Valentini & Ors v Valentini [2014] VSC 91

1 The Applicants in these proceedings should not feel alone. Testamentary dispositions driven by vindictive emotion and irrational favouritism are well documented in chronicles of the human condition. William Shakespeare described the malady in lines he penned for King Lear, as the king prepared to divide his kingdom and riches between his three daughters:[1]

... Tell me, my daughters,--

Since now we will divest us both of rule,

Interest of territory, cares of state,--

Which of you shall we say doth love us most?

That we our largest bounty may extend

Where nature doth with merit challenge.

2 Well pleased with their eloquent professions of love and devotion, Lear confers a third of his kingdom to each of Goneril and Regan. He then turns to his third daughter, Cordelia, demanding:

Now, our joy,

Although the last, not least; to whose young love

The vines of France and milk of Burgundy

Strive to be interess'd; what can you say to draw

A third more opulent than your sisters? Speak.

3 Cordelia finds herself unable to compete with the praise lavished by her sisters, and says only to her father:

Nothing, my lord ...

Unhappy that I am, I cannot heave

My heart into my mouth: I love your majesty

According to my bond; nor more nor less.

4 Lear is dissatisfied with Cordelia's measured response, and growing angry, strikes her from the inheritance with the following devastating tirade:

Let it be so; thy truth, then, be thy dower:

For, by the sacred radiance of the sun,

The mysteries of Hecate, and the night;

By all the operation of the orbs

From whom we do exist, and cease to be;

Here I disclaim all my paternal care,

Propinquity and property of blood,

And as a stranger to my heart and me

As thou my sometime daughter.

5 The present case is unfortunately redolent of the domestic disharmony and divisive favouritism portrayed in King Lear. The legacy of the testator Luigi Antonio Valentini (the 'Deceased', or the 'Testator') is one of lasting familial unhappiness, conflict and discord, which remained unresolved at his death.

6 The Plaintiffs Elio Valentini ('Elio'), born 17 May 1965 and now aged 48 years, and Mina Valentini ('Mina'), born 30 June 1966 and now aged 47 years, are the children of the Deceased's first marriage in 1963 to Marisa Valentini. That marriage broke down in 1968 and ended in divorce in 1971.

7 The Plaintiff Dana Jackson ('Dana'), born 10 September 1979 and now aged 35 years, and the Defendant Carlo Valentini ('Carlo') born 9 April 1977 and now aged 36 years, are the children of the Deceased's second marriage to Pamela Carroll, which began in 1975 and ended in 1986.

8 The Deceased died 18 September 2011, aged 74 years old. The Deceased's will, made 30 June 2009, appointed his youngest son Carlo as sole executor and devised the residuary estate solely to him. The will is silent as to the reasons for this distribution.

9 The Plaintiffs (together called the 'Applicants'), having been left nothing under the Deceased's will, have each brought separate proceedings against Carlo claiming provision from their father's estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (the 'Act'). The three proceedings were heard together, although the individual claims must be determined separately under the Act, taking into account the considerations set out under Section 91 of the Act.

10 Probate of the Deceased's estate was granted to Carlo on 13 March 2012. In support of his probate application, Carlo filed an Inventory of Assets and Liabilities which valued the net estate at $731,416.69 comprising the following assets:

The family home and land at 58 Drummonds Lane, Heathcote valued at $540,000.00 which is a small farming property.

A Commonwealth Bank Cash Investment Account valued at $54,891.25.

A Commonwealth Bank Pensioner Security Account valued at $69,692.82.

A Commonwealth Financial Services Pension Select superannuation policy Number 42154081 valued at $43,337.62.

Personal assets of the Deceased comprising sundry items, farm plant equipment, etc valued at $23,495.00.

11 Carlo estimates a gross current value of the estate at $1,020,000.00.

12 The Plaintiffs Mina, Elio and Dana dispute the valuation of the estate relied on by Carlo. In particular, they contest the value attributed to the house and land property at 58 Drummonds Lane, Heathcote (the 'farm property'). The valuation which appears in the Probate Inventory, undertaken for Carlo by North-western Valuation Services and dated 30 March 2013, values the farm property at $520,000.00. The valuation relied upon by Elio and also adopted by Mina and Dana, undertaken by WBP Valuers and dated 10 January 2014, values that same property at $955,000.00.

13 Given that the valuation attributed to the farm property by WBP Valuers at $955,000.00 is unchallenged by other expert evidence, I accept this as the value of the farm property.

14 Finally, the Deceased's superannuation policy, held in the Commonwealth Bank Financial Services Pension Select Policy 42154081 and valued at $43,337.62, has not been paid into the estate by the Trustee of that policy to date. The Trustee determined that the proceeds of this policy should be paid out equally to all four surviving children, a determination which Carlo has contested and which has not yet been conclusively resolved.

15 Taking this into account I find that the net amount available for disbursal by the estate, taking into account costs is $650,000.00.

The Plaintiffs' Claims under the Administration and Probate Act 1958 (Vic)

16 The plaintiffs found their claims to seek provision from the Deceased's estate for their proper maintenance and support pursuant to Section 91 of the Administration and Probate Act 1958 (Vic) which provides:

(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

(2) The Court must not make an order under subsection (1) in favour of a person unless -

(a) that person has applied for the order; or

(b) another person has applied for the order on behalf of that person.

(3) The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

(a) his or her will (if any); or

(b) the operation of the provisions of Part I, Division 6; or

(c) both the will and the operation of the provisions -

does not make adequate provision for the proper maintenance and support of the person.

(4) The Court in determining -

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

(i) the deceased's will; or

(ii) the operation of the provisions of Part I, Division 6; or

(iii) both the will and the operation of the provisions -

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; and

(d) any other matter related to an application for an order under subsection (1) -

must have regard to -

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j) the age of the applicant;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

(p) any other matter the Court considers relevant.

Approach to Considering s 91

17 The question of whether a plaintiff's entitlement to provision from the estate has been made out must be decided in accordance with the matters outlined in s 91 of the Act.

18 The submissions of the Applicants focussed on the Deceased's moral duty to provide for their maintenance.

19 The approach of the Court in considering applications of this kind has been concisely formulated by Robson J in Boyd v State Trustees Ltd.[2] I will summarise below the approach of his Honour which is to be taken.[3]

20 Section 91(4) of the Act envisages a three-pronged approach to considering each application.

21 The first consideration is to determine whether or not the deceased had a responsibility to make provision for the proper maintenance and support of the applicant.

22 Second, one must consider whether or not the distribution of the estate of the deceased in fact makes adequate provision for the proper maintenance and support of the applicant.

23 Third, the amount of the provision (if any) which the court ought to order in favour of a successful applicant must be determined.

24 In considering each of these matters the Court must have regard to the matters mandated by paragraphs 91(4) (e) to (o) of the Act and, pursuant to s 91(4)(p), to any other matter considered to be relevant. Further, and importantly, in arriving at a conclusion that a testator had a responsibility to make provision for a person or failed to make adequate provision for the proper maintenance and support of the person, a test or standard needs to be applied to the matters considered. The test remains one of whether and if so what provision a wise and just testator would have thought is his moral duty to make in the interests of the claimant.

25 In Blair v Blair,[4] Nettle JA said that:

The court is bound in answering each of those questions to have regard to the matters mentioned in ss 91(4)(e)-(o) and pursuant to s 91(4)(p), to any other matter considered to be relevant. Self-evidently, such matters (referring to the matters mentioned) are of themselves incapable of providing an answer to either question (referring to the first two questions). To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make a provision for a claimant, or that the testator failed to made adequate provision for the claimant, necessitates the application of a test or standard to the matters considered. The test remains one of whether and if so what provision a wise and just testator would have thought is his moral duty to make in the interests of the claimant.

26 Nettle JA's observation was expressly approved by Callaway JA in Lee v Hearn,[5] and is the product of jurisprudence of long standing.

27 In Bosch v Perpetual Trustee Co Ltd[6] the Privy Council said in relation to the moral duty test that:

Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father ... The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.

28 Lord Romer, in Bosch,[7] approved the observation of Salmond J in the case of Re Allen:[8]

... that the Act is designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the proper support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interest.

29 In Bosch, Lord Romer also made the following further observation of some importance:[9]

The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances.

30 The High Court, in McCosker v McCosker,[10] returned to the 'wise and just' test in the following passage from the judgment of Dixon CJ and Williams J, in the context of considering the meaning of the word 'proper' in the legislation:[11]

It means 'proper' in all the circumstances of the case ... If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.

31 As Robson J said in Boyd v State Trustees Ltd,[12] citing Callaway JA in Grey v Harrison:[13]

The breach of the moral duty is an objective test to be measured against all the relevant facts and in particular the matters referred to in 91(4)(e) to (o) if the Act and any other matter the court thinks relevant under (p).

32 In Grey v Harrison,[14] Callaway JA made a number of important observations of relevance:

The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years. It supplies the norm that the legislature left unexpressed ...

That is not to say that either the denotation of those words or the content of wisdom, justice and moral duty do not change with time or respond to community standards ...

... it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended objects of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms of s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent ...

There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made.

Conduct of a Claimant and that of the Testator

33 Of particular relevance to the way in which the present cases were conducted are the observations of Ormiston J in Collicoat v McMillan,[15] as to how an applicant's behaviour towards the testator is to be considered. His Honour said in this regard:[16]

... Ordinarily each of the persons who have a statutory right to make application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except insofar as a testator might properly take exception to their behaviour. It is not their 'moral claims' but the 'moral duty' of the testator which is primarily the subject of the authorities such as Re Allen and the many cases in which the latter concept has been applied refer more precisely to the "moral" obligation resting on the testator, and is a direct consequence, albeit expressed in different terms, of the statutory requirement that it must be shown that inadequate provision has been made by the will for the plaintiff's proper maintenance and support.

34 An issue which arose in the present cases in fact stemmed from the conduct of the Deceased testator towards his children.

35 In Baird v National Mutual Trustees Ltd,[17] Harper J considered a case which had some similarities to the present facts. The essential facts were that for 25 years the applicants had no contact with their father and during that time had nothing to do with him. The father was a very heavy drinker when the applicants were children, and had subjected them and their mother to violent and verbal abuse. The father made a will leaving part of his estate to some friends and named charities with the residuary estate subject to a general charitable bequest. The applicants, by the time the application was made, were into middle age. They were comfortable but not well off.

One must conclude on the basis of this evidence that the deceased failed in his parental duty. His children were the victims of that failure. He had a moral duty to make amends by leaving his estate, or at least a large part of it, to them. This duty however, was simply another obligation which the deceased failed to fulfil ...

The court must therefore ascertain both whether 'adequate' provision has been made and what in the circumstances would have amounted to 'proper' maintenance and support: Collicoat v McMillan (unreported, 30 October 1995 per Ormiston J at 65). These are two sides of the same coin, so that it is but a single enquiry having regard to both aspects of the test. A principal determinant of proper maintenance and support 'is what the testator in all conscience should have felt bound to provide' (ibid, at 66). Thus, a testator who has neglected or abused his parental responsibilities might nevertheless not feel in conscience bound to provide for a child for whom very comfortable, or perhaps even merely comfortable, provision already exists: The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9. On the other hand, the conscience of a testator who has actively mistreated his children should react rather differently where those children, although not living in poverty at the date of his death, are by no means wealthy.

37 I will apply these principles in assessing the evidence and submissions presented at trial.

Relationship with the Deceased and Moral Duty

38 The affidavit material, and the oral testimony given in the courtroom, makes plain that there was not a well-developed and loving relationship between each of the Plaintiffs and their father. Unfortunately, quite the opposite prevailed. This is a remarkably sad case.

39 Apart from drawing broad conclusions about the troubled relationship between the Deceased and his children during his life, and a brief reference to some striking examples by way of illustration as to the conduct of the Deceased, I do not consider that there is profit in analysing all of the facts in any detail to establish whose fault it was, in relation to any one incident, that a state of noncommunication arose between them. As Young J said in Walker v Walker:[19]

In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously ...

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

40 Nevertheless in the present case, upon standing back and considering the evidence as a whole, an important conclusion can be drawn which tells a consistent and largely uncontroverted story about the parenting role of the Deceased.

41 Carlo deposed to a perception and recollection of the Deceased's conduct somewhat different in emphasis to that of the Applicants. He generalized that the Deceased 'exercised discipline as the head of a family' and that he 'could be stern but you knew where you stood', and says of the Deceased that 'he could be pretty strict'.

42 However, I do not accept this description as representing the full picture.

43 I accept the Applicants' description of their father, and that of the Deceased's second wife Pamela Carroll (the mother of Dana and Carlo), as being a violent man who was prone to cruelty, had a violent temper and was constantly critical of his children. His pattern of behaviour extended over many years from their childhood and put them in fear of him. Although it is not part of my function to ascribe blame for the various break downs of the familial relationships, reference to some of the evidence by way of illustration will suffice.

44 Pamela Carroll deposed to verbal abuse from the Testator when Dana and Carlo were young children. She also deposes to living with Dana at the time of an assault upon her by the Deceased and witnessing marks on Dana's neck and jaw and her emotional state after arriving home from reporting the assault to police.

45 Dana also described a later event in 2003 when she was subjected to a physical assault coupled with a threat by the Deceased to kill her, while she was heavily pregnant. This was followed by the Deceased pursuing Dana on a motorcycle with a shot gun strapped to his back.

46 Elio gave evidence of physical cruelty directed by the Deceased to his children, for example by cutting their finger nails so close to the quick that he drew blood.

47 Evidence was also given about an incident when Carlo broke his leg while on the farm as a child. Elio described the incident as follows:

When Carlo broke his leg our dad smacked us in the ambulance the whole 50 kilometres to Bendigo because it inconvenienced him making sausages.

48 In the light of this consistent evidence of the Applicants and Pamela Carroll, all of which I accept, I find that it is well established that a profoundly troubled and discordant relationship existed between the Deceased and the Applicants. This gave rise to deep seated trauma, stemming from their childhood, which has affected all of the children, to a greater or lesser degree.

49 In this case there were substantial periods of estrangement between each of the Plaintiffs and the Deceased, and each was estranged at his death. The Defendant says, and I accept, that estrangement is not automatically disentitling conduct for the purposes of a claim for provision. Rather, as was said in Browne v Macaulay:[20]

... an estrangement, particularly in later years, of the plaintiff from the Deceased may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely.

50 This approach to estrangement may be accepted in the usual case.

51 However, in the present case I find that the Deceased failed in his parental duty, and that his children were the victims of that failure. This places the conduct of the children towards their father, and their consequent estrangement, in a unique position and works in this case to very substantially mitigate the Applicants' neglect of their father which might otherwise have been of greater weight in a consideration of their applications.

52 The result is that I do not view the periods of estrangement on the part of the Applicants from their father as operating to weaken the moral force of their claims.

53 This finding also gives rise to a particular moral duty in this case for this Testator to have made a reasonable disposition from his relatively small estate so as to provide proper maintenance and support for each of the Applicants as far as it was possible to do so.

54 It is accepted that a testator is not obliged to treat his children equally [21] and that due account ought to be made to the dispositions reflected in the will.[22]

55 However I do not accept the submission made on behalf of Carlo that the Deceased had no obligations or responsibilities to the Applicant children.

56 Mina, Elio, Dana along with Carlo are all children of the Deceased, a fact that carries with it a 'well recognised obligation',[23] and in this case, on the facts as found, has particular force by virtue of the finding as to the failure of the Deceased in his parental duty.

57 I find that the Deceased had an obligation to all four of his children by reason that each were persons for whom the Deceased had responsibility to make provision. This was so notwithstanding the fact that he had a bad relationship with each of his Applicant children and an intermittently bad relationship with the Defendant child Carlo.

58 In addition to the general findings made, taking into account the circumstances of each Applicant described below, I find that the will of the Deceased did not make adequate provision for the proper maintenance and support of each of the Applicants.

Submissions of the Parties as to Appropriate Provision

59 It was submitted on behalf of Mina that an appropriate division of the net estate would be Carlo 30%; Elio 20% Dana 25% and Mina 25%.

60 On the other hand it was submitted on behalf of Elio that an appropriate division of the estate would be 25% of the net estate to each of the children.

61 Dana put a case that an appropriate division of the estate would be Elio and Mina 20% each of the net estate and for Carlo and Dana 30%.

62 Carlo submitted that the appropriate disposition of the proceeding would be for it to be dismissed, on the basis that Carlo has both a competing moral claim founded on his own relationship with the Deceased and a competing financial need.

63 I will now turn to consider the circumstances of each of the individual Applicant parties and the Defendant Carlo. Factual findings are arrived at in relation to each of them going to the question as the whether they are entitled to a benefit from the estate of the Deceased and the assessment of the quantum of any such benefit.

64 In so doing, an important factor in this case is the relatively modest size of the estate.

65 In undertaking this exercise it is to be recognised that, while an ultimate discretion is vested the Court, it is a discretion to be exercised within the parameters prescribed by the legislation and the case law principles which have developed alongside it.

66 At the same time, Parliament, through the legislation, has entrusted the Court to exercise its judgment in relation to applications which are made pursuant to its provisions. In each case, the nature of the determinations to be made do not render them amenable to precise reasoning as to the appropriate quantum of the dispositions to be ordered.

67 Mina Valentini was born on 30 June 1966 and is presently aged 47 years. She is a child of the Deceased's first marriage in 1963 to Marisa Valentini. That marriage broke down in 1968 and ended in divorce in 1971.

68 Mina is a single mother with two dependant minor children.

Obligations or responsibilities of the Deceased to Applicant

69 Taking into account the factors set out below, I find that there is a clear obligation for the Testator to have made provision for Mina.

70 Mina is a self-employed bookkeeper and is financially dependent upon the viability of her business. Her current turnover is approximately $33,000.00 per annum. She receives Centrelink payments of $33,806 per annum.

71 Mina owns no accommodation and rents a unit for $350.00 per week in inner Melbourne.

72 Mina has no superannuation, or any other financial assets, save for a bank account containing approximately $1,000.00 and a modest motorcar.

73 Mina is in vulnerable financial circumstances. Her current resources cannot meet any unexpected or unusual call on her finances. Any reduction in her Centrelink entitlements would result in her expenditure exceeding her income. The Centrelink childcare payments for her youngest daughter Ashley will cease in 4 years' time when the child turns 8.

74 Mina's ability to expand her bookkeeping business is constrained by her need to be available to her youngest daughter who is aged 4 and her reliance upon Centrelink payments to subsidise the cost of childcare for her youngest child that currently are running at $8,500 per annum. If she were to expand her activities and earn more money, she would lose the benefit of that childcare subsidy.

75 By way of summary, Mina has very modest earnings from her bookkeeping business and is reliant upon Centrelink support to provide sufficient income to make ends meet. If her current self-employed business were to fail, she may have trouble obtaining employment given her age. Until her children are independent she will have the responsibilities of supporting them. In the case of her elder daughter she will require some support whilst completing her tertiary education.

76 Mina keeps reasonable health however she does suffer from a prolapsed disk in her back and thyroid goitre. Both conditions are managed by physiotherapy and chiropractic treatment.

77 Mina suffers a degree of emotional trauma. She deposes to lack of self-esteem and depression.

78 Mina, who was born on was born on 30 June 1966, will attain 48 years of age on 30 June 2014.

79 Mina has not contributed to building up her father's assets; although she did provide domestic support for him over the period 1998 to 2006.

80 Mina has received no benefits at all during the lifetime of her father.

81 Mina did have the indirect benefit of the small amount of maintenance paid to her mother when she was a child. It is accepted that this was a legal obligation imposed upon the Deceased as a consequence of his divorce, and does not amount to any extra provision over and above the bare minimum he was required to provide in accordance with the Family Court Order.

Whether the Applicant maintained wholly or partly by the Deceased

82 Mina was not maintained wholly, or partly by the Deceased, at the time of the Deceased's death

Other persons legally obliged to support Applicant

83 There are no other persons who are legally obliged to maintain Mina. Mina receives child support from the father of her two children. Mina has no spouse or domestic partner. She is estranged from her mother Marissa.

84 Although Mina was estranged from her father over some 21 years when she was aged between 10 to 31, in approximately 1997 as an adult aged 31 years she reconciled and re-established contact with her father. Following this period she was a dutiful daughter and assisted and tended her father as best she could, until she was ultimately rejected by her father in 2008, a period of approximately 11 years, when she was aged between 41 and 42 years. Since that time the Deceased showed no interest in her situation prior to his death on 18 September 2011. The last time Mina spoke with her father by telephone was in 2008, some 3 years prior to his death.

85 Accordingly, although Mina had a long period of estrangement from her father, in her early life, she did have a constant and significant period when she did resume her relationship with him.

86 I find that Mina should be entitled to a share of the Deceased's estate, and that provision should be made for her in the amount of a 25% share.

Obligations or responsibilities of the Deceased to Applicant

87 Taking into account the factors set out below, I find that there is a clear obligation for the Testator to have made provision for Elio.

88 Elio was born on 17 May 1965 and is now aged 48 years. He also is a child of the Deceased's first marriage in 1963 to Marisa Valentini. That marriage broke down in 1968 and ended in divorce in 1971.

89 Elio is married. One of his two children is disabled with facial palsy and suffers learning difficulties.

Obligations or responsibilities of the Deceased to Applicant

90 Elio is plainly damaged as a result of his fractured relationship with his father.

91 The account he gave of treatment by his father during his childhood, demonstrates long lasting adverse effects, which have caused him and continue to cause him much emotional pain.

93 At the age of 49 years he is the eldest of the children, which means that he has fewer working years ahead of him.

94 Elio has worked as a chef and as a landscaper. Elio is currently unemployed due to what appears to be a back and elbow ailment. He gave evidence, which I accept, that due to these problems he is presently unable to work.

95 In sum, Elio's back and elbow present as an ongoing disability which has caused his present unemployment and I find limits his capacity to find and keep a job in the future.

96 Whilst Elio does have current financial difficulties, it would appear that both he and his wife have employment income to meet their immediate present needs.

97 Elio's wife earns $30,000 per annum, net of tax.

98 Elio and his wife own a home worth $750,000. This is subject to a mortgage of $271,000. They have a credit card debt of $5,000.

99 The sale of an investment property will enable him to substantially pay down the mortgage. The sale of his investment property is expected to produce net proceeds of about $120,000. Elio gave evidence that he intended to use this money to reduce his mortgage. If this plan was to eventuate, Elio's net asset position would be approximately $599,000.

100 If the Court were to make provision for Elio he would be in a position to further partly discharge his mortgage over his home and thereby secure his accommodation.

101 Elio is in the relative strongest financial position of all of the family members. However, this is placed in some doubt for the future. He is presently unable to work and his future capacity to take up gainful employment is uncertain.

102 Elio presents as an extremely vulnerable person emotionally. He has suffered greatly at the treatment he encountered at the hands of his father, and remains significantly traumatised by this conduct. He deposes to feelings of emptiness and rejection.

103 He also suffers from a mild speech impediment, which is residual of a more pronounced stutter which he endured earlier in his life.

104 I accept that, as a child, Elio was terrified by his father - a fear that he has never recovered from.

105 As earlier discussed, Elio's back and elbow problems present as an ongoing disability.

107 Elio has not contributed to building up his father's assets.

Whether the Applicant maintained wholly or partly by the Deceased

108 Elio was not maintained wholly, or partly by the Deceased, at the time of the Deceased's death.

Other persons legally obliged to support Applicant

109 There are no other persons who are legally obliged to maintain Elio.

110 Although Elio was estranged from his father for many years, he did intermittently establish some contact with his father, and to this day maintains a level of affection for him.

111 I find that Elio should share in the Deceased's estate, and that provision should be made for him in the amount of a 25% share.

Obligations or responsibilities of the Deceased to Applicant

112 Taking into account the factors set out below, I find that there is a clear obligation for the Testator to have made provision for Dana.

113 Dana was born 10 September 1979 and is now aged 35 years. She is a child of the Deceased's second marriage to Pamela Carroll which began in 1975 and ended in 1986.

114 Dana is presently married and appears to have an established trucking business with her husband.

115 She has part time employment as a trained nurse. She presently has a house and substantial business assets. Whilst all these assets are encumbered, Dana is in her thirties and with her husband, potentially at least, has many decades of working life left to provide for her and her husband's old age and the raising of their children.

116 However, Dana has separated from her husband, and is therefore vulnerable to a split in marital assets and a consequent reduction in income if the separation becomes permanent or ends in divorce. In evidence she has said she hopes to acquire her husband's interest in the matrimonial home and that he will continue the business. She and her husband have net assets of $87,000 largely being the equity in their home and a trucking business with a present deficit of $60,000.

Obligations or responsibilities of the Deceased to Applicant

117 I accept that during her childhood and teenage years, Dana was subjected to verbal and physical abuse at the hands of her father. This included physical assaults occasioned with some violence when she was 16 and 18 years old.

118 In spite of this treatment, Dana maintained a relationship with the Deceased until a physical assault coupled with a threat by the Deceased to kill her, in 2003, while she was heavily pregnant.

119 After this incident, Dana was unable to maintain a relationship with her father. Her attempts at reconciliation were violently rebuffed, to the extent of being spat on by the Deceased.

120 Dana has been separated from her husband for almost 12 months and has not yet come to any financial arrangements with him.

121 There are three children of the marriage, one aged 10, and two aged 5. School fees run at approximately $4,200.00 per annum.

122 Dana and her husband run a transport business from which they make approximately $60,000.00 per annum.

123 She has recently completed nurse training and has part time employment as a nurse, earning approximately $26,000.00 per annum net of tax.

124 Total shared assets consist of a house property at Strathdale worth $320,000 and a boat worth $30,000 (total gross assets $350,000), against which there are liabilities of $208,000, leaving a net asset position of $87,000. The business asset position leaves a deficit of $60,000.

125 Dana expects that a property settlement with her husband to involve her retaining the house and her husband retaining the business (which will involve her paying a sum of money to her husband). There is also a personal loan of $13,000 to finalise with her husband

126 Dana is in receipt of psychological treatment as a result of her relationship with the Deceased.

128 Dana deposes to working on the farm at Heathcote from childhood until the incident in 2003.

129 Carlo says however, that 'Dad retired from his Melbourne work in 1999 so I don't think Dana would have had to do work on the farm after that'.

130 The Deceased's second wife, Pamela Carroll corroborates the fact that Dana did work on the farm.

131 In the light of the direct evidence of Dana and Pamela Carroll, I accept that Dana worked on the farm at Heathcote from childhood until the incident in 2003.

Whether the Applicant maintained wholly or partly by the Deceased

132 Dana was not maintained wholly, or partly by the Deceased, at the time of the Deceased's death.

Other persons legally obliged to support Applicant

133 There are no other persons who are legally obliged to maintain Dana, other than her husband, pending a binding financial settlement in the Family Court.

134 Although at the time of the Deceased's death Dana was estranged from her father, until the incident in 2003 she did establish and maintain a relationship with him.

135 I am of the view that Dana should share in the Deceased's estate, and that provision should be made for Dana to receive a 25% share.

136 Under s 91(4)(g) of the Act, the Court is to have regard to any responsibilities of the deceased person to, inter alia, the beneficiaries of the estate. Carlo, is the named beneficiary of the residuary estate under the Deceased's will.

137 The Defendant Carlo was born on 9 April 1977 and is now aged 36 years. He is a child of the Deceased's second marriage to Pamela Carroll , which began in 1975 and ended in 1986.

138 Carlo is 36, and is married. He and his partner have a 23 month old daughter.

139 Carlo has long term health issues. He has a low back injury stemming from an old fractured leg injury which he suffered as a child, resulting in a shortened leg. He receives regular treatment for this disability.

140 He is in settled employment as a transport manager and has many years of working life ahead of him. He presently earns $79,000 per annum.

141 Carlo's partner Casey, earns $26,000 per annum, and has a personal loan of something in the order of $10,000.

142 Carlo received a car from his father when he was 18 years old, but was not maintained wholly or partly by the Deceased at his death.

143 There are no other persons who are obliged to maintain Carlo.

144 Neither Carlo nor his partner own a home. Carlo previously owned a home with his former partner. However, following a separation and the payment out of a mortgage, he was left with only $5,000 which has long since been spent.

145 Whilst he rents his accommodation he has no debts. He and his partner have superannuation and cash reserves of some $122,500, consisting of a term deposit of $70,000 and superannuation of $52,500.

147 Bearing in mind the moral duty of a 'wise and just testator', I find that there is a clear obligation on the part of the Testator to make provision for Carlo. He was the child of the Testator who, as was submitted on his behalf, 'stuck by him'. Carlo had relatively short periods of falling out with his father, but seemed to be able to reconcile his differences from time to time.

148 Having found in each case that the Testator had a clear obligation to make provision in his Will for each of his children, and that the Will of the Deceased did not make adequate provision for the proper maintenance and support of each Applicant, I am satisfied the Court should order a provision each Applicant, in each case having regard to the matters set out in s 91(4)(e) to (o) (inclusive) of the Administration and Probate Act 1958, and to any other matter set out in s 91(4) (p) insofar as this includes the failure of the Deceased in his parental duties towards his children as earlier discussed.

149 Synthesising the various and many factors presented for consideration by these applications, in accordance with s 91 of the Act, I consider that the amount of provision which the Court should order for each Applicant should be:

150 This would leave for Carlo 25% out of the net remaining assets of the estate (after payment of the costs of this litigation and other expenses) of the relatively small sum comprising the estate of $650,000.

151 Assuming the net estate available for disbursal, taking into account costs, is $650,000, as I have found it to be, this would provide the sum of $162,000 available for distribution to each of the parties.

152 Subject to any contrary submission from any of the parties, I propose to make the following orders:

1. That provision be made out of the estate of the late Luigi Antonio Valentini for payment to Mina Valentini of 25%, to Elio Valentini of 25%, and to Dana Jackson of 25%of the residue of his estate, so as to leave the balance of the residue of his estate to Carlo John Valentini as if so provided for in clause 2 of his will dated 30 June 2009.
2. The costs of and incidental to this proceeding be paid by the Defendant on a solicitor and client basis from the estate.

[1] William Shakespeare, King Lear Act 1 Scene 1.

[2] Boyd v State Trustees Limited [2008] VSC 18.

[3] Boyd v State Trustees Limited [2008] VSC 18 [44].

[4] [2004] VSCA 149 [41].

[5] [2005] VSCA 127; and is also consistent with Grey v Harrison [1997] 2 VR 359, and Collicoat v McMillan [1999] 3 VR 803.

[6] [1938] AC 463, 478-9 ('Bosch').

[7] Bosch [1938] AC 463, 479.

[8] Re Allen (Deceased), Allen v Manchester [1922] NZLR 218, 220-22.

[9] Bosch [1938] AC 463, 476.

[10] McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566.

[11] McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 571-2.

[12] Boyd v State Trustees Limited [2008] VSC 18 [48].

[13] Grey v Harrison [1997] 2 VR 359, 364.

[14] Grey v Harrison [1997] 2 VR 359, 365-366.

[15] Collicoat v McMillan [1999] 3 VR 803.

[16] Collicoat v McMillan [1999] 3 VR 803, 817.

[17] Baird v National Mutual Trustees Ltd (Unreported, Supreme Court of Victoria 22 November 1995, Harper J).

[18] Baird v National Mutual Trustees Ltd at [10] and [12].

[19] Walker v Walker [1996] NSWSC 188 [31].

[20] Browne v Macaulay (Executrix of the Will of the late John Henry Craig Macaulay) & Ors [1999] WASC 208 [19] (Murray J).

[21] Re: Hodgson [1955] VicLawRp 77; [1955] VLR 481, 485.

[22] See Baulch v State Trustees Ltd [2008] VSC 22 [18] (Pagone J).

[23] See Baulch v State Trustees [2008] VSC 22 [14] (Pagone J).