SCH -v- RBG [2025] WASC 98 (26 March 2025)

1. As the deceased died intestate, the entitlements of her estate are governed by the Administration Act.
2. Section 14 of the Administration Act contains a table which sets out the entitlements upon intestacy. Item 5 sets out the entitlements when a deceased leaves no husband or wife but a child or children, as is the case here.
3. As there are eight surviving children of the deceased, they each share equally in the deceased's estate.[1]
4. The administrators of the deceased's estate filed a statement of assets and liabilities of the estate pursuant to r 9B of the Non‑contentious Probate Rules 1967 (WA) estimating the gross assets of the deceased at the date of her death at $649,500. At the hearing, [redacted - first defendants] gave evidence that the net value of the estate was $626,290.01.
5. [redacted - seventh defendant] has accepted $25,000 by way of Deed of Family Arrangement in full and final satisfaction of her entitlements in administration.
6. By affidavit sworn on 8 June 2022, [redacted - first‑named first defendant] deposed that the following total amounts had been distributed to each of the beneficiaries:[2]

(1) [redacted - seventh defendant]: $25,000;

(2) [redacted - eighth defendant]: $81,087.13;

(3) [redacted - first‑named first defendant and third defendant]: $81,087.13;

(4) [redacted - sixth defendant]: $81,087.13;

(5) [redacted - fourth defendant]: $81,087.13;

(6) [redacted - second‑named first defendant and second defendant]: $79,087.13 and a car with a value of $2,000;

(7) [redacted - fifth defendant]: $81,087.13; and

(8) [redacted - plaintiff]: $78,641.27.

1. The amount distributed to [redacted - plaintiff] comprises $59,025.62 in distributions to [redacted - plaintiff], $13,807.40 in costs payable by [redacted - plaintiff] to the estate pursuant to a Certificate of Taxation dated 24 June 2021 and $5,808.38 in costs paid to Gregson & Associates by virtue of a Debt Appropriation Order in the Magistrates Court.[3] [redacted - first defendants] gave evidence that they were currently unable to pay any additional amounts to [redacted - plaintiff] to make her distributions equal to the other beneficiaries due to an order of the court restraining the administrators from disposing of or otherwise dealing with the estate of the deceased.[4] [redacted - first defendants] gave evidence that they intend to distribute the estate so that each of the seven beneficiaries (other than [redacted - seventh defendant]) receive equal shares.[5]
2. If the estate is to be distributed in accordance with the Administration Act, after the amount of $25,000 is allocated to [redacted - seventh defendant], each of the deceased's seven other children would receive $85,898.57.
3. Sections 6 and 7 of the Act allow a surviving child of the deceased to make a claim that the operation of the law on intestacy is such that the estate failed to make adequate provision for his or her proper maintenance, support, education or advancement in life. [redacted - plaintiff] claims that her entitlement from the estate of the deceased of approximately $85,000 failed to make adequate provision for her proper maintenance, support, education or advancement in life. [redacted - plaintiff] claims that adequate provision for her proper maintenance, support, education or advancement in life is the whole of the deceased's estate.

1. The evidence filed by the parties that is relevant to the substantive application was as follows:

(1) affidavit of [redacted - plaintiff] sworn 14 April 2022 (First [redacted - Plaintiff] Affidavit);

(2) affidavit of [redacted - first‑named first defendant and third defendant] sworn on 8 June 2022 ([redacted - First‑named First Defendant and Third Defendant] Affidavit);

(3) affidavit of [redacted - plaintiff] sworn 18 May 2022 (Second [redacted - Plaintiff] Affidavit);

(4) affidavit of [redacted - sixth defendant] sworn on 4 July 2022 (First [redacted - Sixth Defendant] Affidavit);

(5) affidavit of [redacted - eighth defendant] sworn on 29 June 2022 ([redacted - Eighth Defendant] Affidavit);

(6) affidavit of [redacted - second‑named first defendant and second defendant] sworn on 13 July 2022 ([redacted - Second‑named First Defendant and Second Defendant] Affidavit);

(7) affidavit of [redacted - sixth defendant] sworn on 13 August 2024 (Second [redacted - Sixth Defendant] Affidavit); and

(8) affidavit of [redacted - plaintiff] sworn on 20 August 2024 (Third [redacted - Plaintiff] Affidavit).

1. On 6 February 2025, after the substantive hearing had concluded, [redacted - plaintiff] sent a facsimile to the court attaching the Third [redacted - Plaintiff] Affidavit, requesting that the court accept the affidavit for filing as it had not previously been received by the court. The assertion that the court had not received the Third [redacted - Plaintiff] Affidavit was incorrect - the court did receive it and arrange for it to be filed in the action. I confirm the Third [redacted - Plaintiff] Affidavit was before the court for the purposes of the substantive hearing.
2. [redacted - first‑named first defendant and third defendant], [redacted - second‑named first defendant and second defendant], [redacted - fourth defendant], [redacted - fifth defendant], [redacted - sixth defendant] and [redacted - eighth defendant] gave oral evidence at the trial. For reasons I will detail, [redacted - plaintiff] did not appear at the trial and so did not give oral evidence. Given [redacted - plaintiff]'s non‑attendance, she was not cross‑examined on her affidavit evidence nor was she able to cross‑examine any of the defendants. I have taken this into account in assessing each of their affidavit and oral evidence.
3. Much of the evidence contained in the affidavits and the oral evidence given at trial was inadmissible - in that it was either hearsay evidence, irrelevant evidence, conclusionary or speculative evidence and/or evidence in the form of submissions. That was unsurprising given that all parties were self‑represented. To ensure the trial was not prolonged, I did not exclude any of the evidence. The approach I have taken in these reasons is to accept all of the evidence adduced in the affidavits and at trial and to consider the weight, if any, it ought to be given.
4. In relation to the credibility of the witnesses who gave oral evidence, in my assessment, each of them sought to give honest and reliable evidence to the best of their ability. As I have outlined, none of them were subject to cross‑examination. That is because of circumstances that were no making of their own. In assessing their evidence, no material issues of credibility arise.
5. Finally, there were four exhibits that were tendered at trial. There was financial information of the estate tendered through [redacted - first defendants],[6] a mobile phone video recording of [redacted - plaintiff] climbing over a fence in January 2021 tendered through [redacted - second‑named first defendant and second defendant],[7] a screenshot of [redacted - plaintiff] being interviewed in a YouTube program[8] and a video recording of extracts of [redacted - plaintiff] on YouTube tendered through [redacted - sixth defendant].[9]

1. The parties are all self‑represented. The court should afford litigants in person a level of flexibility and assistance. The extent of that flexibility and assistance depends on the nature of the case and the litigant's understanding of the case.[10] It is appropriate to grant a litigant in person some leniency in relation to compliance with the court rules.[11] The court must ensure that the litigant in person has not failed to claim rights or put forward arguments that they might have done if they had been represented.[12] The overriding consideration is to afford all parties a fair and just trial.[13] I have taken these principles into account in assessing [redacted - plaintiff]'s claim and the parties' conduct of the proceedings.

1. [redacted - plaintiff]'s application for further provision is made pursuant to s 6(1) of the Act, which provides:

If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

1. There is no distinction between dispositions under a will and those dispositions pursuant to statutory entitlements upon an intestacy.[14]
2. Where the application for further provision is made upon an intestacy, s 6(2) of the Act provides:

The Court in considering for the purposes of subsection (1) whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.

1. Therefore, the court considers the application on the basis that the entitlements set out in s 14 of the Administration Act were included in the deceased's will.

1. An application under s 6(1) of the Act is determined in two stages.

1. The first stage requires the court to determine that the disposition of the deceased's estate set out by the law of intestacy does not adequately provide for the proper maintenance, support, education, or advancement in life of the claimant. Whilst the first stage requires the court to exercise a value judgment, it is ultimately a question of fact. The first stage is often referred to as the 'jurisdictional question'.[15]
2. The first stage evaluation is conducted as at the date of death of the deceased. In answering the jurisdictional question, the court is required to have regard to all of the material facts that existed as at the date of the deceased's death, even if those facts were not known to the deceased. The court must also consider all material circumstances that might, at the date of death, have been reasonably foreseen by a deceased who knew all the material facts.[16]
3. When determining whether the provision under the laws of intestacy is 'adequate' for the 'proper' maintenance of the claimant, the court is to consider the requirements of the claimant for maintenance and the relationship between the claimant and the deceased. When considering the relationship between the claimant and the deceased, the court may have regard to:

(1) any sacrifices or services given by the claimant to, or for, the deceased's benefit;

(2) any contributions by the claimant to building the deceased's estate; and

(3) the conduct of the claimant towards the deceased and the conduct of the deceased towards the claimant.[17]

1. In Lemon v Mead,[18] Buss P said the following in relation to the first stage:[19]

In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen. Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight.'

1. 'Adequate' is concerned with the quantum of the provision, whereas 'proper' is concerned with the standard of maintenance to which the claimant is accustomed.[20]
2. In Vigolo v Bostin,[21] Callinan and Heydon JJ said in relation to the interaction between the word 'adequate' and the word 'proper':[22]

The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.

1. In determining whether the provision that the claimant receives pursuant to the Administration Act provides adequate provision for the claimant's proper maintenance etc, the court is to consider the provision that the claimant is to receive on the one hand, and on the other hand the 'needs' that the claimant has which they cannot meet from their own resources.[23]
2. If a claimant cannot demonstrate that they have a need for provision, then a claim purely based on a moral duty and/or claim will not succeed.[24]
3. In determining the jurisdictional question, the size of the estate, the moral duty of the deceased to the claimant and to other legitimate claimants pursuant to s 7 of the Act, the need and moral claim of the claimant and the need and moral claim of the other legitimate claimants are all relevant factors to be considered.[25]
4. The term 'moral duty' refers to the deceased's duty to make adequate provision for the proper maintenance, support, education and advancement in life of eligible claimants, with the precise nature and extent of that duty being determined by reference to the totality of the relationship between the claimant and the deceased and contemporary accepted community standards.[26]
5. As Salmond J said in Re Allen; Allen v Manchester:[27]

The [equivalent to the] Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of [claimants], having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty.

1. In some circumstances, proper maintenance may be less than adequate maintenance because the deceased does not have enough to make adequate provision for all those who have a claim on his or her estate.[28] This can mean that an amount may be 'proper' for the maintenance of the claimant in all the circumstances, even though it is insufficient for the claimant's 'adequate' maintenance.[29]

1. If the court determines the first stage in favour of the claimant, then the court moves to the second stage. The second stage requires the court to determine what provision should be made from the estate of the deceased for the claimant.[30]
2. The court must exercise its discretion at the second stage having regard to the circumstances of the claimant at the date an order is made for further provision.[31]
3. There is no single provision that is the provision the deceased should have made to the claimant - there are a range of appropriate provisions. It is, however, essential that the court considers all relevant factors and weighs them accordingly.[32] The process of arriving at a provision for the claimant is intuitive and an evaluative judgment - it has been described as 'instinctive synthesis'.[33]
4. In circumstances where the claimant is self‑represented, the court should not be overly technical in its requirements for evidence to support the determination of the provision to be awarded to the claimant - it ought to adopt a commonsense approach.[34]

1. Each of the parties has their own version and perspective of the [redacted] family history. That is unsurprising. There are a limited number of background matters however, which were either not in dispute or remained unchallenged. I set out those matters and make findings of fact in respect thereof below.
2. The deceased was married to [redacted], who predeceased her.
3. The deceased and [redacted] had eight children - who are each parties to this action. They were born on the following dates:

(1) [redacted - seventh defendant] - born on 3 October 1963;

(2) [redacted - eighth defendant] - born on 23 March 1967;

(3) [redacted - first‑named first defendant and third defendant] - born on 14 May 1969;

(4) [redacted - sixth defendant] - born on 9 December 1971;

(5) [redacted - plaintiff] - born on 28 November 1973;

(6) [redacted - fourth defendant] - born on 8 December 1974;

(7) [redacted - second‑named first defendant and second defendant] - born on 14 June 1976; and

(8) [redacted - fifth defendant] - born on 26 October 1981.

1. Some of the deceased's children, including [redacted - plaintiff], were in a band together as young children and they enjoyed some success.
2. When [redacted - plaintiff] was a child under 13 years of age, she was the victim of sexual assault committed by [redacted - eighth defendant]. In early 2001, [redacted - eighth defendant] was convicted of sexual offences against [redacted - plaintiff] and received a term of imprisonment of 3 years and 6 months. This had a significant impact on [redacted - plaintiff] and on the relationships between [redacted - plaintiff] and her siblings. Some of [redacted - plaintiff]'s siblings did not believe that [redacted - eighth defendant] had committed those offences.
3. [redacted - plaintiff] received an amount for victims of crime compensation in late 2005/early 2006 for these offences and used that amount towards the purchase of a property.
4. [redacted - second‑named first defendant and second defendant] lived with the deceased at the deceased's house in Langford from approximately 2000 until the deceased died in September 2020. From approximately 2015, [redacted - second‑named first defendant and second defendant] was the deceased's registered carer and received a carer's pension.
5. I turn now to consider [redacted - plaintiff]'s circumstances that relate to her claim for further and better provision.

1. [redacted - plaintiff] did not adduce any evidence at the trial. The circumstances that led to her non‑attendance at trial are outlined below.
2. [redacted - plaintiff] was originally represented by solicitors. However, her solicitors filed only the originating summons to commence these proceedings on 15 November 2021. The originating summons, in non‑compliance with Supreme Court Consolidated Practice Direction 9.2.2, was not accompanied by an affidavit in support. There was no action taken by [redacted - plaintiff] or her solicitors in the proceedings until 14 April 2022, when [redacted - plaintiff] filed a notice of intention to act in person.
3. The proceedings have had a long history of delay. The relevant procedural history in relation to the listing of this matter for trial is as follows.
4. On 22 June 2022, a registrar of the court made orders that [redacted - plaintiff] file and serve a notice of appointment to hear the originating summons, and that the matter should be listed by a judge for hearing. It was not until 23 November 2023 that [redacted - plaintiff] filed a notice of appointment to hear the originating summons.
5. On 23 November 2023, the court emailed the parties inquiring of the available dates for a hearing during December 2023, January, or February 2024. [redacted - plaintiff] did not provide the court available dates for the hearing. On 29 February 2024, the court emailed the parties advising that the matter had been listed for a directions hearing before Howard J on 7 March 2024, and requested that the parties be in a position to address matters for the purpose of listing the matter for trial as soon as possible.
6. On 6 March 2024, [redacted - plaintiff] sent a facsimile to the court seeking an urgent adjournment of the directions hearing and making an application that Howard J recuse himself from hearing the trial. [redacted - plaintiff] also advised the court that she did not have any email or internet, only fax, and that any correspondence from the court needed to be posted to her. On 6 March 2024, the same day, the court advised the parties that the directions hearing would be vacated to allow the judge to deal with the recusal application.
7. On 27 March 2024, the court emailed the defendants to advise that Glancy J now had carriage of the matter and that the matter was listed for a directions hearing on 30 April 2024. This notice was also posted to [redacted - plaintiff] at her address nominated for service. [redacted - plaintiff] appeared in person at the directions hearing on 30 April 2024 and advised the court that she had made an application to Law Access for legal representation due to the complexity of the case and the severity of her spinal cord injury.
8. Glancy J informed the parties that the matter must be programmed so that it could be listed for trial expeditiously. Glancy J told [redacted - plaintiff] that the court would give her an opportunity to provide updated material about her financial position, her employment capabilities, her medical position and give the defendants an opportunity to respond and then have the matter listed for trial as soon as possible.
9. [redacted - plaintiff] advised the court that she could provide medical evidence by 30 May 2024. Glancy J advised [redacted - plaintiff] that, if she needed to brief experts, she needed to do so quickly. [redacted - plaintiff] indicated that her application for legal representation would hopefully be approved in four to six weeks. Glancy J indicated to [redacted - plaintiff] that the matter had to go to hearing or that, alternatively, the court could dismiss the matter for want of prosecution. At that directions hearing, each of the defendants expressed frustration with the delay in the matter being listed for trial.
10. On 30 April 2024, Glancy J made the following orders:

(1) by 30 May 2024, the plaintiff file and serve an affidavit that specifies her current financial situation, including details of any outstanding cost orders against any current proceedings or claims or demands made against her, her current assets and liabilities, current income and expenses and any update of her medical condition;

(2) the defendants be at liberty to file any further affidavits on or before 30 June 2024;

(3) the matter be listed for a hearing for a duration of one day on a date to be fixed; and

(4) by Friday,10 May 2024, each party provide the court with a list of unavailable dates for trial in July, August and September 2024.

1. On 29 May 2024, [redacted - plaintiff] sent a facsimile to the court seeking a two‑week extension to comply with the orders of Glancy J, on the basis that she was engaged in discussions with Law Access to obtain legal assistance. Upon the appointment of Glancy J to the State Administrative Tribunal, the matter was allocated to be heard by me, and I listed it for directions on 19 June 2024. On 19 June 2024, [redacted - plaintiff] advised the court that Law Access had indicated their willingness to assist her and that Law Access had requested to review the file, but that she was having difficulty in gaining access to the file on the court's e‑portal.
2. At the directions hearing on 19 June 2024, the defendants again expressed their frustration that the matter was not progressing. I advised the parties that the matter had been on foot for some time, and that the time had come to list the action for hearing. I made orders that [redacted - plaintiff] have until 31 July 2024 to file her affidavit evidence, and that the matter be listed for trial for three days commencing at 1.00 pm on 28, 29 and 30 August 2024. On 31 July 2024, I dismissed [redacted - plaintiff]'s application for me to recuse myself because of bias, and delivered extempore reasons for doing so.
3. On 21 August 2024, [redacted - plaintiff] sent a facsimile to the court requesting an adjournment of the trial that was listed to commence on 28 August 2024 for three months to allow Law Access more time to allocate her a lawyer, and to submit further evidence. I listed the application for adjournment on 23 August 2024. The defendants strenuously opposed the application. I granted the application, and said:[35]

Although I am prepared to grant the plaintiff's application to adjourn the trial, it is on the basis that the trial will be relisted, on dates convenient to the defendants, no less than three months from today. I also make it clear to the plaintiff that the adjournment is not granted on the condition or understanding that the plaintiff does, in fact, receive legal assistance from Law Access or from any other lawyer.

The letter provided by the plaintiff from Law Access does not, as the plaintiff contends, indicate that Law Access has accepted her application. It says no such thing. It merely acknowledges the application has been made, and that it will be assessed. I make it clear, that in the absence of any extenuating circumstances, the trial will proceed on the next occasion, regardless of whether or not the plaintiff has legal representation.

1. On 2 September 2024, the court sent notification to the parties that the trial was listed on 5, 6 and 7 February 2025 commencing at 1.00 pm each day (1.00 pm being at the request of [redacted - plaintiff]). The notification was sent by email to [redacted - sixth defendant], [redacted - fifth defendant], [redacted - eighth defendant] and [redacted - second‑named first defendant and second defendant], and by post to [redacted - plaintiff] at her nominated address.
2. In a letter dated 30 September 2024, Law Access advised the court that [redacted - plaintiff]'s application for some pro bono assistance had been assessed as eligible for their service, but they were unable to guarantee that they would be able to find a lawyer that was available and willing to help.
3. On 4 November 2024, the court notified Law Access that the trial was listed to commence on 5 February 2025.
4. In the mid‑morning of 5 February 2025, the day the trial was due to commence, the listing coordinator of the court received a telephone call from [redacted - plaintiff], advising that she had only been notified of the listing of the trial the day before, that she was unable to attend court that day due to a medical appointment, and that the trial could not proceed in the circumstances.
5. The court advised [redacted - plaintiff] that she may attend the hearing at 1.00 pm on 5 February 2025 by telephone and make any application to vacate the trial at that time. That is what [redacted - plaintiff] did - she appeared at the hearing by audio link and made an oral application to vacate the trial dates. [redacted - plaintiff] submitted the trial be vacated because firstly, she had to attend an urgent medical appointment to have a biopsy, a situation that had arisen in the last 12 hours, secondly, that her application for legal assistance from Law Access was still pending and thirdly, she had only received notification of the trial dates when she received a text message from the court on 3 February 2025.
6. I dismissed [redacted - plaintiff]'s application to vacate the trial and delivered extempore reasons. In summary, those reasons were as follows.
7. Firstly, there was no medical or other independent evidence before me of [redacted - plaintiff]'s inability to attend the trial on 5 February 2025. I note that after the trial concluded, a medical doctor emailed the court a medical certificate which stated that [redacted - plaintiff] was unfit for work from 5 to 7 February 2025. Even if that medical certificate had been before the court at the time of [redacted - plaintiff]'s application, I still would have refused to vacate the trial. The fact that [redacted - plaintiff] is unfit for work is nothing new or urgent - the fact that she is not fit for work is one of the bases for her application for further provision from the deceased's estate. The medical certificate is not cogent evidence of an urgent medical appointment to obtain a biopsy - which is what [redacted - plaintiff] represented to the court.
8. Secondly, [redacted - plaintiff] is not entitled to legal representation through Law Access, and there is no guarantee that she will receive it. The court notified Law Access of the fact that the trial was listed for 5 to 7 February 2025. It is apparent that no lawyer was available and willing to assist her on a pro bono basis. [redacted - plaintiff] has been afforded ample opportunity to obtain legal representation.
9. Thirdly, I was satisfied that [redacted - plaintiff] was posted the notification of the hearing on 2 September 2024 to her nominated address. This is her requested mode of service. She has been aware since August 2024 that this matter would be listed for trial as soon as possible. [redacted - plaintiff] accepts that she received a text message notification of the hearing on 3 February 2025 and yet, even on her own assertion that this was the first time she became aware of the listing, she did not make any application to vacate the hearing until a few hours before it was due to commence on 5 February 2025. I do not accept that [redacted - plaintiff] was not notified of the trial listing in September 2024.
10. I also considered the following matters in refusing to vacate the trial. The defendants who are taking part in this trial have taken time off work, have children that they need to make arrangements for, and in [redacted - eighth defendant]'s case, live three hours' drive from Perth and have expended time in coming to court and money in accommodation costs. Each of the defendants indicated their distress at being engaged in these ongoing and protracted proceedings. This was not the first time that [redacted - plaintiff] has sought to vacate listed trial dates at late notice - I granted her application, made on short notice, to vacate the August 2024 trial dates. I made it clear to [redacted - plaintiff] on that occasion that, regardless of whether or not she had obtained legal representation, the trial would proceed on the next occasion it was listed.
11. There is no lack of procedural fairness afforded to [redacted - plaintiff] in refusing to dismiss her application to vacate the trial. [redacted - plaintiff] has been granted repeated opportunities to obtain legal representation or, in the absence of being able to do so, to file her own documents in support of her claim. This is [redacted - plaintiff]'s claim. It has been on foot since November 2021. The defendants are entitled to have the matter determined. There is difficulty in convenience, expense and emotional distress to all parties that can only be resolved by this matter being determined. There is also the matter of public interest. The resources of the court are limited. The courts are publicly funded. Matters cannot be allowed to drag on indefinitely. It is in the public interest that matters are resolved efficiently and promptly.
12. I was not satisfied that an adjournment of the trial would achieve anything other than further delay and distress for everyone concerned. I advised [redacted - plaintiff] that her application to vacate the trial was dismissed and that the trial would proceed. I enquired whether she wished to continue to attend the trial by telephone. [redacted - plaintiff] elected not to attend the trial by telephone on the basis that she had to attend the urgent medical appointment.
13. [redacted - plaintiff] therefore did not adduce any evidence at trial in support of her claim for further and better provision from the estate. Generally, in the absence of any evidence in support of her claim, it would not be possible to make any assessment of whether [redacted - plaintiff] was adequately provided for by her entitlement on intestacy from the deceased's estate. However, given the fact that all parties are self‑represented, I proceeded to hear the trial on the basis that each of their affidavits be admitted as evidence. I therefore, will assess [redacted - plaintiff]'s application for further provision on the basis that her evidence is that which is contained in the Second [redacted - Plaintiff] Affidavit and the Third [redacted - Plaintiff] Affidavit.
14. [redacted - plaintiff]'s evidence was as follows.
15. [redacted - plaintiff] is single with no dependants and says she has been unable to work since 1994 when she sustained permanent spinal injuries from a car crash.[36]
16. [redacted - plaintiff] has been receiving a disability support pension since 1994. [redacted - plaintiff] says she has been receiving payment and support from the National Disability Insurance Scheme (NDIS) from around 2015, as she requires support in the community and in her home.[37]
17. [redacted - plaintiff] says that she has suffered from chronic pain and chronic fatigue ever since the car crash in 1994 and has post‑traumatic stress disorder and anxiety associated with her permanent injury.[38] In addition to her spinal cord damage, [redacted - plaintiff] says she has other comorbidities such as arthritis, chronic trigger points and Hypermobile Ehlers‑Danlos Syndrome (hEDS). [redacted - plaintiff] says that she suffers from complications from hEDS which affect her muscle and internal organ connective tissue. [redacted - plaintiff] says that, due to a lack of treatment available in Australia, she requires costly, international private patient treatment.[39]
18. [redacted - plaintiff] says that she contributed to the wealth of the deceased. She says that, from the age of 8 to 20, she was the star of the family's two bands: initially, the '[redacted]' and later '[redacted]'. [redacted - plaintiff] says that her involvement in the [redacted] caused it to increase in popularity. [redacted - plaintiff] says that, due to her involvement in those bands, her father was able to retire early at age 35, purchase several properties and renovate existing property.[40] [redacted - plaintiff] says that when she was a child the deceased told her that the money she 'earned would be put in a trust to use as an adult'.[41]
19. [redacted - plaintiff] says that, between 15 February 1999 and 10 May 2001, she deposited at least $13,800 in the deceased's bank accounts. She says this money was meant to be paid back to her when the deceased sold the house in Merredin. [redacted - plaintiff] says that the house in Merredin was not sold during the deceased's lifetime and that she has never been paid back by the deceased or her estate.[42]
20. [redacted - plaintiff] says that her school grades were negatively affected because of the demanding workload she had with the family bands, including singing lessons, piano lessons, and guitar lessons.[43]
21. [redacted - plaintiff] was the victim of sexual assault committed by her brother [redacted - eighth defendant]. [redacted - plaintiff] deposes that this abuse and the subsequent criminal trial of her brother in 1999/2000 (in which he was found guilty) was traumatising and destructive to her and the family dynamic. [redacted - plaintiff] says that the deceased supported her during the trial and gave evidence on her behalf.[44]
22. [redacted - plaintiff] says that she had a very close relationship with the deceased. [redacted - plaintiff] says that the deceased said to her, upon [redacted - plaintiff] not being successful in claiming common law damages in 2003 for her motor vehicle claim:[45]

... to not worry about the lost damages claim, as she has plenty of assets thanks to my performing and she will look after me in her will, the rest of them (siblings) don't need any money off me - as I've made them multi-millionaires after assisting them with deposits of houses and showed them how to make money by renovating them and selling them on.

1. Further, [redacted - plaintiff] said that the deceased said the following about [redacted - second‑named first defendant and second defendant]:[46]

... she's had enough money off me over the years, she doesn't know how to invest it, despite me helping her with deposits on houses in [redacted], she still wants more.

1. [redacted - plaintiff] says that she used money from her victims of crime compensation towards the purchase of a property, in which she now lives. [redacted - plaintiff] says that her house is under threat of repossession as the lender has instituted proceedings against her.[47]
2. [redacted - plaintiff] listed her assets, liabilities and values thereof as follows: [48]

Asetts (sic) Liabilities

Home approx value $400-$450k Mortgage $420+k

Vehicles: 2009 Dodge Nitro $10k 0

Chrysler Valiant VJ coupe 1974 $20k 0

Cash approx $19k 0

Household effect $2k 0

Personal effects $3k 0

Total $454k - 504K respectively Total $420+k

1. [redacted - plaintiff] says her income, as at May 2022, was $443.50 per week for disability support pension and approximately $90,000 per annum in funds held by the National Disability Insurance Agency.[49]
2. [redacted - plaintiff] says, as at May 2022, her weekly expenditure was as follows:[50]

1. [redacted - plaintiff] says that, as at August 2024, her financial situation and her assets and liabilities were unchanged.[51] [redacted - plaintiff] provided a copy of a Centrelink income statement dated 30 July 2024.[52]
2. [redacted - plaintiff]'s claim is for further and better provision in the amount of the whole of the estate. Based on [redacted - first defendants]'s evidence at trial, that amounts to $626,290.01.[53]
3. [redacted - plaintiff] did not provide any independent evidence in support of her contention that, due to a lack of treatment available in Australia, she requires costly, international private patient treatment. It is not possible for me, in the absence of such independent evidence, to assess whether [redacted - plaintiff] does require such treatment and what the cost of that treatment might be.
4. As I have already outlined, it is also necessary to consider the circumstances of the other defendants who are entitled upon intestacy, even though they do not make a claim against the estate of deceased.

[redacted - first‑named first defendant and third defendant]

1. [redacted - first‑named first defendant and third defendant] gave oral evidence at the trial.
2. [redacted - first‑named first defendant and third defendant] gave evidence that he believed [redacted - plaintiff] was more than capable of working but that, in any event, she was looked after by the NDIS. [redacted - first‑named first defendant and third defendant] said that [redacted - plaintiff] had been the source of many problems in the family.

[redacted - second‑named first defendant and second defendant]

1. [redacted - second‑named first defendant and second defendant] relied upon her affidavit sworn on 13 July 2022. She also gave oral evidence at the trial.
2. [redacted - second‑named first defendant and second defendant] lives in [redacted] in a house she owns. [redacted - second‑named first defendant and second defendant] is currently unemployed and has been on Centrelink job allowance pension since approximately January 2022.[54]
3. At the date of the deceased's death, [redacted - second‑named first defendant and second defendant] was working in traffic management. [redacted - second‑named first defendant and second defendant] has had two hernias which have affected her ability to work and is currently on the waitlist for surgery.[55]
4. [redacted - second‑named first defendant and second defendant] lived with the deceased for 20 years prior to her death. For the five years prior to her death, [redacted - second‑named first defendant and second defendant] was the deceased's registered carer and received a carer's pension.[56] [redacted - second‑named first defendant and second defendant] now lives with her partner and her partner's two children who are 12 and 15. Her partner is a casual carer and receives a disability pension.[57]
5. [redacted - second‑named first defendant and second defendant] estimated that her assets, as at May 2022, are worth $99,000.00, comprising her home, bank account, superannuation, and Mitsubishi Triton and taking into account a $2,000 Zip Pay liability.[58]
6. [redacted - second‑named first defendant and second defendant] estimated her fortnightly income is currently $927.00 and her partner's fortnightly income is approximately $950.[59]
7. [redacted - second‑named first defendant and second defendant] estimated her fortnightly expenditure, as at May 2022, was approximately $745 comprising the following:[60]

Car running costs (including registration, RAC fuel, depreciation, etc.)

1. [redacted - second‑named first defendant and second defendant] gave evidence that the money she has received from the deceased's estate has already been spent on rates, outstanding taxes, repairs, insurance and general living.[61]
2. [redacted - second‑named first defendant and second defendant] gave evidence that [redacted - plaintiff] was not very involved in the family band, nor did she advance any money to the deceased.[62] [redacted - second‑named first defendant and second defendant] also gave evidence that, in 2021, she was the victim of an assault by [redacted - plaintiff] (by [redacted - plaintiff] kicking her) and that she was present while [redacted - plaintiff] was video recorded using a ladder to climb over the fence at the deceased's home and run into the deceased's home.[63]

1. [redacted - fourth defendant] gave oral evidence at trial. [redacted - fourth defendant] also disputes that [redacted - plaintiff] has a disability which prevents her from working.
2. In relation to his own circumstances, [redacted - fourth defendant] gave evidence that he is currently unemployed. He is married and his wife works part‑time and has arthritis in her shoulder. They have five children. They own a house in [redacted] and have a mortgage. He could not say how much the house was worth or how much the mortgage was. [redacted - fourth defendant] gave evidence that 'times are quite tough at the moment'.[64]

1. [redacted - fifth defendant] gave oral evidence at the trial. [redacted - fifth defendant] also disputes that [redacted - plaintiff] has a disability which prevents her from working. [redacted - fifth defendant] gave evidence that he believed [redacted - plaintiff] was receiving income from other sources, for example by breeding and selling puppies.[65]
2. [redacted - fifth defendant] has five children, from ages 5 through to 17. One of his daughters has autism.[66]
3. [redacted - fifth defendant] gave evidence that he has spent the money he received from the deceased's estate.[67]

1. [redacted - sixth defendant] relied upon his affidavits sworn on 4 July 2022 and 13 August 2024. He also gave oral evidence at the trial.
2. [redacted - sixth defendant]'s affidavit and oral evidence focused on his concerns with the credibility of [redacted - plaintiff]. [redacted - sixth defendant] says that [redacted - plaintiff] is not telling the truth about her disabilities, the extent of her involvement with the band, her income, or her relationship with the deceased. [redacted - sixth defendant] produced YouTube videos which depicted [redacted - plaintiff] wearing a headset and being interviewed by another person which indicated [redacted - plaintiff] had access to the internet at her home.[68]
3. In relation to his own circumstances, [redacted - sixth defendant] says that although he does not make a claim for further provision, he was deserving of further provision because:[69]

(1) he does not have a stable career or employment;

(2) he was subjected to an unsettling upbringing as a child;

(3) he did not complete high school;

(4) at the time of the deceased's death, he supported himself through handyman work and rentals;

(5) as he ages, his income from handyman work decreases;

(6) at the time of the hearing, he had undergone orthopaedic surgery for a debilitating shoulder and arm condition which has reduced his employment prospects;

(7) he has recurring spinal problems such as arthritis and discomfort from scoliosis;

(8) as he was self‑employed, there was no compensation for his work‑induced shoulder injury and he has used his savings to live;

(9) he owns a single property which is his place of residence;

(10) he maintained a positive relationship with the deceased;

(11) he performed work for the deceased over decades; and

(12) his busking and performances generated money for the deceased which went into the family home, therefore, he has an expectation that he would be compensated from the deceased's estate.

1. [redacted - eighth defendant] relied upon his affidavit sworn on 29 June 2022. He also gave oral evidence at the trial.
2. [redacted - eighth defendant] is 58 years old and lives in a house he owns with his de‑facto partner. His health is good.[70] [redacted - eighth defendant] and his partner have adult children who are not dependant on them.[71]
3. [redacted - eighth defendant] has been unemployed since approximately 2014. He receives JobSeeker payments of approximately $800 per fortnight. [redacted - eighth defendant] owns his own house in the country which he estimates is worth $120,000. [redacted - eighth defendant] gave evidence that the house needs a lot of work.[72]

1. I now turn to consider [redacted - plaintiff]'s claim for further provision having regard to the evidence I have outlined. I must apply the two‑stage process, which involves answering the following questions:

(1) does the disposition of the deceased's estate pursuant to laws of intestacy make adequate provision for [redacted - plaintiff]'s proper maintenance, support, education or advancement in life; and

(2) if the answer to (1) is no, what would be adequate provision for [redacted - plaintiff]'s proper maintenance, support, education and/or advancement in life, and should the court exercise its discretion to make an order for provision in her favour?

Does the disposition of the deceased's estate pursuant to the laws of intestacy make adequate provision for [redacted - plaintiff]'s proper maintenance, support, education or advancement in life?

1. As I have outlined, in considering whether [redacted - plaintiff] has been adequately provided for by the deceased's estate pursuant to the laws of intestacy, in addition to considering [redacted - plaintiff]'s needs and moral claim, I must also have regard to the size of the deceased's estate and to the needs and moral claims of [redacted - plaintiff]'s siblings.
2. [redacted - plaintiff] is in receipt of a disability support pension and payments from the NDIS. Many of her siblings are also in receipt of social security payments.
3. The relevance of government payments to an application for provision from a deceased's estate was helpfully summarised by Solomon J in Boscolo, as follows:[73]

(a) The protection of public funds from claims by indigent persons is not of itself a purpose of family provision legislation. It is not the Court's task to be vigilant to throw burdens off public funds and onto private estates.

(b) However, the public purse is incidentally protected by the legislation because a public policy consideration underlying the operation of the Act is the community's expectation that, where circumstances allow, the moral obligation of a testator includes making provision that is adequate from the estate. This reflects an expectation that testators should look after their own to the extent they can, rather than the community having to do so through the mechanism of the aged or other pension. Where there is sufficient wealth in an estate, there is an expectation it should not be directed away from someone in need to whom the testator owes a moral duty, so as to enhance the claim to public funds. The orders that may be made and the manner in which they may be framed by the court will often be informed by that expectation.

(c) An applicant's entitlement to a pension or other form of social security cannot therefore, of itself, answer or defeat a claim for proper provision.

(d) When making provision, a wise and just testator usually makes a will without regard to any means-tested pension that a beneficiary may be able to receive. However, a testator does usually take into account the income that the various beneficiaries would be receiving under superannuation or other pensions. The court, in seeking to redress any moral failure to meet a claim on the estate, may take the same approach.

(e) Where the estate is small and especially where there is a series of claims on the testator's bounty, it may well be proper for the testator when making a will, and the Court when framing its order, to preserve a pension entitlement. It may be appropriate in such circumstances to leave an applicant wholly or partly dependent on a pension entitlement or to mould the provision made so that the entitlement is preserved in whole or in part.

(f) The acceptance of benefits for which the law provides is in every way legitimate. It involves no social stigma and incurs no disapproval from the Court.

(g) The considerations regarding pension entitlements may be relevant at both stages of the application. That is, they may first be relevant to the jurisdictional question of whether the applicant has been left without adequate provision. Account may be taken of such an entitlement in assessing whether in the circumstances an applicant has been left without adequate provision. That is especially so in a small estate and all the more so when there are many claims pressing on the estate. If the point is reached that adequate provision has not been made, the consideration may be relevant again in the exercise of the court's discretion in determining the quantum of provision to be ordered. Again, those considerations may weigh more heavily when dealing with a small estate, and more heavily still where there are many claims pressing on the estate.

1. While these principles are of broad application, they must not be applied inflexibly. Each case must be considered on its own particular facts. An application of the general principles to the facts in this case leads me to consider the following relevant matters in answering the question of whether [redacted - plaintiff] has been adequately provided for by the deceased's estate.
2. The first matter is the contribution that [redacted - plaintiff] made to the deceased's estate. [redacted - plaintiff]'s evidence consisted of her assertions that she was heavily involved in the [redacted], that she contributed to the deceased's estate and that she had a close relationship with the deceased. These assertions were not supported by any independent and/or contemporaneous evidence. The only independent evidence provided by [redacted - plaintiff] was a Centrelink income statement.
3. [redacted - plaintiff]'s siblings, [redacted - first‑named first defendant and third defendant], [redacted - second‑named first defendant and second defendant], [redacted - fourth defendant], [redacted - fifth defendant], [redacted - sixth defendant] and [redacted - eighth defendant], each dispute the assertions that [redacted - plaintiff] made about their family history, her contribution to the family bands and/or the assets of the deceased and her relationship with the deceased.
4. It is not possible to make any positive findings of fact about the [redacted] family history, the contribution or lack thereof by [redacted - plaintiff] to the family bands and/or the assets of the deceased and [redacted - plaintiff]'s relationship with the deceased. That is because there is no objective evidence or contemporaneous evidence that supports the assertions made by any of the parties. The only finding I make, based on the evidence before the court, is that [redacted - plaintiff] has not satisfied the court, on the balance of probabilities, of her version of events. She has the onus of doing so and has not discharged that onus. On that basis, I cannot find that [redacted - plaintiff] made a contribution to the deceased's estate.
5. The second matter is [redacted - plaintiff]'s injuries and disabilities and her social security payments. Her siblings dispute that [redacted - plaintiff] has the injuries and disabilities she contends. There was independent evidence adduced in the form of a video recording and YouTube appearances of [redacted - plaintiff] in support of their contention that [redacted - plaintiff] has significant mobility. I do not, however, make any positive findings in relation to [redacted - plaintiff]'s mobility. There is no dispute that [redacted - plaintiff] is receiving NDIS payments and a disability support pension. That is the best evidence of her inability to work and her need for financial assistance due to her disabilities. I accept [redacted - plaintiff]'s evidence that as at May 2022, she was receiving a disability support pension of $443.50 per week and NDIS funding of $90,000 per year and that her expenses were $341.70 per week. Although the first stage of the assessment is to be made at the date of the deceased's death, this is the best evidence before the court of [redacted - plaintiff]'s position nearest to that date. Based on this evidence [redacted - plaintiff] had an excess of income over expenses per week. [redacted - plaintiff] also had a significant sum per year available to her, through her NDIS funding, to improve her quality of life. At the date of the deceased's death, I find that [redacted - plaintiff] did not have any needs that were not being adequately met by those entitlements.
6. The third matter is the competing needs and moral claims of [redacted - plaintiff]'s siblings. As at the date of the deceased's death, [redacted - first‑named first defendant and third defendant], [redacted - second‑named first defendant and second defendant], [redacted - fourth defendant], [redacted - fifth defendant], [redacted - sixth defendant] and [redacted - eighth defendant] were each dependent, to differing extents, on government payments for assistance with their daily living costs. None of them had any significant assets, other than that some of them had a modest home in a rural area. [redacted - second‑named first defendant and second defendant] was the deceased's carer at the time that the deceased died and was receiving a carer's pension. There are eight children of the deceased who are entitled on intestacy. [redacted - seventh defendant] has agreed to accept $25,000 in satisfaction of her entitlement on intestacy to the deceased's estate. The remainder of the deceased's estate is subject to seven equal claims. In my view, each of [redacted - plaintiff]'s siblings who took part in the trial have strong competing claims against the estate of the deceased.
7. The fourth matter is the size of the deceased's estate. The deceased's estate is approximately $626,000, which is modest given the number of claims against it. Each of the seven children of the deceased who took part in these proceedings are entitled, upon intestacy, to an amount of approximately $85,000.
8. [redacted - plaintiff] is entitled to approximately $85,000 from the deceased estate. Even assuming, for the purposes of this exercise, [redacted - plaintiff] has no assets, she was receiving NDIS funding and a disability pension at the date of the deceased's death. [redacted - plaintiff] did not therefore, have significant needs that were not being met by those government payments. Of significant relevance is the fact that each of her siblings has competing needs and moral claims on the deceased's bounty. In all these circumstances, I find that the deceased did make adequate provision, by operation of the laws of intestacy, for [redacted - plaintiff]'s proper maintenance, support, education or advancement in life.
9. Having found that [redacted - plaintiff] has been adequately provided for, it is not necessary to consider the second stage of the test. [redacted - plaintiff]'s claim for further provision from the estate of the deceased must be dismissed.

1. The plaintiff's application pursuant to s 6 of the Act for further provision from the estate of the deceased is dismissed.
2. In relation to the costs of the action, I order that the legal costs of [redacted - first‑named first defendant and third defendant], [redacted - second‑named first defendant and second defendant], [redacted - fourth defendant] and [redacted - fifth defendant] incurred while they were represented by solicitors be paid out of the estate of the deceased. Otherwise, there is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Section 14 (2B) Administration Act.

[2] Affidavit of [redacted - First‑named First Defendant and Third Defendant] sworn 8 June 2022 [11] - [12].

[3] Affidavit of [redacted - First‑named First Defendant and Third Defendant] sworn 8 June 2022 [13] - [14].

[4] Orders of Hill J made on 23 June 2022.

[5] ts 5 February 2025, pages 205 - 206.

[10] Stone v Braun [2015] WASCA 103 [62] - [69].

[11] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].

[12] Tobin v Dodd [2004] WASCA 288 [14].

[13] Woodley v Woodley [2018] WASCA 149 [76] - [77].

[14] Boscolo v Australian Unity Trustees Limited as administrator of the estate of Mario Boscolo [2023] WASC 391 [133].

[15] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [67] - [69].

[16] Devereaux-Warnes v Hall [70] - [71].

[17] Devereaux-Warnes v Hall [74] - [75].

[18] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [55].

[20]Worladge v Doddridge [1957] HCA 45 [11].

[21] Vigolo v Bostin [2005] HCA 11; (2005) CLR 191.

[23] Musasghi v Gebremariam [2022] WASCA 37 [126].

[27] Re Allen; Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218, 221.

[28] Goodchild v James (1994) 13 WAR 229, 239.

[29] Kilkenny v Kilkenny [2018] WASCA 197 [60(3)].

[32] Grey v Harrison [1996] VSC 74; [1997] 2 VR 359, 366 - 367.

[34] Boscolo [150]; Finlay v Pereg [2022] NSWSC 32 [68] - [69].

[35] ts 23 August 2024, pages 182 - 183.

[36] Second [redacted - Plaintiff] Affidavit [4].

[37] Second [redacted - Plaintiff] Affidavit [4] - [5].

[38] Second [redacted - Plaintiff] Affidavit [4] - [5].

[39] Second [redacted - Plaintiff] Affidavit [4] - [5].

[40] Second [redacted - Plaintiff] Affidavit [6].

[41] Second [redacted - Plaintiff] Affidavit [10].

[42] Second [redacted - Plaintiff] Affidavit [11] - [12].

[43] Second [redacted - Plaintiff] Affidavit [6].

[44] Second [redacted - Plaintiff] Affidavit [7] - [8].

[45] Second [redacted - Plaintiff] Affidavit [13].

[46] Second [redacted - Plaintiff] Affidavit [13].

[47] Second [redacted - Plaintiff] Affidavit [15].

[48] Second [redacted - Plaintiff] Affidavit [16].

[49] Second [redacted - Plaintiff] Affidavit [17].

[50] Second [redacted - Plaintiff] Affidavit [17].

[51] Third [redacted - Plaintiff] Affidavit page 2.

[52] Third [redacted - Plaintiff] Affidavit pages 4 - 5.

[54] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [2] - [4].

[55] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [5].

[56] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [6] - [7].

[58] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [20].

[60] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [20].

[61] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [21].

[62] [redacted - Second‑named First Defendant and Second Defendant] Affidavit [14] - [18].

[64] ts 5 February 2025, pages 217 - 218.

[69] Second [redacted - Sixth Defendant] Affidavit [88].

[70] [redacted - Eighth Defendant] Affidavit [1] - [4].

[72] ts 5 February 2025, pages 228 - 229.

[73] Boscolo [176] referring to Finlay v Pereg.