Plaintiffs v Defendants

2 The deceased had three sons. Stuart, the eldest, was born on 15 October 1956 and is presently aged 58. He was 56 when his mother died. Andrew, the youngest, was born on 27 October 1960. In the first of a number of tragedies to befall this family, he committed suicide in 1995, aged 35. He had no children.

3 Nicholas was the middle son of the deceased, born on 2 January 1958. He had two wives. He separated from his first wife, Debra Gibbons ('Debra'), in the late 1980s, some time after the birth of their daughter Jessica Davies, who is now 33. With his second wife, Susan Maria Davies ('Susan'), he had two sons, James Jozsef Davies ('James'), born 6 January 1997, and Paul Carson Davies ('Paul') born 2 December 1999.

4 Nicholas suffered for a number of years from multiple sclerosis, a disease which had a devastating effect on him and his family. On 13 April 2012, only months before his mother's death, he committed suicide. He was survived by Susan, Jessica, James and Paul.

5 By originating motion filed in this Court on 27 March 2013, James and Paul have claimed further provision from the deceased's estate for their proper maintenance and support, pursuant to s 91 of the Administration and Probate Act 1958 ('Part IV' and 'the Act' respectively). As both plaintiffs are minors, they have named Matthew John Hicks, their solicitor, as their litigation guardian.

6 Prior to her last will, the deceased left seven wills and three codicils, each of which left her residuary estate equally between her surviving sons, with a gift over to her grandchildren conditional on their attaining the age of 21. Although the detail of each will varied, the most substantial change was in her will dated 21 August 1996, after Andrew had died in 1995, which left her estate equally between her two surviving sons.

7 On 18 June 2012, Mr Ball, the senior partner at Henderson & Ball in Kew, attended on the deceased to take instructions for a new will. This followed Nicholas' death in April 2012. He subsequently drafted a new will, and attended on her again on 20 June 2012, with two independent witnesses, for her to execute the will. No challenge was made to the validity of that will.

8 In her will, the deceased left four legacies, one of $12,000 to the Royal Society for the Prevention of Cruelty to Animals and three of $10,000 to each of the plaintiffs and Jessica. The deceased left her residuary estate to Stuart. The will also contained a gift-over to such of the plaintiffs and Jessica as survived her, in equal shares, in the event that Stuart were to predecease her.

9 At the time of trial, the total net assets in the estate were agreed by the parties to be $2,931,766.92.

10 Susan also made a claim under Part IV, which was set down to be tried concurrently with the claim by the plaintiffs but was settled prior to the hearing. That settlement is relevant to this proceeding in that $370,000 is to be subtracted from the net assets of the estate by way of settlement.

11 The net estate is further reduced by the subtraction of the legacies and the estimated costs on both sides of this proceeding in an amount of $140,000 thereby leaving an agreed net estate of $2,451,766.92. As the will stands, Stuart is entitled to the whole of that amount.

12 The Davies family has a history of multiple sclerosis, stretching back at least to James Keeble Davies, the deceased's ex-husband, who was diagnosed with the disease in the early 1960s. After his diagnosis, his behaviour became quite erratic, and Stuart gave evidence that this caused their parents' marriage to break down.

13 The deceased raised the three children on her own. She supported the family by doing commercial art work. When they were growing up, the three children got along well. They had a close relationship with their mother. Stuart enjoyed his childhood and has many fond memories of his time with the family.

14 As an adult, Stuart moved to Western Australia where he remained until 1982. During his time in Western Australia, he made many trips back to Melbourne to visit his friends and family. While Stuart was in Western Australia, Andrew moved to the United Kingdom where he stayed for several years, and Nicholas married his first wife, Debra. Nicholas and Debra purchased a property together at Leslie Street, Burwood and had Jessica. They separated in the late 1980s.

15 In April 1984, their paternal grandmother died leaving the three brothers the sum of $30,000 each. In 1987, Stuart decided to purchase a property at 30 Fellow Street, Mitcham. The deceased lent him $60,000 to purchase the property with the loan secured by way of mortgage over the property, with repayments of interest only on the loan. Stuart and his partner, Jane, lived at 30 Fellow Street for about 18 months until they sold it and then purchased a property together at 7 Hovea Street, Mitcham. The deceased again offered to help them, lending them $120,000 in order to complete the purchase.

16 In 1987 Stuart commenced work as a commercial industrial painter, a job he went on to do for the next 25 years.

17 Stuart and Jane socialised with the deceased over the years and they were very close. They attended gallery and exhibition openings together and went to local restaurants with the deceased and her friends. Stuart spoke regularly with the deceased over the telephone and they often visited each other.

18 Nicholas was diagnosed with multiple sclerosis in 1990. Susan met Nicholas in 1993, and they married in 1995. Before they married, Nicholas purchased their family home at 9 Edwin Street, Box Hill North ('Edwin Street'). It was purchased in 1994 for $125,750. The deceased lent Nicholas the funds to purchase Edwin Street plus the costs incurred for the purchase, in all, an amount of $130,799. Of that amount, the repayment of the sum of $120,000 to the deceased was secured by a first registered mortgage over Edwin Street. After Nicholas married Susan, Stuart said his relationship with Nicholas deteriorated and he and Jane did not spend very much time with them.

19 In 1995, Andrew committed suicide and his death caused the family enormous pain. Stuart gave evidence that he assisted the deceased emotionally and physically as much as possible during this time, taking her to Andrew's funeral and helping out as much as he could. There was a memorial service conducted for Andrew. Nicholas and Susan did not attend but Debra and Jessica did.

20 The plaintiffs were born in 1997 and 1999 respectively.

21 Stuart said that James and Paul had regular contact with the deceased when they were growing up and sometimes his mother would babysit for them. All of the family would get together for events such as Christmas, and during those times Stuart witnessed a comfortable relationship between James, Paul and the deceased.

22 In 2001 Jane, Stuart's partner, was diagnosed with cancer and Stuart stopped work to look after her with the assistance of Eastern Palliative Care and the Royal District Nursing Service. Jane was able to remain at home until she died on 1 February 2003. Stuart looked after her full-time until she died. Nicholas and his family did not attend Jane's funeral. Stuart was disappointed they did not attend the funeral but said that the deceased was a great support to him during this difficult time.

23 After Jane's death Stuart visited the deceased often, and they shared a number of interests such as art and photography, bird life and the environment. He enjoyed spending time with his mother and appreciated their close relationship.

24 Over the ensuing years, the deceased lent two further sums of $50,000 to Nicholas for his fencing business known as 'The Fencing Man'. Nicholas was in partnership with John Morris in this business. They employed eight fencing subcontractors. The loans from the deceased for the fencing business were also secured by mortgages over Edwin Street. Under the mortgages, Susan and Nicholas were required to repay interest only on a monthly basis which amounted to between $400 to $500 per month.

25 Over the time of their marriage, the deceased also provided Nicholas and Susan with financial assistance when they struggled to pay their bills and when Susan took the children on holidays. Susan was not sure of these details as the deceased would give the money to Nicholas, usually $1,000 here or there to help them out and $200-$300 towards expenses when they were on holidays.

26 In 2006, Nicholas suffered a relapse of his illness, losing his sense of balance and the feeling in his hands. His partner in the fencing business told him he could not keep going with Nicholas in the business and Nicholas decided to give up work. Susan gave evidence that this had a detrimental effect on him and his sense of self-worth. When Nicholas stopped working, Susan returned to work at an aged care facility and they lived on her income alone.

27 Because of his illness, Nicholas was in extreme pain. He was taking painkillers, which he hated, and had problems with his vision. His quality of life was poor and deteriorating. He became increasingly depressed and attempted suicide a number of times, using drugs and alcohol.

28 In 2008, Nicholas attempted suicide. The plaintiffs found him at home and called Susan. Nicholas was admitted to a psychiatric ward. Susan gave evidence that Nicholas told her that he would try and kill himself again, and she was extremely concerned that he might do so in front of the children. Before eventually returning home, Nicholas lived with the deceased for two to three weeks.

29 Until January 2009, Nicholas was well enough to drive a car and took the plaintiffs to visit the deceased on a Sunday. He would also do any odd jobs the deceased required on Sundays, or during the week while Susan was at work. Nicholas and the deceased spoke every day. Nicholas was concerned about the deceased and she, in turn, was concerned about him and his deteriorating health.

30 In January 2009, James started secondary school and went away on a school camp. When he came home, Nicholas was back at Edwin Street and Susan observed that James was very happy. Nicholas loved woodwork for a hobby and tried to make a billycart for the boys. He nearly sawed his left thumb off with a power tool and had to go to hospital. He was not allowed to use tools after that incident and was no longer able to drive.

31 Nicholas had constant relapses and became increasingly depressed and frustrated. He decided the medicine he was taking was causing problems with his memory and he went off his medication, except for his daily multiple sclerosis injection. Nicholas was using a walker at home but refused to use it in public or to use his wheelchair.

32 In September 2011, the deceased was diagnosed with cancer. As the deceased's health started to deteriorate, Stuart took on more and more tasks that his mother would normally have done for herself. Stuart said that the deceased was a very independent woman and she did not like to have to ask for help but as time went by and she became more unwell she accepted the help that Stuart offered. Stuart did all of her shopping, banking and washing. He took his mother to all of her doctor's appointments and visits to the hospital and helped arrange for Eastern Palliative Care and the Royal District Nursing Service to help with her care. He also filled all of his mother's prescriptions at the pharmacy and ensured she had the medication she required.

33 In November or December 2011, Nicholas and the deceased met Mr Ball at her home, at which time the deceased made a new will.

34 By letter dated 9 January 2012 to the deceased and copied to Nicholas, Mr Ball confirmed his advice to the deceased that 'the Will and the Trust are constituted with Nicholas being the principal beneficiary'. In fact, the will executed by the deceased on 16 December 2011 was constituted by two testamentary trusts each comprising one half of the deceased's residuary estate. In the testamentary trust set up for Nicholas, he was the principal beneficiary and the other testamentary trust was set up with Stuart as its principal beneficiary. If Stuart failed to survive her, his share would pass to Nicholas absolutely and, failing his survival, then both shares of the residuary estate passed to his children who survive her and attain twenty one years.

35 On 24 January 2012, Nicholas and Susan met with their financial planner, Mr Peter Bailey, of the firm Planning Partners, where they discussed with him, amongst other matters, the provision for Nicholas under the deceased's then current will.

36 In 2012, the deceased's condition deteriorated but she refused to go into care. She received palliative care and assistance at home from the Royal District Nursing Service. Susan helped the deceased sort through her clothes over some days to donate to them to the Salvos. She helped the deceased by purchasing necessary items, such as underwear and sanitary items. She visited the deceased on her way home from work, dropped off food for her, did some shopping, washing and ironing and fed her dogs. Susan called in to see the deceased on her way home from work two or three times a week or whenever the deceased requested it. She arranged for the deceased to get some treatment for her feet because they had been bothering her. From time to time, Stuart also asked Susan to go to the deceased's home, for example, if the deceased had a fall.

37 On 14 April 2012, Nicholas committed suicide. It is unnecessary to go into the details of the circumstances of his suicide, other than to say that for Susan and the plaintiffs they were traumatic. The police, ambulance and fire brigade attended at the scene. It is clear from the circumstances that Nicholas had planned the suicide, and that he had kept it from Susan. Nicholas left suicide notes for Susan and his children, explaining his decision. In his note to Susan, Nicholas referred to the money that she would receive from his mother's estate and how she should invest it.

38 Sometime before his suicide on 14 April 2012, Nicholas cashed in his superannuation, bought a new car for Susan, and paid off their credit card debts. He also left enough money to cover the costs of his funeral. Nicholas always told Susan that if anything happened to him, the children and she would be taken care of and even suggested to Susan that she could retire early. He told her that the family would 'have a roof over our heads' and she would not have to worry about money.

39 James had an especially strong relationship with his father, and was seriously affected by his father's suicide. Although only 15 years old when his father died, he dropped out of school, was depressed and was seeing a counsellor weekly. Paul has epilepsy and had a seizure at school not long after his father died. He also suffers from stress and, on various occasions, has pulled his hair out in clumps. He also receives counselling outside of school and meets regularly with a counsellor at school.

40 On 14 April 2012, Stuart visited the deceased and found Susan and one of her friends talking to the deceased. He was then told that Nicholas had committed suicide the previous night. The deceased was understandably very upset by Nicholas' death.

41 Over the next weeks the amount of care the deceased needed increased. Stuart went to see his mother every day after work and helped her with the cooking cleaning and doing her washing. He said he did not recall seeing Susan very often at the deceased's house during the times he was there. This is disputed by Susan who said she saw Stuart at the deceased's house on a number of occasions when she visited the deceased.

42 After the death of Nicholas, Susan continued to visit the deceased, usually in the afternoon on her way home from work. Stuart was usually at work at that time. She said he was aware that she visited the deceased when he was not there.

43 This was one of the few points of evidence disputed between the parties. The extent of the dispute is only marginally relevant, if at all. I have no reason to doubt Susan's evidence that she visited the deceased during the day, and accept that evidence. The best explanation of the dispute was that put by Susan, who said that Stuart was most often at work when she visited. Given the time in between Nicholas' death and the deceased' death was only short, it seems likely that Stuart and Susan would not have crossed paths often. To the extent that Stuart's account challenges Susan's evidence that she visited the deceased in that time, I reject his evidence, as he would not have been in a position to ascertain how often Susan visited the deceased during the day.

44 On 18 June 2012, Mr Ball attended on the deceased to receive instructions to make a new will following the death of Nicholas in April 2012. The deceased told Mr Ball she had been diagnosed with terminal cancer and, although physically weak, Mr Ball's view was that she had full legal capacity. The deceased instructed Mr Ball what she wanted in her will, which included that her residuary estate pass to Stuart absolutely and only in the event that Stuart predeceased her would the residue pass to her grandchildren, Jessica, James and Paul. Mr Ball discussed a number of things with the deceased when he was taking her instructions including:

(a) why she wanted to exclude her grandchildren from a share in the residuary estate;

(b) the possibility that the grandchildren would make a claim against the estate for greater provision if they were excluded from benefiting in the residuary estate; and

(c) whether she would forgive the loan she had made to Nicholas secured against his property at Edwin Street.

45 Mr Ball said that he was instructed emphatically by the deceased that she felt the amounts bequeathed to the grandchildren in her will were appropriate because she did not want the grandchildren to receive a more substantial benefit as it would take away any incentive for them to make good in life of their own volition. The deceased advised Mr Ball that she did not feel that her limited relationship with her grandchildren justified any greater benefit from her estate. She also said she wanted Stuart as her one surviving son out of her three sons to receive the benefit of her residuary estate and, because he was nearing retirement, he had the most need.

46 She advised Mr Ball that she did not want to forgive the loans that she had made to Nicholas as she felt that by providing the loan she had enabled Nicholas to purchase his home and assist him in his business. She said his home was now worth close to $1 million and felt that his house could be sold, the loan repaid and there would be sufficient funds to enable Susan to buy another home. The deceased also told Mr Ball that she did not have a good relationship with Susan.

47 On 20 June 2012, the deceased called Stuart and asked him to come around to her house. He was working that day and was not able to get there. After this telephone call, Stuart decided that he would cease working in order to look after the deceased full-time. That same day, the deceased executed her last will.

48 At the time of signing the will on 20 June 2012, Mr Ball attended on the deceased at her home with two independent witnesses. He read the will to the deceased and discussed the individual provisions made in the will with her and she advised him, without equivocation, that the will was exactly the way she wanted it and she then signed the will.

49 A couple of days later, the deceased told Stuart that she had changed her will and that Stuart was now her primary beneficiary. The deceased said she wanted Stuart to build a house on his block of land in Mitcham and she did not want him to be working in the building and construction industry for ever. The deceased also said to Stuart that she believed that as Jessica, Paul and James were young she did not want to give them a large amount of money so that they would be spoiled and not have any ambition or endeavour to succeed on their own.

50 After giving up work, Stuart moved into the deceased's home and cared for her there. In early July 2012, the deceased became so frail that Stuart was not able to move her without fearing he would do her harm. He telephoned the case worker with Eastern Palliative Care and was told there was a bed available at Caritas Christi Hospice in Kew. The next morning, with assistance, he drove his mother to Caritas Christi and during her last few days Stuart stayed overnight on a trundle bed in his mother's room at the hospice in order to keep her company. When the deceased was taken to Caritas Christi Hospice in Kew, Susan also visited the deceased and assisted her in some of her personal needs.

52 Stuart attended to the arrangements for the funeral. Susan and the plaintiffs attended the deceased's funeral, but did not participate in the service. In his affidavit, Stuart was critical of Susan and the plaintiffs for not taking part in the funeral service. Susan said they were not in the state of mind to participate in the funeral other than by attending it. This was because within the space of four months, Nicholas had died in traumatic circumstances, the plaintiffs' best friend had also lost his father and now the deceased had died. Susan also said that Stuart gave no comfort to the plaintiffs when their father died and thought that he had no idea how his death had affected them.

53 After the deceased's death, Susan telephoned Mr Ball and asked him what was happening with the deceased's will. He told her that the plaintiffs would receive legacies of $10,000 each and that she would need to repay the $220,000 owing to the deceased before Edwin Street could be transferred to her.

Stuart, Susan and the plaintiff's circumstances

54 Nicholas's estate comprised Edwin Street (worth approximately $650,000) and approximately $140,000 made up of two AMP life policies and his car. After Nicholas' death, Susan sold the car for $6,500 and used those funds to pay off her credit card debt. As a result of the settlement of her Part IV proceeding against the estate, the three mortgages totalling $220,000 in favour of the deceased's estate are discharged and she received a legacy of $120,000.

55 Susan works four days a week and clears approximately $30,000 per annum. She has superannuation of $35,000.

56 Susan provided a list of her annual expenses totalling $27,510. These expenses do not include visits to the dentist, doctors, prescription medication, Christmas and birthday presents and incidentals. She said James hopes to return to school next year and do a TAFE course which will incur more school fees. Both plaintiffs also require dental treatment quoted at $10,200 for James alone.

57 As a result of the settlement of her claim, Susan will now be able to provide the plaintiffs with secure accommodation at Edwin Street. However, the house is in a poor state of repair as, due to the family's circumstances, nothing much in the way of maintenance has occurred in the past years. The outside weatherboards are rotting and need to be replaced and repainted. The front window is rotten and needs replacing. The house needs painting inside and out and the plaster requires repair. Susan had half the house rewired as it was deemed dangerous by the electrician. Her neighbour has informed her that he would like the side fence replaced as it is falling over. The front fence also needs replacing. The house requires constant upkeep and maintenance. No estimate of the cost of the maintenance was provided but it can be safely assumed from the description of the maintenance works, the cost would not be small.

58 Stuart owns a property at 7 Hovea Street, Mitcham, estimated by him to be worth approximately $700,000. There is a mortgage of $120,000 in favour of his mother's estate over the property. He owns a motor car worth $20,000. He has superannuation of $60,000 with CBUS and has $12,000 in the bank. He owns his mother's artwork valued at $45,960 and the storage costs for the artwork amount to $43,000. He has no dependants.

59 He stopped working in June 2012 so that he could look after the deceased, which he did until her death in July of that year. Since stopping work he has maintained himself financially from his redundancy payment and long service leave of approximately $120,000. He has not resumed his occupation as a painter and decorator and considers that his age would now preclude him from finding employment in the building industry although he has not attempted to find any employment and has chosen not to work. Instead he has taken flying lessons and is now authorised to fly aeroplanes that carry passengers.

60 As well as the affidavit evidence, the plaintiffs relied upon an expert psychological report, dated 2 January 2014, by Pamela Matthews, a forensic psychologist at Victorian Forensic and Clinical Consulting. Ms Matthews was not cross-examined by the defendant. For convenience, I have referred to the relevant evidence of their circumstances as it appears in Ms Matthews report.

61 Ms Matthews has thirty years' experience as a registered psychologist, including extensive experience working with children and adolescents. Her report, which runs to twenty-one pages, includes details of her interviews with Susan (taken over two hours) as well as her interview with Paul (approximately six hours) and James (approximately five hours). Ms Matthews also read the affidavits filed in this proceeding and in Susan's proceeding, as well as school reports and other letters.

62 Ms Matthews' report is written in a discursive manner, and makes a number of quite general observations about the needs of adolescent children more generally. However, she has considered the condition and the ongoing needs of both plaintiffs carefully, and her conclusions are closely tied to the facts of each plaintiffs' case. She finds that the traumatic experiences of both plaintiffs relating to their father's health, his long ongoing depression, his various attempts at suicide and his ultimate suicide have left a lasting detrimental effect on both of them and the costs of therapeutic treatment for both of them may be ongoing over their lifetimes.

63 In relation to Paul, Ms Matthews concluded that he, partly as a result of these experiences, suffered serious psychological issues, chiefly to do with his self-esteem. He refused to take medication to treat his epilepsy and suffered a seizure at school, has developed a large bald patch as a result of the re-emergence of trichotillomania, and has been bullied at school. He suffers from memory problems and is scared of being reprimanded for failing a subject. His intelligence was tested as being in the normal range, but his non-verbal abilities tested significantly lower than his verbal abilities, and he meets the diagnostic criteria for a specific learning disorder. He is already exhibiting symptoms of anxiety and depression that should not go untreated, and given the issues he has suffered with bullying, he is at risk of dropping out of school. She recommends treatment for his learning difficulties and to cope with bullying, and more generally for his depression and anxiety. Such treatment may be required over the course of a lifetime.

64 The types of immediate and future needs, and some possible contingencies in life that he may have, were identified by Ms Matthews as follows:

(a) Paul requires intervention focussed on improving and maintaining his academic performance and school retainment and should have two sessions per week with a Learning Difficulties Australia practitioner for the entirety of his school years. The sessional cost is $60-$90 per session which over a period of five years could potentially amount to $43,200;

(b) Paul may require future financial assistance, which is necessarily uncosted, with employment training;

(c) in order to assist him to deal with the bullying issues, Paul requires weekly sessions with a specialist psychological counselling for six months to a year at approximately $200 per session estimated at approximately $10,000;

(d) he may benefit from a change of school. If the change is to a private school, the estimated cost is $30,000 per annum for five years being approximately $150,000;

(e) his trichotilomania is unpredictable and he will require ongoing treatment for psycho social stress; and

(f) he may require potential lifelong treatment for depression and anxiety.

65 In relation to James, Ms Matthews concluded, again as a result of his traumatic experiences, that he undertook responsibilities 'beyond his years' and beyond his capacity to manage on an emotional level. His behavioural issues were exacerbated in the immediate aftermath of his father's suicide, displaying issues with anger. James refused to return to school, withdrew from activities with his friends, began to mix in what were described as 'inappropriate circles', began to smoke marijuana and fathered a child. Although Ms Mathews assessed his intelligence as being in the average range, she indicated that he is well below his peers in his emotional and behavioural development.

66 Ms Matthews concluded that without some form of intervention, he is at risk of developing anxiety and depression disorders, criminal behaviour, and ongoing substance abuse. His employment prospects are poor, at least without the opportunity for further education. She recommended that he requires significant intervention to address illicit substance use, as well as ongoing psychological or psychiatric treatment for at least two years. She also recommended that he will require continued encouragement to return to education.

67 The types of immediate and future needs, and some possible contingencies in life that he may have, were identified by Ms Matthews as follows:

(a) if he does not re-engage with education and training to at least trade qualification level, his prognosis for future employment is poor;

(b) he requires continued encouragement to return to education or training, requiring financial assistance with course fees with the costs of this unknown;

(c) he requires ongoing intervention in relation to illicit substance use, and may require future in patient intervention, the cost of which at current rates is estimated at approximately $30,000;

(d) he would benefit from mental health intervention to address the issues underlying his anger and opposition to authority, at a cost of $150-$200 per session, on a weekly basis for approximately two years estimated at a total cost of approximately $20,000 disregarding any entitlement to partial rebate by Medicare; and

(e) he may require future financial assistance, which is necessarily uncosted, with employment training.

68 Prior to her last will, the deceased had executed seven previous testamentary documents starting from 1980. All provided for her residuary estate be divided equally between her sons with a gift over to her grandchildren as follows:

Residuary estate divided equally between the deceased's three sons as shall survive her in equal shares if more than one but if only one then all to that one

In the event of any one or more of her sons failing to survive her leaving a child or children a gift over to those grandchildren who attain twenty one years

Residuary estate divided equally between the deceased's three sons as shall survive her in equal shares if more than one but if only one then all to that one

In the event of any one or more of her sons failing to survive her leaving a child or children a gift over to those grandchildren who attain twenty one years

Will dated 10 March 1987 and codicil dated 16 April 1987

Income from the residuary estate divided equally between the deceased's three sons as shall survive her and on the death of one or more of the sons, the share of her residuary estate held on trust for the deceased son to pass to his children in equal shares if more than one absolutely

Should the deceased son fail to leave children then ultimately the capital of her residuary estate to her grandchildren as shall attain twenty one years

Residuary estate divided equally between her two surviving sons with testamentary trusts established

If they fail to survive the deceased, then the share they would have received held for the children of the deceased son as shall survive the deceased and attain twenty one years

Revoked the gift over clause in her will dated 21 August 1996 and in lieu thereof provided that if one of her two surviving sons fail to survive her, the one half share of her residuary estate be held as to one part or share for the wife or partner of the deceased son absolutely and the remaining part or share be held for the children of that deceased son as survive the deceased and attain twenty one years absolutely

Residuary estate divided equally between her two surviving sons

If the defendant fails to survive her, his share to pass to Nicholas absolutely and, failing his survival, then both shares of the residuary estate to his children who survive her and attain twenty one years[1]

Residuary estate divided equally between her two surviving sons

If the defendant fails to survive her, his share to pass to Nicholas absolutely and, failing his survival, then both shares of the residuary estate to his children who survive her and attain twenty one years

69 As previously noted, each of the deceased's previous wills make significant provision, in the form of a gift over, in favour of the deceased's grandchildren, being Nicholas' three children Jessica, James and Paul. The last will of the deceased therefore represents a significant change from her previous testamentary intentions.

70 As in any application for further provision pursuant to s 91 of the Act, the Court must determine three questions:

(a) Did the deceased, at the date of her death, have a responsibility to make provision for the proper maintenance and support of the plaintiffs?

(b) If so, did the deceased, in the distribution of her estate effected by her will, make adequate provision for the proper maintenance and support of the plaintiffs?

(c) If not, what is the amount of provision (if any) that the Court should order?

71 The general rule is that the bare fact of the relationship between a grandparent and her grandchildren does not of itself create an obligation to make provision for that grandchild, as that responsibility rests on the child's parents. The fact that a grandchild resides with one or both of his parents, who are able to provide shelter, accommodation, food and clothing, would ordinarily set the Court against a finding of responsibility. In the absence of some special factor or unusual circumstance, prevailing community standards would not impose a responsibility on a grandparent to provide for a grandchild.[2] However, these general principles must be read in the context of each case and grandchildren can neither be ruled in nor ruled out until all the facts are examined. The fact that a child's parent has predeceased the grandparent is certainly a relevant factor.[3]

72 The onus lies with the plaintiffs to demonstrate the extent of that provision, and should be determined at the date of the trial, taking into account the plaintiffs' position at that time.[4]

73 The defendant accepted that the deceased had a responsibility to make provision for the plaintiffs and that the distribution under the will did not make adequate provision for them. While the Court is not a rubber stamp for an agreement between the parties in a Part IV application,[5] I consider that in the circumstances of this case, that concession was properly made. It is therefore only the third question that remains outstanding in this proceeding.

74 What is adequate for the proper maintenance and support of an applicant must be determined by asking what further provision a wise and just testator would have thought it his moral duty to provide,[6] by reference to ss 91(4)(e)-(o) of the Act and any other matter the Court considers relevant.[7]

75 The determination of the third question requires a balance between the claims of other beneficiaries, the needs of the plaintiffs and the size of the estate. In any one case, there is the possibility of a range of views where minds may legitimately differ. In Grey v Harrison, Callaway JA said:

There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made ... To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.[8]

76 In McCosker v McCosker, Dixon CJ and William J said the word proper 'means 'proper' in all the circumstances of the case'.[9] In an estate of this size, considered by the parties to be a large estate, counsel for the plaintiffs contended that proper provision may include the 'cheese or jam' and not merely the 'bread and butter'.[10] Adam J in Re Buckland emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support.[11] Certainly, the Court is justified in making provision for contingencies that would be disregarded in smaller estates,[12] but any order must not exceed what is needed for the 'proper maintenance and support' of the plaintiffs.[13]

77 In Brandon v Hanley,[14] I noted the decision of Hargrave J in Borebor v Keane,[15] where his Honour summarised the principles to be applied in relation to claims made against relatively large estates, referring to the decision of Adam J in Re Buckland that was endorsed by Gillard J in Re Buckland (No 2).[16] Those principles are:

(1) A generous, and not 'niggardly' approach is justified.

(2) The amount of provision should not be limited by the standard of maintenance provided by the deceased or by the standard of living to which the claimant has been accustomed.

(3) A generous approach does not, however, justify the Court in ordering more than is needed for the claimant's 'proper maintenance and support'; as those words 'place a ceiling upon what the Court may properly do'.

(4) The Court may be justified in making provision for contingencies that would be disregarded in smaller estates or if there were relevant competing claims:

For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance.[17]

Consideration of the criteria under s 91 of the Act

78 In assessing the just division of what is available in due proportion to the relative urgency of those claims, the Court must consider all of the relevant circumstances. Turning to the specific matters to which I am required to have regard, I have reached the following conclusions.

(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;

79 The plaintiffs have known the deceased for all of their lives. They had a good relationship with the deceased, visiting often with Nicholas and the deceased visiting them at their home. Stuart observed a comfortable relationship between them. Although the deceased told Mr Ball when she gave instructions for her last will that she considered her relationship with the plaintiffs was limited, the evidence supports a conclusion that there was a happy and normal relationship as between grandparent and grandchildren overall during their childhood, but not a special or dependent relationship.

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

80 Apart from any obligations and responsibilities that arise as part of being a grandparent, the deceased did not have any obligations and responsibilities to the plaintiffs. Apart from any obligations and responsibilities that arise as part of being a parent, the deceased did not have any obligations and responsibilities to Stuart.

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

81 The assets of the estate comprise the deceased's home and personal estate with the agreed net value of the estate now being $2,451,766. There are no charges and liabilities on the estate, apart from those already accounted for in the net value.

(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;

82 Both plaintiffs are minors and are of school age. James in not presently at school. They do not earn income, although James works for rent and board in his girlfriend's family farming business. Their financial needs include their usual living and educational expenses which have thus far been provided by Nicholas and Susan. Their assets comprise their legacies of $10,000 each under the deceased's will. They have no financial commitments.

83 Their financial needs at the time of the hearing and for the foreseeable future, as set out in the report by Ms Matthews, identify significant immediate and long term contingent needs concerning their wellbeing, health, emotional and psychological issues. These are much greater than an average young person. They require ongoing treatment and support in order to attempt to overcome the serious behavioural and emotional issues as a result of their traumatic experiences. The costs of the treatment are impossible to quantify because of the nature of their problems. Ms Matthews has attempted to evaluate the costs as best she can in such uncertain circumstances, concluding that the costs will be at the upper end because of the seriousness of the problems and the potential for long term or perhaps lifetime treatment.

84 The financial resources of Stuart, the residuary beneficiary of the estate, are good. He will receive the balance of the estate after whatever further provision is made for the plaintiffs. He owns his home and has no debt, as he will no longer have to repay his mortgage to the deceased. He has now retired and plans to remain retired. He has modest superannuation, owns a car, has a small amount of money in the bank, owns the deceased's art collection, valued at $45,960 but owes $43,000 for its storage costs.

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

85 The health, wellbeing and disabilities of the plaintiffs have been set out. They are significant and ongoing. I consider this factor to be of increased significance in light of the fact that the plaintiff's psychological issues arise primarily from the disease and early demise of their father, who is the son of the deceased.

86 In respect of Stuart, there was no issue raised concerning his health or otherwise.

(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;

88 This is not relevant in respect of the plaintiffs. Susan contributed to the care of the deceased although Stuart was the principal carer for her. Susan's care of and assistance to the deceased, particularly in light of her own and the plaintiffs' traumatic circumstances with Nicholas and working four days a week, were exemplary. Stuart's dismissal of Susan's care and assistance to the deceased was unkind in those circumstances.

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

89 The plaintiffs have not received any direct financial benefits from the deceased. They have, however, received ongoing indirect assistance by reason of the deceased providing substantial financial assistance to Nicholas in his lifetime, in the form of funds to purchase the family home, to assist in Nicholas' business and ad hoc financial assistance for holidays and payment of expenses over the length of the marriage of Nicholas and Susan.

90 Stuart also received financial assistance from the deceased enabling him to purchased his home and he received the deceased's artwork as an inter vivos gift.

(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;

91 Save for the indirect assistance referred to, the plaintiffs were not being maintained by the deceased before her death.

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

92 Susan has the primary responsibility to maintain the applicants. As a result of the settlement of her Part IV claim against the estate, she is now able to provide a secure debt free home for the plaintiffs. Susan also now has sufficient funds from her settlement to do the maintenance on the family home. This is important as, understandably, a secure home is said by Ms Matthews to be necessary for the plaintiffs' future wellbeing.

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

93 The plaintiffs, Susan and Stuart are all of good character.

(p) any other matter the Court considers relevant.

94 The deceased's prior will-making, including her penultimate will, and the expectation that this raised in Nicholas that the plaintiffs would be provided for, is a relevant consideration in support of the plaintiffs' claim for further provision.

95 As stated, Mr Ball copied his letter dated 9 January 2012 to the deceased to Nicholas whereby he confirmed his advice to the deceased that her current will dated 16 December 2011 included Nicholas as a 'principal beneficiary'. Thus, Nicholas knew he was a 'principal beneficiary' of the deceased's will and, on that basis, he and Susan consulted their financial planner, discussed their finances, including the provision for Nicholas under the deceased's then will. Their expectation and understanding of the deceased's will is also evidenced in his note prior to taking his life. Thus, when Nicholas died in early April 2012, he believed, as was the case then, that his family would be financially secure for the future.

96 In Roman law, the querela inofficiosi testamenti, the 'complaint of the undutiful or irresponsible will',[18] was 'a means devised to give a remedy where a moral duty existed to make provision in a will for someone and the testator failed to make proper provision for that person'.[19] As is apparent, it was an action that bears more than a passing resemblance to the modern testator's family maintenance statutes,[20] although it had the effect of voiding the will entirely. The claim was not limited to children, but was also made by parents, siblings and also by natural children who had been adopted out.[21]

97 As is noted by Professor Alan Watson, although the language used in the texts describing the action refer to the central argument being that the testator was insane, the meaning of 'insane' in context is disputed. It is argued that the action rested on a form of nominal insanity, where those closest to the testator were passed over for no good reason, because the separate claim of testamentum furiosi existed where the testator was shown actually to be insane.[22] The nominal insanity may have acted as an early legal fiction to avoid the existing protections in Roman law of the freedom of testamentary disposition.[23] In this way, the querela is distinct from the modern testator's family maintenance claim, which is not a claim that the testator lacks testamentary capacity and does not rely on any nominal insanity but on externally imposed moral duties. The notion that a will is in some way 'inofficious' should be treated with caution in a legal system 'where freedom of testation is the law'.[24]

98 But the connection between insanity and moral expectation does inform a case such as the present, where there is a sudden change in the pattern of inheritance only shortly before the testator's death. It brings to mind the urging of early courts considering the statutory power to provide, that the Court must consider what a wise and just testator ought to have done in the circumstances.[25] A significant change in a longstanding intention to benefit grandchildren, in a will made only shortly before death,[26] raises serious questions of sanity, propriety, and wisdom.

99 The plaintiffs have lost a parent who has predeceased the deceased and they have lost the immediate and continuing support of Nicholas and what inheritance or financial support he might have fairly expected from the deceased for his future needs and those of his family.[27] The expectation of inheritance, an expectation raised by the deceased, does not and cannot support a legal obligation to provide. It is not in the nature of a contract. The freedom of testator's to dispose of their assets as they wish has been affirmed time and time again, in this Court and in superior courts exercising similar jurisdiction across the common law world.

100 However, testator's family maintenance, by its very nature, sits somewhere between the realms of legal liability and moral liability. The expectation that the deceased raised, that Nicholas' family would be provided for, cannot but take on an enhanced moral character after Nicholas decided to take his own life. To put it bluntly, Nicholas knew when he committed suicide that his mother was elderly, and had been diagnosed with colorectal cancer. Had he known that any inheritance his family was to receive from the deceased was dependent on his surviving her, his actions may - and I stress may - have been different. I do not consider that the expectation raised by the deceased is one that can be enforced by way of Part IV, but in these circumstances I consider that it significantly colours the deceased's moral responsibilities to the plaintiffs.

101 Nicholas' estate was ultimately modest in terms of quantum, comprising the family home, now valued at $650,000 and with a mortgage of $220,000 and life policies worth $140,000. Susan inherited his estate. Her assets consist of her inheritance from Nicholas and are modest, now comprising a mortgage free home, the life policies and the sum of $120,000 as part of the settlement of her Part IV proceeding. Some of those funds will be used to pay for the necessary maintenance for her home, which will substantially reduce her cash reserves.

102 Susan is employed but her minimum expenses are just covered by her income with no room for indulgences or major expenses. Susan is now 53 years of age and her working life is finite. On her income, she has been able to provide for the plaintiffs' usual living and educational expenses but not any extras such as dentists, doctors, presents and incidentals. On her income and asset base, she is unable to provide the significant costs of the treatment for the plaintiffs as recommended by Ms Matthews.

103 Assuming that Susan's health remains good, any benefits the plaintiffs might receive from Susan's estate are unlikely to occur for many years.

104 Other matters that are relevant relate to the deceased's instructions given to Mr Ball only twenty days before she died as follows:

(a) her reasons for excluding Nicholas' three children run contrary to her long held beliefs as demonstrated by her earlier wills since the 1980s. In those documents, the deceased provided for a gift over to her three grandchildren in the event of Nicholas predeceasing her;

(b) the deceased also erroneously considered that Nicholas' home was worth close to $1 million, on the evidence a gross over value of its value.

(c) she also said she did not have a good relationship with Susan which is at odds with the evidence of the dutiful assistance provided by Susan as well as being at odds with the provision in her previous will leaving part of her residuary estate to Susan in the event that Nicholas predeceased her. Susan's assistance to the deceased was provided when Susan was not only working to support her family but also in the wake of Nicholas' death in tragic circumstances;

(d) the statement that she did not have a good relationship with Susan is also at odds with the deceased's codicil, made 30 August 1996, when she changed the gift over clause in her will and included Susan in the gift over clause as to one half of her residuary estate; and

(e) the deceased's stated objections to her grandchildren receiving a more substantial benefit under her will because it would take away any incentive for them to make good on their own volition could easily be cured by appropriate drafting of a discretionary testamentary trust for them, as she did in two of her previous wills.

What is the amount of the proper maintenance and support for the plaintiffs?

105 In this proceeding, counsel for Stuart submitted that adequate provision for the proper maintenance and support of the plaintiffs would be a legacy of $100,000 being a sum that is more than adequate to meet their reasonably foreseeable immediate needs.

106 Counsel for the plaintiffs sought the sum of $500,000 each to be provided to the plaintiffs as follows:

(a) 'staggered legacies' amounting to $300,000 with $100,000 payable upon attaining the age of 18 years, a further $100,000 payable upon attaining the age of 21 years and the remaining $100,000 payable upon attaining the age of 25 years;

(b) the balance of $200,000 to be held in trust from which both income and capital could be used for the benefit of the plaintiffs with each trust to vest upon an age when the plaintiffs are either aged 30 or 35 years with any capital remaining when the trust vests, to be paid to Stuart.

107 Because of the age and maturity of the plaintiffs and their significant emotional and psychological issues, I consider it would not be appropriate to allow any capital payment to the plaintiffs until they are much older. This is also consistent with the express wishes and concerns of the deceased. Any further provision for each of them needs to be in the form of a separate trust fund to vest when each plaintiff attains the age of 28 years and not before.[28] The trust for each plaintiff should provide that both income and capital may be used for the purposes of their maintenance, education, advancement and benefit. The precise terms of such a trust is a matter which the parties may agree, although it may be necessary to hear further submissions.

108 Although it was suggested by counsel for the plaintiffs that the trustee ought be Susan, either alone or jointly with a professional person such as the plaintiffs' litigation guardian, who is also their solicitor, my firm view is that the trustee of each trust should be a person independent of the plaintiffs, their solicitor or Susan. In this way, both Susan and the litigation guardian may assist the plaintiffs when they make application for funds from each trust without fear of any conflict of interest and duty.

109 As to the extent of the sum to be held on trust, the estate is large and the only competing claim is now that of Stuart. There is a clear need for further provision for the plaintiffs for their immediate and long-term financial security and for unknown future contingencies. Although the amount of further provision is unable to be calculated with any certainty, that cannot be a bar to the court exercising its discretion in awarding further provision to the plaintiffs.[29] In Collins v McGain, the Court said that it was not necessary for an applicant for provision to identify particular needs that have not been adequately provided for.[30] This is so because, in determining what is adequate provision for an applicant's proper maintenance and support, the Court is entitled to allow for contingencies which are no more than mere possibilities, such as future marriage difficulties or financial mismanagement. Tobias JA said in that case that:

The question of needs must not be too narrowly focussed. It must, in my view, take into account, depending on the circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

He has focussed too much on the particular or specific needs of the appellant rather than upon his needs in the 'relevant sense', namely, in the sense of what was necessary for the appellants' 'proper maintenance, education and advancement in life'.[31]

110 In Sellers v Hyde,[32] Mandie J accepted that, whilst evidence of living expenses, including expert evidence as to the capital sum required to produce a certain income stream over various periods of years, was useful, the court had to take a 'broad brush' rather than an arithmetical approach to the award of provision.

111 The estate is large enough to include, in the now commonly adopted metaphor, the 'cheese or jam' and not merely the 'bread and butter' in any further provision for the plaintiffs. In an estate of this size, proper provision does not merely mean an amount required for the plaintiffs' subsistence. Even if the plaintiffs are awarded sums in the vicinity of that sought, Stuart will also receive a generous residuary estate. The plaintiffs are both young and face formidable incalculable hurdles in the long term. Their present situation is such that they could not acquire the financial ability in any substantial way to deal with the exigencies and contingencies facing them in the foreseeable future. Had Nicholas survived the deceased, he would have certainly received one half of the deceased's residuary estate as it was only as a result of his death that the deceased altered her will in the manner that she did. If the deceased had not altered her will in the days before her death, the plaintiffs would have had the financial benefits flowing from Nicholas.

112 Having regard to all of the factors referred to and giving them due weight, I consider the appropriate amount to award each plaintiff should be provision for their immediate short term needs in the sum of $200,000 and provision for their long term needs to be a further $200,000 each with these amounts held in trust until each of them attains the age of 28 years. This is to account for the fact that proper provision for both plaintiffs would require some significant immediate assistance, including possible treatment for James' substance abuse issues and Paul's learning difficulties, as well as their longer term issues including assistance to encourage James into the workforce and ongoing psychological treatment for Paul. Inevitably in a case such as this, it is difficult to determine with any precision what the current and future needs, and the proper provision for these plaintiffs might be, but doing the best I can, I consider an amount in this range to be appropriate.

113 Accordingly, I order that further provision is to be made for each of the plaintiffs in the sum of $400,000 to be held on trust for their benefit until each of them attain the age of 28 years.

114 I will hear the parties as to the appropriate form of trust deed, orders and as to costs.

[1] There is a codicil dated 20 July 2006 to the will dated 7 October 2003 that does not change the disposition of the residuary estate.

[2] MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, 106 (Dodds-Streeton J); Griffiths v West (McLaughlin M, unreported, NSW Supreme Court, 26 October 1994); Pearson v Jones (McLaughlin M, unreported, NSW Supreme Court, 14 August 2000); Sherlock v Guest [1999] VSC 431 (12 November 1999) [25]-[27] (Beach J).

[3] Petrucci v Fields [2004] VSC 425 (29 October 2004 [64] (Mandie J).

[4] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 (Dixon CJ); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [127] (White J).

[5] Hore v Perpetual Trustee Company Ltd (unreported, New South Wales Supreme Court, 8 June 1995, Windeyer J).

[6] Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61]-[66] (Neave JA); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 (Callaway JA) 285-6 (Batt JA); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 75-6 (Chernov JA) 84 (Nettle JA); Schmidt v Watkins [2002] VSC 273 (24 July 2002) [22] (Harper J).

[7] Administration and Probate Act 1958 s 91(4)(p).

[8] Grey v Harrison [1997] 2 VR 359, 366 (Callaway JA).; Friend v Brien [2014] NSWSC 613 (1 May 2014) [59],[63].

[9] [1957] HCA 82; (1957) 97 CLR 566, 571-2; see also Slack v Rogan [2013] NSWSC 522 (10 May 2013) [123] (White J).

[10] See Re Borthwick [1949] Ch 395, 401 (Harman J); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 135 (Fullagar and Menzies JJ).

[11] Re Buckland [1966] VicRp 58; [1966] VR 404, 414-5 (Adam J).

[12] Ibid; see also Borebor v Keane [2013] VSC 35 (19 February 2013) [69] (Hargrave J).

[13] Re Buckland [1966] VicRp 58; [1966] VR 404, 415 (Adam J); Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, 19 (Dixon CJ).

[14] [2014] VSC 103 (21 March 2014).

[15] [2013] VSC 35 (19 February 2014).

[16] [1966] VicRp 58; [1966] VR 404; [1967] VR 3.

[17] [2013] VSC 35 (19 February 2013) [69] (citations omitted).

[18] Church v Mason [2013] NSWCA 481 (24 December 2013) [50] (Emmett JA)

[19] A Watson, The Law of Succession in the Later Roman Republic, Oxford University Press, London, 1971, p. 62.

[20] The comparison between the jurisdictions is not new: see for example J Dainow, Restricted Testation in New Zealand, Canada and Australia, Michigan Law Review Vol. 36, No. 7 (May, 1938) pp 1107-1130.

[22] A Watson, The Law of Succession in the Later Roman Republic, Oxford University Press, London, 1971, pp 63-4.

[23] R Zimmerman, Compulsory Heirship in Roman Law in Exploring the Law of Succession (ed. K G C Reid, M J de Waal and R Zimmermann) Edinburgh University Press, Edinburgh, 2007, pp 32-3.

[24] Kozak v Berwecki [2008] NSWSC 39 (8 February 2008) [44] (Windeyer J).

[25] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478-9 (Lord Romer).

[26] And indeed, only a short time after the deceased had last changed her will, and after her second son had committed suicide.

[27] MacEwan Shaw v Shaw [2003] VSC 318 (2 September 2003) [223] (Dodds-Streeton J); Scarlett v Scarlett [2012] VSC 515 (1 November 2012) [101] (Vickery J).

[28] An order well-recognised in this jurisdiction: Administration and Probate Act 1958, s 96(2); Herszlikowicz v Czarny [2005] VSC 354 (8 September 2005) [176]; Re Liston [1957] VicRp 5; [1957] VR 50; Re Wren [1970] VicRp 58; [1970] VR 449; Re Lawrence [1973] Qd R 201; Carroll v Cowburn [2003] NSWSC 248 (4 April 2003).

[29] See Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 211.

[30] [2003] NSWCA 190 (16 July 2003).

[32] [2005] VSC 382 (27 September 2005) [31].