Re Christu; Christu v Christu [2021] VSC 162

2 The deceased's will dated 7 April 2016 appointed the defendants as executors and trustees of his estate. After the payment of debts and expenses, the residue of the estate was left to the defendants in equal shares. No provision was made for the plaintiff in the will.

3 Probate of the will was granted to the defendants on 29 July 2019. At that time, the deceased's estate was estimated to have a value of $779,662 comprised mainly of a property in Clarke Street, Thomastown ('Clarke Street').

4 The plaintiff seeks provision from the deceased's estate, pursuant to pt IV of the Administration and Probate Act 1958 ('the Act'). The defendants oppose the application, asserting that the deceased did not owe the plaintiff a moral duty on account of his estrangement from the family and unfilial conduct.

5 For the following reasons, the Court has determined that the deceased owed the plaintiff a moral duty at the time of his death and will order the plaintiff be paid a pecuniary legacy of $110,000 from the estate of the deceased.

6 In accordance with s 90A of the Act, an eligible person may apply to the Court for a family provision order from the estate of a deceased person. Upon application, s 91(2) of the Act provides that the Court must not make such provision unless satisfied:

(a) that the applicant is an eligible person;

...

(c) that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

(d) that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person.[1]

It is only upon satisfaction of those requirements that the Court's discretionary jurisdiction to award provision is enlivened.[2]

7 When determining the amount of any provision, the Court must take into account the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person, and the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of the eligible person.[3] As the plaintiff is an adult child, the Court must also take into account the degree to which he is not capable, by reasonable means, of providing adequately for his own proper maintenance and support.[4] The financial need of an adult child is also to be considered in the context of whether the estate failed to make adequate provision for the eligible person's proper maintenance and support.[5]

8 The amount of provision made by order of the Court must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support.[6]

9 Section 91A of the Act sets out certain mandatory and discretionary factors for the Court to consider in making a family provision order. The mandatory factors that the Court must have regard to are: the deceased's will; any evidence of the deceased's reasons for making the dispositions in his will; and, any other evidence of the deceased's intentions concerning providing for the plaintiff.[7] Section 91A(2) of the Act then lists a number of discretionary factors to which the Court may have regard.

10 Part IV of the Act interferes with the freedom of testation. Such interference has historically been viewed as remedying a testator's breach of her or his moral responsibility to adequately and properly provide for others.[8] Initially, the phrase 'moral duty' was absent from the Act. Instead, the notion provided a touchstone informing whether the testator had a responsibility to make provision for a person, and whether that responsibility had been breached.[9] That is, it was the 'norm that the legislature left unexpressed'.[10] As described by Ormiston J in Collicoat v McMillan, moral duty:

Reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards. What is right and proper, and thus what the wise and just testator must do, is not determined by the 'character and conduct' of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.

...

I consider that the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances.[11]

The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 ('the Amending Act') introduced an express reference to 'moral duty' in substituted s 91(2)(c). In accordance with its established legal meaning,[12] when considering the question of 'moral duty' the Court places itself in the position of the wise and just testator, judged according to current community standards,[13] and asks whether she or he would have thought it her or his moral duty to provide for the claimant.[14] The concept concerns:

The community's expectation that a testator should materially support another, given their relationship, personal circumstances and competing claims on resources. It is not, fundamentally, an examination of the personal honesty, probity, uprightness, virtue, integrity, general goodwill or reputation of the testator.[15]

11 In applying the statutory scheme, it has been recognised that the mandatory and discretionary requirements set out in s 91A are relevant when considering the jurisdictional questions in s 91(2).[16] Further, while evidence of the deceased's testamentary intentions are a mandatory consideration, such evidence is not elevated to some higher status.[17] As was the approach prior to the Amending Act, the weight it attaches will 'depend upon the specific circumstances of the particular case'.[18] 'Reasons can be shown to be incorrect or misconceived, enhancing or boosting the strength or defence of a claim'.[19]

12 Specifically regarding the moral duty owed to an adult child, Hallen J in Walsh v Walsh summarised a number of general principles including the following:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.

...

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant.

In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.[20]

Further, it has been noted that the wise and just testator will not be blinded by a degree of intergenerational disappointment or disharmony to the needs of her or his child.[21] An order for family provision is also not a means of obtaining compensation or assigning blame.[22]

13 The conduct of a claimant may be such that it disentitles them from a claim on the moral duty of the testator.[23] However, such conduct must be 'considered in the context of, and relative to, other aspects of [the] claim, such as need'.[24]

14 Estrangement does not describe conduct, 'but the condition which results from the attitudes or conduct of one or both parties'.[25] The Court is to consider all of the circumstances of the case in determining whether 'the claim of the applicant on the deceased is totally extinguished, or merely reduced'.[26] Of relevance will be the nature of the estrangement and its underlying cause, and the mere fact of estrangement between a parent and child, on its own, should not ordinarily preclude the child from satisfying the jurisdictional requirement for provision.[27] Equally, the Court is to recognise that in certain circumstances the deceased is entitled to make no provision for a child.[28] This is particularly so where the child treats her or his 'parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility'.[29]

15 The plaintiff bears the onus of establishing that the deceased did not make provision for his proper maintenance and support on the balance of probabilities.[30] In assessing the evidence, regard is to be had to the seriousness of an allegation that the testator has abused his freedom of testation, consistent with the principles identified in Briginshaw v Briginshaw_[31]_ and s 140(2) of the Evidence Act 2008 (Vic).[32]

16 As discussed in Re Marsella; Marsella v Wareham, 'adequate' and 'proper maintenance and support', have developed legal meaning over many years:

Generally, 'proper maintenance and support' means provision from the estate not simply to alleviate poverty, but also to take into account the vicissitudes of life, whereas 'adequate' means something that it may be insufficient for an applicant's proper maintenance. What constitutes adequate provision for the proper maintenance and support of an applicant involves a consideration of the mandatory and discretionary matters under the Act, having regard to the meaning of these terms as developed in the jurisprudence of the family provision jurisdiction. This also involves a consideration of the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferred dispositions. In determining these questions, a balance must be struck between the established claims of named beneficiaries, the needs of an applicant, the size of the estate, and the benefits provided to an applicant and others with legitimate claims upon the testator. The Court's function is not to ensure a fair distribution of the testator's estate or to achieve equality amongst various claimants but goes no further than making adequate provision for the proper maintenance and support of an applicant.[33]

17 The concept of need is relevant in considering whether the testator 'made adequate provision for the proper maintenance and support of any claimant'.[34] It is a relative concept, to be considered in all of the circumstances of the case.[35] It is not confined to financial need, and if circumstances permit 'a testator should go beyond merely providing for the bare necessities of life'.[36]

18 Whether the provision is adequate for the plaintiff's proper maintenance is to be determined with reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of death.[37]

19 In Davison v Kempson, the Court of Appeal identified a number of factors to be considered when determining whether adequate provision had been made for an adult child's proper maintenance and support:

If an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. Where a child falls on hard times, and where assets are available, the community may expect a parent to provide a buffer against contingencies. Other relevant factors, in the case of an adult child, include (a) a lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years; (b) the need for financial security and a fund to protect against the ordinary vicissitudes of life; and (c) an inability on the part of the applicant to earn an income, or where the claimant has a limited means of earning an income.[38]

20 The quantum of family provision that is adequate and proper for the claimant's maintenance is to be determined with reference to the parties' circumstances at the time of the trial.[39] In this regard, the Court's discretion is to be exercised 'carefully and conservatively according to prevailing community perceptions of the provision that would be made by "a wise and just testator"'.[40] An 'instinctive synthesis' is required, taking into account all of the relevant factors and giving them due weight,[41] and there may be a range of appropriate provisions over which minds may legitimately differ.

21 The parties agree that the plaintiff is an eligible person within the meaning of s 90 of the Act. However, the following issues remain contentious:

(a) whether, at the time of death, the deceased had a moral duty to provide for the plaintiff's proper maintenance and support;

(b) whether the distribution of the deceased's estate pursuant to the will fails to make adequate provision for the plaintiff's proper maintenance and support; and

(c) the extent of provision to be made to the plaintiff, if any.

22 The plaintiff relies upon his affidavit and a number of documents tendered during the hearing. The defendants rely upon their joint affidavit, individual affidavits of Helen and Krysy, a supplementary affidavit of Krysy and an affidavit of Mary Leeds, who was the deceased's neighbour from approximately 1960 until his death in 2019.

23 The following factual background is drawn from all of the evidence, noting that at points, there is a degree of conflict between the parties.

24 The plaintiff was born in 1955 in Poland. He is the eldest child of the deceased and Stanislawa Christu ('Stella'). The plaintiff and his parents immigrated to Australia in around 1958.

25 The deceased and Stella both worked as cobblers in Fitzroy and the plaintiff recalls Stella working at home on Saturdays. Shortly after arriving in Australia, the deceased and Stella purchased a property in George Street, Fitzroy ('George Street'). Extended family members, who had also immigrated to Australia, lived nearby. The plaintiff recalls his home life as difficult, deposing that at times he was regularly beaten and verbally abused by the deceased. Specifically, he states that he was first beaten by the deceased as an eight year old after not attending school. He recalls being hit repeatedly with a belt buckle by the deceased until Stella intervened. The deceased is also said to have physically and verbally abused Stella.

26 Krysy was born in 1963, when the plaintiff was seven years old. According to the plaintiff, given the age difference, he never spent much time with his siblings.

27 The plaintiff states that throughout his primary and secondary school years his parents would leave for work at 7:00am and return home around 6:30pm. He recalls being 'left to his own devices' and associating with gangs. However, he conceded that his grandmother cared for him some of the time, and that he was close to his mother, who 'did what she could' for him when she was home.

28 Krysy deposes that during his childhood, both the deceased and Stella were loving and attentive parents. He states that his grandmother was charged with the care of himself, his siblings and his cousins. He recalls the deceased as strict, with an authoritative parenting style, but Krysy never witnessed him beating the plaintiff. Krysy acknowledged, however, that the plaintiff would have been disciplined by the deceased when he was young. Additionally, on rare occasions the deceased resorted to smacking Krysy as a form of punishment.

29 The plaintiff states that he ran away from home when he was 12 years old due to the deceased's abuse, moving in with his uncle in Northcote. The plaintiff felt that the deceased degraded him and made him feel worthless. The plaintiff recalls returning home a few months after the deceased apologised. Although initially the deceased's behaviour towards the plaintiff is said to have improved, after a while the deceased again verbally and physically abused him. Specifically, the plaintiff asserts that the deceased would yell in Macedonian words to the effect of 'you're useless, good for nothing, you haven't got a brain'.

30 In around 1967, the family moved from George Street to Clarke Street.

31 Helen was born in 1969, when the plaintiff was thirteen years old. She does not have any memory of the plaintiff living at Clarke Street, and agreed that it was likely that the deceased disciplined the plaintiff in the years before she was born. She recalls a happy family life, and although the deceased was strict about her education, he was never abusive towards her. However, Helen also acknowledges that she was smacked by the deceased if she misbehaved.

32 According to Krysy, when he was in grade one the plaintiff would assist him with getting dressed, having breakfast and getting ready for school. During cross-examination, however, he stated that from when he was in primary school up until university he had no contact with the plaintiff.

33 The plaintiff left school when he was 16 years old. The abuse from the deceased is again said to have become too much, and he recalls being depressed. He obtained work as an offset apprentice at a printing company but quit after two weeks. Around this time, an incident occurred during which the plaintiff 'snapped' at the deceased, throwing a table toward him. During cross-examination the plaintiff sought to clarify, stating he was 'letting off a bit of steam' and threw the table in the same room as the deceased. When it was put to him that it may be fair to say that he was rebellious, he responded that he was not so much rebellious, rather, the 'black sheep of the family'. Any disrespect that he showed to his family was said to be consistent with that of any other teenager. Krysy recalls an occasion when he was looking through a window observing the plaintiff and the deceased fighting, during which the plaintiff picked up a glass coffee table and threw it into a glass cabinet, narrowly missing the deceased.

34 After this incident, the plaintiff ran away to Lakes Entrance, where he worked as a dishwasher and scallop fisherman. Helen recalls Stella later telling her that she begged the plaintiff not to leave.

35 Krysy states that after the plaintiff left home he did not attend any special occasions, such as Christmas and birthdays, or send cards. At one stage he also changed his telephone number so that Stella could not contact him. Stella, however, is said to have sent cards to the plaintiff. Helen similarly deposes that the plaintiff did not attend family celebrations and, to the best of her knowledge, he never replied to the cards sent by Stella.

36 The plaintiff states that after spending a year in Lakes Entrance, he returned home. He reconciled with his parents and recalls that 'life was good' for approximately twelve months. He then worked as a storeman, and later, at a welding factory in Thomastown.

37 When he was 18 years old, the plaintiff began dating Mary. He states that the deceased was not happy with the relationship, as Mary was Polish rather than Macedonian. However, he also gave evidence that Mary visited Clarke Street regularly. During this period the plaintiff did not expect any assistance from his parents and he did not receive any. When counsel for the defendants suggested that in light of a later attempt to 'rekindle' the relationship with his family, there was actually a period of estrangement after the plaintiff returned from Lakes Entrance, he stated that 'there was a little bit ... but ... only because of the way [the deceased] referred to [Mary] prior to our marriage'.

38 Two years after they met, the plaintiff and Mary became engaged.

39 Krysy deposes that when he was in his early teens, the plaintiff and deceased argued frequently. Additionally, he describes the plaintiff as stubborn, aggressive and hostile toward the deceased, who would state to the plaintiff 'why are you doing this?'. According to Krysy, 'witnessing the violence that [the plaintiff] perpetrated' against his parents had a profound effect on him. During cross-examination, Krysy agreed that the deceased spoke to him about the deceased's relationship with the plaintiff, but denied that his impression of the relationship between the two was influenced by his father, stating that he also witnessed 'the arguing, the fighting and [the plaintiff] running away'.

40 According to Helen, the plaintiff's behaviour toward the deceased and Stella was disrespectful and sometimes aggressive. She recalls one occasion when she was very young, when Mary and the plaintiff were kissing and fondling in front of Clarke Street. As Helen was also playing in the front of Clarke Street the deceased asked the plaintiff to stop, and in response, the plaintiff is said to have spat at the deceased and swore at him many times. Helen states that she did not see the plaintiff for many years after the incident. She denies that her memory of the incident was influenced by what was said to her subsequently by her parents. Rather, she agreed that she remembered it vividly because it was traumatic. The plaintiff denies that he disrespected his parents in such a way.

41 Helen deposes that while she was living at Clarke Street, prior to 1998, the plaintiff only visited every five or six years. During cross-examination, however, she conceded that it was more frequent during the plaintiff's period of engagement to Mary, when she was excited assisting Stella with plans for the engagement party. During the plaintiff's visits, he is said to have ignored their parents and spoken to her only. The plaintiff agreed that most of the time he only spoke to Helen.

42 The plaintiff and Mary married in 1976. At the wedding, the deceased is said to have argued with Mary's family members, yelling that he did not want photographs to be taken with them because they were not Macedonian. He did not allow any photographs to be taken of him, or his side of the family, and the plaintiff felt humiliated and embarrassed. During the following two years he only visited his parents once.

43 After marrying, the plaintiff and Mary moved to a rental property in Brunswick. The couple later purchased land and built a house at Albanvale.

44 The plaintiff's daughter, Yolanda, was born in 1983. He states that he spoke with his parents at that time, that they visited and he wanted to 'rekindle some association' with his family. The plaintiff also started visiting his parents at Clarke Street. Initially this was without Mary, however, later Mary sometimes also visited after agreeing to have the deceased and Stella back in their lives. The plaintiff deposes that at this time, he visited his parents at least once each week.

45 An incident occurred at Yolanda's christening, during which the deceased is said to have been drunk and argued with Mary's family and friends. A photograph is exhibited in this regard, depicting the deceased pointing at another man, said to be Mary's brother, who has his palms raised. According to the plaintiff, the deceased and Mary's brother engaged in a physical altercation outside the venue of the christening, after which the deceased yelled at Mary and the plaintiff 'I never want to associate with any of you again'.

46 Krysy recalls that the party after the christening was held at the plaintiff's home. While he was outside, he heard yelling coming from within the house, before the deceased emerged being followed by a number of people. He assisted his parents and Helen to get into his car, and heard the plaintiff yell 'never come back here, I never want to see you'. Krysy agreed that it was possible that the deceased may have instigated the situation. The plaintiff agreed that he intervened in the altercation, but denied that he said to the deceased that he never wanted to see him again. According to Krysy, the day after the incident, the presents that the deceased and Stella had given to the plaintiff and Mary were discovered on the doorstep of Clarke Street, although the cash that they had been gifted was not returned.

47 After the incident at Yolanda's christening, the plaintiff did not visit his parents for approximately two years. He states that 'after he got over the hurt' he recommenced seeing them once every two to three weeks, chiefly spending time with Stella. He describes his relationship with the deceased at that time as strained. The plaintiff also deposes that he would call his parents approximately three times each week, and although Stella would sometimes call him, the deceased never did.

48 Mary and the plaintiff had two more children, born in 1985 and 1987. When counsel for the defendants suggested that the plaintiff never told his parents that Mary was pregnant with their second and third children, the plaintiff gave evidence that he did, along with pleading with the deceased to visit for ten years and trying to reconcile with the defendants.

49 In 1989, Mary and the plaintiff sold their home in Albanvale, and built a new home in Keilor Downs. At the time the plaintiff was working long hours as a storeman. He states that he continued to visit his parents, accompanied by his children, once every two to three weeks. During those visits the deceased would sometimes include himself in the discussion, but a lot of the time secluded himself in a corner of the backyard. When the plaintiff and Mary moved to Keilor Downs, the deceased gave the plaintiff $10,000 for carpet and a new computer. The plaintiff deposes, however, that at that time he still found it hard to connect with the deceased.

50 Krysy recalls the plaintiff and his children visiting his parents three or four times when the children were very young, and occasionally when they were in primary school. They did not call his parents grandma and granddad. By contrast, the deceased and Stella are said to have had a strong family bond with Helen's children. Helen recalls two occasions that the plaintiff visited Clarke Street with his young children.

51 In the 1990s the deceased had a heart attack and triple bypass surgery. Although the plaintiff was aware of this, he did not visit.

52 Over the next twelve years, the plaintiff worked as a storeman and as a driver at a number of businesses. He deposes to feeling inadequate and insignificant at one of those organisations. Additionally, he was working long hours and describes both financial and family pressures.

53 The plaintiff's medical records from November 2000 state, among other things:

Father was very abusive to mother degraded by father/was told to keep mouth shut & belted ...

Think that father hate him / father still alive but no contact / has one brother & one sister both single / sister trained sister (nurse) brother self-employed but has no contact with them.

54 In 2001 Mary and the plaintiff separated. The plaintiff moved out of Keilor Downs into a rental property and received $52,000 by way of a property settlement. When the plaintiff moved, Stella accompanied him to purchase whitegoods. When it was put to the plaintiff that Stella also helped him with the cooking to reconcile their relationship, the plaintiff stated that there was nothing wrong with his relationship with Stella.

55 According to Krysy, the plaintiff's visits to his parents became more frequent around this time as he sought financial and emotional support from Stella. Additionally, the plaintiff's conversations with Stella are said to have become very frequent. Krysy goes on to state, however, that although Stella attempted to reconcile with the plaintiff, the plaintiff's contact with both of his parents remained infrequent. In cross-examination, Krysy denied that the relationship between Stella and the plaintiff was close. Further, when asked about the plaintiff seeking emotional support from Stella, he replied that he did not recall.

56 Helen also gave evidence that the plaintiff and Stella were in regular contact during his separation from Mary. She denied that Stella and the plaintiff had a good relationship throughout his life, but agreed that Stella was always there for the plaintiff when he needed help.

57 In 2003 the plaintiff purchased a property in Melton in which he lived for around five years. While he was living there, the property was burgled and he was assaulted.

58 The plaintiff's grandchildren were born in 2005 and 2007. Despite the plaintiff's purported requests, Stella and the deceased never met them.

59 Krysy states that in the mid-2000s, Stella spent days, and at times weeks, in hospital, but the plaintiff did not visit her. This is said to have made the deceased visibly upset. However, Krysy also gave evidence that the telephone calls between the plaintiff and Stella increased during this time. Helen also recalls that the plaintiff's contact with Stella increased in the months before she was ill. The plaintiff agreed that he did not visit Stella at the time, as he 'had a lot going on' in his life.

60 In around 2008 the plaintiff sold the Melton property and lived with his parents in Thomastown for a period of six months. According to the plaintiff, at this time the deceased was civil to him and the two spent time watching movies together and chatting. Krysy deposes that at first his parents were happy when the plaintiff lived with them. However, Stella is said to have later told Krysy that the plaintiff was effectively estranged from his parents in their home.

61 Mary Leeds lives next door to Clarke Street. She deposes that for the last 20 years of Stella's life, the two would have a coffee every two weeks, and speak every two days. She recalls a period when the plaintiff moved back into Clarke Street, during which she heard shouting from time to time in a language that she did not understand. After two months, Stella told her that she wished that she and the deceased had not agreed to the plaintiff staying with them, as 'he takes everything and gives us nothing'. When cross-examined, Ms Leeds accepted that the raised voices that she heard could have been on account of the deceased being hard of hearing. However, he was not always home during the shouting and further, she always got the impression that a lot of the yelling was in anger. The plaintiff denied that he was arguing with his parents. Rather, any loud discussions were said to be on account of the deceased's loss of hearing, specifically, because at that time he was 'half-deaf'.

62 Around this period, Helen separated from her daughters' father. The plaintiff assisted her to move her furniture from her home to Clarke Street.

63 Later in 2008 the plaintiff moved to a property that he had purchased in Wyndam Vale. He deposes that he would visit his parents regularly, having lunch with them about once each month, and that his relationship with his father improved. During this time he worked as a delivery driver, before obtaining a security license. He then worked as a security guard for four years, before suffering from low back and leg pain. In 2012, he ceased working as a security guard on account of the long periods that he was required to stand in one spot whilst continuing to suffer pain in his legs, back and neck.

64 Although the plaintiff deposes to deciding in 2013 to address his mental health issues, medical records indicate that he first attended a psychologist in 2011. A record from October 2011 states: 'letter from wise employment that [the plaintiff] is stressed anxious and depressed recommended referral to psychologist'. As noted in a letter from November 2019 summarising the plaintiff's psychological history, a psychological assessment administered on 23 December 2011 is stated to have indicated extremely severe stress and depression, as well as moderate anxiety. Further, that:

Given the range of symptoms and the level of their severity, and [the plaintiff's] accounts of trauma through family violence particularly when he was nine years old and which continued until he was sixteen years old, a provisional diagnosis of Post Traumatic Stress Disorder and Major Depressive Disorder had been provided at the time.

65 A letter dated 2 August 2013 from the plaintiff's psychologist recommended that he be considered for referral to psychiatric care. He received sessions of psychological counselling in early 2014, and deposes that around that time he was diagnosed with post-traumatic stress disorder and major depressive disorder. This diagnosis, as distinct from the earlier provisional diagnosis, does not appear to be confirmed in the documentary evidence.

66 The plaintiff deposes to having regular conversations with Stella over a six month period in around the first half of 2015, regarding his parents' wills. He is said to have been concerned that he would be excluded from the deceased's will, after a comment made by Helen. According to the plaintiff, Stella reassured him that he would not be excluded from his parents' wills.

67 In June 2015, Stella died from a heart attack. Krysy states that the deceased called the ambulance, but Stella had to speak on the phone because the deceased was hard of hearing. Helen was informed via telephone of her mother's death at approximately 2:00am by an emergency department doctor. She then contacted Krysy and the plaintiff and asked them to meet her and the deceased at the hospital. According to Helen, the plaintiff stated that he would meet everyone at the hospital. Krysy states that, he, Helen and the deceased waited for four to five hours for the plaintiff to attend the hospital but he did not arrive. Helen similarly recalls that they waited hours. She then telephoned the plaintiff, who said that he was not coming because he had had 'a couple of joints'. According to Helen, the deceased was 'visibly upset' in response.

68 The plaintiff denies that he stated that he had had a couple of joints. Instead, he asserts that he was not told that Stella was in hospital, that it was very early in the morning and that he said he would come first thing later in the morning. He denied that he had told anyone that he smoked marijuana at that time, although when shown his medical records referring to marijuana use in 2000, he agreed that he used to smoke it. He stated further, however, that he had not since around the date of the medical records, and was not smoking in 2015 at the time of Stella's death. When it was put to the plaintiff that Helen telephoned him twice, he stated that he could not remember.

69 The plaintiff asserts that he visited his family later in the morning after Stella had died. According to Helen and Krysy, the plaintiff only visited Clarke Street the day after Stella died.

70 Krysy deposed that the deceased attempted to reconcile with the plaintiff after Stella's death. However, when asked whether the deceased ever sought to rectify his relationship with the plaintiff he replied that he did not think so, and that he did not know. According to Krysy, the plaintiff only visited the deceased once or twice after Stella's death. The deceased told him that the plaintiff had driven him to a shopping centre to have lunch, but that the plaintiff asked the deceased to pay for the lunch.

71 The plaintiff gave evidence that in the first year after Stella's death he visited the deceased approximately once every two to three weeks. He also telephoned the deceased weekly and at times the two would go on outings. When it was put to the plaintiff that he only visited the deceased once or twice, he stated that his visits were 'more frequent than that'.

72 The deceased executed the will on 7 April 2016. After dealing with the payment of debts and expenses, the will then provides:

1. I have deliberately not given any of my Residuary Estate to my son [the plaintiff] as he never visits me.
2. I give the balance of my estate then remaining ('Residuary Estate') to such of Chris and Helen as survive me and if more than one, then equally for his, her or their own use and benefit absolutely.

According to the plaintiff, he was not visiting the deceased as regularly around that time.

73 In or around 2017 the plaintiff reduced contact with the deceased. He deposed that when he spoke to the deceased he was in good spirits, and said not to worry about visiting as he was okay and that Krysy and Helen were assisting him. The plaintiff was also busy at that time with therapy, finding a life partner, and focusing on his children and grandchildren. During cross-examination, when questioned about the deceased's hearing difficulties and speaking to him on the phone, the plaintiff stated:

I don't know what happened to the last two years of his death [sic] but prior to that when I last saw him, I saw him face-to-face, we had a great heart-to-heart, okay, and he heard me quite well. On the phone it was a little bit loud so he can hear me and that's all I know.

74 Krysy states that the deceased had failing hearing and that speaking to him on the phone was impossible. The deceased could not hear the caller and would often ask them to speak up. Additionally, if the deceased telephoned Krysy he would simply state 'can you come over' and Krysy would only answer 'yes'. When cross-examined as to how he knew that the deceased would ask the caller to speak up, Krysy stated that initially he possibly phoned the deceased, but then realised that it was impossible to talk to him.

75 Helen similarly deposed that, for the last five years of his life, the deceased was very deaf. Particularly in the two years prior to his death, the extent of Helen's telephone conversations with the deceased were yelling that she was coming to visit and telling him when. However, she also stated that she would call him 'very, very frequently during the day' so that he could hear her voice. At times the deceased would not answer the call and Helen would phone Ms Leeds to then answer the phone call for him.

76 Ms Leeds states that she did not see the plaintiff visit Clarke Street after Stella's death. She did, however, see Helen and Krysy visit. Additionally, the deceased was said to be very deaf and at times she would have to go to Clarke Street to tell the deceased that his kettle was boiling or phone was ringing.

77 In November 2018 the plaintiff attempted to telephone the deceased but the call was unanswered. The plaintiff was unaware that the deceased had moved into palliative care.

78 According to Krysy, the deceased spent a total of six weeks intermittently in the palliative care unit and otherwise received palliative care services at Clarke Street. Krysy and Helen assisted the deceased at Clarke Street on alternate days. Krysy went to Clarke Street every Sunday to mow the lawns and tidy. He states that he never saw the plaintiff visit Clarke Street while he was there. Helen similarly states that she never saw the plaintiff visiting Clarke Street.

79 Krysy deposes that the deceased told him not to contact the plaintiff when the deceased died. This was said to be on account of the plaintiff's 'voluntary estrangement'. Helen gave similar evidence, however, during cross-examination she stated further that the request was in response to threats made by the plaintiff that the plaintiff would urinate on the deceased's grave. When it was put to Helen that she had not deposed to such evidence, she replied 'okay'.

80 In oral evidence, Krysy agreed that the deceased did not try to contact the plaintiff in the last years of his life. Further, that although he thought that the deceased never sought to rectify his relationship with the plaintiff, the plaintiff, on occasion, did try to contact the deceased. The two are said to have remained intermittently in contact but there were many gaps, potentially for longer than a year or two.

81 When it was put to Helen that the deceased and the plaintiff remained in contact throughout their lives, Helen replied 'well, it depends on what you mean by contact' before stating that they 'very sparingly' had contact. She agreed that the deceased did not try to contact the plaintiff.

83 In July 2019 the plaintiff again attempted to telephone the deceased. He deposes that as the phone call was unanswered, he drove to Clarke Street and found the property deserted. He then obtained Helen's phone number and sent her a text message enquiring as to the deceased's location. According to the plaintiff, that text message remained unanswered and it was only after he referred to obtaining legal advice in a subsequent message that she replied informing him that the deceased had died.

84 According to the inventory of assets filed with the application for probate, the deceased's estate comprised Clarke Street, with an estimated value of $750,000, and approximately $29,662 of cash.

85 The defendants filed a further affidavit in May 2020, exhibiting two letters of appraisal for Clarke Street dated 13 May 2020, estimating its value as between $680,000 to $745,000 and $680,000 to $738,000, respectively. Further, it was noted that the sum of $29,662 had been distributed to the beneficiaries of the will, and that a portion, approximately $5,000 to $6,000 had been used to pay the rates, insurance and utilities for Clarke Street.

86 A valuation of Clarke Street dated 22 October 2020 exhibited to a further affidavit of Krysy estimates the market value of Clarke Street at that time as $675,000.

87 The plaintiff's estimated costs of the proceeding are $67,000 and the defendants' estimate is $55,031.

Current circumstances of the plaintiff and defendants

88 The plaintiff is 65 years of age. He has three adult children from his marriage with Mary. He has not worked since 2012. Although he attempted to find employment for two years after that time, he was unsuccessful and has since ceased looking for work on account of back and leg pain, as well as his mental health issues. He goes through periods of stress and anxiety from time to time which he manages with exercise. He also takes medication for high blood pressure. The plaintiff owns his own home in Wyndham Vale, which is unencumbered and has an estimated value of $420,000. He also has superannuation of approximately $45,000, and a motor vehicle estimated to be worth between $8,000 and $12,000. He receives a Newstart Allowance of $620 per fortnight and has unsuccessfully applied for a disability support pension in the past.

89 Krysy is 57 years of age. He receives a disability pension of $852 per fortnight, has $73,000 cash, and shares worth approximately $193,000. He has had HIV for nearly 30 years and has developed related heart problems and osteoporosis, for which he takes medication. He has received the disability pension since 2000. Krysy's functions of daily life and life expectancy are substantially impaired by his medical conditions.

90 Helen is 51 years of age. She is a single mother of two daughters, who currently attend school. They both have severe learning disabilities and require associated support. Additionally, Helen's youngest daughter suffers from anxiety, dyslexia and asthma, while her oldest daughter requires counselling. Helen also gave evidence that she is seeking the support of Family Services due to the behaviour of one of her daughters, which has also impacted upon Helen's ability to attend work on a regular basis.

The combined school fees of Helen's daughters are around $45,000 per annum.

Helen does not receive any financial assistance from her daughters' father.

91 Helen is employed as a maternal child health nurse, earning approximately $3,000 per fortnight after tax. She owns a 75 per cent share in a house in Eltham North. The property is estimated to be worth $940,000 and is encumbered by a $100,000 mortgage. She also has a car worth approximately $40,000 and superannuation of $150,000, as well as a credit card debt of approximately $5,000. In her affidavit, Helen did not depose to either her attempts to commence her own business, or the financial assistance that she receives from her friend, Mr Eric Koelmeyer. Regarding the former, when asked about an Australian Business Number registered in her name, Helen referred to a plan to start share driving. When it was put to Helen that she was operating a business as a postnatal doula, she stated that she had never worked as such, but that she was just 'delving into it'. She denied that she had worked and earned an income as a doula.

92 Helen previously owned another property as tenants in common with Mr Koelmeyer. That property was later transferred to Helen solely, before being sold. Helen denied that Mr Koelmeyer was her partner. Rather, she described him as her best friend, who helps her. When it was put to her that on her income she could not afford her daughters' school fees, she agreed that Mr Koelmeyer had helped with the fees since her parents had died. Helen also accepted that Mr Koelmeyer was assisting with her financial position generally. She aims to pay Mr Koelmeyer back, and the genesis of the assistance is said to have been that after her separation, her assets had been tied to a vacant block of land that had depreciated in value. Moreover, as a single mother she found it difficult to obtain finance. She did not explain, however, why she failed to disclose the assistance of Mr Koelmeyer in her affidavit.

93 The plaintiff contends that the deceased had a moral duty to provide for him. Although his relationship with the deceased was troubled, it was never estranged in the relevant sense.[42] Moreover, the relationship difficulties are said to have stemmed from the deceased's conduct. Citing Andrew v Andrew_[43]_, the plaintiff submits that his separation from the deceased 'may have involved a little more tumult than usual, but that it was not so fraught that it went beyond 'reasonable bounds'. He points to similarities with the claimant in Brandon v Hanley, where on the issue of estrangement the Court stated:

True it is that the plaintiff's relationship with the deceased was less than ideal. Indeed, the plaintiff conceded this at the outset. But there was never a total absence of a relationship, and nor was the plaintiff ever permanently estranged from his father. This is so notwithstanding that there were certainly periods where his contact was not frequent, something that was again conceded by the plaintiff.[44]

94 Here, it is asserted that the facts demonstrate that the relationship between the deceased and plaintiff was tense and, at times, fractured but that it endured throughout. The plaintiff was present in the family throughout his life, and at times, the tension between the deceased and plaintiff centred around the plaintiff's relationship with Mary. During his separation from Mary, the deceased and Stella supported the plaintiff. Rifts were mended along the way, as best they could be, and the very fact that the plaintiff attempted to contact the deceased in the period surrounding his death, is said to refute the suggestion of estrangement. While the conflict and tension in his relationship with the deceased may have reduced the amplitude of the deceased's moral duty, it did not extinguish it entirely.

95 With regard to the s 91A factors, the plaintiff contends that the breadth of the allegation in the will, that he 'never visits', was not borne out in the facts. Rather, the plaintiff maintained regular contact with the deceased for the previous 25 years, and the words in the will do not reflect the complexity of their relationship, being misconceived and should be given little weight.[45]

96 The plaintiff is single, aged 64 years and cannot look to anyone else to maintain him in his later years. He has no realistic capacity to earn an income sufficient to fund his retirement and meet unforeseen expenses. While Krysy appears to have a real need for provision, Helen has a net asset position greater than the plaintiff and is working. She also has the ongoing assistance of Mr Koelmeyer. While the estate is not large, there are enough funds to provide for his proper maintenance and support without prejudicing the needs of the defendants. The plaintiff asserts that out of the asset pool of $750,000, if $150,000 is provided for his proper maintenance and support, the defendants would still be left with $300,000 each. That would allow Krysy to purchase a property of an equivalent value to the plaintiff's, while maintaining some savings. Helen would be able to pay off her current mortgage and substantially pay for her daughters' education in the coming years.

97 The defendants argue that any moral duty that the deceased owed the plaintiff was nullified or significantly reduced on account of the plaintiff's conduct, including his estrangement. The cumulative evidence is said to show that the plaintiff was estranged from the deceased and Stella. There is little evidence that he visited them after Yolanda's christening, other than his self-serving statements and Helen's concession that he visited every five or six years. The plaintiff also failed to visit them when they had significant health issues.

98 The defendants do not dispute that the plaintiff had a 'difficult relationship with the deceased for most of his life'. They argue that it is to be contrasted with the relationship that they had with the deceased, and was compounded by significant estrangement from both the deceased and the family generally.

99 The defendants also emphasise the testamentary intention of the deceased, which is corroborated by the evidence of estrangement given by Helen and Krysy. Further, the estate is not large and the deceased had obligations toward Krysy and Helen, with whom he had close relationships and who provided care to the deceased and Stella as they aged. The defendants, particularly Krysy, have more significant needs than the plaintiff, and any order for provision would reduce the amount that they received.

100 They contend that the plaintiff has behaved in a negative manner toward the deceased since his childhood, causing significant periods of estrangement and evincing a wilful disregard of his parents' welfare. In particular, the defendants emphasise that although the plaintiff claims to have had a close relationship with Stella, he failed to attend the hospital on the morning that she died.

101 Finally, the defendants point to a number of inconsistencies and contradictions in the plaintiff's evidence, in submitting that where there are inconsistencies between the parties, their evidence should be preferred.

102 At times the evidence of the plaintiff, Krysy and Helen showed inconsistencies. This is unsurprising given that many of the events occurred years ago and memories of the same event may vary. Moreover, witnesses may unwittingly tailor their evidence to align with their case. Consequently, where a witness' evidence is not otherwise corroborated or consistent with documents, it is treated with caution. In respect of the evidence of the plaintiff and Helen, at times their evidence exhibited a negative attitude toward the other. Further, Helen was not forthright in disclosing the financial assistance provided by Mr Koelmeyer. Consequently, where evidence is in conflict, greater weight is given to that of Krysy and Ms Leeds if there was otherwise no documentary evidence.

103 By the terms of the will, the estate is divided between the defendants equally, while the plaintiff receives nothing. The explanation provided in the will is that the plaintiff 'never visits me'. The plaintiff deposes that after Stella's death he visited the deceased every two or three weeks, taking him out for lunch on occasions. However, he concedes that in April he was 'not visiting him as regularly' and, by 2017, stopped visiting entirely. While he recalls having a great 'heart-to-heart' with the deceased the last time that he saw him, little detail is provided regarding the content of the conversation or exactly when it occurred.

104 Krysy gave evidence that the plaintiff visited the deceased only once or twice after Stella's death and on one of those occasions took the deceased out for lunch. He also suggested that the deceased attempted to reconcile with the plaintiff around that time, although his evidence is inconsistent in this regard. Ms Leeds also stated that she never saw the plaintiff visit the deceased. In light of the terms of the will, the evidence of Krysy and Ms Leeds, as well as the plaintiff's concession that in April 2016 he was not visiting 'as regularly', it appears that although the deceased and plaintiff attempted increased contact in the period immediately after Stella's death in 2015, by 2016 the plaintiff was only visiting in a very limited fashion, if at all. As such, the deceased's rationale for not providing for the plaintiff, as expressed in the will, may reflect the factual circumstances as they existed in April 2016. However, the words need to be viewed within all of the circumstances, in particular, as the plaintiff submits, 'the words of the will do not properly reflect the nature and complexity' of the relationship between the plaintiff and deceased.

Evidence of the deceased's reasons for making the dispositions

105 Beyond the will, there is limited evidence of the reasons behind the testator's dispositions. Although Krysy deposes that the deceased did not provide for the plaintiff because of the plaintiff's estrangement, and provided for Helen and Krysy because of the assistance that they gave their parents over the years, this appears to be a matter of opinion only. No conversations or events are specifically recalled by them.

Other evidence of the deceased's intentions in relation to providing for the plaintiff

107 The plaintiff gave evidence that in 2015 he had regular conversations with Stella regarding the benefits that he was to receive under his parents' wills. He was reassured that he should not worry, as he was 'included in the wills'. A number of factors weigh in favour of the conclusion that such conversations occurred, namely, Stella's health conditions and previous period of ill-health; that the plaintiff increased his contact with Stella during her period of ill-health in the mid-2000s, and generally appeared to maintain more regular contact with her than the deceased; and that the plaintiff deposes that the conversations occurred in response to comments of Helen that he was only visiting his parents for their inheritance. Helen has not denied that she made such comments. However, even if Stella herself reassured the plaintiff, the evidence is of limited weight in the context of evidence of the deceased's intentions.

The relationship between the plaintiff and the deceased

106 The evidence demonstrates that the plaintiff's relationship with the deceased was marked by engrained difficulties, punctuated by periods of overt conflict, lack of contact, and attempted reconciliation. On the basis of the plaintiff's evidence, his accepted history of running away, the medical notes from 2000 and the summary of the psychologist in 2019, it is more than likely that the plaintiff was physically and verbally abused by the deceased before the age of 16 years. Such a conclusion also gathers a degree of support from the defendants' acknowledgement that the deceased had an authoritative parenting style and smacked them at times. Although the defendants did not witness the abuse, this is explicable in part by their younger ages. Such a conclusion is consistent with the documentary evidence, the plaintiff's account of events and the deceased's accepted behaviour.

107 The evidence establishes that there were significant arguments between the plaintiff and deceased over the years as follows:

(a) when the plaintiff was 16 years old and threw the table in the vicinity of the deceased;

(b) the incident that occurred when Mary and the plaintiff were kissing at Clarke Street in the vicinity of Helen, to which the deceased responded. To the extent that the argument occurred, Helen's evidence is accepted, given her reported trauma and confusion over the event. Additionally, Krysy gave evidence that the deceased and plaintiff frequently argued and, although the plaintiff denied the specific instance recounted by Helen, he admitted to a disrespect toward his parents;

(c) the verbal altercation at Yolanda's christening; and

(d) the arguments when the plaintiff resided at Clarke Street in around 2008.

In this regard the evidence of Ms Leeds is accepted, in that voices were raised in anger and this was not always explicable by any hearing difficulties of the deceased.

Additionally, the deceased's conduct at the plaintiff's wedding, upon which the defendants gave no evidence, was said to have 'humiliated' the plaintiff.

108 In later years, it appears that the conflict between the two lessened although during emotionally significant events, such as Stella's period of illness and death, the deceased was 'visibly upset' at the plaintiff's conduct in not visiting and attending.

109 In association with such difficulties, there are a number of periods during which the plaintiff had no or limited contact with the deceased. These commenced with the instances in the plaintiff's youth when he ran away. Although the plaintiff deposes that he returned to Clarke Street when he was around 17 years, and things were amicable for approximately twelve months, he also admitted to a degree of estrangement around this time due to his association with Mary. It appears that further instances of limited contact occurred:

(a) in the two years after the plaintiff's marriage to Mary in 1976;

(b) in the two years after Yolanda's christening in around 1983;

(c) between the early 1990s when the plaintiff did not visit the deceased in hospital and 2000, as a medical record that year provides that the plaintiff had no contact with his father or siblings;

(d) in the mid-2000's when he failed to visit during Stella's period of illness, although he did increase telephone contact at that time; and

110 However, although intermittent, there were also instances during which the contact between the deceased and plaintiff increased, or they otherwise provided each other with a degree of support. The deceased, for example, gifted the plaintiff and Mary $10,000 in around 1990, at a time when the plaintiff was also visiting with his young children. While there appears to have been a lengthy period of no contact subsequently, in 2001 there was increased contact again after the plaintiff's separation from Mary. In 2008, the deceased agreed to the plaintiff living at Clarke Street for a period. Also, in 2008, after establishing himself in Wyndam Vale, the plaintiff would visit his parents on occasions. Although there again appears to have been less contact between 2008 and 2015, at that stage of his life the plaintiff was engaging in treatment for his psychological issues, during which he appeared to discuss his relationship with the deceased. In 2015, after Stella's death, the evidence of Krysy and the plaintiff supports the conclusion that the plaintiff visited on at least two occasions. Reference is generally made to an attempt at reconciliation and a 'heart-to-heart' between the two around this time, however, the evidence of both Krysy and the plaintiff is non-specific, making it difficult to conclude what happened in this regard.

111 The content of the will and the evidence of Krysy and Helen that the deceased did not want news of his death to be communicated to the plaintiff suggests that the deceased may have viewed his relationship with the plaintiff to be at an end from around 2016. However, this distance is somewhat consistent with other periods the two went through during the plaintiff's life, particularly after emotionally significant events.

112 Much time was spent by the parties addressing the plaintiff's evidence that he spoke to the deceased weekly on the telephone in the period after Stella's death. The fact that the plaintiff only learnt of the death of the deceased in 2019 after attempting to telephone him demonstrates that he did, on that occasion seek to contact him by telephone. As the defendants submit, on the plaintiff's case that was eight months after an earlier purported attempt to contact the deceased by telephone. However, the plaintiff admits that during the last two years of the deceased's life he and the deceased had 'reduced contact'. Regarding the period between Stella's death in June 2015 and 2017, the evidence is limited to the statements of the plaintiff. While the plaintiff may have on occasions telephoned the deceased, based upon the evidence of the defendants and Ms Leeds, the two could not have had meaningful conversations on account of the deceased's hearing difficulties.

113 It is apparent that the plaintiff did not provide the deceased with assistance during the last years of his life. He states that this was because the deceased told him not to, as help was being provided by the defendants. The evidence for this is not otherwise corroborated, although it appears consistent with the long-standing difficulties that the deceased had in relating to the plaintiff. In any event, even if the statement was not made, on account of the same difficulties as well as the other demands upon the plaintiff's life at that time, the likelihood is that he would have only provided limited assistance to the deceased in his last two years.

114 On the whole, the evidence demonstrates that the plaintiff and deceased had a difficult relationship. The early years were marked by high conflict, and over subsequent decades, there were lengthy periods of limited contact between the two. However, it cannot be concluded that the relationship was ever entirely abandoned by the deceased or the plaintiff. This conclusion is consistent with the evidence of the defendants, where it was conceded that the deceased and the plaintiff remained in some form of contact throughout the deceased's life, albeit with long gaps between contact.

Obligations or responsibilities of the deceased to the plaintiff, other eligible persons and beneficiaries

115 The deceased's moral obligations to the defendants are not in dispute. His obligation to the plaintiff is at issue in this proceeding.

116 When probate was granted in 2019, the estate comprised cash of $29,662, and Clarke Street, which was then estimated to be worth approximately $750,000. Clarke Street is unoccupied. It appears to be the intention of the defendants that it be sold, and the proceeds of sale to be distributed between them equally.

117 The parties were unable to agree on the value to be attributed to Clarke Street for the purposes of the proceeding. The plaintiff contended that the estimate from the date of death, 7 April 2019, should be adopted, while the defendants seek to rely upon the estimate of $675,000 from the valuation dated 22 October 2020.

118 The plaintiff objects to the valuation on the basis that it is hearsay and is an expert report served out of time and not in accordance with the expert witness code of conduct. Further, the probative value of the letters of appraisal in May 2020 should be doubted. He contends that the value attributed to Clarke Street in the inventory of assets should be adopted by the Court, or alternatively, that the value should be no less than the average of the inventory valuation and the mid-point of the appraisals, that is, $723,833.

119 In seeking to rely upon the October 2020 valuation, the defendants argue that it was not obtained as expert evidence. Rather, it was sought to inform them generally as to what Clarke Street may be worth given recent changes in the property market.

120 There is a degree of uncertainty in the property market as a consequence of the COVID-19 pandemic. The letters of appraisal from May 2020 indicate that the value of Clarke Street may have decreased since April 2019. However, the appraisal on behalf of RayWhite was 'kerbside' only. The second appraisal, which involved an inspection, estimated the value to be in the range of $680,000 to $738,000. The valuation dated 22 October 2020 was $675,000. The inventory estimate is over 18 months old and its probative value has been undermined by the COVID-19 pandemic. Having regard to the various estimates and to the effect of the pandemic, it appears prudent to adjust the estimated value of Clarke Street by averaging the initial inventory estimate, with the midpoint of the second letter of appraisal, and the October 2020 valuation which leads to an estimated value of approximately $711,000.

121 As the plaintiff contends, it should be accepted that the cash distributions made to the defendants should be added back to the estate. After deducting the expenses attributed to maintaining Clarke Street, approximately $24,162 remains, making the total asset pool of the estate an estimated $735,162. The only liability at present is the defendants' legal costs estimated at $55,031. While such an amount may be considered on the high side in proportion to the value of the estate, for the purposes of the analysis that sum is used. As such, the current net estimated value of the estate is $680,131.

The financial resources, including needs and earning capacity, of the plaintiff, any other eligible person and beneficiary of the estate

122 The financial positions of the plaintiff and defendants are set out above. It is apparent that the plaintiff, while owning his unencumbered home and having $45,000 of superannuation, survives on a Centrelink income of $620 per fortnight. He has no cash reserves to address unexpected financial challenges, such as house or car repairs.

123 Krysy does not own any property and has significant health challenges, although he does have assets in the form of cash and shares to the value of $266,000.

124 Helen is in a comparably more secure position, having a 75 per cent interest in a property worth $940,000 and encumbered by a $100,000 mortgage, superannuation of $150,000, and an income of $3,000 per fortnight after tax. She has also been afforded some financial assistance from Mr Koelmeyer. However, she also has two children who attend private school and are in need of mental health services, although the cost associated with the latter has not been specified.

Any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate

125 The plaintiff was diagnosed with provisional post-traumatic stress disorder and severe depression and anxiety in 2011. In 2013, the suggestion of his psychologist was that he be considered for psychiatric care, and he deposes that in 2014, he was taking anti-depressants. While the plaintiff refers to ongoing mental health issues, these appear to be successfully managed currently with exercise and dietary measures rather than medication. The plaintiff's back and leg pain contributed to his cessation of work in 2012, but this has reduced since and he is currently capable of going bike riding and hiking. The only medication that he refers to taking is that for hypertension.

126 Krysy has longstanding and significant health issues such that his functions of daily life are impaired. His needs in this regard will be ongoing, and it may be inferred that they will increase as he ages.

Any contribution of the plaintiff to the building up of the estate or the welfare of the deceased or deceased's family

129 The principal asset of the estate is Clarke Street, which was purchased after George Street was sold. There is no evidence that the plaintiff contributed to the accumulation of those assets or otherwise to the finances of the family. It is accepted that the plaintiff:

(a) provided some assistance to Krysy during his primary school years;

(b) assisted Helen to move in around 2003 during her separation;

(c) was in greater contact with Stella prior to her period of illness; and

(d) took the deceased out to lunch on occasions after Stella's death.

Otherwise the plaintiff did not contribute to the welfare of the deceased or the family.

Any benefits previously given by the deceased to any eligible person or any beneficiary

130 The deceased gifted $10,000 to the plaintiff and Mary when they moved into their Keilor Downs home in around 1990. Additionally, the deceased and Stella also provided the plaintiff with accommodation in 2003 for around a six month period.

131 Although the evidence is limited, Helen made reference to Mr Koelmeyer assisting with her daughters' school fees since her parents had died. By inference, it may be that the deceased and Stella assisted Helen with the payment of her daughters' school fees to an unknown degree.

132 Krysy deposes that around the time of Yolanda's christening, the deceased bought him a new motor vehicle.

Whether the plaintiff was being maintained by the deceased

133 The plaintiff was not being maintained by the deceased.

The liability of any other person to maintain the plaintiff

134 No other person is liable to maintain the plaintiff.

The character and conduct of the eligible person or any other person

135 Much of the focus of the defendants' evidence is directed toward the conduct of the plaintiff in choosing to have little contact with the family, arguing with the deceased and failing to visit his parents when they were ill. Emphasis was also placed upon events in the immediate hours after Stella's death.

136 The plaintiff's conduct ought be viewed in light of the evidence regarding the abuse that he sustained in his formative years. He did not deny that he threw a table at the deceased, ran away from home, failed to send Christmas cards and attend special occasions in his early years. It is also accepted that at times the plaintiff may have instigated conflict, such as the incident with Mary in front of Clarke Street. However, the evidence also demonstrates that he sought to return to the family, provided some assistance to Krysy in getting ready for school, and tried to maintain communication with Helen. Additionally, after leaving school he managed to find work and support himself.

137 The deceased's conduct at the plaintiff's wedding, the evidence of which is accepted, humiliated and embarrassed the plaintiff, triggering a period of limited contact between the plaintiff and deceased. This appears to have been compounded by the events at Yolanda's christening. While the defendants suggest that the plaintiff failed to inform his parents of Mary's two subsequent pregnancies, it appears that at least with the first pregnancy, the timing was close to the two years after the christening in which the plaintiff admits to having no contact with his parents. Thereafter, however, he visited his parents with his young children. In the subsequent period of absence from his parents' lives, the plaintiff describes working long hours, in association with financial, occupational and family stressors. It was in this period that he reported mental health difficulties to his medical practitioner, including in relation to his experience of violence as a child.

138 After his separation from Mary, the plaintiff suffered a physical assault, subsequent to which his parents provided him with support and accommodation. In light of the history between the two, it is unsurprising that the plaintiff and deceased argued when living together. The evidence of Ms Leeds and Krysy is that Stella and the deceased became unhappy with the plaintiff's contribution toward, and participation in, the household. In this regard, if there was a period in which the plaintiff and deceased were civil and watched movies together, as the plaintiff contends, it was short lived. Notably, however, it was during this same period that the plaintiff assisted Helen to move her furniture.

139 Of significance, the plaintiff failed to visit his parents in periods that they were unwell. Regarding the period around 2005 when Stella was ill, his explanation is that he did not visit as he had 'a lot going on in his life'. While such conduct may be questionable, as well as upsetting the deceased, the evidence of Krysy and Helen is that the plaintiff had increased telephone contact with Stella around this time.

140 The plaintiff's failure to attend the hospital in the hours after Stella's death, after confirming that he would in Helen's initial telephone call, again upset the deceased. On the one hand, it suggests a lack of love, concern and care for the deceased and his siblings. On the other, it is apparent that of all his family members, the plaintiff's contact was more with Stella. That fact, including his chequered history with the deceased and his siblings, needs to be given weight when considering his response to the news of Stella's death. On the whole, it cannot be concluded that his conduct in this regard was callous or hostile, but it was upsetting to the deceased.

141 Subsequent to Stella's death, the plaintiff visited the deceased on at least two occasions, and although their contact thereafter appears to have decreased, he maintained very limited telephone contact.

The effects a family provision order would have on amounts received from the deceased's estate by other beneficiaries

142 Any provision awarded to the plaintiff will reduce the amounts received by the defendants upon the sale of Clarke Street.

Did the deceased have a moral duty to provide for the plaintiff's proper maintenance and support?

143 In weighing up all of the factors, the task of the Court is to place itself in the position of the deceased and ask whether the wise and just testator, judged according to community standards, would have thought that it was her or his moral duty to provide for the plaintiff. That is, to determine whether a fair and reasonable member of the community would have thought it her or his moral duty to do so.

144 As noted, the deceased and plaintiff had a difficult relationship, marked by lengthy periods of limited contact. The plaintiff's childhood was particularly unsettled, at least in part because of the actions of the deceased. No doubt this contributed to the subsequent distance between the plaintiff and his family. At times, both the deceased and plaintiff contributed to particular instances of conflict. Of particular significance in the plaintiff's early adulthood was the negative conduct of the deceased at the plaintiff's wedding and Yolanda's christening. Despite such conflict, the evidence discloses that the plaintiff sought to maintain some contact with his parents and relied upon them at times. This included visiting with his young children, having lunches when he was a delivery driver, telephoning Stella, living with them for a period, visiting the deceased after Stella's death and telephoning him on occasions. Moreover, at times the deceased and Stella provided the plaintiff with financial, practical and emotional support. Krysy also suggested that the deceased may have sought to reconcile with the plaintiff in the period after Stella's death, although his evidence was inconsistent in this regard.

145 The evidence does not establish a total absence of a relationship or permanent estrangement. That the deceased sought to exclude the plaintiff from any benefit by the terms of his will and did not want the plaintiff to know of his death, sheds light on his perception of the relationship over the last two years of his life. However, it fails to acknowledge the previous decades of a subsisting, although difficult relationship, despite repeated periods of conflict and distance.

146 The conduct of the plaintiff when his parents were ill and at the time of Stella's death is far from ideal. It upset the deceased and is likely to have reaffirmed the distance between the two. However, it is to be viewed against the lengthy history of tension, and the emotive circumstances of the occasion. While the plaintiff's conduct may lessen any moral duty that the deceased owed him, it was not so callous or hostile that it eliminated it entirely.

147 At the time of death, the plaintiff had not been employed for seven years, having originally stopped work on account of his back and leg pain. It would have been known, or reasonably known, to the deceased that although the plaintiff owned his own home, he relied upon Newstart for an income. As an adult child, the plaintiff had a need for a fund to protect against the ordinary vicissitudes of life. Krysy and Helen also had competing needs to be weighed against that of the plaintiff. They also contributed to the deceased's welfare in his declining years. The estate, estimated at a value of $779,000 at that time, was of a size that could potentially have recognised the deceased's obligation to the defendants, as well as that to the plaintiff.

148 In weighing up all of the relevant factors, a wise and just testator in the position of the deceased would have viewed it as her or his moral duty to make provision for the proper maintenance and support of the plaintiff. Although the nature of the relationship between the deceased and plaintiff, and plaintiff's conduct, lessened that duty, it did not nullify it entirely. Nor was it entirely outweighed by the defendants' competing claims.

Does the will fail to make provision for the proper maintenance and support of the plaintiff?

149 The will does not provide for the plaintiff at all. His circumstances are such that he is in need of a fund to provide a degree of financial security, particularly given his age and limited ability to earn income. Proper maintenance and support would have addressed this need, weighed against the size of the estate and the defendants' competing claims. The estate was of a size that it could accommodate the competing claims and defendants' needs. In not providing for the plaintiff at all in his will, the deceased failed to make adequate provision for the plaintiff's proper maintenance and support.

What provision would provide for the proper maintenance and support of the plaintiff?

150 The plaintiff argues that a pecuniary legacy of $150,000 would provide for his proper maintenance and support, forming a fund to protect against contingencies. The defendants did not make any submissions in the alternative, should their primary case regarding the plaintiff's moral duty not succeed.

151 In determining the amount of any family provision order, the Court must have regard to: the degree to which the deceased had a moral duty toward the plaintiff; the degree to which the will failed to make adequate and proper provision and, the degree to which the plaintiff is not capable, by reasonable means, of providing for his proper maintenance and support.[46] Additional considerations are the factors set out in s 91A of the Act. What is required is an instinctive synthesis, taking account of all of the relevant factors at the time of the trial.[47] The discretion is to be exercised carefully and conservatively, consistent with prevailing community perceptions of the provision to be made by a wise and just testator.[48]

152 The plaintiff is in necessitous circumstances, both in that he relies upon Newstart for income and has no cash reserve to protect against the ordinary vicissitudes of life. While he has $40,000 in superannuation, which in coming years can be drawn upon, such a source of income affords little for financial contingencies. In such circumstances, his ability to provide for his own proper maintenance and support is particularly limited. In effect, should he need to access a cash reserve, he would have to forego future income from superannuation or attempt to access his equity in Wyndam Vale. The moral duty of the deceased toward the plaintiff is reduced on account of the lengthy periods of limited contact between the two and his conduct when his parents were ill, after Stella's death, and in the deceased's declining years. He contributed little to the deceased's welfare. However, it is noted that the deceased's conduct contributed to the relationship difficulties between the two, limiting the degree to which his moral duty was reduced.

153 It was the intention of the deceased, as expressed in the will, to benefit the defendants equally. Krysy has assets of $266,000 in the form of cash and shares, and relies upon the disability pension. He has significant health issues and deposes to living frugally. Provision from the estate may afford him the opportunity to purchase property, or otherwise give him greater financial security in addressing his health challenges and any vicissitudes of life.

154 Helen is in less necessitous circumstances, having a fortnightly income of $3,000 after tax, a significant property interest and superannuation of $150,000. However, she has limited savings, two school-age daughters, and relies on Mr Koelmeyer to assist with school fees.

155 In adopting the figure of $711,000 as the estimated value of Clarke Street, there will be the costs of sale that will reduce the realised value of the property by at least $20,000. As such, after sale, the net value of the estate may be $660,131 or less. A pecuniary legacy of $150,000 to the plaintiff, as he seeks, would result in the defendants each receiving approximately $255,065 or less. A legacy of such a size would give the plaintiff greater financial security while acknowledging the reduced degree to which the deceased owed him a moral duty. However, in the Court's view, it fails to afford enough weight to the will and the competing claims of the defendants, particularly the needs of Krysy. In this regard, it is noted that the Court's discretion is to be exercised carefully and conservatively. In all of the circumstances, a wise and just testator would view the amount of $110,000 as adequate and proper. Such a sum is capable of providing the plaintiff with a financial buffer, while at the same time giving due consideration to the competing claims of the defendants and the terms of the will, including the intention of the testator that Krysy and Helen should benefit equally.

156 At the time of death, the deceased had a moral duty to provide for the plaintiff's proper maintenance and support. In not providing for him at all, the will fails to make adequate provision for the plaintiff's proper maintenance and support. Pursuant to s 91 of the Act, the Court orders that provision be made for the plaintiff out of the estate of the deceased by the payment of a pecuniary legacy of $110,000.

[1] Administration and Probate Act 1958 (Vic) ('the Act') s 91(1)(a), (c)-(d).

[2] Davison v Kempson [2018] VSCA 51, [31] (Tate, Santamaria and Beach JJA); Kronemann v Papaioannou [2020] VSCA 275, [9] (Kyrou JA and Macaulay AJA).

[5] Ibid s 91(2)(d); Brimelow v Alampi [2016] VSC 135; (2016) 50 VR 219, 224 [18] (McMillan J); Firth v Reeves [2019] VSC 357, [59] (Dixon J); Re McKenzie [2017] VSC 792, [53] (McMillan J).

[8] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 199-200 [12] (Gleeson CJ); Re Allen (deceased); Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218, 220 (Salmond J); Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478-9 (Lord Romer). See also Joss v Joss [2020] VSC 424, [8] (Hollingworth J); Collicoat v McMillan (1999) 3 VR 803, 818 [43] (Ormiston J); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 75-6 [13] (Chernov JA); Baxter v Baxter [2014] VSC 377, [53] (McMillan J); S Villios and N Williams, 'Family Provision Law, Adult Children and the Age of Entitlement' [2018] AdelLawRw 11; (2018) 39 Adelaide Law Review 249, 250.

[9] Blair v Blair (n 8) 75-6 [13] (Chernov JA), 84 [41] (Nettle JA); Schmidt v Watkins [2002] VSC 273, [12] (Harper J). See Re Rattle; O'Neill v Equity Trustees Ltd [2019] VSC 565, [23]-[27] (Moore J). Although its use as a reference point was not without doubt: see, eg, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 209 (Mason CJ, Deane and HcHugh JJ); Coombes v Ward [2004] VSCA 51, [12] (Winneke P); Gabrielle v Gabrielle [2015] VSC 115, [50] (Kaye JA); Forsyth v Sinclair [2010] VSCA, 147 [61]-[67] (Neave JA).

[10] Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

[11] Collicoat v McMillan (n 8) 818 [43], 819 [45] (Ormiston J).

[12] See DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) [4.21]; Explanatory Memorandum, Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (Vic) 5; Brimelow v Alampi (n 5) 223 [14] (McMillan J); Re Marsella; Marsella v Wareham [2018] VSC 312, [77], [81] (McMillan J); Re Williams; Smith v Thwaites [2017] VSC 365, [14]-[17] (McMillan J).

[13] Bosch v Perpetual Trustee Co Ltd (n 8) 478-9 (Lord Romer).

[14] Brandon v Hanley [2014] VSC 103, [16] (McMillan J); Forsyth v Sinclair (n 9) [61]-[67] (Neave JA).

[15] Kronemann v Papaioannou (n 2) [42] (Kyrou JA and Macaulay AJA).

[16] Re Williams; Smith v Thwaites (n 12) [57] (McMillan J); Re Janson; Gash v Ruzicka [2020] VSC 449, [13] (McMillan J). See also Ross v Ross [2019] VSC 820 [36] (Moore J).

[17] Re McKenzie (n 5) [50] (McMillan J).

[18] Ibid. See also Brimelow v Alampi (n 5) 223 [15] (McMillan J).

[19] Brimelow v Alampi (n 5) 223 [15] (McMillan J).

[20] Walsh v Walsh [2013] NSWSC 1065, [121] (Hallen J) (citations omitted).

[21] Vincent v Rae [2006] VSC 346, [97] (Hansen J), citing Kleinig v Neal (No 2) [1981] 2 NSWLR 532, 540 (Holland J).

[22] Jones (A pseudonym) v Smith (A pseudonym) [2016] VSCA 178, [40] (Whelan, Ferguson and Kaye JJA); Joss v Joss [2020] VSCA 424 [23] (Hollingworth J).

[23] Gabrielle v Gabrielle (n 9) [56] (Kaye JA).

[24] Ibid; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 156 Mason J).

[25] Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, 666 [40] (Basten JA).

[26] Malone v Runge [2012] NSWSC 1032, [68] (Hallen AsJ); Brandon v Hanley (n 14) [24] (McMillan J).

[27] Malone v Runge (n 26) [68] (Hallen AsJ).

[29] Ibid, citing Ford v Simes [2009] NSWCA 351, [71] (Bergin CJ).

[30] Davison v Kempson (n 2) [39] (Tate, Santamaria and Beach JJA). See also McKenzie v Topp [2004] VSC 90, [39] (Nettle J).

[31] [1938] HCA 34; (1938) 60 CLR 336.

[32] Baxter v Baxter (n 8) [59] (McMillan J).

[33] Re Marsella; Marsella v Wareham (n 12) [82] (McMillan J) (citations omitted).

[34] Jones (A pseudonym) v Smith (A pseudonym) (n 22) [38] (Whelan, Ferguson and Kaye JJA) (emphasis in original).

[36] Davison v Kempson (n 2) [36] (Tate, Santamaria and Beach JJA).

[37] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Re Schlink; Keane v Corns [2020] VSC 180, [31] (McMillan J).

[38] Davison v Kempson (n 2) 254 [40] (Tate, Santamaria and Beach JJA).

[39] Prosser v Twiss (n 37) 232 (Lush J); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 130 [8] (Dixon CJ).

[40] Saric v Vukasovic [2019] VSCA 57, [10] (Tate, Niall and Emerton JJA).

[41] Ibid [11] (Tate, Niall and Emerton JJA).

[42] Cf Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 20 (Dixon CJ); Hansen v Hennessey [2014] VSC 20 (Lansdowne AsJ).

[43] [2012] NSWCA 308; (2012) 81 NSWLR 656.

[44] Brandon v Hanley (n 14) [244] (McMillan J).

[45] Citing Brimelow v Alampi (n 5) 223 [15] (McMillan J).

[46] The Act (n 1) ss 91(2)(c)-(d), (4)(c).

[47] Saric v Vukasovic (n 40) [11] (Tate, Niall and Emerton JJA)