Ltd, her annual income, from rent and interest, is a little over $10,000. However her superannuation fund is being converted into a pension fund, and therefore her income will increase.

Overall the plaintiff may be considered as being reasonably comfortable from a financial point of view. She has financial security, in that she and her husband own their home, she has a half interest in two residential investment properties and she has a healthy superannuation entitlement. On the other hand, she does not have significant liquid assets and she only has a small income.

75 His Honour went on to note that the plaintiff was not in a position of financial need:

However as the authorities make plain, it is not necessary for the plaintiff to be indigent, or in difficult financial circumstances, to qualify for provision under Part IV of the Act. Indeed, such a proposition will not give appropriate weight to the adjectives "adequate" and "proper" in the formulation of the duty of the testator.

76 His Honour found that the plaintiff's financial position did not negate the obligation of the testator to make adequate provision for her. In doing so his Honour took into account the plaintiff's relationship with the testator and noted "her exceptionally strong desserts".

77 His Honour considered the dedication of the plaintiff to the testator and her husband as quite extraordinary and noted the extent of self-sacrifice made by the plaintiff on their behalf.

The defendants' response to the plaintiff's submissions

78 In summary, the defendants submit that the decisions in Berkelmans and Unger can be distinguished. In Berkelmans' case it was an adult daughter who had made an application and the defendant argues that this puts the plaintiff in Berkelmans' case as one where there is an automatic moral duty to provide.

79 In relation to Unger's case, the defendants submit that the relationship between the plaintiff and the testator was akin to a parent/child relationship and that his Honour placed considerable weight on the nature of the dedication of the plaintiff to the testator and her husband.

80 The defendants accepted that grandchildren cannot be ruled in or out but rather that the circumstances of each case must be examined. The defendants submit that when the Court examines the facts and evidence in this case it is bound to fail.

81 I am significantly guided by the decision of His Honour Mandie J in Petrucci's case. His Honour considered that a conclusion that the plaintiffs were persons for whom the deceased had or did not have the responsibility to provide did not automatically flow from a consideration of the list of criteria set out in s 91(4)(e) to (p). His Honour concluded in that case that it was not possible to say that the criteria "are satisfied" or "are not satisfied". The obligation of living parents to provide for their children does not necessarily negate the moral responsibility of a grandparent to make provision for the maintenance and support of those grandchildren out of his estate.

82 In essence, a duty by a grandparent can develop depending on the circumstances. Given the facts of this case even under the more liberal terms of the new test, I'm not satisfied that Megan's claim has no real prospect of success.

83 Megan had a normal loving relationship with Violet up to the time of her mother's death and after her mother's death.

84 Megan has lost any possibility of immediate or continuing support from her mother. As noted by Mandie J in Petrucci's case it is open for a court to find that according to prevailing community standards and as a matter of moral responsibility to them, Violet ought to have made some provision for Megan.

85 It may be that a wise and just testator would not have been bound to make any provision for Megan's immediate needs. However, it is more than arguable that a wise and just testator would, having considered the loss of Megan's mother, and concluded that Violet had a responsibility in the particular circumstances to make some provision for Megan.

86 True it is that Megan's current financial position is comfortable. However, as noted by J. Forrest J in Berkelmans v Bulac,[22] and Kaye J in Unger's case,[23] it is not necessary for the plaintiff to be indigent, or in difficult financial circumstances, to qualify for provision under Part IV of the Act.

87 The power to order summary judgment is one that should be exercised with great care.[24] I am not satisfied that there is a high degree of certainty about the ultimate outcome of this proceeding if it is allowed to go to trial in the ordinary way. To my mind there is a real question as to whether Violet had a moral responsibility to provide adequate provision for her granddaughter in circumstances where Barbara has predeceased Violet.

88 Further the fact that Megan is financially comfortable does not preclude a finding in her favour.

89 Accordingly, I dismiss the defendants' application for summary judgment.

[1] Section 31A of the Federal Court of Australia Act 1976.

[2] [2009] FCA 1500 at [43].

[3] Victorian Law Reform Commission, Civil Justice Review Report, Report No 14 (2008), p 355 at 10.7.

[4] [1949] HCA 1; (1949) 78 CLR 62.

[5] [2011] VSC 32.

[6] [2010] HCA 28; [2010] 241 CLR 118 at p. 399 at [54].

[7] Jackson v Newns [2011] VSC 32 at [7].

[8] Affidavit of Ian Redvers Maclaine Morrison sworn 20 May 2011 at [6].

[10] Sections 91(1) and (3) of the Administration and Probate Act 1958.

[11] Sherlock v Guest [1999] VSC 431.

[12] [2002] VSC 139; [2002] 8 VR 411.

[13] [2003] VSC 318; (2003) 11 VR 95.

[14] [2004] VSC 425.

[15] [2004] VSC 425 at [62].

[16] [1990] VicRp 47; [1990] VR 527.

[17] Anderson v Tebonaris [1990] VicRp 47; (1990) VR 527 at p. 537.

[18] [2004] VSC 425.

[19] [2009] VSC 472.

[20] [1999] 3 VR 803 at p. 818.

[21] [2009] VSC 541.

[22] [2009] VSC 472.

[23] Unger v Sanchez [2009] VSC 541.

[24] Spencer v The Commonwealth [2010] HCA 28; [2010] 241 CLR 118 at pp. 131-2.