S ECI 2021 02465 v Defendants

1 This matter concerns two proceedings which were heard at the same time. In the first proceeding, the plaintiff seeks a family provision order (the pt IV claim) under pt IV of the Administration and Probate Act 1958 (the Act). In the second, the plaintiff alleges that there has been a breach of trust by the defendants, in their capacity as executors of the estate of Robin Frank Burgin, by reason of failing to derive income from a property in Port Fairy (the rental claim).

2 Robin Frank Burgin, the deceased, married Ivy Elizabeth Burgin in 1961, at Leongatha, Victoria.

3 The deceased and Ivy had two sons and one daughter, namely:

(a) Stephen Robin Burgin, the plaintiff, who was born on 12 April 1962;

(b) Kylie Elizabeth Burgin, the first defendant, who was born on 15 December 1967; and

(c) Timothy Ralph Burgin, the second defendant, who was born on 31 July 1966.

4 On 8 December 2014, Ivy died. The deceased received all the marital assets by virtue of survivorship. The deceased did not re-partner after Ivy's death.

5 On 2 February 2017, the deceased died at the age of 76. He died leaving a Will dated 25 April 1996. The Will was handwritten in blue ink, but was also the subject of handwritten annotations in black ink. The Will appointed Timothy and Kylie as executors of the estate.

6 The Will was not able to be found initially. Even when it was found, the searching process continued because of the age of the Will, the handwritten nature of the Will, and the existence of the handwritten annotations to the Will. Timothy also had an understanding that, just before he died, the deceased had been in the process of organising his affairs, so he wanted to make inquiries of relevant professionals to ensure that nothing had been missed.

7 Probate was granted on 23 June 2021. The form of the will, as proved, was the Will dated 25 April 1996, ignoring the black ink handwritten annotations. Aside from some minor specific bequests of chattels, the Will, as proved, left the estate to the deceased's three children, with 20% to Stephen, 40% to Kylie, and 40% to Tim.

8 The estate currently stands at about $512,000,[1] predominantly comprised of the remainder of the balance of the net proceeds of sale of the Port Fairy property.

9 In respect of the pt IV claim, Stephen seeks 80% of the estate. He says that Kylie should receive nothing and that Tim should only receive 20%. His claim is primarily based on an assertion that he contributed substantially to the deceased's estate, via two entities: Global Portfolio Planners Pty Ltd (Global) and Burgtrus Pty Ltd (Burgtrus), as trustee of the Burgin Family Trust (the Family Trust). He says that his contributions effectively funded the life of the deceased and Ivy. He also relies on the health and financial needs of himself compared to his siblings.

10 In respect of the rental claim, Stephen says that the loss to the estate is around $100,000.

Legal principles applicable to pt IV claim

11 The legal principles applicable to the determination of the claim under pt IV of the Act are well settled and, for the most part, were not in dispute.

12 Those principles commence with a recognition 'that a person should be free to dispose of his or her property as he or she thinks fit'.[2]

13 There is no doubt that the Court has the power to interfere with a testator's wishes by the making of a family provision order. But, pursuant to s 91(2) of the Act_,_ the Court must not make a family provision order unless satisfied that:

(a) the claimant is an eligible person;

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

(c) the will fails to make adequate provision for the proper maintenance and support of the eligible person, and in this regard:

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;[3]

this is to be compared to the question of what order should be made, which is decided by reference to the facts at the time of trial.[4]

14 It is only if those jurisdictional requirements are satisfied that the Court's power to make a family provision order is enlivened.[5]

15 If such power is enlivened, it falls to the Court to determine the amount of provision to be made by a family provision order, if any, and the Court must take into account, pursuant to s 91(4) of the Act:

(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person;

(b) the degree to which the distribution of the estate fails to make adequate provision of the proper maintenance and support of the eligible person; and

(c) as the plaintiff is an adult child, the degree to which he is not capable, by reasonable means, of providing adequately for his own proper maintenance and support.

16 The amount of provision made by a family provision order must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support.[6] There are certain mandatory and discretionary factors for the court to consider in making a family provision order.[7]

17 For the purposes of this proceeding, the discretionary factors include:

any contribution (not for adequate consideration) of the eligible person to -

(i) building up the estate; or

(ii) the welfare of the deceased or the deceased's family[8]

18 Those mandatory and discretionary requirements are also relevant when considering the jurisdictional questions in s 91(2) of the Act.[9]

19 In respect of the jurisdictional requirements, the parties agreed that Stephen was an eligible person. However, the defendants took issue with both:

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

(b) whether the distribution of the deceased's estate pursuant to the Will failed to made adequate provision for the proper maintenance and support of Stephen.

20 As stated by McMillan J in Re Christu:[10]

In accordance with its established legal meaning, 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, and asks whether she or he would have thought it her or his moral duty to provide for the claimant.[11]

21 Relevantly, for the purposes of this proceeding, a moral duty is not nullified by estrangement, but family disharmony or dysfunction are matters which can be considered by the Court, along with other factors, and may reduce the extent of a deceased's moral duty.[12]

22 Stephen gave evidence and was cross-examined. He has five biological children and four stepchildren and has been married four times. He gave evidence of having had a good relationship with the deceased growing up, and of commencing farming activities together. He gave evidence of the purchase in 1999 of a farming property known as 'Kongbool' in Coleraine Road, Balmoral. Burgtrus was registered as the proprietor of Kongbool. Burgtrus was the trustee for the Family Trust. The beneficiaries of the Family Trust were the deceased, Ivy and their children. Stephen asserted that the funds for the purchase of Kongbool in the sum of $720,000 came from moneys that he put into Burgtrus.

23 Stephen also gave evidence of Burgtrus purchasing a second farm in November 2002, known as 'Kongbool North,' which became a tree plantation. Stephen asserted that it was his own plantation project and that the deceased was just his bookkeeper.

24 Stephen said that he moved to Kongbool after its purchase. He worked on the farming enterprise with his third wife and children, living there on the weekend and returning to the family home in Mount Waverley during the week.

25 Stephen said the good relationship between him and the deceased came to an end in March 2004 after an argument concerning the death of a dog. Following the argument, he could no longer return to the farm either to work there or visit. Contact with the deceased effectively ceased, notwithstanding some attempts by Stephen over the years for reconciliation.

26 Stephen gave evidence of his studies and various employment over the years, eventually becoming a successful investment broker. He conducted his business through Global. Global was initially a trading name, but at some point it was incorporated. Stephen said that the deceased was involved in Global as a bookkeeper. Stephen said that the deceased became the only director of Global and thereby controlled the money. Stephen accepted that he was bankrupt between 2000 and 2007, but did not accept that this was the reason the deceased became the director of Global.

27 Stephen said that he earnt significant income as a broker. He relied on some draft balance sheets and profit and loss statements for Global and a business activity statement, but his records did not extend past the year 2001.

28 Stephen said that everything he earnt went into Global and that he never drew any wages from Global. He said that all of the profit made by Global went to Burgtrus to effectively fund the deceased and Ivy's life. Stephen asserted that the deceased was 'taking like a truck load of money out, like 50, 80 grand in bites'. On the other hand, not only did Stephen not receive wages from Global, he did not receive any income from Burgtrus or a distribution from the Family Trust.

29 Stephen said that he did not file tax returns in the period that he was diverting his income to the deceased and the Family Trust. He conceded that he was working in the financial industry up until 2019, at that time earning $80,000 to $100,000 a year. In March 2017 he was involved in a crowd funding campaign seeking to raise money to purchase Kidman Station in the Northern Territory for $350m.

30 Stephen gave evidence of a number of health issues that he had experienced since 2018 when he underwent heart surgery. From that time he has experienced several medical conditions including cognitive issues, renal failure, kidney damage and back issues. He said that, effectively, he could no longer work and his current financial position was dire. His wife also does not work, but receives Workcover benefits.

31 Timothy gave evidence and was cross-examined. He lives in rental accommodation in Preston with his partner. His income is around $15,000 per annum, which he earns by working as a freelance Art Director and Production Designer and doing some supplementary work as a builder and carpenter. At one stage he worked for a construction company which specialised in balconies and the like. The highest taxable income he has ever earnt in any year was around $30,000. Timothy also does charity work in the film industry. He has had to take a bit of time off work due to illness, having had a history of anxiety and depression. He sees a psychologist, but his condition is largely managed by his general practitioner.

32 Timothy also gave evidence of looking after his mother, Ivy, when she was unwell. Ivy was diagnosed with bowel cancer, undergoing medical procedures and chemotherapy. Ivy developed acute depression and Timothy spent time monitoring her mental health and ensuring she received treatment when necessary.

33 The evidence relating to Kylie's health and circumstances was limited as she did not give evidence. However, evidence was adduced that Kylie has a history of anxiety and, across the years, has been under the care of a psychologist. She lives at a property in Mount Waverley that she owns with her partner, subject to a mortgage. She was the sole executor and beneficiary of her aunt's estate valued at around $575,000. Her aunt died in July 2021.

34 Counsel for Stephen accepted that in order to conclude that Stephen made the asserted contributions, I had to accept Stephen as a witness of truth. I do not accept Stephen as a witness of truth. His evidence was inconsistent, self-serving and implausible. He presented as a witness who was prepared to assert anything to advance his own interests.

35 Stephen had no documentary evidence to support most of his assertions and I do not accept that this is explained by reason of those documents necessarily being in the possession and control of the deceased, as the director of Burgtrus and Global.

36 I do not accept that the defendants have done anything to keep documentation from Stephen. Insofar as there were records that had been kept by the deceased, there is no doubt that not all of the financial records of the deceased, Burgtrus, and the Family Trust were able to be located. However, I accept the evidence of Timothy that anything discovered was passed on to the lawyers, and that he has never resisted the provision of material to Stephen.

37 In any event, Stephen has the burden of proof and has not discharged that burden.

38 It is implausible that Stephen would have diverted all of his earnings to Burgtrus, never drawing an income or wages for himself or his family over such a lengthy period of time.

39 It would be extraordinary if, in the years that he was an undischarged bankrupt, he was able to earn the type of income he said he was earning for Global, and then simply divert it to Burgtrus. Even if this did occur, it can hardly be said that Stephen, as opposed to his creditors, suffered any financial detriment in this period of time.

40 Stephen's assertions that he did not receive any income whatsoever from Global contradicted some of his other evidence. For example, when asked what his salary was for being a farmer from 1999 onwards, he responded 'I didn't take a salary. Well drawings, they'd be called drawings because operating through a family trust, I didn't take drawings. I had income from my brokerage' [emphasis added].

41 Stephen's assertions also contradicted various correspondence regarding the deceased's financial affairs. For example, in a letter from the deceased's accountant to the Australian Taxation Office in respect of the tree planation project dated 30 August 2004, it is stated:

Mr Burgin previously carried on a business of Post Office and Tattslotto Agency trading as "Robin Burgin Enterprises". This business was sold in the 1995 financial year, and reflected in his last Income Tax Return lodged for 1995. The business Financial Statements and Income Taxation Return were prepared by former Tax Agent, Procter Major & Co Pty Ltd.

Since the sale of the said business, Mr Burgin has been living off the proceeds of assets held in his name, and interest from the sale of the business. The total of this income is not expected to have exceeded the tax free threshold.

42 Stephen's response to this was simply: 'That's a porky pie because he's taken heaps of money out'. Bearing in mind the other matters that I have identified, I am not prepared to act on bald assertions by Stephen.

43 Insofar as it is asserted that some of the documents exhibited in this proceeding demonstrate that the deceased drew money from Burgtrus, it is unclear what that money was utilised for. It could well have been utilised to make cash payments for contractors or expenses associated with the farming enterprise. It certainly was not withdrawn for the deceased and Ivy to live a lavish life. Even Stephen conceded that the deceased and Ivy led a frugal life. I also note the conservative value of the deceased's estate.

44 Insofar as it is asserted that some of the documents exhibited in this proceeding demonstrate that the deceased received payments from time to time from Global, this is consistent with Stephen's evidence that the deceased did bookkeeping work for Global.

45 Insofar as it was submitted on behalf of Stephen that the purchase of the Kongbool and Kongbool North farms were sold over time for considerable sums, it is difficult to make much of this submission given:

(a) the incomplete nature of the Family Trust records;

(b) the acceptance by Stephen that the Family Trust made significant losses throughout its existence; and

(c) the acceptance by Stephen that the whole of the proceeds of the sale of Kongbool was required so as to pay out monies that had been loaned.

46 Stephen was not consistent in identifying the date range for his contributions and he initially claimed that he contributed the sum of $1,525,000. Similarly, he initially asserted that the deceased and Ivy received income in the sum of $5,002,751 from the Family Trust. Under cross-examination, Stephen was not able to articulate how those amounts were so precisely calculated and what he had specifically referenced in order to make such assertions, other than making bald assertions about capital gains tax funding such payments of income to his parents.

47 Stephen's assertions that he was the only one who ever contributed to Burgtrus, and that it was his own funds which funded the purchases of Kongbool and Kongbool North were at odds with his acceptance under cross-examination of:

(a) the deceased having borrowed a significant amount of money against his Mount Waverley property to fund the farm and tree venture; and

(b) loans from Wesfarmers being obtained so as to assist with the purchases of both Kongbool and Kongbool North.

48 In all of the circumstances, I conclude that Stephen did not make substantial contributions to the deceased and did not effectively fund the deceased and Ivy's life.

Whether jurisdictional requirements have been established

49 There is no issue that Stephen is an eligible person within the meaning of the Act.

50 As to whether, at the time of death, the deceased had a moral duty to provide for Stephen, I accept that, effectively, the deceased and Stephen were estranged. I do not proceed on the basis that this was Stephen's fault, and there is insufficient evidence before me to determine why their relationship deteriorated to the extent that it did. I accept that some of this was to do with the argument in 2004, but it also seems that there was significant tension between Stephen and the deceased, in part because of issues in relation to the farming enterprise. Accordingly, I do not accept the defendants' submission that a moral duty was nullified by the estrangement.

51 However, I am of the view that the estrangement, to some extent, reduced the extent of the moral duty.

52 More significantly, I am not persuaded that the Will fails to make adequate provision for the proper maintenance and support of Stephen, assessing this issue with reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of death.

53 At the time of death, Stephen did not have the health issues that he now has.

54 At the time of death, Stephen conceded he was earning $80,000 to $100,000 and, as demonstrated by his crowd raising activities, had considerable energy and capacity to engage in income producing activities.

55 In comparison, at the time of death, Timothy's earnings and assets were extremely modest, Kylie could not be said to be well off, and both Timothy and Kylie had some health issues.

56 Kylie did inherit from her aunt, but this was not until after the death of the deceased.

57 On my assessment of the evidence and relevant considerations as at the time of death, and bearing in mind the small size of the estate, a 20% distribution to Stephen cannot be said to be anything but adequate and proper.

58 From the perspective of a wise and just testator informed by an appreciation of current community standards, I am not satisfied that the Will fails to make adequate provision for the proper maintenance and support of Stephen.

59 The pt IV claim must fail.

60 In respect of the claim that Timothy and Kylie breached their obligations as executors of the estate by failing to rent the Port Fairy property, and thereby derive an income for the estate, Timothy gave evidence that it took a great deal of time to clear out the property. He and Kylie did the bulk of the work in that respect and, from his own perspective, he could not simply stay at the property until everything was cleared, nor could he make the trip there every weekend. He had other commitments and it was a good nine hour trip, so he would organise himself to attend from time to time for more than just a weekend to make the trip worthwhile. Attending the premises at all for a period of time was also somewhat hampered by the restrictions imposed during the COVID-19 pandemic.

61 In terms of clearing out the deceased's belongings from the property, Timothy gave evidence that the Port Fairy property was a two bedroom house with a garage. When the deceased and Ivy moved in they brought with them all the contents of the five bedroom house that they had previously owned in Mount Waverley. Timothy also gave evidence of Ivy being a hoarder. As a consequence, the Port Fairy property became overwhelmed with furniture and contents, the garage was filled from floor to ceiling and half the backyard had furniture, chattels and possessions covered in a tarp. There was also a caravan at the front of the house that was full of 'stuff'.

62 Timothy said that, in order to rent the property, the process of clearing had to be attended to and in this regard there were items from previous generations, including war medals, paintings and furniture which Timothy needed to sort through to ascertain if they could be saved or alternatively, given to family members. There were also a huge number of documents, all bundled and mixed in together, which had to be gone through, including so as to ascertain whether a later Will existed.

63 Searches also had to be conducted to ascertain the existence of any documents relevant to the various claims that Stephen was making, including:

(a) the pt IV claim that is the subject of this proceeding; and

(b) the assertion that the Port Fairy property was not an asset of the estate, but an asset of the Family Trust, which was the subject of a proceeding in the Victorian Civil and Administrative Tribunal.

64 The task of clearing out and going through the documentation left at the Port Fairy property primarily fell to Kylie.

65 Timothy said there were cleanups and working bees on the house. Bianca[13] and Jason Crawford[14] both gave evidence of assisting in the clean up on a number of weekends, including by taking trailer loads of property away. They gave evidence to the effect that the property was well maintained, including at the time of the deceased's death. But they also confirmed Timothy's evidence that there was a need to clear the Port Fairy property of furniture, possessions, and chattels.

66 Timothy gave evidence that a number of steps would need to have been taken to ensure it complied with rental requirements, including replacing the back deck, which amongst other things, had some rotten substrate bearers. Bianca said that you could still stand on the deck and not fall through and Jason said the deck was fine. Timothy accepted that the deck was 'safe enough,' but he said that he would not have wanted to risk a public liability claim.

67 The Port Fairy property was eventually sold with vacant possession, with settlement taking place on 9 December 2022. In the circumstances described above, I reject Stephen's submission that there was no barrier to removing the chattels from the property and immediately renting it out.

68 I am satisfied that, in all the circumstances, it is understandable that the executors turned their attention to carefully clearing out the property, getting the property ready for sale (with vacant possession), and maintaining it, rather than seeking to derive an income by renting it.

69 I am not satisfied that there has been any breach of trust. This claim must be dismissed.

KYLIE ELIZABETH BURGIN as Executor of the Estate of Robin Frank Burgin (deceased)

TIMOTHY RALPH BURGIN as Executor of the Estate of Robin Frank Burgin (deceased)

KYLIE ELIZABETH BURGIN as Executor of the Estate of Robin Frank Burgin (deceased)

TIMOTHY RALPH BURGIN as Executor of the Estate of Robin Frank Burgin (deceased)

[1] Net estate $566,748 less estimated legal costs and disbursements for estate $54,400.

[2] Grey v Harrison [1996] VSC 74; [1997] 2 VR 359, 366.

[3] Re Christu [2021] VSC 162, [18] (McMillan J).

[4] Davison v Kempson [2018] VSCA 51, [41].

[5] Kronemann v Papaioannou [2020] VSCA 275, [9]; McFarlane v McFarlane [2025] VSCA 163; Singer v Berghouse (1994) 181 CLR 201, 208-209.

[6] Administration and Probate Act 1958, s 91(5).

[7] Administration and Probate Act 1958, s 91A.

[8] Ibid, s 91A(2)(g).

[9] Re Christu [2021] VSC 162, [11] (McMillan J); Ross v Ross [2019] VSC 820, [36] (Moore J); McFarlane v McFarlane [2025] VSCA 163 [21]-[24].

[10] [2021] VSC 162.

[11] Re Christu [2021] VSC 162, [10] (McMillan J).

[12] Joss v Joss [2020] VSC 424, [168] (Hollingworth J).