Warriner v Warriner [2015] VSC 314

2 The defendants, who are sued as executors, are Beate Andrea McManus and Jean Alma Warriner ('Jean'). I will use first names to avoid confusion.

3 Jean is George's younger sister. They are the deceased's surviving children. The deceased died on 20 August 2012 leaving a Will dated 8 July 1999. Probate was granted on 6 December 2012.

4 The deceased's estate consisted of a house at 11 Duffy Street, Maribyrnong ('the property') valued at approximately $680,000 to $740,000. The deceased devised and bequeathed the property, the main asset of the estate, to Jean. George and Jean were left the residuary estate under the Will in equal shares. According to the inventory of the assets and liabilities of the estate as at 3 July 2013, the residuary estate was valued at $16,774.76. The Court was informed that the cash in the estate, $16,774.76 at the date of death, has been used in estate expenses.

5 George relies on two affidavits sworn 3 July 2013 and 9 June 2014.

6 Jean relies on an affidavit sworn dated 12 May 2014. In addition, she relies on the affidavits of: Ronald Wayne Rosinsky sworn 28 May 2015 and Dr Judith Fleming sworn 29 May 2015. George and Jean also rely upon written submissions.

7 George, Jean, Dr Fleming and Mr Rosinsky gave viva voce evidence.

8 George is 68 years old. In 1964 George commenced working as an apprentice sheet metal worker.

9 In 1972 George purchased his own home in West Footscray, he married and moved into the home. George had three children with his first wife. In 1983, George divorced his first wife and gained custody of his three children. His first wife was placed into psychiatric care in 1990 and at that time his three children were placed in 'welfare control'.[1]

10 George's evidence is that during this period he lived close to his parents and from 1973 until 1990 he visited his parents and Jean.[2]

11 Prior to leaving home in 1972, George contributed to the home by constructing a large garage and arranging for a gas hot water service to be installed on the property. He also constructed concrete steps at the front entrance of the property.[3]

12 In 1990, George married his second wife. They had a son, Kenneth James Warriner ('Kenneth') in 1990.[4]

13 George says that from 1990 to 1992 he regularly visited his parents with Kenneth.[5]

14 In 1992 George, his second wife and Kenneth moved to the Philippines where he currently lives.

15 George's father died in June 1994. He found out about the death six weeks after his father's funeral. In cross-examination George said that his only contact with his mother and father at that time was by mail. He said that Jean wrote to him and informed him that his father had died.[6] In his affidavit dated 3 July 2013, George said that from February 1993 to 2000, he would regularly have contact with his mother by phone. In cross-examination, he said that when his mother went into a nursing home in September 1999, after having had a leg amputated due to gangrene, she had a phone in her room by which he was able to contact her.[7]

16 Prior to that it seems that the contact with his mother was limited to mail while his father was alive. George admitted in evidence under cross-examination that there was the occasional letter but not very much.[8]

17 The evidence in relation to phone contact between George and the deceased was somewhat confusing. On the one hand in his 9 June 2014 affidavit, George deposed that after he left Australia he was in contact with his mother by telephone at least monthly, sometimes more often. In cross-examination he said that he was not in telephone contact at the time of his father's death because he had no phone and that contact was confined to mail.[9]

18 In 1993 George started his own business in the Philippines. He purchased two Jeppneys (vehicles). He received financial assistance of $200 per month from the deceased from 1993 to 1995 for everyday living expenses.

19 From March 2003 to March 2008, George returned to Australia to work. He worked approximately 50% of that time in North Queensland and was otherwise on unemployment benefits. He said that while he was in Australia he sent money back to the Philippines for his family. He said that it was hard and he "had to go without a lot of things to do it."[10] Between 2003 and 2008, George visited his mother once, in 2005. He said he could not visit more often because he needed to work and provide for his family. George's evidence was that Jean would not allow him to stay at the property and this caused him an economic burden of paying for accommodation. He said that he could have visited more if Jean had allowed him to stay at the property.[11]

20 It appears from George's evidence that the telephone contact in this period was limited. George's evidence in cross-examination was that his hearing had deteriorated by 2009 to the point that he could not hear the phone ring.[12] This is to be contrasted to his evidence in his 9 June 2014 affidavit at paragraph 29 where he said that he remained in telephone contact with his mother.

21 George's evidence was that he did not provide or offer any assistance to the deceased after his father died because Jean was there. He did not offer to come to Australia to help the deceased before her leg was amputated and prior to her admission to the nursing home as he relied on Jean to deal with and look after the deceased.[13]

22 From March 2008 to August 2009, George returned to the Philippines. In April 2008, he organised for his second wife and Kenneth to travel to Australia so that Kenneth could complete years 11 and 12 in Charleville, Queensland.

23 George returned to Australia in October 2010. This was because he had learned that in order to obtain the Australian Age Pension, he had to reside in Australia for a minimum of two years prior to being eligible for the Age Pension.

24 George separated from his second wife in early 2012.

25 George saw the deceased daily for approximately one week in or about the week of Mother's Day in 2012.

26 Under cross-examination George said that he currently lives with his new de facto partner. His only income is the Age Pension at $730 per fortnight. Under cross-examination George revealed that he had a domestic partner who owns the home in which he is currently living. This is inconsistent with his evidence on affidavit where he claims his relationship status to be separated.

27 In his 9 June 2014 at paragraph 31, George stated that he had moved into rental accommodation and exhibited a rental agreement. Under cross-examination George agreed that his affidavit was incorrect and that at the time he swore the affidavit he was living at the home owned by his de facto partner. He also gave evidence that he was not renting but pays for the daily living expenses, including electricity, water and food. George gave evidence that he contributed financially to his de facto's child's education. In re-examination he said that once expenses are accounted for he can save between $100 to $200 per month from the Age Pension. His evidence in relation to what his expenses currently were was vague.

28 Kenneth, aged 24 years of age, is still in part financially dependent on George as he is completing tertiary studies. It is not clear what financial contribution George makes to Kenneth's education or how long into the future it will continue.

29 George's total assets are $18,500, made up of savings and household contents. He has no financial liabilities.

30 Counsel for Jean submitted that George has grossly exaggerated his expenses and that his financial position has not been established. This is on the basis that when one compares the expenses he claims in his first affidavit compared to what he said in cross-examination and reply, his evidence was evasive and it is still not clear what his expenses are.

31 It is submitted that while he has disclosed his pension accounts, he has failed to disclose his bank account in the Philippines.

32 George suffers from tinnitus in his left ear and has moderate sensorineural hearing loss in both ears. He does not have hearing aids but has been advised by his doctor that they would greatly assist him. The cost of a hearing aid is approximately $1,500 to $2,000. George said that he also needs a new upper denture and reading glasses.

33 There were significant difficulties in the course of George giving his viva voce evidence due to his hearing impairment. It is true that there was some confusion in relation to George's actual expenses. Regrettably at no point in time could it be determined with any precision what George's expenses are. He admitted in cross-examination that he had enough money to voluntarily assume some responsibility for his domestic partner's son.[14]

34 Despite the vagueness, I accept that George currently lives off the Australian Age Pension, he has a capacity to save something in the order of $100 to $200 Australian dollars per month and does not own any property in the Philippines or Australia. He has no significant assets in the Philippines or Australia.

35 George's evidence is that in the Philippines he is fully responsible for his health care costs and the costs of a nursing home if it becomes necessary in the future.

36 George agreed that an Australian income is of greater value in the Philippines. That is, the income enables a lot more to be done in the Philippines than in Australia.[15]

37 Counsel for the plaintiff submitted that George has chosen not to exercise his rights against the property now owned by his son in which he expected to have a life tenancy. There was no evidence that George had a capacity to impose a life tenancy on his son and his evidence was that as a permanent resident in the Philippines, he is not able to own property or impose a life tenancy.[16]

38 Jean has lived in the property since birth. Jean says that she visited the deceased, once the deceased moved into Templeton Lodge, an aged care facility, in 1999, at least twice a week and once per week when the deceased was moved from that facility. The reason she only visited once a week was because it was harder for her to get to the new facility. Jean was involved in assisting the deceased while she was in care.

39 In her affidavit Jean makes serious allegations about George sexually assaulting her during her childhood. George denies the allegations. These matters were not fleshed out in the course of the trial and there was no suggestion in closing submissions that the Court should infer anything from these matters.

40 Jean worked as a bookbinder for 35 years until 2000 and then was in receipt of the Newstart Allowance. In March 2002 Jean received a Disability Pension. She currently receives the Age Pension and has savings of approximately $42,000. The property is in a state of significant disrepair. There is no gas connected and no running hot water. Photographs of the exterior of the property were tendered into evidence.[17] The external property is unkempt and run down. There were no photographs of the inside of the property. Jean does not have the internet connected.

41 Jean uses a hotplate to cook and an electric pan, as the gas stove broke when the deceased was still living in the property and Jean has not replaced it or had the gas reconnected. She washes her clothes under the tap in the backyard using cold water. Jean said she would like to have the gas reconnected so that she could have hot water.[18]

42 Jean said that she has not organised for the internet connection or a TV aerial as she did not consider there to be any point until the case is resolved and she knew where she was going to live.[19]

43 Dr Fleming is a psychiatrist who has been treating Jean since June 2007.

44 Dr Fleming has provided two reports dated 4 April 2014 and 21 May 2015.[20]

45 Dr Fleming does not provide a conclusive diagnosis, but considers that Jean has some traits in common with a diagnosis of Asperger's Syndrome.

46 Dr Fleming describes Jean as being quite astute and in other ways childlike. In relation to the past history of harm, Jean has had two suicide attempts 'many years ago'. Dr Fleming describes in her 4 April 2014 report that Jean was admitted to the Sunshine Adult Psychiatric Ward from 9 August 2013 to 27 August 2013 and then from 27 August to 15 November 2013 at PARC ('a step-down facility'), because Jean became suicidal and depressed under the stress of the challenge by George to the deceased's Will.

47 Dr Fleming goes on to say in her 4 April report:

... I would be concerned that should Ms Warriner lose her home with all its associated connections added to a sense of unfairness, she is extremely unlikely to cope. The most likely scenario, even with the best of care, is that she again feels hopeless and suicidal, and, this time, require lengthy admissions at a cost to the State. Her treatment will be problematic and unlikely to be responsive to pharmaceutical intervention and she is relatively psychologically unavailable to grief works and/or psychotherapy. ...

... Since the last report, Ms Warriner has managed to settle her anxiety about the nature of the dispute over her mother's Will, largely by having the absolute certainty she will keep her home. She thinks very dichotomously. She sees herself as the dutiful, loving daughter who adhered to the care of her mother and achieved her love whilst sees her brother as an uncaring son and brother.

She has re-engaged with her studies and, for the first time in her life, has a small circle of people she calls friends and a Church community to which she feels she belongs.

It needs to be emphasised that should Ms Warriner be forced to move from her locality it is unlikely with her poor social skills and dishevelled appearance that she will be able to rebuild such a supportive community about her.

She is rigid and inflexible in her thinking. Whilst she is coping with her world at the moment even small stresses panic and overwhelm her. Whilst she gives lip service that she might have to leave her home, she does not believe it will happen. She has given some thought of moving to Maffra where she visited relatives in her childhood and youth, but these relatives are long gone and her reconnecting has consisted of one visit to Maffra when she looked in the window of a real estate agent that was closed. She has spoken of the need to have a car there so she plans to caulk the body of her over 30 year old car to replace the rust and stop the windscreen wipers falling into the engine to make it roadworthy. It has not been driven for a few years.

...

It is likely based on a consistently demonstrated lack of capacity to cope beyond very limited things she will again have suicidal intent thoughts, and, quite possibly, behaviour with consequent risk of completed suicide. Even the best of psychiatric care might not prevent this happening. ...

49 Dr Fleming was of the opinion that at this point in time, if Jean were to lose her home, it would be traumatic and she would find the transition to a new home extremely difficult. Dr Fleming agreed that with proper support it might 'work' for Jean to move to another place that had modern facilities but that this was a long way down the track.

50 Mr Rosinsky has known Jean since September 2012. He is the pastor at the Ascot Vale Uniting Church ('the church').

51 Mr Rosinsky described how Jean attends the church every Sunday for worship services. Jean also attends a group meeting at the church on a fortnightly basis. There are approximately six people in the group. The group, including Jean, have been meeting for three years.

52 Mr Rosinsky described that over the years there has been a definite change in Jean to 'talking more about positives than negatives and about just being more outgoing and extroverted'.[21]

53 Mr Rosinsky considers that Jean is feeling less isolated because of friendships she has made in the group. He believes Jean's confidence has increased since being part of the group.

54 Mr Rosinsky described how members of the church, including himself, had assisted Jean when she was hospitalised. Mr Rosinsky had met and spoken to three people who lived near Jean, in the same street, and had put out her bins when she was hospitalised. One individual, Carole Lambert, organised to pay Jean's bills during the period of hospitalisation.

55 Mr Rosinsky assisted Jean when she had a severe episode of depression in August 2013. In his affidavit sworn 28 May 2015, he said that:[22]

I have visited Jean on several occasions at her family home in Maribyrnong where she resides. I have also helped her as best I could when she had an episode of severe depression last year [in 2013] and wanted to take her own life. Jean and I engaged mental health professionals to assist her on that occasion. Jean was taken into mental health care at that time for an extended period, but she returned to her home in better mental health, after working hard to regain her mental equilibrium.

56 Section 91(1) of the Act provides that the Court may order that provision be made out of the estate of the deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. The Court must not make an order under sub-section (1) in favour of a person, unless the Court is of the opinion that the distribution of the estate of the deceased person does not make adequate provision for the proper maintenance and support of the person (s 91(2)(d)). The Court, in determining responsibility to make provision, whether the distribution of the estate makes adequate provision for proper maintenance in support of a person, and the amount of provision, and any other matter relating to the application, must have regard to factors in s 91(4). Before turning to the specific factors in s 91(4), I note the general principles established by the courts:

(a) In Collicoat v McMillan,[23] Ormiston J referred to the 'correlative notions' of moral claim and moral duties. Justice Ormiston held that the expression 'moral claim' has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision, adequacy of sufficiency being measured by reference to what is right and proper according to accepted community standards.

(b) In Blair v Blair,[24] Nettle JA stated:

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

(c) In Grey v Harrison,[25] Callaway JA (Tadgell and Charles JJA agreeing) stated:

... we must not underestimate the significance, both practical and symbolic, of freedom of testation. It is one of the badges of our society that has graduated from primitive conditions and a notable human right. Part IV of the Administration and Probate Act is to be construed accordingly ...[26] [i]t is one of the freedoms that shape our society, and an important human right ... there is no equity, as it were, to interfere with the testator's dispositions unless he or she has abused that right.

(d) This is reiterated in Webb v Ryan.[27] Whelan J considered that, because of the seriousness of the allegation that a testator has abused his or her freedom of testation, the principles concerning qualities of the proofs required, as set out in Briginshaw v Briginshaw,[28] need to be borne in mind.

57 While the court's discretionary power under s 96 of the Act is cast in very broad terms, it is important to remember that courts do not intervene just because it would have been 'nice or good' of a testator to give a benefit. It is important to remember that the test is 'whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant, having regard to community standards.[29] That assessment takes place with due regard to the freedom of testamentary disposition. As explained by Callaway JA and set out above in Grey v Harrison,[30] there is a principled approach to the exercise of discretion.

58 Whether a breach of moral duty has occurred is determined at the date of the testator's death, having regard to the value of the estate at that time, the plaintiff's claim upon the bounty of the testator and the competing moral claims of the actual beneficiaries in the will. The judgment made at the date of death is on the basis of facts, whether known or unknown to the testator, and all of the eventualities that might, at the date, reasonably have been foreseen by a testator who knew the facts. At the threshold stage, does George have a case under s 91(1) that the deceased, his mother, 'had responsibility' to make provision for his maintenance and support?

59 Before turning to the specific factors under s 91(4)(e) to (p), I note what her Honour McMillan J held in Salloum v Assouni,[31] in relation to a claim under the Act by an adult child of the deceased:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with the tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation (McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801).

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or to make other provision for his, or her, retirement, something to assist in retirement where otherwise he, or she, would be left destitute: Taylor v Farrugia.

(d) There is no obligation upon the deceased to have treated all of his children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented:

1. The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children.
2. That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation.

(e) There is no need for an adult child to show some special need or some special claim: McKosker v McKosker [1957] HCA 82; (1957) 97 CLR 566; Kleinig v Neal (No 2) 2 NSWLR 532; Bondelmont v Blanckensee [1989] WAR 305; and Hawkins v Prestage [1989] 1 WAR 37 per Nicholson J at 45.

60 Once jurisdiction to make an order under Part IV of the Act is satisfied, that is, that the deceased had a responsibility to make provision for the plaintiff, the plaintiff is obliged to show that the testator failed by his or her will to make adequate provision for his maintenance and support.

61 The question of what was adequate and proper was dealt with by Dixon CJ in Pontifical Society for Propagation of Faith v Scales:[32]

It has often been pointed out that very important words in the statute are 'adequate provision for the proper maintenance and support' and that each of these words must be given its value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.

62 In determining what is adequate and proper, the Court's approach to quantum of provision is careful and conservative.[33]

63 Further, in order to succeed in an application under Part IV of the Act, there must be a need shown by the plaintiff. This is a relative concept and one which has to be considered in the circumstances of each case.

64 While the concept of need is relative, it must be shown in order to establish a claim.[34] It should be noted that it is not confined only to economic need.[35] A plaintiff does not need to show necessitous circumstances and, where circumstances permit it, a testator should go beyond merely providing for the bare necessities of life.[36]

65 There is no principle that a testator should treat his children equally.[37] What the Court must do in making orders for provision is to make whatever provision ought to be made, having regard to the factors set out in s 91(4)(e) to (p).

Consideration of the factors identified by s 91(4) of the Act

Section 91(4)(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

66 George submits that there is no evidence of estrangement between himself and the deceased. Even after he left Australia, the deceased sent him $200 a month for two years to assist him.

67 Jean submits that from the time George left Australia in 1993, his contact with the deceased was extremely limited, be it in writing or by telephone.

68 Jean submits that there is no good explanation before the Court as to why George did not visit the deceased more while he was in Australia and that the Court should not accept that there was a financial basis for his minimal visits.

69 The contact between the deceased and George and his family, prior to leaving for the Philippines, was on a regular basis. I accept that the contact once he left for the Philippines and on his return to North Queensland was very limited. However, there is no evidence that the relationship between George and the deceased was abandoned because of indifference or some deliberate, dilatory conduct on George's part towards the deceased. It was a relationship in which there was a weakening of the parent-child bond, as circumstances kept George and the deceased apart. George's reasons for leaving Australia were based on his family. When he returned to Australia, it was to work in North Queensland to support his family living in the Philippines. George left Australia and made his life with his family in the Philippines. While George's contact with the deceased after 1993 was limited, in circumstances where his family needs took him abroad and then to North Queensland, as Robson J said in Boyd v State Trustees Ltd:[38]

... it is fair to say he behaved as any normal son would do who was making his own way in the world.

70 This was not a case where George callously withheld his love and support from the deceased in her declining years. There was no hostility. The lack of contact was in part explicable by the actual geographical distance between George and the deceased. However, the evidence is that only minimal efforts were made by George to keep in contact with the deceased, even at difficult times in her life such as when she was placed in care after her leg had been amputated.

71 George's failure to keep up regular contact does not demonstrate that there was an estrangement or hostility between George and the deceased. Rather, it was a relationship which, given George's commitment and obligations to his family, suffered from the strains of distance between George and the deceased.

Section 94(4)(f) - any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries

72 George submits that while the deceased housed Jean, Jean was not dependent upon the deceased and the deceased had no obligation to care for or provide for Jean in any particular way. Jean submits that, given her mental health issues, she has an overwhelming psychological attachment to the property and that based on the opinion of her treating psychiatrist, Dr Fleming, she ought to stay in the property to maintain stability. Any further provision provided to George from the estate will force Jean out of the home. Jean has lived in the property all her life. She is 65 years of age and lives on Centrelink benefits.

73 Jean has developed a supportive network of neighbours and participates and derives great benefit from her local church, in particular her relationship with Pastor Rosinsky. Dr Fleming considers the property is of a 'near spiritual value to Jean'.[39]

74 Dr Fleming was of the opinion that Jean should remain in the property given the possible significant psychological consequences to Jean if she is required to move. It is submitted that given Jean's health issues and lack of renting history, she is unlikely to be able to rent a home on the private market.

75 It is submitted on behalf of George that Jean's psychological attachment to the property is exaggerated. The property is in a dilapidated state and Jean has not done anything to maintain or repair the property. George submits that the property offers no material comforts or advantages to Jean.

76 Dr Fleming's evidence is that the property offers emotional and psychological support at this stage of Jean's life.

77 In relation to the support provided by neighbours and the church, George submits that neither Dr Fleming or Pastor Rosinsky provide any evidence of plans to provide Jean with better living conditions. I accept that Jean has a psychological attachment to the property. She has lived there since birth, she has mental health issues which at their worst have resulted in suicide attempts in the past and an attempt which Dr Fleming says was due to the challenge on the Will by George. Dr Fleming has treated Jean for a significant period of time. Her professional opinion was uncontested.

78 Jean lives in a property which is extremely run down and does not have basic amenities such as gas. The condition of the property is related to Jean's inability to cope with daily tasks such as organising to have the gas reconnected. On the other hand, the evidence is that Jean is able to live in the property, albeit in a manner which may not be considered comfortable by community standards. She is able to use public transport to deal with daily activities and in particular attending her local church.

79 Dr Fleming gave evidence of Jean's depression, history of emotional and physical depravation, anxiety over leaving the home, and rigid and inflexible thinking. While Dr Fleming concluded that the home has a near spiritual value, she also spoke of Jean's shame about the state the house is in and it being objectively uninhabitable.[40]

80 Dr Fleming considered that perhaps sometime in the future Jean would come to a realisation that staying at the property is not in her best interest or viable but she was not at that point now.

81 The property is of significant importance to Jean. The evidence however is that Jean has had suicide attempts while in the home and before the challenge to the Will by George. While Dr Fleming describes Jean's attachment to the property as infantile and rigid, it seems that Jean at one level is able to function and cope with daily activities, even if not in a conventional way.

82 The evidence is that in recent times Jean has found friendships, regularly attends a local church and a church social group. Jean has formed a close and caring relationship with Pastor Rosinsky. Her local church plays an important role in Jean's life, socially and emotionally. Jean has some good neighbours who pulled in bins when Jean was in hospital and paid some bills on her behalf.

83 There is no evidence that the community support from the church will cease if Jean is required to move out of the property. Jean catches public transport including the tram to the church which is 2.5 km from her home.

84 Jean herself said that she has not taken any steps to connect the internet until the current litigation is concluded in case she has to move.

85 I accept that change, particularly significant change such as moving from the property, may well have an impact on Jean's wellbeing. It appears that, at present, with the Church's support and the ongoing treatment by Dr Fleming, Jean is coping reasonably well and appears to have more confidence than she has had in the past. Regrettably, there was no evidence before the Court about what level of support Jean may need, either now or in the future, should she be required to leave the property.

Section 91(4)(g) - the size and nature of the estate of the deceased person and any charges/liabilities to which the estate is subject

86 As set out above, the estate consists of the property which is valued at approximately $680,000 to $740,000. The residuary in the estate of $16,734.76 at the date of death has been used in estate expenses.

Section 91(4)(h) - the financial resources (including earning capacity) and financial needs of the applicant, or any other applicant and/or beneficiary

87 George is 68 years' old. He is retired and lives in the Philippines in his de facto partner's home. He receives the Australian Age Pension which is $730 per fortnight. He can save between $100 to $200 per month. George is responsible for the day to day expenses and continues to provide some financial support to Kenneth and his de facto partner's son. It is not clear on the evidence how much financial assistance is provided but whatever the amount, George can still save between $100 to $200 per month from his Age Pension once all expenses are removed.

88 George's total assets are valued at $18,500 and he has no financial liabilities.

89 George admitted that an Australian income is of more value in the Philippines, in that a lot more can be done with the same amount of money in the Philippines.[41]

90 George's uncontested evidence was that he is unable to claim a life interest in the property Kenneth lives in which was purchased with money George earned because Philippine law does not allow an Australian citizen to own property.

91 The evidence does not support George's case as opened by counsel, that George has ' ... great need. He is living hand-to-mouth'.

92 I accept that the Australian Age Pension is of greater value in the Philippines compared to in Australia. It is difficult on the evidence to know how comfortable George's life is in his present circumstances.

93 As I have said, what is clear is that George does not own any property in Australia or the Philippines. He is currently living in his de facto partner's home and pays for the daily living expenses. If he requires medical or nursing home care in the future in the Philippines he will have to fund it himself.

94 George has some capacity to save. It is not clear how much he has saved as there is no evidence of any saving account other than the account where his Age Pension is deposited in Australia. I accept that George is living on limited means and in the event of any unexpected contingency, such as ill health, he will be financially stretched. He has no financial security in relation to his living arrangement. I accept that George has some degree of financial need, albeit, that need appears to be less while he is living in the Philippines.

95 Jean is 65 years of age and lives on the Age Pension. She receives approximately $100 a month in interest from her savings. She has no other source of income.

Section 91(4)(i) - any physical, mental or intellectual disability of any plaintiff or any beneficiary of the estate

96 George has significant hearing loss which was evident when he gave viva voce evidence in the case. In addition he needs a new upper denture and suffers sleep apnoea.

97 Jean's mental issues have been discussed. Jean suffers from depression and has been diagnosed with symptoms consistent with Asperger's Syndrome. Jean has had repeated suicide attempts and was placed in psychiatric care in 2013 for a period of three months.

Section 91(4)(k) - any contribution (not for adequate consideration) of the plaintiff to the building up of the estate or to the welfare of the deceased or the family of the deceased

99 George made some minor contributions to the property in 1969 to 1970 prior to moving out of home. He has otherwise made no contribution to the estate.

100 After leaving Australia in 1993, George has not made any contribution to the deceased's welfare. After leaving Australia in 1993 he visited the deceased on two occasions, there were some phone calls and a few cards and letters.

101 Jean lived with the deceased until the deceased was placed in a nursing home in August 2009. While they lived together for a long time, there is no evidence before the Court that Jean was in a carer role for the deceased while they lived together. The evidence is that Jean did not maintain the property while the deceased lived in it. For example, when the gas stove broke while the deceased lived in the property, Jean did not organise to have it repaired.

102 Jean visited the deceased on a regular basis when she moved into a nursing home in 1999. Jean purchased numerous items for the deceased while she was in care including a TV, a video recorder, DVD player, an Nintendo DS and games, telephone, cook books and photographs. Jean says she paid for most items excluding the cost of the TV, telephone, walking frame, wheelchair and clothes.[42]

103 In addition, Jean organised medical appointments for the deceased whilst she was in care and paid $900 for the deceased's hearing aid. Jean assisted the deceased with her affairs under the deceased's direction and had some authority with Centrelink, the Commonwealth Bank of Australia and the nursing home.[43]

104 I accept that Jean contributed to the deceased's welfare after she moved into the nursing home in August 1999 until her death on 20 August 2012.

Section 91(4)(l) - any benefits previously given by the deceased to any plaintiff or to any beneficiary

105 As noted, George received $200 per month for two years from 1993 to 1995 from the deceased by way of assistance.

106 Jean has lived in the property her whole life and in particular has had the benefit of the property from 1999, when the deceased went into care, to the present day.

Section 91(4)(m) - whether the applicant was being maintained by the deceased person before the person's death either wholly or partly and, whether the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed responsibility

107 Other than assisting George from 1993 to 1995 by way of $200 per month, there is no evidence of George being maintained by the deceased.

Section 91(4)(n) - the liability of any other person to maintain the applicant

108 George is separated from his wife. He is currently in a de facto relationship. There is no evidence that his new partner has any responsibilities to maintain George.

Section 91(4)(o) - the character and conduct of the plaintiff or any other person

109 George submits that he has acted appropriately towards the deceased and was a loving and caring son. Jean submits that George had very little contact with the deceased over the 20 year period.

110 I do not consider that there has been any conduct or that there is any matter going to George's character which is relevant or significant for the purpose of the exercise of the Court's discretion.

Section 91(4)(p) - any other matter the Court considers relevant

111 George submits that the prior will of the deceased was a mutual will with her husband that left everything equally to both siblings and that this was proper recognition of the deceased's testamentary duty.

112 George agreed that the deceased had informed him via telephone while he was in the Philippines that she was going to change her Will. The deceased explained to George that she would be giving Jean the house because 'Jean's threatened to commit suicide if she does not get her own way'.[44] George's evidence is that the deceased assured him that he would also be provided for.[45] George told the deceased that if need be he would contest the Will. The deceased told him that she expected that and had not put any clauses in the Will that would give him difficulty to contest the Will.[46]

113 Based on the latter evidence, the deceased was aware and accepted that Jean would consider suiciding if she did not remain in the property.[47] Based on George's evidence it appears that he said nothing further to the deceased in relation to the change to Will apart from indicating that he would contest the Will if need be.

114 There has been no challenge by George to the validity of the Will on the basis of undue influence. It is submitted on Jean's behalf that George has lied and misled the Court in relation to a number of matters, including the fact that he did not reveal until under cross-examination that he had a domestic partner so that Centrelink would not find out or reduce his pension. He was not paying rent as he deposed to in his affidavit in support. It is submitted that on this basis, George should not be accepted as a witness of truth.

115 While there have been inconsistencies in George's evidence and George failed to tell the truth regarding his relationship status, I accept the explanation he has given for taking that step, albeit, a serious matter.

116 It was submitted on behalf of George that the case put on behalf of Jean, that she should retain the property because of her mental health and the prospect of harm to Jean if she is required to move, should not be accepted. George submits that Jean is currently living in appalling conditions with no capacity to improve them and no financial means to improve them. Even if Jean keeps the property, in due course it will have to be sold in order for Jean to be placed in a better residential situation. It is submitted on George's behalf, that the basis for maintaining Jean in the property, including the local support, is not sufficient in that there is no evidence of the support group assisting her to improve her living standards. It is also submitted that the support she receives from the church group could be maintained even if she moved premises.

117 As noted by McMillan J in Peter Morris v Smoel:[48]

In certain circumstances, a testator has an entitlement to make no provision or limited provision for a child. After all, it is the deceased who is in the best position to determine what provision is proper and considerable weight should be given to his testamentary wishes. (footnotes omitted).

118 In this case, the only evidence before the Court in relation to the deceased's reasons for effectively omitting George from the Will was that she was concerned about Jean's mental health and the possibility that she would harm herself if the house was not left to her. As a child and young man George had a normal mother-son relationship with the deceased. George was not dependent on nor did he receive any financial support from the deceased at the date of the deceased's death.

119 The relationship between the deceased and George after he left Australia in 1993 until her death in August 2012 was not close and for many years of the deceased's life, was virtually non-existent.

120 In respect of any communications between the deceased and George, it was limited to two visits from 1993 to August 2012, some phone calls and a few letters and cards. George's behaviour towards the deceased cannot be characterised as callous or involving any misbehaviour on his part. Rather, it was a relationship which had diminished over time due to the distance between George and the deceased. George's efforts to keep contact with the deceased were minimal and it cannot be said that any real effort was made by George to keep any regular ongoing contact with the deceased. I accept that a relationship between a parent and child changes when the child leaves home. I accept that in this case George did not cease to be a natural recipient of the deceased's affection or support even though the bonds of childhood had been relaxed.

121 The community does not expect a parent to look after his or her child for the rest of the child's life and into retirement. However, if an adult child remains dependent on a parent, the community usually expects the parent to make a provision to fulfil that ongoing dependency after death. In this case, even on George's evidence, the deceased understood and considered Jean's mental health issues and the need to ensure that she was able to continue to live in the property. Jean has seemingly remained dependent on the deceased to provide a home for her. Unfortunately, the estate is not large. There is no evidence that George has fallen on hard times but I accept that he has some financial need. George failed to precisely identify his expenses and there was no evidence that George's current living arrangement was uncomfortable. In fact, he is able to live in the Philippines on an Australian pension, to provide some financial support to Kenneth and his de facto son and save a small sum each month. Where assets are available, the community would expect a parent to provide a buffer against contingencies. However, there is no obligation upon the deceased to treat all of her children equally. As Palmer J commented in Carey v Robson; Nicholls v Robson:[49]

The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children.

That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation.

122 The evidence before the Court is that if Jean has to move from the property, it will have a harmful effect on her. Dr Fleming was aware of Jean's living conditions. She has been treating Jean since February 2007. In her evidence, she stated that Jean was better off staying in the property.[50] I accept Dr Fleming's evidence that should Jean lose her home, she is extremely unlikely to cope and that the most likely scenario, even with the best care, is that Jean again feels hopeless and suicidal and will require a lengthy admission in care.

123 Given all the circumstances of this case including George's relationship with the deceased, George's financial need, the size of the estate, Jean's mental health issues and the pivotal role that the property plays in maintaining her stability now and into the future, in my view, I do not consider the Court should interfere with the freedom of testation and I dismiss George's application.

[1] Affidavit of George Warriner dated 3 July 2013 [31].

[6] Transcript ('T') 32, LL 3-4 and 20-21.

[13] T 34, LL 23-31; T 35, LL 1-6, 28-30.

[17] Exhibit P 3 [Fifteen colour photographs of 11 Duffy Street, Maribyrnong].

[20] Exhibits JF3 and JF4, Affidavit of Dr Fleming sworn 29 May 2015.

[23] [1999] 3 VR 803, 818.

[24] [2004] VSCA 149; (2004) 10 VR 69, [41] ('Blair').

[25] [1997] 2 VR 359, 363.

[27] [2012] VSC 377, [20]-[21].

[28] (1938) 60 CLR 366.

[30] [1997] 2 VR 359.

[31] [2013] VSC 591, [72].

[32] [1962] HCA 19; (1962) 107 CLR 9, [19].

[33] McKenzie v Topp [2004] VSC 90, [63].

[34] MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, [50].

[35] Unger v Sanches [2009] VSC 541, [78].

[36] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 135 (Fullagar and Menzies JJ).

[37] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 135 (Fullagar and Menzies JJ); Anderson v Teboneras, [1990] VicRp 47; [1990] VR 527, 534.

[38] [2008] VSC 18.

[39] Exhibit JF4, Affidavit of Dr Fleming sworn 29 May 2015.

[40] Exhibit JF4, Affidavit of Dr Fleming sworn 29 May 2015.

[42] Affidavit of Jean Warriner sworn 12 May 2014 [7].

[43] Affidavit of Jean Warriner sworn 12 May 2014 [8].

[44] Affidavit of George Arthur Warriner sworn 9 June 2014 [25].

[48] [2014] VSC 32 [124].

[49] [2009] NSWSC 1142 [57]-[58].