Plaintiff v First Defendant

2 The plaintiff applied by summons filed on 17 January 2022 for orders for discovery as follows:

1. Pursuant to r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2015 and/or s 26(2)(b) of the Civil Procedure Act 2010, orders that the defendants file and serve an affidavit for the purposes of making discovery of documents in Form 29B, in respect of the following classes of documents:

(a) documents identifying the current financial position of:

(i) the Thompson Family Trust;

(ii) the CMT Superannuation Fund;

(iii) any other trusts of which Christopher John Thompson (the deceased) was a beneficiary as at the date of his death (Other Trusts), including:

(A) any of the Existing Trusts referred to in the last will of the deceased dated 10 October 2019; and/or

(B) the "deceased trust" referred to in paragraph [19](h)(i) of the affidavit of Kris Andrew Hopkins affirmed 12 October 2021;

(b) documents identifying the current beneficiaries of:

(i) the Thompson Family Trust;

(ii) the CMT Superannuation Fund;

(iii) the Other Trusts;

(c) documents identifying the contributions made by the deceased, prior to his death, to the assets of:

(i) the Thompson Family Trust;

(ii) the CMT Superannuation Fund;

(iii) the Other Trusts; and

(d) documents identifying what the deceased provided to Mingxia Chen "inter vivos", referred to in paragraph [19](h)(i) of the affidavit of Kris Andrew Hopkins affirmed 12 October 2021.

1. Pursuant to r 29.12(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 and/or s 55(1) of the Civil Procedure Act 2010, an order that the defendants produce to the plaintiff copies of any documents referred to in the defendants' affidavit of documents that are not subject to a claim that they are privileged from production.
2. Pursuant to s 28(1) of the Administration and Probate Act 1958, an order that the defendants exhibit on oath or by affirmation a true and perfect inventory and account of the real and personal estate of the deceased.

4. Costs.

5. Such further or other relief as the Court thinks fit.

3 The application was opposed. For the reasons that follow, I will dismiss the plaintiff's application, but will make orders for a further affidavit of financial position of the estate by the defendants.

4 The deceased, Christopher John Thompson ('Chris'),[1] died on 7 April 2020,[2] leaving:

(a) his third wife, Mingxia Chen ('Mingxia'), the first defendant in this proceeding;

(b) three adult children of his first marriage; and

(c) a minor child of his second marriage, the plaintiff in this proceeding, Jack Stewart Thompson ('Jack'), aged 17 who was diagnosed with autism spectrum disorder at age six.[3]

5 By his will, made on 10 October 2019 (**'**Will'),[4] Chris appointed Mingxia and the second defendant, Kris Andrew Hopkins ('Kris'), a friend and qualified accountant, as his executors (collectively 'defendants') and left his estate essentially as follows:

(a) legacies of $200,000 to Mingxia and to each of his three adult children; and

(b) a legacy of $100,000 to Jack; and

(c) the residue to Mingxia for life, including a residence, with the remainder interest in residue to his three adult children equally;[5] and

(d) subject to the terms of the trust deed of any trust ('Existing Trusts') in which Chris held the position of Principal, Appointer and/or Guardian as at the date of death, nominated Mingxia to be the succeeding Principal, Appointer and/or Guardian of the Existing Trusts.[6]

6 According to the Will, all "appointments, bequests and benefits" to Mingxia were subject to her spousal relationship with Chris being essentially intact or ongoing at the date of death.[7] There appears to be no question regarding Mingxia satisfying this condition before me.

1. I have not provided further for my son JACK pursuant to the terms of this Will, having given due consideration to the following factors:

10.1 that JACK's mother MICHELLE, is independently wealthy;

10.2 JACK is MICHELLE's only child and heir, and I therefore anticipate, would be well provided for; and

10.3 I therefore consider the provisions of my Will to reflect an appropriately fair and reasonable division of my Estate.[8]

8 Probate of the Will was granted to the defendants on 15 February 2021. The inventory filed by them in the probate application showed an estate valued at approximately $1.1 million.[9]

9 The defendants' affidavit in opposition to the claim filed on 12 October 2021[10] was sworn by the second defendant, Kris Hopkins, rather than a family member and, among other things, states:

(a) 'Existing Trusts' in the Will is a reference to the "Thompson Family Trust", which "owns the units" in the "OneFocus Unit Trust" ('Unit Trust');

(b) Chris made a binding death benefit nomination in respect to his membership of a self-managed superannuation fund called "CMT Superannuation Fund" (**'**SMSF') in favour of his estate and that, in addition to his account balance, proceeds of a life insurance policy of just over $1.275 million forms part of a superannuation death benefit;

(c) the value of the estate is revised to $3.2 million;

(d) his speculation as to life insurance that may be held by Jack's mother over her own life;

(e) the corporate structure of various trusts and entities related to the estate, to support his conclusion that any assets of certain named companies that were associated with Chris do not "form part of the estate";

(f) his opinion as to the quality of the relationship between Chris and Mingxia and her interactions with Chris' children;

(g) that he is informed that Mingxia's "financial position" is as a 60‑year‑old, without dependents, but also without anyone liable to provide for her other than the estate, with poor employment prospects and who:

(i) ... declared around $80,000 in taxable income that she received by way of financial contribution from the deceased trust to enable her to live a comfortable lifestyle in Australia. Other than what the deceased provided for her (both inter vivos and pursuant to his Will), and some basic superannuation of around $79,000 in the CMT Super Fund, she otherwise does not have any other income or assets in Australia (Italics added as each of these terms are contentious in this application); and

(ii) Mingxia has an apartment in China;[11]

(h) that he is informed that the adult children's position is as follows:

(i) Rebecca Thompson is 27 years old. She has completed a postgraduate degree. She has assets worth approximately $30,000 and liabilities of approximately $34,000, which she expects will increase as she is studying for a Master's degree;

(ii) Nicola Thompson is 29 years old. She has completed a tertiary level of education. She has assets worth less than $1,000 and liabilities of approximately $15,000; and

(iii) Julia Thompson is 30 years old. She has completed a postgraduate degree. She has assets worth approximately $157,000 and liabilities of approximately $190,000. She also has a dependent child under the age of five.[12]

10 Jack's mother, Michelle Thompson ('Michelle'), is his litigation guardian in this proceeding. Michelle disputes that she is 'independently wealthy' as described in the Will and gives detail of her financial position.[13]

11 Prior to issuing the proceeding, Jack's solicitors made requests for disclosure of Mingxia's personal financial position without meaningful response.[14] First, the solicitors for the defendants said they did not act for Mingxia "in her personal capacity".[15] Second, Mingxia did not reply.[16]

12 The plaintiff's solicitor, Francis Michael Gambera, provided an affidavit in support of the summons[17] which deposes that the defendants were asked for:

(a) further details of Mingxia's financial position, including details of the 'deceased trust' which provided her with of $80,000 income referred to in the First Hopkins Affidavit;

(b) verification of the meaning of "Existing Trusts" in the Will;

(c) financial statements and accounts for the family trust and the SMSF; and

(d) an "updated inventory" of the estate.

13 Among other responses, by their solicitors' correspondence dated 22 October 2021, the defendants state:

Mingxia Chen does not intend to put forward her financial position to assert a competing need for provision from the Estate. Accordingly, no further information about her personal financial circumstances will be made available to your client.[18]

14 On 19 November 2021, by their solicitors, the defendants state:

Ms Chen and the other beneficiaries have provided their financial position in Mr Hopkins' affidavit affirmed 12 October 2021. As is readily apparent, Mingxia does not earn a significant annual income and, apart from an apartment in China, only owns assets bequeathed to her pursuant to the terms of the Will. As the deceased's spouse and a major beneficiary, Mingxia's financial position is relevant to the deceased's testamentary intentions and the reasons for the gifts in his Will as well as evidencing Mingxia's dependence on the deceased for her proper maintenance and support.[19]

15 Then, on 2 December 2021, by their solicitors, the defendants revert and state that:

... Ms Chen is not asserting a competing financial interest in the Estate. On that basis, the information and documents which your clients seeks are not relevant to the issues in dispute.[20]

16 By affidavit made on 4 March 2022, Kris provided an "updated inventory" of assets and liabilities as at that day, which gave a net value to the estate to approximately $3.3 million ('Second Hopkins Affidavit').[21]

17 On 29 March 2022, after the hearing of the application and in response to orders pronounced during the hearing, Kris deposed by affidavit that:

I am informed by [Mingxia] and believe that she will not make a claim, based on financial need, as a beneficiary of the deceased estate of Christopher John Thompson, to preserve the benefits left to her by the Will of the deceased.[22]

18 In this dispute there are three identified trusts (the Thompson Family Trust, the SMSF and the Unit Trust) and six corporations, essentially as set out below.

19 Company 1[23] is the trustee of the Thompson Family Trust.[24] The sole director appears to be Mingxia.[25] Mingxia may also be the 'appointor' of this trust, which position may give her 'control' over the trust property.[26]

20 The shares in Company 1 are said by the defendants to be itself 'fully owned by' the family trust,[27] yet the shareholding exhibited by Jack shows another company ('Company 2')[28] owns these shares.[29] The shareholder of Company 2 seems to be Chris.[30]

21 Company 2 also seems to be the trustee of the SMSF.[31]

22 Company 3[32] was operating an accountancy business which had been operated through Company 4[33] until 2014.[34] Company 3 has 13 or 31 shares.[35] Chris held a 'performance share' and the 12 or 30 ordinary shares are held by Company 5.[36] Kris says that the shares in Company 3 are held for the Unit Trust.[37] He has also said that the units in this Unit Trust are held by trustee of the family trust for that trust.[38] If so, the value in Company 3's ordinary shares would flow through to the family trust trustee as the unit holder in the Unit Trust (or perhaps one of a number of unit holders, it is not clear). Presumably Chris' performance share had no independent value, as it is described as not having the 'same rights' as ordinary shares and does not appear in the inventory or the Second Hopkins Affidavit.

23 Company 4 may be valueless after transferring the accountancy business to Company 3 in 2014, but the evidence is unclear. No shares appear in the inventory or the Second Hopkins Affidavit.

24 Company 5's shareholders or role is not apparent in the material, it may even be the trustee of the Unit Trust, as it holds the shares in Company 3.

25 Company 6[39] is the 'bare' trustee of real property held for Company 2 as the trustee of the SMSF under a 'limited recourse borrowing' arrangement, which has been discharged.[40] The value of the asset held by Company 6 flows through to the superannuation death benefit.[41]

26 Discovery may be ordered in a proceeding commenced by originating motion where it is relevant to a question in the proceeding and "special circumstances" exist which justify the making of the orders sought.[42]

27 Relevance is established by reference to two factors to which the Court may have regard in determining this claim:[43]

(a) the benefits previously given by Chris to Mingxia, through the trusts established by Chris and directly;[44] and

(b) Mingxia's financial resources, which Mingxia has put in issue.[45]

(a) Mingxia has not disavowed any intention to make a claim based on financial need, and has put her financial position in issue. Her evidence on that issue ought to be able to be tested, at least where there is basis to consider that there are other assets available to her;

(b) the discovery sought is limited, and not oppressive, and the defendants have not sought to adduce evidence that it would be oppressive;

(c) the application has been brought in a timely manner, and will not unduly delay the proceeding;

(d) the discovery sought will assist the Court in ascertaining the estate's true financial position, in circumstances where estate assets are intermingled with the deceased's superannuation fund; and

(e) Jack is a minor, and without discovery on these issues, Jack's representatives and the Court will not be in a position to assess whether any compromise that is proposed is in Jack's interests.[46]

29 Having disclosed her financial resources which assert a competing financial claim on the estate, Mingxia has an obligation to present full and frank evidence of all her resources to the Court and prior benefits.[47] On the other hand, as established by Harris v Bennett, Re Zurcas and Harrison v Bauld,[48] discovery will not be ordered of a beneficiary's financial position in a Testator's Family Maintenance ('TFM') claim where that beneficiary 'disavows' any competing financial claim on the estate by affidavit.

30 An "updated inventory" of assets and liabilities should be ordered, as the defendants had deposed that one would be provided.[49]

31 The defendants oppose the application because it is not a writ proceeding and 'special circumstances' have not been established.[50] Mingxia has not asserted that she has a financial need or a financial competing claim or otherwise put into issue the extent to which she has received provision from the estate or the deceased.[51] Mingxia's "only interest is upholding the terms of the Will."[52] As Mingxia does not put her financial position in issue, benefits received in Chris' lifetime are also irrelevant.[53] In any event, the defendants will file an affidavit expressly disavowing a claim by Mingxia on the basis of competing financial need.[54]

32 Harris v Bennett establishes that where the parties have not put a matter in issue, discovery will not be ordered regarding that matter just because it is included in the list of discretionary factors the Court may consider in determining a claim.[55]

33 Jack's claim only competes with Chris' freedom of testation.[56] The relevant matters are:

(a) Jack's financial position (including his future ability to work and his ability to draw on his mother's financial resources);

(b) Jack's 'moral claim'; and

(c) Chris' reasons for the gifts and benefits in the Will.[57]

34 The application is 'fishing', oppressive and not linked to relevance.[58]

35 If granted, the material discovered could lead to a broadening of the disputes between the parties and a lengthening of a trial, contrary to s 7(1) of the Civil Procedure Act 2010 (Vic) ('CPA').[59] The extent of discovery sought is disproportionate.[60]

36 The trustees of the family trust and the SMSF or 'any other trust' are not parties to this proceeding and unable to respond.[61]

37 The essence of the discovery process as part of modern civil litigation has been described as 'truth-seeking,' which is achieved via three interrelated purposes:

(a) refining the issues on which the trial will focus, so that only evidence related to matters at the heart of the dispute is produced at trial;

(b) ascertaining whether evidence to be used at trial exists; and

(c) obtaining the evidence so that it may be produced at trial.[62]

38 J Dixon J in Bolitho v Banksia Securities Ltd (No 18) (remitter)[63] observed: [1382]-[1383]:

Discovery obligations are restated by s 26 of the Civil Procedure Act, which provides:

(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control -

(a) of which the person is aware; and

(b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at -

(a) the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.

(4) The overarching obligation imposed by this section -

(a) is an ongoing obligation for the duration of the civil proceeding; and

(b) does not limit or affect a party's obligations in relation to discovery.

This obligation is directed to emphasising that the timely disclosure of material documents, is necessary to facilitate the resolution of disputes and the narrowing of issues in a proceeding, in order to reduce costs and delay. It supplements other obligations to make discovery or other disclosure. It is an obligation to disclose 'the existence of all documents' of which the person is aware, and which the person considers, or ought reasonably consider, critical to the resolution of the dispute. This ongoing obligation emphasises, beyond a party's obligation to other parties in the proceeding, the importance of documentary disclosure as a component of duties owed to the court, and to the administration of justice.

39 In Re Fitzgerald; Voss-Lassetter v Piacun,[64] I discussed the principles relating to discovery in the particular context of a claim under Pt IV of the Act such as Jack's claim as follows at [21]-[31]:

Part 4.3 of the CPA sets out a regime of disclosure and discovery that both support and expand the power of the Court in the Rules of Court.[65] There is flexibility and firmness to the process which, if ordered, is compulsory. Section 26 of the CPA adds the overarching obligation of continuous disclosure of any documents that are critical to the resolution of the dispute. Above it all is s 7 of the CPA, imposing on the other sections of the CPA and the Rules of Court, the purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court is bound to give effect to this purpose. These principles set the modern parameters of discovery in civil litigation.

Order 29 of the Rules deals with discovery and inspection of documents and limits discovery to writ proceedings, except for discovery ordered under r 29.07(2) or particular discovery under r 29.08. Therefore, these are the sub-rules that relate to a TFM claim, which in Victoria is commenced by originating motion. The scope of discovery that may be ordered under r 29.07 is limited, by r 29.01.1(3), to the following documents:

(a) documents on which the party relies;

(b) documents that adversely affect the party's own case;

(c) documents that adversely affect another party's case; and

(d) documents that support another party's case.

Particular discovery by r 29.08 is available where it appears to the Court, from evidence, or from the nature or circumstances of the case, or from any document filed in the proceeding, that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or have been in the possession of a party.

That is, discovery should not be ordered in a TFM claim unless it can be established that the discovery sought relates to substantial issues in the proceeding as presently framed.[66] For example, the Court will not order discovery relating to the financial position of a beneficiary, where that beneficiary does not put their financial position into issue.[67]

This is not as to say discovery on financial matters will not be ordered where appropriate. For example, discovery may be ordered in respect to issues relating to valuation of assets held in an estate.[68] At times, this extends to financial documents relating to businesses, including farms, whether underlying assets are held by the estate directly or via shares in a private company or units in a unit trust. Although there is a limit to such discovery where the expense and delay is disproportionate to the utility of the materials sought to be discovered.[69]

It may be noted that unlike other civil litigation, at the hearing of a TFM claim the Court has an independent power to 'inquire fully' into the estate of the deceased and for that purpose may:

(a) summon and examine such witnesses as may be necessary; and

(b) require the Legal Personal Representative ('LPR') to furnish full particulars of the estate.[70]

This is not an independent investigation of transactions made during the lifetime of a deceased person to ascertain if any might be voidable, but a power to order proper and full disclosure of the size of the net estate at the time of the trial, including reliable valuations of real property, shares in private companies or uncommon assets and details of alleged liabilities (including, if necessary, legal costs incurred). This ensures the Court has all relevant evidence regarding the size of the estate (including its liabilities) as required by Pt IV of the Act. This power of the Court is in addition to the duty of the executor and counsel representing the estate at trial to fully and properly present evidence of the value of the estate.[71]

In Dinakis, Digby J said at [11]:

Both the plaintiffs and the defendants expressly recognise in their submissions that in a proceeding such as this, commenced by originating motion in relation to testator's family maintenance-related relief, discovery will not be ordered unless the applicant for discovery can establish that the discovery sought relates to a question in the proceeding and special circumstances exist which justify the making of the orders sought. In this regard both the plaintiffs and the defendants cite Lord Greene in Re Borthwick[72] where Lord Greene MR described the jurisdiction of the court in connection with discovery applications in family provision proceedings as follows:[73]

The jurisdiction, of course, is a peculiar one, and anyone familiar with it knows that if the procedure were to be abused and not kept under proper control, it might lead to litigation of the greatest acrimony and the threshing out of a lot of irrelevant material which would not be in the public interest.

[emphasis added and citations included]

However, although Digby J accepted the combined position of the parties regarding Re Borthwick in respect of 'special circumstances' for discovery in a TFM claim,[74] the application for discovery in Dinakis was dismissed essentially on relevance. That is, the discovery application did not relate to the substantive issues in the proceeding.[75] Further, the nature and extent of the discovery was disproportionate given the substantive issues in dispute.[76]

In other Australian jurisdictions, a 'special circumstances' requirement arising from Re Borthwick may not be applied to family provision disclosure or discovery procedures. Indeed, in Queensland and South Australia, the courts will order disclosure relating to 'facts in issue' in family provision cases unless cause is shown to the contrary.[77]

In England, following amendments to its civil litigation regime after Re Borthwick, the court now has 'wide powers' to order disclosure in family provision claims, including before proceedings are commenced or with respect to assets which 'may' form part of the estate if orders were made to that effect when the substantive application is heard[78], as well as disclosure of information regarding assets for the purposes of a freezing order application.[79]

40 Similarly, in Harrison v Bauld, while not dealing with discovery as such, Derham AsJ set aside a subpoena issued in a Pt IV claim which sought material from a related family trust in advance of the substantive affidavits "without prejudice to the plaintiff's right to issue a fresh subpoena if the affidavits filed by or on behalf of the defendant show that there is a legitimate forensic purpose for production of the documents sought by it."[80]

41 That is, in a TFM claim, it is only after the substantive issues in dispute are set out or 'defined' by the parties' affidavits,[81] (and only then) that it is possible for the Court and the responding party to understand the "real issues in dispute" against which an application for discovery in a TFM claim can be properly assessed. At this point, orders may be made for discovery of documents which are relevant to the real issues in dispute and not disproportionate.[82] By analogy in a writ proceeding, discovery must be made after pleadings are closed and there can be no discovery about an issue not raised in the pleadings.[83] Rule 29.01.1(3) of the Rules reinforces the link between the real issues in dispute and the scope of discovery in all litigation in this Court, including TFM claims.[84]

42 It is also at this point, and ongoing, that litigants ought to able to determine whether any document is 'critical to the resolution of the dispute' and voluntarily disclose it to other parties pursuant to their overarching obligations of disclosure, independently of discovery.[85]

43 The High Court has emphasised unduly technical and costly satellite disputes about non-essential issues, such as disputes about discovery, are to be avoided.[86] In this context, any undue focus on the existence or absence of 'special circumstances' rather than simply concentrating on relevance, may fall into the category of non‑essential disputation, especially as s 26 of the CPA applies to all civil proceedings in this State, even those commenced by originating motion. It is not uncommon for discovery or valuation orders to be made by consent in claims under Pt IV of the Act. Significant disclosure is sometimes voluntarily provided at or prior to mediation. This longstanding and positive 'litigation culture' is to be encouraged.[87]

44 What then are the real issues in dispute in this proceeding? Oddly, the first issue in dispute between the parties is whether or not Mingxia asserts a competing moral claim based on financial need in opposition to Jack's claim. This question occupied a surprising amount of time in the parties' correspondence and submissions, not least because the defendants' position varied over time.

45 The only substantive affidavit in opposition filed by the defendants prior to the summons deposes to some details of Mingxia's financial position.[88] Therefore, her financial position is undeniably put into issue in this proceeding by the defendants.[89] However, given the confusion created by the defendants' solicitors in correspondence and the fact that counsel appearing at the hearing had been instructed by the defendants that Mingxia did not want to pursue a competing claim, I ordered a further affidavit be filed and served by the defendants regarding this issue.[90]

46 As discussed above, in response to that order, on 29 March 2022, Kris deposed by affidavit that:

I am informed by [Mingxia] and believe that she will not make a claim, based on financial need, as a beneficiary of the deceased estate of Christopher John Thompson, to preserve the benefits left to her by the Will of the deceased.[91]

47 There is no explanation as to why Mingxia did not make an affidavit personally. However, the defendants are now clearly and unambiguously confirming by affidavit filed and served in the proceeding that despite their earlier affidavit, no competing claim is now put for Mingxia by them in defence of Jack's claim. Further, this position is reached in the context of contesting an application for discovery regarding Mingxia's financial position. That is, the defendants seek that discovery orders not be made regarding Mingxia's personal finances on the basis that this is no longer a real issue in dispute.[92] This is a serious and binding step for the defendants to take in this proceeding. I consider that although Mingxia did not personally make an affidavit, in all the circumstances, I accept that Mingxia has disavowed any competing claim to preserve the benefits left to her by the Will.

48 It was accepted by all parties that if Mingxia does not press a competing claim to retain the benefits left to her by the Will then at trial, the situation is as explained by Ormiston J in Anderson v Teboneras:[93]

... it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live.

49 Therefore, the limited details regarding Mingxia's finances in the First Hopkins Affidavit can safely be ignored as incomplete and instead the trial judge will be entitled to assume that Mingxia has adequate resources on which to live independently of the benefits left to her by the Will. This assumption is strengthened by the circumstances in which Mingxia disavowed a competing claim, that is, in order to defeat a discovery summons.

50 In this context, despite the First Hopkins Affidavit, no orders for discovery regarding Mingxia's financial position can be made as it is no longer in issue in the proceeding.[94]

51 I turn now to the question of whether or not the financial positions of Chris' daughters is put into issue by the defendants in defence of Jack's claim. Again, the limited material in the First Hopkins Affidavit raises their financial positions in opposition to Jack's claim,[95] therefore, their financial positions as 'competing' claimants are real issues in dispute in this proceeding.

52 However, the summons is not directed to documents regarding any particular beneficiary, rather it seeks documents relating to trusts and entities that were associated with Chris, then seeks an updated inventory of the estate.[96] The exhibited correspondence between the parties' solicitors and the submissions tended to focus on Mingxia. Counsel for Jack confirmed that he seeks discovery regarding the entities listed in the summons in order to ascertain Chris' daughters' financial positions.[97]

53 Curiously, counsel for the defendants did not have instructions regarding the positions of Chris' daughters.[98] This is unfortunate. The legal personal representatives ('LPR') of any estate involved in a claim under Pt IV of the Act are required to keep all the beneficiaries affected by a claim informed and, unless for good reason a beneficiary must be joined as an additional defendant, represent their interests in the litigation, including in the preparation of evidence or in response to interlocutory applications.[99] For example, Chris' daughters may have consented to Jack receiving information regarding their financial positions, including with respect to the family trust. Alternatively, one or more of them may no longer press any competing claim. Significant costs have been incurred regarding Jack's requests for further information where it transpires Mingxia no longer puts any competing claim and Chris' daughters' positions are unknown. The defendants act in this litigation, as they do in the administration of the estate generally, in the interests of the beneficiaries. It is not in the beneficiaries' interest to incur unnecessary costs or to contest issues that may be capable of resolution.

54 As can be seen from the summons, Jack seeks documents identifying the current financial positions, current beneficiaries and "contributions made by" his father "prior to his death" in respect to:

(a) the SMSF;

(b) the Thompson Family Trust; and

(c) "other trusts", which he defines as any Existing Trust within the meaning in the Will and the "deceased trust" referred to in the First Hopkins Affidavit.

55 The current position of the SMSF as a whole does not seem relevant to Jack's TFM claim. The superannuation death benefit payable as a result of Chris' death is already paid or perhaps held on sub-trust for the estate.[100] The key questions for Jack are not what is the financial position of the balance of the SMSF after the death benefit is subtracted, who are its remaining members or what were the superannuation contributions made by his father during his lifetime,[101] but rather what are the full amount of his sisters' Australian or overseas superannuation or retirement entitlements, as part of the question of what is their full financial position. I am not satisfied that orders for discovery ought be made regarding the SMSF as a whole on the prospects that the documents supplied in response will shed light on the financial positions of Jack's sisters.

56 In respect to the family trust, it is not clear if Jack has enquired of the trustee of the family trust as to whether or not he is a beneficiary of the family trust as part of determining his own financial position. If he is, he may have entitlements to certain types of trust documents, perhaps including what is set out in his summons.[102] He also has provided no evidence that his sisters are beneficiaries of the family trust. Indeed, if Jack seeks these documents in order to indirectly ascertain the financial positions of the beneficiaries, he needs to first seek information regarding whether they are beneficiaries of any trust and if so, what rights to distribution of income or capital from such trusts do they hold[103] and what distributions have they received over a relevant time period, say, the last five financial years, rather than seeking trust documents generally which may or may not be relevant to any beneficiaries' financial positions.

57 If there are no Other Trusts, orders for discovery regarding non-existent trusts cannot be made. The correspondence establishes that Jack's representatives have consistently asked for clarity regarding the trusts that come within the terms "Existing Trusts" referred to in the Will and "deceased trust" referred to in the First Hopkins Affidavit. Clear, prompt response ought to have been received, as will be discussed below in respect to the size of the estate. This element of the summons is really unsatisfactory, but responsibility for that may rest with the defendants.

58 Therefore, although Chris' daughters' financial positions have been put into issue in this proceeding by the defendants, the discovery sought regarding them by the summons is so ill-directed that it cannot be granted. However, as the defendants do not presently have instructions regarding Chris' daughters' positions, the defendants ought revert to these beneficiaries, ascertain if they wish to continue to assert a competing claim and if so, request full instructions, including as to disclosure of material prior to mediation either on oath or informally. Alternatively, if any of Chris' daughters disavow a competing claim, an affidavit to that effect ought to be promptly served and filed. Redlich J in Harris v Bennett (No 3)[104] stated at [29]:

If a beneficiary is not intending to make a claim against the estate based upon financial need it is desirable that such a position should be adumbrated, either in the affidavits filed or in a pleading. Given the amended form of the statute and matters to which a court must have regard it is undesirable that a court should be left to make assumptions or draw inferences from the absence of material filed ...

59 It is important to note, however, that receipt of the bulk of the provision left to Chris' daughters by the Will is deferred until the end of Mingxia's life interest, which could be 30 or 40 years or so into the future. The form of the Will is such that the current financial positions of Chris' daughters may be less relevant than in other cases.

60 In respect to all three categories of trust, the defendants submitted, among other things, that discovery could not be ordered as the relevant trustees are not parties to this proceeding. In light of my conclusion, I do not deal with this argument. However, I note that neither counsel assisted with any submissions regarding whether non-party discovery may be ordered under r 32.07 of the Rules or whether a subpoena should be the better form of compulsion regarding access this class of document. As Derham AsJ encouraged in Harrison v Bauld, a practical, non-pedantic approach should be taken by the defendants in respect to the real issues in dispute between the parties.

61 I turn now to the "size of the estate" elements of this application. That is, the application for an "inventory and account under Section 28(1) of the Act."

62 Inventory is not defined in the Act nor the Supreme Court (Administration and Probate) Rules 2014 (Vic) ('APA Rules'). What is required on an application for a grant of representation is an inventory that sets out the value of all known assets and a statement of known liabilities as at the date of death.[105] An 'account' of the administration of an estate is a more dynamic concept, not just a snapshot of assets and liabilities as they stand at a given day, but the full picture of the assets gathered and realised, liabilities paid and outstanding, distributions made and the net estate remaining. For example, an account of Chris' estate would show if any interim distributions of the legacies have been made or the total of legal costs paid to date.

63 Neither party made submissions or provided any authorities to establish that a pecuniary legatee or a plaintiff in a claim under Pt IV of the Act has standing to seek orders under s 28 of the Act. Further, it is not clear that an application for orders under s 28 of the Act can be made by summons in a claim under Pt IV of the Act or whether it needs to be made by originating motion issued by a person with standing.

64 Nonetheless, the defendants have responded appropriately by providing the Second Hopkins Affidavit[106] as, even if s 28 of the Act does not apply to a TFM plaintiff, such disclosure is obligatory on them in this proceeding, it would have been ordered under other powers and providing this affidavit narrowed the issues in the application.[107]

65 Jack by his counsel accepted the Second Hopkins Affidavit as satisfying the application for an 'inventory and account' despite it not being an account. Further, counsel was content to await further clarification regarding verifying the calculation of the superannuation death benefit to future affidavits by the defendants as to the size of the estate.[108]

66 The superannuation fund trustee has fiduciary and statutory obligations to the estate, as the nominated beneficiary of the death benefit, which also applies to its director, Mingxia. The defendants have fiduciary obligations to all estate beneficiaries, in this situation particularly Jack's sisters, to gather the death benefit.[109]

67 I am confident that Mingxia has and will continue to ensure that the SMSF is fully compliant with all its obligations and will provide any documents necessary to herself and her fellow executor, including, if necessary, by providing statements showing the account balance, the amount of the insurance proceeds, all deductions (including any payments to any associated entities, fees, costs and other charges) and the amount paid to the estate. This can be conveniently incorporated into an affidavit as to the financial position of the estate. In exercise of the power in s 94(b) of the Act, I will so order.

68 Clause 5 of the Will nominates Mingxia to be the "Principal, Appointor and/or Guardian of the Existing Trusts". An estate of a deceased person includes property over which the deceased exercises a general power of appointment by will.[110] Neither counsel was able to assist regarding whether Clause 5 of the Will brings any property into the estate or what is the value, if any, of the benefit given by Clause 5 of the Will to Mingxia. For example, could provision be made for Jack by substituting him for Mingxia in Clause 5 of the Will? This clause is subject to the terms of any of the "Existing Trusts" so it may be that it has no effect due to those terms and therefore Mingxia receives no benefit. Despite Mingxia's independent financial position being placed beyond scope by her disavowing any competing claim, the question of what forms the estate and what benefits pass by the Will are relevant and should be clearly explained. I will order clarifying material be provided in an affidavit as to the financial position of the estate.

69 Some vagueness persists in the financial material, including the reference to the 'deceased trust' which provided Mingxia with a 'declared' income of $80,000 last year in the First Hopkins Affidavit and Chris' shareholdings in some of the relevant companies.

70 Finally on this point, I note that a discovery application ought not be necessary with respect to the size of an estate, even if it relied on Order 29 of the Rules instead of s 28 of the Act. Full and proper accounts should be provided willingly and all reasonable questions answered.

71 I will dismiss the summons without prejudice to Jack's right to issue any further application for discovery regarding the financial positions of his sisters, unless they also disavow any competing claim by affidavit filed and served in the proceeding

72 I will vacate order 5 of the orders made on 14 September 2021 and make an order that no more than 14 days and no less than seven days prior to any mediation the defendants file and serve an affidavit which sets out the full and complete financial position of the estate and which exhibits all necessary documents to show the calculation of the value of the superannuation death benefit paid by the SMSF trustee[111] as well as any other material relevant or necessary to understand the attributed value of the estate at the date of the affidavit. This affidavit will provide evidence as to what is the meaning of the term "Existing Trust" in the Will (exhibiting if necessary Will instructions and material relevant to the meaning of this term at the date of the Will and at the date of death) and "deceased trust" in the First Hopkins Affidavit. It will more fully explain the shareholding of each corporation associated with Chris in his lifetime. It will deal with whether Clause 5 of the Will brings property into the estate. I will also make orders for an affidavit of updated financial position of the estate prior to trial, if necessary.

73 If necessary, I will hear the parties as to their costs, but in my preliminary view Jack ought to receive his reasonable costs of his summons. At the time it was issued, Mingxia's financial position was put into issue by the defendants. The defendants did not disavow her claim until after the hearing. Jack was successful in obtaining further information, to which he was entitled, regarding the size of the estate by the Second Hopkins Affidavit and by orders to be made regarding their ongoing obligation to quantify the estate in this proceeding, including the superannuation death benefit. While no orders have been made regarding the SMSF and "existing trusts" as sought by his summons, significant clarity has been achieved regarding the size of the estate. Also, although no orders have been made for discovery with respect to Jack's sisters' financial positions, it must also be noted the defendants have attended the hearing without instructions as to his sisters' positions, despite putting their financial positions into issue in the First Hopkins Affidavit. He is a 17‑year‑old school student, who receives only minor benefit from his father's estate which is not yet paid to him. His summons, although misconceived in its drafting, has achieved substantial progress in the essential task of a discovery application, which is refining the issues in dispute for the trial.

74 On the other hand, there is a clear question as to whether any costs orders which will be made ought be payable from the residue, where the burden falls partly on Chris' daughters, or solely from Mingxia's share of the estate, her legacy and rights to income.

75 The parties should consult and provide draft orders giving effect to this judgment by 2:00pm on 1 August 2022, including as to the costs of the parties if that is agreed. The full quantum of the parties' costs of the summons ought be disclosed in any draft orders. If a hearing is required regarding costs, it may be requested with the draft orders.

(a minor who sues by his Litigation Guardian, Michelle Thompson)

(as executor of the Will and Estate of Christopher John Thompson, deceased)

(as executor of the Will and Estate of Christopher John Thompson, deceased)

[1] Without intending disrespect and for ease of reading, I will refer to the individuals involved in this litigation by first name.

[2] Grant of Probate dated 15 February 2021.

[3] Jack will turn 18 years old this year, but may retain beneficial treatment under the Act by remaining within s 90 definition of eligible person (b).

[4] Affidavit of Michelle Thompson sworn 20 August 2021, Exhibit MT-1 ('Plaintiff's Affidavit').

[5] On the basis that they survive Mingxia as well as Chris, and if any adult child predeceases Mingxia leaving children of their own, those children take in substitution: Clause 9.3 of the Will.

[6] Plaintiff's Affidavit (n 4) Clause 5 of the Will.

[9] Plaintiff's Affidavit (n 4) Exhibit MT-3.

[10] Affidavit of Kris Andrew Hopkins affirmed 12 October 2021 ('First Hopkins Affidavit').

[13] Plaintiff's Affidavit (n 4) [55]-[63].

[14] Ibid [70]-[74], Exhibits MT-7 to MT-11.

[16] Ibid [72] Exhibits MT-9 to MT-11.

[17] Affidavit of Francis Michael Gambera sworn 12 January 2022 ('Gambera's Affidavit').

[21] Affidavit of Kris Andrew Hopkins affirmed 4 March 2022 ('Second Hopkins Affidavit').

[22] Affidavit of Kris Andrew Hopkins affirmed 29 March 2022 ('Third Hopkins Affidavit').

[24] Plaintiff's Affidavit (n 4) [25(b)], Exhibit MT-13.

[25] Transcript of Proceedings (Supreme Court of Victoria, S ECI 2021 02174, Englefield JR, 17 March 2022) 8 [8] ('Transcript').

[27] First Hopkins Affidavit (n 10) [12].

[29] Plaintiff's Affidavit (n 4) Exhibit MT-13.

[30] Plaintiff's Affidavit (n 4) Exhibit MT-16.

[31] First Hopkins Affidavit (n 10) [13].

[33] OneFocus Accountants Pty Ltd (ACN 133 154 720).

[34] First Hopkins Affidavit (n 10) [14].

[35] Ibid [11], which states that the company has 31 shares being one G Class Ordinary Share and 30 Ordinary Shares and [14], which states that the company has 13 shares being one G Class Ordinary Share and 12 Ordinary Shares.

[37] First Hopkins Affidavit (n 10) [11].

[39] CMT Bare Pty Ltd (ACN 617 209 284).

[40] First Hopkins Affidavit (n 10) [9(c)(i)(A)], [15], [17(b)(ii)], Exhibit KAH-3].

[42] Plaintiff's Outline of Submissions, 23 February 2022 ('Plaintiff's Submissions') [4].

[44] Relying on s 91A(2)(h) of the Act.

[45] Relying on s 91A(2)(d) of the Act.

[46] Plaintiff's Submissions (n 42) [6].

[47] Relying on Nowak v Beska [2013] NSWSC 166, [62]; Griffiths v Craigie [2014] NSWSC 1339 [169].

[48] Harris v Bennett [2004] VSC 171 [39], [41], [43], [46], reported as Harris v Bennett (No 3) [2004] VSC 171; (2004) 8 VR 425 ('Harris v Bennett'); Re Zurcas [2012] VSC 441 [43]; Harrison v Bauld [2021] VSC 73 [29] ('Harrison v Bauld').

[49] Plaintiff's Submissions (n 42) [7].

[50] Defendants' Outline of Submissions, 2 March 2022 ('Defendants' Submissions') [1].

[54] Ibid [16] filed 2 March 2022, but no affidavit disavowing competing financial claim by Mingxia was filed before the hearing on 17 March 2022, although two other affidavits (Affidavit of Angela Liaskos sworn 2 February 2022 and Affidavit of Kris Andrew Hopkins affirmed 4 March 2022) in response to this application were filed.

[55] Harris v Bennett (n 48) [14], [29], [30], [32].

[56] Defendants' Submissions (n 50) [5].

[62] See Claudio Bozzi, Principles of Civil Procedure (Law Book, 2nd ed, 2018) [5.10].

[63] Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 (11) ('Banksia').

[64] [2020] VSC 784 [21]-[31] ('Re Fitzgerald').

[66] Dinakis v Zurcas [2013] VSC 79 ('Dinakis').

[68] For the Legal Personal Representative's obligation to put evidence of valuation before the Court see: Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 508-9; Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 138.

[69] Clarke v Edwards [2012] SASC 213; Blair v Blair [2002] VSC 131 [2]-[3], Dinakis (n 66) [35]; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1(5) ('Rules').

[71] Re Newell deceased (1932) 49 WN (NSW) 181, 182; Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, 654.

[72] [1948] Ch 645.

[75] Ibid [25]-[34], [38]-[40].

[77] Re Greenhalgh [1982] Qd R 99, 103; In the Matter of the Will of Carter (1974) 62 LSJS 159.

[78] See Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 8-13. This is similar, albeit not identical, to the notional estate provisions in New South Wales, where assets held outside an estate may, in certain circumstances, be liable to meet family provision orders.

[79] Nasreen Pearce, A Practitioner's Guide to Inheritance Act Claims, (Wildy, Simmonds and Hill Publishing, 3rd ed, 2017) 298.

[80] Harrison v Bauld (n 48) [25]-[29], [33].

[84] The text of r 29.01.1(3) of the Rules is set out above in paragraph [39], citing Re Fitzgerald [22].

[86] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[87] Banksia (n 63) [1], [1308]-[1321], [1342]‑[1355].

[88] First Hopkins Affidavit (n 10) [19(h)].

[89] Harris v Bennett (n 48) [14]; Harrison v Bauld (n 48) [24]-[29].

[90] Orders of Englefield JR made on 17 March 2022.

[93] [1990] VicRp 47; [1990] VR 527, 536.

[94] Harris v Bennett (n 48) [14], [29], [30], [32].

[95] First Hopkins Affidavit (n 10) [20].

[96] Summons filed by the plaintiff on 17 January 2022.

[97] Transcript (n 25) 27[9]-[12], [14]-[16].

[99] Re Lanfear (1940) 57 WN (NSW) 181, 183; Vasiljev v Public Trustee [1974] 2 NSWLR 497.

[101] These are the categories of documents sought by the summons.

[102] Jordan v Goldspring [2021] NSWSC 7_,_ (Hallen J), particularly [156], [157] citing among other authorities Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709; Spellson v George (1987) 11 NSWLR 300, Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, Fast v Rockman [2015] VSCA 61 and the equivalent of Rule 54.02(2)(a)(ii); and Smorgon v ES Group Operations Pty Ltd ; (2021) 64 VR 146 [140], [187]-[189]; J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th Ed, 2016).

[103] For example, a taker in default in certain circumstances has a vested interest: Mandie v Memart Nominees Pty Ltd (2020) 62 VR 528, see also r 54.02(2)(a)(ii) of the Rules; Jordon v Goldspring [2021] NSWSC 7 particularly [153]-[158].

[104] 8 VR 425 [43]; Harrison v Bauld (n 48) [29].

[105] See, eg, r 2.04(2)(d) of the APA Rules.

[106] Second Hopkins Affidavit (n 21).

[107] See paragraph [39] of this judgment.

[108] Transcript (n 25) 13 [10]-[22].

[109] McIntosh v McIntosh(2014) 14 ASTLR 367; Brine v Carter [2015] SASC 205 [123], [124].

[111] The sole beneficiary of the superannuation death benefit is the estate, so the defendants are able to call for all such documents from the SMSF trustee, who has a fiduciary and statutory obligation to them to account for its calculation of this benefit. This order is not a discovery order, limited to documents in possession, custody or control of the defendants. The defendants must take all necessary steps to fully inform themselves of the SMSF trustee's dealings with this asset in order to properly account to the beneficiaries, the plaintiff and the Court. The defendants have remedies in the unlikely event that the SMSF trustee fails to cooperate. In this calculation, among other things, any accounting invoices from any entities connected to Chris for work done for the SMSF trustee in his lifetime or after his death should be produced to the defendants.