Plaintiffs v Defendant

1. Sisters Michelle and Sharon West seek provision from the estate of their late father, Colin West (the 'deceased'). They have each made family provision claims per pt IV of the Administration and Probate Act 1958 (Vic) ('the Act'). Michelle and Sharon are aged 50 and 48 years old, respectively.[1] Their father was 74 years old when he died. He was survived by Michelle, Sharon, three grandchildren and Siobhan Blaney. His will describes Siobhan as his domestic partner. She is about 38 years old. There is enmity between the sisters and Siobhan.
2. This is a tragic case as the estate is small, and has already been subject to several proceedings. They have been instigated chiefly by Sharon. As a consequence of the litigation, legal fees must be deducted from the deceased's estate. The amount of the deceased's estate for distributions, taking into account expenses, is likely to be approximately $215,000.[2]
3. Sharon and Michelle are not beneficiaries in the deceased's will. Sharon seeks that half of the residuary estate be distributed to her, and half to Michelle. Michelle seeks that 60% be distributed to her, and 40% to Sharon.
4. The administrator concedes the deceased owed a moral duty to Michelle and Sharon, that they have established financial need, and there is no disentitling conduct. The administrator agrees that provision should be made for Sharon and Michelle, and seeks that a fixed amount be paid, particularly to Sharon, to avoid further legal costs. The administrator suggests the distribution could be about $100,000 for Michelle, and a smaller amount for Sharon, with 'some amount' preserved for each of the named beneficiaries in the will.
5. The real issue in dispute is the quantum of the family provision orders that should be made to Sharon and Michelle.

1. The deceased made his will on 15 May 2018. He passed away on 24 May 2019. Probate of the will was granted to Siobhan on 21 November 2019.[3]
2. A residential property, being 133 Albert Road, Warragul Victoria, is the estate's main asset (the 'property').[4]
3. The will refers to Siobhan as the deceased's 'partner'. In his will, he left a life interest in the property to her. In a related proceeding, I held that Siobhan had forfeited that gift.[5]
4. The deceased named five residuary beneficiaries in the will. The beneficiaries are his three adult grandsons and two unrelated minors, Jasper and Milah. Two of the grandsons, Dale and Bryce Townsend, are the children of Sharon, and the other grandson, Zakk Miller, is the child of Michelle.
5. The will names Siobhan as executor. In related proceedings, I ordered that Siobhan be replaced with an independent administrator, solicitor Natalie Talia.[6]
6. At clause 7, the will provides,

I DIRECT my Trustee to divide my residuary estate into five (5) equal parts or shares and to PAY OR TRANSFER those parts or shares as follows:

(a) As to one (1) part or share for grandson ZAKK PATRICK MILLER;

(b) As to one (1) part or share for my grandson DALE TOWNSEND;

(c) As to one (1) part or share for my grandson BRYCE TOWNSEND;

(d) As to one (1) part or share for my grandson JASPER [...];

(e) As to one (1) part or share for my granddaughter MILAH [...]

(f) AND if any of the beneficiaries referred to in this clause fail to take a vested interest leaving a child or children surviving that beneficiary and me who attain the age of twenty one (21) years then that child or those children will take and if more than one equally the share in my residuary estate that his or her of their aforesaid parent so failing would otherwise have taken. IF the trusts in this clause in respect of any of the said parts of my residuary estate fail for want of a beneficiary then the part or parts in respect of which the trusts have so failed including any accretions thereto shall be held on the trusts declared in this clause in respect of the other or others of the said parts which have not failed an (sic) in the proportions those bear to each other.

1. In respect of Michelle and Sharon, the will states at clause 8,

NO FURTHER PROVISION FOR BENEFICIARIES

I HAVE made no provision for my daughters SHARON ANNE WEST and MICHELLE GLORIA WEST after serious consideration and after being informed of the existence of the provisions of Part IV of the Administration and Probate Act 1958 and because of the complete breakdown of our relationship.

1. The undated inventory of assets and liabilities that appears to have been prepared by Siobhan when applying for probate, stated that the gross value of the deceased's estate was $383,000. At the time, the deceased's assets included the property, then valued at $375,000, and a bank account, one motor vehicle and furniture and chattels, together valued at $8,000. No liabilities were listed.
2. As at 28 May 2025, Ms Talia estimates the value of the estate to be $270,572.28. The estate's remaining asset was the property, valued at $519,000. She says the estate has accrued or will accrue liabilities of approximately $248,427.72. The liabilities include: real estate agent fees and marketing expenses for the sale of the property; the cost of vesting the property in her name per s 58 of the Transfer of Land Act 1958 (Vic); conveyancing costs; council and water rates, land tax, and repair and maintenance on the property; an unpaid loan from Sharon and Michelle; reimbursement of Ms Talia's accrued out-of-pocket expenses; and legal, estate administration and litigation costs.[7]
3. Ms Talia gave evidence that a conditional purchase of the property had been withdrawn on the second day of trial, and efforts to sell the property would therefore remain ongoing.[8] I requested the parties provide an update should the property be sold while my judgment was reserved. By emails to my chambers dated 13 and 24 June 2025, the administrator's solicitors advised the property had been sold for $519,000. Settlement occurred on 4 July 2025.
4. Sharon is suspicious and critical of Ms Talia's administration of the estate. It is unnecessary to consider her concerns in her family provision claim. Nevertheless, upon reviewing the material before me, I did not find any irregularities. Rather, Ms Talia's administration of the estate appears entirely proper and regular.

1. I found Ms Talia to be an honest witness. Relevant parts of her evidence are contained in the analysis below.
2. Michelle's litigation guardian, Debra Davis, gave evidence on her behalf. I am satisfied that Ms Davis' evidence was based on Michelle's instructions. I found Ms Davis to be an honest witness. Relevant parts of her evidence are contained in the analysis below.
3. I found Sharon, her partner William Townsend, and beneficiaries Bryce (Sharon's son) and Zakk (Michelle's son) to be honest witnesses. I accept their evidence regarding the events they personally observed, and their personal circumstances, with the following qualifications.
4. Firstly, I make no finding about Sharon's allegation of historic sexual abuse against a relative (not the deceased). Given the nature of the allegation, it would be improper for me to make findings on it without the accused being on notice of the allegation, if they are alive. Nor is such a finding required in this proceeding.
5. Secondly, I do not accept their conclusions and characterisations regarding other people or legal matters. For instance, I do not accept Sharon's characterisations of various legal practitioners as unethical or of Siobhan as villainous. These characterisations are irrelevant and coloured by their strong feelings. At any rate, it is for the Court, not the witnesses, to draw conclusions based on the evidence.
6. Thirdly, I have also disregarded their evidence about matters not relevant to these proceedings. Most of the exhibits to Sharon's affidavits are irrelevant. I have disregarded Sharon's evidence regarding the conduct of various legal practitioners with whom she has had dealings, and allegations regarding the administration of the deceased estates of her mother Dawn, and mother-in-law Susan Thorpe (William's mother).

1. Sharon relies on three audio recordings.[9] One is a recording where she confronts the deceased in a highly emotional state, challenging him for making a power of attorney appointing Siobhan. There is no evidence to suggest the deceased was aware that Sharon was recording the conversation. The recording reveals a high level of friction between Sharon and the deceased at that point, yet also shows that they love one another. Another recording is of an application in the Magistrates' Court for intervention orders by the deceased and Sharon against one another. This recording appears to have been made without permission. I disregard it. Some intervention orders are in evidence. Another recording is irrelevant, being Sharon's confrontation with staff of a law firm regarding the deceased's estate.

1. Sharon submits that she and Michelle should each receive half of the deceased's estate. Their positions are different, but they are sisters and have always looked after each other. They are a family that supports one another in every way. During the four years of these proceedings, Michelle's superannuation fund has grown while Sharon has supported and assisted her. Conversely, Sharon's superannuation fund has not grown.
2. Without her pursuit of the estate, there would not be any provision for either her or Michelle.
3. If she did not have Siobhan removed as the executor, the other beneficiaries' claims would not be an issue. I gather that Sharon believes that Siobhan's administration of the estate was wasteful.
4. She says that the beneficiaries did not know the position of the deceased's estate when the deceased died, and they should have. Further, per s 99 of the Act, she and Michelle were supposed to have protection, yet the deceased's personal belongings went missing.
5. Sharon submits that every family provision claim is unique, and depends on the circumstances.
6. There was nothing left in the will for Sharon and Michelle. However, the property was bought and paid for by both of their parents. When their parents separated, Dawn walked out with a settlement, and left their father the property because of his disadvantage in not being able to read and write. Michelle and her did receive payments (distributions) from the deceased estates of Dawn and their stepfather, Raymond. Lawyers were involved and the Ombudsman assisted them in receiving a payment. Pausing there, I understand Sharon is referring to events prior to Raymond's death in which he foreshadowed a pt IV claim on Dawn's estate, and the settlement of that estate.[10]
7. Sharon refers to the will, which says it was 'done under "great consideration"'. The deceased was illiterate. She says that the will should never have been prepared. Sharon alleges the law firm acted under a conflict of interest. They did not give the deceased the correct instructions.
8. Milah and Jasper are incorrectly named as grandchildren in the will. Their identities are not confirmed; neither is Siobhan's identity. Their mother, Ebony will provide for them. Further, she says there is no information about whether Milah and Jasper have grandparents who can provide for them. She says it was only four or five weeks ago that Ebony showed any interest in the estate.
9. Sharon's children live with her. She would like to build up an asset and keep it to pass on to her sons Dale and Bryce.

1. The administrator has conceded relevant jurisdictional matters; therefore, the only question for determination is the quantum of provision.
2. Michelle seeks 60% of the estate with the burden of that provision to be borne by all the remainder beneficiaries. She submits the provision will make a huge difference and provide the extra buffer she desperately needs against the contingencies in life.
3. Michelle is on her own, a 50-year-old divorced mother with no financial support from her ex-husband. Michelle lives in rental housing. She has a disability.
4. Michelle has worked in menial jobs and is not a high-income earner. She is currently employed on a part-time basis and her income fluctuates according to the hours she works. She has superannuation but cannot access it until she is 67 years old.
5. Michelle has no sufficient nest egg. She says there is not enough money in the estate to house her. However, provision from the estate is her only opportunity for some financial security to combat the vicissitudes of life.
6. Michelle's ability to access immediate cash is just under $31,000. This amount is the combined value of both her bank accounts. Her asset position will be augmented by the administrator making a one-off payment of $5,000 (plus interest) to come from her contribution to a loan provided to the deceased by Sharon.
7. Michelle's monthly living expenses are approximately $3,390. She lives a modest lifestyle. Most of her expenses, as summarised in her bank statements, are for living costs, including groceries, modest occasional entertainment, and expenses such as motor vehicle costs, healthcare, and dental costs. She needs a full dental plate that costs $4,000, however she can only afford half a plate at a revised cost of $2,000.
8. Michelle inherited funds from Raymond about three years ago, and from Dawn in 2012. Most have dissipated on living expenses. Her bank accounts show she has been supplementing her income with her savings. She cannot sustain this. During the six month period from September 2024 to February 2025, she supplemented her income with approximately $14,140 from her savings.
9. Michelle submits the remainder beneficiaries should bear the entire burden equally. It is unusual for a Court to disinherit beneficiaries completely, however, this case is a unique and tragic one.
10. Any benefit to Michelle and Sharon will flow to their children. They are young and have no serious health issues. Both Zakk and Bryce indicated the family is interdependent and everyone will continue to support one another. Zakk is likely to be gainfully employed once he finishes his course.
11. Dale and Bryce do not need provision. Under cross-examination, Bryce stated that notwithstanding he is entitled to one-fifth of the remainder estate, his view was that his share should go to Michelle and Sharon equally. He said he had no issue with this because 'it's going to come back to us anyway'. Dale and Bryce live with Sharon, and when the family moves to other accommodation, they will too. A modest provision to Michelle will be able to provide some financial stability for all of them in the future.
12. The minor beneficiaries have no need, and Ebony's evidence shows their parents are adequately and properly maintaining them. The evidence is that the deceased's combined bequest to her children of two-fifths of the residue will have no impact on their lives because she and her partner adequately provide for their education and maintenance. Ebony says their needs 'will continue to be met through the support of their father and I'.
13. Michelle submits that there was no moral obligation on the part of the deceased to provide for his grandchildren because that moral obligation lies with their parents. Nor is there a moral obligation to provide for a step-niece and step-nephew.
14. Michelle submits it is unnecessary to treat her and Sharon equally. Michelle should receive the greater amount. There is no one else to provide for her and she suffers from significant health issues that need constant monitoring and management. She is a divorced mother who still maintains her adult son. On the other hand, Sharon has two sons who are assisting her as and when they can, and will continue to do so. This family will stay together for a long time. They intend to live together and rent.
15. Michelle submits there would have been no asset to fight over but for Dawn leaving the property to the deceased for no consideration. It was a jointly owned property. The deceased's estate is a result of what the mother did for her children. There is a moral obligation attaching to the testator making a will to ensure he made some provision for his daughters, as his ex-wife wished. The moral obligation is heightened by the provenance of the estate and the breach of the testator's duty when making his will and reacting to insignificant tensions between Siobhan and his daughters.
16. The Court should not rewrite the will. However, per s 97(2) of the Act, it has an unfettered discretion '[u]nless the Court otherwise orders ...'.
17. Alternatively, a small legacy amount, such as $1,000, could be made to each of the remainder beneficiaries.

1. The claims are pt IV claims, not claims against Siobhan. The Court has already held that she has forfeited her entitlement.
2. There is no concrete evidence regarding the validity of the will; however, it has been admitted into probate. The intention is to benefit his grandchildren and Jasper and Milah.
3. The administrator accepts that both Sharon and Michelle have financial needs. It is agreed there is no disentitling conduct.
4. Sharon seeks 50% of the estate. The administrator submits the purpose of a family provision order is not to achieve equality but to make adequate provision for proper maintenance and support, having regard to various factors.
5. Michelle has provided comprehensive evidence of her financial situation, and it is not in dispute.
6. Sharon has also presented evidence of her financial need, although less comprehensively than Michelle. Documents support Michelle's case. Sharon has produced some documents regarding her and William's position, being bank statements. They are broadly consistent with her evidence. There is also evidence as to what William received from his pt IV claim against his late mother's estate.
7. The administrator submits that Sharon is fortunate in having a close family unit offering support. Her relationship with William has exceeded 20 years. She has two sons who are progressing with their careers. Dale seems to be doing especially well in providing work for his father.
8. On the other hand, Michelle, a divorcée, is largely on her own. Her son, Zakk, lives independently. He is unemployed and training for a new role while raising his own family.
9. With respect to the grandchildren, the administrator submits that Zakk appears to be struggling the most. Bryce is completing an apprenticeship. Dale seems to be doing well, but there are risks associated with self-employment.
10. Jasper and Milah are minors and in the care of their parents. It is expected that their parents will provide for them. However, the deceased went out of his way to make provision, and that may assist them in the long run.
11. The administrator submits that there is a balance between the accepted needs of Michelle and Sharon, and the entitlement of the beneficiaries expressed in the will by the deceased. The Court should not rewrite the will, and the beneficiaries should retain some amount. It would be open for the grandchildren, who expressed a desire not to receive provision, to forward any provision onto their mother, or ask the administrator to do so. Provision made directly to Michelle and Sharon may indirectly benefit their children.
12. The administrator suggests that the appropriate outcome is to provide fixed sums to Sharon and Michelle. This will give them some certainty. Concerning Sharon, it is evident from her conduct in this proceeding that she has numerous issues with Siobahn's conduct. Even after this proceeding concludes, she may decide to continue pursuing those allegations through the administrator. Sharon should receive a fixed sum so that her entitlement is clear. This outcome will end any right she may have with the deceased's estate. If Sharon receives as a residue, then her rights will continue, and Sharon will continue to inundate the administrator with communications. That will result in additional costs to the detriment of everyone involved. Relevantly, this is a small estate.
13. If the property is sold for $500,000, after deductions and allowing $55,000 for Michelle's costs, acknowledging that costs are to be determined later and may or may not be paid from the estate, that would leave a net estate of a little over $200,000. Michelle could be provided around $100,000, and Sharon something less, leaving something for the residuary beneficiaries, who should not be completely excluded.

What family provision orders should the Court make?

1. It is common ground, and I accept, that Michelle and Sharon are each an 'eligible person' to whom the deceased had a moral duty to provide proper maintenance and support, and that the will fails to make adequate provision for their proper maintenance and support.[11] They meet the threshold requirement for family provision orders per s 91(2)(d) of the Act.
2. Michelle and Sharon are not beneficiaries under the will. However, per s 91A(1) of the Act, the Court must still have regard to the will and evidence of the deceased's intentions. The Court must assume the position of a 'wise and just' testator judged by current community standards.[12] The Court is not permitted to rewrite the will to make it fair.[13]

Deceased named five residuary beneficiaries: Zakk, Bryce, Dale, Jasper and Milah

1. Regard must be had to the fact that there are five named residuary beneficiaries in the will. It is notable that the deceased appears to have had good relationships with all of them. Turning now to the evidence regarding this.
2. Bryce describes a 'very good' relationship with the deceased. He notes the deceased was a presence in his life, often on the sidelines supporting him while he played sports, and never missed a birthday or Christmas. Bryce says he was always there to chat and support his grandchildren.[14]
3. Bryce describes a marked change in his relationship with the deceased after a Family Violence Intervention Order ('IVO') was put into place. He says he didn't get to see the deceased much in the last year or so of his life. He feared getting Sharon into trouble due to the IVO.[15]
4. Bryce says he first learned of his grandfather's death when members of Siobhan's family advised that he was in hospital and still alive. He then attended the hospital with his cousin Zakk to be told that an IVO was in place and they could not see the deceased, who died that day. Bryce also says he was told he could not attend the deceased's funeral due to the IVO.[16]
5. Zakk describes a very good and close relationship with the deceased, which continued until Siobhan prevented their contact. Although Zakk and Michelle often lived some distance from the deceased, they would still see each other on a weekly to fortnightly basis. He says the deceased was always happy to see Dale, Bryce, and himself.[17]
6. Zakk says that when he learned of his grandfather's hospitalisation, he attempted to visit, however, on arrival at the hospital he was turned away. Zakk says it turned out his grandfather had already died before he was told that he was unwell. Like Bryce, Zakk says he was denied attendance at the deceased's funeral.[18]
7. Jasper and Milah spent time with the deceased and their aunt Siobhan. Their mother says that 'he grew very fond of them.' He would 'ask after them' and showed a 'genuine interest in their lives'.[19]

1. Here, as outlined above, the will records that, after serious consideration, and being informed of pt IV of the Act, the deceased did not provide for Michelle and Sharon because of the complete breakdown of the relationship. The deceased made his will in May 2018, some months after the breakdown of the relationship with his daughters. Before then, the deceased appears to have had a close and loving relationship with Michelle and Sharon. This relationship is discussed further below.
2. On 5 December 2013, the deceased signed an agreement acknowledging that he had borrowed $10,000 from Sharon and agreed to pay interest on that sum. The loan was purportedly secured with a security interest over the deceased's property at Windsor Avenue ('Windsor Avenue property').[20] The parties agree that Michelle contributed $5,000 towards this loan, and the deceased's estate will repay it, with interest. The deceased also made enduring powers of attorney, both financial and medical, appointing Sharon as his attorney.
3. The deceased's relationship with his daughters had completely broken down by about March 2018, while he was cohabiting with Siobahn and after he told Michelle that he had decided to sell the Windsor Avenue property.[21]
4. Following the breakdown of the relationship, there was an application made to the Victorian Civil and Administrative Tribunal ('VCAT') regarding the administration of the deceased's financial affairs. It is unclear who made this application, however, Sharon was a party to the application.[22] On 2 May 2018, orders made by VCAT record an application made about the deceased regarding a power of attorney, and that a VCAT member dismissed the application because they were not satisfied the deceased had a disability.[23] On 28 May 2018, applications by Siobhan and the deceased for IVOs against Sharon and Michelle were listed in the Magistrates' Court, and were resolved by Sharon and Michelle giving undertakings of a one year duration.[24] On 28 June 2018, the deceased made an Enduring Power of Attorney appointing Siobahn as his attorney.[25] On 31 January 2019, the deceased and Siobhan each applied for an IVO against Sharon.[26] I gather that later Sharon obtained an IVO against Siobhan.
5. Sharon wished to resolve the dispute with their father. On 14 August 2018, Sharon's lawyers wrote to the deceased requesting a mediation with Sharon regarding the loan she had advanced him.[27] Sharon also sent messages to Siobhan, expressing a desire to see her father.[28]
6. I acknowledge the testator's wishes expressed in his will. However I have given it little weight because of the following circumstances. The breakdown in his relationship with Sharon and Michelle occurred only in the last year or so of his life.[29] It was preceded by a long and loving relationship. The deceased has a moral duty to provide for his daughters.

1. The real issue in dispute is the quantum of the family provision orders. In considering what is necessary for the proper maintenance and support, 'the assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations.'[30]
2. In determining the amount of a family provision order, the Court must take into account the following relevant factors: the degree of the deceased's moral duty to provide for the eligible person at the time of his death, and the degree the distribution fails to make adequate provision for the proper maintenance and support of the eligible person.[31]
3. There is no provision for Michelle and Sharon in the will. For reasons outlined further below, this is inadequate for the proper maintenance and support of Michelle, and, to a lesser degree, Sharon.
4. The amount of provision made by a family provision order 'must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support'.[32]
5. Turning now to the discretionary considerations per s 91A(2) of the Act.

Nature and length of the relationship between the claimants and the deceased

1. The evidence of Sharon and Ms Davis, on behalf of Michelle, shows that the deceased and his daughters shared a loving and close relationship over their lives, apart from the last year or so before his death.

1. During her childhood, Michelle lived with their parents in the Windsor Avenue property.[33]
2. Michelle had a reasonably happy childhood, getting along well with both of her parents. The deceased had emphysema and consequently was 'not ... particularly active', but she still enjoyed spending time with him nonetheless.[34]
3. Michelle moved out when she was 17 years old. Her parents separated a few years later, in 1995, and subsequently divorced.[35]
4. Michelle married Glenn in 1998. Her parents were happy about the marriage, and partially contributed to the costs of the wedding.[36]
5. In March 1999, Michelle gave birth to Zakk. Michelle went into labour while visiting the deceased. He drove her to the hospital and was present for the birth.[37]
6. In 2000, Michelle and Glenn separated, and divorced in 2009.[38]
7. Upon her separation, Michelle frequently moved houses, living in Wonthaggi, Warragul, Cranbourne and Trafalgar.[39] She visited the deceased approximately every two weeks.[40] The visits continued to occur after the deceased and Siobhan began cohabiting in about 2007 or 2008.[41] Michelle would sometimes stay overnight.[42] Michelle did not see the deceased before he died because she thought the undertaking she had provided in connection with the IVO prohibited her from seeing him.[43]
8. Zakk's evidence was that the deceased was generally supportive of Michelle and that they were close.

1. Sharon was raised by her parents at the Windsor Avenue property. She says the deceased was often away working during the week and mainly present on weekends.[44]
2. Sharon ran away from the family home at the age of 15. She says she was having trouble with school. Sharon also gave evidence of having been sexually abused by a relative. She says her relationship with the deceased became a bit 'strange' when she disclosed the sexual abuse to him.[45]
3. Sharon gave evidence that when her parents divorced and while Michelle was living in Narre Warren, her relationship with the deceased improved. She says that for many years she helped and supported the deceased. She would drive to his house to read his mail for him as he was illiterate, and would assist him with withdrawing money from ATMs. She also supported him through a period of incarceration and through his health issues. She said the deceased would attend garage sales and buy items for her, Michelle and the grandchildren.[46]
4. Sharon says that no matter the circumstances, her parents always supported her and treated her and Michelle equally.[47]

Deceased's obligations and responsibilities to eligible persons or beneficiaries

1. It is common ground that the deceased had a moral duty to support Michelle and Sharon. As I will detail below, I am satisfied that both Michelle and Sharon have disabilities. Both sisters have had difficulty in accumulating superannuation and savings. Both live in rental accommodation. Where there are assets available, 'then the community may expect' the deceased would 'provide a buffer against contingencies' or 'something to assist in retirement where otherwise, they would be left destitute.'[48]
2. I am not satisfied that the deceased had obligations and responsibilities regarding anyone else. Siobhan did not give evidence.

1. The deceased's estate is relatively small.[49] After the ascertained costs and liabilities are deducted, the amount for distribution is likely to be in the order of $270,572 minus any currently unascertained costs and liabilities. The administrator's counsel estimated that legal costs concerning the trial may be in the range of $55,000. Adopting this estimate, the amount for distribution would be approximately $215,000.

Financial resources, earning capacity and financial needs of eligible persons and beneficiaries

(a) are owed $5,000 plus interest from the deceased's estate due to a loan of $10,000 made to the deceased;[50]

(b) received $154,016.31 from Dawn's estate (she passed away in 2012), which has largely dissipated;[51]

(c) have life insurance policies;[52] and

(d) live in rental accommodation and do not own any land.[53]

1. Michelle has about $31,000 in savings.[54] However, her savings continue to dissipate as she draws upon them for her living expenses. Michelle has no significant assets. Her superannuation account is her most significant asset, currently valued at approximately $63,500.[55] For clarity, there was evidence to suggest there were two superannuation accounts; however, I accept that there is only one superannuation account, probably as a result of merger or consolidation.[56] Her car is worth about $10,000. She owns no real estate and rents in Frankston South.[57] Michelle is approximately $6,100 in debt.[58]
2. Michelle has a limited earning capacity given her level of education and health issues. Michelle attended school until year 11 but did not complete the year.[59] She works part-time as a kitchen hand, a maximum of 43 hours per fortnight.[60] In the financial year to 30 June 2024, she earned about $25,000 in taxable income.[61] She receives a fortnightly disability support pension of between $500 and $798.56 from Centrelink.[62] With her wages and pension, Michelle's maximum monthly income is $3,808.28.[63]
3. After her separation, Michelle did not receive any proceeds from the sale of the matrimonial home.[64]
4. Michelle provides financial support to Zakk.[65]

1. Sharon is unemployed. Sharon's Notice of Assessment for the financial year ended 30 June 2020 states she had a taxable income of $23,284.[66]
2. Sharon receives a Centrelink disability support pension of approximately $670 per fortnight. She lives on a day-to-day basis. She does not have any debts save for the regular bills. Her savings accounts have a balance under $2,000. I note ANZ bank statements dated up until 10 February 2021 show a balance of $6,272.24 in one account, and a balance of 0.24 cents in another account.[67] Letters from the Commonwealth Bank of Australia ('CBA') dated 6 April 2021 state that Sharon had two accounts with balances of $43,986.07 and $574.70 respectively.[68] Given the date of the ANZ and CBA documents, I accept Sharon's evidence that her savings accounts currently have a balance under $2,000. She also has superannuation of approximately $34,000.[69] Her car is worth approximately $1,000. She owns a second car that she lends to Bryce.[70]
3. Sharon lives in rental accommodation in Ripplebrook with William, Bryce and Dale. This property is about to be sold and they will need to find another rental.[71] Sharon says William is dependent on her.[72] She also provides financial support and housing to Bryce and Dale.

1. Zakk is 26 years old. He is a father of two children, a 22 month old and a 7 month old. He has a partner, who is currently a stay-at-home mum.[73]
2. Zakk is currently unemployed; however, he will soon complete a security course and start searching for part-time employment. Previously, Zakk undertook a carpentry pre-apprenticeship at TAFE, which led to his employment. He did not finish the carpentry apprenticeship. Zakk receives $900 fortnightly from Centrelink for Jobseeker and rental assistance. He has a few hundred dollars in savings and approximately $25,000 in superannuation. Zakk reports he has no known disabilities. He currently rents a house with his father for $640 per week; they split the rent evenly. He and his father spend approximately $3,800 per annum on utility bills. Zakk's only other asset is his car. By way of liabilities, he has approximately $2,000 in unpaid fines.[74]

1. Bryce is 19 years old. He lives with Sharon, William and Dale. Bryce is currently a fourth-year apprentice in sheet metal fabrication, earning around $1,800 per fortnight. He contributes minimally to household expenses. He reports he is in good health and has approximately $3,500 in savings and $10,800 in superannuation. Bryce owns two cars, which he says are 'not worth much', in addition to a dirt bike that he is restoring. By way of liabilities, he owes Sharon approximately $3,000, pays around $1,800 per annum in phone bills, pays registration on his cars and assists with bills associated with Sharon's car.[75]
2. By way of hobbies, Bryce occasionally buys and sells cars; however, he does not make 'much of a profit', and plays football, requiring the payment of registration fees. [76]

1. Dale did not give evidence. Both Sharon and Bryce gave evidence of his financial and personal circumstances.
2. Like Bryce, Dale resides with his parents and brother. Dale completed year 11 of school, followed by an apprenticeship in horticulture. Last year, he began his gardening business. He is trying to organise some ongoing work for William in the business. He does not regularly contribute to household expenses but is willing to assist when necessary. Dale's partner also lives with their parents.[77] Dale owns approximately seven cars that are not 'worth that much'. He does not have any health issues.[78]

1. Milah is in primary school and Jasper is in secondary school. Both are performing within the expected range for their age.[79] They live with their parents in rental accommodation. Their mother works part-time and is self-employed, and reports a variable but modest income. Their mother says she chooses to 'live simply and with purpose, prioritising what truly matters. Our income allows us to meet our needs without excess, and we are not experiencing any financial hardship or debt.' Further, she says the 'children's needs are always met, and their father and I work together to ensure their well-being is consistently supported.'[80] She reports that while the children may express interest in various things, such as the latest phones, their actual needs are fully met. They never go without. They can participate in the activities they are interested in, and have access to opportunities that support their development. Their mother has written that whether or not they receive an inheritance from the deceased's estate, 'their current lifestyle will not be affected. Their needs will continue to be met through the support of their father and I.' If they were to receive an inheritance, it would be 'set aside for future endeavours once they leave school'.[81]

Disabilities of Michelle, Sharon or beneficiaries

1. Section 90 of the Act defines 'disability' as a disability:

(a) that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities -

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

(d) the impairment or impairments affect the person's capacity for social or economic participation;

1. I am satisfied that Michelle has a disability. She has severe health conditions that will impact her lifelong.[82] Ms Davis' evidence regarding Michelle's medical conditions is corroborated by a letter from Dr Ajisa Sabanovic dated 30 March 2025.[83] Michelle's medical conditions are severe and require daily medication.[84] At times, she has required treatment in hospital.[85]
2. I am satisfied that Sharon has a disability. I am satisfied that she has mental health conditions and is profoundly underweight. A letter dated 6 July 2020 from Dr Trish Kerbi, Sharon's general practitioner, refers to Sharon being stressed and its negative impact on her health. The report refers to Sharon being in the 'profoundly underweight range' and having emotional lability. Her doctor opines the cause of the stress as being 'difficulties relating to wills, difficulties with extended family and ongoing disappointment and conflict with various involved lawyers.'[86]
3. Sharon gave evidence that she has emphysema, anxiety and depression. She says numerous counsellors have treated her.[87]
4. The residuary beneficiaries are generally healthy with no serious medical conditions.[88]

1. Michelle is 50 years old and Sharon is 48 years old.[89]

Contribution by Michelle and Sharon in building up the deceased's estate or the deceased's welfare

1. I accept Sharon's evidence, described above, regarding her contribution to the welfare of the deceased.
2. Sharon and Michelle loaned $10,000 to the deceased.

Benefits previously given to Michelle, Sharon or beneficiaries

1. Approximately ten years ago, the deceased gave Michelle a ring worth around $4,000.[90]

Maintenance of Michelle or Sharon by the deceased

1. Michelle and Sharon were not maintained by the deceased. He has generally not provided financial support to his adult daughters. The deceased provided significant emotional support to Michelle, particularly during her severe and challenging health issues. [91]

Liability of others to maintain Michelle and Sharon

1. There is nobody liable to maintain Michelle. Both her parents are now deceased. She does not receive any financial support from her son Zakk.
2. William is Sharon's partner. William works on a part-time casual basis and occasionally works in the business owned by his son, Dale. William otherwise receives Centrelink payments. William does not have any savings and is in an undisclosed amount of debt from credit cards.[92] He owns two vehicles, one of which is unregistered.
3. During the trial, a distribution of $35,787.04 to William was paid into Funds in Court from the estate of his late mother, Susan. This payment was a compromise of William's pt IV claim on the estate.
4. Sharon receives occasional assistance from her children. She says that if Bryce and Dale notice their parents are struggling, they are willing to buy food for the household. There is no set amount that she expects the children to contribute.[93]

Character and conduct of Michelle and Sharon, or other persons

1. There is no disentitling conduct by Michelle and Sharon. This factor is not otherwise relevant.

Effects of a family provision order on beneficiaries

1. The family provision orders will have a significant effect on the beneficiaries as it will reduce provision to them. However, I am satisfied that the grandchildren will not suffer a substantial adverse impact, given that they will benefit from the family provision orders to their mothers. As to Jasper and Milah, the effect will be adverse. However, there will be no immediate impact given that they do not need the funds, and would not utilise them until adulthood. They have the whole of their lives before them, and there is no reason to believe that they, and the grandchildren, would not be able to live independently without provision from the deceased's estate.

1. Bryce does not wish to receive provision under the will, and believes that instead provision should be made to his mother and aunt, Michelle and Sharon.
2. During cross-examination by the defendant's counsel, it was clear that Bryce understands the will provides him with an entitlement to one-fifth of the deceased's estate. However, he does not wish to receive any provision. He stated: 'I believe that ... none of us grandkids... [should] get anything. [The estate] should go back to my mum and Michelle'.[94]
3. The deceased and Dawn separated in approximately 1995 and subsequently divorced. Michelle instructs that her mother told her that she agreed that the deceased could keep the Windsor Avenue property on the condition that he would pass it onto Michelle and Sharon.[95] I accept this evidence. It is consistent with Sharon's submission. The deceased kept the Windsor Avenue property.[96] The deceased subsequently sold the Windsor Avenue property in April 2018 for $390,000.[97] He used funds from the sale to purchase the property for $379,000.[98] I accept that Michelle and Sharon believed there was an arrangement between their parents, and they believed they would inherit the Windsor Avenue property.

1. The deceased failed to make adequate provision for the proper maintenance and support of Michelle and Sharon. Given the relatively small size of the estate, and their circumstances, any provision order will be insufficient to meet their proper maintenance and support. Both have immediate and ongoing financial needs. They reside in rental properties. Michelle earns a modest income. Sharon is unemployed. Both have medical conditions. However, the evidence before me shows that Michelle has severe ongoing physical and mental health conditions. These will affect her lifelong. There is little evidence regarding Sharon's health, although I have accepted she has some medical conditions.
2. Michelle is on her own and supports her son Zakk, who has his own young family. On the other hand, Sharon is part of a close-knit family unit, consisting of her partner, William, and their two sons. Her sons live with her and are both working. William works occasionally. There has recently been provision made for William from the estate of his late mother, although the funds are currently held in Funds in Court.
3. I reject Sharon's suggestion that she should receive 50% of the estate. I understand that she and Michelle are sisters and have always supported one another. However, the test is what is required for adequate maintenance and support. As Hallen J stated in Walsh v Walsh, '[t]here is no obligation on a parent to equalise distributions made to his, or her, children.'[99] For the same reason, I reject three other submissions made by Sharon. First, they should each receive half the estate because Dawn intended for them to each have half of the Windsor Avenue property. Second, without her fighting for the estate, her and Michelle would receive nothing, and so they should each receive 50% of it. Third, the law firm that prepared the will was acting in a conflict of interest. These issues are irrelevant because they do not speak to what is required for adequate maintenance and support.
4. Synthesising all relevant considerations, as I am bound to do,[100] I will make family provision orders for Michelle and Sharon. The provision for Michelle will be 59% of the estate to be distributed to Michelle, and 39% to Sharon. I have decided that the amount of the family provision orders should be expressed as a percentage, rather than a sum, because costs have yet to be settled. Using the estimate of $215,000 this would result in a distribution of $126,850 to Michelle and $83,850 to Sharon. Of course, should Sharon initiate further litigation concerning the deceased's estate, these amounts will be dissipated by further costs.
5. I decline to wholly exclude the named beneficiaries. Although the family provision orders are contrary to the testator's wishes in the will, some recognition should be given to his intention to provide for the five beneficiaries. The remaining 2% of the residuary estate should be distributed to them.

MICHELLE GLORIA WEST (by her litigation guardian, DEBRA DAVIS)

NATALIE TALIA (who is sued in her capacity as administrator of the estate of the deceased)

NATALIE TALIA (who is sued in her capacity as administrator of the estate of the deceased)

[1] For clarity, and without intending any disrespect, I will refer to the parties and their family members and friends by their first names, where appropriate.

[2] See the affidavit of Natalie Talia affirmed on 28 May 2025 ('Talia 28 May 25 affidavit'), 6-7; Transcript of Proceedings, West v Talia (Supreme Court of Victoria, S ECI 2020 02232 and S ECI 2020 02255, Ierodiaconou AsJ, 27, 28 May 2025) ('T'), 144.10-19.

[3] Exhibit 'DD-1' to the affidavit of Debra Davis sworn on 12 May 2025 ('Davis 12 May 25 affidavit'), 23.

[5] See Talia v Blaney [2025] VSC 131.

[6] Orders made on 12 December 2023 in S ECI 2022 03646. See exhibit 'DD-1' to the Davis 12 May 25 affidavit, 24-31.

[7] Talia 28 May 25 affidavit, [4]-[14].

[9] See the three audio recordings provided by Sharon, as tendered and marked in a bundle as exhibit 'B'.

[10] See exhibit '5' to the affidavit of Sharon West sworn on 15 April 2021 ('Sharon 15 Apr 21 affidavit').

[11] 'Eligible person' is defined in s 90 of the Administration and Probate Act 1958 (Vic) ('the Act'). Section 90A provides an eligible person may apply for a family provision order, and s 91 provides mandatory considerations before making such an order.

[12] Gash v Ruzicka [2023] VSCA 189 ('Gash'), [20].

[19] Exhibit 'NTA-2' to the affidavit of Natalie Talia affirmed on 20 May 2025 ('Talia 20 May 25 affidavit'), 36.

[20] Exhibit 'SW-X' to the affidavit of Sharon West affirmed on 31 July 2024 ('Sharon 31 Jul 24 affidavit'), 416-419.

[21] Davis 12 May 25 affidavit, [61].

[22] Sharon 31 Jul 24 affidavit, [g.2].

[23] Sharon's name appears as a reference on the VCAT order: exhibit 'SW-X' to the Sharon 31 Jul 24 affidavit, 217.

[24] Exhibit 'SW-X' to the Sharon 31 Jul 24 affidavit, 209-211, 319.

[25] See exhibit 'SW-X' to the Sharon 31 Jul 24 affidavit, 246.

[26] Exhibit 'SW-X' to the Sharon 31 Jul 24 affidavit, 315-318.

[29] See Barukzai v Rizzo [2025] VSC 308, [23]-[26]. Barrett AsJ gave little weight to the deceased's wishes given the relatively short estrangement and attempts at reconciliation between the deceased and his daughter, the claimant.

[48] Walsh v Walsh [2013] NSWSC 1065 ('Walsh'), [121(c)], citing Taylor v Farrugia [2009] NSWSC 801, [58].

[49] See, eg, Talia 28 May 25 affidavit; affidavit of Natalie Talia affirmed on 22 May 2024 ('Talia 22 May 24 affidavit').

[50] The administrator is satisfied this is a liability owed by the estate: see Talia 28 May 25 affidavit, [7(c)].

[51] Davis 12 May 25 affidavit, [57], [83]. See also the statement of account prepared on 30 January 2014 as contained in exhibit '5' to the Sharon 15 Apr 21 affidavit.

[52] Davis 12 May 25 affidavit, [88(c)]; affidavit of Debra Davis sworn on 22 May 2025 ('Davis 22 May 25 affidavit'), [9].

[53] Talia 20 May 25 affidavit, [10]-[12].

[54] Davis 22 May 25 affidavit, [11].

[56] Davis 12 May 25 affidavit, [88]-[91].

[63] Davis 22 May 25 affidavit, [16].

[64] Davis 12 May 25 affidavit, [52].

[66] Exhibit '8' to the Sharon 15 Apr 21 affidavit.

[67] Exhibit '12' to the Sharon 15 Apr 21 affidavit.

[75] T 78.8-9; 78.20-23; 79.1-5; 79.19-80.18; 81.1-5; 81.26-29.

[77] T 54.6-55.4; 55.14-19. See also T 83.4-16.

[79] Exhibit 'NTA-2' to the Talia 20 May 25 affidavit, 34.

[82] Davis 12 May 25 affidavit, [76]-[79]; exhibit 'DD-1' to the Davis 12 May 25 affidavit, 41.

[83] Exhibit 'DD-1' to the Davis 12 May 25 affidavit, 73.

[84] Davis 12 May 25 affidavit, [76], [79].

[86] Exhibit '7' to the Sharon 15 Apr 21 affidavit.

[88] See, eg, exhibit 'NTA-2' to the Talia 20 May 25 affidavit, 34.

[95] Davis 12 May 25 affidavit, [45].

[96] Ibid [44]; exhibit 'DD-1' to the Davis 12 May 25 affidavit, 42.

[97] Davis 12 May 25 affidavit, [63].

[99] Walsh, [121(i)] (citations omitted).