//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] VSC 498
plaintiff. The estate percentages were adjusted to Peter 40 per cent, Andrew 25 per cent, Kathleen 17.5 per cent and Helen 17.5 per cent, including the bequests to Kathleen’s children under the codicil. The...
The deceased’s will gave most of his estate to his sons, in line with an agreement made with his former wife decades earlier. The judge considered that agreement alongside the family’s later circumstances, including the daughters’ financial need and the sons’ work on the farms. The daughters had not received adequate provision. The Court increased their shares but left the principal farm gifts to the sons intact. The judgment records that costs were to be argued later.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,374 words · generated 29/09/2026
The Supreme Court of Victoria heard two applications under Part IV of the Administration and Probate Act 1958 (Vic), brought by Kathleen Woods and Helen Hobley against the executors of their father’s estate. The judgment is headed Re Monshing (dec’d); Hobley v Stevenson [2003] VSC 498. Nathan J heard the applications on 2 December 2003 and delivered judgment on 19 December 2003.
No linked legislation citations have been extracted yet.
Horace Reginald Monshing, known as Horrie, died unexpectedly on 14 May 2001, aged 65. The judgment puts the estate’s value at approximately $1.4 million [3]. Its main assets included three farming properties, farming equipment, cattle, town properties and cash. The will and codicil distributed the estate substantially in favour of his sons Peter and Andrew. On the original distribution, Peter received about 49 per cent, Andrew 31.5 per cent, Helen 10 per cent, and Kathleen, together with her children, 8.5 per cent [3].
The distribution followed an agreement Horrie and his former wife Margaret made after their separation in or about 1975. Under that arrangement, Ovens was to go to Peter, Tarrawingee to Andrew, and Merriang to the two daughters [8]. The arrangement was connected to Margaret foregoing maintenance claims and to an intention to keep the farming properties in the family. The judge noted that one idea underpinning it was that sons would inherit land to carry on the family name, while daughters would marry and be cared for by their husbands [8].
The children’s later situations differed. Peter had worked on and improved the properties, and had made a life-long commitment to Ovens. Andrew returned to Tarrawingee in 1990 and worked there thereafter, also taking off-farm work to supplement his income [5], [7], [14]. Kathleen had acted as a family carer after her parents separated, including caring for her grandfather and father, and had helped with the farming business until 1995. At the time described in the judgment, she was unwell and had limited financial resources [4]. Helen was receiving a disability pension, had physical and nervous conditions, and had lost the value of an oyster-farming venture [6]. The judge found both daughters impoverished and almost without assets [10].
The Court did not remove Margaret’s life interest in the house at Merriang. Nor did it take Ovens or Tarrawingee away from the sons. Instead, it changed the estate percentages: Peter 40 per cent, Andrew 25 per cent, Kathleen 17.5 per cent and Helen 17.5 per cent [13]. The judgment also records that the daughters needed cash rather than property and identifies the Myrtleford town property, estate cash and the sons’ livestock holdings as possible sources of liquidity [14]. These observations explain how the judge considered the altered shares might be met; they are not a separate order directing a particular sale or transfer in the passage provided. The judge said costs would be argued later [15].
The central reasoning was that the deceased’s provision had to be assessed against the beneficiaries’ claims and circumstances, rather than treating the old separation agreement as conclusive. Nathan J accepted that the agreement had a family purpose: it helped keep the farming properties within the family. But its allocation reflected assumptions formed decades earlier. By the time of the will and death, the daughters’ marriages and financial circumstances did not match the assumptions that they would be supported by husbands [8].
The judge framed the comparison through what a “wise and just testator” would have considered. In paragraph 8, Nathan J said the deceased should have regard to his children’s claims “at the time of making the will”, rather than seek to enforce a separation agreement made decades before. The judgment thus treats changed circumstances as significant to the assessment. It does not say that an earlier family agreement has no relevance; rather, the agreement could not displace consideration of the children’s later claims.
The daughters’ circumstances carried substantial weight. Both had experienced difficult first marriages and were in poor financial circumstances. Helen was disabled and receiving a pension. Kathleen had health problems, although she was employed when her father died. Their circumstances and limited assets were contrasted with the sons’ substantial inheritances [4], [6], [10]. The judge also considered what each child had contributed, but did not treat contribution as the only measure of provision.
The sons’ work and commitment were expressly recognised. Peter had used his own plant and equipment to improve the farms, and the judge accepted that he had worked assiduously to maintain and improve Ovens and the other properties. Andrew had worked Tarrawingee since returning in 1990. The judgment therefore declined to disturb the gifts of the two principal farms [9], [10], [14]. It balanced the sons’ contributions and the deceased’s wishes against the daughters’ needs.
The judge also took account of the nature and usability of the remaining assets. Merriang was burdened by Margaret’s life interest in its house and curtilage and was deteriorating because it was not being farmed [9]. The town property and cash were more relevant to meeting the daughters’ need for money. The Court’s solution was a redistribution of percentages, not a reversal of the sons’ farm inheritances [13]–[14].
The result was a finding that the deceased had failed to make adequate provision for his daughters’ maintenance and support [13]. The judgment does not reproduce the statutory text or undertake a detailed section-by-section statutory analysis. Its stated reasoning instead concentrates on the family’s circumstances, the historical agreement, the children’s contributions, and the practical character of the estate assets.
This judgment is a single-instance decision applying Part IV of the Victorian Administration and Probate Act 1958. It does not purport to reformulate the legislation or announce a comprehensive test applicable to every family provision claim. Its reasoning is most safely understood as an application of the “wise and just testator” approach to the particular facts before the Court.
The judgment cites Collicoat v McMillan [1999] 3 VR 803 at 819 and 822–823 for discussion of the moral claims of a daughter in relation to sons [footnote 1]. The judgment does not set out the relevant passages from Collicoat in detail, so the source provided does not support a fuller account of that case’s holding. The present judgment’s own contribution, as expressed in paragraph 8, is to emphasise considering beneficiaries’ claims in light of circumstances at the time of making the will, rather than simply adhering to a decades-old agreement formed in a different context.
The judgment is not evidence of what the law was before this decision or how it changed afterwards. It does not state that it displaced an earlier rule, and the extract contains no later judgments applying or distinguishing it. Accordingly, no claim about subsequent legal development or treatment can be established from the judgment text supplied here. For research purposes, the case can be described as a fact-specific application of Part IV in which historic family arrangements, daughters’ financial need, sons’ work on family farms, and the practical form of estate assets were all weighed.
The distinction between an agreement’s relevance and its decisiveness is important in reading the decision. The separation agreement was part of the factual background, and it explained the original division of the farms. But Nathan J did not accept that the agreement settled what provision the deceased should make decades later. Equally, the Court did not disregard the family’s history or the sons’ efforts. It preserved their principal farm gifts while revising the overall percentages. The decision therefore illustrates a balancing exercise on these facts, not a rule that old agreements must always be ignored or that daughters must receive equal shares.
At paragraph 8, Nathan J stated that a wise and just testator “must and should have regard to the various claims of his progeny at the time of making the will”, rather than seek to enforce a decades-old separation agreement. In plain English, the judge considered the children’s actual circumstances when the will was made more important than mechanically following an earlier arrangement. The passage does not say that the agreement was irrelevant; it explains why it could not decide the outcome on its own.
At paragraph 10, the judge said the distribution giving more than four-fifths of the estate to the sons and less than one-fifth to the daughters was “an affront to wisdom and justice”. That phrase conveys the judge’s strong view of the imbalance in light of the beneficiaries’ positions. It should be read with the qualifications in the same paragraph: the judge did not order the sons to surrender Ovens or Tarrawingee, and expressly recognised their contributions.
Also in paragraph 10, Nathan J said, “I do not propose to order that the gifts of the Ovens and Tarrawingee be disturbed.” In practical terms, the sons retained the two principal farms under the revised distribution. The judge considered their work in sustaining and improving those properties relevant and consistent with the deceased’s wishes.
Paragraph 13 records the conclusion directly: the deceased had “failed to make adequate provision for his daughters’ maintenance and support”. The judge then set the revised shares. This is the finding underpinning the redistribution, rather than a finding that every part of the will was to be set aside.
Finally, paragraph 14 explains that the daughters’ need was for cash rather than property. The judgment noted the town property, cash reserves and livestock holdings as potential means of meeting their shares. This is an explanation of the financial practicality considered by the Court, not a detailed order in the supplied text requiring any one asset to be sold.
This decision may be relevant as an example where a will’s unequal distribution is challenged under Part IV and the deceased’s testamentary scheme reflects an old family arrangement made in substantially different circumstances. The features the Court considered included a separation agreement about family land, a distribution favouring sons, daughters whose later financial circumstances were difficult, sons who had worked on and improved the farms they received, and estate assets of different kinds and liquidity [8]–[14].
The timing point may be especially pertinent where the rationale for an earlier arrangement has become less suited to the beneficiaries’ later situations. Here, the original expectation that daughters would marry and be supported by husbands did not match what happened. The daughters’ marriages had failed, and they were in straightened circumstances by the time of the deceased’s death [8], [10]. The case illustrates the judge’s willingness to assess claims against those later facts.
It may also be relevant where a court can address an imbalance without removing specifically bequeathed business or farming assets from beneficiaries who have contributed to them. The sons’ effort and long-term association with Ovens and Tarrawingee were recognised, and the judgment preserved those gifts while increasing the daughters’ overall shares [10], [14].
The decision should not be treated as establishing that every unequal distribution between sons and daughters is inadequate, that contribution to an asset guarantees its retention, or that an old agreement has no legal significance. The judgment’s outcome arose from its particular findings about need, circumstances, contribution, estate composition and the deceased’s intentions. Whether those features matter similarly elsewhere depends on the governing law and the evidence in that case.
The judgment text supplied contains no later judicial treatment of Re Monshing. It identifies Collicoat v McMillan [1999] 3 VR 803 in a footnote as a source discussing the moral claims of a daughter in relation to sons [footnote 1]. That is an earlier authority cited by Nathan J, not a later court’s treatment of Re Monshing.
On this source alone, it is not possible to say whether later courts have followed, distinguished, explained or questioned the decision. The judgment itself also does not describe its own decision as a departure from earlier authority. A later-treatment account would require checking subsequent judgments and other legal sources, which are not included in the material provided.
For professional research purposes, the accurate source-grounded statement is therefore limited: Nathan J cited Collicoat in relation to moral claims, and the reasons in Re Monshing applied a wise-and-just-testator assessment to the facts of the family’s Part IV applications. No conclusion about the case’s subsequent precedential status should be inferred from the supplied judgment alone.
The judgment leaves several matters unaddressed in the supplied text. First, it does not set out the full statutory wording or explain the relationship between each statutory requirement and the factors discussed. The reasons report a conclusion of inadequate provision and explain the factual balancing that led to the revised shares [13], but the excerpt does not provide a comprehensive statement of the Part IV test.
Second, although the judge refers to the time of making the will in paragraph 8 and assesses circumstances known at death in other passages, the text does not explore in detail how the relevant assessment date operates across different circumstances or claims. The reasons are directed to this family’s history and estate, not to a general timing rule for every case.
Third, paragraph 14 identifies possible sources of cash for the daughters’ shares, but the extract does not specify a detailed mechanism for implementing the revised percentages. It does not say which property must be sold, how the estate’s cash is to be applied, or how any resulting obligations are to be administered. The disposition stated in the judgment is the percentage allocation, while costs remained for later argument [15].
Fourth, the judgment does not analyse the legal effect or enforceability of the parents’ separation agreement as a separate issue. It considers the agreement as part of the factual explanation for the will’s distribution and concludes that it should not dictate the deceased’s later testamentary provision [8]. The source does not support broader conclusions about such agreements.
Finally, no later authorities are included, so the present status or subsequent judicial interpretation of the decision remains unresolved on this material. This is a general legal-information summary, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
[2003] VSC 498
ADMINISTRATION AND PROBATE ACT Part IV - Farming properties - Deceased's separation agreement penalised daughters - Moral duties to working sons and needy daughters.
1 The deceased ("Horrie") was, as are his four children, the descendant of an indentured Chinese gold digger persecuted at the time of the anti-Chinese racial riots at Beechworth during the gold rushes of the late 1850s. Now his children are fighting over his estate. The irony is bitter because I find as a fact that all of the parties, Horrie, his former wife Margaret Stevenson ("Margaret"), and his four children, Peter, Andrew, Helen and Kathleen, all to be honest, thoroughly decent and hard working people. They have fallen into family disarray because of the unequal distribution of the estate pursuant to the terms of Horrie's will of 5 August 1996 and its codicil of 21 May 2000.
2 This application, under the terms of the Administration and Probate Act Part IV, is brought by the two daughters who seek a greater share of Horrie's estate which passed substantially to his two sons. The vicissitudes of life have not treated his children equally but Horrie appears to have loved them all in equal measure. He was a relatively hard working and honourable person, even if on occasions irascible and unimaginative. All of his children have worked hard, so far as they have been able, throughout their lives but their contribution to his estate has, per force, been unequal. I give first an overview of the estate and then come, in detail, to the disputed claims.
3 Horrie died unexpectedly from asthma and/or heart attack on 14 May 2001. He was 65. The total value of his estate was $1.4M in rounded terms. Peter, the eldest son and executor, received 49% of the estate, Andrew 31.5%, Helen 10% and Kathleen, or rather she and her children together, received 8.5%. The estate's main assets were three farming properties, the largest and most productive which I shall call the Ovens went to Peter. The smaller, but still productive farm, and which I shall call Tarrawingee, went to Andrew. Helen and Kathleen shared a third property, which I shall call Merriang, the smallest and least productive farm subject to a life interest in a house block thereon in favour of their mother, Margaret. There was a couple of smaller town properties, substantial amounts of farming equipment and a valuable herd of beef stock.
4 Now to the details. Horrie married Margaret after meeting her at a boarding house in the city run by Margaret's mother, where he had been a lodger. They returned to Myrtleford and worked on Horrie's father's farm, the Ovens property. The marriage produced the four children in the following order. Firstly, Kathleen Woods, one of the applicants, and she was born on 27 December 1958. She is now 44, has been married three times and has three children, Kate, Rebecca and Claire. She is presently married to Noel Woods and they live at Cabbage Tree in East Gippsland. Kathleen is unwell. After her father's death she underwent a total hysterectomy but before that her health was, at best, indifferent. Nevertheless, she has been employed by the local shire and at the time of her father's death was receiving approximately $400 per week. Her husband has an interest in a property at Cabbage Tree which is subject to a partnership dispute. His interest appears to be worth approximately $100,000. On the Cabbage Tree property are 37 heifers which Kathleen inherited from her father. Kathleen, as the eldest daughter, took on the role of family carer when her mother separated from her father in or about 1975. A house was built in a small paddock adjacent to the family home and from this property Kathleen cared for her grandfather and then her father. She was involved in helping running the family farming business until 1995 when she moved from Myrtleford to East Gippsland with her present husband.
5 The second child to be born was Peter, who is the firstnamed defendant. Although given his father's name, he is universally known as Peter and was born on 15 January 1960. He has lived all his life in the Myrtleford district, mostly on the Ovens property, although he has worked off-farm most of that time. I was impressed with the directness of his evidence and I accept the fact that he used plant and equipment he owned to improve the value of all three properties. As a just reward for all his efforts he is now a man of some substance. He and his wife have two children.
6 The third child is Helen Hobley. She was born on 10 February 1962. By her first husband she has four children but none by her second who is now in gaol. His offence involved sexual interference with some of her children of her first marriage. His imprisonment post dates Horrie's death. However, she and Mr Hobley had an oyster farm at Wonboyne in New South Wales which was afflicted by algae bloom and is now almost valueless. She lived at Myrtleford until October of 1994. She is now in receipt of a disability pension. She suffers from both physical and nervous conditions. She is currently living with her sister.
7 The fourth child, Andrew, was born on 6 April 1968. He is married and has three children. When his parents separated he went to South Australia and lived with his mother but returned to the Tarrawingee property in 1990. He has worked that property ever since, but he too, has been obliged to work off-farm to supplement his income.
8 The will was carefully drawn. It contains some minor legacies to grandchildren and proper disposal of any residue, and it contains very careful division of the deceased's estate between his children. The distribution under the Will is, very largely, the product of an agreement concluded between Horrie and Margaret shortly after the separation in 1975. It is not a matter of contest that in response to Margaret agreeing to forego any claims for maintenance against Horrie they agreed that he would divide the then three farming properties as follows: Ovens to Peter, Tarrawingee to Andrew, and Merriang between the two daughters Helen and Kathleen. As Margaret said from the witness box, she abided by the terms of the agreement and she now expects her children to do likewise. A major thrust of the plaintiffs' submissions is to contend that a separation agreement entered into between mother and father 26 years ago cannot dictate the terms by which a wise and just testator later disposes of his property. The agreement could not have foreseen the varying degrees of need and comfort of the children, nor indeed the varying degrees of work and effort they expended in safeguarding the testator's property and improving its value during his lifetime. I consider this submission compelling. The terms of the agreement illustrate that it was the interest of the mother and father to maintain the family farming properties within the family. But in so doing, they agreed to favour the sons over the daughters, it would seem regardless of the needs and contributions of either. Part of the philosophy underpinning the Separation Agreement was that the sons should inherit the land to keep the family name alive, while the daughters would marry and their husbands care for them. Then at the time of his death the deceased knew that had not happened. The marriage of the daughter had failed and they were both in very straightened financial circumstances. I consider that a wise and just testator must and should have regard to the various claims of his progeny at the time of making the will, rather than seek to enforce a separation agreement made decades before and by which he has prospered in the intervening years. Margaret, by not forcing a settlement at the time of separation and divorce, did maintain the farming properties in the hands of the family. Although Horrie may have contributed to Andrew's support whilst he lived with her, he does not appear to have contributed to Margaret's support and to that extent, together with the fact that he was not obliged to provide her with a capital sum, the estate is worth what it is today.
9 I have no doubt that each of the children contributed as much as they could have done to the farming enterprise whilst they were living at Myrtleford at various times both as children and adults. I am satisfied that Peter and Andrew worked assiduously to maintain and improve Ovens and Tarrawingee respectively, and they also worked at Merriang. However, the latter property, by virtue of the life interest in the house and curtilage in favour of Margaret is now a wasting. It has little appeal to a potential vendor and is deteriorating because it is not being farmed. I am sure the testator did not foresee that by granting a life interest in the house in Merriang to Margaret he thereby diminished the value of the property as a whole. Margaret is advantaged by obtaining the rents therefrom. A benefit no party contends should be disturbed.
10 My conclusion is that a wise and just testator in 1995 would, could and should have directed his mind to the relative claims upon his bounty by those persons then entitled to such a claim. Both daughters endured debilitating and unsatisfactory first marriages. Both are now impoverished and almost without assets. Both sons have married only once and both have young families. Both have worked inordinately hard and long, but both now have an asset base derived from their father's estate. They should not be obliged to surrender those bases in favour of their sisters but they should share more equitably some of their other inherited wealth. In some measure he has failed to do so although in some measure he did. I am satisfied I should not disturb the life interest in the Merriang house to Margaret. It is plain that she and Horrie maintained a civil relationship despite their separation and in fact went on holiday together shortly before his death. However, by disposing of his real and personal estate in the portions whereby more than four-fifths are assigned to the two sons and less than one-fifth to the two daughters, is an affront to wisdom and justice. However, I do not propose to order that the gifts of the Ovens and Tarrawingee be disturbed. I consider the work and contribution made by the two sons to sustaining and improving those properties should be recognised in accordance with the testator's wishes. However, that does leave available for redistribution the land in the Myrtleford township, upon which one house is constructed and was, under the terms of the will, devised to Peter. Helen was given an interest in the vacant block adjoining the house block.
11 The affidavit of Peter Monshing relating to the financial position of the estate sworn on 26 September 2003 refers to the farming equipment and cattle which passed to him then being on the Ovens property at the time of death. Similarly, it relates to plant and equipment on Tarrawingee being bequeathed to Peter or as the will also devised, the plant and livestock then on Merriang going to the daughters. As at the time of swearing the affidavit the cattle assigned to Peter was worth approximately $36,000 and those to Andrew worth $60,000. One hundred and seventeen heifers were on Tarrawingee and 65 on Ovens at the time of death. Kathleen and Helen received 37 heifers each being the stock on Merriang at the time of death.
12 I note from the affidavit that the estate is in funds in the sum of approximately $60,000 represented largely by moneys in the Commonwealth Bank and a refund of overpayment of the gravestone.
13 Having concluded that the deceased failed to make adequate provision for his daughters' maintenance and support, after balancing the factors which a wise and just testator would take in to account, I conclude that the estate should be apportioned in the following percentages. To Peter, 40%, which is a reduction of approximately one-fifth of his present entitlement. The codicil was entered into as an arrangement to defeat any claims for matrimonial property which could have been made by Kathleen's second husband, Nevan, at the time of their divorce. I am satisfied the codicil was entered into by the deceased at Kathleen's request for this purpose and that he was mightily offended by being asked to do so. Nevertheless, in deference to his love for his daughter he complied. I should prevent Kathleen's interests from claiming twice upon the testator's bounty. To Andrew, 25%, which is also a reduction of about one-fifth of his present entitlement. To Kathleen, 17.5%, which is an increase of 100% in relation to her present entitlement, and similarly, 17.5% to Helen, which is a 75% increase. I include the bequests to Kathleen's children made pursuant to the codicil.
14 In this way, the devises to the two sons of Ovens and Tarrawingee can remain intact. That respects the wishes of the testator and reflects their contribution to the estate. Peter made a whole of life commitment to the Ovens property, and Andrew a similar commitment to Tarrawingee following his return from South Australia. The daughters are in need of cash rather than property. This need could probably be met by the sale of the town property in Myrtleford valued at $60,000. Moreover, the estate presently holds significant cash reserves and these too could be applied, at least in part, to acquit the daughters' share. Moreover, as both Andrew and Peter received the bulk of the cattle herd, the progeny of which may well be on their properties, they could put themselves into a liquid position to meet the obligations of the estate to the daughters.
[1] See Collicoat v McMillan [1999] 3 VR 803 at 819, 822-3 for a discussion of the moral claims of a daughter vis a vis sons.
Re Monshing (dec'd); Hobley
Stevenson [2003] VSC 498
The estate percentages were adjusted to Peter 40 per cent, Andrew 25 per cent, Kathleen 17.5 per cent and Helen 17.5 per cent, including the bequests to Kathleen’s children under the codicil. The gifts of Ovens and Tarrawingee to the sons and Margaret’s life interest in the Merriang house were not disturbed. The judge reserved costs for further argument.