ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the Administration and Probate Act 1958 - Application for leave to appeal granted - Appeal allowed.

Administration and Probate Act 1958, pt IV, ss 3(1), 90, 90A, 91.

Innes-Irons v Forrest [2016] VSC 782, applied; Bail v Scott‑Mackenzie [2016] VSC 563; Whitehead v State Trustees Ltd (2011) 4 ASTLR 528, discussed.

1. Ilan Sternfein is the son of Barbara and Chaim Sternfein. Chaim died in 1988 and in 1990 Barbara formed a relationship with Maurice Brumer. From about May 1990, Barbara and her two children, son Ilan (who was 12) and daughter Tali, lived with Maurice. In January 1997, when Ilan was 19, he left home.
2. Maurice died on 16 July 2022 at the age of 78. He made no provision in his will for Ilan or his two biological children.
3. In March 2023, Ilan commenced a proceeding under Part IV of the Administration and Probate Act 1958 ('the Act') seeking that the court make further provision for him. To bring a claim under Part IV, Ilan must establish that he is an 'eligible person' within the definition contained in s 90 of the Act.
4. The executors of Maurice's will argue that Ilan is not an eligible person within the meaning of that section. In August 2023, they sought to have Ilan's claim summarily dismissed. The judicial registrar refused to do so in March 2024,[1] and the executors appealed to the Trial Division of this Court. The judge in the Trial Division (Moore J) upheld the appeal and dismissed Ilan's claim.[2] Ilan now applies for leave to appeal that decision.
5. The fate of the application for leave to appeal turns on a discrete point - is Ilan an 'eligible person' within the definition in s 90 of the Act?
6. For Ilan to succeed on the application, he does not need to show that he is necessarily an eligible person but must establish pursuant to s 63 of the Civil Procedure Act 2010 ('the CPA') that he has a real, as opposed to a fanciful prospect of establishing at the trial of his claim that the facts of his case fall within the definition of 'eligible person' in s 90 of the Act.[3] However, s 63 is subject to a significant condition. Section 64 of the CPA provides that '[d]espite anything contrary in this Part' and 'despite there being no real prospect of success' a court may order that the proceeding go to trial in the interests of justice or because the nature of the dispute (including its complexity) demands a full hearing on the merits.

1. Section 90A of the Act enables an application for a family provision order to be made to the court by 'an eligible person'.
2. The expression 'eligible person' is defined in s 90, which we set out in full below, noting that paragraph (g) of the definition is in issue in the present case:

eligible person means -

(a) a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;

(b) a child of the deceased including a child adopted by the deceased who, at the time of the deceased's death, was -

(i) under the age of 18 years; or

(ii) a full-time student aged between 18 years and 25 years; or

(iii) a child with a disability;

(c) a stepchild of the deceased who, at the time of the deceased's death, was -

(i) under the age of 18 years; or

(ii) a full-time student aged between 18 years and 25 years; or

(iii) a stepchild with a disability;

(d) a person who, for a substantial period during the life of the deceased believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased's death, was -

(i) under the age of 18 years; or

(ii) a full-time student aged between 18 years and 25 years; or

(iii) a child with a disability;

(e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased 's death -

(i) would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

(ii) has either -

(A) not taken those proceedings; or

(B) commenced but not finalised those proceedings; and

(iii) is now prevented from taking or finalising those proceedings because of the death of the deceased;

(f) a child or stepchild of the deceased not referred to in paragraph (b) or (c);

(g) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);

(h) a registered caring partner of the deceased;

(i) a grandchild of the deceased;

(j) a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased's death;

(k) a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;[4]

1. The definition of 'parent' relevant to (g) is contained in s 3(1) of the Act:

In this Act unless inconsistent with the context or subject‑matter -

parent of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;

1. Section 91(1) enables the court to order 'that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person'. Section 91(2) then sets out the requirements that must be met by a person seeking such an order, while s 91(3) and (4) set out the manner in which, if the court is satisfied, the amount of provision should be assessed.[5]

1. The only evidence before the judge below was an affidavit sworn by Ilan on 23 August 2023, which is summarised in the following paragraphs.[6]
2. Barbara Sternfein is Ilan's mother. She and Chaim Sternfein, Ilan's biological father, married on 31 October 1976 and had two children, Ilan born on 13 June 1977, and his sister, Tali.
3. Ilan lived with his mother, father and sister in Caulfield. When Ilan was 7 years old, the family relocated to Israel. Chaim died in 1988 when Ilan was 10 years old.
4. In about September 1989, Ilan, his mother and sister returned to Melbourne to live with Ilan's grandmother. Barbara and Maurice met around April 1990 and commenced a relationship shortly thereafter. Barbara and Ilan began residing with Maurice in about May 1990, when Ilan was 12 years old.
5. According to Ilan, Maurice immediately took on a fatherly role by playing an important part during his Bar Mitzvah in June 1990. He said that Maurice also took on a fatherly role in other aspects of his life, including disciplining him. Maurice was actively involved in Ilan's schooling, extra-curricular activities and social activities. Ilan worked at Maurice's optometry practice from 1993 to 1995.
6. Ilan resided with Maurice until about January 1997, when he was 19 years old. Ilan then moved into a share house while studying at university.
7. The relationship between Maurice and Barbara ended in about April 1997, and a property settlement was reached in November 1997. Barbara died in November 1999.
8. After Maurice and Barbara's separation in 1997, Ilan had no contact with Maurice until 2013, when Maurice reconnected with him through Facebook. Ilan deposed that he and Maurice subsequently established a 'solid relationship'.
9. Maurice met Ilan's two young children during a trip to visit him in Melbourne. Maurice expressed adoration for Ilan's children and requested to attend their respective Bar Mitzvah and Bat Mitzvah, although COVID-19 restrictions prevented that from occurring. Maurice asked Ilan to refer to him as his children's 'unofficial Godfather'. Ilan deposed that Maurice referred to him as his son and that he house-sat at Maurice's house when Maurice was away travelling. Ilan remained in weekly contact with Maurice by telephone and through Facebook until Maurice died.
10. Maurice has two biological children, Mahanama[7] Heller and David Heller. They are between four and eight years older than Ilan.
11. Maurice's will makes no provision for his biological children,[8] Ilan, or any other person. Instead, Maurice provided for the whole of his net estate to be held by a trust to be established by his trustees for a specific public charitable purpose directed at funding research and promoting awareness of myopization.

1. In careful and detailed written reasons, the judge set out the statutory provisions, the factual background, the details of the decision of the judicial registrar and the arguments of the parties.
2. The judge noted that the only other decision of the Court dealing with the application of paragraph (g) of the definition of 'eligible person' was that of Derham AsJ in Innes-Irons v Forrest ('Innes-Irons').[9]
3. The judge then commenced his analysis of Ilan's claim by noting that the test under ss 62 and 63 of the CPA of 'no real prospect of success' requires the applicant to demonstrate that the claim is 'fanciful' as opposed to 'real'; however, the power to terminate a claim is to be exercised with caution and it must be clear that there is no real question to be tried.[10]
4. The judge also noted that s 64 of the CPA permits a court to allow a proceeding to proceed to trial if it is in the interests of justice to do so or if the dispute is one that requires a full hearing on the merits.[11]
5. The judge then turned to the definition of 'eligible person' in s 90 of the Act.
6. Initially, he recited the principles of statutory construction as set out by this Court in Verraty Pty Ltd v Richmond Football Club Ltd.[12]
7. The judge then noted that three requirements must be satisfied for a person to be an eligible person within the meaning of paragraph (g) of the definition, namely:

(a) 'for a substantial period during the life of the deceased' the person must have:

(b) 'believed that the deceased was a parent of the person'; and

(c) been 'treated as a natural child of the deceased not referred to in paragraph (d)'.[13]

1. After considering s 3 and the definition of 'parent' in that provision (set out above at [9]), the judge concluded that there was an arguable case that Ilan believed Maurice was a parent, as Maurice had the day-to-day care and control of Ilan, who resid[14] with him.14
2. The judge reasoned as follows:

As the Judicial Registrar stated, a care-giving, residential parent requires no biological or genetic relationship with their child to come within the definition of 'parent' in the Act. On the basis of the plaintiff's evidence to which the Judicial Registrar referred at [45] and [49] of the primary reasons, I respectfully agree with her conclusion that the plaintiff has a real prospect of establishing that the deceased was a care giving, residential parent of the plaintiff from when the plaintiff was 12 years old, until when he bec[a]me independent of the deceased's care and control by maturity, the point of transition being a matter of evidence at trial. The defendants' submissions that there was no evidence that the plaintiff believed that the deceased was a parent of his is wrong: the plaintiff deposed to this belief in his affidavit. On that basis, this issue is properly a matter for trial.[15]

1. Thus (b) was satisfied. The judge next considered the question of 'treatment': whether there was an arguable case that Ilan was treated as a natural child of Maurice.
2. The judge noted that paragraph (d) is an analogous category of person to that in paragraph (g) of the definition, but that (d) was limited to persons who at the time of the deceased's death were either under 18 years of age, a full-time student aged between 18 years and 25 years of age, or a child with a disability. The judge observed that Ilan did not fall into any of these categories.[16]
3. The judge then turned to the use of the words 'treated as a natural child' and observed:[17]

In the context of all of the paragraphs which comprise the definition of 'eligible person' in s 90 of the Act, the striking feature of the 'treatment element' of paragraph (g) is the use of the term 'natural child'. The paragraphs variously refer to three[18] categories of children: a 'child',[19] a 'stepchild'[20] and a 'natural child.'[21] Importantly, these provisions were not the result of piecemeal legislative amendment over time; the entirety of the definition of 'eligible person' was inserted by s 3(2) of the Amendment Act and has remained unchanged since its enactment in 2015. These are strong contextual indications that, in providing for the category of eligible persons in paragraph (g), Parliament intended to specifically refer only to persons there identified: those who, relevantly, were treated as a natural child (as distinct from any other child) of the deceased.

1. We interpolate here that the 'Amendment Act' referred to by the judge was the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (the '2014 amendments'), which commenced operation on 1 January 2015. We examine the 2014 amendments at [60] to [65] below.
2. The judge was mindful to be cautious when applying the maxim expressio unius est exclusion alterius (the expression of one thing is the exclusion of another). However, his Honour considered it safe to apply the maxim when construing the definition of 'eligible person', for several reasons:

(a) First, the provisions of s 90 and the definition of eligible person were not a result of piecemeal amendments but rather comprehensive amendments limiting who can make a claim on the deceased's estate.[22] His Honour noted that the overarching purpose of the amendments was to confine, rather than expand, the class of persons able to bring a claim under Part IV of the Act.[23]

(b) Second, this purpose was achieved by defining specific categories of 'eligible persons' and, as Derham AsJ's careful consideration of the intrinsic materials in Innes-Irons shows, the definition ultimately enacted, including paragraph (g), was a specific matter of parliamentary debate and consideration. Accordingly, the reference within paragraph (g) to a natural child 'was a product of "deliberate legislative intention" as distinct from "inadvertence or accident"'.[24]

(c) Third, the use of the word 'natural child' was uncontroversial and meant a child by birth, also termed a biological child or genetic child.[25]

Eligibility under paragraph (g) is accordingly dependent on a putative claimant establishing, amongst other things, that they were 'treated as' a biological child of the deceased. The expression 'treated as' is not defined in the Act. In that circumstance, the starting point when construing family provision legislation, as recognised by the High Court, is the 'ordinary natural meaning of the words of the section'.[26]

1. The judge was then confronted with how, having reached this point, the words 'treated as' a biological child could be given a sensible and workable application when determining whether a putative claimant fell within the definition.[27]
2. As the expression is not defined in the Act, to ascertain its ordinary natural meaning, the judge considered it was necessary to have recourse to the dictionary definition and noted the Shorter Oxford English Dictionary ('OED') relevantly defines the verb 'treat' as follows:

Deal with or behave or act towards in a specified way; regard in a particular way and deal with accordingly...[28]

1. The critical parts of his Honour's judgment were as follows:

Given the impossibility of identifying behaviours or actions which are specific to the treatment of natural children in particular, as distinct from children generally, in order for paragraph (g) to have operation and effect, the expression 'treated as a natural child' is to be construed, consistent with one of its ordinary meanings, as meaning 'regarded as a natural child'. For these reasons, I do not, with respect, consider Derham AsJ's construction of the term 'treated as a natural child' in Innes‑Irons set out in [43] above to be correct.

It follows from the determination of these points of statutory construction that the plaintiff's claim for provision for the deceased's estate must fail: there is no suggestion in the evidence that he was ever regarded by anyone as the deceased's biological child so as to satisfy this element of paragraph (g) and to thereby be an 'eligible person' entitled to bring a claim under the Act. It was not submitted that there was any basis in the plaintiff's affidavit for this particular matter to be a matter of evidence at trial. This is unsurprising given the age at which the plaintiff came to reside with the deceased and the circumstances in which that occurred referred to in [10]-[11] above.[29]

1. So, on this basis, Ilan's claim was dismissed.
2. His Honour then went on to make a series of observations concerning the executors' argument that, even if Ilan had satisfied the 'treatment provision', it was not for 'a substantial period during the life of Maurice' and therefore failed to meet condition (a).
3. His Honour concluded:

In light of the foregoing discussion, it would appear that 'a substantial period during the life of the deceased' may be capable of being satisfied by evidence that, for a significant stage of a person's life during the deceased's lifetime, the person believed that the deceased was their parent and was treated as a natural child, even if that stage was not a proportionately large part of the deceased's lifespan. However, in light of my conclusion in [68], it is unnecessary to resolve this question.[30]

1. The decision of Derham AsJ in Innes-Irons involved consideration of whether the claimants in that case arguably fell within the terms of paragraph (g) of the definition of 'eligible person' within s 90 of the Act. It was also a summary judgment application brought by the executors on the basis that the terms of paragraph (g) were not satisfied.
2. The claimants in Innes-Irons were two natural children of the deceased who had been adopted by their stepfather when their mother (who had divorced the deceased) remarried. By virtue of the Adoption Act 1984, the children were to be treated as the natural children of the adoptive father.
3. Notwithstanding the estrangement of the birth parents and the later adoption of the children by their stepfather, from their late teens onwards, the children had a close relationship with the deceased over a number of years. The question that had to be resolved by the associate justice was whether those facts were sufficient to conclude there was a real prospect of success in satisfying paragraph (g).
4. Associate Justice Derham, after carrying out a thorough examination of the statutory provisions and their history (which we shall return to), concluded that the children, as a consequence of the operation of s 53(1) of the Adoption Act could not satisfy the requirements of either paragraphs (b) or (f) to establish that the children fell within the definition of an eligible person. He then examined the terms of paragraph (g) noting:

The Act uses the term 'treated as a natural child' in its natural and ordinary meaning with no definitional provision expanding on this. The Macquarie Dictionary defines to 'treat' as 'to act or behave towards in some specified way', and 'treatment' as 'the act or manner of treating or the action or behaviour towards a person.' It seems to me that the term 'treated' refers to the mere behaviour towards another, and contains no negative or exclusionary connotations, as is advanced by the defendant.

As I have said, in order to give to s 90(g) of the Act the meaning advanced by the defendant, it is necessary to read into the provision additional words, namely, that 'the person was treated as if the person was a natural child of the deceased.' Treated 'as' a natural child of the deceased and treated 'as if' the natural child of the deceased appear to be different propositions. Treating someone 'as' a natural child has a wider meaning than treating someone 'as if' they were a natural child. The latter may exclude those persons who are in fact the deceased's natural children.[31]

Having regard to the ordinary meaning of the words of s 90(g) of the Act, these extrinsic materials provide some support for the plaintiffs' construction having a real, as opposed to fanciful, prospect of success at trial. There is a real prospect of the plaintiff successfully arguing that the drafting of s 90(g) of the Act was intended to recognise that persons who believe they are a child of the deceased, and who are treated as a deceased's natural child, even though they are, or it turns out that they are, the natural child of the deceased, should be eligible to claim for provision under Part IV of the Act. Further, because of the interaction between s 53 of the Adoption Act and the distinction in s 90(b), (and presumably s 90(f)) the issue of the plaintiffs' eligibility in this proceeding is of such a nature that only a full hearing is appropriate.[32]

The trial judge erred in law by failing to properly construe the definition of 'child' as an eligible person under s 90 of the Administration and Probate Act in that he failed to correctly interpret the definition of 'treated as' in the phrase 'was treated as a natural child of the deceased' as including 'to deal with or behave towards' the applicant as a natural child.

1. Ilan contends that the test used by the judge ignored the clear wording of the legislation and its intended purpose. The reason the judge concluded that the first part of the dictionary definition was impractical - that there was no objectively identifiable conduct or behaviour indicating a reference to biological children as opposed to children generally - was incorrect. Paragraph (g) was meant to include a long-standing domestic relationship with the deceased, including that of former stepchildren. By relying only on the second part of the Dictionary definition, the judge created an impossible standard that rendered the section unworkable.
2. The executors argue that the judge's reasoning should be accepted and that the only sensible and workable application of the definition of the verb 'treat' was to apply only the second part of the Dictionary definition, namely 'regard in a particular way and deal with accordingly'.
3. The executors also contend that the only provisions that permit a stepchild (whether former or extant at the time of the deceased's death) to be treated as eligible are paragraphs (c) and (f) of the definition. Otherwise, if a stepchild claimant did not fall within those categories, they are necessarily excluded by the intended restrictive provisions of the 2014 amendments.

1. The judge accepted, and we agree, that two of the elements of paragraph (g) of the definition were, at least arguably, satisfied. There was sufficient evidence that Maurice may fall within the statutory definition of a parent (see [29]-[30] above) and that the period of around seven years may satisfy the 'substantial period' (see [30] above) of th[33]testator's life requirement.33
2. That left the question of whether, during that period, Ilan was regarded as a natural child by Maurice. We disagree with the judge's interpretation of the phrase 'treated as a natural child' in paragraph (g). Our disagreement with the judge's conclusion can be explained quite simply. We do not consider (as the judge did) that the phrase requires any departure from the OED definition of the verb 'treat', and that both parts of that definition can be used in assessing whether a potential claimant meets the statutory criteria. Our detailed reasons are as follows.
3. The exercise of statutory construction in determining the meaning of 'eligible person' generally, and paragraph (g) particularly, is well understood and was explained by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[34]

The construction of s 78(2) of the VCAT Act must begin with the text of the provision, having regard to its context and purpose. If the words of the provision have more than one possible meaning, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not. Ordinarily, the legislature is assumed to have intended to pursue its purposes by coherent means and to give effect to harmonious goals.[35]

1. Then there is the legislative direction in s 35 of the Interpretation of Legislation Act 1984, which provides that '[i]n the interpretation of a provision of an Act or subordinate instrument':

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to -

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.

1. The history and background of family provision legislation and the 2014 amendments were analysed in detail by Derham AsJ in Innes‑Irons and Bail v Scott‑Mackenzie.[36]
2. The following is adapted from his Honour's analysis in both those decisions.
3. Family provision in this state was introduced by the Widows and Young Children Maintenance Act 1906. This allowed the widow or children of a testator and the children of a testatrix to apply for provision. Children were defined as not including any person who was a male over 18 years of age, a female over 21 years of age, or married.
4. In 1997, there was a significant change: categories were abolished and 'responsibility' became the primary criterion. Part IV of the Act was amended to enable the Court to order provision out of an estate for 'the proper maintenance and support of a person for whom the deceased had responsibility to make provision'.[37]
5. In the ensuing years, this broad test was the subject of considerable criticism. In August 2013, the Victorian Law Reform Commission ('VLRC') in its Succession Laws Report noted:

6.8 In the course of this reference, the Commission has heard a number of criticisms about the operation of family provision law in Victoria. The Commission identified several in its consultation paper on family provision:

(a) a belief that the current law encourages opportunistic or non-genuine claims;

(b) the high legal costs in family provision proceedings and the fact that they are often borne by the estate, even where a family provision claim fails;

(c) the settlement of a high proportion of claims that may not otherwise have succeeded at trial;

(d) the fact that, due to the high rate of settlement, the courts have little oversight over costs in family provision matters;

(e) the lack of certainty that exists in this jurisdiction and the difficulties experienced by legal practitioners when advising clients about the validity and strength of the claim;

(f) the perception of some members of the public that their will can effectively be challenged by anyone, and that they do not truly have freedom to dispose of their property by will.[38]

1. The VLRC recommended that Victoria should abolish the 'responsibility' test and s 91(1) should be replaced with a test based on the New South Wales test for eligibility but extended to include stepchildren, as follows:

The following are eligible persons who may apply to the court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death;

(b) a person with whom the deceased person was living in a registrable domestic relationship or registered domestic relationship at the time of the deceased person's death;

(c) a child of the deceased person;

(d) a former wife or husband of the deceased person;

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or any other particular time, a member of the household of which the deceased person was a member

(f) a person with whom the deceased person was living in a registrable caring relationship or registered caring relationship

(g) a stepchild of the deceased person.[39]

1. The government of the day accepted a number of the VLRC recommendations. In the second reading speech for the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (the '2014 Bill'), the Attorney General said that:

In 1997, the Victorian legislation was amended to remove any requirement for a specific relationship with the deceased, and instead based a person's entitlements to family provision on demonstrating that the deceased had a responsibility to provide for them. However, the fact that there is no restriction on who can make a claim, together with the broad nature of the test to be applied, has led to a wide range of claims, putting pressure on executors, administrators and other beneficiaries to settle even dubious claims in order to prevent the estate being consumed by legal costs.

To reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws, the bill amends the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made.

Only specified categories of people will be eligible to make a claim. The deceased's children and stepchildren, spouses or domestic partners at the time of death, and former spouses and partners who have not had recourse to the Family Law Act 1975 before the death may apply for a family provision claim as of right.

However, the bill makes a distinction between applications brought by a child or stepchild of the deceased who is under 18 or a full-time student up to the age of 25 or who has a disability and, on the other hand, a child or stepchild who does not fall under one of these categories. Most adult children will fall outside these categories. In such cases, in determining the amount of provision, if any, to be ordered, the court must take into account, amongst other things, the degree to which the applicant is not capable, by reasonable means, of providing adequately for their own proper maintenance and support. This is intended to reflect the position that parents should not usually be regarded as having a moral duty to make provision for adult children who are capable, by reasonable means, of providing adequately for their own proper maintenance and support.[40]

1. The Attorney-General then went on to identify some of the specific categories but did not refer to the class of persons identified in paragraph (g) of the definition of 'eligible person' in cl 90 of the 2014 Bill - and subsequently in s 90 of the Act.
2. When the 2014 Bill reached the upper house it was the subject of considerable criticism. As Derham AsJ observed in Innes-Irons:

As a result of the Government accepting the overtures of the opposition, the dependency restrictions applying to the categories of adult children, step children and persons treated as natural children for a substantial period were lifted. The restrictions on any family provision order applicable to these classes of eligible persons were left to those in s 91(2)(c) and (d) of the Act, being the presence of a moral duty by the deceased and the traditional test that under the will or intestacy the deceased failed to make adequate provision for the proper maintenance and support of the eligible person.

Thus, although the 2014 amendments brought back restrictions they were not as severe as they might have been. The Parliamentary debates show a concern not to exclude independent adult children, stepchildren and persons treated as children from contesting the deceased's will. As Mr Pakula went on to say in relation to these classes of eligible applicants, including persons treated as children of the deceased:

• Not in every case would it have meant, and nor does it mean now, that those children who were cut out of their parents wills would have succeeded in those cases, but the opposition thought the notion that they would be left without a right to contest the will was inappropriate.

Mr Pakula noted that the changes to the Bill aimed to prevent those persons with no valid claims, appropriate relationships or real closeness to the deceased from being able to contest wills and eat up the value of the estate, leaving the intended beneficiaries without the bequest they were entitled to. However, he added that conversely, it is important to recognise that there are circumstances where people are left out of wills, particularly the children of the deceased, in a way that causes substantial injustice. This is not deserved where children have been faithful, good family members, but left out because of some other person's nefarious influence or otherwise. These people ought to have a right to contest the deceased's will.

From these thoughts and statements an intention is evident, and one that is relevant because of the amendments to the Bill advanced by the opposition, that persons who were equated with children of the deceased, being those treated as the deceased's children, were allowed through the eligibility gateway and their right to contest the will or intestacy was preserved.[41]

1. We agree with his Honour's conclusion. There is nothing in the extrinsic material to suggest that persons who, as children, had lived in a close domestic relationship with the deceased for a lengthy period of time were to be excluded, notwithstanding the restrictive purpose of the 2014 amendments. Moreover, prior to the 2014 amendments, this category of claimants was well accepted.[42] It would be odd in the extreme if the Parliament wished to exclude this category without a mention in the parliamentary material. To the contrary, we consider, as did Derham AsJ, that the extrinsic materials point to the legislation preserving this class of claimant.
2. Before the judge, the executors relied upon the maxim expressio unius est exclusio alterius to argue that paragraphs (c) and (f) of s 90 (which specifically refer to stepchildren) cover the field in relation to a stepchild's eligibility, with the result that former stepchildren are excluded from the operation of the family provision legislation.
3. We, like Derham AsJ, reject this submission.
4. The proper interpretation of the definition of 'eligible person' in s 90 is that each paragraph creates a separate category within which a claimant may satisfy the eligibility requirement. The inability of a former stepchild to fall within paragraphs (c) or (f) does not exclude that person from claiming under paragraph (g). It seems to us that paragraph (g), notwithstanding its limitations, was intended to create an avenue to eligibility for former stepchildren as well as others who, as children, had for a substantial period of time regarded the deceased as a parent and been treated as a natural child of the deceased.
5. That takes us to the final matter: the proper interpretation and application of the expression 'treated as a natural child'. We agree with the judge that it was appropriate to have recourse to the OED to determine the natural meaning of the verb 'treat', meaning to deal with or behave or act towards in a specified way, regard in a particular way and deal with accordingly.
6. However, we disagree with the judge's conclusion as to the impracticality of relying upon the first part of the definition. Both limbs of the definition are operative and capable of practical application. Merely because the legislature did not provide an objective standard to define the nature of the treatment of a natural child by a deceased does not make the first part of the definition unworkable.
7. As with provisions of other pieces of legislation, paragraph (g) requires a court to determine subjectively, as part of an evaluative process, lacking any objective criteria, two aspects of the deceased's relationship with the applicant - the nature of their relationship and whether its duration was for a substantial period of the deceased's life.
8. We see no difficulty with a court examining the deceased's behaviour and conduct towards a claimant and, in a case such as this, determining whether it was comparable to the deceased's behaviour and conduct towards his natural children. Where no such comparison can be made or the comparison is inapposite for some reason, there may be other evidence of relevant behaviour and conduct, depending on the circumstances of the case. Parliament regularly requires courts to apply subjective tests to specific factual circumstances. In a context quite different from the present case, the serious injury provisions within the Workplace Injury Rehabilitation and Compensation Act 2013 and the Transport Accident Act 1986 do precisely that.[43] Each mandates, with minimal statutory guidance, a subjective assessment by the court of whether the injury meets certain vague criteria to determine if it is serious.
9. The decided cases under the pre-2014 amendment legislation considered the conduct and behaviour of the deceased in determining whether the claimant was a person for whom the deceased had responsibility to make provision. For example, in Borebor v Keane,[44] Hargrave J had no difficulty in holding that the deceased treated the claimant as his daughter, notwithstanding that the deceased had real doubts as to his paternity, which were, subsequent to the deceased's death, verified. In reaching this conclusion, his Honour had regard to the conduct and behaviour of the deceased towards the claimant in their daily life.
10. In summary, the text of paragraph (g) is clear and aligns with the evident statutory purpose of allowing persons, including former stepchildren, who had a relevantly lengthy parent-child relationship with the deceased during their childhood, to be eligible to make a claim under Part IV of the Act. This involves assessing the relationship between the two over the relevant period and considering both aspects of the meaning of 'treat' (as identified in the OED) in determining whether the person was treated as a natural child.
11. So, at the trial, the question regarding eligibility will be whether Maurice, by his behaviour and conduct towards Ilan, treated him as his natural child. In other words, did Maurice treat or interact with Ilan as he would with a natural child? There may perhaps be evidence at trial about how Maurice engaged with his two natural children, which might also provide a relevant point of comparison. However, this is not essential or determinative - what matters, as we have said, is the court's assessment of Maurice's conduct and behaviour towards Ilan during his lifetime.
12. During the course of oral argument, it was contended (for the first time) that the affidavit evidence of Ilan as to his relationship with Maurice was inadequate and that he could not satisfy the eligibility test, even if the whole OED definition were adopted.
13. There is nothing in this point.
14. Putting aside the absence of a notice of contention, this was a summary dismissal application, and Ilan was only required to adduce sufficient evidence to demonstrate that he had a real as opposed to a fanciful claim. Ilan did not need to descend into chapter and verse either as to his own treatment by Maurice or as to Maurice's treatment of his two natural children. They are matters for trial.
15. Even if we thought there was something in this point, we would have applied s 64 of the CPA and allowed Ilan's claim to proceed to trial.
16. Accordingly, the result is that at this level - on a summary judgment application - Ilan has satisfied us that he has a real, as opposed to fanciful, prospect of success in establishing that he falls within paragraph (g) of the definition of 'eligible person' in s 90 of the Act.
17. We disagree with the judge's interpretation and application of the clause to the facts as deposed by Ilan. Therefore, the application for leave to appeal should succeed, and the appeal should be allowed.
18. We have necessarily confined our views on this issue to that raised on the application - namely, whether Ilan has a strong enough case to go to trial on the basis that he was treated as a natural child by Maurice. Whether that contention is made out at trial will be a matter for the trial judge, as will the question of whether the period of time over which he was so treated is sufficient to satisfy the test within paragraph (g).

[1] Re Brumer; Sternfein v Bloom (2024) 72 VR 433 (Englefield JR); [2024] VSC 121.

[2] Re Brumer; Sternfein v Bloom (No 2) [2024] VSC 506 (Moore J).

[3] See s 63 of the CPA; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 (Warren CJ, Nettle and Neave JJA); [2013] VSCA 158.

[5] See generally Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales [1962] HCA 19; (1962) 107 CLR 9, 19-20 (Dixon CJ); [1962] HCA 19; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 146-148 (Gibbs J); [1979] HCA 2.

[7] Referred to in the will as 'Marcus'.

[8] Maurice's biological children have each lodged a Part IV claim in respect of Maurice's estate.

[9] [2016] VSC 782 ('Innes-Irons').

[12] [2020] VSCA 267; (2020) 63 VR 150, 163-5, [53]-[62]; [2020] VSCA 267.

[17] Reasons, [57] (emphasis added) (citations in original).

[18] Paragraph (i) also refers to a 'grandchild'.

[24] Reasons, [61] citing Case (pseudonym) v The Queen [2023] VSCA 12, [128].

[26] Reasons, [63] citing Barns v Barns (2003) 214 CLR 169, 187-8, [44]; [2003] HCA 9.

[29] Reasons, [67]-[68] (emphasis added).

[31] Innes-Irons [2016] VSC 782, [45]-[46] (emphasis added).

[34] [2009] HCA 41; (2009) 239 CLR 27, 46-7, [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted); [2009] HCA 41. See also ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 278 CLR 75, 105, [86] (Gordon, Edelman, Steward and Gleeson JJ); [2023] HCA 18.

[35] Concrete Construction Systems Pty Ltd v Inglese [2025] VSCA 218, [95] (Walker, Lyons and Richards JJA) (citations omitted).

[36] [2016] VSC 563 ('Bail'). See also Whitehead v State Trustees Ltd (2011) 4 ASTLR 528, [21]-[29] (Bell J); [2011] VSC 424 ('Whitehead').

[37] See Whitehead (2011) 4 ASTLR 528, [21]-[29] (Bell J); [2011] VSC 424, for a detailed discussion of the legislative history of the family provision legislation.

[38] Victorian Law Reform Commission, Succession Laws: Report (August 2013).

[40] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Rob Hulls, Attorney-General).

[41] [2016] VSC 782, [57]-[60] (emphasis added).

[42] See eg, McKenzie v Topp [2004] VSC 90 (Nettle J); Borebor v Keane (2013) 11 ASTLR 96 (Hargrave J); [2013] VSC 35; Quinn v Robertson [2009] VSC 245, [14] (Byrne J).

[43] See the definitions of 'serious injury' in s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 and s 93 of the Transport Accident Act 1986. Of course, at times the legislature will state specific criteria that need to be met and provide a guide to courts as to the objective assessment of a particular phrase or expression. Again, returning to the serious injury example and claims under the Workplace Injury Rehabilitation and Compensation Act 2013, a worker must satisfy a series of mathematical calculations as to earnings before pursuing a claim for economic loss: s 325.

[44] (2023) 11 ASTLR 96; [2013] VSC 35.