Plaintiffs v Defendant

2 The defendant is Bernard John Greely, a sibling of the plaintiffs and the executor and major beneficiary of the estate. The deceased made a will dated 7 November 2007 by which she gave legacies of $5,000 each to the plaintiffs and their brother Michael and to Legacy Melbourne. She left the balance of her estate to Bernard. Prior to the hearing, settlement was reached between Bernard and his brother Michael, who received the sum of $67,000, which included a contribution for his costs.

3 An inventory of assets and liabilities prepared by Bernard for the purpose of obtaining probate attributed a total value to the estate of $504,018.53. The estate was comprised of unencumbered real estate at 16 Ross Street Huntingdale, Victoria and some cash.

4 Bernard challenged the jurisdictional basis for any further provision to be made in favour of any of the plaintiffs. While acknowledging the first jurisdictional question was whether the deceased had responsibility to make provision for the plaintiffs, the defendant focussed his jurisdictional challenge to contend that the plaintiffs had not established that adequate provision had not been made. Accordingly, I understood the defendant to accept that the deceased had some responsibility, as the mother of the plaintiffs, to make provision for them, but argued that adequate provision had been made. He argued that the plaintiffs were unable to establish any real need. That, and the character and conduct of the plaintiffs became the central issues.

5 The plaintiffs and the deceased had been estranged for many years. That of itself was an unusual circumstance, if only because there had been a falling out between a mother and not one, but most of her children. The defendant attributed responsibility for the breakdown in the relationship to his siblings. He said that Susan had abandoned her mother 30 years before her death. He said that Sharon was violent towards her mother and had assaulted her on at least five occasions as a teenager, and again as an adult, in early 1991. He said that Shane had made unauthorised withdrawals from a business in which Shane and he were partners. The purchase of the business had been supported by security given to the bank by his parents and himself. He went so far as to allege that Shane was dishonestly misappropriating company property and attempted to conceal his conduct. He accused Shane of dishonest dealings to the prejudice of his parents' financial security.

6 I am satisfied that the deceased had a responsibility to make provision for each of her children, although I am not satisfied that she failed in he duty to make adequate provision for the proper support and maintenance of Sharon. That finding is not, however, based on any allegations of misconduct advanced against her by the defendant. I am satisfied that in respect of Susan and Shane, the deceased had a moral responsibility to make greater provision than she did. The amount of further provision that ought to be made for Susan is $95,000, and for Shane, $70,000.

7 Susan is the eldest child of the deceased and her husband Edward Greely. Susan was born on 29 January 1952 and is 59 years of age. She married Robert Dee in 1972. They have three children, Craig, Kylie and Bryce who are 38 years, 35 years and 29 years respectively.

8 Susan described her mother as controlling and dictatorial, although not in those terms. She was strict and family life was regimented. Susan said that while Christmas was celebrated it was not a particularly festive event. Susan said that she had only one birthday party, at five years old. It is no doubt difficult for a child to describe her mother as mean, but that is one interpretation of Susan's evidence.

9 Susan spoke of a normal sibling relationship with Sharon, Michael and Shane as she grew up, but described her relationship with Bernard as difficult. She described an event when, at around 10 years old, Bernard hit heron the head with a tin bucket repeatedly, and on another occasion when she was about 20 years of age being punched in the stomach by him when pregnant. She could not recall making a complaint because she did not consider it would serve any useful purpose. She described the defendant as a bully. She said that at about the age of 13 he became violent, breaking all the windows at the family home and was sent to live with a cousin in Watsonia for a year. The defendant rejected Susan's version - he said he only broke two windows.

10 Susan said that she lived with her parents until 1972 when, at the age of 20, she left home. She had been educated at Killester College until fourth form, and thereafter at the Oakleigh Technical School. She attended Business College and eventually obtained employment as an administration officer. Soon after she married Robert, they moved to their current home in Tullamarine.

11 Susan said that she always maintained a good relationship with her father. Her mother took little interest in her activities. She said that the only interest she and her mother shared was that they both enjoyed playing tennis. They played in a competition over two seasons. Despite sharing that interest she said they never grew close. She described her mother's interest in tennis as more important to her mother than anything else. She described her mother as distant and cold in her attitude towards others, including her children.

12 Susan was living at home when she met Robert, her future husband. She was 18 years of age. She recalled taking Robert home to meet her parents. She described his reception by her mother as cool. She said that Robert was never embraced by her mother into the family, and that it was uncomfortable to bring him home. While living at home, Susan fell pregnant. Her son Craig was the first grandchild born to the family. Susan recalled that after Craig was born, mothers of her friends knitted garments for him, but her own mother did not, even though she was a prolific knitter.

13 Susan said that after moving to Tullamarine in 1973 her mother only visited her home on three or four occasions during the next 35 years. Her father, on the other hand, visited regularly, taking public transport. He did not have a driver's licence. Susan said that she and her family would visit her parents' home at least once a month, but did not feel welcome. On one occasion, in about 1976, the deceased told Susan that she did not like her husband Robert. There was no explanation.

14 Of the three applicants, Susan's financial need was most apparent. In 2005, she was diagnosed with breast cancer. A recent medical report disclosed that her cancer was in an advanced state, with multiple liver secondaries. It is an incurable and terminal condition. She has limited life expectancy that may be measured in months, although such predictions are often inaccurate. Susan has had other health problems, dating back to 1985 when she suffered a lung aneurism and was in intensive care for a week. She also suffers from Osler's disease.

15 Susan held various jobs after 1987, including a cleaning position at CSL and then in customer service at Standards Australia. She was retrenched in 1994. Robert worked for the Port of Melbourne, in a managerial position since leaving school, but was made redundant at about the same time as Susan. Following her retrenchment, Susan obtained some work in a sandwich shop, a school canteen and cleaning houses. Robert obtained some contract work with local councils.

16 When Robert was retrenched from the Port of Melbourne in 1994, he received a payout of approximately $300,000, including superannuation and other entitlements. He now receives an allocated pension. At the date of Helen's death, that pension was around $34,000 per annum, which was their combined income. The pension has since reduced slightly since then to around $32,000. There is a possibility that Robert will become entitled to a disability pension.

17 Susan and Robert own their home at Tullamarine, valued at approximately $400,000. It is unencumbered. Susan has a superannuation entitlement of only around $8,000 and no other assets. The Tullamarine property attracts the usual domestic expenses, such as council and water rates, and electricity and gas charges. The dwelling is approximately 35 to 40 years old, and requires an electrical upgrade and repainting. Susan estimated the cost of this work to be a total of approximately $8,000. Her estimate seems conservative.

18 The youngest son of Susan and Robert, Bryce, plans to marry in the near future. Susan and Robert wish to travel to England for the wedding and make a contribution to the cost.

19 An issue arose in the proceeding concerning the time at which the relevant facts must be considered when approaching the jurisdictional questions under s 91(4) of the Act. In McKenzie v Topp,[1] Nettle J said:

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 matter that the court considers relevant.

There is of course conclusive authority for the proposition that the question whether adequate provision has been made must be determined by a consideration of the facts existing and eventualities which might reasonably have been foreseen at the date of the testator's death, whereas the question what order should be made is to be decided by reference to the state of facts existing at the time of the hearing by the court...

21 A question arose in this proceeding as to whether the wording of s 91(4)(h) of the Act altered the position enunciated in the authorities mentioned above and numerous other authorities. The plaintiffs submitted that a consideration of financial resources for the purpose of the jurisdictional questions ought to be undertaken as at the date of trial and for the foreseeable future. The significance of the timing was relevant to the financial position of Shane, which has deteriorated since his mother's will was made and the time of her death.

22 In my view it is possible to reconcile the words of paragraph 91(4)(h) and the authorities, by approaching the analysis of the available facts at the date of death with the advantage of all relevant facts at the date of trial. An examination of need as at the date of death of the deceased can be informed by what a wise and just parent in the position of the deceased, might have anticipated or foreseen would be the financial needs of her children into the future. Of course, if there was no proper basis on which to conclude that a wise and just parent with full knowledge of all the facts, would have made greater provision, the mere fact that the financial position of the child had thereafter deteriorated would not assist.

23 At the time of her mother's death, Susan and Robert were living on a relatively meagre pension, and both were without regular employment. Because of Susan's age, she had and continues to have, difficulty obtaining employment to supplement their combined income. That is quite apart from the limitations imposed by Susan's illness.

24 Susan's needs extended beyond what I regard as her modest estimates for repairs and maintenance to the family home. Her needs might foreseeably have included a supplement to her income, home maintenance costs and her ability to travel to enjoy her children's lives and relationships. I do not think it matters that Susan did not herself identify these particular needs. She had difficulty, as did her siblings, expressing any particular needs. The evidence indicated otherwise.

25 Another unusual feature of this case is that Susan has agreed with her sibling plaintiffs to divide whatever may be awarded by the Court equally between them. While not expressly advanced as an expectation, it seems likely that the applicants are of the belief that the estate of their mother should have been divided equally between them. It is not the role of this Court to rewrite the will having regard to the expectation of the siblings or what might seem fair and reasonable. The jurisdiction conferred upon the Court is confined to a power to make adequate provision for the proper maintenance and support of a plaintiff, but only if the preconditions to that jurisdiction are satisfied, having regard to the factors set out in s 91(4)(e) to (o), as well as any other matter that the Court considers relevant. Each condition invokes a consideration of the question of what provision a wise and just mother would have thought to be her moral duty to make in the interests of her children, and in this particular instance, being fully aware of all relevant circumstances.[3]

26 In MacEwan & anor v Shaw,[4] Dodds-Streeton J undertook a helpful review of the law following the amendments made in 1997. Her Honour said:

"A substantial body of precedent decided under the previous legislation indicated that the correct approach in the context of maintenance applications was to apply a two stage test. The first stage of the applicable test involved a determination of whether the deceased's will (or intestacy) was such as to provide adequate provision for the proper maintenance and support of the applicant.

In resolving that question, the Court was required to place itself in the testator's shoes and determine what testamentary dispositions ought to have been made by a just and wise testator in all the circumstances of the particular case.

In Bosch v Perpetual Trustee Co Ltd,[5] Lord Romer stated -

'Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband and father.'[6]

In several cases, the concepts of moral duty or moral claim and the wise and just testator have been criticised, as constituting a judicial gloss without statutory justification. That criticism culminated in Singer v Berghouse [No. 2][7] where Mason CJ, Deane and McHugh JJ doubted whether the just and wise testator provided useful assistance in elucidating the statutory provisions.

Despite those observations of the High Court in Singer v Berghouse (No. 2), and their subsequent endorsement by the New South Wales Court of Appeal, Victorian authority has adhered to the tests of moral duty and the wise and just testator. In Collicoat v McMillan[8] Ormiston J declined to endorse the criticism of the Mason CJ, Deane and McHugh JJ observing that it was obiter dicta only. His Honour there observed that much of the criticism of the moral obligation misconceived its nature. In Ormiston J's view, the test did not require an applicant to demonstrate entitlement by reference to the merits of his character or conduct. Rather, it focused on the obligation of the testator to make such testamentary dispositions as were right and proper, according to accepted community standards, having made a wise and just assessment of the entitlements. (Emphasis added)

Ormiston J in Collicoat v McMillan also observed:

'[T]he expression "moral duty" remains a simple and convenient way of referring to the obligation ... resting on a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances ... It is sufficient to say that the word "moral" used in connexion with the legislation is apt to describe what is generally considered according to accepted community standards to do what is right and proper for those members of his family whom one would expect to be entitled to a share in the distribution of his or her estate on death.'[9]

In Grey v Harrison,[10] the Court of Appeal confirmed Ormiston J's reaffirmation of the wise and just testator. Callaway JA, with whom Tadgell and Charles JJA concurred, noted that -

'The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years. It supplies the norm that the legislature left unexpressed. See and compare Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 46 per Sheller JA. It is the way in which the courts, for almost the whole of this century, have construed the legislation. As Ormiston J explained in Collicoat v McMillan (unreported, 30 October 1995) at 63-76, it is in large measure exegetical of the "proper" in the phrase 'proper maintenance and support'. It also reflects the view that there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purposes of remedying such a breach.'[11]

...

In my opinion, the amendments to Part IV introduced by the Wills Act 1997 do not require or justify a different approach. The retention of the traditional words 'proper maintenance and support', the express reference to the responsibility of the testator in the legislation and the acknowledgment in the Second Reading Speech that the remedial legislation was directed at facilitating applications by those who have 'moral claims', reinforce rather than attenuate the application of the traditional concepts of moral duty and the wise and just testator.

That approach was confirmed by Warren J in Lee v Hearn[12] where her Honour observed:

'The post amendment case law has made it clear the common law moral duty or obligation to provide still permeates codification and that the significant changes have been first the possibility of application by a wider class of persons and secondly the application by the court of criteria in making its determination whether or not a claimant should have been provided for or should have been more generously provided for.'[13]

Similarly, Harper J in Schmidt v Watkins,[14] on considering the Second Reading Speech, concluded that the amendments effected by the Wills Act were seen by Parliament as 'part of a continuum, rather than as a complete break from the unamended provisions of Part IV' and 'not as creating a new class of claimant but merely as expanding the boundaries of the old.'[15]

Harper J stressed that a breach of duty and an abuse of the freedom of testation are at the core of the court's jurisdiction in this context.

In Harper J's view, all twelve factors set out in s.91(4)(e) to (p) are relevant to each of three questions. That is, whether the deceased had a responsibility to provide for the claimant; whether the duty was breached, in that adequate provision for proper maintenance was not made; and thirdly, if a breach is established, the amount of the provision to be ordered.

Harper J also observed in Blair v Blair[16] that the legislation remains concerned with only the adequate provision of proper maintenance support. Adequate provision may go well beyond mere subsistence and may involve careful assessment of what is fair between competing claimants.[17] On the other hand, the legislation does not authorise a general curial redistribution of the deceased's property, according to notions of fairness.

In Pontifical Society for the Propogation of the Faith v Scales,[18] Dixon CJ observed that the notions of what is adequate or proper are relative. They necessarily involve consideration of the 'nature, extent and character of the estate, the other demands upon it, and what the testator regarded as superior claims or preferable dispositions.'[19]

Victorian authority has held that although need is a relative concept, it must be shown in order to establish a claim.[20] A moral claim alone will not suffice. In my opinion, that authority is unaffected by the amendments.

...

The amended legislation, while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off.

Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the court has no jurisdiction to make an order, no matter how large the testator's estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept.

Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and just testator would have applied. There must be an abuse of the freedom of testation.

Prevailing community standards, which may alter according to changing social and economic conditions, are the criteria against which the duty and moral obligation, and any departure from them, must be measured.

According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents."

27 The plaintiffs placed emphasise on the words proper maintenance and support in s 91 of the Act. In Bowyer v Wood,[21] the Full Court of the Supreme Court of South Australia said of the process under which a determination of adequate provision is to be undertaken:

"[39] When determining whether the testatrix has failed to make adequate provision out of her estate for the proper maintenance of the plaintiff, it is necessary to consider what is meant by the words 'adequate' and 'proper'. This meaning has been considered on many occasions. The words 'adequate' and 'proper' are always relative: Goodman v Windeyer at 502 per Gibbs J applying Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19. They must be applied in a relative sense to all the circumstances of the case: re McCaffrey (1982) 29 SASR 582 at 585. There are no fixed standards and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards: Goodman v Windeyer (above).

[40] The word 'proper' connotes something different from the word 'adequate': Goodman v Windeyer at 497. The word 'proper' connotes an ethical position as to what allowance should be made: re Harris [1936] SASR 497 at 500 applying Allardice v Allardice (1910) 29 NZLR 959. Adequate provision for the proper maintenance of a child is not limited to providing what is sufficient for a basic subsistence or satisfying the mere needs of that child. As Salmond J said in Welsh v Mulcock [1924] NZLR 673 at 685:

[T]he testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence. This may be the measure of the legal obligation of a husband or a father in his lifetime under the Destitute Persons Act, but it is not the measure of that moral obligation - that officium pietatis, as the Roman lawyers called it - which he owes to his family in respect of the testamentary disposition of his estate, and which is recognized and enforced by the Family Protection Act.

The Privy Council commented on the distinction between the words 'adequate' and 'proper' in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476 in these terms:

The use of the word "proper" in this connection is of considerable importance. It connotes something different from the word "adequate". A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may be quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his "adequate" maintenance. Nevertheless, such sum cannot be described as not providing for his "proper" maintenance, taking into consideration "all the circumstances of the case" as the sub-section requires shall be done.

Those passages highlight how what might be considered to be an adequate provision for proper maintenance of a child will vary according to all relevant circumstances. The needs of the plaintiff are not considered in a vacuum. The size of the estate is relevant when considering what is an adequate provision for the proper maintenance of a child.

28 Applications for further provision under Part IV of the Administration and Probate Act by adult children are not uncommon. There is no need to establish some special need or special claim in such circumstances.[22] In the present case, it is difficult to overlook the disconformity between the provision made for the defendant on the one hand and for Susan, Shane, Michael and Sharon on the other. At the time his mother died, the defendant owned two properties and a half share in a third, although it is true that he attended the needs of his mother during her illness until he was unable to continue to do so. The defendant seemed to maintain a strong link with his mother, who had managed his financial affairs from the time he was first employed. It was not surprising that the deceased would leave a substantial part of her estate to him.

29 In my opinion, it would seem wholly artificial for the Court to undertake the task of assessing the preconditions to jurisdiction, and the amount of any provision to be made, without regard to the assets of the defendant. For a start, any further provision should not result in Bernard's interest falling short of adequate provision. In any event, his financial position is made a relevant factor under paragraph 91(4)(h).

30 Shane was born on 10 May 1962. He was 46 at the time his mother died and is now 49 years of age. He is married to Berna. They have a child, Edward, born on 23 June 2010. He is the manager of the Royal Oak Hotel at Kilmore and presently earns $70,000 per annum. He has a small interest in the equity of the business, lives in rental accommodation and has a credit card debt of $120,000. Berna is employed part time in the hotel business.

31 Shane also spoke of a difficult relationship with his mother. He left home at the age of 18, after completing his High School Certificate at Assumption College in Kilmore. He had previously attended Salesian College in Chadstone. The education of Shane and his siblings had been paid out of a trust fund established by their grandmother.

32 Shane said that while at Assumption College, apparently as a boarder, his parents did not once visit him. His father did not have a drivers licence and relied on his mother to drive him around. After leaving school he worked at various jobs including as a barman and at packaging businesses.

33 Shane said that he had a good relationship with his father, which continued after he left home, although his father found himself in a difficult position when Shane's relationship with his mother deteriorated. He said that his mother took no interest in his extra curricular activities while he was at school, and seemed to be more interested in her tennis. His friends were never allowed to stay over at the family home. He said that prior to 1991, he endeavoured to maintain a relationship with his mother and went to the family home for lunch each Friday. A business dispute ended his relationship with his mother and Bernard, and also had the effect of interrupting the relationship, such as it was, between the deceased and Sharon.

34 In about 1989, Shane acquired an "Action World" franchise. It was a sports store. His initial plan to go into business with a partner fell through. As a consequence, Shane needed support for a loan of $144,000. Bernard and his parents came to his assistance. Bernard contributed two properties and his parents put up their family home as collateral for the loan.

35 The business relationship between Shane, Bernard and his mother was ambiguous. There was a company, SQOD Enterprises Pty Ltd in which Shane and Bernard were directors and shareholders. The deceased may also have been an office holder. Bernard spoke of the business as a partnership while Shane spoke of Bernard as a silent partner. Shane said that Bernard was entitled to a fee of $300 a week for providing the security. Bernard claimed to be an equal partner in the business. He suggested that Shane had agreed to pay domestic expenses for his parents in return for their having provided security.

36 When the relationship broke down in early 1991, Shane bought out Bernard by paying him an amount which substantially reflected the amount of a loan account, created by the accountant, reflecting drawings by Shane over the years for his own personal needs. That sum was approximately $22,000. The nature of the buy out transaction did little to clarify the business relationship. While Bernard said the business was a partnership, Shane regarded the business as his own.

37 The circumstances of the breakdown in the business relationship was central to the defendant's case. He alleged that Shane was discovered to have made unauthorised withdrawals and payments from the business, but refused to provide any explanation. Shane was confronted by the allegations at a meeting, arranged by Bernard and his then partner, Eileen Mulcahy, at the family home. The meeting was the last occasion on which Shane spoke with his mother.

38 It is not clear why Shane went to the home, but when he did he was presented with allegations based on a document entitled Unauthorised Personal Expenditure, prepared by Ms Mulcahy. Ms Mulcahy said that she and Bernard had worked a few hours each week in the business in 1990. In about December 1990, or January 1991, she uncovered some irregularities in the company's accounts. She interpreted the irregularities as a misuse by Shane of company funds. She and a friend, Anne Hassett, removed the company's books and records from the business premises to the family home in Huntingdale, and checked through them in the presence of the deceased. The characterisation of amounts set out in a document prepared by Ms Mulcahy as Unauthorised Personal Expenditure no doubt coloured their discussions.

39 At the trial, the defendant attempted to demonstrate that each of the amounts mentioned in the document was an authorised expenditure. He cross-examined Shane to make good the allegation. The attack failed in its objective. Some of the amounts appeared to have been business related expenses, and many were ambiguous. Then there were the bank statements.

40 By reference to bank statements, the defendant sought to establish that Shane had withdrawn amounts in excess of his wages, on a regular basis, to meet his mortgage repayments. Shane denied any wrongdoing. He denied the unauthorised character of payments attributed to them by the defendant and Ms Mulcahy. He claimed to be entitled to withdraw funds or make payments on his own accounts. After all, the accountant for the business was apparently recording items of personal expenditure against a loan account Shane's loan account. Bernard said there was no agreement about loan accounts.

41 The circumstances in which the business relationship between Shane, Bernard and their mother broke down was employed by Bernard to mount a vigorous and sustained attack on Shane's honesty. He alleged dishonest misappropriation of company funds. The attack was designed to establish bad character and misconduct towards the deceased and her husband, whose home partly secured the business debt. When Shane refused to discuss the allegations, his mother called him a lying bastard and made it plain that she did not wish to have anything to do with him thereafter.

42 When allegations of this kind are made in a trial, the party making the allegations assumes a heavy burden. The burden has different components, all designed to ensure that serious allegations of misconduct or criminality are not lightly made in a privileged circumstance, and that a court will only be persuaded to make findings of such conduct by credible and admissible evidence, having regard to the seriousness of the allegation.[23]

43 I am not persuaded by the defendant's attack on the honesty of Shane. The evidence was neither clear nor cogent. The attack was launched on the basis of no more evidence than the defendant and Ms Mulcahy had in 1991. The extent of the attack was amplified at trial with the production of the document prepared by Ms Mulcahy. Prior to that, it had been confined to a limited number of transactions set out in her affidavit. The basis for the attack was no more than suspicion of wrongdoing, coupled with Shane's refusal to provide an explanation.

44 I have no doubt that Shane withdrew amounts from the business account to pay for his own expenses. He conceded a number of items, and accepted that the amounts recorded by the accountant in his loan account were personal. In my opinion there was no proper basis for the allegations to be made in this proceeding. Because the scope of the attack on Shane only became evident during the trial, the nature of the business relationship was never fully explored.

45 In final submissions, the defendant softened his approach, confining the allegation made against Shane to one involving a breach of his obligation to provide an explanation to his mother and brother when confronted by the allegations of unauthorised expenditure. The defendant argued that the significance of his conduct was prejudice to the security provided by his parents. But even that allegation suffered from the same uncertainty about the business relationship, and the entitlements and expectations of the security providers. While Shane did not believe that he was obliged to provide any explanation, the defendant spoke of fiduciary obligations and duties of good faith.

46 Having regard to the way in which Ms Mulcahy had obtained her evidence and the manner in which the material was apparently discussed with the deceased at the family home, in advance of a proposed meeting with Shane, it is no wonder that there was a confrontation. I have no doubt that Ms Mulcahy and Bernard presented a case to the deceased consistent with their assumptions about the business relationship or structure and the heading of the document prepared by Ms Mulcahy - Unauthorised Personal Expenditure.

47 It is not possible to attribute fault for the breakdown of the relationship between Shane and his mother. It was a tragic outcome to an already difficult relationship. The deceased severed her relationship with her son and Sharon seems to have fallen in behind him. She substituted her property as security when the deceased and Bernard demanded that their properties be released as security. The business eventually failed, but Shane repaid its debts. There was no enduring prejudice to any of the security that had been provided.

48 At the time of his mother's death, Shane was employed by J C Decaux, where he had worked for his previous nine years as a Direct Sales Manager. His annual salary package was $140,000. In the previous year he had purchased a 2002 Porsche Carrera for around $140,000. The monthly hire purchase payments were $2,200. the defendant was highly critical of this purchase and expenditure, characterising it as extravagant and impliedly disentitling. During that period, Shane had also invested in a managed investment scheme operated by Timbercorp, and had borrowed $70,000 from Timbercorp Finance. The monthly repayments were $1,209. He had also invested in a growth portfolio with Macquarie, acquiring 190,000 $1 units which were being paid off at $1,424 per month.

49 Some months after his mother's death, in September 2009, Shane was retrenched from J C Decaux and commenced to work as a Commission Agent for an outdoor advertising company, Look Outdoor. His financial circumstances took a turn for the worse. Since then he has acquired his small interest in the Royal Oak Hotel, and the position as Manager.

50 Shane sought to establish his need by reference to his debts, and the cost of raising a family. He also hoped to be in a position to purchase a family home in the not too distant future.

51 Shane is obviously enterprising, capable and enjoyed a relatively high income at the time of his mother's death. At present he is employed as a hotel manager on a salary of $70,000 per annum with a share in the business. His wife is also employed in the hotel business. With a new dependant, and a reduced income, his financial position is not as healthy as at the time of his mother's death, although he is optimistic about his prospects.

52 Sharon Dutkowski was born on 12 March 1956. She was 53 years of age when her mother died and is presently 55. She is married to Tom, who is 57 years of age.

53 Sharon lived at home with her parents until the age of 20. After completing Year 12 at Presentation College in Windsor she obtained a position as a Customer Relations Officer with the Gas and Fuel Corporation and remained in that position for about 10 years. She first married in 1976 but divorced in 1979. She married Tom in 1983. They have three children, Rebecca, Joanna and Michael, all in their mid-twenties.

54 Sharon said that she had a fantastic relationship with her father but that her mother took little interest in her. She never came to watch sporting matches, nor did she assist with homework. Although the deceased attended Sharon's wedding to Tom, he was never made to feel welcome. Sharon said that her mother seemed excited at the birth of her first child, Rebecca, and her second child, Joanna; but showed no interest in Sharon's third child, Michael. The deceased offered no assistance when Michael was born four weeks' premature. Sharon said it was a particularly difficult time for her, and she was disappointed that her mother was apparently not interested in her son. Sharon said that her relationship with her mother was cordial at best, but by the time the children were at school, it was distant.

55 Sharon said that her relationship with her mother deteriorated in 1991 with the breakdown in the business relationship between her mother, Bernard and Shane. She attempted to confront her mother about her decision to withdraw her property as security for the business loan, but that led to argument and unpleasantness. Sharon said that she did not speak to her mother after that time.

56 Notwithstanding the difficulty experienced with her mother, Sharon maintained contact with her father until his death in 1993. He would telephone her on a daily basis. Even at her father's funeral her mother avoided any contact with her.

57 Sharon said that after March 1991, the only communication she had with her mother was in May 2008 when she received a typed letter informing her that her mother had been diagnosed with Motor Neurone Disease The apparent purpose of the letter was to give Sharon an opportunity to seek further information about the disease. An identical letter had been sent to each of her siblings. It was typed and signed, "Regards, Helen Greely". Sharon wrote to her mother asking her if she needed help. There was no response. Sharon kept herself informed about her mother's condition through her brother, Bernard.

58 Sharon is currently employed by Novaprint, working 32.5 hours per week and earning around $40,000 per annum. She has no other source of income. She has a superannuation entitlement of approximately $55,000, and holds shares in banks worth approximately $190,000. Her husband Tom was retrenched from his employment in the IT Department at Coles in March 2008. It took him approximately 16 months to find contract employment. He worked briefly for IBM in August 2009, and in 2010 was employed by AIG for a period of time at $70 per hour. Tom has a superannuation entitlement of $570,000.

59 Sharon and Tom live at Wheelers Hill. Their home is valued at approximately $650,000 and is subject to a mortgage of $80,000. They own a 2007 model Volkswagen Golf and a 1998 LandRover Discovery. Sharon presented her needs in terms of those of her family and their future. She and her husband wish to be in a position to contribute financially to the weddings of their children and to assist them to buy a house.

60 Bernard set out to paint a picture of his mother as struggling financially, but attempting to treat each child equally. He said she tried to ensure that all were well cared for. He said she was reserved by nature, keeping her thoughts and problems to herself, and did not want to burden anyone else with her troubles.

61 Bernard said that both he and Sharon caused their parents some concern. He spoke of an incident in which, in a fit of anger, he broke two windows in the house. He went on to give evidence of conflicts between Sharon and their parents in which Sharon was violent towards her mother and Bernard had to intervene. He recalled when Sharon, at about age 15, screamed at her mother and threw fists at her. He said that Sharon was extremely aggressive. He said he intervened on at least five occasions to stop Sharon attacking their mother. He said that Sharon's violence towards her mother made her fearful.

62 Sharon denied being violent towards her mother, but conceded she got angry from time to time. Bernard went so far as to suggest that as a result of Sharon's violence she was to be admitted to Winlaton Girls Home in around 1971. He said that Sharon's admission did not take place because at the time he was unwell and unable to drive her. According to Bernard, the matter was subsequently dropped. Sharon's version of events was that the reference to Winlaton was no more than a flippant remark. She said that she was never seriously threatened with admission. The story presented by Bernard to explain why it was that Sharon was not admitted to Winlaton makes his version of events implausible. In my view, it was an embellishment designed to damage the character of Sharon. I accept Sharon's explanation. This was another attempt by Bernard to undermine the character of a sibling.

63 The reasons for the breakdown in the relationship between the deceased and most of her children is no doubt more complex than the evidence reveals. It is not possible to identify a single cause or attribute blame. I do not accept that the breakdown was the result of misconduct by any one of the plaintiffs. I do not regard the circumstances of the breakdown to be such as to relieve the deceased of her moral obligation to make adequate provision for the proper maintenance and support of her children.

64 The relationship between Bernard and his mother seems to have been quite different to that of his siblings. For example, he said that from the day he started working his mother managed his financial affairs. She held his power of attorney since 1980. The reason was not explained. Bernard would deposit his income into a bank account to which his mother was a signatory. She held his cheque book and paid all of his accounts. Bernard did not assume responsibility for writing his own cheques until his mother was unable to write in about 2008. In such circumstances, his involvement in the business with Shane took on a new perspective that was not explored in evidence.

65 Bernard explained his mother's rejection of Shane on the basis that she had been told of all the facts about Shane's conduct in the business and in view of his refusal to explain his conduct at our meeting, mother made up her own mind about the trust and morality of Shane's conduct. No doubt she was told of the facts according to the paradigm implicit in the document prepared by Ms Mulcahy.

66 Bernard's financial circumstances are quite different to those of his siblings. He owns a house at 13 Westgate Street Oakleigh which he said is worth about $600,000, but in a state of disrepair and in need of renovation. In 2004 he bough a property at St Kilda which he said is worth about $350,000. The St Kilda house is rented. He said he has shares worth about $100,000 and about $80,000 in savings. He also has a half interest in a property in Grant Street Oakleigh. He said that his interest was worth about $200,000.

67 Bernard is a part-time bus tour guide and driver. He was born on 15 September 1953 and is presently 57 years of age. He lived at home until he was 20 years of age. In 1970 he commenced work at the PostMaster General's Department in personnel and industrial relations. From 1989 to 1994 he worked with Sunicrust Bakeries driving vans and in about 1991 started working for Autopia Tours as a bus driver. At that time he worked two jobs, initially driving buses on a casual basis. In about 1994 he started working on a full-time basis with Autopia Tours. In about 2007 he commenced to work for Go West Tours on a casual basis. Since then he has held other casual driving positions.

68 The contentious issues are whether the deceased had discharged her moral duty by making adequate provision in her will for Susan, Sharon and Shane; and if not, what provision should be made. In considering those questions, regard must be had to each of the factors (e) to (o) under s 91(4) of the Act and any other matter the Court considers relevant. It is convenient to consider the position of all three plaintiffs at once.

69 The defendant submitted that the relationship between the deceased and Sharon was tainted with hostility and violence when Shane improperly withdrew funds from the business and refused to explain his position. He submitted that when Sharon confronted her mother about withdrawing security there was at least a heated argument and possible assault. Sharon did not speak with her mother from about March 1991 following the breakdown of the business relationship. The defendant attributed responsibility to Sharon for the breakdown in her relationship with her mother, linking her to the misconduct of Shane. I have already found, that the evidence concerning these events, as far as it goes, did not relieve the deceased from a moral obligation to make adequate provision for Shane and Sharon.

70 In relation to Susan, the defendant submitted that she had no contact with her mother for about 30 years from the time she left home. He submitted that she showed no sympathy for her mother, even when she was dying. I am persuaded that the failure of the relationship between the deceased and her children was the product of more complex set of facts and circumstances than the evidence revealed. The uniformity of the estrangement is most unusual. I am not prepared to attribute fault to Susan or the deceased.

71 The defendant submitted that the deceased had no obligation or responsibility to provide for any of the plaintiffs. In some respects this factor is a repetition of a precondition for jurisdiction although it is broad enough to take account of the responsibility of the deceased to others, including the defendant. The deceased acknowledged a responsibility to make provision for Bernard. Having regard to Bernard's asset position, I am satisfied that the additional provision I propose making for Susan and Shane will not have the consequence that Bernard will be left without adequate provision out of the estate.

72 The defendant submitted, correctly, that the estate is relatively small. The size of the estate must be viewed against the needs of the adult children. After deducting legal fees and the amount paid to Michael, the residue was estimated by Bernard at approximately $400,000. I take that estimate to be conservative.

73 The defendant submitted that the only plaintiff who demonstrated any specific need was Susan, who had identified a requirement of $8,000 for maintenance to her home. In my opinion that is to take a blinkered view of her need. Her needs extends well beyond a few house repairs. She is in need of substantial assistance because of her limited income and the limited capacity of her husband to provide support. They have a combined income of approximately $32,000 per annum as at the time of the trial. Susan is without the capacity to undertake home repairs. She is in need of a capital sum to supplement her meagre income. Their combined income would not permit Susan to travel to enjoy her son's wedding, or to provide the usual kind of help and assistance parents ordinarily expect to give their children at such a time.

74 The financial position of Sharon is different. In my opinion Sharon's position was at the time of her mother's death, and is now, relatively secure. She and Tom have net equity in their home of around $570,000, a share portfolio worth about $190,000 and combined superannuation worth around $650,000. Sharon is employed, earning a reasonable income and Tom is presently employed. Having regard to the size of the estate and the position of her siblings, I do not consider that Sharon has demonstrated that the provision made for her was inadequate.

75 The position of Shane is a little more complex. His present position is not as well remunerated as was his position at the time of his mother's death. He is the only child without a home of his own. He has a new wife and child, he has a credit card debt of $120,000 and a car worth less than the payout amount under his finance contract. A wise and just parent, in the position of the deceased, would have looked at Shane's position with some sense of despair. He had already experienced a failed business, but on the other hand he had paid off the debt. He had invested in Timbercorp, a tax driven investment, and acquired units in a Macquarie fund. Administrators were appointed to Timbercorp a few days after his mother's death. A wise and just parent would, in my view, have foreseen that Shane would probably marry and have a family, and would need assistance to meet his domestic obligations.

76 There is no apparent disability, physical mental or intellectual evident for Sharon or Shane. Susan is in a different category. Her prognosis is poor. A reduced life expectancy may be a basis to reduce the level of further maintenance, although such predictions are often inaccurate.

77 Sharon is presently 55 years of age, Shane is 49 years of age and Susan is 59 years old.

78 There is some evidence of some contribution by Bernard to the welfare of the deceased and to building up the estate. There is no such evidence in the case of Sharon, Shane and Susan.

79 There is no evidence of any benefit previously given by the deceased to Sharon or Susan, although Shane received a benefit when the deceased and her husband put up their property to help secure his business loan in about 1989. In my opinion that is a benefit that might properly be taken into account. It enabled him to acquire the business.

80 The plaintiffs were not being relevantly maintained by the deceased prior to her death. True it is that they were maintained as children and their education was paid out of a trust account set up by their grandmother. There were not, however, maintained after leaving home at around the age of 20.

81 Each of Sharon, Shane and Susan are married. It might be argued that Sharon's husband Tom is liable to maintain her. He is presently employed and has a sizeable superannuation fund. His assets and his relationship as husband and partner are a relevant factor. Shane is in a different position. While his partner works in the business, they have a small child. I do not regard his partner as under any liability to maintain him in the relevant sense, at least at this time. Her employment seems to spring from his business relationship and part ownership of the hotel. That is not to suggest that she would not have employment prospects elsewhere, but as matters stand, her present employment depends upon the success of her husband's business interest.

82 As for Susan, it is a little glib to submit, as did the defendant, that her husband is primarily liable to maintain her. His income and assets are modest. He may have assumed a moral obligation to maintain Susan, but his ability and means are not such as to discharge the deceased from her responsibility in relation to Susan as her daughter in the circumstances in which Susan now finds herself.

83 It is in this category that the defendant relied upon Sharon's alleged aggression, violence and assault, attributing blame to her for her estrangement from her mother. He submitted that she demonstrated no sympathy for her mother even when she was dying and that her only interest, like the other plaintiffs, was to grab a greater share of her mother's small estate. As I have said, I am not satisfied that Sharon was violent or assaulted her mother as the defendant suggested, or that the breakdown in the relationship between the deceased and Sharon was only Sharon's fault. I have no doubt that the plaintiffs thought that they ought to have been treated equally under their mother's will. I do not regard that belief as evidence of bad character. The defendant has not demonstrated any foundation for the proposition that, by reason of Sharon's character, the deceased was relieved of any moral duty she might otherwise have had.

84 The same may be said for Shane. In his case, I have found that the serious allegations made against him should not have been made in this proceeding. As for Susan, her bad character would seem to be based upon the fact that she had nothing to do with her mother for nearly 30 years. Once again, the reasons for the estrangement are complex, and do not so reflect on the plaintiffs as to relieve the deceased of her moral duty. To make adequate provision for their proper maintenance.

85 Having regard to all of these matters, I am satisfied that Susan and Shane have established the jurisdictional foundations enlivening the power of this Court to make further provision for them. In each case, the deceased did not make adequate provision for their proper maintenance and support. Both have established a material need. To limit their entitlement to a legacy of $5,000 each was, in all the circumstances, a breach of testamentary duty. Susan's need was and is demonstrable, following her retrenchment and the retrenchment of Robert, and their uncertain employment positions and prospects. Her proper maintenance involved more than mere subsistence, which is her present position. A wise and just mother would have sought to lift her out of that position, to a level of comfort and security near to that of Bernard and Sharon.

86 As for Shane, the fact that he may have wasted money on an expensive car, and failed to plan for his future as some might think prudent, may reflect on his maturity and judgment, but does not change the fact that he has not yet acquired his own home and now has a wife and young family. Investments have failed, including his sporting goods business and his investment in Timbercorp. He has a continuing liability to Timbercorp.

87 It was foreseeable at the time the deceased made her will, and at the date of her death, that Shane would settle down with a partner and have a family, and look for the security of a home. In the context of this family, as with most, the acquisition of one's own home is a normal and reasonable expectation.

88 It is true that Shane has a greater earning capacity than Sharon or Susan, and that must be taken into account. He is optimistic about the new business venture, but his last business failed. He was left with a debt to repay, which was repaid. All things considered, Shane's position was deserving of substantially more than he received under the will. The mere fact that each of Susan, Shane, Sharon and Michael only received $5,000 indicated a failure on the part of the deceased to consider their very different circumstances, and would suggest a general disregard of her moral duty towards them.

89 The two jurisdictional requirements having been satisfied in relation to Susan and Shane, the remaining question is to determine what further provision should be made. In McKenzie v Topp, Nettle J said:

Section 91 of the Act confers wide power to make such order as is thought fit in all the circumstances of the case. 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.

90 In Lichfield v Smith & Anor,[24] Hargrave J said:

Where a will does not make adequate provision for the proper maintenance and support of the particular applicant, and further provision for the applicant will not unduly prejudice other beneficiaries for whom the deceased had a responsibility to make provision, the Court adopts a reasonably generous approach. The cases include some colourful statements of this approach. For example, in Blore v Lang Fullagar and Menzies JJ stated that, in assessing the need of an applicant for further provision, that need may extend beyond 'the bread and butter of life' to include 'a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit'.

To similar effect is the approach in Worladge v Doddridge, where Williams and Fullagar JJ approved the following statement:

Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail.

The authorities also permit the Court, where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, to order further provision beyond the immediate and likely future needs of the applicant. In addition, the Court should consider the contingencies of life and may provide for a 'nest egg' to guard against unforeseen events.

91 Only a substantial sum would achieve any real improvement in Susan's economic circumstances, even over a relatively short life expectancy. The small size of the estate is a limitation. The Court must have regard to the legitimate claims of Bernard as a beneficiary, and of Shane as a person entitled to further provision.

92 While Susan and Robert own their own home, they have difficulty maintaining the house. That is not surprising on such a meagre income. It is only through a substantial capital sum that Susan's position can be improved to an adequate and proper standard relative to her siblings. Susan should also be able to fulfil some of the usual expectations of parents. She should be able to travel to her son's wedding if she is able, assist with the wedding and otherwise enjoy the pleasure of assisting her children. The sum of $95,000, in addition to the legacy of $5,000 would, if spent wisely, provide an additional source of income to help defray some of the maintenance costs and to enable Susan to live to a more acceptable standard. If the estate were larger I would have had no hesitation increasing the amount that ought to have been provided to Susan.

93 For Shane, a further sum of $70,000 should be allowed. That sum, in addition to his legacy of $5,000, will not even eliminate his present debt, but may assist in relieving him of some of his debt, and perhaps provide a deposit for a home for his young family. In different circumstances a larger adjustment would also have been appropriate for Shane, but the size of the estate and the entitlement of others militates against a greater adjustment.

94 For the above reasons the Court will order further provision to be made out of the estate of the deceased for Susan in the sum of $95,000 and for Shane the sum of $70,000.

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

[2] [1970] VicRp 29; [1970] VR 225, 232.

[3] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478; Gray v Harrison [1997] VR 359, 365; Callicoat v McMillan [1999] 3 VR 803, 815; McKenzie v Topp [2004] VSC 90, [15].

[4] [2004] 11 VR 95, 24-30, 38-50, 212-216.

[7] [1994] HCA 40; (1994) 181 CLR 201, 208.

[8] [1999] 3 VR 803.

[10] [1997] 2 VR 359.

[12] [2002] VSC 208 (31 May 2002).

[14] [2002] VSC 273, 24 July 2002.

[16] [2002] VSC 95; BC200201276, Supreme Court of Victoria, 4 April 2002.

[18] [1962] HCA 19; (1962) 107 CLR 9.

[20] Hallam v Maxwell (Supreme Court (Vic)) Hansen, J, No. 1351198, 13 November 1998 unreported; See also In re Anderson (1975) 11 SASR 276, 283 (Zelling J).

[21] [2007] SASC 327.

[22] Blair v Blair [2004] VSCA 149, [19]-[22].

[23] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2.

[24] [2010] VSC 466, [72]-[74].