Plaintiffs v Defendant

2 Mr Young died on 13 July 2008, aged 82. He was a widower at the time and left two daughters, the plaintiffs.

3 Mr Young left a will dated 11 May 2006 ("the last will"). The last will names the defendant, Filipo Covalea, as executor and leaves him the entire estate. The defendant is described in the last will as "carer" and separately as "friend".

4 Probate of the last will was granted to the defendant on 8 October 2008. The estate essentially consists of two real properties, 6 Wymlett Street, Fawkner ("the Fawkner Property") and 35 Majors Line, Tooborac ("the Tooborac property").

5 The Fawkner property was valued at $390,000 on 9 August 2010 by A. Falvo of Commercial Business Sales and Property Valuers. The Tooborac property was valued at $195,000 on 13 August 2010 by B. Wiggins of Countrywide Valuers. The Tooborac property is described as being in fair condition and has a serious white ant infestation.

6 Mr Young had made an earlier will dated 13 January 1991 ("the 1991 will"). In the 1991 will Mr Young left the whole of his estate to his wife, and in the event that she pre-deceased him, to his grandchildren in equal shares. In 1991 Ms Poisson had three children and Ms Hyatt had two.

7 Mr Young's next will dated 22 August 2005 ("the 2005 will") left the entire estate to the defendant.

8 The only differences between the 2005 will and the last will are: an additional statement in the last will explaining the exclusion of Ms Hyatt and Ms Poisson from any benefit under that will; and an additional clause in the last will assigning the defendant and Ms Stavrakas, a friend of Mr Young, responsibility for organising Mr Young's funeral and disposal of his remains.

9 Andrea Hyatt is Mr Young's eldest daughter. She was born on 9 July 1950. Ms Hyatt's mother was Mr Young's first wife. Ms Hyatt recounts living with her father and mother until 1954, when her parents separated. She was then raised primarily by her maternal grandmother, except for two brief periods when she lived with her father for approximately a year each time, when she was aged 6 and 12 years of age.

10 Ms Hyatt had a normal relationship with her father. Her mother passed away in 1973.

11 As a teenager, Ms Hyatt would call in to keep contact with her father. Ms Hyatt was married in 1970 to Garnett Hyatt. Ms Hyatt has two children, Anthony, aged 37 and David, aged 32.

12 For the last 12 years Ms Hyatt has worked as a qualified direct care worker, employed by the Department of Human Services ("DHS"). She is currently employed on a casual basis.

13 In 2004, Ms Hyatt was attacked by a female patient and suffered an injury to her wrist, which required surgery to remove a bone. Ms Hyatt is now on a special management agreement which enables her to continue to work in low need houses. Ms Hyatt is unable to push or pull objects at work and she cannot fold towels. She is unable to hang out any washing on the line and cannot lift cooking pots.

14 In December 2008, Ms Hyatt received payment from WorkCover in the sum of $70,000 as a consequence of proceedings issued on her behalf by Slater & Gordon Solicitors in respect of the personal injuries she sustained in the course of her employment with DHS. Approximately six months prior to receiving that payment, Ms Hyatt also received a permanent impairment benefit of $53,724 as a result of that same injury.

15 Ms Hyatt continues to suffer pain and takes three Panadeine Forte tablets each day to cope with her pain. She described it as being extremely hard for her to manage life and manage domestic matters at home, including cooking and cleaning.

16 This is compounded by the fact that her husband, who is 63 years of age, is incapable of doing paid physical work. Mr Hyatt has permanent and extensive damage to his spine as the result of a workplace injury.

17 Ms Hyatt works in order to pay living expenses for her and her husband. Her evidence is that she will work until 65 years of age.

18 Ms Hyatt and her husband own a modest home at 32 Pine Grove, Goornong. The property was valued at $240,500 as at 27 November 2009 by Professionals at Bendigo.

19 Ms Hyatt's viva voce evidence is that the property is currently worth something in the vicinity of $260,000 to $290,000. The house has been on the market for sale for some 15 months. The Hyatts would like to move closer to the large regional centre of Bendigo where better medical services would be available to them.

20 Ms Hyatt has accrued $83,000 of superannuation and she and her husband have no savings.

21 Ms Hyatt's tax return for the year 1 July 2009 to 30 June 2010 records gross income of $82,363. Ms Hyatt gave evidence that this was unusually high compared to her normal income and that she would be lucky to "get in $71,000".

22 Mr Hyatt also received a payment from WorkCover in 2005, in the sum of $70,000 for repetitive injuries he suffered whilst working.

23 The Hyatts have spent the compensation money they received for their workplace injuries. The money was spent on a series of items including: paying off the house mortgage; a car; a car for Ms Hyatt's son; some jewellery for Ms Hyatt; and a holiday for the entire family.

24 Mr Hyatt is not eligible for a disability pension because Ms Hyatt's income is above the relevant threshold. Mr Hyatt is only eligible for a Senior's Card at this stage.

25 As noted, Ms Hyatt made efforts to keep in contact with her father during her teenage years. Up until 2000, Ms Hyatt would see her father on a fairly regular basis. Ms Hyatt moved to Goornong in 1990 which is approximately 30 kilometres north of Bendigo, and about 45 minutes drive from Tooborac. Ms Hyatt would stop at her father's property in Tooborac on her way to work. She described leaving her father fruitcakes and other items for him in the course of that time. Ms Hyatt described her father coming to her place for a barbecue lunch approximately every three months for the last ten years up to around the last two years prior to his death. Mr Young would drive himself to Ms Hyatt's property from Tooborac in his four-wheel drive. Ms Hyatt's evidence was that her father was unable to continue these trips in the last two years of his life due to the loss of his eyesight as a result of glaucoma.

26 Ms Hyatt's evidence is that she and her family had a good relationship with her father. She does not recall having a falling out with her father and said that he was the type of person who would walk away rather than engage in disputes.

27 Ms Hyatt described having less contact with her father in the middle years of her father's life when he was married to Wilma Young and that it was not until after Wilma's death that she began to re-build her relationship with her father.

28 Ms Hyatt met Mr Covalea for the first time in 2000 when she went to visit her father at the Fawkner property. Ms Hyatt was told by Mr Covalea that he was living in the Fawkner property as a caretaker. Mr Covalea explained to Ms Hyatt that originally he had agreed to pay $60 per week rent but that he had only paid that for up to a year. The arrangement between Mr Covalea and Mr Young was that Mr Covalea would continue to live in the property rent free on the basis that he looked after the Fawkner property.

29 The last occasion Ms Hyatt saw her father was three month's prior to his death at the Tooborac property. The second-last time she saw her father he gave her a silver tray commemorating his 25 years with the Tramways.

30 Ms Poisson was born on 9 September 1955. Her mother, Wilma Young, was Mr Young's second wife. Ms Young died in 1995.

31 Ms Poisson is married and has three children aged 34, 32 and 22. Her husband is 61 years of age.

32 Ms Poisson had a loving lifetime relationship with her father. There was no evidence of any estrangement between Ms Poisson and her father.

33 Ms Poisson is married and lives in the USA with her husband and children. From the time she was born until she was 19 years of age she lived at home with her mother and father. Ms Poisson is a customer services representative for an agency that sells insurance. She has been employed by her current employer since 2007 and works from 7.00am to 6.00pm Monday to Thursday. Ms Poisson receives three weeks vacation a year and one week sick leave. Her gross income is $62,396.

34 It was not specified by Ms Poisson's evidence whether references to money amounts were in Australian or USA currency. Given the current financial market, not much turns on this issue. I have worked on the basis that the amounts stipulated are in Australian dollars.

35 Mr Young made several trips to the USA to visit Ms Poisson and her children. His last trip to the USA was approximately five years prior to his death. Ms Poisson and her family spent time with Mr Young touring the USA.

36 In 1979, Mr Young travelled to the USA and stayed there for approximately three months to assist when Ms Poisson's daughter, Trina, was born premature, unwell and with cerebral palsy.

37 Again in 1979, Ms Poisson brought her family to Australia for Christmas. After that trip, Mr Young travelled back to the USA to help with the children and stayed for another three months.

38 In 1986, Mr Young went to the USA for six to eight weeks after Ms Poisson and her family were in a serious car accident. From 1988 to 1991, Ms Poisson and her family moved to Australia to share her third pregnancy and the birth of their youngest child, Aaron, with her parents.

39 In 1995, Ms Poisson left her family and came to Australia for three months when her mother was terminally ill. Various other holiday trips occurred both ways over the years.

40 Ms Poisson paid for Mr Young's airfares each time.

41 Ms Poisson's last visit to Australia occurred in 2001 and Mr Young's last trip to the USA occurred in 2003.

43 Ms Poisson was unable to attend her father's funeral due to her financial circumstances. She prepared a eulogy which was read out at her father's funeral on her behalf.

44 In 1986, Ms Poisson's husband sustained serious injuries in a car accident and as a result Ms Poisson and her family incurred substantial business and medical debts. Court action against the other driver was ultimately unsuccessful on appeal. For a period following the conclusion of their court case, the Poissons attempted to pay the medical expenses incurred as a result of the car accident. In 1997, they declared bankruptcy.

45 In 2005, the Poissons acquired their current home, subject to mortgage. They obtained a second mortgage and constructed a separate downstairs area in the home for Mr Young and repeatedly invited Mr Young to stay with them.

46 In 2005/2006, Ms Poisson's husband went into business supplying high end wardrobes to wealthy clients. That business suffered from the impact of the global financial crisis and it closed in 2010. Ms Poisson's husband was unable to obtain employment until late 2010. As a consequence, the couple fell into arrears on their mortgages and other debts.

47 In the course of 2009 and 2010 withdrawals were made from Ms Poisson's retirement account to pay bills, incurring tax penalties. Ms Poisson's retirement savings are now down to approximately $36,000.

48 In the same period, Ms Poisson's son Christian and his wife lost their employment and now live with Ms Poisson and her husband. Ms Poisson's daughter-in-law works at a coffee shop and her son is attending tertiary education.

49 Ms Poisson's youngest son Aaron, also resides with Ms Poisson.

50 Ms Poisson's daughter, Trina, has cerebral palsy but is living independently and it is anticipated she will return to her employment in child care following recent surgery.

51 The combined income for Ms Poisson and her husband for the financial year ending 30 June 2011 was estimated at $124,000 gross.

52 As from 1 January 2011, their monthly mortgage payments total $2,298.69. At the time of swearing her affidavit in December 2010 the Poissons were 24 months in arrears with the mortgage repayments on their second mortgage.

53 The Poissons owe $126,652 and a small business debt arising from her husband's business and $17,000 is owed on personal loans and less than $10,000 on credit cards.

54 The mortgages have been modified so that the repayments are reduced and the arrears are not immediately repayable. Ms Poisson's evidence was that since her husband obtained employment, bills are being paid and the debts are being reduced and that the couple are now making financial progress.

55 Ms Poisson anticipates having some responsibility for her daughter Trina in the future. Despite her daughter's remarkable efforts and achievements, she is likely to require ongoing surgery in the future and the possible assistance of her parents both emotionally and financially.

56 Ms Poisson was aware that Mr Covalea had moved in with her father in or about 1999 and that it was agreed that Mr Covalea would pay $60 rent per week.

57 Ms Poisson recalls on one occasion when speaking to her father on the telephone hearing Mr Covalea say to her father, "You know, well, Kevin if it wasn't for me you'd be in a home now."

58 Mr Covalea met Mr Young in 1999. He was introduced to Mr Young by Francesca Stavrakas. Mr Covalea moved into the Fawkner property in 1999. It was agreed that Mr Covalea would pay $60 per week which he did for approximately one year. There was no written lease.

59 In 1999, Mr Young was able to attend to his own needs and was quite independent. Quite some time was spent hearing evidence trying to establish how much assistance Mr Young required in his day to day affairs. I note Mr Young travelled to the USA independently in 2003. It seems to me that following an admission to Heathcote Hospital for pneumonia some time in 2003, Mr Young's health, including his eyesight, began to deteriorate. Mr Covalea gave evidence that Mr Young enjoyed living at the Tooborac property and spent as much time as he could at that property.

60 In relation to the admission to Heathcote Hospital, Mr Covalea contacted Mr Young's sister, Merle, about the illness but did not contact Ms Hyatt or Ms Poisson.

61 I accept that up until the admission to Heathcote Hospital the relationship between Mr Covalea and Mr Young was one that could be described as mutually convenient. Mr Covalea had the benefit of living in the Fawkner property rent free following the first 12 months, and Mr Young had somebody who was able to look after the property for him when he was at the Tooborac property.

62 I accept that after the admission to Heathcote Hospital the relationship between Mr Young and Mr Covalea changed, in that Mr Covalea adopted more of a personal carer role for Mr Young. I accept Mr Covalea's evidence that up until this point in time he had not considered that he would be looking after Mr Young until his death.

63 I am satisfied that Mr Young ceased driving in or about 2002/2003 due to the deterioration of his eyesight and that by 2005 he was at the stage where he panicked if left alone for up to a week and he could not find things, but that if he had food prepared he could cope.

64 By 2008, Mr Covalea described Mr Young as only being able to see light and shadow and that he would have to use the walls for guidance as he moved around his home due to low vision. He lost the ability to read the TV guide.

65 Ms Stavrakas gave evidence that from 2003 Mr Covalea took responsibility for all the cooking and cleaning. She noted that from 2003 Mr Young was able to go to the toilet but needed assistance with washing and dressing. Ms Stavrakas said that when she did see Mr Young, which was somewhat less from 2003 due to her own commitments with her family, she observed him to be clean and well cared for and that Mr Young appeared happy with his home and with the Italian recipes made by Mr Covalea.

66 From 2003, Mr Covalea along with Ms Stavrakas would take Mr Young to his medical appointments.

67 Mr Covalea assisted Mr Young throughout a number of admissions to hospital, including an admission to Peter MacCallum Hospital in 2004 and an admission to St Vincent's Hospital in 2008 following a heart attack.

68 I accept that Mr Covalea's care ensured that Mr Young was able to live at the Fawkner property and that he was able to go to the Tooborac property, which he enjoyed doing and wanted to do for as long as possible. There was no evidence before the Court that the quality of care provided to Mr Young was inadequate. Any criticism of Mr Covalea's care related to the way in which he maintained the Fawkner property.

69 It was suggested on behalf of the plaintiffs that Mr Covalea had some sort of manipulative control or strong influence over Mr Young. In cross-examination Ms Poisson said that it was her belief that Mr Covalea had an extremely strong influence over her father. However, Ms Poisson conceded that she was not there all of the time and so could not say what happened when she was not there.

70 I accept Mr Covalea's evidence that his was a genuine relationship with Mr Young and that particularly from 2003 onwards he adopted the role of caretaker and personal assistant to Mr Young. This was done with some assistance from Ms Stavrakas.

71 There was a significant amount of evidence given in relation to the circumstances giving rise to the 2005 will and the last will.

72 The Court heard evidence from Ms Stavrakas and from Mr Tullberg, the solicitor who prepared the 2005 will and the last will.

73 As discussed, the last will names Mr Covalea as executor and leaves him the entire estate. In the event that Mr Covalea pre-deceased Mr Young, then the entire estate was to pass to Mr Covalea's children living at the date of his death.

I DECLARE that I have carefully considered but not provided for my children ANDREA HYATT or CHRISTINE POISSON as they have never reciprocated any attempts by me to develop a relationship between us leaving the necessary caring work to my executor since I have been frail. In addition my children have not made any attempt for me to see my grandchildren. Although my relationship with Christine is closer having regard to her overseas domicile I am informed by her that she is quite comfortable financially and does not require or want any provision made for her.

75 Ms Stavrakas gave evidence that in or about August 2005 Mr Young contacted her and asked her to go to the Fawkner property to speak to him. Mr Young told Ms Stavrakas that he wanted to change his will and that he needed her to take him to a solicitor up the road to do so. At this time Mr Young told Ms Stavrakas that he had intentions of leaving the property to her and Mr Covalea. Ms Stavrakas told Mr Young that he should not do that as he had children. Ms Stavrakas told Mr Young that she did not want him to leave her anything in his will and that he should leave it to Mr Covalea as he was primarily caring for him and doing all the running around.

76 Ms Stavrakas' evidence is that in August 2005 she attended Mr Kenneth Tullberg's office in Fawkner, at which time Mr Young gave instructions to Mr Tullberg for the drawing of the 2005 will. In her viva voce evidence Ms Stavrakas said that she attended with Mr Young in 2005 but did not attend in 2006. I accept Ms Stavrakas' evidence on this point.

77 Mr Tullberg gave evidence that in August 2005 and May 2006 Mr Young attended with Mr Covalea.

78 Both Ms Stavrakas and Mr Tullberg described Mr Young as knowing what he wanted and that if challenged he was very definite about what he wanted to do in relation to the will.

79 In relation to the preparation of the last will, Mr Tullberg's file and his evidence were that a prepared list of questions, including questions of co-ownership of Mr Young's properties, was provided to Mr Tullberg. Mr Tullberg's typed file-note dated 1 June 2006, records that Mr Young attended with Mr Covalea. Mr Tullberg sent Mr Covalea out of the room and questioned Mr Young about his wishes to completely remove his children from the will. The file-note states that Mr Young had a piece of paper setting out questions and a plan for Mr Covalea to secure the estate of Mr Young.

80 The Fawkner property was offered for sale in 2008 with the intention of using the sale proceeds to purchase a property in Thomastown in the joint name of Mr Young and Mr Covalea.

81 Mr Covalea said he cancelled the 2008 sale of the Fawkner property due to Mr Young's heart attack. In his viva voce evidence Mr Covalea said that the sale had been stopped by Mr Young's brother-in-law, Merle's husband.

82 Mr Tullberg's evidence was that the sale of the Fawkner property was rescinded by the purchasers due to the "mess" at the property. I am satisfied that the more likely reason why the sale was rescinded was due to the Fawkner property not being in a proper state. This in part may have been due to Mr Young's heart attack but the evidence is that from when Mr Covalea moved in, the Fawkner property was never in a clean and orderly state.

83 The conveyance file contains a rescission notice dated 22 March 2008 from the purchasers. The sale did not go ahead and the purchasers were repaid their deposit on 29 April 2008.

84 The plaintiffs' claim is made under Part IV of the Act. Section 91(1) provides that a Court may order provision to be made out of the estate of a deceased person "for the proper maintenance and support of a person for whom the deceased has responsibility to make provision". Under s 91(3), the Court must not make such an order, unless it is of the opinion that the distribution of the estate of the deceased, as effected by his will, does not make "adequate provision for the proper maintenance and support" of the plaintiff.

85 Nettle J, as his Honour was then known, summarised the legal principles relating to the Court's jurisdiction to make an order under Part IV in McKenzie v Topp[1]:

Jurisdiction to make an order under Part IV of the Administration and Probate Act 1958 is dependent upon being satisfied that the deceased had responsibility to make provision for the plaintiff and also being satisfied the will does not make adequate provision for the proper maintenance and support of the plaintiff. Each condition invokes consideration of the question of what is the provision that a wise and just stepmother would have thought it her moral duty to make in the interests of her stepson had she been fully aware of all the relevant circumstances. That question is to be answered as at the date of death. According to the standards of a wise and just testatrix - or, in other words, according to the standards of a fair and reasonable woman in the community - and in answering the question the court is bound to have regard to the factors adumbrated in s 91(4)(e) to (o), as well as to any other matters that the court considers relevant. (citations omitted)

86 The courts have long recognised the importance of the basic right of a testator to exercise freedom of testamentary disposition in respect of his or her estate.[2]

87 The right is only subordinated where, and to the extent that, the plaintiff can demonstrate that the testator has failed to discharge his or her moral duty to make provision in the plaintiff's favour pursuant to Part IV of the Act. However, the Act does not entitle the Court to re-write the will of the testator, in order to better accommodate it to the Court's individual view as to how the testator should have, or might, have better exercised his or her testamentary power.

88 In determining whether the testator had a responsibility to make provision for the plaintiffs, and the extent of that provision, the courts have emphasised the weight to be given to the adjectives "adequate" and "proper" in s 91(3) of the Act.[3]

89 In order to succeed in an application under Part IV of the Act, there must be a need. This is a relative concept and one which has to be considered in the circumstances of each case. It has been recognised that an adult child, who is capable of supporting themselves comfortably, may have difficulty demonstrating any breach by his or her parent of a moral obligation to make adequate provision for his or her proper maintenance and support.[4]

90 If the jurisdictional question is answered in the affirmative, the Court must exercise its discretion to make such provision as it sees fit, taking into account the circumstances as they exist at the time of making the order. At each stage, the Court must apply the relevant factors in s 91(4)(e) to (o).

91 I turn first to the factors referred to in s 91(4)(e) to (o).

92 Children of the deceased are generally considered the "natural objects of testamentary bounty."[5]

93 In relation to Ms Poisson the evidence established that there was a loving close and mutually supportive relationship between Mr Young and his daughter.

94 Despite living in the USA, Ms Poisson maintained regular contact, including trips to Australia and Mr Young travelling to the USA on numerous occasions. Such trips were funded by Ms Poisson.

95 In 2005/2006 Ms Poisson modified her home to provide a self-contained area for Mr Young and invited him to stay with her.

96 Mr Hyatt described the relationship between Mr Young and Ms Poisson as "perfect".

97 Ms Stavrakas said that she had no doubt that Mr Young loved Christine.

98 When asked about the nature and quality of Ms Poisson's relationship with Mr Young, Mr Covalea said, "I cannot answer you".

99 It is fair to say that Ms Hyatt's relationship with her father was perhaps not as close as that of Ms Poisson. Given the circumstances and the fact that she was removed from the family home at four years of age, through no fault of her own, I am satisfied that Ms Hyatt made genuine efforts to maintain a loving relationship with her father.

100 Ms Hyatt took initiative to maintain a continuing relationship with her father from when she was an adolescent. I accept that Ms Hyatt did so under difficult circumstances which were beyond her own control. The extent of the relationship between Ms Hyatt and her father was challenged by Mr Covalea. In cross-examination Ms Hyatt testified to fortnightly trips to the Fawkner RSL with her father; spending time with him in the company of her children and grandchildren; having her father over for barbecues and dropping in on her father on her way home from work.

101 Mr Covalea's evidence was that he met Ms Hyatt for the first time at the Fawkner property in 2000, shortly after he commenced residence at that property.

102 I accept Ms Hyatt's evidence and that of her husband Mr Hyatt, that she had a strong and on-going relationship with her father.

(f) Obligations and responsibilities of the deceased

103 The plaintiffs submit that Mr Covalea has no competing moral claim, in that Mr Young had no obligation or responsibility to the defendant within the meaning of s 91(4)(f) of the Act.

104 Alternatively, it is submitted that any such obligation or responsibility was met during Mr Young's life and was not one which he was required to meet via his will.

105 The second plaintiff relied upon the decision of Lee v Hearn[6] in which a claim by a person who was allowed by the deceased to live in a property rent free, as caretaker, was dismissed. This decision was upheld on appeal.[7]

106 It must be stressed that while I must consider the moral duty owed by the deceased to competing plaintiffs, Mr Covalea, the beneficiary under the will is under no obligation to justify the bequest or legacy he has received under the will. The tension which exists is between the plaintiffs' claim and the testator's right of testamentary freedom, which is qualified by the obligation to make adequate and proper provision.

107 In Re Waters,[8] the only beneficiary named in the will was a friend of the testator. His Honour Bray CJ said:

Of course Mr Silla had no moral claim on the testator, except to the extent that he might have expected some recognition of his help. It cannot be contended, however, that he had any moral claim to the whole of the estate. This is not a case of competing moral claims, but of a competition between the moral claim of the plaintiff and the right of the testator to do what he pleased with his own. That right the law gives him. It was once absolute; it is qualified now by the obligation to make adequate provision for the proper maintenance of the relations mentioned in the legislation. But that is all...

108 Mr Covalea has lived in the Fawkner property since 1999/2000, rent free for all that time, except the first 12 months. When Mr Covalea first moved into the Fawkner property, Mr Young was able to look after himself and it seems Mr Young spent as much time as he could at his Tooborac property. In his affidavit sworn 7 July 2010, Mr Covalea describes Mr Young as his friend. He says that it was not his role or place to take care and maintain the properties but that he did the best he could.

109 The plaintiffs submit, however, that even though Mr Covalea may have provided assistance to their father in his final two to three years, that of itself does not create a moral obligation. Ms Poisson referred to the decision of Schmidt v Watkins[9] where Harper J (as his Honour was then known) described the circumstances where the responsibility of a deceased to provide for persons from his or her estate arises:

... [I]t is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result, the recipients had a responsibility to make adequate provision in their wills for proper maintenance and support of their benefactors.

110 I do not consider Mr Young had a moral obligation or responsibility as contemplated under s 91(4)(f) to Mr Covalea. Mr Covalea provided assistance and care to Mr Young from approximately 2003. The care and assistance allowed Mr Young to remain at home until his death and importantly spend time at his Tooborac property. Mr Covalea did so however, receiving the benefit of rent free accommodation. I do not consider Mr Young had a responsibility to make adequate provision in his will for the proper maintenance and support of Mr Covalea.

111 On the other hand, the plaintiffs' claims are as daughters of Mr Young.

112 Mr Covalea was in breach of four Court orders to provide evidence as to the valuation of the estate. The last order was made at the end of the trial.

113 After the filing of closing submissions Mr Covalea was yet to provide evidence of the valuation of the estate. This led to a directions hearing being listed by the Court, on 22 July 2011. Mr Covalea was not in court. There was no evidence from Mr Covalea before the Court explaining why the valuation had not been provided as ordered.

114 There was concern by the legal representatives for the parties and the Court about the possibility of further expense being incurred and further delay, if updated valuations were to be obtained.

115 While not ideal, I have decided to rely on the valuations in evidence.

116 I accept that the properties may have further deteriorated since the valuations. I also note that in taking this course Mr Covalea's breach of court orders is not condoned by the Court. It seems to me that the defendant may have failed in his role as executor, by allowing the condition of the properties to deteriorate.

117 It is an unfortunate situation where the personal representative of an estate such as this one, which is relatively small, has taken no real steps to maintain or even preserve the value of the estate.

118 An affidavit was filed on 22 July 2011 by the defendant's solicitor, Mr Hone. The affidavit reveals the following:

• Mahons
• GR Campbell
• Darrol Nelson Lawyers
• Kenneth Tullberg

Defendant's current lawyer's (Mr Ian G. Hone) legal costs:

Slater & Gordon

(2nd plaintiff's legal costs)

GSM Lawyer

(1st plaintiff's legal costs)

(h), (i), (j) The financial resources, age and state of health

119 Mr Covalea submits that the way in which Ms Hyatt and her husband spent the $170,000 compensation funds is a circumstance which a wise and just testator considering the competing claim of Mr Covalea and Ms Hyatt should take into account. Mr Covalea submits that Ms Hyatt is in ordinary domestic circumstances and has a good income and that her work is "experiential, not physical and ongoing."

120 Mr Covalea submits that Ms Hyatt's economic reality is a consequence of her poor decision-making. Mr Covalea refers to Ms Hyatt's decision to purchase a vehicle for her husband valued at $75,000 and her evidence that she would have bought him a $100,000 car if he had asked for it. Further, Mr Covalea notes that despite having received compensation claims of more than $190,000 in the last three years, the Hyatts have no savings accumulated, no additional superannuation and there is no information of how much of the compensation money was applied to the Hyatts' mortgage. Mr Covalea's submission is that Ms Hyatt would have financial security had she been wiser with her money.

121 In the circumstances of her life, I consider Ms Hyatt's decision to indulge herself and her family with the compensation payment to be reasonable and understandable. Ms Hyatt gave evidence which I accept, that some of the money was used towards her mortgage. The property is presently unencumbered.

122 I do not consider Ms Hyatt has financial security. I am satisfied that her physical disability, restricted work, casual employment and her husband's inability to work are matters that support her claim for provision from her father's estate.

123 In relation to Ms Poisson, Mr Covalea submits that at the time of Mr Young's death he would not have known or appreciated her financial circumstances. Mr Covalea is critical of the evidence before the Court in relation to Ms Poisson's financial circumstances. Mr Covalea submits that Ms Poisson demonstrated minimal understanding of her financial position and that while her husband was in a better position to understand and explain the financial circumstances, no evidence was given by him.

124 Prior to the accident Ms Poisson's husband was earning an estimated US$700,000 per annum. Ms Poisson described a lifestyle which included owning a sailing yacht and two Porsches. However, following the car injury and the prolonged period in hospital, the Poissons' financial circumstances drastically changed. In 1997 they declared bankruptcy. Ms Poisson's father was aware of the bankruptcy.

125 In 2005 the Poissons acquired their current home subject to mortgage. They obtained a second mortgage and constructed a separate downstairs area in the home for Mr Young.

126 I am satisfied that even though Mr and Mrs Poisson are now employed, given the past blows to their financial position, the current economic situation in the USA, the small retirement fund held by Ms Poisson, their age, and the real possibility that they may need to care for Trina in the future, they are not financially secure at present or likely to be so in the future.

127 Mr Covalea gave affidavit and viva voce evidence of his dealings and relationship with the deceased, but has elected not to put his financial position in issue.

128 Having taken this position, the Court can assume that Mr Covalea has no special claim upon Mr Young and has adequate resources upon which to live.[10]

(k) Contribution to building up the estate and welfare of the deceased

129 Mr Covalea submits that there was no evidence that Ms Hyatt attended to, or knew anything of, the day to day care needed by her father or how this was being provided.

130 Ms Hyatt submits that in the later years, she and her husband offered her father a place to stay at their home relatively close to Tooborac with her husband. In cross-examination Ms Hyatt referred to a two bedroom unit at the back of the house and that she had invited her father to live there. This evidence was also in her written affidavit. Ms Hyatt's evidence is that her father wanted to "stay on his hill".

131 Ms Hyatt submits that in reality there had never been any meaningful discussions or alternatives to Mr Young living either in a home or with the defendant. At the time of Mr Young's admission to Heathcote Hospital in 2003, Mr Covalea's evidence is that neither he nor Mr Young contacted either plaintiff. In cross-examination he said that Mr Young's failure to contact Ms Hyatt on that occasion was "not my concern".

132 I accept that Ms Hyatt contributed to Mr Young's welfare by keeping regular contact and offering an alternative place to live.

133 Ms Poisson submits that she has made a contribution to her father's welfare. The joy of trips to the USA, her trips to Australia, attending upon her father and her mother when her mother was dying, preparing an area in her home for him (although this was not taken up) and continued support and concern for him all contributed to his welfare.

(l) Benefits previously given to the plaintiffs

134 There was no relevant prior benefit given to either of Ms Poisson or Ms Hyatt.

135 In contrast, Mr Covalea received free accommodation for approximately 11 years.

(n) Liability of others to maintain the applicant

137 Both plaintiffs are married. Ms Poisson's husband has recently obtained employment and is contributing to Ms Poisson's maintenance and their family.

138 Ms Hyatt's husband is unable to work due to personal injuries.

(o) Character and conduct of the plaintiffs or any other person

139 Section 91(4)(o) requires the Court to also look at the character and conduct of persons other than the plaintiffs. However, I am not satisfied that s 91(4)(o) should be used as a means of punishing or rewarding persons such as Mr Covalea based on character and conduct. Ultimately, for conduct to disentitle the defendant or the plaintiffs completely, I consider it must be of an extreme nature and of such a calibre as to condemn the defendant or plaintiffs according to right thinking members of society.

140 The plaintiffs submit that the Court should take into account Mr Covalea's conduct under this section. In particular, it is submitted that in 2005 and 2006 Mr Covalea was exerting his influence over Mr Young to re-write his will to appoint Mr Covalea as the sole beneficiary under the will. The plaintiffs point to: the list of questions provided to Mr Tullberg, including questions of co-ownership of Mr Young's property; and the fact that in 2006 Mr Young was taken to see Mr Tullberg for a more "solid and air tight will".

141 Mr Covalea denied many times that he discussed Mr Young's estate with Mr Young or that he prepared a list of questions or had planned to secure the estate or had discussed the transfer of Mr Young's properties with the solicitor. Mr Covalea's evidence sits uncomfortably with the evidence given by Ms Stavrakas that she accompanied Mr Young to Mr Tullberg's office in June/July 2005 but that she did not accompany Mr Young in 2006. Mr Young was unable to drive at that time and Mr Tullberg's evidence is that Mr Covalea accompanied Mr Young to his office in relation to the last will.

142 I am not persuaded by Mr Covalea's evidence that he did not discuss with Mr Young or was not aware of Mr Young's intentions in relation to the 2005 will and the last will. However, I'm not persuaded that Mr Covalea exerted undue influence on Mr Young.

143 When one looks again at the circumstances surrounding the aborted sale of the Fawkner property in 2008, Mr Covalea's evidence is unreliable. Mr Covalea said he cancelled the 2008 sale of the Fawkner property due to Mr Young's heart attack. However, under cross-examination he said that the sale had been stopped by Mr Young's family (Merle and her husband stopped it).

144 In evidence, Mr Tullberg insisted that the 2008 sale of the Fawkner property was rescinded by the purchasers due to the mess.

145 It is submitted that the inconsistency in Mr Covalea's evidence all arise in his own case and therefore may be resolved against him.[11] On the basis of Mr Covalea's own evidence it is unclear as to why the sale ultimately did not go through. On balance I am satisfied that the most likely explanation is the poor condition of the property rather than Mr Young's heart attack.

146 Mr Covalea said that he was often referred to as "Rough Nut" by Mr Young. Mr Covalea was described by his counsel as socially maladapted, unable to stop talking, a man of strong views and having a loud voice. While such conduct may have made it difficult and unpleasant for the plaintiffs and their families to deal with Mr Covalea I am not satisfied that this is conduct that in some way establishes the moral duty and responsibility owed by Mr Young to the plaintiffs or alternatively somehow disentitles Mr Covalea of any benefit he has received under the will.

147 His Honour Nettle J in McKenzie v Topp[12] when considering s 91(4)(p) said:

Authority suggest that the sorts of factors to which regard might be had include the ability of the plaintiff to meet his financial responsibilities, the amount which is necessary for maintenance and survival, the size of the estate and of competing claims upon the testatrix, the standard of living of the plaintiff during the deceased's lifetime, the extent of the contact between the plaintiff and the testatrix, the manner in which the plaintiff conducted himself in relation to the testatrix during her life, and the testatrix's wishes, in the sense of statements made by the deceased during her lifetime as to the provision that she has or has not made for the plaintiff. It has also been submitted on behalf of the plaintiff that a further relevant consideration is that the plaintiff's father left the whole of his estate to the testatrix. (citations omitted)

148 I need not say any more about the ability of the plaintiffs to meet their financial responsibilities, the amount which is necessary for their maintenance and survival, the size of the estate and of competing claims upon Mr Young or the manner in which the plaintiffs conducted themselves in relation to the testator during his lifetime.

149 As His Honour Nettle J noted, the subject of the testator's wishes is more complex. Section 94 of the Act permits the acceptance of evidence of a deceased person's reasons for making dispositions in his or her will and for not making proper provision for the plaintiff, whether or not the evidence is in writing.

150 The plaintiffs submit that the Court is not bound by a statement of reasons for exclusion in a will. A statement of reasons may be admitted, but not as statements of truth, they remain mere hearsay.

151 I am satisfied that Ms Poisson did not inform her father that she was financially comfortable in August 2006. Given Ms Poisson's domicile in the USA, I am satisfied that she took significant steps to maintain her relationship with her father and to ensure that her father formed a relationship with and saw his grandchildren.

152 Further, I am satisfied that offers were made to Mr Young to live with Ms Poisson and that a room had been prepared for him in the Poisson home.

153 I am satisfied that the reasons for Mr Young's exclusion of Ms Poisson contained in paragraph 7 of the last will are flawed and show a clear breach of his moral duty to Ms Poisson.

154 In relation to Ms Hyatt, I am satisfied that Ms Hyatt did offer for Mr Young to reside with her. I am also satisfied that Ms Hyatt kept contact with Mr Young and that she did take steps to ensure that he had contact with her children.

155 Mr Covalea submits that the Court should not lightly interfere with the freedom of testation. However, the Court will do so if the results of that freedom constitute a departure from the standards of the wise and just testator; and it is the standards of the wise and just testator of today, not of a bygone era that are pertinent to that assessment.[13]

156 I do consider that the length and quality of Mr Covalea's relationship with the deceased is a matter I can have regard to under s 91(4)(p). Mr Covalea accepted the role of Mr Young's carer from 2003 until his death. I accept that they had a good friendship and that Mr Young had benefit from the relationship with the defendant, which allowed him to remain at home and spend time at his beloved "hill".

157 Ms Poisson submits that her mother, Wilma Young, worked during her marriage and won second prize in Tattslotto which was used to improve the Fawkner property and to purchase the Tooborac property. Ms Poisson submits that this estate represents the lifelong acquisitions of her parents and that this is a relevant factor in her favour.

158 The plaintiffs submit that Mr Covalea's conduct of this litigation is a matter that the Court should have regard to. There is evidence that Mr Covalea has conducted the litigation in parts in an unreasonable manner. A review of the court file suggests that there have been unnecessary directions hearings in this proceeding and as noted some necessary steps have not been completed by Mr Covalea. There have been three mediations. There have been at least 11 directions hearings. While all these steps cannot be laid at Mr Covalea's feet alone, since my involvement in and case management of this proceeding which commenced on 20 April 2011: there was an application for a litigation guardian to be appointed for Mr Covalea dated 18 April 2010, which was subsequently abandoned by Mr Covalea; on 20 April Mr Covalea informed the Court that if he was not granted an adjournment of the trial date he would not provide further instructions to his solicitor; on 11 May 2011 Mr Covalea was ordered to file and serve a supplementary affidavit of documents; and there has been his failure to comply with the 4 orders relating to the provision of affidavit material on the value of the estate. These unnecessary steps were due to Mr Covalea's conduct in the litigation.

159 I am of the view that Mr Covalea's conduct of the litigation is a matter that if relevant, is so in relation to any costs order that the Court may make.

160 Having regard to each of the considerations to which I have referred, I am satisfied that the plaintiffs are persons for whom Mr Young had a responsibility to make provision. For the reasons already given I consider the plaintiffs have established that they gave to Mr Young assistance worthy of recognition but they also have need for maintenance and support.

161 As I have already stated, I am well satisfied, on the evidence that the reasons given by Mr Young, (both in his will and to his solicitor) for excluding the plaintiffs from his estate, were misconceived and unfounded. The fact that Mr young exercised his testamentary discretion on a false foundation reinforces my conclusion that he was not acting as a wise and just testator, mindful of his responsibilities to his daughters, who had remained loyal to him throughout his adult life. Thus I am satisfied that Mr Young did have a responsibility, in terms of s 91(1), to make adequate provision for the proper maintenance and support of the plaintiffs. Mr Young made no such provision at all. Accordingly, the jurisdiction of the Court, to make an order that provision be made out of the estate for the plaintiffs under s 91(1), is enlivened.

162 I turn then to the question as to what amount of provision I should order be made, for the proper maintenance and support of the plaintiffs, out of the estate of Mr Young.

163 Section 91 of the Act confers wide power to make such order as is thought fit in all the circumstances of the case. In McKenzie v Topp, [14] Nettle J said:

It is plain, however, that the discretion is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the testatrix's freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just testatrix. (citations admitted)

164 Section 91(4)(e) to (o) set out a number of factors, which the Court must take into account in determining whether the testator had a responsibility to make provision for the plaintiffs, whether in fact the testator had discharged that responsibility and, if not, the amount of provision which should be ordered by the Court in favour of the plaintiffs. Section 91(4)(p) also requires the Court to take into account "any other matter the Court considers relevant".

165 The starting point for resolving the question of the amount of provision to be ordered in favour of the plaintiffs is the size and nature of Mr Young's estate.

166 The estate is not large. Once the liabilities are deducted, including all legal costs relating to the proceeding, the net value of the estate is $270,307.72. Further costs will be incurred in the sale of the properties.

167 The next relevant set of factors concern the nature of the plaintiffs' claim, and the circumstances of the plaintiffs, as described in s 91(4)(e), (f), (h), (j) and (o).

168 As I have stated, I consider Mr Young had a responsibility to the plaintiffs, to make provision as would provide a reasonable measure of protection to the plaintiffs against their vulnerability to the vicissitudes of life.[15] I take into account Ms Hyatt's financial situation, her age, casual employment and health predicament. Ms Poisson and her husband now have a healthy income, however the future is never assured, particularly given the current circumstances which exist following the global financial crisis in the USA. In my view those factors give rise to a need for Mr Young to have made such provision as would provide a reasonable buffer to Ms Poisson, including the possibility of having to provide for Trina in the future, against the various vicissitudes to which she might be subjected, and to provide her with some ongoing security.

169 On the other hand, it has not been put, nor do I consider, that Mr Young owed to Mr Covalea a responsibility to make any provision for his maintenance and support pursuant to Part IV of the Act. I have no doubt that Mr Covalea was a good and loyal friend to Mr Young, and it was for that reason that the testator wished him to benefit from his estate. The quality of their relationship is a matter I have given consideration to.

170 In the absence of any evidence of Mr Covalea's financial position, it is appropriate that I proceed on the basis that he does not, and did not have any such particular need.[16]

171 For the purpose of completeness, I note that paragraphs (k), (l), (m) and (n) of s 91(4) are not relevant.

172 With those circumstances in mind, I return to the question of what provision should be ordered in favour of the plaintiffs pursuant to s 91(3). In determining the measure of such provision to be made in favour of the plaintiffs, it is important to bear in mind that the Court only has jurisdiction to order such provision as is "adequate" in the circumstances, which include those identified in s 91(4) and which I have discussed.

173 I am satisfied that a wise and just testator would recognise a responsibility to make a contribution to relieve Ms Poisson's debts. However this is seen in light of Ms Poisson's age and her own ability to contribute to paying off her debts. Equally, the wise and just testator should have regard to Ms Hyatt's position and in particular her future financial prospects and the likelihood that her position will decline within the next few years.

174 Both plaintiffs have real present and future needs. Ms Poisson appeared to have a stronger connection with her father than Ms Hyatt. Even when in financial difficulties Ms Poisson found funds to ensure her father could fly to the USA.

175 Finally, true it is that Mr Covalea has had the benefit of 11 years rent free, his conduct in the course of the litigation has been questionable on more than one occasion. However, he did contribute to Mr Young's welfare and allowed Mr Young to spend his last years in his home at the Fawkner and Tooborac properties. The defendant had an expectation that he would be provided for under the will.

176 Finally, subject to hearing from the parties on the issue of costs it seems to me that an appropriate costs order is that all legal costs be borne by the estate.

177 I have already discussed my concerns about the defendant's conduct in the course of this litigation. He has been legally represented throughout the proceeding. His former solicitor, Gordon Robert Campbell, ceased to act with the leave of the Court. On 20 April 2011 Mr Covalea's current solicitor, Mr Hone, commenced acting and it must be said that both he and counsel managed to get this matter ready for trial in a very short period of time and under less than perfect conditions. The legal costs are significant, given the size of the estate.

178 The plaintiffs have incurred additional legal costs due to unnecessary delay and Mr Covalea's conduct. These additional costs will be borne by the estate.

179 Mr Covalea is not a person of means, any costs order made against him personally will be difficult to enforce.

180 It seems to me that the parties are truly exhausted by the litigation. The estate has been eroded and the parties, should be able to put the litigation behind them. Any further hearing on costs will result in further costs and delay.

181 For the reasons I have expressed the Court makes the following orders:

1. The Court declares that the distribution of the estate of the testator, Kevin John Young, was such as not to make adequate provision for the proper maintenance and support of his daughters, Andrea Hyatt and Christine Poisson.
2. The Court orders:

(a) a specific legacy in the sum of $110,000 for the first plaintiff;

(b) a specific legacy in the sum of $140,000 for the second plaintiff; and

(c) the net residuary estate to the defendant.

182 I will hear the parties on cost once they have had an opportunity to consider my reasons.

[1] [2004] VSC 90, [15].

[2] See, for example, Grey v Harrison [1997] 2 VR 359, 363.

[3] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476; and McKosker v McKosker [1957] HCA 82; (1957) 97 CLR 566, 571-572.

[4] Collicoat v McMillan [1999] 3 VR 803, 820 [47]; Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 79 [21]-[22].

[5] Coates v National Trustee Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 510 per (Dixon CJ).

[6] [2002] VSC 208; (2002) 7 VR 595.

[7] Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270.

[8] (1975) 11 SASR 315, 318-19.

[9] [2002] VSC 27.

[10] Harris v Bennett (No 3) [2004] VSC 171; (2004) 8 VR 425; Anderson v Teboneras [1990] VR 57.

[11] Jones v Dunkell (1959) 10 CLR 289.

[12] [2004] VSC 90, [46].

[13] McKenzie v Topp [2004] VSC 90, [55].

[14] McKenzie v Topp [2004] VSC 90, [63].

[15] Leyden v McVeigh and Anor [2009] VSC 164, [41].

[16] Anderson v Teboneras [1990] VicRp 47; [1990] VR 527, 535-537.