Re Janson; Gash v Ruzicka

2 The trial of this proceeding took place on 21 April 2020. The Court concluded that it was unable to make any orders for further provision for the plaintiff as the evidence of her financial circumstances was deficient.[1] The Court provided the plaintiff with a further opportunity to file evidence of her financial circumstances.[2]

4 The plaintiff relied on three further affidavits regarding her financial position. Her first affidavit was sworn on 17 August 2020 ('the first affidavit'), the second on 1 December 2020 and the third on 26 April 2021. The affidavits seek to outline the plaintiff's assets and liabilities, her income and expenses, and her future financial needs.

5 The plaintiff deposes to her assets and liabilities with her husband, David Gash, as follows:

Assets

Plaintiff's assets Bank account (as at 20 April 2020) $3,214

Husband's assets Bank account (as at 20 April 2020) $2,319

Motor Vehicle $2,600

Joint assets Home contents $4,000

Cash on hand $5,520

Liabilities

Joint liability Loan from daughter $192,367

(Naomi Bant)

6 The two bank account balances are substantiated by bank statements exhibited to the first affidavit. The value of the motor vehicle, the home contents and the cash on hand are estimates provided by the plaintiff.

7 The plaintiff deposes to neither herself nor her husband possessing any superannuation. This is purported to be substantiated by two documents showing the transfer of the $5,098.11 balance of the 'David Gash and Ellen Gash ATF Safe Haven Superannuation Fund' to 'EG' - presumably, the plaintiff - on 24 October 2018 and the closure of the account on 25 October 2018.

8 The purported loan from the plaintiff's daughter, Naomi Bant ('Naomi'), is not documented. The plaintiff seeks to substantiate it through a summary spreadsheet and a series of documents piecing together the arrangement. Some of the documents referred to in the summary spreadsheet are illegible or have not been annexed, nevertheless the plaintiff still sought to rely on them.

9 The plaintiff deposes that Naomi began to assist her and her husband from around 2007, when they began to face financial difficulties. The plaintiff deposes to their financial problems arising largely as a consequence of their employee's theft, which was said to have impacted their income and ability to pay their mortgage. The plaintiff deposes to this culminating with the voluntary administration of their business and the personal bankruptcy of herself and her husband by debtor's petition in 2015. The plaintiff deposes to the bankruptcy being extinguished in 2018. No documents are exhibited to substantiate their personal bankruptcy and the voluntary administration of their business.

10 The plaintiff deposes that Naomi is not presently demanding repayment of the purported loan. In cross examination, the plaintiff claimed that she was currently repaying the purported loan in monthly $200 amounts and was uncertain if she would seek to repay Naomi the balance if she received a large sum of money.

11 Many of the later transactions forming part of the purported loan relate to premium payments for an AIA Australia Limited ('AIA Australia') life insurance policy over the life of the plaintiff's husband ('the life insurance policy'), which the plaintiff deposes that Naomi began to pay from 2015.

12 The first $8,000 of the purported loan is not substantiated, as the plaintiff did not exhibit any documents to such effect. The next $10,000 is sought to be substantiated by a record on a bank account statement of Naomi where two transfers of $0.99 and $9,999.01 were made with the reference 'Double Haven' on 6 April 2009. The plaintiff deposes that Double Haven Pty Ltd ('Double Haven') was a trading entity of two business that the plaintiff owned, being North Melbourne Lotto and Super Lotto.

13 The next $20,000 is sought to be substantiated by a bank account statement of Naomi showing $2,000 being credited to the account on 25 May 2011 with a notation '$2k for m&dad'. This was exhibited alongside a cheque stub with the date 25 May 2011, the notation 'AXA (MUM/DAD - LIFEINSUR)', the amount of $20,000 and the number 000034. Also exhibited was an AXA Australia life insurance policy statement of Naomi dated 26 April 2011, insuring the life of the plaintiff's husband, indicating an amount of $21,356.58 as the premium, with a handwritten note '25/5 NAB Cheq034 $20,000.00' and an Australia Post receipt dated 26 May 2011 for a cheque of $21,356.58 to AXA Australia.

14 The next $20,000 is sought to be substantiated by a bank account statement of Naomi showing two debits of $10,000 on 20 and 21 December 2011 respectively, with a hand-drawn star next to these debits with the notation 'Dad'. The plaintiff also exhibited bank account statements for Double Haven, which show corresponding credits of $10,000 on 20 and 21 December 2011 from Naomi, to substantiate this amount.

15 The next $25,000 is sought to be substantiated by a bank account statement of Naomi showing a debit of $10,000 on 23 September 2013, a debit of $5,000 on 18 November 2013 and a debit of $10,000 on 19 November 2013, all being described on the statement as 'Double Haven'. The plaintiff also exhibited bank account statements for Double Haven, which show corresponding credits of $5,000 and $10,000 respectively on 18 and 19 November 2013 from Naomi, but which do not show transactions for September 2013.

16 The next $20,000 is sought to be substantiated by a bank account statement of the plaintiff showing two credits to the account on 20 and 21 August 2015 of $10,000, with the transactions described on the statement as 'Mum-Naomi'.

17 The plaintiff's summary spreadsheet claims that Naomi paid a premium of $16,798 for the life insurance policy on 7 December 2015, using a credit card that has now been closed ('the Breeze Mastercard'), and that the plaintiff and her husband had made repayments of $2,798.14, $1,425 and $2,840 in 2016, $2,251 in 2017, $1,789 in 2018 and $1,258 in 2019 on the Breeze Mastercard, making the balance $4,436.86. Statements to substantiate this payment by Naomi and the subsequent repayments for the Breeze Mastercard have not been exhibited and the only document exhibited regarding the Breeze Mastercard was a document indicating that the account was closed on 24 June 2020.

18 The spreadsheet also refers to an amount of $4,773 that the plaintiff and her husband owe Naomi. This amount is sought to be substantiated by a credit card statement of Naomi for a different credit card ('the HSBC Platinum credit card') for the June-July 2020 period indicating an opening balance of $4,773 and a closing balance of zero. It appears that this amount represents the same debt of $4,436.86 outlined in the preceding paragraph, because it appears in the summary spreadsheet in connection with the 7 December 2015 life insurance payment, and the plaintiff notes 'But I will use the lower figure'. However, the documents exhibited correspond to different credit cards, being the Breeze Mastercard and HSBC Platinum credit card, that have different account numbers.

19 The plaintiff sought to substantiate the amount of $19,536.12 by exhibiting a payment confirmation email from Australia Post Bill Pay to Naomi referencing a bill paid to AIA Australia for a policy payment of $19,536.12 on 28 November 2017.

20 The plaintiff sought to substantiate the amounts of $10,826, $4,000 and $8,002.29 by exhibiting payment confirmation emails from Paypal to Naomi referencing payments of these amounts to Australia Post Bill Pay, which were described as 'AIA Australia Ltd - Policy Payment', on 22, 23 and 27 November 2018 respectively.

21 The plaintiff sought to substantiate the amount of $26,228 by exhibiting a policyholder summary statement from AIA Australia dated 5 December 2019, confirming that the policy had been paid for until 11 December 2020, with the total annual premium being $26,228.

22 The total amount of the purported loan that the plaintiff has sought to substantiate through documentation is $158,029.27, rather than the amount referred to in her first affidavit of $192,367.

23 Naomi deposes that she is no longer paying for premiums on the life insurance policy. The plaintiff exhibited an email confirmation from AIA Australia dated 23 April 2021, which indicates that the life insurance policy lapsed on 11 February 2021.

24 The plaintiff deposes to the existence of a trust ('the Safehaven trust'), which became the beneficiary and owner of the life insurance policy on 7 March 2015 and exhibited documents indicating this transfer. These documents indicate a transfer of the policy to KO2 Pty Ltd (ACN 067 572 187) ('KO2 Pty Ltd') as trustee of the Safehaven trust on 7 March 2015 and a second transfer to Naomi as trustee of the Safehaven trust on 12 July 2015. The plaintiff also exhibited ASIC documentation lodged to de-register KO2 Pty Ltd as a company on 2 November 2015.

25 The plaintiff exhibited a copy of the original deed of the Safehaven trust dated 22 December 1994. The schedule of the deed identifies the plaintiff and her husband as the primary beneficiaries, the appointors and the guardians of the Safehaven trust, and First Haven Pty Ltd (ACN 067 572 187) ('First Haven Pty Ltd') as the trustee.

26 The plaintiff also exhibited a deed of appointment dated 12 July 2015 that purports to amend the original deed to make Naomi the appointor, guardian and trustee of the Safehaven trust, thereby replacing First Haven Pty Ltd as the trustee. Naomi has executed these documents in her personal capacity and as a director of First Haven Pty Ltd.

27 First Haven Pty Ltd and KO2 Pty Ltd are the same company, as indicated by their identical ACN, and the plaintiff deposes that the name changed in or around 2002. No documents substantiating the change of the company name were tendered by the plaintiff.

28 Evidence regarding the assets comprising the Safehaven trust or historical distributions of income or capital have not been provided. The plaintiff deposes to never having made contributions to the Safehaven trust. The plaintiff also refers to the trust as 'Naomi's Family Trust' in her affidavit.

29 Although the plaintiff deposes to receiving $909.50 per fortnight in Centrelink benefits, the benefits comprising a carer's allowance ($131.90), a carer's pension payment ($648.15), rent assistance ($65.74), a pension supplement ($52.46) and an energy supplement ($10.60) total $908.85, which is substantiated through exhibited computer-generated statements showing the amount paid on 13 November 2020. The plaintiff also deposes to receiving an annual carer's allowance bonus of $1,200, but this is not substantiated in the exhibited documents.

30 The plaintiff deposes to her husband receiving $777.60 per fortnight in Centrelink benefits, comprising a disability support pension ($648.70), rent assistance ($65.80), a pension supplement ($52.50) and an energy supplement ($10.60), which is substantiated through exhibited computer-generated statements showing the amount paid on 13 November 2020.

31 The plaintiff deposes that her husband was diagnosed with multiple sclerosis in 2016 and exhibited a VicRoads medical certificate dated 23 November 2020 signed by Dr Olga Skibna stating this diagnosis. No further evidence as to her husband's medical condition has been provided by the plaintiff.

32 The plaintiff deposes to receiving $32,483.46 in income between 1 May 2019 and April 2020 through boarding overseas students in a homestay program. She has provided this service for approximately four years. The plaintiff deposes that this income is not taxable, does not affect her or her husband's entitlements to Centrelink benefits and they receive the rental payments in cash. The plaintiff initially sought to substantiate this income through exhibiting spreadsheets which calculated rental payments received from students throughout this period. After the defendant made submissions highlighting the lack of documentary evidence of this income, the plaintiff exhibited an executed homestay provider agreement with Firbank Grammar dated 17 August 2016, an executed homestay provider agreement with Elwood College dated 31 May 2018 and a homestay guidelines booklet from Elwood College. The documentation exhibited from Elwood College indicates that the homestay accommodation rate was increased to $330 per week, including Internet, and the holding summer rate was $150 per week as of January 2019. The plaintiff also tendered emails containing screenshots of the spreadsheets exhibited to the first affidavit, that were emailed as receipts, seemingly to the parents of the homestay students.

33 The plaintiff deposes that this income fluctuates and she is unsure how long she will be able to provide the service in the future, given her husband's health and the requirement of a three bedroom house in an area close to schools providing the homestay program. In cross examination, the plaintiff claimed that it is her intention to continue to provide homestay and that there are no current medical issues that would prevent her from doing so.

34 In an exhibit to the first affidavit, the amounts of $54 for an Optus refund, $200 for a rebate of a travel allowance and $1,500 for government stimulus are noted as 'E/O credits', but no documents have been exhibited to substantiate these amounts.

35 The plaintiff deposes that her rent expense is $3,550 per calendar month and that this amount has not increased since September 2007. The plaintiff exhibited copies of lease agreements dated 21 September 2011 and 9 September 2014, and deposes that they currently occupy the property on a month-to-month tenancy and their occupation is not secure, should the landlord wish to sell.

36 In addition to rent, the plaintiff deposes to the following expenses for the period 1 May 2019 to 30 April 2020:

Gas $608

Water rates $75

Electricity $758

Groceries $9,555

Motor vehicle costs $2,480

Phone/Internet $1,194

Ambulance insurance & MBA subscription $197

Presents, clothes, haircuts and sundries $1,764

Chemist $323

Legal fees $11,265

Homestay costs $3,597

Credit card $1,535

Washing machine service call $150

Second hand washing machine $800

Teeth whitening for Court $297

Total $34,598

37 The expenses for gas, water rates and electricity have been substantiated by invoices tendered by the plaintiff. However, an examination of the invoices indicates that the actual cost of gas, water and electricity is substantially higher than the amount deposed to by the plaintiff. The cost of gas in the relevant period from May 2019 to 30 April 2020 was $736.77, electricity was $1,778.57 and water rates $230.10. The expenses for ambulance insurance, the Masters Builders Association (MBA) subscription, legal fees and the second hand washing machine have also been substantiated by invoices tendered by the plaintiff. Only $1,226.82 has been substantiated by invoices for the motor vehicle costs and only $99 for the phone/Internet costs. The homestay costs are deposed by the plaintiff to be an apportionment of gas, water and electricity costs and the plaintiff exhibits calculations for previous financial years to such effect. However, the evidence does not explain how the amount of $3,597 was determined. The remaining expenses, namely groceries, presents, clothes, haircuts, sundries, chemist, credit card, washing machine servicing and teeth whitening for attending court have not been substantiated.

38 An amount of $400 of stolen money is listed as an expense of the plaintiff in an exhibit, however, there are no documents substantiating this claim.

39 The plaintiff deposes to her husband being approved for the NDIS on 7 November 2019 and exhibited the approval letter. The NDIS annual funding provides for $800 of consumables (such as replacement walking sticks, specialised footwear and cooling garments), $12,535.32 for daily activities (such as cleaning, house and/or yard maintenance and assistance with personal domestic activities), $5,602 for social, community and civil participation (such as assistance to allow for access to the community), $1,784 for transport (such as Uber or taxi costs) and $16,489.15 for capacity building daily activities (such as therapy, assessments and skill development).

40 The plaintiff deposes that these are all maximum amounts that her husband is entitled to for reimbursement and, if reimbursements are not claimed, the allocated allowance is foregone, aside for the transport funding, which is paid as a fortnightly amount regardless of whether it is utilised for transport.

41 In cross examination, the plaintiff conceded that she did not disclose her husband's approval for NDIS funding at the previous hearing on 21 April 2020, even though her husband was approved on 7 November 2019.

42 The plaintiff deposes to the following summary of her future needs:

Motor vehicle and on road costs $32,000

Furniture and household goods $43,500

An amount for contingencies $250,000

Purchase price of a suitable home $1,200,000‑-$1,500,000

43 The plaintiff deposes to being in a precarious financial position due to her reliance on being her husband's carer and receiving an allowance for such, and her eligibility for the aged pension only arising when she turns 67, which at the time of swearing the first affidavit was over three years away.

44 The plaintiff deposes to requiring a reliable vehicle, which is suitable for her husband to enter and exit, that is cheap to run and insure. The plaintiff exhibited screenshots from the website Carsales showing advertisements for various cars ranging from $21,950‑ to $34,990.

45 The plaintiff deposes to requiring new lounge furnishings, dining chairs, a refrigerator, a mattress, a television, bed linen and other white goods - which she estimates to cost around $43,500 - although she has not sought to substantiate the amounts claimed for these items, only providing photographs of her current lounge furniture and refrigerator. The plaintiff has also not sought to substantiate the valuations for stamp duty or removalist costs.

46 The plaintiff deposes to requiring a two to three bedroom home in the areas of Gardenvale, Brighton, Brighton East, Hampton or Sandringham. These suburbs are selected on the basis that her husband receives treatment at the Alfred Hospital and the Alfred Caulfield Hospital and ideally they wish to live in an area zoned for treatment at these hospitals. The plaintiff also deposes that this will allow her to continue to provide homestay accommodation, reduce her expenses and live close to Naomi. The plaintiff exhibits screenshots from the website Domain, which provides data on median prices for homes in some of these areas, to substantiate the valuation provided in her affidavit.

47 Part IV of the Administration and Probate Act 1958 (Vic) ('the Act') provides the Court with the power to order 'that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person'.[3] Pursuant to s 91(2) of the Act, the Court must not make a family provision order under s 91(1) unless it is satisfied that:

(a) an applicant is an eligible person;

(b) in the case of certain types of 'eligible persons', that the person was wholly or partly dependent on the deceased for their proper maintenance and support;

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

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

48 There is no dispute that the plaintiff is an eligible person, and as the adult child of the deceased, does not fall into the category of eligible persons the subject of s 91(2)(b).

49 Pursuant to s 91(4)(a) and (b) of the Act, in determining the quantum 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 an applicant, and the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of that person.

50 Pursuant to s 91(5)(a) of the Act, the amount of provision must not be greater than is necessary for an applicant's proper maintenance and support.

51 In making a family provision order, s 91A(1) provides that the Court must have regard to:

(a) the deceased's will, if any;

(b) any evidence of the deceased's reasons for making the dispositions in the will; and

(c) any other evidence of the deceased's intentions in relation to providing for the eligible person.

52 Section 91A(2) of the Act outlines a number of elements that the Court may also take into account:

(a) the relationship between the deceased and the eligible person, including the nature and, if relevant, length of the relationship;

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person, and the estate's beneficiaries;

(c) the size and nature of the estate;

(d) the current and foreseeable future financial resources, including earning capacity and financial needs, of the eligible person, any other eligible person and any beneficiary;

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary;

(f) the age of the eligible person;

(g) any contribution of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased's family;

(h) any previous benefits provided to the eligible person or any beneficiary;

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;

(j) the liability of any other person to maintain the eligible person;

(k) the character and conduct of the eligible person or any other person;

(l) the effect that a family provision order would have on the amounts received from the deceased's estate by other beneficiaries; and

(m) any other matter the Court considers relevant.

53 In determining whether the deceased has fulfilled his or her moral duty, and the extent of any provision to be ordered, the Court must have regard to the relative concepts of 'adequate' and 'proper'. Adequacy is assessed by reference to the Court's inherent knowledge and inquiry into current social conditions and standards.[4] In this context, it is necessary that an applicant demonstrate need in order to be successful in his or her claim; mere proof of a moral duty is not in itself adequate.[5] However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is 'not restricted to the requirements of basic necessity or sustenance'.[6]

54 The nature and content of what is adequate provision is a flexible concept, and involves a broad evaluative judgment not constrained by preconceptions and predispositions.[7] Relevant constraints or limiting factors may be that further provision should be made only if, and to the extent that, it is necessary to alter the will to make adequate provision for an applicant's proper maintenance and support,[8] or that any further provision must be limited by balancing the needs of an applicant against the proper claims that a testator recognised needed to be satisfied out of his or her estate.

55 The general principles to be borne in mind when dealing with claims by adult children are succinctly set out by Hallen J in Walsh v Walsh:[9]

(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 ...

(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.[10]

56 Because of the seriousness of the allegation that a testator has abused his or her freedom of testation, the principles concerning the qualities of the proofs required set out in Briginshaw v Briginshaw[11] are applicable.[12]

Factors that must be taken into account in making a family provision order: s 91A(1) of the Act

57 The deceased's will divides his estate into 100 equal parts. One part is bequeathed to the plaintiff. Naomi and the plaintiff's other daughter, Nicole, are each bequeathed one part.

58 The remaining 97 parts of the deceased's estate are distributed as follows: the deceased's other daughter, Vaclava Klempt ('Wendy'), and the deceased's brother, Josef Jandovsky ('Josef'), each receive 30 parts; the defendant, who was the deceased's partner, receives 14 parts; the deceased's niece, Klara Jandovska ('Klara'), receives 12 parts; the deceased's friend, Elena Dolinsky, receives seven parts;[13] the deceased's friends, Janka Banda and Marie Simon each receive one part; and two clubs associated with the deceased's native Czech Republic - Sokol Melbourne Inc and Sumava[14] - each receive one part.

59 In leaving one part of 100 equal parts of his estate to the plaintiff, the deceased directs his trustee:

to provide no further benefit whatsoever under this my Will to my daughter Ellen Gash as she has shown no interest in knowing me and her mother, my late wife Eliska Jandovska, during our lifetime. My said daughter has had no contact with my late wife for a period exceeding 17 years till my late wife's death. I have not seen my said daughter for approximately 25 years now. It has saddened and burdened both my and my late wife's lives that our said daughter Ellen Gash had not contacted my late wife despite knowing that she was suffering from cancer in 1990 and later again in 1999. After my late wife succumbed to cancer my said daughter did not even telephone nor did she attend the funeral. Because of the great pain she has caused my late wife and myself I believe her not to be deserving of any further financial gain after my death.

60 The evidence of Josef and the defendant supports the deceased's sentiments as recorded in his will.

Factors that may be taken into account in making a family provision order: s 91A(2) of the Act

(a) the nature of the relationship, including the length of the relationship

61 The plaintiff deposes to difficulties in her relationship with her parents dating back to her childhood and teenage years with her relationship with her parents in 1980 and 1989 being 'largely positive'. She deposes that her parents showed animosity towards her and her husband from about 1989 or 1990 onwards and they were no longer welcome at her parents' house. She deposes to visiting the deceased at his work premises with her children. Despite attempts by her husband's parents, she was unable to find out the reason for the breakdown in the relationship. She spoke briefly to her mother in 1992. By 1998 she had not spoken to her parents for many years, and deposed that as she had no siblings she could not receive updates on her parents. She deposes that she was not told of her mother's cancer diagnosis in 1990 or 1999. In March or April 2005 she found out that her mother was very ill and sent her get well card with her mobile number. She did not receive a response. The plaintiff deposes to some very limited contact with the deceased towards the end of his life, although the defendant and Josef characterise this as a contrivance by her.

62 Josef deposes to the relationship between the plaintiff and the deceased based on what the deceased and his wife told him in conversations and in letters, as well as what the deceased's close friends told him. He deposes that the relationship between the plaintiff and the defendant was not good over many years, that the plaintiff did not visit her mother at home or in hospital when she was ill and did not attend her funeral. During the deceased's frequent illnesses and hospitalisations the plaintiff paid no attention to his condition, although in 2016 the plaintiff visited the deceased for the first time in more than 27 years but did not offer to help him. Josef confirmed that the deceased died while in his native Czech Republic, however, there was a ceremony in Melbourne for the interment of his ashes in the family vault which the plaintiff did not attend. The plaintiff deposes that she was unaware of the ceremony taking place.

63 The defendant deposes to the lack of any relationship between the plaintiff and each of her parents based on her conversations with the deceased over the period of their relationship. She deposes that the relationship between the plaintiff and the deceased was difficult from as early as the plaintiff's teenage years, with very limited communications between the plaintiff and her parents. The deceased told the defendant that the plaintiff visited her parents on two occasions after her second child was born. All communications between them stopped around mid-1992 after the plaintiff and her husband failed to repay a significant loan amount owing to her parents. Notwithstanding this, the plaintiff and her husband asked her parents for another loan which was refused by the deceased and his wife. From that time onwards, the plaintiff cut her parents out of her life and stopped communicating with them. The deceased was very upset when the plaintiff made no contact with her mother when she was dying in hospital and when she failed to attend her funeral. The defendant deposes that during her ten years with the deceased she saw the plaintiff visit the deceased once in 2016 when she said she wanted to take photos with him. On another occasion in 2016 the deceased showed the defendant some photos of the plaintiff with the defendant. Otherwise the defendant deposes that she was not aware of the plaintiff visiting the deceased again. She also deposes that the deceased never said to her that he was in regular contact with the plaintiff on the telephone in 2015.

64 The deceased's daughter, Wendy, deposes to her warm and loving relationship with the deceased. The deceased and Wendy's mother lost contact with each other after the deceased relocated to Australia where he married and started a new family. After the death of his wife, the deceased searched for Wendy but they did not find each other until 2007. Wendy deposes that from the first time they met in 2007 the deceased told her that he had not seen the plaintiff for over 20 years.

The plaintiff deposes to some very limited attempts to communicate with the deceased prior to his death. The lack of relationship between the deceased and the plaintiff is corroborated by the defendant, the deceased's brother and the deceased's other daughter, in part from their observations and otherwise in discussions with the deceased during his lifetime. In his will the deceased carefully set out his reasons for the provision that he made for the plaintiff. While his reasons are not evidence of the truth of the facts or circumstances set out in his will, they do provide an explanation for the limited provision to the plaintiff.

65 The evidence surrounding the quality of relationship between the plaintiff and the deceased during his lifetime contains significant differences, with the plaintiff contending that it was not as remote as recorded in the deceased's will and as deposed by the deceased's other family members. Recollections of events that took place many years ago often differ, with obvious difficulties arising from fading memories and a witness's tendency to tailor the evidence to suit his or her case. While the versions of the relationship between the plaintiff and the deceased differ between the plaintiff and the witnesses on the defendant's side, it is apparent from the plaintiff's evidence that their relationship was very limited to almost non-existent and they led separate lives with little or no contact with each other from at least 1989 onwards. The relationship between them for most of the deceased's life was virtually non-existent.

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries

66 The plaintiff is an adult child of the deceased. The defendant was, from 2007, the partner and primary carer of the deceased. The deceased has another adult daughter, Wendy. She deposes to a warm and loving relationship with the deceased. The deceased had a moral obligation to provide for the defendant and each of his daughters. The defendant has always acknowledged the deceased had a moral obligation to provide for the plaintiff.[15] The deceased did not have a moral obligation to provide for the remaining beneficiaries in his will.

67 At the first directions hearing in August 2018, the defendant valued the estate at $3,279,324. At the trial in April 2020, the estate was valued at $3,179,462.54. The estate falls to be reduced further by the payment of an executor's commission of two per cent, as agreed by the beneficiaries. The quantum and liability for the costs of the proceeding are yet to be determined.

(d) the current and future financial resources, earning capacity and financial needs of the eligible person and any beneficiary

68 The plaintiff's evidence of her financial resources is that her household income from Centrelink is $45,064.60 per annum, assuming the inclusion of the annual bonus of $1,200. In addition, the plaintiff receives cash funds from homestay students, the total amount of which varies from year to year depending on the availability of students enrolled in the program and the length of their stays. The plaintiff claimed that in the year 1 May 2019 to 30 April 2020, she and her husband received $32,483.46 in cash from homestay students. This income was not substantiated in a satisfactory manner by the plaintiff. She relied on accounting spreadsheets kept by her husband and emails between her husband and what are presumably the parents of homestay students. The plaintiff's husband did not give evidence at the trial yet he was available. The plaintiff acknowledges that the homestay arrangements are not a stable source of income as they are dependent on the plaintiff's housing situation, her husband's health and the availability of students, which may be significantly disrupted due to the Covid-19 pandemic.

69 The plaintiff's further evidence fails to substantiate the precise amount of her expenditure. The plaintiff spends $42,600 per year on rent pursuant to an undocumented month-to-month arrangement of $3,550 per month, which unusually has remained the same over many years. No further evidence was filed by the plaintiff to substantiate the arrangement or the identity of the landlord.

70 During the relevant period, the plaintiff's evidence substantiates that she spent approximately $2,745.40 on utilities, including gas, water and electricity. The plaintiff estimated her annual costs for groceries during the relevant period amounted to approximately $9,555. The plaintiff's evidence as to the costs relating to the upkeep of her car, as well as for telephone and Internet costs, were only partially substantiated.

71 As the plaintiff and her husband's annual expenditure on rent is only slightly less than their income from Centrelink, it appears they rely on their income from homestay students in order to remain in their current home and to finance some of the other everyday costs of living, such as groceries.

72 At the trial in April 2020, the Court accepted that the plaintiff's husband has multiple sclerosis although little evidence had been tendered to the fact of his illness. What is now substantiated is that the plaintiff receives a carer's allowance to care for her husband. If the plaintiff wished to work this would impact her carer's allowance. In addition, presumably directly as a result of caring for her husband the plaintiff has not worked for many years, which impacts her present ability for employment. Apart from her inability to work, the plaintiff did not depose to any costs associated with her husband's illness and it must be assumed that costs associated with his condition are not an expense that will impact the plaintiff's financial situation into the future.

73 The plaintiff and her husband do not have substantial savings, nor do they have any superannuation. There is no evidence as to the value of the Safehaven trust of which the plaintiff and her husband are beneficiaries. The plaintiff purported to have no knowledge of her interest in the trust. No evidence was tendered to show that the beneficial interest had been altered since the deed of settlement naming the plaintiff and her husband as beneficiaries on 22 December 1994. Naomi is trustee, appointor and guardian of the Safehaven trust. The lack of documentation regarding the trust assets leaves a substantial gap in the plaintiff's evidence.

74 The plaintiff's only liability is the loan owed to her daughter for an initial amount of $192,367. The evidence substantiating the loan is made up of records kept by the plaintiff's husband and bank statements from Naomi showing corresponding transfers. The plaintiff expresses a desire to repay the loan and deposes to making small repayments, however, given the arrangement appears to be relatively informal with very small repayments by the plaintiff and her husband, it is likely that this desire is as a result of this proceeding. Although the loan is for a substantial sum, its origins and terms remain unclear and it does not appear to prejudice the plaintiff financially in any significant manner. Although the plaintiff asserts a debt owing to Naomi, there is insufficient evidence to factor such an opaque arrangement into the consideration of the plaintiff's financial need. In reality, the plaintiff and her husband appear to have had the benefit of financial assistance from Naomi over many years and there appears to be no reason why such assistance will not continue.

75 Of the other beneficiaries, the defendant deposes to having limited means.

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary

76 Although the plaintiff deposes to her ill health in her middle age, she does not depose to having any physical, mental or intellectual disability.

(g) any contributions of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased's family

78 The plaintiff did not depose to making any contribution to building up the deceased's estate or to the welfare of the deceased.

(h) any previous benefits to the eligible person or any beneficiary

79 On the evidence relied on by the defendant, the plaintiff and her husband failed to repay a substantial loan owing to the deceased and his wife. In her evidence, the plaintiff denies this. On balance, considering that the breakdown of the relationship between the plaintiff and the parents occurred around this time, the evidence relied on by the plaintiff supports the defendant's position.

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance

80 The plaintiff was not wholly or partially maintained by the deceased.

(j) the liability of any other person to maintain the eligible person

81 Although a partner might usually have primary liability to maintain their spouse, the evidence is that the plaintiff's husband has suffered from multiple sclerosis at least since 2016 and is on a disability support pension. In the circumstances, he is limited in the support he can provide to the plaintiff. However, owing to her husband's annual funding under the NDIS the plaintiff receives indirect financial benefits.

(k) the character and conduct of the eligible person or any other person

82 Although the reasons for the estrangement differ, it is clear that the plaintiff's relationship with the deceased was substantially non-existent and they led separate lives with little or no contact with each other.

(l) the effect that a family provision order would have on the amounts received from the deceased's estate by other beneficiaries

83 Any family provision order in favour of the plaintiff would negatively affect the entitlements of all other beneficiaries as the estate is to be distributed in identified shares and there is no residuary estate. Prior to the trial the defendant made an open offer that the plaintiff receive 10 shares out of the estate, in addition to the one share left to her under the will. The defendant proposes to achieve this by reducing the shares of three beneficiaries: two shares from the deceased's daughter Wendy, five shares from the deceased's brother Josef, and three shares from the deceased's niece Klara. Under this proposal, the shares of the remaining beneficiaries would remain the same.

84 The defendant's solicitors filed an updated calculation of their costs of the proceeding as a result of the plaintiff filing further affidavits to provide evidence that should have been filed before the first trial of the proceeding.

85 The defendant always accepted that the plaintiff was an eligible person under the Act, that the deceased had a moral duty to provide for the plaintiff's proper maintenance and support, and that the will does not provide adequate and proper provision for the plaintiff. The only issue to be determined is the quantum of any further provision for the plaintiff.

86 Despite the defendant repeating the open offer throughout the proceeding, the plaintiff always rejected it. Her position as to what further provision she seeks varied considerably throughout the proceeding. At the first directions hearing in August 2018, the plaintiff sought 80 per cent of the estate, being $2,623,459, with the estate then valued at $3,279,324. In March 2020, the plaintiff revised her claim to 51 per cent of the estate, or $1,672,455.

87 At the trial in April 2020, the plaintiff again revised her claim for provision to at least one third of the estate. As the estate was then valued at $3,179,462, her revised claim was worth at least $1,059,820. That amount was said to be needed to enable her to purchase a home, a new motor car, new furniture and provide a nest egg for the future.

88 At the re-listing of the trial on 3 May 2021, the plaintiff again revised her claim for provision for the fourth time to $1.6-$1.9 million. The defendant reiterated that her previous open offer remained on foot, maintaining that the deceased's moral duty did not extend to buying a house for the plaintiff.

89 In determining what is adequate and proper provision for an applicant the Court has regard to the mandatory and discretionary matters set out in the Act. Every case is different and must be decided on its own facts having regard to the admissible evidence before the Court. The affidavit evidence initially relied on by the plaintiff as to the amount of her further provision was deficient, with the Court initially concluding that it was unable to make any orders as to an amount. The plaintiff was given a further opportunity to file evidence in support of her claim for further provision. The plaintiff's further affidavits detailing her financial circumstances continued to contain many deficiencies. The plaintiff has had two hearings to provide evidence to establish her claim for further provision. Multiple affidavits have been sworn and the plaintiff has given oral evidence on both occasions. The plaintiff's affidavits continued to include matters not supported by documentary evidence. Such contemporaneous evidence is necessary in determining the remaining issue. As any further provision for the plaintiff is determined at the date of trial, it should have been relatively straightforward to establish the plaintiff's financial position and her needs by contemporaneous evidence. In many instances, the plaintiff simply relied on her own estimates, which is of limited assistance.

90 While the plaintiff and her husband once had a comfortable lifestyle, the plaintiff now has limited financial means. She owns no real property and relies on a carer's allowance from Centrelink for the bulk of her income. She no longer works in paid employment, possibly due to her age, but more likely due to her role as her husband's carer. It is likely that she will not work in paid employment for the rest of her lifetime. The plaintiff and her husband have no superannuation and little savings or other assets.

91 In some instances, a long estrangement between a parent and an adult child may weaken or destroy a claim.[16] In Collicoat v McMillan,[17] Ormiston J described the question of character and conduct in relation to adequate provision as follows:

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.[18]

92 It is not necessarily the duty of a testator to provide an adult daughter with an unencumbered property or the funds to acquire such property in Brighton or its surrounding suburbs. The plaintiff has rented her home for a considerable time at a rental that has not increased over the years. While her circumstances might change should the current owner decide to increase the rent or sell the property, there was no evidence suggesting that would be the case. Even if her current rental arrangements ceased, her income is sufficient for her to rent elsewhere at a lower rate given that her current housing is a three bedroom home in Brighton. The plaintiff and her husband could continue to rent a one or two bedroom house or unit in the vicinity of the Alfred Hospital and the Alfred Caulfield Hospital.

93 Pursuant to the deceased's will, the plaintiff receives a one hundredth share of the estate. The plaintiff's further evidence supports the conclusion that limited further provision for the plaintiff should be made for now and in the future.

94 If accepted, the defendant's open offer of a further ten shares would have provided the plaintiff with sufficient further provision for her proper maintenance and support. Based on the value of the estate at the time of trial of $3,179,462, ten shares would have amounted to approximately $317,964. With the addition to the plaintiff's one share, the amount for the plaintiff would have increased to $349,741. As there is no residuary estate, the further ten shares were to be provided by reducing the shares of three beneficiaries.

95 However, the value of the estate will reduce as the agreed executor's commission is still to be paid and the liability for the costs of the proceeding remains outstanding. Notwithstanding the reduction in the value of the estate, a further ten shares would still provide the plaintiff with sufficient funds to cover her current needs of $75,500 - based on her estimates for a car and furniture - and a substantial nest egg of approximately $242,450 for the future.

96 Accordingly, the Court will make an order that further provision be made for the plaintiff broadly on the terms of the defendant's open offer, that is, that an adjustment be made such that the plaintiff receives an additional ten shares.

(a) Pursuant to s 91 of the Administration and Probate Act 1958 (Vic), further provision for the proper maintenance and support of the plaintiff be made out of the estate of the deceased, which shall operate as a codicil to the will of the deceased dated 20 March 2015 in accordance with s 97(4)(a) of the Administration and Probate Act 1958 (Vic), as follows:

In addition to the one-hundredth part of the estate of the deceased bequeathed to the plaintiff, ten parts be paid to the plaintiff for her further provision by giving the plaintiff five parts from the amount bequeathed to Josef Jandovsky, three parts from the amount bequeathed to Klara Jandovska and two parts from the amount bequeathed to Vaclava Klempt.

(b) An authenticated copy of this order be attached to the grant of probate made 7 December 2017 of the will and the defendant deliver up the grant to the Registrar of Probates for this purpose within 14 days of the date of this order.

(c) Written submissions as to the costs of the proceeding be filed and served by 9 May 2022 and thereafter determined on the papers.

[1] Re Janson; Gash v Ruzicka [2020] VSC 449, [38]-[46] (McMillan J) ('Re Janson').

[2] Ibid [15], [45]-[46] (McMillan J).

[3] Administration and Probate Act 1958 (Vic) s 91(1).

[4] See, eg, Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 501-2 (Gibbs J); Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ). See generally, GE Dal Pont and KF Mackie, Law of Succession, (LexisNexis Australia, 2nd ed, 2017) 607 [17.86].

[5] MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, 104 [50] (Dodds-Streeton J).

[6] Ball v Newey (1988) 13 NSWLR 489, 492 (Samuels JA).

[7] See, eg, Camernik v Reholc [2012] NSWSC 1537, [154] (Hallen J); Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 284 [125]-[126] (White J), interpreting the similar legislative regime in New South Wales under s 59 of the Succession Act 2006 (NSW).

[8] Grey v Harrison [1996] VSC 74; [1997] 2 VR 359, 366 (Callaway JA, Tadgell and Charles JJA agreeing).

[9] [2013] NSWSC 1065 (Hallen J).

[11] [1938] HCA 34; (1938) 60 CLR 336, 362, 368-9 (Dixon J).

[12] G_rey v Harrison_ [1996] VSC 74; [1997] 2 VR 359, 366 (Callaway JA, Tadgell and Charles JJA agreeing); Schmidt v Watkins [2002] VSC 273, [17]-[21] (Harper J). See also Webb v Ryan [2012] VSC 377, [21] (Whelan J).

[13] Mrs Dolinsky has since died and her share of the deceased's estate now passes to her estate.

[14] According to the defendant, Sokol Melbourne Inc is a Czech club in North Melbourne where members of the Czech and Slovak community in Melbourne socialise. Sumava is described by the deceased in his will as 'the Czech and Slovak Catholic Centre'.

[15] See Re Janson (n 1) [15] (McMillan J).

[16] Browne v Macaulay [1999] WASC 208, [19] (Murray J); Ford v Simes [2009] NSWCA 351, [71] (Bergin CJ in Eq.). Although that appeal was in the context of the New South Wales regime, her Honour's comment on the entitlement of testators to make no provision for children was not so limited.

[17] [1999] 3 VR 803.