Succession - Family provision - Requirement for adequate and proper maintenance - Duty of testator - Duty to children - Whether applicant left with insufficient provision - Treatment of particular applicants - Adult children generally - Further provision ordered in the sum of $50,000.

Judgment Number: [2026] TASSC 2

NATHASHA JANE SMITH, BRENDAN LEIGH SMITH and NERRILEE BURKE

v EILEEN MAY FLINT (as executrix of the will of the late Graham Leslie Meares)

1. These are my reasons for finding that the first applicant's application succeeds; and for finding that the Court is without jurisdiction to make any order for further provision for the second and third applicants.

1. By originating application filed 9 October 2023, each of the three adult children of the testator Graham Leslie Meares applied under the Testator's Family Maintenance Act 1912 (the Act) s 3, for further provision from his estate. For ease of reference, and without any disrespect, I will refer to the applicants by their given names.
2. The application sought orders which include the following:

"2 A declaration that the Applicants have been left without adequate provision for their proper maintenance and support.

1. An order that such provision as this Court thinks fit be made for the Applicants out of the Estate of the deceased.

(a) specifying the amount and nature of such provisions;

(b) specifying the part or parts of the Estate from which such provisions shall be raised or made on and prescribing the manner of raising and paying such provision; and

(c) stating any conditions, restrictions or limitations imposed by this Court."

1. The testator died on 6 December 2021, aged 68 years. The testator made a will dated 27 September 2012, appointing his sister Eileen May Flint as his executrix. Ms Flint is also a principal beneficiary of the testator's will.
2. Relevantly, the will provides as follows

"I GIVE AND DEVISE my land, house and contents situate at 3382 Gordon River Road, Fitzgerald equally unto my sister Eileen May Flint, Tony George Weavell and David John Harvey.

I GIVE DEVISE BEQUEATH AND APPOINT the rest and residue of my estate both real and personal whatsoever and wheresoever situate equally unto my son Brendan Smith and my daughters Natasha Smith and Nerilee (sic) Meares.

IN THE EVENT of any of my children contesting the provisions of this my Last Will then I forthwith preclude them from participating in any distribution under this my Last Will."

1. The testator's estate effectively consisted entirely of the property at 3382 Gordon River Road, Fitzgerald (the property). Even though the testator left the residue of his estate equally to Natasha, Brendan and Nerrilee, the only property falling in the residue is a Holden Calais motor vehicle.
2. The terms of the will made it clear that if the applicants 'contested the provisions of the will' they would be 'forthwith precluded' from participating in any distribution under the will. None of the parties suggested that this is a relevant provision of the will. While no submissions were made on the point, it is probably the case that the operative effect of the provision is void as against public policy as discussed in Singer v United Israel Appeal Refugee Relief Fund [2013] NSWSC 1035 (citing In the Will of Gaynor [1960] VicRp 99; [1960] VR 640, Re Chester (dec'd) (1978) 19 SASR 247 and Shah v Perpetual Trustee Co (1981) 7 Fam LR 97).

The Testator's Family Maintenance Act 1912 and some relevant principles

"3(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."

1. Under s 3 of the Act, the first question to be decided is whether the applicants were left without adequate provision for their proper maintenance and support (the jurisdictional question). Before the Court can exercise its jurisdiction to make provision for any of the applicants out of the deceased estate, this first question must be decided in that applicant's favour. This is a question of fact to be determined at the date of the testator's death, having regard to reasonably foreseeable circumstances at that time.[1]
2. If the applicants fail on the first question, the second question is not reached. But if an applicant succeeds in establishing that there is jurisdiction to make an order for provision, the second question involves the exercise of a discretion as to what provision, if any, ought to be made for a particular applicant, out of the estate.[2]
3. In order to determine the jurisdictional question on these applications, the following principles are to be applied:[3]

(a) Each applicant bears the onus of establishing an identifiable justification for intervention by the Court under the Act.[4]

(b) The jurisdictional question will be considered from the perspective of a wise and just testator who was aware of all the relevant circumstances at the date of his death, including reasonably foreseeable eventualities.[5]

(c) The Court must consider all relevant circumstances and in particular:

• the size and nature of the estate;

• each applicant's financial position;

• the totality of the relationship between each applicant and the testator; and

1. the relationship between the testator and other persons who have legitimate claims upon his bounty.[6]

1. The jurisdictional question is strictly one of fact but involves value judgments[7] informed by the concepts of "moral claim" and "moral duty", which connect the general, value-laden language of the Act to prevailing community standards.[8]

(e) Where an adult child is able-bodied and employed or otherwise capable of self-support, the parent's moral duty to make provision for them may (a) not arise; or (b) be significantly reduced; or (c) yield to competing claims, including those of needier siblings.[9]

(f) To be satisfied that an applicant has been left without adequate provision, the court must be persuaded that it has been presented with their entire financial context, at least in broad outline.[10]

1. If answer to the first question is that an applicant was left without adequate provision for their proper maintenance and support, the following principles apply to the second question:

(a) "Adequate" provision relates to the needs of the applicant[11] and is concerned with the quantum of the provision which should be made so that the provision is "proper".[12]

(b) "Proper" maintenance and support means proper in all the circumstances of the case, including the standard of living enjoyed by an applicant and those having competing claims, the need for assistance and the extent of the testator's ability to meet the claims.[13]

(c) "Maintenance" may imply mere continuity of a pre-existing state of affairs, and also relates to provision over and above mere sufficiency. "Support" may imply provision beyond bare need.[14]

(d) The enquiry whether an applicant has a relevant need of maintenance must not be too narrowly focused.[15]

(e) The exercise of the discretion is to be influenced by similar considerations to those applicable to the jurisdictional question.[16]

1. The question whether an applicant has been left without adequate provision for their maintenance and support is to be determined in light of all of the circumstances, including competing claims.[17] What is adequate and proper provision is necessarily fact specific[18] and is guided by community standards,[19] which may expect a parent to provide a buffer against the risk of destitution where an adult child falls on hard times, and where there are assets available.[20]

1. According to the Inventory of Assets and Liabilities annexed to the respondent's executor's affidavit, sworn 31 October 2023, the nett value is $327,856.52. The estate essentially consists only of the land, house and contents at 3382 Gordon River Road, Fitzgerald (the property) together with a Holden Calais car. No formal valuation of the property was tendered in evidence at the hearing but the respondent relied on a 2022 government valuation of $314,500. For the purposes of these reasons, the Holden Calais motor vehicle is valued at $12,000 and effectively represents the residuary of the estate to be shared between the testator's three children. At the hearing of the application, it appeared to be common ground that it is to be treated as part of the residue of the estate to be dealt with under the residuary bequest in the will.
2. The respondent, Ms Flint, submits that the testator was not free in equity to dispose of the property in any other way than he did in his will because of the work done by herself, her son David Harvey and Mr Weavell "over many years to turn the property into what it is today".

1. Brendan Smith is the son of the testator and Cynthia Smith, born on 11 June 1975, aged 49 at the date of the hearing. He is Natasha Smith's brother by the same mother. The testator was an absent father during Brendan's childhood, except for some alternate weekends and some school holidays. Even so, the relationship between father and son during childhood does not appear to have been a particularly close or happy one. Brendan said that he did not enjoy staying with the testator during his childhood and stopped visiting him at some point. Brendan does not recall his father paying for anything for him. He said that the testator did not spend a lot of time with him. He says the testator told him that he deliberately avoided working when his children were young so that he did not have to pay child support. He says the testator was very apologetic about his poor relationship with his children in the months leading up to his death. Brendan said that the testator told him that he wanted to leave the Fitzgerald property to the children to make up for not caring for them when they were younger, either financially or emotionally.
2. During adulthood however, Brendan said that he tried to see the testator as much as he could, and he would visit him approximately every second weekend. Brendan says that at the time of the testator's death, they had reconciled and they had a relationship. During the last six months of the testator's life, Brendan said he would travel to the property a few times a week to care for him, staying with him each weekend in order to help him with housework, cooking and washing. During these last six months, Brendan says that the testator was too weak to care for himself. He encouraged the testator to see a doctor, but he refused. Brendan says that he had a key to the property and would stay there two or three nights per week.
3. In November 2021, only a month or so before his death, Brendan says he visited and found the testator in a collapsed state and he called the ambulance, after which the testator was hospitalised for a period. Brendan said that what the testator needed was intensive care in a suitable facility and that he was prepared to assist the testator to make arrangements to sell the property to pay for a refundable accommodation bond. Brendan says that the testator did not want to remain in hospital and after some weeks he was discharged. Brendan says the testator's discharge from hospital was contrary to medical advice.
4. After being discharged from hospital, Brendan says it became difficult for him to visit the testator because the respondent and Mr Weavell changed the locks and refused to allow him access. That is disputed, but it is not necessary to resolve that dispute in order to determine Brendan's application. Brendan is very critical of the level of care that the respondent and Mr Weavell provided for the testator at the end of his life. Brendan says that the testator died only ten days after being discharged from hospital.
5. Brendan completed secondary schooling and qualified as a mechanic and auto electrician and now operates his own business as a sole trader. At the date of the hearing, he said that he was earning approximately $71,000 per annum from this business, up from $50,000 in 2024 ( see his affidavit sworn on 17 June 2024, par 90).
6. Brendan's evidence is that his capacity to earn is impacted by his deteriorating health and pain which is causing him to reduce his hours of work. Despite the increase in earnings from 2025 as compared with 2024, it was submitted that this will have an adverse impact on future income. In recent years, he has refused work as a heavy vehicle mechanic, preferring to work on light vehicles because of the deterioration of his physical health. He anticipates that in the present financial year he will reduce his income by more than $20,000. Brendan says that he intends to wind down his business in the next five years. He has no training in any other field of work.
7. At the date of the hearing, Brendan's assets were approximately $4800 in cash, motor vehicles valued somewhere between $130,000 and $170,000 which include: (a) a Mitsubishi Triton motor vehicle, used in his business, with a value of $65,000 which is subject to finance ($52,431); and (b) a vehicle valued at approximately $64,500; and (c) another in which he says his equity is approximately $10,000. He has approximately $50,000 in his superannuation account. His home at Bridgewater is valued at approximately $460,000, with approximately $282,000 owing on a mortgage (i.e equity of $178,000). It appears that Brendan's nett assets at the time of the testator's death were valued at about $316,000 and, at the date of hearing, about $307,000. Brendan's nett financial position is roughly equivalent to the size of the testator's estate.
8. Brendan is in a relatively new relationship with Ms Mansfield, who is casually employed. They live together at Brendan's property and share living expenses. Ms Mansfield's son also lives with them but he does not contribute to expenses. I infer he is aged about 18 or 19. Ms Mansfield earns between $800 and $1,500 per week as a disability support worker. She has assets and superannuation totalling about $30,000. As stated above, Brendan and Ms Mansfield have a joint CBA bank account holding almost $7,000.
9. I accept Brendan's evidence about his financial position and his relationship with the testator. I accept that his capacity to earn is - or at least will be - increasingly adversely impacted by his deteriorating health. Even so, his present financial position is approximately equivalent to the value of the testator's entire estate, upon which there are competing claims. His financial position is probably better than that of the respondent. It is certainly better than Natasha's.
10. I have regard to Brendan's evidence that the testator told him that he intended to leave the house to his three children equally in the context of his long neglect of them. I accept Brendan's evidence about (a) the nature of his relationship with the testator; (b) his own health; and (c) his assessment of his ability to conduct his business now and in the future. While Brendan was left with effectively nothing by the testator, the estate is a limited one. In light of the foregoing, I am not satisfied that Brendan, as a reasonably able bodied person capable of self support, was left without adequate provision for his proper maintenance and support. I find his claim must yield to the small size of the estate and to the competing claims of Natasha, Ms Flint and Mr Weavell.

1. Nerrilee Burke was aged 42 at the date of the hearing. The testator was divorced from Ms Burke's mother when she was about four or five years old. Between the ages of about five and 15 years of age, contact between Nerrilee and the testator was limited. When Nerrilee was about 15 years old, the testator returned to Tasmania after a period of absence and their contact resumed and they became relatively close.
2. Nerrilee has three children from a previous relationship: twins aged 14 and a younger daughter aged 12. Nerrilee was married in 2015 and she and her husband built a house at Mornington in 2022, with her husband being the sole registered proprietor. The reason for that arrangement was not explained. The property is worth $680,000, with a mortgage of $550,000. In 2015 or 2016, Nerrilee received $80,000 from the sale of her property at Maydena. From the proceeds of that sale, she spent $43,000 on personal health and fertility treatment, she paid off personal debts and car loans, purchased a bus for her husband's business and contributed $10,000 towards the repayment of her husband's personal debt.
3. Nerrilee owns one car estimated as being worth about $10,000 and another worth approximately $45,000, which is subject to a car loan of about $45,000 which is Nerrilee's only financial liability. Nerrilee has about $800 cash on hand and approximately $8,000 in her superannuation account. Nerrilee says her net fortnightly income is about $1,944 and, after meeting all her commitments she has a surplus of approximately $200.
4. Nerrilee said that since 2020, she has worked full-time as a trade assistant in her husband's business, which he has owned since before the commencement of their relationship. Nerrilee did not provide any more details of that employment. Nerrilee estimated that her combined household income for the 2024 financial year was $123,000.
5. Nerrilee says that her husband operated his business as a sole trader until he recently incorporated a company which she believes is the trustee of a trust. Nerrilee does not know any more of the detail of that because he her husband has excluded her from that information. Nerrilee said that she is not a director or shareholder of the company but she does not know if she is a beneficiary of the trust. There are no documents in evidence which evidence these assertions.
6. Nerrilee's counsel submitted that, at the date of the hearing, the evidence supports a finding that her asset position was valued at between $116,169.69 and $120,169.69. I would accept that these figures are indicative, but this appears to be a bare minimum, rather than a figure that the Court could be satisfied as being the full extent of her financial position. I am not satisfied that the Court "has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation": Barbuto v Barbuto [2019] NSWSC 1023 at [152]- [155]. There is a lack of necessary evidence of the detail of Nerrilee's income, her husband's business and her interest in their residential property of which Nerrilee's husband is the sole registered proprietor.
7. In any event, Nerrilee's financial position is perhaps not as good as Brendan's but significantly better than Natasha's. Because of the lack of clarity in the evidence of Nerrilee's true financial position, I cannot confidently compare her position to that of the respondent and Mr Weavell other than to say it is probably at least equivalent. However, Nerrilee's household income suggests a satisfactory degree of financial comfort. She also has an obvious capacity to continue to earn income.
8. Nerrilee was also left with effectively nothing by the testator. In light of the foregoing observations, the fact that Nerrilee is an able bodied person capable of self support, the small size of the estate and the competing claims upon it, I conclude that Nerrilee was not left without adequate provision for her proper maintenance and support.

1. Natasha was born on 23 February 1977 and she was 44 at the date of the testator's death (she was aged 35 when the testator executed his will). Natasha was born of the relationship of the testator and Cynthia Smith - as was Brendan Smith. That relationship ended when Natasha was about two years of age. Natasha says that the testator did not provide any financial support to her mother after the relationship ended. She had minimal contact with the testator throughout her life. There was a brief encounter with the testator for about an hour when Natasha was 14 when the testator unexpectedly visited her. Natasha held hope for a reconciliation which never occurred. Cards from the testator stopped arriving after she turned 16. There was a further encounter with the testator at her grandmother's Christmas party when she was 18.
2. Natasha is on a disability support pension of $950 per fortnight due to, among other things, rheumatoid arthritis, chronic back pain and depression. She has no assets, no superannuation and no employment history beyond short-term hospitality and retail roles. Between the ages of 15 and 32 she was in an abusive relationship, as a result of which her mental health is poor. At age 20 Natasha was diagnosed with depression. She was diagnosed with ovarian cancer at age 30 and rheumatoid arthritis at age 32. She presently lives in a dilapidated house owned by the estate of her late partner, Dale Harris, against which estate she is pursuing a claim under this Act. She is not paying anything directly towards her accommodation. She receives a fortnightly disability payment of about $950. Natasha was in a series of abusive relationships with each of her partners which contributed to her poor state of mental health. Her health difficulties prevent her from working. After paying for utilities, firewood, groceries, medication, and expenses for her dogs, Natasha has about $100 remaining.
3. The respondent submits that whilst she does not have a happy history of relationships, she gets on well with her mother and might expect to inherit from her. There is no evidence to support such an inference and I decline to draw it. The respondent submits correctly that Natasha has no children to provide for and so has no dependants; and that she has no liabilities. The respondent submitted that nothing this estate could provide to Natasha is realistically going to change her poor financial position. The respondent submitted that even though there might be reason in better circumstances to make some provision for her, this estate simply does not have the capacity to do so.
4. I reject the respondent's submission that Natasha will succeed in her application for provision from the estate of Dale Harris. That submission invites speculation as there is no evidence upon which to safely draw any such inference. Natasha's poor financial circumstances, physical and mental health appear to be long standing and ongoing.
5. I accept the submission that Natasha has negligible income, no savings, no superannuation, insecure accommodation and ongoing and debilitating medical issues. If she is required to leave the Droughty Point residence, it is difficult to see how she will be able to afford reasonable accommodation, assuming $100 per fortnight is available for that expense. It is not clear how she would afford the usual expenses associated with moving out of her existing accommodation and establishing a new household. Natasha gave no specific evidence of precisely what purpose to which she might apply money from the estate. However, it is beyond doubt that she has demonstrated that she has 'need' for the purposes of the Act. It appears obvious that any amount of further provision under the Act would be applied to the areas of need that Natasha identified: improving the quality of life in relation to her accommodation and improving the presently poor quality of her day to day life.
6. I am satisfied that Natasha has been left without adequate provision for her proper maintenance and support thereafter. Natasha's needs are for money to access secure accommodation, medical care and generally improve the quality of her life such as would be afforded if she had more money.
7. Having regard to the above, I am satisfied that Natasha's need is significant. I understand the respondent's submission that "nothing this estate could provide to her, if anything, is realistically going to change that position". However, an applicant for further provision does not carry a burden of establishing that the amount available from within the estate must have a particular degree of impact on the identified considerations which constitute the applicant's need; i e that the amount under the estate could 'change the position'.
8. The fact and nature of the estrangement between Natasha and the testator does not terminate his moral obligation to provide for her and does not prevent her from satisfying the jurisdictional requirement under the Act. The testator knew Natasha was his daughter. His poor personal relationship with her as a parent is relevant but not determinative. A wise and just testator, aware of Natasha's circumstances at the date of his death on 6 December 2021, would have known that she had grown up without a personal and emotional relationship with her father despite the fact that she wanted one. He would have known that Natasha's financial position was poor, as was her mental and physical health. A just and wise testator would have realised that Natasha was in need of provision for her maintenance and support.
9. The jurisdictional question is answered in Natasha Smith's favour. For the foregoing reasons, I am satisfied that Natasha Smith was left without adequate provision for her proper maintenance and support.

1. For the following reasons I propose to make orders making further provision for Natasha out of the testator's estate.
2. The jurisdictional question has been answered in Natasha's favour, it is necessary now to determine what, if any, further provision should be made for her out of the estate. Natasha submits that her need for further provision arises from circumstances that include (a) ongoing and debilitating medical issues, (b) limited income, (c) no savings or superannuation and (d) that she will be likely soon to have no accommodation when her claim against Dale Harris's estate finalises. She submits that some further provision from her father's estate would assist her to obtain independent living and some degree of a financial buffer in life, though she does not assign any particular value to any of those particular needs.
3. The respondent submits that no further provision should be made for Natasha because the estate is really nothing more than a legal estate which has been substantially built by Eileen, Mr Weavell and Mr Harvey, which the testator recognised in leaving his estate to them in his will. The respondent's case is that no further provision should be made for Natasha:

"because [the testator] acknowledged his obligations based upon a long family history of what was agreed during the course of that history and what was done on the basis of what was agreed".

1. The reference to "what was done" is a reference to the renovation of the property by the respondent Eileen Flint, her partner Tony Weavell and her son David Harvey. The respondent submitted that at no time did Natasha's counsel put to either Ms Flint or Mr Weavell that they had not been renovating the property or that receipts for expenditure associated with the renovation did not, in fact, exist. However in fairness to the applicants, the cross examination of both Ms Flint and Mr Weavell did sufficiently put them on notice that their evidence was challenged on the proposition based upon the "long family history". Firstly, the applicants' counsel challenged "what was done" - the longevity of the project and the extent of their expenditure on the renovations. Secondly, the applicants' counsel challenged the proposition that "what was done" was attributable to: i e "what was agreed". The extent of the challenge was sufficient given the point in issue. The applicants sought to meet the respondent's rebuttal of their claim - the proposition that the testator's will "acknowledged his obligations under s 8A of the Act" (at transcript page 74.5-6). I interpreted this submission as meaning that Eileen, Mr Weavell and Mr Harvey substantially built the estate, which explains the testator's reasons for making the dispositions in his will and for not making further provision for any of his children.
2. The respondent's case presents the following issue for determination: when considering further provision for Natasha, is there sufficient evidence that the testator's estate was "substantially built by Eileen, Tony and David which Graham clearly recognised in making the will in the way that he did".[21] It is to be acknowledged that in 2012 the testator's intention was clear enough: that the property should go to Eileen, Tony and David and that his children must get nothing. The question is whether the evidence establishes this proposition as advanced by the respondent, to the extent that no further provision should be made for Natasha.
3. The relevant evidence of what was done and what was agreed was given by Ms Flint and Mr Weavell (Mr Harvey did not provide an affidavit, give oral evidence or otherwise appear to the applications). The respondent's case very largely depends upon an acceptance of Ms Flint's and Mr Weavell's evidence. For the reasons that follow, I do not wholly accept Ms Flint and Mr Weavell's evidence.

History of the property at Fitzgerald and what was done there

1. Ms Flint deposed to the history of the Fitzgerald property. The property was purchased under a mortgagee sale (by Westpac) by an agreement for sale dated 21 August 1984, evidenced by the second agreement for sale where the testator and his mother signed as joint purchasers for the purchase price of $16,000. The agreement provided a completion date of 30 August 1984. Ms Flint deposed that the purchase "was completed by my mother and Graham jointly borrowing the sum of $14,968.50 (not including add on costs) from Westpac in 1990 which was to be secured over the property". I do not accept that the mortgagee sale under the August 1984 agreement did not complete until 1990. Ms Flint deposed that part of the purchase money was from a joint loan from Westpac in the sum of $14,968.50. I do not accept that. The loan document Ms Flint exhibited to her affidavit in support of that assertion was a 1990 Westpac 'Offer to make a Secured Personal Loan' which clearly appears to relate to the purchase of a motor vehicle, given that the document relied upon discloses that the amount financed was to be applied by way of a $15,000 bank cheque to Motors Pty Ltd.[22] While the security described in that loan document is described as "Main Road Fitzgerald", no title details are provided and it is obvious that this 1990 Westpac agreement has nothing to do with the purchase of the property. This aspect of Ms Flint's evidence raised some concerns about her reliability as a witness. Consequently, there is no evidence as to how the purchase of the property was financed. I note that the agreement for sale records that Mrs Meares was retired and that the testator was employed.
2. Ms Flint deposed that when the property was purchased it was in an extremely rundown state. The photographs and the oral evidence supports this to some degree but it is not entirely clear what work was involved in the subsequent renovation beyond what the photographs show.
3. In relation to "what was agreed", Ms Flint deposed that it was "always" the testator's intention to leave her the Fitzgerald property. She said that this was on the basis of firstly, what her mother told her, secondly what the testator had told her, and thirdly on the basis that the renovation work on the property was performed by herself, Mr Weavell and Mr Harvey. She said that the testator always told her that if he died before her, he would "leave the house" (transcript p 122). In relation to what her mother told her, Ms Flint said (at transcript p 123) her mother simply said "_[b]_ecause of the renovations you can have my half of the house" (despite Ms Flint's mother being a joint tenant).
4. Ms Flint said that in 2002, her mother relocated from Tasmania to Toongabbie in Victoria to live with her and Mr Weavell. Ms Flint said that she at the same time as her mother then returned to Tasmania in about 2003 to care for her mother. She said that "my mother invited Tony and I to agree to renovate the house in return so that I could continue to be her carer [at] the Fitzgerald property". It is not clear what Ms Flint meant by "in return", given that she was, on this arrangement, providing both care and renovation. In any event, Ms Flint was clear that she did the renovations for her mother.
5. Ms Flint said that her mother said nothing about leaving her share of the house to her until about 12 months after she returned to Tasmania. Ms Flint said in her second affidavit at par 69:

"In the first 12 months after we has started the renovations, my mother said to me that if Tony and I continued with the renovations, she would leave her half of the Fitzgerald property to me upon her death which we both agreed to."

1. During cross-examination, Ms Flint said of the renovation that "we still would have done it" even if her mother had not said that (at transcript p 114). Mr Weavell also said that they would have done the work even if Ms Flint's mother had not said she would leave her share of the house to Ms Flint (at transcript p 166).
2. Pressed on the matter of the reason that the renovations were undertaken, Ms Flint also said that she did the renovations "for Graham".[23]
3. For reasons given below which conclude that Ms Flint and Mr Weavell are unreliable witnesses, and because their evidence is largely controversial, not inherently likely and not reliably corroborated, I do not accept their evidence about what Mrs Meares said to them about leaving 'her half of the property' to them.
4. Mrs Meares died in 2012 without leaving a will and the testator survived to become the sole registered proprietor of the property by operation of the joint tenancy. Ms Flint said that the testator "had made it clear to both of us that [he] intended to leave the Fitzgerald property to us and David in the will if he died before Tony and me" (Ms Flint's second affidavit par 70). At par 74 of her second affidavit, Ms Flint said

"73 The will was made shortly after my mother's death on 7 September 2012 and its terms are what Graham told me he would do.

74 On the basis of what Graham told me about his intentions as to what was in his will, Tony, David and I all continued to renovate the house on the Fitzgerald property.

75 Graham was content for the three of us to continue the renovations on the Fitzgerald property in return for him to leave the Fitzgerald property to us.

76 From the time of my mother's death, Tony, David and I expended significant financial resources and much of our time in continuing the renovations."

1. It is, of course, the case that the will is consistent with the respondent's case that they renovated the house themselves, without contribution from the testator and so the testator left it to them reflecting that contribution. However one of my difficulties is in accepting the word of Ms Flint and Mr Weavell that they did all the work and paid for all the materials; and that Mrs Meares and the testator made the 'agreements' relied upon.
2. In relation to "what was done", the photographs tendered by Ms Flint undoubtedly depict very substantial renovations being done to the property, probably between about 2005 and 2011. Ms Flint said the renovations commenced in about 2005 and she thought that they had continued until about 2010 or 2011 but did not really know. There may have been renovations after 2011 but there are no photographs. There is no dispute as to the extent of the work done up to the stage of the last photograph. Ms Flint says there is ongoing work and maintenance being done.
3. Ms Flint initially said that while they were in Victoria, she and Mr Weavell had accumulated building materials to help renovate the property before she returned to Tasmania.[24] Subsequently Ms Flint said that those materials were initially purchased for a house in Toongabbie, Victoria, which they intended to buy and renovate.[25] Neither Mr Weavell nor Ms Flint could say what the materials cost.[26] Mr Weavell said there was a 20 foot, 16.5 tonne container containing building material including windows, weather boards, beams, tiles and tin. At par 83 of her second affidavit Ms Flint said that "Tony and I have put all of our resources into turning the Fitzgerald property from a falling down old home into a comfortable home for us to live in, neither of us have any assets of our own." I will return to the topic of Ms Flint and Mr Weavell's assets.
4. Ms Flint said that the only work the testator did on the renovation was his bedroom and helping to put the tin on the roof. It is of importance that Ms Flint said that her mother and the testator also paid for some of the materials used in the renovation, however no specific details were provided.[27] Nerrilee Burke gave evidence that she was at the property sometimes when "they made decisions" about the renovation and she remembers "there was annoyance about an ugly timber wall in the lounge room that was left there because Nan had paid for the renovations and that she wanted the wall left there".[28] Nerrilee said that she understood that Mrs Meares had paid for at least some of the renovation. These aspects of the evidence give rise to an enquiry about whether the evidence of Ms Flint and Mr Weavell should be accepted that they had performed all the work and bought all the materials to the extent that they built the testator's estate.
5. Other relevant evidence on the point is that Ms Flint said that David Harvey worked on the renovations and bought some of the boards, screws and nails (see transcript at p 116). Mr Weavell said that he bought all the building material for the house.[29] Mr Weavell was challenged as to whether he had receipts for any of the building materials and he said he did not. It was not put to Mr Weavell that he bought none of the building materials and it must be accepted that he bought some.
6. Ms Flint accepted that she and Mr Weavell have had the benefit of "free accommodation" during the period they have lived at the property. In fairness to Ms Flint and Mr Weavell it must be observed that there is no dispute that they performed work in the renovation of the property and that they routinely contributed to some household expenses. It is not in dispute that Ms Flint and Mr Weavell did not pay rent or board at any time when they were living at the property. It appears that Mr Weavell has paid "rates and taxes now since Graham has passed away", whereas there is no evidence that either Mr Weavell or Ms Flint paid or contributed to rates otherwise during the period they have lived at the property. Ms Flint said that (at transcript p 111):

"We all - when we were all living together, we all threw in a hundred dollars a fortnight and then I'd go and get the groceries and whatever was left over went into a tin to assist with the hydro and the wood. And if it needed to be more, we use to always throw in what needed to make up whatever the bill was.

So, for you staying at the house since 2003, you were contributing a hundred dollars a fortnight?......Yes.

And that was food and bits and pieces?......Yeah, we bought our own personal stuff.

1. While the questions and answers were somewhat ambiguous as to who contributed what, it appears to be the case that Ms Flint and Mr Weavell jointly contributed $100 per fortnight to living expenses when they were living at the property.
2. Determination of the question of "what was done" involves the question of whether the respondent's evidence should be accepted that she and Mr Weavell performed effectively all of the renovation work. The question of "what was agreed" depends also, in part, upon acceptance of the evidence of Ms Flint and Mr Weavell that the testator's will reflects the statements made by the testator and Ms Flint's mother that the renovations were to result in their interests in the property being left to Ms Flint and Mr Weavell upon their deaths.
3. This proposition that the testator did effectively none of the renovation work and that the renovation work was done pursuant to statements made by Ms Flint's mother and the testator, depends upon drawing inferences reasonably open on the facts which are found to be accepted. Determining what facts are ultimately accepted depends upon an acceptance that firstly Ms Flint and Mr Weavell are credible witnesses as to what the testator and his mother said; and that secondly that they are credible witnesses as to the fact that they did all the renovation work. That appears to depend, in large part, upon acceptance that what Ms Flint and Mr Weavell say about that is true. I accept that they did a substantial amount of work. The longevity of their occupancy of the property, the existence of the materials collected for the Toongabbie property renovation and the photographs all support that they participated in the renovation. These things do not explain whether any funding or materials were ever supplied by either the testator or his mother Mrs Meares. There is no evidence to corroborate Ms Flint and Mr Weavell's evidence that they bought all the building materials (whatever they were) other than those bought by Mrs Meares, the testator and David Harvey (from whom there is no evidence at all). Nor is there much evidence from which it can be inferred with any precision what actual work was done. The case was conducted effectively on the basis that the photos spoke for themselves in relation to that issue but the evidence is somewhat vague and incapable of supporting any precise findings as to "what was done".
4. It is necessary to deal with the issue of the credibility of both Ms Flint and Mr Weavell, in light of some evidence they gave during the course of the proceedings.
5. In her second affidavit sworn 2 August 2024, under the heading 'Our Financial Position', Ms Flint deposed that:

"93 Tony owns a caravan which he purchased in 2018 for $25,000.00 but he still owes $5,000.00 on it.

1. After Ms Flint swore an oath that her oral evidence would be the truth, she swore that the affidavit was true:

"Do you maintain the contents of that affidavit to be true and correct?......Yes."

1. However, during cross-examination, the following exchange occurred:

"MS SUTHERLAND: (Resuming) You've given some evidence about Tony's financial position, so I assume you know what it is?......I can't remember what it be. I might have given evidence. He tells me and I just forget straight away. I've never been into Tony's finances.

Yep. Do you know - is that the same caravan you've referred to at paragraph 93 of your affidavit?......Yeah, well, we've only got the one caravan. Yeah. "

1. The transcript then records an interjection by Mr Zeeman observing the witness had already answered that question, but Ms Sutherland was entitled to press the point:

"MS SUTHERLAND: (Resuming) Would it surprise you to learn that on Facebook recently, Tony put a picture up of his new Sierra, calling it his 'new toy' and made comments to the effect that he was going to travel to Queensland in the Sierra? A really big caravan?......No.

1. I understood Ms Flint's answer to mean she was not surprised that Mr Weavell had posted his new caravan and the holiday plans on Facebook, but Ms Sutherland obviously interpreted her answer differently. Ms Flint then said "I've got all his things down here", referring to her affidavit which was with her in the witness box at the time. The Facebook post was dated 14 September 2024, obviously subsequent to when Ms Flint swore the affidavit upon which she was being cross-examined. The cross-examination continued:

"MS SUTHERLAND: (Resuming) Do you recognise that caravan?......Yes, I do.

That looks pretty expensive. How much was it?......Do I have to answer that?

WITNESS: I do. Thirty-nine thousand. And we're buy - selling the other caravan to pay for it.

MS SUTHERLAND: (Resuming) Are you selling the caravan that you've said in here's worth - you said he bought it for twenty-five thousand dollars, and he owes money on it?......Yes.

Do you know how much he's selling it for?......Thirty thousand, or thirty-five.

So, really, he's got thirty-five - he's got that caravan up for thirty-five thousand dollars, and he's just gone out and bought that new caravan in September last year?......Yep.

Yep. And you said a minute ago that you didn't - why did you not answer my question truthfully?......It's the only lie that I did make.

How can I believe anything else you've told me? You directly lied to me when I asked you a question?......Yeah, just one lie."

1. When Ms Flint gave her oral evidence during cross examination on 27 February 2025 and maintained that her affidavit was true and correct, she knew that paragraphs 93 and 95 were no longer true and correct. Specifically, her statement that "Tony has no other assets", was no longer true and correct. Mr Weavell's most substantial asset was, in fact, the new Sierra caravan. When she gave evidence in chief at the hearing, Ms Flint knew that Mr Weavell had bought the second caravan. If not for the questions asked in cross-examination, Ms Flint's evidence would have left the Court with a false appreciation of the facts on this aspect of the case.
2. Ms Flint volunteered that she lied. That was a concession reflecting the falsity of her evidence that (a) "we've only got the one caravan" and (b) they do not have "any other caravans". Even though Ms Flint volunteered that she lied, Mr Zeeman submits that "it was nothing of the kind". This submission must be immediately rejected. Ms Flint's statement that she lied accurately reflected the reality of the situation. Contrary to Mr Zeeman's submission, Ms Sutherland's cross-examination was not "carried out on the basis that Eileen and Tony had two caravans". That submission is entirely without substance. During cross-examination and before the topic of the second caravan was ever introduced, Ms Flint clearly stated: "yeah, well we've only got the one caravan, yeah". Ms Flint then declined an opportunity to correct the record when she was asked "have you got any other caravans?", to which Ms Flint answered "No".
3. Mr Zeeman submitted that Ms Flint "became confused when she was quick to admit that she had told a lie". That submission is rejected. It is without merit on both counts. Firstly, Ms Flint gave her initial evidence confidently and without confusion. I listened again to Ms Flint's evidence, but I could discern nothing to support the contention she became confused when the question was asked - or that she was confused at any time. Secondly, Ms Flint's concession was no 'quick admission'. Ms Flint volunteered the obvious comment that she had not been truthful. Even though she said that she had lied, Ms Flint did not actually answer the question why she not been truthful: Ms Flint simply offered the mitigation that it was "the only lie" and "just one lie".
4. Mr Weavell also deposed to having only one caravan. In his affidavit sworn 18 February 2025, Mr Weavell deposed as follows:

"22 As to paragraph 88 to 95 inclusive of Eileen's Affidavit regarding my financial circumstances, that those details are all correct, save that in respect of the caravan referred to at paragraph 93 of Eileen's Affidavit, I now owe approximately $7,000 on that caravan and not $5,000. The increase is due to the fact that I have not been able to keep up all of the payments on that loan. I now have the caravan on the market."

1. At par 22 of Mr Weavell's affidavit, he swore to the correctness of the parts of Ms Flint's affidavit which stated that he owned a caravan purchased in 2018 for $25,000 with $5,000 still owing on it and that he had no other assets. That was obviously incorrect. Mr Weavell's affidavit was sworn at a date well after the acquisition of the second caravan, yet he did not disclose that he had acquired it. Ms Sutherland asked Mr Weavell:

"Okay. Do you own any other caravans?......No, the bank owns the one I've got. I don't own it.

Did you buy a caravan in September last year, your 'new toy'?......The bank did, yes.

Yep?......Yeah. I don't own that. The bank owns that.

Why is it not listed in your affidavit?......Because I don't own it.

Why didn't you list it in your affidavit?......Because I don't own it.

Yep. Why didn't you mention any of this in your affidavit?......What's that?

That you've got the other caravan?......I said here I've got a caravan.

You did not say anything about having - ?......I don't class that fifth wheeler as mine. Because I don't own it, the bank owns it. If I foreclose on it, they take it.

Are there any other assets you have that you don't own that you haven't told us about?......No."

1. I do not accept that Mr Weavell was being truthful when he stated his reason for not including the new, second caravan in his affidavit. Mr Weavell's assertion that the reason he did not include the asset in his affidavit because the bank owns the caravan is absurd. I do not accept it.
2. There is another aspect of Mr Weavell's evidence which is of concern. At par 22 of his affidavit set out above, he provided the detail that he had not been able to keep up all of the payments on the loan for the first caravan. That was a detail which created a clear impression that he was unable to afford the only caravan he owned. The truth of the matter was that he (or he and Ms Flint) could, in fact, afford a second, more expensive caravan purchased for $39,000 which he planned to take travelling to Queensland.
3. I apprehend that Ms Flint was prepared to mislead the Court in order to advance her resistance to the applicants' cases and to advance her own interests on the application. I find that she was prepared to tell the Court things that were not true, in order to paint a worse picture of her financial means than the truth would suggest. I infer that she did this in order to advance her own interests on the application and to enhance her chances of defeating the applicants' claims.
4. In Mr Weavell's case, he was also prepared to mislead the Court in order to paint a poorer financial position than was true. I infer that he did this in order to help resist the applicants' claims. It is of course the case that a beneficiary in Mr Weavell's position has no obligation to disclose the extent of their assets in family provision proceedings.
5. The result of this assessment is that I do not have confidence in the evidence of Mr Weavell and Ms Flint about "what was done and what was agreed". I do not have confidence in placing much weight on the evidence they gave about what the testator told them about how he would deal with his interest in the property; nor as to what Ms Flint's mother said to them about leaving her interest in the property to her. While the will is a clear statement of the testator's intention, I am not confident in placing much weight on Ms Flint and Mr Weavell's evidence as to the reasons for that disposition as contended by Ms Flint.
6. As a result of the above considerations, I am not satisfied that Ms Flint and Mr Weavell built the estate to the extent that it is a mere legal estate and that there is nothing to distribute to Natasha, who has established jurisdiction to make an order under the Act. The respondent's submission to this effect is not accepted. The competing claims of Ms Flint and Mr Weavell are not so strong as to warrant the refusal to make further provision for Natasha. Mr Harvey does not have a strong competing claim. I propose therefore to make further provision for Natasha from the estate.

1. Natasha has discharged her onus of establishing an identifiable justification for intervention by the Court under the Act.[30] A wise and just testator who was aware all of Natasha's relevant circumstances at the date of his death, including reasonably foreseeable eventualities, would have understood the need to make further provision for her out of his estate.[31] A wise and just testator would have realised that he had neglected Natasha during her life and seen that she was in significant need of provision for her maintenance and support and it was his duty to rank her moral claim accordingly.
2. Natasha's need arises from the adversity associated with her health and medical issues, limited financial means and her unstable accommodation. The evidence does not identify specifically how Natasha would apply an amount by way of further provision from the estate. It is therefore necessary to take a broad brush approach ins assessing what might adequately meet her need. The applicant's need remains the central consideration, and the absence of detailed evidence about the likely use of funds from the estate does not preclude an order for further provision.
3. In my view, community standards imposed a moral duty on the testator to provide Natasha with a modest financial 'buffer' to mitigate the genuine risk of destitution, given that she has fallen on hard times and the estate has assets which are available. This conclusion is reached despite the poor quality of the relationship which stemmed from the testator's neglect. However, the poor quality of the relationship between Natasha and the testator operates to limit the amount that can properly be regarded as adequate provision.
4. I have regard to the 2022 valuation of the Fitzgerald property. I have regard to the significant competing claims by Ms Flint and Mr Weavell. The evidence does not permit any finding that Mr Harvey's competing claim is strong. He did not appear in the proceedings and no evidence was adduced from him. In the circumstances I have assumed that Mr Harvey is without any significant financial need: Anderson v Teboneras [1990] VicRp 47; VR 527 at 535.
5. I have taken into account the 'Singer v Berghouse' circumstances (analysed above) at this stage of assessing what is proper. The gift of the property in the will is to each of the three beneficiaries "equally", leading to a presumption that a tenancy in common was created. There is no context or intention expressed which suggests anything to the contrary. Even though the 2022 valuation is of the property is likely to be a low one (see the respondent's submissions at par 117), each share is valued at about $110,000.
6. Paragraph 1 of the application sought an order that time be extended, pursuant to the Act s 11 until 9 October 2023. The respondent consented to that order being made.
7. I propose to make an order to the effect that further provision be made for Natasha Jane Smith from the estate of Graham Leslie Meares by payment to her of the sum of $50,000.
8. Before making any further order to give effect to that provision, I will afford the parties an opportunity to be heard on the precise form of the orders to be pronounced. In due course, an order will be made under s 9(2) that a certified copy of the final order be endorsed upon the probate of the will granted on 26 September 2022. For that purpose, the respondent will be required to produce the grant of probate to the Registrar of the Court.
9. I decline to make the declarations sought by Brendan Smith and Nerrilee Burke in par 2 of the application. Insofar as the application seeks any orders in favour of Brendan and Nerrilee, the Court is without jurisdiction to make them. The application is dismissed insofar as it concerns Brendan and Nerrilee. I will provide an opportunity to the parties to be heard as to what order should be made for the payment of the costs of those aspects of the application.

[1] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; 95 CLR 494.

[2] Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208; White v Barron [1980] HCA 14, 144 CLR 431; Gerlach v Public Trustee unreported 153/1997 at 4.

[3] See more generally Karimalis v Kapodistrias [2022] TASSC 25 per Holt AsJ at [12].

[4] In Re Sinnott [1948] VicLawRp 4; VLR 279 at 280.

[5] Bosch v Perpetual Trustee Co [1938] AC 463 at 478-479; Hughes v National Trustees, Executor & Agency Co of A/asia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147-148; McKenzie v Topp [2004] VSC 90 at [15] per Nettle J; O'Connor v Tasmanian Trustees Limited [1995] TASSC 100, at [23].

1. [6] Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210.

[7] Singer v Berghouse (above) at 210.

1. [8] Vigolo v Bostin [2005] HCA 11; 221 CLR 191 per Gleeson CJ at [25]; Gerlach v Public Trustee [1997] TASSC 160; How v How [2015] TASSC 4.

[9] Dal Pont, Law of Succession [18.22]; O'Connor v Tasmanian Trustees Limited (above) at [23].

[10] Collings v Vakas [2006] NSWSC 393 at [67], (see also the cases cited at [42] of Muhl v Bailey [2025] TASSC 24 per Pearce J and [14] of Jones v Public Trustee & Jones [2025] TASSC 1).

[11] Niebour-Pott v Pott QSC 7 at [134].

1. [13] McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572.
2. [14] Vigolo (above) at [115].

[15] Collins v McGain & Anor [2003] NSWCA 190 at [42].

[16] Singer v Berghouse (above) at 210.

[17] McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572 per Dixon CJ and Williams J.

[18] Camernik v Reholc [2012] NSWSC 1537 (Hallen J), adopted in Rocco Condello v Sung Soo Kim [2018] NSWSC 394 (Kunc J) cited in Niebour-Pott v Pott [2020] QSC 7 at [135].

[19] Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 at [97].

[20] See Taylor v Farrugia [2009] NSWSC 801 at [58].

[21] See the respondent's submissions at pars 114 and 176.

[22] See annexure EMF-3 to Ms Flint's second affidavit sworn 2 August 2024.

[23] Transcript at page 108 line 13-15.

[24] Transcript at page 113 lines 1-10.

[30] In Re Sinnott [1948] VicLawRp 4; VLR 279 at 280.

[31] Bosch v Perpetual Trustee Co [1938] AC 463 at 478-479; Hughes v National Trustees, Executor & Agency Co of A/asia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147-148; McKenzie v Topp [2004] VSC 90 at [15] per Nettle J; O'Connor v Tasmanian Trustees [1995] TASSC 100, at [23].