Plaintiffs v Defendants

1 The plaintiffs seek orders under Part IV of the Administration and Probate Act 1958 (Vic) for provision for their maintenance and support from the estate of the late Christina Maguire Thompson. The deceased died on 2 March 2010 leaving a Will made on 26 August 2009, having previously made Wills in 2003 and 2007. Probate of the last Will was granted on 20 September 2010. The deceased had two sons who survived her but one of whom, namely William Dennis Thompson ("William"), died on 3 October 2012. The previous year William had commenced a similar proceeding under Part IV of the Administration and Probate Act 1958 (Vic) in relation to his mother's estate however that proceeding is no longer on foot.

2 The first plaintiff, Lorraine Dawn Thompson ("Lorraine"), is the former wife of the late William Thompson and the former daughter-in-law of the late Christina Thompson. The other plaintiffs are three of the four children of Lorraine and William, namely Kenneth James Thompson ("Kenneth"), Sharon Janet Cleal ("Sharon") and Dianne Janine Thompson ("Dianne"). Their remaining child, Suzanne Joy Pabst ("Suzanne"), is the third defendant, who seeks to uphold the Will in its present terms but who contends, in the alternative, that any provision that may need to be made for the plaintiffs should be made from the estate as a whole and not only from that part of the estate to which she is entitled under her grandmother's Will. The first two defendants are the co-executors of the estate of the late Christina Thompson. The first defendant, Malcolm MacDonald, is also the late Christina Thompson's brother. The second defendant, Linda MacDonald, is Malcolm MacDonald's daughter and the late Christina Thompson's niece.

3 The deceased's two sons each had children. One son, William, was born on 2 June 1942 and had four children: Suzanne (now known as Suzanne Pabst) born on 9 July 1964, Kenneth born on 25 October 1966, Sharon (now known as Sharon Cleal) born on 21 May 1970 and Dianne (now also known as Dianne Taborsky) born on 25 December 1972. The deceased's other son, Ian Thompson ("Ian"), was born on 21 June 1945 and has three adult children: Kate Thompson born 11 November 1976, and Ewan and Lucy Thompson, who are twins born on 29 March 1977.

4 The total assets of the estate were estimated to be valued at approximately $3.7 million of which the most significant items by value are three rural properties. One is the property known as "East Glen" situated at 4622 Midland Highway, Barjarg. It consists of approximately 435.521 hectares of land and includes a four bedroom weatherboard dwelling and other buildings. It was valued on 24 January 2013 at $1.4 million. East Glen had been the property used and occupied more or less continuously by the deceased's son William, and his family, since not long after its purchase in 1969. The second property is known as "Glen View" and is situated at 4997 Midland Highway, Barjarg. It consists of approximately 174.667 hectares of land and includes a three bedroom weatherboard dwelling and other buildings. It was valued on 24 January 2013 at $1.6 million. Glen View was purchased in 1972 by the deceased and her husband. The deceased's husband died in 1973 and in 1975 she moved from her then home in Coburg to live permanently at Glen View. The third property is known as "McMillans Paddocks" and it consists of approximately 45.464 hectares of vacant land and was valued on 24 January 2013 at $260,000. McMillans Paddocks is also situated on the Midland Highway in Barjarg and abuts East Glen. McMillans Paddocks was purchased at the same time as East Glen and was operated as one farming unit with East Glen but was treated in the deceased's Will as part of the land to be inherited with Glen View. The deceased also left: personal effects and jewellery valued at $3,000; livestock at Glen View valued at $107,942.70; farming equipment at Glen View valued at $19,300; 5,658 units in the Piron Unit Trust No. 1 valued by accountants at approximately $9,391; a debt due from her grandson Ewan Thompson in the sum of $3,000; 1,783 ordinary shares in the Commonwealth Bank of Australia valued at $115,360.10; money held in a Commonwealth Bank Account in the sum of $21,844.90; and a loan due from the Piron Unit Trust in the sum of $160,660. The deceased also left liabilities which, together with a claim for Executor's Commission at 5%, totalled $292,063.20. The net assets of the estate was calculated to be approximately $3.4 million as at 12 February 2013.

5 The deceased's last Will essentially provided that:

(a) her now late son William was to have a life interest in the land known as East Glen with the remainder interest passing to his eldest daughter Suzanne;

(b) her younger son Ian was to have a life interest in the lands known as Glen View and McMillans Paddocks with the remainder interest passing to such of his children as are living at the date of his death;

(c) her son Ian was to have her cattle and all of her shares in the Commonwealth Bank, and her son William was to have all of her plant and equipment; and

(d) each of the executors was to have a legacy of $10,000.

The deceased also forgave any debt due personally to her by her sons and left her residuary estate to be divided into two equal parts: one part was left for her son William for his lifetime with the remainder interest passing to his daughter Suzanne; the other part was left for her other son Ian with the remainder interest passing to such of his children as are living at the date of his death.

6 The deceased made no specific provision for any of her grandchildren except for Suzanne, and made no provision either for her daughter-in-law who is currently married to Ian or for her former daughter-in-law, Lorraine, who had been married to William. The 2003 Will had provided for various life interests to her sons and upon their death to their respective children equally. The 2007 Will changed those dispositions by providing that Suzanne alone would have the remainder interest of the estate given with the life interest to be enjoyed by the deceased's son William. Suzanne's brother and sisters were effectively excluded from any benefit they might have enjoyed from the 2003 Will.

7 Section 91(1) of the Administration and Probate Act 1958 (Vic) empowers the Court to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. The Court's jurisdiction to make an order on behalf of an applicant depends upon finding that the testator had a responsibility to make adequate provision for the applicant and that the applicant was left without adequate provision for his or her proper maintenance and support.

8 The "responsibility" to which s 91(1) refers has been said to be "the moral duty or obligation of the testator to make provision".[1] In Blair v Blair Chernov JA (with whom Hansen AJA agreed) said:

Given, however, that the court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of sub-s. 91(4) when determining the jurisdictional issues, characterisation of the deceased's relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the [then] recent amendments to Pt IV of the Act.[2]

In that case Nettle JA (otherwise agreeing with Chernov JA) said:

To reason from the matters mentioned in ss. 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.[3]

The Court's task in an application under s 91 has been explained as involving two stages: the first, the jurisdictional stage, of determining whether the applicant has been left without adequate provision for his or her maintenance; and the second (if the first stage is determined in favour of the applicant) of deciding what provision ought to be made.[4] Although each stage is analytically distinct, the point of reference for each is "what a wise and just testator would have thought his or her moral duty".[5]

9 The factors relevant to the Court's inquiry are now enumerated in s 91(4)(e) to (p) of the Administration and Probate Act 1958 (Vic), namely:

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

In considering each of these matters it is important to bear in mind that they are not self-contained categories and that they overlap to some and to varying extents.

10 The application by Lorraine is that by a former daughter-in-law. Mandie J (as his Honour then was) held in Petrucci v Fields[6] that the widowed daughter-in-law of a testator ought to have been provided for by the deceased.[7] In that case the daughter-in-law had been widowed at the date of the testator's death (unlike Lorraine whose husband was alive at the time that the testatrix died), and had not been divorced (unlike the position of Lorraine who was divorced on 24 September 2005). The other applicants are grandchildren of the testatrix. Applications by adult grandchildren have been upheld but it has been said that there is "no moral obligation" upon a grandparent to make provision for the maintenance and support of grandchildren simply by virtue of the existence of such a relationship.[8] Such a moral obligation will ordinarily rest upon the parents of a grandchild and not upon the grandparents.[9] However, neither category of potential claimants of "former daughter-in-law" or "grandchildren" are necessarily excluded from the class of persons who may come within s 91(1). The specific nature of the relationship is plainly a factor to which regard must be had (as s 91(4)(e) makes clear), but it is not an automatically disentitling factor that the relationship is that of a "former" daughter-in-law or that of "grandchild". In each case the question to be determined is whether the testator "had responsibility to make provision" for the specific applicant, and that question is to be answered by consideration of the matters enumerated in s 91(4)(e) to (p) and the particular facts and circumstances applicable to the applicant, the testator, the beneficiaries and the estate.

11 Counsel for Lorraine did not rest her application upon the fact of Lorraine having once been married to the son of the testatrix. Emphasis was placed, rather, upon the contribution which Lorraine had made, over the many years before her separation and subsequent divorce, to the deceased's estate and welfare and to the welfare of her family. Counsel for Lorraine relied upon her contribution as a factor to be taken into account under s 91(4)(k) or more generally under s 91(4)(p). The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor.[10] In Goodman v Windeyer[11] Gibbs J said:

One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon C.J. in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were "much strengthened by his cooperation and support in the conduct of her business and of her affairs". Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E. v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided.[12]

These observations were expressed before the enactment of s 91(4) in its present terms but it has been said that the list to be found in s 91(4) of the matters to be considered is "entirely consistent with those considerations which, in dealing with applications under the legislation before the 1998 amendments came into operation, the courts customarily took into account".[13] The breadth of matters that may be considered under that heading is necessarily wide because of the diversity of human experience through which benefits may be conferred upon a person such as may give rise to a moral, as distinct from a legal, obligation to make provision from the estate which has benefitted.[14]

12 The testatrix's wealth at death owed its foundation to a successful career operating a private hospital until 1975. The testatrix had been a nurse and together with her late husband had owned and operated a private hospital in Moreland known as St. Elmo. In 1969 they were able to purchase the two adjoining rural properties known as East Glen and McMillans Paddocks which were operated by the Thompson family as one farming unit. In 1972 they purchased Glen View. In 1973 the deceased's husband died and two years later she sold the private hospital in Moreland and her home in Coburg, and moved to the Glen View property where she remained until her death.

13 The testatrix's son William married Lorraine on 24 January 1964. The then young couple were given land in Reservoir by the testatrix and her husband upon which the newlyweds built a house. The testatrix and her husband had, at the time, two blocks of land which, according to Lorraine, were intended by her parents-in-law to be one for each of the two sons. One was given to William and his then new bride for them to build a house from their own savings and borrowings. The other son, Ian, eventually studied at the University of Melbourne and was assisted whilst he studied with a stipend and with accommodation in a property in Carlton owned by a company controlled by the testatrix. In 1978 the Carlton property was sold and the proceeds given to Ian as an interest free loan to purchase the property that continues to be his family home.

14 When first married, Lorraine was working fulltime in the private hospital owned and operated by the deceased and her late husband. Lorraine and William's first child, Suzanne, was born in 1964 but Lorraine continued to work fulltime at her parents-in-law's hospital at least until 1968 when another person was then employed to run the office which until then had been run by Lorraine. Her husband, William, did not then work for his parents but was employed by a heating oil distributor to drive and deliver heating oil.

15 East Glen was purchased in 1969 and in 1970 Lorraine, William and their then two children moved in. The prompt for the purchase of East Glen, according to Lorraine's evidence, may have been that others in the medical profession known to the deceased and her husband at the time had purchased farming land. In their case, however, the deceased's proposal had been for her son William to be a farmer and to manage the property on her behalf. The then young couple agreed to the proposal and learned about farming from the previous owner of the property before he left the district. The property thus became the family home for William, Lorraine and their children. They sold their house in Reservoir and used the proceeds to renovate and restore the house at East Glen. They worked the farm, they renovated the property and they did whatever else needed to be done. For some time the testatrix paid her son William a salary for managing the property until the testatrix employed another person to do some work on the farm. William continued to supplement the family's income from work off the farm but the young family at the time saw the farm as their future and it appears to have employed all of their resources (financial, material and emotional) in developing the farm and in growing the family on the farm.

16 East Glen was worked by William and his family as a farm for his mother until 1977: the deceased stocked the property managed by her son and his family. In 1977 William and his mother had a significant disagreement and the young family left East Glen for what turned out to be about eight months. In that year William had broken his leg, which was in plaster, and he was unable to do any work on or off the farm. The little savings that William and Lorraine had at the time were used up and they then relied upon sickness benefits from the Government. The catalyst of the disagreement between William and his mother seems to have been about who was to bear the taxation burden flowing from the legal structure which had been created for the financial affairs and asset planning of the testatrix and, I assume, her late husband, which was intended to benefit the family, including her two sons. Lorraine explained that the testatrix had set up trusts into which money was put aside for William and Ian but upon which tax was payable. The testatrix had wanted that her sons pay the tax falling upon what had been put aside for their benefit but they, or at least William, could not afford to pay the taxes whilst having the financial burden of a young family. The specific structure created by the testatrix was not precisely explained but I assume from the evidence that the income which was derived through a trust by the activities of the deceased and her late husband was in part distributed (but perhaps not paid) to her sons who therefore became liable to pay tax on the amounts distributed (but perhaps not paid) to them. The statement of the financial position of the estate includes reference to the deceased holding 5,658 units in the Piron Unit Trust No. 1 and to the deceased having a loan due from the Piron Unit Trust. A letter from the estate's accountants dated 29 January 2013 records that the Trust was established in 1962 and that it still owed amounts of $107,424 to William and $88,996 to Ian on distributions made to them (but obviously not paid). The precise nature of the arrangements, however, are not relevant to this proceeding except in explaining the context of the disagreement between William and his mother in 1977.

17 1977 was also a significant year for the development of William and Lorraine's young son, Kenneth. In that year he was 11 years of age and due to finish primary school with no prospect of progressing to secondary school. Kenneth suffers from galactosemia and is intellectually disabled. He was delivered by his grandmother in 1966 at her private hospital. A few days after his birth he was not thriving and developed severe jaundice. He was subsequently admitted to the Royal Children's Hospital in Parkville and was diagnosed with E.Coli bacterial meningitis and further investigation revealed that he had galactosemia, a genetic metabolic disorder which makes his body unable to metabolise sugar galactose. The condition was apparently exacerbated by the milk which had been fed to him initially at birth and resulted in a number of complications, including the severe bacterial infection, and has left him with a mild intellectual disability. He has suffered epileptic fits from about the age of four which he controls with medication and now suffers mainly from "brownouts" which constitute a lack of awareness lasting up to 10 to 15 minutes. Kenneth was able to remain at primary school until he was 13 years old but was not able to go to secondary school because of his intellectual disabilities.

18 1977 proved to be a difficult year for William and his family in many ways. William had broken his leg and was unable to work, they had left the farm because of the disagreement between the testatrix and William, and it culminated in William suffering a nervous breakdown. However, by the end of 1977 it was apparent that William, Lorraine and their young family needed to return to East Glen. As Lorraine explained:

We stayed in Mitcham until the Christmas of 1977. I found it fortunate or very sad that my father was diagnosed with mesothelioma only three months before he died on 16 December 1977 and I was lucky to actually be in Melbourne to be able to see him and to be with my mother when he died, and his funeral, and that was just on the Christmas and that is the time when, for whatever reason somehow or other, it was a miracle I suppose, that Christina came back down. My husband had a breakdown, he absolutely had a breakdown. He was trying to sleep during the day and I had four kids in the house. We had Sue going to Tintern, me taking Ken to Mitcham Special School, we had Sharon in primary school and Didie going to kindergarten, I had my father who was dying, my mother to support and a husband who just wasn't coping, and he started on Nostradamus and he got it into his head that everything revolved around Nostradamus, the end of the world is nigh and all that, and he just had a horrible breakdown. To the extent that he had me trying to back out through a window at one stage, and the kids were holding him back basically to stop him, and that was just too much, and I don't know if that was when I spoke to Ian or not but somehow Christine - we call her Ina - Christina came down and said, yes, that we weren't coping and did we want to go back to the farm, and so we went back to the farm because we had to get out of the city. We couldn't cope.

At the end of 1977 the family left the house they had moved into in Mitcham and returned to East Glen. In 1978 Kenneth attended Ballandella Special School in Benalla where he remained until about 1990 at the age of 24. It was from East Glen that each of the other children went to school and got married. Lorraine remained there until 2003 when she left William. William remained at East Glen until he died on 3 October 2012.

19 East Glen again became the family home for William and Lorraine from the end of 1977 and remained so until 2003. The farming arrangements between the testatrix and William changed upon their return to East Glen and William and Lorraine were thereafter able to keep their own stock on the property and made some, but not much, money from their farming activities. The young family, however, still depended upon William obtaining work off the farm and they used their money to maintain the family and invest in East Glen by building sheds, including substantial shearing sheds, dams, roads and fences and by renovations to the house over time. The initial clearing of the property had not been properly finished off and a substantial part of the property had to be re-cleared. They constructed a shed capable of accommodating a couple of trucks and installed a water tank capable of holding some 20,000 gallons of water. A concrete water tank was built, as were a new shearing shed and sheep yards. The house was extended with renovations to the kitchen, the construction of a verandah, a swimming pool for the children and the erection of extensive fencing.

20 In 1984 Lorraine obtained part-time work at the Mansfield Adult Education Centre where she continued to work for about 9 years. Her wages assisted with the household expenses and the cost of education for the children, which included the cost of Suzanne boarding at Tintern and subsequently in Benalla. In 1993 Lorraine undertook a course run by the Commonwealth Government which led to her establishing a business known as "Mansfield Hydroponics" conducted from East Glen. A substantial investment of some $60,000 was made in constructing three lettuce sheds and a tomato shed, with associated tanks, generator and piping on East Glen sufficient to grow 7,500 lettuces and 1,200 tomato plants. Lorraine was primarily responsible for growing, harvesting, cleaning and preparing the produce for sale. The business was labour intensive and was operated seven days a week. At one point it became Lorraine and William's main source of income from business conducted at East Glen. It was Lorraine who was the driving force for these developments.

21 In 2003 Lorraine left William taking Kenneth (then 37) with her. There is clear evidence that William was an alcoholic, as, it seems, may have been his father. William's problem with alcohol affected his relations and general attitude. In 2003 Lorraine turned 60 years of age and decided that she was no longer prepared emotionally or financially to continue to support William with his serious drinking problem. In making that decision she also sought to improve the life and conditions of her son Kenneth. The occasion constituting the "final straw" appears to have been that her husband had repaid the testatrix a loan of $15,000 which had been lent to them to buy materials to build the tomato shed. At the time the couple had a total savings of just over $17,000 in the bank and William wrote a cheque for $15,000 without discussing the matter at all with his wife. It may not have been the only reason for the separation of the couple but it was described as the "last straw" in the lengthy build up of pressure, and of emotional and financial dependence of William upon Lorraine. The evidence of other witnesses support that of Lorraine concerning William's drunkenness. His brother Ian was "ordered" by the testatrix "out of her house for the period of one year" because he had not been able "to tolerate, after years, and before and after Lorraine's leaving him, [William's] drunken company every evening". Indeed, Ian's evidence included having "accused" the testatrix of being complicit in Lorraine leaving William.

22 Lorraine and Kenneth left East Glen on 15 August 2003 and appear never to have spoken to the testatrix again. Lorraine and William were subsequently divorced on 24 September 2005 but no property settlement was made between them. The only assets Lorraine appeared to have in 2005, after 41 years of marriage, apart from her personal possessions and some furniture, was an amount of some $11,000 of which $7,500 had been saved from Kenneth's disability payments together with a gift of $3,500 which the testatrix had given to Kenneth for his 21st birthday. No compensation was given to Lorraine for any of her contribution in building up the farm or the Mansfield Hydroponics business or for her contribution to the marriage.

23 It is significant that Lorraine has continued to be her son's carer. In 2003 Lorraine and Kenneth moved to Rutherglen and Kenneth attended Kalianna in Albury. One of Lorraine's tasks was to drive Kenneth to and from Rutherglen from Albury. In 2006 Kenneth was transferred to Murray Valley Centre in Wodonga which provided a bus service from Rutherglen and a supported employment opportunity with a one week holiday at the end of terms one, two and three, and with four weeks holiday at the end of term four. Kenneth now receives a disability pension of $797.05 per fortnight which includes rent assistance and a mobility allowance of $86.00 per fortnight. He travels to Murray Valley Centre each week day and is in a paid supported employee position for 24 hours per fortnight. His pay increased recently to $176.00 per fortnight and that may lead to a reduction in his pension entitlement. From these amounts he pays rent and contributes to the household expenses to live with his mother. He pays for his personal needs, clothing, medical costs, entertainment costs, holidays and travel expenses and for the bus which takes him to Murray Valley Centre and for the occasional respite at Wodonga and Wangaratta when needed. Kenneth can read small words but cannot understand their context in sentences and paragraphs. He sounds out longer words and guesses their meaning. He can print his first name but often leaves a letter out or jumbles his surname. He will copy his name when possible to do so. He can handle small amounts of money in his wallet but usually trusts others to give him the correct change or to take the correct amount from him. Lorraine continues to handle all of his affairs, his correspondence and his arrangements with Centrelink, Murray Valley Centre, respite houses and medical authorities. He is able to handle a TV remote control but not the television. He can handle the CD player and can mow the lawn if the mower is serviced by others. He can assist in sheep work at one of his sister's farms and can help with fencing as long as he has someone to supervise him. He looks after his own hygiene with some occasional supervision as to frequency of showering, shaving, changing clothes and the like. He needs assistance to attend and enjoy activities such as going to the picture theatre, ten pin bowling, playing pool, swimming and attending country and western dancing at Benalla.

24 The first matter required by the Administration and Probate Act 1958 (Vic) to be taken into account is s 91(4)(e) in which the Court must have regard to the "family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of that relationship". The relationship between Lorraine and the deceased is that of former daughter-in-law; to which could be added Lorraine's relationship with the deceased by virtue of the continuing need and dependency upon her of Kenneth who is the deceased's grandson. The relationship between the other applicants and the deceased is that of grandchildren and grandmother and the respective lengths of their relationships with the deceased is that of the entire lives of each of those applicants. The length of the relationship between the deceased and her former daughter-in-law commenced with Lorraine's marriage to William in 1964. Counsel for the estate contended that the relationship between Lorraine and the deceased came to an end in "August 2003 when Lorraine left [William]". It is true that Lorraine's evidence was that she had not seen the deceased since the day she left William but that does not mean that the relationship between Lorraine and the deceased came to an end with that event or that the event erased the relationship of the preceding 39 years. The nature of the "relationship" to be enquired into under s 91(4)(e) is not confined, as the estate's counsel's assertion might suggest, but is broad enough to encompass past relations as well as any continuing ties from past circumstances, events and dealings. The separation of Lorraine from William on 15 August 2003, and the legal divorce on 24 September 2005, does not erase the relationship which existed between the testatrix and the applicant in the 39 years between the marriage of William and Lorraine in 1964 and their separation in 2003. Lorraine continued to be the daughter-in-law at least until the divorce on 24 September 2005, and continued to be the former wife of the deceased's son and the mother of the deceased's grandchildren through William. Lorraine's conduct on and since the separation on 15 August 2003 is obviously relevant to a consideration of the factor in s 91(4)(e), as is the fact that Lorraine had not spoken to the deceased after 15 August 2003, but it does not negate the significance of the relationship over the preceding years or the significance of the relationship to the extent that it continued or had continuing effect thereafter on the question of whether a moral claim was imposed upon the deceased.

25 The second factor, s 91(4)(f) requires consideration of "the obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate". This factor will often require a balancing of potentially competing obligations as between different applicants and as between applicants and beneficiaries. Amongst the obligations or responsibilities the deceased had to Lorraine is that moral duty she had arising from Lorraine's dedication as wife to the deceased's son, as mother to the deceased's grandchildren by her son and as an active participant in the maintenance and building up of that part of the estate represented at East Glen.

26 The moral obligations or responsibilities of the deceased to the other applicants are essentially those flowing from her being their grandmother. The deceased did not undertake or assume any special or particular obligation or responsibility for the care or needs of any of her grandchildren, including Kenneth, although she may have some special obligation or responsibility in respect to Kenneth because of his specific circumstances as someone who is unable to look after himself. As a grandchild Kenneth, like his sisters, might ordinarily be expected to look to his parents to make provision for his welfare and support[15] but his late father, William, is effectively incapable of doing so given the latter's circumstances (including, if not chiefly, because the testatrix made little provision for William beyond the provision of a life interest) and his mother, Lorraine, has limited resources to do so. The specific circumstances of Kenneth imposed upon a wise and just testator a moral obligation and responsibility to ensure that adequate provision was made for Kenneth either directly to him from the estate or indirectly to him through one or both of his parents.

27 A consideration of the deceased's obligations or responsibilities to the beneficiaries of the estate requires a consideration of the claims upon the estate of Suzanne, of the deceased's other son Ian and of Ian's three children. Neither Ian nor any of his children applied for orders for maintenance from the estate. Ian is 67 years of age and anticipates needing to work until the age of 70. He is a speech pathologist and currently works some two days per week with the Inner East Community Health Service, although as late as July 2011 he had been in fulltime employment. In 1973 he had been provided with a house in Carlton from his mother and father while studying at the University of Melbourne and was given a stipend to support him while he studied. That stipend is recorded as an interest free loan and remains unpaid to the estate. In 1978 the Carlton property was sold and the proceeds were used to provide an interest free loan to Ian to buy the property that continues to be his family home at 23 The Righi in Eaglemont with a current council valuation of $1.24 million. The Will also forgave the debts which Ian owed personally to the testatrix and he was given the testatrix's shares in the Commonwealth Bank of Australia which are estimated to be worth $115,360.10, and the livestock at Glen View valued at $107,942.70. Suzanne appears to have had the closest relationship with the deceased amongst all of the grandchildren. However, the deceased did not have any obligation or responsibility to Suzanne or to Ian's children beyond that flowing from the relationship of grandparent and grandchild. None have any special claim beyond their relationship, albeit a close relationship in the case of Suzanne, and none are in the same position as Kenneth.

28 Section 91(4)(g) next requires consideration of "the size and nature of the estate of the deceased person and of any charges and liabilities to which the estate is subject". The size of the estate represented by its net assets is put at approximately $3.4 million. Its nature is essentially rural real estate comprising two farms in what is, broadly speaking, three parcels. East Glen is the farm on which Lorraine, William and their family lived and made their home from its acquisition by the testatrix in 1969, with a gap of some eight months in 1977, to Lorraine's separation from William in 2003. It is valued at $1.4 million. The other farm is where the deceased lived from 1975 until her death in 2010 and is valued at $1.6 million. The third parcel of rural real estate (McMillans Paddocks) is valued at $260,000. The rural properties represent all but some $140,000 of the net assets of the estate on that broad calculation.

29 Section 91(4)(h) requires consideration of "the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future". A consideration of this factor will frequently call for a comparison of the financial resources of applicants and beneficiaries.

30 The financial position of Lorraine consists of assets which she has valued at approximately $325,000. Lorraine's assets stem primarily from a $240,000 inheritance she received from her mother who died in March 2006. Unbeknownst to Lorraine her brother Kevin had organised with their mother that he would personally forego any share in the mother's estate, in order to help provide Lorraine and Kenneth, who were living in rented accommodation at the time, with a stable environment. Lorraine was able to purchase a modest house in Rutherglen with the inheritance, which now has a council capital improved value of $281,000. Lorraine receives a Centrelink aged pension, which is currently at $772.60 per fortnight, and $140 rent per fortnight from her son Kenneth, plus he also shares equally in payment of the household expenses. She has a 2009 Mitsubishi Lancer motor vehicle valued at approximately $10,000 and approximately $34,000 in bank savings. Lorraine is now 70 years of age and may be regarded as having effectively ended her working life.

31 The financial resources of Kenneth are essentially a disability pension, which is currently $797.05 per fortnight and includes rent assistance and a mobility allowance of $86.00 per fortnight. His ability to work is limited by reason of his intellectual disability, other than in a supported employment environment. Any increase in his employment situation may, of course, have the consequences of reducing the pension he otherwise receives, and of increasing his outgoings if there is a need to travel to the place of employment. It can also be assumed that his costs are likely to increase as his mother's ability to care for him reduce and eventually cease, unless one of his three sisters is able to provide additional assistance to him in the future.

32 Sharon and Dianne are the other two applicants. Both are children of William and Lorraine and grandchildren of the testatrix. Sharon is now 42 and Dianne is now 40. Both are married and have relatively young children.

33 Sharon's financial resources include a farming property in Norong, which she owns jointly with her husband, Warren Cleal, and the earning capacity which she may expect from continuing to manage the farming operations. She estimated her assets, all of which are owned jointly with her husband, to be valued at approximately $2,556,880, consisting of the 1,297 acre farm property valued at $2,101,380 on which she and her family live, 3000 sheep valued at approximately $115,500, farm plant and equipment valued at approximately $66,000, a 2011 Mitsubishi Triton motor vehicle valued at $28,000, a 2006 Ford motor vehicle valued at approximately $10,000, and bank deposits totalling $240,000. The bank deposits are set aside under the Australian Taxation Office Farm Management Deposits Scheme set up to assist farmers to deal with fluctuating annual incomes. Her liabilities with her husband total approximately $1,168,585 and include a mortgage on the farm property of approximately $916,000, an overdraft of $232,585, and a current tax liability of about $20,000. Her projected income from the farming operations and shearing contracting business for the year ending 30 June 2013 is estimated at $210,000 from which they expect to pay expenses of at least $230,520 consisting of bank interest on the mortgage and overdraft of $84,980, farm lease payments on 800 acres of $37,540 and crop sowing costs of $108,000. It is expected that the shortfall will be met from the funds set aside in the bank under the Australian Taxation Office Farm Management Deposits Scheme. Sharon's three children are aged 8, 11 and 13 years and can be expected to continue for some time to make financial demands upon the resources of Sharon and her husband.

34 Dianne's financial resources were estimated at $505,250 including a residence in Coburg with a council capital improved value of $474,000, a 2004 Subaru Outback motor vehicle valued at approximately $13,000, a 2009 Ducati motorbike valued at approximately $17,000 and approximately $1,250 in bank savings. These are all owned jointly with her husband, Daniel Taborsky. Their joint liabilities total approximately $324,000, being a mortgage on their home of approximately $298,000, a personal loan from a Mr John Taborsky of $10,000, credit card debts of approximately $12,000 and a debt of $4,000 to the Australian Taxation Office for Family Assistance Tax Benefit received before October 2012. Dianne has two children aged 2 and 3 years respectively and Dianne is currently a full time mother with no current earning capacity in the immediate future, although she anticipates returning to work as a sales person sometime after 2016 when her youngest child is expected to commence school. Her husband is a qualified panel beater who in the past earned a net weekly income of approximately $1,500 which was all spent on household needs and other expenses. From October 2012 he had been working on a "fly in fly out" basis as a welder's assistant on the Curtis Island gas pipeline project in Queensland. On that project he worked 28 days on site in Queensland and had nine days off. Until recently he earned a net weekly amount of $2,300 on the weeks he was in Queensland unless rain prevented work. On his nine days off, and when rain prevented work in Queensland, his net weekly income was reduced to $950. The Queensland work ceased in March 2013 although he may be offered further work for a period of six to twelve months. Their current living expenses continue to be estimated at about $1,500 per week.

35 The financial resources of the beneficiaries of the estate call for a consideration of the position of Suzanne, Ian and of his children. Suzanne is a registered nurse presently employed by Southern Health as an Associate Nurse Unit Manager in the Emergency Department. Her current base salary is $73,500 per annum gross, however with penalties she earned $90,313 per annum gross in the last financial year. She has been married for 20 years to Graeme Pabst and has four children aged 17, 14 and twins aged 10. Her husband works for Bottomline Technologies as an information technology consultant earning $68,256 per annum gross. His employer allows him to arrive at his workplace after 9am and to leave early enough to attend to family responsibilities. The twins attend Beaconhills College in Berwick and the older two children attend St Margaret's School in Berwick. The current school fees are estimated at approximately $50,000 per annum with additional costs for sport and music in excess of $5,000 per annum. Three of the children suffer sleep bruxism and require mouth splints and specialist periodontal and future orthodontic treatment.

36 Suzanne's financial resources also includes her joint ownership with her husband of a home in Pakenham with a council capital value estimate of $361,000. They have a mortgage on that property of about $40,000. They also own a flat in Richmond with a mortgage of about $302,000. It has a council capital value of $500,000. Both properties, however, were estimated by Suzanne at less than the amounts shown in the council valuations. She estimated her home in Pakenham to be worth between $250,000 to $280,000 rather than the amount of $361,000 shown in the council rates notice. The basis of that estimate was the sale of a comparable property nearby for $280,000 about 12 months before the hearing of the proceeding. The estimate of the Richmond property was put by Suzanne at about $400,000 by reference to the sale of a similar flat in the same block. That property is currently rented but appears to receive less rent than the outgoings (including, no doubt, interest).

37 Her other financial resources includes a 1996 Volvo station wagon valued at about $5,000. Her husband leases a car through his work at the cost of about $12,000 per annum. She owns some 826 AMP shares valued at about $4,427 and her husband owns 447 CBA shares valued at about $28,889. She has money in two superannuation funds totalling some $208,000 and her husband's superannuation fund balance is $220,000. Since 2007 she has owned the business name "Mansfield Hydroponics" once operated by her parents but the business has been inactive since 2007. She has two credit card debts of about $7,000 and estimates her family living costs at about $2,200 per month. Suzanne is one of the executors of her father's estate and under his Will is to receive the residue of his estate. The precise value of that estate was difficult to determine at the date of trial but the value of the residuary estate was estimated by Suzanne at approximately $70,000.

38 Ian and his three children are the other significant beneficiaries whose financial resources and needs are to be considered in relation to the applications for maintenance and support. Ian was born on 21 June 1945, is married and has three adult children. Kate was born on 11 November 1976 and is now the Director/Manager of the Adolescent Cancer Program at Peter McCallum Cancer Institute and is a trained social worker. Ewan and Lucy are twins born on 29 March 1977. Ewan is a Manager for WorkCover and Insurance with QBE and Lucy has completed a Masters Degree and is working in Edinburgh as a social worker. Ewan is married with two small sons. Kate and Lucy are both single.

39 Ian's financial position includes the ownership of a house in Eaglemont purchased in 1978 which is now owned free of mortgage. He owns a Volkswagen Polo purchased in 2004 and described himself as having "few savings, and no investments". He does have a superannuation fund with a balance of $262,911.62 from which he draws $500 a fortnight, and he continues to work two days per week. His wife is some seven years his senior and not working, but receives about $265 per month from a British pension. The two also have a Pensioner Security Account for savings with a balance of $1,332.81 and have other smaller amounts in various accounts. Ian continues to have some earning capacity although that is diminishing with the passage of time.

40 Section 91(4)(i) requires consideration of "any physical, mental or intellectual disability of any applicant or any beneficiary of the estate". The only person with a disability is Kenneth which I have described above. The physical circumstances of the applicants and of the beneficiaries may also require taking into account their respective ages which have also been set out in several places in these reasons but are considered specifically in s 91(4)(j).

41 Section 91(4)(j) requires "consideration of the age" of the applicants. In the case of Lorraine her age is now 70. In the case of the other three applicants their ages are, respectively, 46 (Kenneth), 42 (Sharon), and 40 (Dianne).

42 Section 91(4)(k) requires consideration of "any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased". Counsel for Lorraine placed primary reliance upon this factor as explained above. Ian described Lorraine's work on the farm as tireless. In response to an affidavit previously sworn by his late brother William, Ian said of Lorraine's efforts on the farm and in the hydroponics business:

Her work was arduous, sweltering under the plastic in the summer and with her arms in freezing water during the harsh North East winters. Nevertheless, her skill was widely recognised and the farm was more profitable than it had ever been.

Lorraine's contribution to the estate was through her relationship as William's wife, the deceased's daughter-in-law, the mother of four of the deceased's grandchildren, and through her working on and maintaining the East Glen property as recounted above. She also provided emotional support and comfort to the deceased personally by family visits to the deceased over the years (although I consider that to be of lesser weight than her other contributions). The other applicants rely also upon their contributions in working on the farm at East Glen but their contributions appear to be little more than the family activities of children likely to be found on a family farm whilst they were growing up.

43 Section 91(4)(l) requires consideration of "any benefits previously given by the deceased person to any applicant or to any beneficiary". The two sons of the deceased had each been given financial assistance as early adults. William and Lorraine had the benefit of the property at Reservoir early in their marriage and, of course, the use of the land at East Glen. In their case, however, the benefits of the property at Reservoir soon merged with the costs of raising a family and maintaining the farm which is part of the deceased's estate. William, but not Lorraine or her children, continued to receive benefits from the deceased by occupation of the East Glen property until his death.

44 Section 91(4)(m) requires consideration of "whether the applicant was being maintained by the deceased person before that person's death either wholly or partly" and, where relevant, "the extent to which and the basis upon which the deceased had assumed that responsibility". It seems clear that the testatrix in this case had not been maintaining any of the applicants before her death since at least 2003 other than her son William by continuing to allow him to occupy East Glen.

45 Section 91(4)(n) requires consideration of "the liability of any other person to maintain the applicant". This factor will frequently call for consideration of the legal, or moral, liability of others to maintain a person applying for maintenance and support from the estate. Lorraine receives a pension as does Kenneth. The latter may also look to the former for some support during her lifetime and from her estate in due course. The other applicants each have stable domestic partners to whom they may look to for support and in due course they may also look to their mother's estate for support.

46 Section 91(4)(o) requires consideration of "the character and conduct of the applicant or any other person". There is, in my view, nothing in the character and conduct of any of the applicants to constitute a disqualification of any of them to look to the estate for maintenance and support. One of the co-executors, Malcolm MacDonald, the deceased's brother, explained that after 2003 the deceased had confided in him about her disappointment and upset that her grandchildren, except for Suzanne and her son Ian's children, "never came to visit her or rang to speak to her". According to his testimony the deceased believed that the grandchildren had sided with Lorraine to the detriment of William and herself. On the occasion of the birth of one of the deceased's great grandchildren neither Lorraine nor any of her children informed the deceased or her son William until some months later.

47 It is clear that relations between the deceased and the applicants after 2003 was not as strong as the deceased's relationship with Suzanne, with her two sons and with Ian's children. Kenneth's circumstances militate against adverse inference against him. The position of his sisters, however, did not reveal as stark a break as may have been the case with their mother or as negative as was suggested by their uncle Ian's testimony. They both gave evidence of a continued relationship with their grandmother after 2003 although it may not have been as frequent, warm and supportive as may have been the relationship between Suzanne and their grandmother. Sharon gave evidence that she continued to visit her father and grandmother during school holidays after her parents separated in 2003. She believed her relationship with her grandmother continued always to be a good one and that her grandmother had always indicated that she was grateful that Sharon and her children visited. Dianne described her relationship with her grandmother as "always warm" and as not having changed after her mother left her father even though she visited her grandmother less frequently than she had in the past. There may be many factors that explain a difference in the frequency of contact in the relationship between grandchildren and their grandmother at different stages in their respective lives including the changing impact of different ages, locations, educational commitments and changing demands at different times of life, including in the case of Sharon and Dianne the demands of raising their own young children, which impact on the availability of free time. Nothing turns upon the conduct or character of the grandchildren that would disqualify them from consideration by a wise and just testator.

48 The position of Lorraine is, perhaps, more complicated. It is relevant that she had no contact at all with her former mother-in-law from August 2003. But that is only one factor to take into account along with all of the other factors and is not of itself a wholly disqualifying circumstance. The evidence concerning Lorraine's character and conduct is generally of an exemplary woman who devoted herself as a wife, mother and daughter-in-law until, having reached the age of 60, she decided no longer to provide financial and emotional support to an alcoholic husband and preferred to devote herself to the care and support of her disabled son. There was no evidence of any kind reflecting adversely upon the character of Lorraine or adversely upon her conduct beyond the fact that having left her husband she no longer saw her former mother-in-law. Even that may need to be tempered with the evidence of Sharon that on more than one occasion the testatrix had indicated to Sharon that Lorraine had made the right decision in leaving William so that she could provide Kenneth with a better life.

49 There was one incident concerning Lorraine's conduct that requires separate consideration. Evidence was given that solicitors purporting to act for Lorraine wrote to her former husband in March 2006 seeking a property settlement with suggestions of a claim also against her mother-in-law. Lorraine was cross-examined about the correspondence which was sent apparently on her behalf by the firm of solicitors. Her evidence was that she was aware of the letters being sent but had not herself instructed the solicitors and had never seen the final letters sent on her behalf in March 2006, and further in May 2006, before them having been shown to her in cross-examination. What seems to have happened is that a friend of Lorraine's took it upon herself to arrange for the solicitors to send the letters of demand. The friend, Lois Simpson, had a daughter who was a solicitor and took it upon herself to have the solicitor's letters sent to William on Lorraine's behalf seeking some $200,000 by way of property settlement. Lorraine had not applied for divorce but was divorced upon the application of her husband. The divorce became final on 24 September 2005 and the first letter seeking payment was sent the following March. At the time Lorraine had been living in rented accommodation with little money and found herself in no position to pursue legal proceedings. The letters understandably upset William and the testatrix, but Lorraine had very little knowledge of the letters. The friend's action was ill-advised and harmful to Lorraine's relationship with her former husband and her former mother-in-law (however well intentioned it may have appeared). The action of the solicitors in writing letters on behalf of someone without personal instructions reflects badly upon them professionally but criticism of their professional conduct should not automatically be ascribed to Lorraine: the solicitors may be expected to know what they should have done; the same cannot be said automatically of Lorraine.

50 The friend was freely identified by Lorraine when her name was sought in cross-examination and she was said by Lorraine to be present in Court when Lorraine gave evidence in cross-examination of the events. Lorraine herself may be criticised for having allowed the friend to take steps on her behalf without taking sufficient care to discover what was being said on her behalf or to consider precisely the consequences that might follow from the correspondence, but I do not regard it as significantly culpable conduct to disentitle her from a moral claim upon the estate. The claims in the letters were not pursued, Lorraine had not initiated the divorce and there was no conciliatory overtures from her former husband or her former mother-in-law. The evidence indicates that the deceased may have been upset by the correspondence and demands, but not that they had such a significance in the deceased's mind as would warrant her, as a wise and just testatrix, to exclude Lorraine from provision in her Will.

51 Section 91(4)(p) permits the Court to have regard to "any other matter" considered relevant. In this case there were no matters relied upon under this ground that were not otherwise considered under the other grounds.

52 I am satisfied that a wise and just testator in the position of the testatrix would have made provision for her former daughter-in-law. As at the date of death of the testatrix the facts concerning the position of her former daughter-in-law Lorraine, her circumstances, and her continuing obligations to her son Kenneth, were all known to the testatrix. She knew that William and Lorraine had divorced and had not maintained a supporting relationship towards each other. She knew that the full burden of caring for and supporting Kenneth had been assumed by Lorraine and that her son William was an alcoholic who depended upon his mother's continuing support. Lorraine had devoted the bulk of her married life as wife to the testatrix's son and as mother to their children. She had devoted herself as wife, mother and business partner to the maintenance and activities at East Glen for the better part of her working life until at the age of 60 she left her husband in large part to devote herself to the continued care and quality of life for her son Kenneth. A wise and just testatrix would not have excluded Lorraine from the Will or left Lorraine dependant upon her former husband for support.

53 I am not satisfied that a wise and just testatrix would have made separate provision for the other three applicants. The Court must place itself in the position of the testatrix and consider what she ought to have done in all the circumstances of the case.[16] Those circumstances must be considered as they stood, at the latest, at the date of the testator's death.[17] Unforeseen circumstances arising after that event could not govern the wisdom or justice of a testator whilst alive and the Court must therefore put itself in the position of the testator attributing to the testator justice and wisdom "not after but immediately before death".[18] It follows that the fact of the death of her son William is not to be taken into account when determining what the testatrix would have done as a wise and just testatrix in all the circumstances. Provision by the testatrix for Lorraine would, in the circumstances which were known to the testatrix, have been sufficient for any subsequent maintenance and support to her grandchildren through such provision as the testatrix could confidently expect that Lorraine would have made to them from her estate in due course. Sharon and Dianne are both in stable relationships and although they may not be as financially secure as their older sister Suzanne, they are not in such need as might invoke upon the moral duty of the testatrix to provide for them. The position of Kenneth is obviously different but a wise and just testatrix could confidently assume that Lorraine would make adequate provision for him given the way in which she has maintained and supported him for the whole of his life thus far.

54 The next stage for the Court is to determine what to order from the testatrix's estate for the "proper maintenance and support" of Lorraine. Counsel who appeared for Lorraine and her two daughters sought orders on behalf of Lorraine for a sum of $500,000 and for each of the daughters in the sum of $100,000. Counsel appearing for Kenneth sought an order in the sum of $700,000.

55 What is proper to be provided for Lorraine from the estate should take into account the estate and the competing claims of others and the evident intention of the testatrix. In broad terms the testatrix sought to divide the estate between her two sons and through them to her grandchildren along the two branches of her descendants.

56 Lorraine now owns her home and receives a pension. Her immediate concerns include her need to provide for the ongoing maintenance and long term security for her son Kenneth. The evidence is that a flat could be purchased for his use in Wangaratta for amounts ranging between $137,000 to $220,000. When he reaches the age of 55, in nine years time, he may become eligible to live in a retirement village with 24 hour supported care, and the value of any flat owned by Kenneth could be used as a bond for his accommodation in such a retirement village. Lorraine would then be 79 and may, of course, not reach that age or not remain able to look after him until then as she has managed to do until now.

57 The proper provision for Lorraine would include, in my view, an amount for her to assist Kenneth and an amount to provide for Lorraine personally. Any provision for Lorraine from the estate is likely to have an impact in reducing her existing pension. Her counsel estimated that her pension would be reduced from $772 per fortnight to $329 per fortnight if she had an additional $500,000 to invest.

58 The task of determining what is adequate and proper provision is not restricted to determining a person's needs. In Greely v Greely[19] Judd J said:

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

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

[40] The word 'proper' connotes something different from the word 'adequate': Goodman v Windeyer at 497. The word 'proper' connotes an ethical position as to what allowance should be made: re Harris [1936] SAStRp 52; [1936] SASR 497 at 500 applying Allardice v Allardice (1910) 29 NZLR 959. Adequate provision for the proper maintenance of a child is not limited to providing what is sufficient for a basic subsistence or satisfying the mere needs of that child. As Salmond J said in Welsh v Mulcock [1924] NZLR 673 at 685:

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

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

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

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

Applications for further provision under Part IV of the Administration and Probate Act by adult children are not uncommon. There is no need to establish some special need or special claim in such circumstances. In the present case, it is difficult to overlook the disconformity between the provision made for the defendant on the one hand and for Susan, Shane, Michael and Sharon on the other. At the time his mother died, the defendant owned two properties and a half share in a third, although it is true that he attended the needs of his mother during her illness until he was unable to continue to do so. The defendant seemed to maintain a strong link with his mother, who had managed his financial affairs from the time he was first employed. It was not surprising that the deceased would leave a substantial part of her estate to him.[20]

What is adequate and proper to be provided, bearing in mind the circumstances of all concerned, the intentions of the testatrix and the size of the estate must in the end be a matter of judgment and impression. In my view provision for Lorraine would require an amount of about $800,000 in recognition of her needs (including her needs with respect to the care of Kenneth) and the contributions she made to the estate and to the deceased over very many years. I accept the submission by counsel for Lorraine that provision for her is not to be limited to her immediate needs but should provide her with sufficient funds for her to invest and receive an income. It should also provide a secure foundation for Lorraine to make provision for Kenneth both in the short and long term. An amount of around $200,000 would enable Lorraine to provide for Kenneth's needs for a flat and which may substantially be used to provide a bond for accommodation in a retirement village. An additional amount of $600,000 invested at, say 5%, would provide her with an annual income of around $30,000 or a weekly amount of around $577. I am mindful of the fact that counsel for Lorraine had sought provision for her in the sum of $500,000, but he did so in the context of seeking also $100,000 for each of the other two applicants and also in the context of a claim based on the estate to be inherited by Suzanne under the terms of the Will. Counsel for Suzanne contended that any provision to be made should be from the whole of the estate and not just from what she would otherwise inherit. I accept that submission to the extent that McMillans Paddocks should form part of the estate from which any provision for Lorraine is to come. I also consider that adequate and proper provision for Lorraine should enable her to be secure, and in light of the size of the estate an amount of $800,000 for Lorraine is appropriate.

59 The provision for Lorraine should not, as I have indicated, come only from that part of the estate now otherwise going to Suzanne. The testatrix's intention was to divide her estate roughly in equal parts for the families of her two sons. The bulk of her estate was represented in the three rural properties which the testator sought to preserve as farms for the benefit of some of her grandchildren by giving her sons only life interests in them. The broad division of the three properties as provided by the Will does not, as their values establish, produce even broad equality between the two sons and their respective descendants. A wise and just testatrix seeking to provide equally between her two sons would best be achieved by McMillans Paddocks being treated as part of the gift to follow William's line, as the land had been treated as part of the East Glen farm.

60 The intention of maintaining the properties as farms should, howver, be respected if possible. It was also the testator's intention to prefer Suzanne over all of her grandchildren and that intention should also be respected as much as possible. The means by which provision of $800,000 for Lorraine can best be accommodated with the testatrix's intentions of (a) broad equality between the sons, (b) preferring Suzanne amongst her grandchildren and (c) preserving the properties as farms, may be achieved by varying the disposition in the Will by:

(1) excluding McMillans Paddocks from the life interest given to Ian Thompson (and which was then to pass to such of his children as survived him) and to include McMillans Paddocks in the life interest that was given to William Thompson and which was then to pass to Suzanne Pabst, and

(2) declaring that the properties known as East Glen and McMillans Paddocks are held by the executors upon trust to provide therefrom an amount of $800,000 to Lorraine Thompson and the balance to Suzanne Pabst.

The other provisions in the Will would not need to be affected or altered in any way.

61 I will hear the parties on the form of orders to give effect to my decision and upon any orders for the costs of the proceeding.

[1] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, [13] (Chernov JA).

[3] Ibid [41]; see also John K de Groot & Bruce W Nickel, Family Provision in Australia (LexisNexis Butterworths, 4th ed, 2012) 14.

[4] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208-9 (Mason CJ, Dean and McHugh JJ); Schmidt v Watkins [2002] VSC 273 [6] (Harper J); GE Dal Pont & KF Mackie, Law of Succession (LexisNexis Butterworths, 2013); John K de Groot & Bruce W Nickel, Family Provision in Australia (LexisNexis Butterworths, 4th ed, 2012) 9-11; Robert D Shepherd, Contrapreneur Publications, de Groot's Wills, Probate and Administration Practice (Victoria) 20th ed, (Release 9, 6/2000) [736]-[739].

[5] Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA with whom Tadgell and Charles JJA agreed); Schmidt v Watkins [2002] VSC 273 [7] (Harper J).

[6] [2004] VSC 425.

[8] Sherlock v Guest [1999] VSC 431.

[9] Ibid [25] (Beach J); see also Scarlett v Scarlett [2012] VSC 515, [101] (Vickery J).

[10] Hughes v National Trustees, Executors and Agency Company of Austrasia Limited [1979] HCA 2; (1979) 143 CLR 134; John K de Groot & Bruce W Nickel, Family Provision in Australia (LexisNexis Butterworths, 4th ed, 2012) 14.

[11] [1980] HCA 31; (1980) 144 CLR 490.

[13] Schmidt v Watkins [2002] VSC 273, [12] (Harper J); see also Scarlett v Scarlett [2012] VSC 515, [101] (Vickery J).

[14] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 498 (Gibbs J); Scarlett v Scarlett [2012] VSC 515, [57] (Vickery J); John K de Groot & Bruce W Nickel, Family Provision in Australia (LexisNexis Butterworths, 4th ed, 2012) 384.

[15] Sherlock v Guest [1999] VSC 431.

[16] Coates v National Trustees Executors and Agency Company Limited [1956] HCA 23; (1956) 95 CLR 494, 507 (Dixon CJ).

[18] Ibid (Dixon CJ citing Townley J in Re Brown Dec'd (1952) QSR 47, 49-50).

[19] [2011] VSC 416.

[20] Ibid [27]-[28] (citations omitted).