Plaintiffs v Defendant

2 The relationships between the deceased and his eldest three daughters were complicated. In his will signed on 27 April 2018, the deceased left his entire estate to Dina, who was his wife at the time of his death, and appointed her the executrix of his estate. The precise value of the estate is unclear, but is in the region of $5 million.[2] The deceased stated in his will that he had deliberately made no provision for Danielle because they had been 'estranged from each other for many decades' and that he believed that she was financially independent. The deceased also stated in his will that he had deliberately made no provision for Bianca and Julia because neither had shown him 'an acceptable level of love, care and respect' that he believed they owed to him as their father, and because he believed that he had made adequate provision for them during his lifetime. The deceased also left a letter dated 19 March 2018, written by Dina but dictated by the deceased, and witnessed by his solicitor, in which he set out in more detail why he had chosen not to leave any money to the children by his first two wives. The letter suggests that he was disappointed that, despite what he would describe as his generosity and best efforts, Bianca and Julia had chosen not to maintain a filial relationship with him, and that he had had little contact with Danielle and that she, too, had chosen not to maintain a filial relationship with him. The matters asserted in that letter are disputed.

3 In separate proceedings, which were heard together, Danielle, and then Bianca and Julia, sought orders under s 91(1) of the Administration and Probate Act 1958 ('the Act') that provision be made out of the estate for their proper maintenance and support. Danielle submitted that a figure of $600,000 would be appropriate, and Bianca and Julia submitted that a figure of $1,000,000 each would be appropriate. In her written submissions, Dina opposed any orders being made. In the course of submissions, she submitted that any award ought to be no more than something in the region of $300,000 for each of Julia and Bianca and $190,000 for Danielle.

4 The trial was listed with an estimate of two to three days. However, on the first morning, counsel informed the Court that there would be only limited cross-examination of two of the witnesses. The parties provided written submissions before the trial and relied on those in closing. As such, the trial concluded within half a day.

(a) a residential property in Ocean Grove that is used as a holiday home;

(b) a residential property on Brunswick St, Fitzroy, where Dina and her two children live and previously lived with the deceased;

(c) a commercial property on Weston St, Brunswick, which is presently leased and used as Doherty's gym;

(d) a half-share in a commercial property on Johnston St, Fitzroy;

(e) two motor vehicles, a Maserati and a Toyota; and

(f) a debt owed by the Donateo Family Trust.[3]

6 These assets have been given different values at different times, as follows:[4]

7 Dina does not explain what happened with the $126,684 in cash in the estate at the time that probate was granted, or why the amount owed to the estate by the family trust has steadily decreased over time, or why she assessed the Ocean Grove holiday home at only $380,000 when probate was granted. The plaintiffs criticised Dina for the unexplained variations in her figures, and suggested that I ought to be sceptical of her evidence. They asserted that it was very unlikely that the value of the properties had not increased significantly in recent times in line with the property market generally, which was said to have 'notoriously soared'. However, no claimant sought to cross-examine Dina in order to explore these matters with her, or to suggest that she was acting other than honestly. In those circumstances, there is no basis for me to assume that Dina was doing other than her best when putting valuations before the Court. That is not to say, though, that I must uncritically accept her most recent figures.

8 Clearly enough, the most significant variations are to do with the value of Weston St and the value of Johnston St. I will consider these properties separately.

9 Danielle's assessment is based on a 'curbside appraisal' from estate agents Hocking Stuart, dated 1 May 2019, which gave a range of $5,500,000 to $5,750,000. This appraisal assumed that the property would be offered with vacant possession, and was an 'assessment of the highest best use of the property from a redevelopment perspective'. It was not expressed in cautious language.

10 Dina did not produce any material that supported the initial assessment of $2,450,000 or her 24 March 2020 assessment of $3,850,000; nor did she explain why the property would have lost $725,000 between that assessment and her 14 October 2021 assessment.

11 Dina's 14 October 2021 assessment is based on a formal valuation report dated 23 July 2021 from First Valuation Group. This valuation was expressed to be on the basis that the building was 'subject to the prevailing lease' and on an 'existing use' basis. It seems that the valuation put on it was, despite the length of the report, essentially calculated simply by assuming that the net annual rental income of $172,133 would represent a 5.5% return and working back from that. It seems to me that there are some problems with this assessment. First, it assumes, at least to some extent, that the current rent is a fair rent. According to the report, the property is returning $160 per square metre of building, whereas the other 'comparable leases' referred to in the report were all returning more than that. Second, the figure arrived at was, according to the report, equivalent to a capital value of $2,932 per square metre of building, whereas the 'comparable sales' referred to in the report, all of which were said to be of properties that were 'inferior overall', had capital values of between $2,769 and $8,786, averaging $4,694, per square metre of land. The 'comparable sales' were gyms in Ringwood, Knoxfield, Springvale and Kew. Even if the Kew property were excluded, the average capital value of those other 'inferior overall' properties was $3,331 per square metre of building, which is still significantly higher than the value given to this building. I do not see why properties in Ringwood, Knoxfield or Springvale would be more valuable per square metre than a property in Brunswick.

12 Bianca and Julia's assessment is based on a valuation from Charter Keck Cramer dated 21 October 2021. Its valuation commented on the First Valuation Group report referred to immediately above, and also referred to a 22 September 2021 market appraisal of $5,000,000 to $5,500,000 by Nelson Alexander, which was not otherwise put before me. The Charter Keck Cramer report seems to me to be balanced and sensible. It volunteered that First Valuation Group had failed to take into account the unrecoverable land tax payable by the landlord when assessing the net rental return, and in that way had potentially overvalued the property. However, it disagreed with the use of the sale of outer-suburban gyms as comparable sales. It considered that comparison with sales of other inner city properties would better incorporate the property's medium-term development opportunities and leasing prospects. It expressed the view that on that basis a yield range of 4-4.5% was appropriate which, after taking into account land tax, would produce a value of $3,490,000-$3,925,000.

13 Having regard to the issues identified above, and in particular my concern that Danielle's high assessment seems to ignore the fact that the property is subject to a long-term lease, and Dina's low assessment seems to be based on questionable comparisons, and because of the sensible and seemingly balanced manner in which Charter Keck Cramer has prepared its report, I propose to accept the mid-range of the Charter Keck Cramer valuation. Accordingly, I will proceed on the basis that the Weston St property is presently worth approximately $3.7 million.

14 The Johnston St property is a commercial, two-storey, terrace property. It is leased out. It is part of the same building as the adjoining property, which is owned by Dina outside the estate.

15 Dina's 7 November 2019 assessment of $750,000 was based on a 'curbside' appraisal by Hocking Stuart that the property was worth in the range of $1,450,000 to $1,500,000. Dina has not identified the basis of her 14 October 2021 valuation of Johnston St at $700,000, but it seems likely that it is half the value of $1.4 million given by First Valuation Group to the adjoining property.

16 Taking half the value of the adjoining property seems conservative, because the estate property is significantly bigger with a larger street frontage. Both are double-storey terraces, but the adjoining property is 118 square metres of land with 158 square metres of gross lettable area, whilst the estate property is approximately 151 square metres in size. However, the assessment of Bianca and Julia is based on a report dated 22 October 2021 that estimates the property's value at least at $1,100,000-$1,200,000. This report was prepared without the authors being provided with details of the property such as the terms of the current lease. But most importantly, it seems that this is the value of the entire property, rather than half of it, which is all that the estate owns.

17 In the circumstances, it seems appropriate that I proceed on the basis of Dina's most recent assessment of $700,000.

18 Doing the best I can, I consider that I ought to assess the net value of the estate at $5,156,561. This is the value given to it by Dina in her 14 October 2021 affidavit, but adjusted up for my assessment of the value of the Weston St property at $3.7 million, rather than Dina's assessment of $3.125 million. I am comfortably satisfied that the estate is worth at least this amount.

19 Of this, $1.9 million is the home in which Dina lives with her children. The estate can therefore be seen to be, in one sense, the matrimonial home together with $3,256,561.

20 It is common ground that if the legal expenses associated with this litigation are paid for out of the estate, they will reduce the amount in the estate by approximately $370,000, leaving the estate worth approximately $2,886,561 plus the matrimonial home.

21 Dina put forward some evidence about the current capital gains that would be realised if some of the trust properties were to be sold, and the tax that would be payable assuming that it was taxed at the top marginal rate. The Weston St property would have a capital gain of $1,108,621, and the Johnston St property a capital gain of $623,700. The tax payable on that basis for those properties would be $508,348 and $273,162 respectively. In the absence of any immediate plan to sell these properties, or any requirement to sell these properties, I do not intend to take this potential liability into account other than in a general sense.

(a) a commercial property on Johnston Street, Fitzroy. The most recent valuation puts this at $1,400,000. If this were to be sold, a capital gain of $133,200 would be realised, upon which, it is said, $38,680 in tax would be levied.

(b) through the family trust,[10] another commercial property on Johnston Street, Fitzroy. The most recent valuation puts this at $2,750,000. The most recent assessment of the trust's debts is $1,076,659 (mainly owed to the estate), leaving net assets in the trust of $1,673,341.[11] If the Johnston St property were to be sold, there would be a capital gain of $1,245,433. If all this were taxed at the top marginal rate, tax of $574,702 would be payable;

(c) shares worth approximately $121,000; and

(d) debts of approximately $40,000.

23 As things presently stand, therefore, Dina owns assets worth $3,154,341, and has inherited from the deceased assets worth $5,156,561, giving her control over assets worth approximately $8.31 million, including what was the matrimonial home.

24 Dina does not currently work and cares for her children who are 6 and 12 years old. She has estimated her family's living expenses at just over $100,000 per year, excluding holidays and gifts. She anticipates sending her children to private secondary schools which she estimates will cost a total of $400,000. (The deceased paid for Bianca and Julia, but not Danielle, to attend private schools.) The method by which this figure was arrived at was not specified. Although Dina was not challenged in cross-examination on those figures, it seems to me that the present value of six years of private school education may be less than $400,000. Counsel suggested that I could take judicial notice that private school fees are in the order of $30,000 per annum. I accept that. But even so, six years of two children each at $30,000 per annum comes to $360,000, and that is without discounting to present value.

25 Also, as far as I am aware, there are no present plans to sell the trust property on Johnston Street and so it does not seem appropriate simply to deduct from its value the present estimated capital gains tax or to assume that all of the capital gain would be taxed at the top marginal rate. Rather, I ought to bear in mind, in a general sense, that if properties are sold, then some capital gains tax will likely be payable.

26 It is also necessary to bear in mind that Dina has the care of and responsibility for the deceased's and her two minor children, who are not themselves beneficiaries under the will.

27 Danielle was born on 2 October 1978 and is now 43 years old. She is the only child of the deceased and his first wife, Beverley Reece. As the deceased's daughter, she is an 'eligible' person for the purpose of pt IV of the Act.[12] Accordingly, she is entitled to an order that provision be made for her out of the estate if, at the time of his death, the deceased had a moral duty to provide for her proper maintenance and support,[13] and the distribution of the estate fails to make adequate provision for her proper maintenance and support.[14]

28 The deceased and Beverley separated shortly after Danielle's birth. There was no property settlement. The deceased provided no support to Beverley or to Danielle during Danielle's childhood. When Danielle was in her twenties the deceased gave Danielle $5,000 or $10,000 to pay off the loan she then had on a motor vehicle and a mobile phone.

29 Danielle has two children, who are 14 and 11 years old. She is separated from the father of the children and she no longer receives child support, although their father helps with the care of the children. She was gifted a property by her maternal grandfather in Balwyn, which she sold in November 2019 for $2.3 million. She used the proceeds to purchase her current home in Mont Albert for $1.55 million, and to settle various debts including an obligation owed to her former husband. As at the time of the hearing, she had (and these are approximate figures) net assets of $1.657 million, made up of her house worth $1.6 million, savings of $161,000, superannuation of $66,000, a car worth $80,000, and a home loan of approximately $250,000.

30 Although the COVID-19 pandemic has prevented her from working in recent times, Danielle has a demonstrated capacity to earn in the order of $72,000 per annum together with a car allowance as a sales representative, and she expects to be able to return to that form of work in the near future. It was put to her in cross-examination that if she were under financial pressure she would not have spent $80,000 buying a new car. I accept that this purchase indicates that Danielle is not under immediate financial strain, as indeed her asset profile would reveal. But I do not otherwise consider that purchase to be relevant; as Danielle explained, in her job she spends a lot of time in her car and the cost of the car is subsidised by her employment.

31 Danielle had some occasional contact with her father until she was 10 years old, but then ceased to have contact. They reconnected when Danielle was 17 years old and they then had what Danielle described as 'a loving and close relationship for almost 10 years'. In 2003, Danielle did not invite the deceased to her wedding. This was because, she said, the relationship between the deceased and her mother and her mother's family was still 'gravely strained' because the deceased had acted in a threatening and abusive way towards her mother (rather than because the relationship between her and the deceased was strained). Her evidence was that the deceased accepted her explanation for not inviting him to her wedding and that they continued to have regular contact after the wedding. However, in or about 2005, she had an argument with the deceased in the context of the deceased blaming her mother for keeping the deceased away from her. In the course of this argument, the deceased 'backhanded' Danielle across the face. Danielle had only limited contact with her father after that event. She said, and I accept, that in or around September 2008 she contacted the deceased to tell him that she had had a child, and that the deceased responded with words to the effect of 'if you ever cut me off like that again I will come and I will kill you'. There was no further contact between her and the deceased in the following 11 years until immediately prior to the deceased's death. Danielle said, and I accept, that she visited her father in hospital on 13 January 2019, the day before he died, which was when she first knew that he was very unwell. She said that her father said that he was sorry, and that they had a loving reconciliation at that time.

32 Dina, presumably based on information given to her by the deceased, said that the deceased was very hurt by Danielle's failure to invite him to the wedding and that this was the cause of the breakdown of their relationship. I have no trouble accepting that the deceased was hurt by Danielle's failure to invite him to her wedding. It is very possible that he did not tell Danielle this. But I prefer Danielle's evidence that she was able to maintain a relationship with the deceased after her wedding, and that the breakdown in their relationship followed the inappropriate and aggressive behaviour towards her by the deceased. Danielle gave oral evidence and was cross-examined. In that evidence, she said that the deceased's sister, Maria, was invited to and attended the wedding, which is consistent with her not inviting the deceased for the reasons she gave, rather than because she was seeking to distance herself from him and his family. She expanded upon the evidence given in her affidavit, and explained that she had become scared of her father and did not want her children to experience what she had experienced from him. She gave this evidence with a visible level of distress and emotion and I formed the view that she was being truthful.

33 It follows that I do not accept as accurate or complete the characterisations given by the deceased in his will and in his handwritten letter of the relationship between him and Danielle. The deceased wrote in his will that he had been 'estranged' from the deceased 'for many decades'. They had been estranged, but for a period of around 14 years. More significantly, he wrote in the letter that he felt 'very strongly' that Danielle did not have any 'love or respect' for him as a father and that she had 'no desire' to be a part of his life. This creates the impression that Danielle had, in substance, made a decision to renounce her filial relationship. I do not accept that the estrangement between them reflected, or was indicative of, any renunciation by Danielle of her father.[15] Rather, it came about because of the inappropriate way the deceased spoke to and treated her. Seen in this way, there was nothing in the conduct of Danielle that would preclude the deceased from owing to her a moral duty that a testator in his position would otherwise owe to her as one of his daughters.

34 Dina has the belief, presumably based on what the deceased told her, that his relationship with Danielle was limited because Beverley and her family 'did everything in their power' to keep the deceased away from her. I accept that this is what the deceased told Dina. But I do not see this as sufficient reason to prevent the deceased from owing the relevant moral duty to Danielle; it is not something that could be visited upon Danielle, who was a baby or young child at the time.

D.3. Danielle's entitlement to a provision out of the estate

35 In the above circumstances, I accept that, at the time of his death, the deceased had a moral duty to provide for Danielle's proper maintenance and support,[16] and that by making no provision for her at all the deceased's estate has failed to make adequate provision for her proper maintenance and support.[17] Accordingly, she is entitled to an order under s 91(1) of the Act that provision be made out of the estate of the deceased for her proper maintenance and support. I set out in part F below my assessment of the appropriate provision.

36 Finally, I accept Dina's evidence that the deceased never displayed to her any aggressive tendencies of the type described by Danielle. Experience shows that people can change with time, that life is complex, and that habits can develop in the way that certain people interact with each other. There is nothing inherently implausible in the deceased acting in a very different way towards Dina and his youngest children to the way in which he acted towards Beverley and Danielle.

37 As daughters of the deceased, Bianca and Julia are 'eligible persons' for the purposes of pt IV of the Act.[18] Accordingly, they are entitled to an order that provision be made for them out of the estate if, at the time of his death, the deceased had a moral duty to provide for their proper maintenance and support,[19] and the distribution of the estate fails to make adequate provision for their proper maintenance and support.[20]

38 Bianca was born on 15 February 1987 and is now 34 years old. Her mother, Cristina, and the deceased were married on 20 September 1985 and lived together until 1991. At the time of the separation, Bianca would have been four years old. Cristina and the deceased did not formally divorce until sometime in 2010. There was no formal property settlement at the time of the divorce, although the deceased transferred the matrimonial home to Cristina at about this time.

39 Bianca does not own any real property or a car. She is single and lives alone in a rented one-bedroom flat. She is a Bikram yoga instructor where she is able to earn about $25,000 per annum. The deceased paid for her training as a yoga instructor. The deceased also gave her gifts and money from time to time as she grew up. Her Bikram yoga business has been affected by the COVID-19 pandemic and it is not clear whether it will be able to continue. Before training as a Bikram yoga instructor, Bianca worked in child care, to which job she would be capable of returning and then earning in the region of $40,000-$50,000 per year. She currently has a HECS debt of approximately $42,000, a credit card debt of approximately $10,000, superannuation of approximately $2,300, and no savings of significance.

40 Julia was born on 1 July 1990 and is now 31 years old. At the time of her parents' separation she was still an infant. She is married and expecting her first baby. She is employed as an executive assistant/team administrator and earns $65,000 per annum plus superannuation. Her husband works as a store manager in a men's clothing store, and is trying to develop a T-shirt business. They have both faced difficulties during the COVID-19 pandemic. Neither Julia nor her husband owns any real property and they live in rented accommodation. She owns a car worth approximately $10,000, has $13,000 in savings, approximately $36,000 in superannuation, a HECS debt of approximately $40,000, and a credit card debt, with her husband, of approximately $3000.

E.4. Bianca's and Julia's relationships with the deceased

41 As Bianca and Julia are full sisters only three years apart, it is convenient to consider their relationship with the deceased together.

42 As noted above, the deceased and Cristina (Bianca's and Julia's mother) separated in 1991 when Bianca was four years old and Julia an infant. At the time, the family was living at a house in Balwyn North, which was registered in the deceased's name. Cristina and her daughters continued to live there after the separation. There was never a property settlement, although in 2010 the Balwyn North property was transferred into Cristina's name. The deceased paid for private schooling for Bianca and Julia from when Bianca reached year seven. He also provided, albeit sometimes with some reluctance, child support of approximately $300 per week.

43 According to Cristina, the deceased was controlling and would threaten to withdraw this financial support, and was also violent and unpredictable. Bianca and Julia supported this evidence, as, they said, he would threaten not to pay for their school fees if he was unhappy with them for some reason. Sometimes, he was kind and loving. Cristina and the deceased attempted a reconciliation in mid-2001, but it did not work out. Cristina said she did not formalise any property settlement or child support out of fear that the deceased might kill her if she were to do so. Cristina was not challenged on this evidence. Bianca gave evidence of occasions when she witnessed her father verbally abusing and threatening, and attempting financially to control, her mother. She was cross-examined, but her evidence in this respect was not challenged. Julia, who was not cross-examined, said that her father had an aggressive, volatile and unpredictable nature. I accept that the deceased was, in his relationship with Cristina, Bianca and Julia, controlling, somewhat unpredictable and menacing, but also on occasions kind, generous and loving.

44 As they grew up, Bianca and Julia saw their father on Saturday afternoons at one of his bars or at Maria's house. As they got older, they also started to see him for dinner on a Wednesday night. It seems that he did not attend functions, such as their school concerts, save for one occasion that Bianca could remember. They celebrated Christmas and birthdays with their father, and spoke to him regularly by telephone. The deceased would on occasions give his daughters spending money and gifts, and on occasions not. For example, Julia said, and I accept, that he gave her a ticket to London for her 21st birthday, but had previously refused to pay for her to get braces.

45 The deceased became unwell, and was hospitalised, in 2009 with kidney disease complicated by diabetes. At one stage, he was placed in an induced coma. Bianca and Julia said that they did not find out about the deceased's relationship with Dina until they met her, for the first time, at the hospital, at which time she was eight month's pregnant. There was, understandably, some tension. Dina accepts that she had not met them until then, but maintains that they were aware of her existence because she had previously received a text message from Bianca seeking to meet her not long after she had become pregnant. I do not consider this discrepancy matters.

46 The deceased remained unwell, and in and out of hospital, until 2014. I accept that Bianca and Julia felt that Dina was to some extent 'guarding' their father and making it difficult for them to visit him in hospital over these years and made sure that she was a presence when they visited their father. This discomfort that Dina felt in having the children from a previous marriage present at this time is reflected in the fact that Dina sent to Cristina a note, purportedly written by the deceased but sent without his knowledge, telling Cristina that he wanted a divorce. Dina accepted that she sent the note, deposing that the deceased laughed when she told him she did so. Cristina deposed that the deceased was angry when she showed him the note, that he said that he was not aware of it, and that he tore it up. I accept both these accounts together as an example of the deceased's propensity to act differently around the different people in his life.

47 It seems that Bianca's and Julia's relationships with their father became more strained after his hospitalisation and after their becoming aware of Dina's existence. That is not surprising, in circumstances where they had become aware that their father had re-partnered, and was planning another family. Bianca's impression was that the deceased became uncomfortable spending time with them in Dina's presence. In January 2014, when Bianca was about 27 years old, the deceased came to their family home to collect a car that he was keeping there. She went out to meet him. She said that he began to rant aggressively towards her saying things such as that he ought 'to kick the three of you out of my house'. It seems that Bianca had little or no contact with her father after this time until very shortly prior to his death. She was not invited to, nor aware of, the deceased's marriage to Dina in 2017. Bianca said that she ceased having contact with the deceased from 2014 until immediately prior to his death because of the way he had behaved towards her. I accept that the deceased did act aggressively and unpredictably towards Bianca, and that this was the cause of their estrangement from 2014. Bianca swore that this is the case, and again, although she was cross-examined, her evidence on this point was not directly challenged. She said, and I accept, that she was not informed about the deceased's decline in health in 2018 and his impending death until about 48 hours before he died.

48 Julia also had little contact with her father after 2014 and prior to the period immediately before his death. She said, and I accept, that she started to see less of him because it was stressful for her to do so because of her father's volatile behaviour and the ongoing presence of Dina. She said that her father then became angry with her when she tried to contact him, and this compounded the problem. She said, and I accept, that she felt tired and defeated by his verbal abuse and unpredictable moods.

49 Bianca and Julia visited the deceased in hospital and said goodbye to him in Dina's presence. They met their new half-sister, Eve, there for the first time.

E.5. Bianca's and Julia's entitlements to a provision out of the estate

50 The matters referred to above are relevant because they explain the distance that developed between the deceased and Bianca and Julia, in circumstances where Dina relied on what she sees as their lack of connection with the deceased as a reason for which no (or little) provision should be made for them out of his estate, in accordance with the deceased's wishes as expressed in his will and in his letter. As adverted to above, the deceased stated in his will that he had not made any provision for Bianca and Julia because 'neither of them have shown me an acceptable level of love, care and respect which I believe they have owed to me as their father'.[21] The deceased stated in the handwritten letter that he had not provided for Bianca and Julia in his will because, as well as making adequate provision for them during his lifetime, Bianca and Julia 'haven't been bothered about visiting me or any concern about my wavering health issues' and that they 'didn't see me as a father but rather a person who was there to give them money and pay for whatever they needed'.

51 Consistently with this, Dina does not accept that the deceased would have acted towards Cristina, Bianca or Julia in the way I have described. Dina instead believes that Bianca and Julia simply 'lost interest' in their father and that their relationship broke down because the deceased 'was tired of being disrespected and being treated like a cash cow'. I accept that that is Dina's belief. No doubt there would have been occasions when the deceased would have made comments to that effect to Dina. But the fact that these assertions about the behaviour of Bianca and Julia were made to Dina, and in the will and letter, does not make them true.[22] I do not accept that those assertions are accurate descriptions of what happened or that they are fair to Bianca and Julia. As a general proposition, the comments made about Bianca and Julia in the will and letter do not take into account the fact that he had on occasions acted aggressively towards them. Also, emphasis is placed in the letter on:

(a) the fact that neither Bianca nor Julia had been bothered to visit him when he was ill. But this complaint is unfair because it fails to take into account the fact that they had not been informed that he was seriously ill; and

(b) the fact that their mother, Cristina, had sold the North Balwyn home, when his intention was that that home would be for Bianca and Julia. The letter recorded that he was 'very angry and disappointed [that] she had gone against our agreement and disposed of the inheritance meant for Bianca and Julia'. This complaint fails to acknowledge that there had been no property settlement between him and Cristina, his wife of some years and the mother of two of his children, and that the house once transferred to her was, in fact, hers, and not Bianca's or Julia's.

52 The reasons for the distance that developed between the deceased and Bianca and Julia is, not unexpectedly, much more complex than the picture given in the will and in the letter. In the circumstances, I am not satisfied that Bianca and Julia have behaved towards their father in a way that extinguished the moral obligation that he would otherwise owe to them as their father.[23] I prefer the evidence of Bianca and Julia that they did love their father, that they tried to maintain a relationship with him, but that it became too difficult after 2014, in large part because of his behaviour and the existence of his new family. In those circumstances, I conclude that, at the time of his death, the deceased had a moral duty to provide for Bianca's and Julia's proper maintenance and support,[24] and that by making no provision for them at all, the deceased's estate has failed to make adequate provision for their proper maintenance and support.[25] Accordingly, they are entitled to orders under s 91(1) of the Act that provision be made out of the estate of the deceased for their proper maintenance and support. I set out in part F below my assessment of the appropriate provision.

53 It is to be recalled that, on the findings I have made, the estate is worth approximately $5.156 million. Dina owns in her own right assets worth $3.154 million, giving her control over assets worth approximately $8.31 million (including the matrimonial home). Danielle, Bianca and Julia, to each of whom I have concluded the deceased owed a moral duty, received nothing under the will.

54 I am required to consider what a wise and just testator in the deceased's position would determine was the minimum necessary provision to discharge his moral obligation to provide for the proper maintenance and support of his first three children.[26] The wise and just testator would accept that friction between parent and child is not unusual and would not allow that disharmony to make him or her blind to the needs of that child,[27] although the nature of the relationship and the behaviour of the children is a matter to which regard may be had.[28] The amount of the provision is to be assessed in light of all the circumstances, including:

• the degree to which the deceased at the time of death had a moral duty to provide for his first three children;[29]
• the degree to which his first three children are not capable by reasonable means of providing for themselves;[30]
• the degree to which the deceased had previously given benefits to them;[31]
• the causes of the distance that developed between the deceased and his first three children as I have found those causes to be;
• the competing moral obligation owed to Dina;[32]
• the size and nature of the estate;[33] and
• the deceased's own preference, as evidenced by his will and the letter, that Dina inherit.[34]

55 Determining the minimum amount that a wise and just testator would have provided requires an 'instinctive synthesis' of all these matters.[35]

56 On the basis of my findings, the reasons given by the deceased for excluding his eldest children as beneficiaries were not fair to them. But it is not my role to re-exercise his testamentary discretion so as to achieve what I consider would be 'fair', or in some way to provide compensation to them for the occasions on which their father acted unfairly towards them. No-one has contended that he lacked testamentary capacity when he signed his will. Accordingly, I must accept, and take into account, his clearly expressed intention, unfair or not, that all of his estate go to Dina and none to his eldest three children. My role is to assess what is the least amount that a wise and just testator, wishing to leave all his estate to Dina and none to his eldest three daughters, would nonetheless leave (albeit reluctantly) to his eldest children having regard to his moral obligation to provide for them.[36]

57 I consider that the moral obligation to provide for Dina far exceeded any moral obligation owed to Danielle, Bianca and Julia. That much was accepted at trial, at least by Danielle. Dina was the deceased's wife for almost twenty years, was entirely financially dependent on him (albeit that she did some work in his business), and supported and looked after him for many years during his declining health. She is now 47 years old and has the obligation to look after and provide for their two children, who are still in primary school, out of the assets left in her hands. She has had no independent career as such, and I accept that the deceased intended that his assets go to her (to the maximum extent possible) so that she would be financially comfortable and able to look after their children. Subject to his minimum moral obligations to the contrary, those wishes must be respected.

58 Danielle owns her own home and has the ability to earn. However, she received little in the way of financial support during the deceased's lifetime, and is a single mother with two children not in receipt of child support. She has debts of approximately $250,000, and has little in the way of protection against the vicissitudes of life. She had no real relationship with her father since 2003, but had a relationship prior to this, and the distance that subsequently developed between them was not, I have found, something that could be blamed on her.

59 Taking all these matters into account, including the deceased's moral obligation to provide for Dina and his wish that she receive all of his estate, I consider that the wise and just testator would nonetheless have made a provision for Danielle of not less than $300,000, being enough for her to pay off her current debt with a modest amount left over. That would leave her with an unencumbered house and some savings.

60 Bianca and Julia both had significantly stronger relationships with the deceased than did Danielle. They met with him regularly over many years and were for many years a very real part of the deceased's life. Probably, this was due in part to the fact that their mother Cristina had enjoyed a longer and closer relationship with the deceased than had Danielle's mother. Be that as it may, in my view this increased level of familial contact increased the extent of the moral obligation that they were owed by the deceased on this death. As with Danielle, I do not consider that the souring of their relationships with their father in the years prior to his death was due to any disentitling conduct on their behalf.

61 Also, although they both enjoyed a greater level of dependency on the deceased than Danielle did while they were growing up, they are both now in more precarious financial positions than Danielle. Neither owns a home and both are in rented accommodation.

62 Bianca is 34 years old and has the capacity, should she wish to exercise it, to earn in the region of $40,000-50,000 per annum. She has no children or partner, no car, debts of over $50,000, and no substantial superannuation or savings. Julia is 31 years old and has the capacity to earn $65,000 per annum. She is married and expecting a child. She has a car, and more in superannuation and savings than she owes, but only by about $7,000. Neither is anywhere near destitute, but both are in reasonably precarious financial positions. Neither has any financial security or any protection against the vicissitudes of life.

63 It was generally accepted by the parties that if Bianca and Julia are entitled to any provision from the estate, then as full siblings they ought to receive the same. I agree. They are close in age, and the likely variations in their future lives more than outweighs any variation in detail in their present circumstances. For example, in my view a wise and just testator would not give more to Julia because she is expecting a child, when there is no reason to think that Bianca will not herself one day have a child. Equally, a wise and just testator would not give less to Julia because she presently has a partner, when Bianca might obtain a partner in the near future, or something might happen to Julia's relationship. Put simply, the vicissitudes of life, for people of this age, are such that any present variations are, as best anyone can foretell, likely to be evened out over time. Further, with siblings who have had a very similar relationship with the deceased, and for the most part engaged with him together, there is a real benefit associated with the prevention of any ill-feeling that unequal treatment might cause that a just and wise testator would recognise. There will be many cases, of course, where the situations of full siblings would justify unequal treatment. But in my view this is not one of them, and the wise and just testator would treat them the same.

64 In their written submissions, Bianca and Julia submitted that the award they sought of $1 million each would be 'unlikely to provide them with an unencumbered property once their debts have been paid and taking into account stamp duty, purchasing and moving costs on acquiring a property'. At trial, the amount sought was submitted to be 'modest' for that reason. They then submitted that, whilst there is no general obligation for a parent to provide their children with an unencumbered home, the size of the estate here is large enough to provide that sort of 'leg up'. Finally, they submitted that it was 'totally unrealistic', given their current earning capacity, that the two would be able to obtain 70% loans for the purchase of a $1 million property in, for example, Bundoora. However, I do not consider that the deceased was under a moral obligation to provide, against his wishes, his healthy and employable adult children with unencumbered homes, let alone free-standing homes in a desirable inner-city suburb.[37]

65 In the circumstances, I consider that the wise and just testator would have made a provision for Bianca and Julia of not less than $425,000 each. This amount would allow them to put down a substantial deposit on a first home, should they wish to do so, and also provide a buffer to assist with any difficulties that life might throw at them in the future.

66 The three provisions have to be considered also by reference to the amount that they leave Dina. These three provisions together amount to $1,150,000. They will leave Dina with control over estate assets worth approximately $4 million and total assets worth approximately $7.16 million (less any capital gains tax liability and legal expenses associated with this proceeding). Looked at another way, this would leave Dina with the family home (worth $1.9 million), the holiday house (worth $660,000), and assets worth an additional $4.6 million. If provision is made for the payment of private school fees, bearing in mind that both Bianca and Julia were put through private schools by their father, the amount reduces to something like $4.2 million. This is the capital sum - less any amounts that may have to be paid in capital gains tax if property is sold, but on top of the matrimonial home and holiday house - that would remain, from which Dina would support herself and the two younger children. As noted above, I am satisfied that the various properties are worth at least the amounts at which I have assessed them.

67 If legal expenses of $370,000 are paid by the estate, which seems likely, these figures would of course reduce. But I do not consider this sum to be sufficient to alter the assessments that I have made.

68 I appreciate that these figures are significantly less than those sought by Danielle, Bianca and Julia. It would have been open to their father to have left them more than this amount without his having been in breach of his moral obligation to provide for Dina. But the test is not what would be a 'fair' amount assessed by reference to what the Court thinks their father 'should' have left them - the Court does not displace the testator in this way. Rather, this is my assessment of the minimum amount that their father was required to provide for them as his children, having regard to his moral obligations, in circumstances where the money being bequeathed was his, and his wish, it must be accepted, was to leave everything to Dina. In my view, the assessments put forward by them failed to give sufficient weight to the deceased's wishes, and to the extent of his moral obligation to provide for Dina and his two youngest children. Similarly, to the extent that Dina contended that Danielle, Bianca and Julia ought not to receive anything, she relied on a factual scenario that placed the entire blame on them for the distance that arose between them and the deceased, and I do not accept that factual scenario. To the extent that she submitted that the provision ought to be less than the amount that I have concluded, in my view, she assumed a lesser moral duty on the part of the deceased to provide for his first three children than I have found existed.

69 I will hear the parties on the form of order and on the question of costs.

[1] For convenience and clarity, I will refer to the deceased's wives and children by their first names. No disrespect is intended by this informality.

[2] This does not include the value of other properties and assets that the deceased had transferred to Dina during his lifetime.

[3] The estate also owned the shares in La Sangria Pty Ltd and the trustee company of the Donateo Family Trust. Regarding the trust, it was common ground, that Dina (and possibly her children) were the beneficiaries of this trust, and so for practical purposes I have treated the assets of the trust as assets of Dina. I have also disregarded the nominal value of the other shares.

[4] Italicised figures are those assumed to be accepted from the previous column.

[5] These figures are from her affidavit sworn 6 November 2019 and based on 'appraisals' from the estate agents Hocking Stuart.

[6] These figures are from her affidavit sworn on 24 March 2020. No basis is identified for the valuations.

[7] These figure are from her affidavit sworn on 14 October 2021 and are based on opinions provided by estate agents and a formal valuation report for Weston St.

[8] These figures were obtained from Charter Keck Cramer upon request by Bianca and Julia.

[9] I have assumed that a liability to 'Paul Costanzo' of $20,000 is a reference to the same liability as that which was previously recorded as a liability to 'Maravending Pty Ltd'.

[10] As noted above, the shares in the trustee company formed part of the estate and so Dina as executrix controls the trust, and Dina, or perhaps her and her children, were the only beneficiaries; certainly, there is no suggestion that Danielle, Bianca or Julia are beneficiaries or ever likely to receive distributions from the trust.

[11] There are two trusts. The Donateo Family Trust owns the commercial property. The Donateo Investment Trust does not own property save for an insignificant amount of cash. It owes $113,684 to the estate, but is owed $111,471 by another entity. For present purposes, the Donateo Investment Trust may be disregarded.

[12] Administration and Probate Act 1958 (Vic) s 90 (definition of 'eligible person', para (f)).

[13] Ibid s 91(2)(c).

[14] Ibid s 91(2)(d).

[15] Cf Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; Grey v Harrison [1977] 2 VR 359.

[16] Administration and Probate Act 1958 (Vic) s 91(2)(c).

[17] Ibid s 91(2)(d).

[18] Ibid s 90 (definition of 'eligible person', para (f)).

[19] Ibid s 91(2)(c).

[20] Ibid s 91(2)(d).

[21] The will also provided that the deceased believed that he had made adequate provision for each of them during his lifetime.

[22] They are but pieces of evidence, to be weighed with all the other evidence in the case - see eg Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 152 (Gibbs J), quoting Re Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121; [1951] NZLR 135, 141 (Gresson J): '[T]he testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations ...'; Re Christu; Christu v Christu [2021] VSC 162, [11] (McMillan J).

[23] Cf Valentini v Valentini [2014] VSC 91.

[24] Administration and Probate Act 1958 (Vic) s 91(2)(c).

[25] Ibid s 91(2)(d).

[26] Administration and Probate Act 1958 (Vic) s 91(5)(a). This has been likened to the Court's considering what would have been the actions of the wise and just testator 'sitting in the deceased's armchair': see, eg, Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 521 (Fullagar J); Stott v Cook (1960) 33 ALJR 447, 448 (Dixon J); Re Will of GG Sitch [2005] VSC 308, [70] (Gillard J).

[27] Kleinig v Neal [1981] 2 NSWLR 532, 540 (Holland J); Baulch v State Trustees Ltd [2008] VSC 22 (Pagone J).

[28] Administration and Probate Act 1958 (Vic) s 91A(2)(a), (k).

[29] Ibid s 91(4)(a).

[30] Ibid s 91(4)(c), s 91A(2)(d).

[31] Ibid s 91A(2)(h).

[32] Ibid s 91A(2)(b).

[33] Ibid s 91A(2)(c).

[34] Ibid s 91A(1).

[35] Grey v Harrison [1996] VSC 74; [1997] 2 VR 359, 366 (Callaway JA).

[36] Administration and Probate Act 1958 (Vic) s 91(5)(a).

[37] On their evidence, the median price for units, even in the inner suburbs, is closer to half the amount sought. Julia exhibited, and Bianca referred to, copies of accommodation searches and REIV suburb profiling showing the median price of housing for suburbs within a 15km radius of their mother's home in Hawthorn.