Plaintiff v Defendants

2 Probate of the Will was granted to the defendants on 1 November 2017. The Will:

(a) appointed the defendants to be executors of the Will and trustees of the estate;

(b) devised the entire estate to the trustees on trust for sale and to divide the net proceeds of sale into three equal parts;

(c) paid or transferred two parts to Glenda for her own use and benefit absolutely; and

(d) paid or transferred one part to Roseann for her own use and benefit absolutely.

3 Roseann made application for further provision from the estate.

4 It was not in dispute that Roseann is a child of the deceased and an eligible person in accordance with s 90 of the Administration and Probate Act 1958 (Vic) ('the Act') or that the deceased had a moral duty to provide for Roseann's proper maintenance and support as set out in s 91(c) of the Act.

5 The issues to be determined in this proceeding were:

(a) whether the provision for Roseann under the Will failed to make adequate provision for her proper maintenance and support; and

(b) if so, the degree to which further provision ought be made to Roseann from the estate for her proper maintenance and support.

6 Evidence was received by tendered affidavits and only the plaintiff and the first defendant were cross-examined.

7 The plaintiff relied on the following affidavits:

(a) Roseann Firth sworn 23 March 2018 and 12 October 2018;

(b) Graeme Leslie Firth sworn 12 October 2018. Mr Firth gave some limited oral evidence updating his financial position and that of his company; and

(c) Lindy Michelle Powell sworn 12 October 2018.

8 The defendants relied on the following affidavits:

(a) Glenda Mary Reeves sworn 21 June 2018; and

(b) Julia Helen Bayston sworn 19 July 2018 and 30 April 2019.

9 The present value of the estate is approximately $8.15 million. It consists of:

(a) $3,423,006.57 being the proceeds of sale of 6060 Hamilton Highway, Cressy as at 30 April 2019, deposited in an interest bearing controlled monies account;

(b) $707,864.21 being the balance of a Commonwealth Bank Pensioner Security Account as at 1 April 2019;

(c) $4,408.33 being the balance of the Adelaide Cash Management Account with Sandhurst Trustees as at 1 April 2019;

(d) $215,000 invested in mortgages administered by Clarke and Burwood Lawyers;

(e) $792,517.36 being the value of a share portfolio with Patersons Securities Limited as at 1 April 2019; and

(f) $3,170,353.95 being the balance of the North Portfolio investment administered by Littley Financial Services.

10 Roseann is 63 years old. She worked for most of her adult life, apart from taking time out of the workforce to raise her two daughters. She retired in December 2017, from working as a bookkeeper for her husband's business. With her husband, Graeme Firth, she has two daughters (Lindy and Joanne) and five grandchildren.

11 The family relationship was somewhat affected when Roseann's youngest daughter married on 28 May 2008. Glenda was not invited to the wedding, and as a result the deceased decided not to attend. Roseann believed this caused tension between herself and Glenda, and that their relationship has remained strained ever since. She also believed that this led to the deceased changing her Will in 2008, as all previous wills, she submitted, had divided the estate equally between her daughters.

12 The tension between Roseann and Glenda did not affect Roseann's relationship with her mother. Both Roseann and Glenda remained close to their mother until she died. Roseann visited her weekly, and spoke to her on the phone regularly. On her weekly visits she would sometimes bring her husband, Graeme, or daughters and take the deceased shopping or out to a café. The visits normally took about half a day. As her mother's mobility declined, the visits were confined to the nursing home.

13 Glenda looked after the deceased's financial affairs. Roseann had looked after their father's financial affairs and care arrangements towards the end of his life.

14 Glenda never asked Roseann for additional assistance with caring for her mother, or indicated she was unhappy with what Roseann did for their mother.

15 Roseann recounted an occasion when Glenda went on an overseas holiday without telling Roseann. Roseann went out of town one weekend that Glenda was also away. Unfortunately during that weekend the deceased had a fall and was hospitalised. Neither daughter could be contacted. Had she known Glenda would be away, Roseann said she would not have been absent that weekend. When she visited her mother in hospital, her mother said Glenda had told her not to tell Roseann that Glenda was going overseas.

16 During Roseann's visits, her mother would express frustration that 'Glenda would not tell her anything about her finances'. Glenda had power of attorney for the deceased. The deceased said she didn't know if she still owned various properties, and 'felt she could not ask Glenda about anything because Glenda became upset'. The deceased expressed concern about Glenda's management of her finances but said she didn't want to upset Glenda by asking questions.

17 Roseann was then not aware of the terms of her mother's Will, and didn't know when it was last updated. She offered to arrange for her mother's solicitor to visit her if she needed to prepare a will or sort out any financial arrangements but her mother said she 'would have to sort it out with Glenda first because she did not want to upset Glenda'.

18 In the last few years of the deceased's life, she said to Roseann and Lindy that she needed to 'fix up some paperwork' even though 'Glenda wouldn't like it'. Glenda denied that the deceased wanted to change the Will.

19 Lindy regularly visited the deceased, sometimes with her mother, sister, and their five children. During her visits, the deceased would often tell Lindy that Glenda would drop in before dinner, rummage through the deceased's things, and leave shortly thereafter.

20 The deceased would often speak about her personal affairs, including medical and financial matters, with Lindy, sometimes while 'teary'. She told Lindy that she had to ask Glenda for information about her financial affairs and didn't like having to do that. She said she had no information about her financial affairs except what she was told by Glenda, and was concerned about Glenda's management of her finances but said she didn't want to upset Glenda by asking questions about her affairs.

21 The deceased would tell Lindy that she didn't have any money to pay for a coffee, or buy gifts for her grandchildren, as Glenda would not give her spending money or let her have access to her money. This would distress the deceased. Roseann would sometimes buy presents on the deceased's behalf to help avoid this distress.

22 Glenda disputed this account. She said that if her mother ever requested money she would provide it. Additionally, her mother kept her purse in a safe in her room at the nursing home. Glenda would check it regularly and keep it stocked with about $50 in small denominations. In later years, as the deceased's eyesight declined, these arrangements were run through the nursing home's office petty cash. The office would make arrangements to pay for social outings, the deceased's hair appointments and like expenses. If the deceased ever needed cash, she could ask for it from the office.

23 On a number of occasions the deceased told Lindy that she 'wanted things to be fair between her two girls'. On one occasion in particular, the deceased reiterated this and said 'she wanted things to be fair with everything to go equally to her daughters'. She appeared upset, and Lindy offered to take her to see a solicitor 'if she was concerned about whether things were fair or not'. The deceased responded 'I just don't think I can at the moment. I don't want to upset Glenda. I need to talk to her first'. The following week, and on a number of subsequent occasions, the deceased said to Lindy that she wanted everything she had to be passed to her daughters '50/50'.

24 Roseann and Graeme own their own home outright, and estimate its value at around $850,000. The house was purchased with a loan which has been repaid, predominantly from income from Graeme's business. They intend to live in this house for the foreseeable future, however their home is 'somewhat dated and is in need of some renovations'. Roseann estimates the cost of these renovations to be approximately $100,000, and would include replacing windows, replacing and upgrading the bathroom and kitchen, polishing the floorboards and replacing carpets, as well as making the home more accessible as she and Graeme grow older. While Roseann expects both herself and Graeme will need to move to a retirement or nursing home at some stage, she has not investigated the cost of doing so.

25 Graeme currently runs a trucking business through Seafirth Holdings Pty Ltd ('Seafirth'). Prior to this, he operated a neon sign business, however he was forced to close that business in 1990 as a result of the recession. To cover debts secured by their home after the closure of Graeme's business, they borrowed approximately $164,000 from the deceased's brother, Herbert. This was secured by a registered mortgage over their home. From time to time they made repayments on this loan directly to the deceased, who controlled Herbert's financial affairs and inherited his estate on his death.

26 Seafirth earns approximately $8,000 per week with roughly equivalent expenses, breaking even on a cash basis but accruing losses through depreciation on equipment. It has approximately $500,000 in accumulated losses. As at 12 October 2018, it had the following assets:

(a) a prime mover (with about $15,000 in equity);

(b) a rigid truck (with about $20,000 in equity);

(c) a Holden Colorado (with about $7,000 in equity);

(d) a fully-owned semi-trailer worth approximately $12,000.

27 It also had, as at around 10 May 2019, $7,302.09 in its cheque account and $377.44 in its cash management account.

28 Since 17 November 2010 Graeme has loaned Seafirth $216,500, some of which came from his inheritance from his mother, $85,462 of which has been repaid. Seafirth is currently unable to repay the balance of $131,038.

29 Graeme does not earn any money from his business, but it provides him with a vehicle (for which he pays the running costs), and provides himself and Roseann with mobile phones and an internet account which are used for both business and personal use. As he operates the business from their home, electricity and gas bills for their home are paid by Seafirth.

30 Seafirth's weekly expenses include repayment of vehicle finance. If work continues at its current pace, Graeme expects both trucks to be owned outright by the end of 2019. These can then be sold to repay at least part of the loan from himself to Seafirth referred to above.

31 As at 9 May 2019 Graeme had superannuation of $177,963.89 from which he draws a fortnightly pension of $769.23. His other assets are:

(a) his interest in the home he owns with Glenda;

(b) a caravan valued at approximately $40,000;

(c) a boat valued at approximately $20,000; and

(d) approximately $315 in a bank account.

32 Graeme has an acquired brain injury which predisposes him to dementia. As a result he expects that he will need care, and more expensive care, sooner than he otherwise would have. He currently experiences short term memory loss and has no sense of smell.

33 Roseann and Glenda's father died on 29 May 2000. His estate was left to Roseann and Glenda in equal shares of approximately $250,000 each. Roseann used about $150,000 to repay the balance of the loan from Herbert, which had by that time passed to her mother as the inheritor of Herbert's estate.

34 As at 9 May 2019 Roseann had a total of $22,503.63 in two bank accounts, being money she received from her father's estate. She also had shares worth approximately $83,435.58 purchased using money from her father's estate, and $224,014.66 in superannuation, from which she draws an income of $700 per fortnight. The balance of the money Roseann inherited from her father was used to buy a car - a Kia worth approximately $15,000 - for living expenses, and works on their house.

35 The pensions drawn by Roseann and Graeme are their only regular income, and do not meet their living expenses. They supplement this income by drawing on Glenda's savings.

36 In late 2014, their youngest daughter, Joanne, was diagnosed with follicular lymphoma, an incurable cancer. In 2017, Joanne was also diagnosed with Large B Cell aggressive lymphoma and required urgent chemotherapy. Roseann has assisted Joanne by looking after her children, grocery shopping, cooking, and like activities. Doing so costs her approximately $80 per week in expenses.

37 Joanne and her husband have incurred significant medical costs as a result of her cancer diagnoses, and the latest treatments available are estimated to cost approximately $1 million. Joanne is not in remission following her chemotherapy, and her future is uncertain. Roseann expects that Joanne will eventually die as a result of these cancers, and intends to assist Joanne's husband raise their children both financially and as a carer. She expects to incur significant expenses in doing so.

38 Roseann intends to establish trust funds for her grandchildren with any additional provision she may receive from this claim.

39 Glenda is 61. She is currently employed on a permanent part-time basis as a bookkeeper. She intends to keep working until retirement age, 67. Glenda married in 1978, and has two daughters. She moved to Koroit with her husband in the early 1980s. From the time of this move until the end of her marriage in 1991, Glenda was effectively estranged from the deceased.

40 When the marriage ended in 1991 Glenda moved back to Melbourne. She was effectively a single parent from that time onwards. She and her daughters moved in with her parents, where they lived for about 12 months. She did not pay rent or board during that period.

41 Glenda and her daughters then moved to a unit owned by the deceased in Chelsea. Glenda lived in that property for approximately 10 years, paying her mother $100 per week in rent for the entire period. In about 1996 the neighbouring property came up for sale at a time when her parents were looking to downsize. They purchased that property, but her father decided against moving. The deceased made some improvements to the property, then moved into it, while her husband remained at the family home until his death.

42 Glenda and her mother's relationship became closer as they now lived next door to one another. Glenda became increasingly responsible for the deceased's day-to-day needs. When the deceased went into nursing home care in 2004, both Glenda and Roseann were involved in finding and securing a place for her.

43 Glenda visited the deceased at least once or twice a week between 2004 and her death. Glenda and her daughters had a tradition of visiting her on Friday nights and eating fish and chips watching the football together.

(a) attending to general messages and supermarket shopping;

(b) taking the deceased to medical appointments;

(c) laundry that was not provided for by the nursing home;

(d) shopping for her clothes and shoes, and labelling these;

(e) attending to all her financial affairs;

(f) arranging visits to friends;

(g) taking her on several short holidays when the deceased was able; and

(h) any other personal need requested.

45 If Glenda was unable to assist her mother with a particular task, either she or the deceased would ask Roseann to do so.

46 Glenda tried to ensure the deceased 'had every opportunity to remain connected with other people and places'. Her mother would say to her words to the effect 'thank you Glenda, I'd be lost without you'.

47 Glenda and her mother went on a number of weekends away. Her mother would insist on paying for the accommodation, while Glenda would pay for meals and petrol, and do the driving.

48 Glenda recalled her mother saying on several occasions words to the effect that 'I do not trust Roseann and Graeme'. On one occasion she told Glenda 'if Roseann asks you about my finances don't tell her because I don't want her to know'.

49 Glenda said the deceased received legal advice in connection with making the Will. Glenda took the deceased to the appointment with her solicitor where she gave instructions regarding the Will. She was not present during the interview. After 28 October 2008 the deceased did not mention any concerns she had about the Will or her personal affairs to Glenda. Occasionally Glenda offered to arrange a meeting for the deceased with the deceased's solicitor to discuss her affairs and the Will if she had any concerns, but the deceased would respond to the effect 'no, I am fine with what I have done'.

50 In 2003, Glenda purchased her current home with the proceeds of her matrimonial settlement, a gift from the deceased of $80,000 and her share of her father's estate. The house was purchased outright for $327,000. The current value of the house is approximately $1-1.1 million. The home requires some repairs, including replacing the front brick fence, gutters, fascia, and garage door. It also requires internal and external repainting. While she is currently in good health, Glenda anticipated having to reassess her living arrangements at some stage in the future.

51 Her other assets are $2,600 in savings, superannuation of $26,414, a car with an insured value of $3,300 and a caravan with an approximate value of $25,000. She has credit card debt of around $10,000. Her only income is that from her current employment of $42,592 before tax, and she lives week to week. Prior to commencing her current employment in 2008, Glenda's only income since the early 1990s was Centrelink benefits and child support payments.

52 Aside from the gift of $80,000 referred to earlier, she received no other gifts or financial assistance of any substance from her parents.

53 Section 91(1) of the Act provides that 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.

54 Section 91(2) of the Act provides that the Court must not make a family provision order under s 91(1) of the Act unless it is satisfied that:

(a) an applicant is an eligible person;

(b) in the case of certain types of 'eligible persons', that the person was wholly or partly dependent on the deceased for proper maintenance and support;

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

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

55 In making a family provision order, s 91A(1) provides that the Court must have regard to:

(a) the deceased's will, if any; and

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

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

56 Recent amendments to the Act did not shift the focus from the concept of a testator's moral duty in family provision cases. Courts have taken into account the terms of any expressions of the deceased's intentions in admissible form.[1] Section 91A(1) of the Act mandates that the Court must take into account what a testator provided in his or her will and whether he or she gave any reasons or made his or her intentions known in relation to the provision made for an eligible person, but this express legislative requirement does not elevate such evidence, whether by will or in another form, to some higher status.[2] The weight to be attached to such statements will depend on the specific circumstances of the particular case.

57 In making a family provision order, s 91A(2) of the Act provides that the Court may take into account:

(a) the nature of the relationship between the deceased and the eligible person, including, if relevant, the length of the relationship;

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible persons, and the estate's beneficiaries;

(c) the size and nature of the estate;

(d) the current - taken as at the time of the hearing - and foreseeable future financial resources, including earning capacity and financial needs, of the eligible person, any other eligible persons and any beneficiary;

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

(f) the age of the eligible person;

(g) any contribution of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased's family;

(h) any previous benefits to the eligible person or any beneficiary;

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;

(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 effect that a family provision order would have on the amounts received from the deceased's estate by other beneficiaries; and

(m) any other matter the Court considers relevant.

58 Pursuant to s 91(4)(a) and (b) of the Act, in determining the quantum of any provision, the Court must take into account the degree to which, at the time of death, the deceased had a moral duty to provide for an applicant, and the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of an applicant.

59 In relation to adult children, pursuant to s 91(4)(c) of the Act, the Court must also take into account the degree to which the eligible person is not capable, by reasonable means, of providing adequately for his or her own proper maintenance and support. This provision is intended to limit claims by an adult child who is not suffering financial hardship. However, the financial need of an adult applicant still needs to be considered in the context of proper maintenance and support.

60 In relation to all claims, pursuant to s 91(5)(a) of the Act, the amount of provision must not provide for an amount greater than is necessary for an applicant's proper maintenance and support.

61 Section 91(1) of the Act does not contain the word 'adequate' before the words 'provision ... for the proper maintenance and support of an eligible person', however, the word 'adequate' is included in ss 91(2)(d) and 91(4)(b) as a factor in determining the quantum of any provision. These words have developed a legal meaning over many years. Where a word used in statute has an established legal meaning, the Court assumes that Parliament intended that word to be used with that meaning, unless the context indicates otherwise.[3] There is no indication of a contrary intention in respect of s 91(4)(c) of the Act, so the words 'adequate provision' and 'proper maintenance and support' must be construed in accordance with their legal meaning.

62 Generally, 'proper maintenance and support' means provision from the estate not simply to alleviate poverty, but also to take into account the vicissitudes of life, whereas 'adequate' requires that any provision be sufficient for an applicant's proper maintenance.[4] What constitutes adequate provision for the proper maintenance and support of an applicant in any given case involves a consideration of the mandatory and discretionary considerations identified in the Act, having regard to the meaning of these terms as developed in the jurisprudence of the family provision jurisdiction.[5] The nature, extent and character of the estate and the other demands upon it are also considered as are provisions reflecting what the testator regarded as superior claims or preferred dispositions. A balance is to be drawn between the established claims of named beneficiaries, the needs of an applicant, the size of the estate, and the benefits provided to an applicant and others with legitimate claims upon the testator. The court's function is not to ensure a fair distribution of the testator's estate or to achieve equality amongst various claimants.

63 In determining the amount of further provision to be made, the court is constrained to such amount as is necessary for an applicant's proper maintenance and support.[6] The nature and content of what is adequate provision is a flexible concept, adapted to conform to acceptable community standards, and involves a broad evaluative judgment not constrained by preconceptions and predispositions.[7]

64 Other relevant constraints or limiting factors may be that further provision should be made only if, and to the extent that, it is necessary to alter the will to make adequate provision for an applicant's proper maintenance and support,[8] or that any further provision must be limited by balancing the needs of an applicant against the proper claims that a testator recognised needed to be satisfied out of his or her testamentary bounty.

65 Mostly, the court makes these assessments by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of his or her death.[9] The assessment as to what provision the court should make is determined at the date of the trial, taking into account the plaintiff's circumstances at that time.[10]

66 Roseann submitted that taking all factors into account, including the size of the estate, the appropriate provision for her proper maintenance and support was 50% of the estate. On its current valuation, this would be a little over $4 million.

67 While Roseann acknowledged that her current entitlement was a significant sum, she submitted that the assessment of whether the provision was adequate for her proper maintenance and support did not merely involve an assessment of the quantum of her current entitlement. She contended that need is a relative concept that will be affected by the size of the estate, 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 to determine 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.[11] (plaintiff's emphasis)

68 Roseann submitted that an assessment of the adequacy of her provision was linked to the moral duty that the deceased owed to her, citing Collicoat v McMillan where Ormiston J said:

In my opinion the expression 'moral claim' has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. 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.[12]

69 In submission, Roseann was unable to explain why $4 million was the appropriate sum of provision, as opposed to some lesser amount, for example $3.25 million. She submitted that appropriate provision exceeded a one-third share and was properly assessed as a 50% share of the estate. Counsel suggested that as the testator elected to divide the estate by proportions rather than dollar figures, describing the proper amount of provision for Roseann in terms of a percentage was appropriate. I do not accept either the underlying assumption or the logic of this submission.

70 Glenda identified a number of difficulties with Roseann's claim for 50% of the estate.

71 When the claim was issued, the estate was valued at $5.52 million. Roseann's one third entitlement was $1.84 million, and what she sought, 50% of that value ($2.76m), approximated the value of her one third provision of the current value of the estate ($2.72m). Glenda submitted that the good management of the estate over time raised Roseann's claim to approximately $4 million. This demonstrated that Roseann sought equality, through variation of testamentary intention, rather than a proper provision. Roseann maintained the claim for further provision, but had not identified the basis upon which further provision was necessary. The court should conclude that Roseann is effectively seeking equality in the treatment of siblings, rather than additional provision on the basis of need.

72 Concepts of 'fairness' or 'equality' of treatment between beneficiaries have little role to play in determining the jurisdictional question, and equality of treatment is not a necessary element of testamentary duty. In Blair v Blair, Harper J explained:

But for all that, the legislation remains only concerned with the adequate provision of proper maintenance and support. The fact that adequate provision (a) may go well beyond mere subsistence and (b) sometimes involves a careful assessment of what is fair as between competing claimants, may and often does lead to the mistaken equation of (on the one hand) adequate provision for maintenance and support with (on the other) a fair general distribution of the deceased's property among persons for whom the deceased has or once had responsibility. It is therefore necessary to emphasise that the legislation is concerned with concepts of fairness in the distribution of an estate only to the extent that they bear upon the adequate provision of proper maintenance and support.[13]

73 The hypothetical 'wise and just, rather than a fond or foolish'[14] testator test is not invoked for the purpose of determining what would have been the ideal, or fair, disposition of the estate.[15] Rather, it is engaged:

only for the purpose of determining what was sufficient for the maintenance and support which the circumstances make it right that the applicant should have, as distinguished from what was sufficient for the maintenance and support which the applicant may be considered to need.[16]

74 A testator is not obliged to treat their children equally, nor is the provision given to one child a measure of how another child who seeks provision should be treated.[17] In Blore v Lang, Fullagar and Menzies JJ explained:

The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family. As has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same.[18]

75 Plainly, as Harper J observed,[19] it is a mistake to equate whatever might be thought of as fair, or wise, or just, in the totality of the division of the estate as between the defendant and the plaintiff, with what should properly be awarded to the plaintiff pursuant to Part IV of the Act.

76 The Court's jurisdiction to award further provision from the estate is not enlivened unless, relevantly, the claimant is an eligible person under the Act, the deceased had, at the time of death, a moral duty to provide for the plaintiff, and the will fails to make adequate provision for the proper maintenance and support of the claimant. It is only the last of these jurisdictional considerations that is presently in issue.

77 An application based solely on breach of moral duty, without demonstrating need, will fail,[20] as in the absence of need judicial intervention is not warranted. As Kitto J said in McCosker v McCosker:

This is the kind of case in which it would be much more pleasant to be open-handed with the testator's estate than to confine oneself to the jurisdiction under the Act. But even if I felt sure that I understood the whole situation so well that I could deal with the estate more justly than the testator dealt with it, I should still not feel justified in asserting that when he decided to give the respondent no more than he had already given him, and to leave his estate to members of the family who had been closer to him and to whom he had his own reasons for being generous, he failed to recognise a moral duty which lay upon him.[21]

78 It is at this jurisdictional level that Roseann's claim fails. That said I turn to the prescribed legislative factors about which the parties were in substantial agreement regarding the factual basis for most of them.

(a) Relationship between the plaintiff and the deceased

79 It was not in dispute that Roseann had a normal parent-child relationship with the deceased, or that there was no special relationship between them. Roseann's upbringing was normal and happy, and she maintained a close relationship with the deceased throughout the deceased's life.

(b) Obligations to the plaintiff and first defendant

80 It was not in dispute that the deceased owed a moral obligation to each of Roseann and Glenda to make adequate provision for their proper maintenance and support.

81 Glenda submitted the estate was large enough that the deceased was able to meet her obligations to each daughter while having freedom to deal with the balance of the estate as she saw fit.

82 Where the estate is large, there may be greater scope to provide for a wider range of contingencies for a claimant,[22] but the discretion is not unfettered. Both Re Buckland and more recently Lemon v Mead ('Lemon')[23] dealt with claims for further provision in the context of 'vast' estates. In each case, the limits on the discretion were emphasised. In Re Buckland Adams J emphasised that:

The words 'proper maintenance and support' in the section place a ceiling upon what the Court may properly do and to repeat what I have already quoted from Dixon, C.J.: 'The words "proper maintenance and support" although they must be treated as elastic cannot be pressed beyond their fair meaning'.[24]

83 In Lemon the deceased's estate was valued at approximately $1 billion. Two of the deceased's daughters received approximately $400 million each, and the third was the beneficiary of a complex trust arrangement from which she could receive, at most, $3 million. She made application for further provision from the estate. At first instance she was awarded $25 million. There was no dispute that this adjusted provision had no impact upon the other beneficiaries of the estate. On appeal however, the provision awarded was substantially reduced to just over $6.142 million (subject to an accounting for $3 million that had been paid out to the plaintiff). The Court of Appeal unanimously found that the Master had not erred on the jurisdictional question, but had erred in the exercise of the discretion to award further provision. The Master failed to limit the provision by reference to the purpose of the relevant legislation. The power to make provision can only be exercised for the purpose of doing no more than what was required to make adequate provision for the proper maintenance, support, education or advancement in life of the plaintiff.[25]

84 In the context of a, relatively, more modest estate of $13.9 million, the same principles were applied in Allsop v Henderson.[26] In that case the beneficiaries were the deceased's second wife, their son, and the deceased's son from a previous marriage (the claimant). The majority of the estate was left to the deceased's widow and their son. The claimant's relationship with the deceased was 'troubled', and it appeared the claimant had been subjected to psychological abuse from the deceased throughout his life. He received under the will a legacy of $500,000, a car, and a property of unstated value was to be transferred to him by the trustee of a separate trust. The claimant was married with two children (both of whom were either fully or partially dependent on their parents), nominal superannuation, and limited income. He was awarded a further $500,000 to enable him to draw an annual income of $20-30,000 (if the entirety of the $1 million cash provision was invested). Atkinson J observed:

It is by no means equal to the provision for Richard, who will receive the whole of the residuary estate on his mother's death, but it is not the role of the court to rewrite the Will to make it fairer or to assuage the damage caused to a fractured family relationship by hurt and unequal treatment.[27]

85 Roseann distinguished her case from Allsop on the basis of a difference in the nature of the estate.

86 I characterise the deceased's estate as relatively large. It derived mostly from the estate of the deceased's brother, Herbert. Herbert's estate consisted of land inherited from his parents, his own holdings, assets acquired through his farming partnership with his brother Ernest, and Ernest's estate. Ernest had also inherited land from their parents, and built up assets through farming ventures. Ernest's entire estate passed to Herbert.

87 Roseann submitted the nature of the estate was relevant to the assessment of 'community expectation'. She sought to draw a distinction between an estate built up from the deceased's own exertion (as in Allsop), and an estate that the testator acquired fortuitously. Roseann contended that her mother's estate fell into the latter category, as a significant portion of the estate was acquired by inheritance - it was 'family money'. Where an estate consists mostly of family money, Roseann contended that a greater provision for her support and maintenance was appropriate, because, as counsel put it, 'the fact that the deceased's estate has passed through the generations of the deceased's family supports the contention that the final will fails to make adequate provision for the support and maintenance of the plaintiff'.

88 Roseann submitted that the 'nature' of the estate did not simply refer to the nature of the assets comprising the estate, or the legal structure employed to hold assets that might affect whether such assets were realisable or not. Such considerations referenced the value of the assets and concerned the size of the estate. As the statutory text was 'size and nature', the principles of statutory construction required that the word 'nature' be given work to do beyond the concept of 'size'.

89 Roseann submitted that the 'nature' of the estate as she conceived it was relevant to the moral duty, and what would be 'proper', and that was to be judged by reference to community expectations. The expectation in the community was that a proper provision would be greater from a large estate of family money. She invited judicial notice of this expectation because the legislative text incorporated the nature of the estate as one of the factors to be taken into account.

90 No authority was cited in support of this submission.

91 Glenda submitted '[t]here is no evidence, or legal principle in such circumstances, that the deceased had a stronger obligation to the plaintiff by reason of the fact that the estate is in part derived from family inheritances'.

92 In my view, Roseann's submission was misconceived. While I readily accept that 'nature' adds a characteristic of an estate that is distinct from its size, Roseann's contentions cannot sit with the statements of principle from the authorities that I have cited above that define the proper limits of the statutory power. This conclusion does not deny any work for the qualifier 'nature' only that it cannot operate within the relevant body of the statutory and common law principle in the manner contended for by Roseann. 'Nature' is part of a class with 'size' and does not qualify the notion of moral duty. It refers to the characteristics of the estate, the form of the assets, legal structures that determine the ownership, or marketability of the assets for value and, perhaps, intangible values attached to particular assets. It is not presently necessary to define the precise limits of 'nature' of the estate.

(d) The financial resources and needs of the applicant, any other eligible person and the beneficiaries

93 The parties' resources and needs have been set out earlier in these reasons. Roseann submitted their financial positions were broadly comparable, although Glenda was in a more favourable position given that Roseann and her husband's assets and income pool supported two people. I accept that Roseann and Graeme operate with a level of financial independence, although Roseann noted that they share household expenses.

94 Glenda submitted that whichever way I were to view this evidence, it would support her contention. If they are in fact financially independent, Glenda submitted that Roseann's financial position would be her home plus assets of over $3 million once she received her entitlement under the Will. She would have secure accommodation, and could draw an income of $150,000 (at 5%) without drawing down her capital. Glenda submitted that on this hypothesis Roseann would have no obligation to share her assets and income with Graeme, which overlooks the fact of their long and stable marriage.

95 If I were of the view, as I am, that Roseann and Graeme are not financially independent in the relevant sense, and have a responsibility towards one another, Graeme's assets (and needs) are also relevant to the assessment. On this basis they would have secure accommodation, and assets of approximately $3.4 million.

(a) $100,000 to renovate her home;

(b) funds for a retirement or nursing home for herself and her husband;

(c) funds to assist Joanne's children.

97 Roseann identified, in a general sense, medical costs of approximately $1 million for her daughter. Beyond this assertion, there was no evidence of these costs and, as Glenda submitted, somewhat uncharitably, Roseann did not claim that she is or will be responsible for these costs. There was no evidence of her daughter or son-in-law's financial circumstances or ability to meet such an expense. This matter is deserving of some consideration but, on the state of the evidence, it is difficult to give it much weight.

98 Roseann's provision from the estate is sufficient to fund renovations to the home and, Glenda observed, will likely increase the value of her house. The existing provision will also likely fund nursing or retirement home accommodation, although Roseann did not provide any evidence of these costs or of Graeme's particular needs in this regard.

99 There was no evidence of Roseann's son-in-law's financial or other means to support his children in the event Joanne should pass away. Glenda submitted that even if $1 million were placed in trust for the grandchildren, Roseann and Graeme would still have secure accommodation and over $2 million in capital to fund their needs.

100 Glenda submitted that Roseann could not seriously contend that the provision was not 'adequate' to meet her basic needs. The key point of difference was whether the provision was 'proper' in the circumstances. The evidence on this particular consideration has not persuaded me that in the 'melting pot' of the matters to be taken into account it favours Roseann's contentions.

(e) Any disability of the applicant, any other eligible person and the beneficiaries

101 It was not in dispute that neither party are persons under a disability.

(e) Any contributions of the applicant to the building up of the estate and to the welfare of the deceased or the deceased's family

103 There was no evidence nor was it submitted, that Roseann contributed to the build-up or maintenance of the deceased's estate.

104 Roseann's contribution to the deceased's welfare consisted of what would be expected of a loving daughter. Glenda's contribution was much the same although Roseann did not dispute that Glenda took a more active role in the care of the deceased when she moved to Chelsea Manor.

(h) Any previous benefits received by the applicant, any other eligible person and the beneficiaries

105 Both parties received benefits from the deceased, but it was not in dispute that in the particular circumstances of this case, including the size of the estate, the benefits given were not of particular relevance. Roseann submitted that the financial support provided to each daughter was broadly comparable and I agree.

(i) Whether the applicant was being wholly or partly maintained by deceased

106 Neither party was wholly or partly maintained by the deceased.

(j) The liability of any other person to maintain the applicant

107 As discussed earlier, this factor depends to some extent on whether or not the plaintiff and her husband are financially independent of one another. For the reasons given earlier, I consider that they are not entirely financially independent. As both Roseann and Graeme are retired, and live off their superannuation, Graeme has no capacity to support Roseann and himself solely from his own assets.

(k) The character and conduct of the applicant

108 There is no evidence of disentitling conduct by Roseann.

(l) The effects a family provision order would have on the amounts received by the other beneficiaries

109 An increase in the provision made for Roseann would necessarily decrease Glenda's share of the estate, but this is not a relevant factor.

110 Roseann submitted that if I do not accept her arguments regarding the 'nature' of the estate, which I do not, then it is nonetheless a relevant matter to be taken into account. Having rejected the submission I do not consider 'nature' to be a relevant matter warranting some further or other consideration.

111 The deceased did not express in her Will any reasons for giving the plaintiff a smaller portion of her estate. The deceased's solicitor, Brian Bayston, took handwritten notes of a conference with the deceased regarding her instructions for the Will on 28 October 2008 that recorded some explanation of her reasons at the time. These conference notes were received in evidence without objection.

Glenda

% more than Roseann.

Can't cut Roseann out.

Asset base $4.258 [million]

Roseann to have money so that she can gift her daughters if she wants to.

Glenda will get more because no husband.

2/3

1/3

113 The notes recorded that the deceased was critical of Graeme.

114 There was some suggestion in the evidence, particularly from Lindy, that the deceased wished to change the Will. There was no dispute that the deceased had capacity to do so. She had dealt with Mr Bayston for many years. Over the nine years between making the Will and her death, she did not see her solicitor about a new will or codicil, despite offers to assist her in making an appointment with her solicitor.

115 The reasons disclosed in the notes provide an explanation for the division of the estate by the deceased. It may not, to an onlooker without intimate knowledge of the relationships and the family history, appear to be a persuasive or entirely fair reason, but I cannot accept, as Roseann appeared to suggest, that there was no reason.

116 Roseann submitted the Will represented an unexplained departure from the deceased's prior wills, and that nothing in the instructions to her solicitor explained her departure from the split under prior wills. Roseann submitted this was evidence of previous testamentary intentions and was a factor to be taken into account in determining whether or not adequate provision has been made for her.

117 She contended that if the justification for the distribution was that Glenda would get more as she had no husband, it was a false premise that assumed that because Roseann and Graeme both contributing to building up assets, their assets must exceed those of Glenda, which was not the case. Further, it failed to take into account the benefits provided to Glenda during the deceased's lifetime.

118 Glenda disputed that prior wills contained a 50/50 split between them. The first will, made in 1968, reflected entirely different circumstances. At the time the deceased was married, Glenda and Roseann were 12 and 14 respectively, and dependent on their parents. The primary beneficiary of the will was the deceased's husband, with the remainder going in equal shares to the daughters. At that time, the estate was also significantly smaller than at the deceased's death.

119 The 2001 will appears to treat the daughters roughly equally, but gave legacies and properties directly to the deceased's granddaughters. The value of the estate, and the properties, at that time is not known and Glenda submitted it was not a '50/50' split of the deceased's estate.

120 I accept that it is not correct to characterise the prior wills as a '50/50' split between the daughters, and Roseann would not have received 50% of the deceased's estate under either of those wills.

121 I am not satisfied that there is any material significance in the provisions made by prior wills.

122 Taking into consideration all relevant factors and surrounding circumstances, including the size and nature of the estate and the contingencies an estate of that size may warrant being provided for, I am not satisfied that the deceased failed to make adequate provision for Roseann's proper maintenance and support. While Roseann may have an understandable sense of grievance or hurt as a result of her mother's unequal disposition of her estate, she did not establish any need or other consideration that would warrant further provision. On the contrary, it appears that the existing provision would be more than sufficient to meet all needs that she identified.

123 I do not accept Roseann's submission that the nature of the estate, to be understood in the light of some apparent community expectation as to proper maintenance as a result of the fortuitous acquisition of the estate required the conclusion that she did not receive a proper provision. As Glenda submitted, there is no legal or evidentiary basis for the submission. Even if I were to accept the submission, I am not satisfied that it would change the conclusion I have reached on balancing all relevant factors in evaluation of the adequacy of the provision made for Roseann.

124 Because I was not persuaded that the jurisdictional question of whether the distribution of the deceased's estate had failed to make adequate provision for the proper maintenance and support of the plaintiff, the application must be dismissed.

[1] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 149-50, 152 (Gibbs J).

[2] Brimelow v Alampi [2016] VSC 135; (2016) 50 VR 219, 223 [15].

[3] See, eg, Davies v Western Australia [1904] HCA 46; (1904) 2 CLR 29, 42-3 (Griffiths CJ); Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, 668 (Mason ACJ, Wilson, Deane and Dawson JJ); Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249.

[4] In essence, this concept is founded on the reasoning of Stout CJ in Allardice v Allardice [1909] NZGazLawRp 268; (1909) 29 NZLR 959 and has been applied in family provision cases time and time again; see also Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476 (Lord Romer).

[5] See, eg, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.

[6] See, eg, In re Hodgson [1955] VicLawRp 77; (1955) VLR 481; Blair v Blair [2004] VSCA 149; (2004) 10 VR 69; Delaney v Jones [2008] NSWSC 229.

[7] See, eg, Camernik v Reholc [2012] NSWSC 1537 [154] (Hallen J); Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 284 [125]-[126] (White J), interpreting the similar legislative regime in New South Wales under s 59 of the Succession Act 2006 (NSW).

[8] Grey v Harrison [1997] 2 VR 359, 366 (Callaway JA, with whom Tadgell and Charles JJA agreed).

[9] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 (Dixon CJ).

[10] See, eg, Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 285 [127] (White J).

[11] Jones v Smith [2016] VSCA 178 [66].

[12] [1999] 3 VR 803, 818.

[13] [2002] VSC 95 [15].

[14] Bosch v Perpetual Trustee Co. [1938] AC 463.

[15] Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1, 16-17 (Kitto J).

[17] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 134-135.

[19] Blair v Blair [2002] VSC 95 [83] (Harper J).

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

[21] [1957] HCA 82; (1957) 97 CLR 566, 580.

[22] Re Buckland [1966] VicRp 58; [1966] VR 404, 415.

[23] Lemon v Mead [2017] WASCA 215 [76].

[24] [1966] VicRp 58; [1966] VR 404, 415, citing Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9.

[25] Lemon [2017] WASCA 215 [267]-[269].

[26] [2015] QSC 105.