Amicucci v Di Tullio

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 09734

AMICUCCI AND ACCAPUTO	Plaintiffs
v
MARIO DI TULLIO (who is sued as executor of the will of Tommaso Di Tullio deceased)	Defendant
- and between -
S CI 2009 9120
GIUSEPPINA VENEZIALE	Plaintiff
v
MARIO DI TULLIO (who is sued as executor of the will of Tommaso Di Tullio deceased)	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	31 May 2011, 12 September 2011
DATE OF JUDGMENT:	24 October 2011
CASE MAY BE CITED AS:	Amicucci and ors v Di Tullio
MEDIUM NEUTRAL CITATION:	[2011] VSC 539

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TESTATOR’S FAMILY MAINTENANCE - Applications by three daughters of testator - Only son sole beneficiary - Approach where defendant does not participate at trial -Approach were applicants agree on orders, but not facts - Whether applicants persons for whom the testator had a responsibility to make provision - Whether adequate provision made - Relevance of consent of applicants to orders - Further provision ordered-Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (in proceeding S CI 2009 9734)	Mr J. Tsalanidis	Wilmoth Field Warne
For the Plaintiff (in proceeding S CI 2009 9120)	Ms. CH Sparke	Maurice Blackburn
For the Defendant	No appearance

TABLE OF CONTENTS

Proceedings......................................................................................................................................... 2

Approach to determination of the proceedings............................................................................ 4

Family history..................................................................................................................................... 7

1967-1969........................................................................................................................................ 8
1969-1987........................................................................................................................................ 9
1987-late 2003............................................................................................................................... 11
Late 2003 to January 2004........................................................................................................... 14
January 2004 to July 2006........................................................................................................... 15
July 2006 to July 2009.................................................................................................................. 17

The estate........................................................................................................................................... 17

The acquisition of 56 Green St...................................................................................................... 20

Defendant’s claim that he purchased Green St....................................................................... 20
The defendant’s earlier claim of a trust................................................................................... 25

Power to award further provision................................................................................................. 27

Assessment of s 91(4) factors.......................................................................................................... 30

Section 91(4)(e): family or other relationship.......................................................................... 30
Section 91(4)(f): obligations of the deceased to the plaintiffs and defendant.................... 31
Section 91(4)(g): size and nature of the estate......................................................................... 31
Section 91(4)(h): financial resources and needs and s 91(4)(i) any disability of the plaintiffs and the defendant; s 91(4)(j) age of the plaintiffs................................................................................. 32
Section 91(4)(k): contribution (not for adequate consideration) by the plaintiffs to the estate or welfare of the deceased or his family..................................................................................................... 35
Section 91(4)(l): any benefits previously given by the deceased......................................... 38
Section 91(4)(m): maintenance of a claimant by the deceased.............................................. 40
Section 91(4)(n): the liability of any other person to maintain the claimants..................... 40
Section 91(4)(o): the character and conduct of the applicant or any other person............. 40
Section 91(4)(p): any other matter the Court considers relevant.......................................... 40

Conclusion: jurisdiction.................................................................................................................. 41

Conclusion: further provision....................................................................................................... 43

Orders................................................................................................................................................. 46

HER HONOUR:

Proceedings

By originating motions filed 16 September 2009 (Ms Veneziale) and 23 October 2009 (Ms Amicucci and Ms Accaputo) each plaintiff seeks further provision out of the estate of the late Tommaso Di Tullio, their father. The defendant in each case is their remaining sibling, their brother Mario Di Tullio. He is sued as the executor of their father’s estate. He is also the sole beneficiary.

The trials in these proceedings were referred to me for hearing pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 by Justice Habersberger by order made in each matter on 31 May 2011.

The defendant played a role in each proceeding at an earlier stage but it appears from the file he has played no active role since the mediation conducted on 20 July 2010 or shortly thereafter. His former solicitors, Trumble Szanto, ceased to act by notice filed on 31 August 2010.

The proceedings were heard together on the basis that they were now undefended on 31 May 2011. The defendant failed to attend on that date. I was satisfied on the basis of the affidavit of Con Laris sworn 27 May 2011 in the Veneziale proceedings and the affidavit of Daryl West sworn 18 May 2011 in the Amicucci and Accaputo proceedings that the defendant in each had been notified of the last pre-trial orders, made by Associate Justice Zammit on 16 May 2011, at both his last known address and at the address of his wife, with whom the plaintiffs believed he may have been living. The orders of Associate Justice Zammit made on 16 May 2011 listed the proceedings for trial on 31 May 2011. Previous affidavits had been filed in each proceeding confirming service on the defendant of previous orders and the Court Book.

At the conclusion of the one day hearing on 31 May 2011 Ms Veneziale, through her counsel, requested that the delivery of judgment await the conclusion of proceedings in the Magistrates’ Court in which she was a defendant, the plaintiff being Mr Mario Di Tullio’s wife. I made orders at that time allowing Ms Veneziale leave to seek to re‑open her case should it become necessary and requiring outlines of closing submissions from each party.

Shortly after the final closing submissions were filed by Ms Veneziale by letter dated 20 July 2011, the defendant filed an application by summons in each proceeding to re‑open his case. The summons in each proceeding was returnable before me on 12 September 2011. The defendant did not attend and each application was dismissed. The Court had contacted the legal representatives for the plaintiffs in respect of the summons the preceding Friday for administrative reasons. Those legal representatives indicated that the summons had not been served in either proceeding but attended, and in my view necessarily so, on 12 September 2011.

The plaintiffs have agreed the orders that they seek as between themselves. Each gave evidence at the hearing verifying their affidavits and giving further short evidence. None was cross‑examined by another, apparently by agreement. The orders submitted by the plaintiffs in each proceeding after the conclusion of evidence (and subsequently updated) propose that further provision be made for Ms Amiccuci and Ms Accaputo each to the extent of one‑eighth of the “net residuary estate”, and in respect of Ms Veneziale to the extent of one‑quarter. The plaintiffs propose that the defendant personally bear all the interest and costs in respect of both encumbrances on the title of the principal asset of the estate, the deceased’s former home, recently sold by the first mortgagee in possession. The plaintiffs also propose that each plaintiff’s costs, and the defendant’s costs, be paid out of the estate on a solicitor-client basis, but that the defendant personally bear any “liabilities or costs” which “do not relate to the deceased or to the estate, or which exceed the amount of the liabilities or costs properly incurred”. The orders make consequential provision for taxation in respect of dispute as to the amount of legal costs to be paid from the estate.

The defendant did not attend the hearing of the proceedings to put his affidavits into evidence. However, all plaintiffs put into evidence their affidavits in reply to his, notwithstanding me drawing to their attention that this put his into evidence by reference. Counsel took this approach because they each considered it appropriate, in the exercise of discretion pursuant to s 91(4) of the Administration and Probate Act 1958 (“the Act”) that the Court have regard to all relevant material including the position of the current beneficiary.[1] Accordingly, I have had regard to the defendant’s affidavits as well as those filed by the plaintiffs in‑chief and in response to each other and to the defendant.
[1]Transcript pages 11-12, 75, 97.

Following the determination of the Magistrates’ Court proceedings, Ms Veneziale sought leave to re‑open her case and rely on a further affidavit of Ms Tran sworn 20 July 2011 as to Ms Veneziale’s financial position. That leave was not opposed by the other plaintiffs and was granted at the hearing of the defendant’s application to re-open his case on 12 September 2011.

In what follows, for simplicity I will refer to the parties by their first names, without intending any disrespect in that regard. As Ms Veneziale is known by her family as “Pina” I will use that shortened version of her name.

Approach to determination of the proceedings

Neither counsel seek that I make the orders the plaintiffs seek purely on the basis that they agree, and the defendant did not attend. They both submit, clearly correctly, that notwithstanding the lack of contest the Court must find jurisdiction and exercise its discretion having regard to the statutory criteria. I am also conscious that the Court must approach changing the disposition in the will with the caution that the authorities require.[2] The Court cannot merely substitute its own view, or that of the plaintiffs, as to what would have been appropriate for the disposition in the will. Further, there is no legal presumption of equality of division amongst children, such as would divide the estate four ways to reflect the four surviving children.[3]
[2]Callaway JA in Grey v Harrison [1997] 2 VR 359, at 366.
[3]Litchfield v Smith and Tingate [2010] VSC 466 Hargrave J. at [75] and the references there cited.

This is not the further provision that the plaintiffs seek, of course, although they each did initially.[4] However, although the plaintiffs are in agreement with each other as to the orders sought, they have not provided any agreed statement of the facts or the aspects of s 91(4) on which they rely to justify the orders. Further, the plaintiffs do not in any detail indicate the basis for the differential further provision on which they agree. That differential outcome is explicable, having regard to the statutory criteria, in at least two different ways, either having regard to relative financial means i.e. need, or having regard to relative contribution. There is only one reference by one counsel to the basis for the agreed differential outcome, to the effect that it is determined by need.[5] In relation to need, the personal circumstances of each of the parties as alleged by that party is not disputed to any great extent by any other. In short, it is not in dispute that of the four siblings, Mario is in the poorest financial position, being in receipt of a disability pension and owning no home, and that Pina is also in receipt of a disability pension but does own a home. It is apparent that both Ergisa and Elia are substantially better off financially, each owing multiple properties, although both have significant health problems.
[4]Transcript page 8.
[5]Transcript page 85 lines 10-12, Ms Sparke.

In relation to contribution, however, there are many instances in the plaintiffs’ affidavits of inconsistency or dispute as between Ergisa and Elia on the one hand, and Pina on the other. In addition, the plaintiffs or one or other of them disagree with Mario’s account of a number of key events, in particular who paid the deposit and mortgage repayments for the family home. That is the key aspect of contribution relied upon by Mario. The law does not permit relative contribution to be ignored. Ergisa and Elia on the one hand, and Pina on the other, each emphasise the contributions they assert they have made, and seek findings against Mario in relation to his claimed contributions, but do not suggest a means of reconciling their assertions with that of the other plaintiff or plaintiffs where they are in conflict.

No plaintiff cross examined another, apparently by agreement, and the defendant did not participate in the trial, so the inconsistencies have not been tested. Both counsel for the plaintiffs took the view that the inconsistencies as between the plaintiffs did not need to be resolved.[6] It appears that this is because they are content for their position to be seen collectively, as to one half of the estate, leaving what is considered an adequate amount for the defendant to acquire a home.[7] Counsel for Pina elaborated in respect of the need to make findings (without demur from counsel for the other plaintiffs) that disagreements between the sisters did not need to be resolved by findings, but as between the plaintiffs and the defendant there may by findings required in respect of areas of dispute.[8]
[6]Transcript page 11 line28- page12 line 4 (Mr Tsalanidis for Ergisa and Elia); page 70 line 27, page 89 lines 1-7 (Ms Sparke for Pina).
[7]Transcript page 11 line 28- page 12 line 4 (Mr Tsalanidis), page 68 line 15- page 69 line 11 (Ms Sparke)
[8]Transcript page 89 lines 1-7.

As between the plaintiffs, I can see the attraction of the position taken by their counsel. It would certainly not be desirable to re-open or inflame earlier wounds. In any event, it can be impossible to find facts where the parties’ accounts are inconsistent, in the absence of those conflicting accounts being tested by cross examination, although this is what the plaintiffs seek as against Mario. In respect of the principal dispute with Mario, being his claimed purchase of Green St, I consider that it is possible to make findings and I do so. There are also some instances of conflict as between the plaintiffs’ accounts where it is in my view both possible to make findings and necessary, having regard to the statutory criteria, to do so. Speaking generally, I have been unable to make findings where the plaintiffs are in disagreement as to which of them made the greater contribution at a particular time, but this has not been critical in the determination of these proceedings, given that the fact that they each made contributions and certain significant contributions are not in dispute.

A further consequence that flows from the lack of participation by the defendant in the trial is that there is no aspect of the statutory requirements that is conceded by the defendant. In some applications for further provision the parties are able to agree on some of the statutory criteria that must be found to ground the Court’s jurisdiction and then are required to be considered in relation to the amount of any further provision. While this does not absolve the Court from considering those matters, it allows greater focus on the truly disputed aspects. As the defendant has not participated in this trial, in my view all aspects of the statutory criteria must be fully considered.

Family history

The three plaintiffs and the defendant are the surviving four children of Tommasio and Elisa Di Tullio. Two older siblings, both boys called Mario, died, one at six months of age and the other at 11 years in a wartime accident. Another boy, also called Mario, was still born. The mother, Elisa, died on 3 May 1987. Their father, the deceased in these proceedings, died 24 July 2009 at the age of 100 years.

The eldest sibling, Ergisa, was born 28 April 1936 and so is now aged 75 years. Elia, the next oldest, was born 15 November 1942 and so is now aged 68 years. The defendant Mario was born 19 August 1948 and is aged 63 years currently. The youngest surviving sibling, Giuesppina, known as Pina, was born 28 August 1950 and so is aged 61 years. Ergisa was widowed in 2004, Elia in 1983. Mario asserts in his affidavits that he separated from his wife, Teresa, whom he married in 1979, in 1992. The plaintiffs believe that he may still on occasion live with her. Pina married in 1969. She separated from her husband in 2002. All of the parties have adult children.

By his will dated 19 September 1974 the deceased provided that in the event of his wife predeceasing him, as in fact occurred his executor be his son Mario who was also his sole beneficiary. The will made no provision for the current plaintiffs.

At that time each of the plaintiffs was married with a husband working. The defendant had just commenced his occupation of builder and was not married. He asserts he was still living with his mother and father. As might be expected given the passage of 35 years, the position of all of the plaintiffs and that of the defendant had changed substantially by the time of the testator’s death.

All the parties were born in Italy in a town in the Abruzzo region, where the deceased was a farmer. The elder two girls, Ergisa and Elia, and the boy Mario all assisted their father in farm work from a young age. Ergisa and Elia had limited primary schooling only, Mario attended a technical school for two years after primary school. The youngest girl, Pina, assisted her mother in the home. She commenced high school but left at 13 years to assist her mother when her mother became unwell. Ergisa migrated to Australia in 1958, following her husband who had migrated two years earlier. Elia followed in 1962, met her husband in Australia and married in 1963. Their parents and the younger two children, Mario and Pina, joined them in Australia in April 1965. At that time the deceased was 57 years old.

The family was close and the members assisted each other both materially and in kind in various ways, although there is some dispute in the affidavits filed as between the plaintiffs as to the extent. For example, it is not disputed that Ergisa sent money she earned in Australia to her parents still in Italy, although Pina disputed the amount in her filed material. Elia and Ergisa agree that Elia, her husband and her first child lived with Ergisa and her family until 1965. All parties agree that their parents, and the younger two children Mario and Pina lived with Elia and her family in their home on arrival in Australia in 1965 until 1967.

1967-1969

In 1967, in circumstances which are disputed as between the plaintiffs and the defendant, but not as between the plaintiffs, the deceased and his wife became the registered proprietors of a home at 56 Green St, Ivanhoe. The circumstances and disputed ownership of 56 Green St are discussed below. The parents, Elia and her husband and child, and the two younger children Mario and Pina moved from Elia’s home to 56 Green St, where they lived together until 1969, when Elia and her husband and child moved into a home in Heidelberg. For a period a cousin also lived at Green St. Elia described this period in her primary affidavit in the following words: “ We all pooled our resources and income together and contributed to the family living costs and expenses so as to improve the quality of our lives in our newfound home, Australia”.[9]
[9]Affidavit sworn 2 February 2010, paragraph 37.

The deceased worked as a labourer for a short time on arrival in Australia, and thereafter with the Victorian Railways from approximately 1966 or 1967 until 1973. Mario says he retired at that time, but Pina and Ergisa assert he continued working for a period.[10] Pina commenced work in 1965. She asserts this was shortly after arrival in Australia, at the age of 14 years, Mario asserts that it was later that year when she was 15 years old. Elia, with whom Pina worked, says Pina was 14. Pina’s evidence, which is disputed by Ergisa, Elia and Mario, is that she gave her father, the deceased, her entire wage, and that she contributed her wages to the household until she left home, on her marriage, and in this way assisted with the purchase of Green St. Mario also commenced work in 1965. The plaintiffs assert that he did not contribute financially or in kind to the running of the household. Mario’s case is that it was he who paid the deposit and mortgage payments for Green St.
[10]Pina in reply to Mario paragraph 3; Ergisa in reply to Mario paragraph 6.

1969-1987

Pina moved out of the Green St property on her marriage in December 1969, leaving the parents and Mario at Green St. Pina asserts she returned with her husband to Green St in 1972 when her mother became ill and continued living there until 1974. Mario disputes this, but Ergisa and Elia agree it occurred, although not because their mother needed care. Mario says he lived at Green St until his marriage in 1980, but Pina says he moved out in 1969. This is a significant discrepancy. I do not consider, in the absence of cross examination of either Pina or Mario on the point, I am able to make a finding. Neither Pina nor Mario give any further detail of their respective assertions and there is no evidence from either Ergisa or Elia on the point.[11] I do not consider that the inability to determine this issue is material, however. Mario does not assert significant contribution to the Green St household while living there other than paying the mortgage payments, which is disputed by the plaintiffs. That issue can be resolved without determination as to where he was living, as I do below.
[11]Transcript page 82, lines 10-12.

There is no dispute that the plaintiffs continued to see their parents and Mario regularly although no longer living together and that the family was close knit and enjoyed social occasions and meals at each other’s houses together until the death of the mother in 1987. The amount of assistance that the plaintiffs provided to their parents in this period is, however, in dispute. Elia and Ergisa assert that they provided regular household assistance to their mother, who was not in good health, in the form of cleaning of the home and shopping. Mario and Pina dispute this.

Pina asserts that she was of particular assistance to her mother from about 1978 when her mother’s health deteriorated, attending Green St most days to clean, cook, wash, iron and mend clothes, and shop. She asserts that her mother stayed with her on a number of occasions on her release from hospital. She says that by 1985 her mother was severely limited in what she could do, and she Pina visited her most mornings and nights to help her with personal tasks, including washing herself, and continued to do the washing, shopping and cleaning for Green St and cook dinner each day. These assertions are disputed by Mario. He concedes that on occasion their mother lived with Pina, but says this was not for extended periods and was to assist Pina, not his mother.[12] In general, Mario disputes the extent of his mother’s ill health and consequent incapacity,[13] and says that his mother undertook the household tasks for Green St, not Pina, and that his then wife also assisted.
[12]Mario in reply to Pina, paras 75-78.
[13]Ibid, paras 80-81.

As between Mario and Pina, I find that Pina’s account of her mother’s need for assistance is the more likely. I do so in part because neither Ergisa nor Elia dispute that their mother’s health deteriorated from 1978, nor that their mother lived with Pina on release from hospital, although Elia says that their mother also stayed with her. As between the plaintiffs, I do not consider it possible to determine with any precision who provided the greater assistance to their parents at this time. I note that Elia’s husband became ill in 1981 and her evidence is that she ceased work to care for him. They had three children at this time, the younger two of whom were still quite young. Elia’s husband died in May 1983. It seems possible that Elia was not able to give the same degree of attention to her father and mother’s needs as the other plaintiffs during this period. On the other hand, both she and Ergisa say that they assisted at Green St and in the care of their mother during this period and Ergisa contends that Pina was not able to do as much as she claimed, because her children were young.[14] In the absence of these competing accounts being tested, I am unable to make findings as to which is correct.
[14]Ergisa in reply to Pina, para 10, Elia in reply to Pina paras 16-20.

Mario states he became a registered builder in 1974, in his 26^th year, and lived at Green St until 1980, a year after his marriage in October 1979. He and his wife, Teresa, moved into a house he had built in Rosanna on land he had earlier purchased in late 1980. His case is that it was he, and not his father, who provided the funds for the deposit and mortgage payments for Green St. The Green St mortgage was discharged on 20 June 1974. This assertion is discussed under the heading “The Estate”. He also asserts he undertook renovations and maintenance at Green St. Other than these matters, he does not assert in his affidavits financial or other contribution to the Green St household in the period between its purchase and moving out in 1980.

1987-late 2003

The parties’ mother Elisa died in May 1987. At that time the deceased was 78 years old, in good health, but requiring household assistance in the absence of his wife. Mario asserts that his father lived with him and his family first at Rosanna and then in a house Mario had purchased at South Yarra in 1988 in the period from just before his mother’s death in May 1987 to 1990 or 91. He says he drove his father to Green St so he could tend his garden there. None of the sisters agree with this, and Mario does not provide any detail of this contention or any supporting material by way of affidavit from Teresa or any other person, or any documentary corroborative evidence. As he did not participate in the trial he could not be cross examined on the contention. By contrast, the sisters have all, to varying extents, given more detailed accounts of this period. They all agree that their father continued to live principally at Green St until January 2004.

Also by contrast, Mario gives far more detail of his own circumstances during this period in his affidavits in chief. He states that he was involved in a car accident in 1989 which caused him serious injuries and meant he became unable to work. As a consequence, he was unable to make mortgage payments on the South Yarra property and he and his family were evicted in 1991. His marriage also became strained and he and his wife separated in 1992. He details three subsequent addresses before he moved back into Green St in 2004 (after the deceased had moved into Pina’s home).

It is difficult to reconcile Mario’s contention that his father lived with him from his mother’s death until 1990 or 1991 with the detail of the sisters’ accounts of visiting their father at Green St during this period and assisting him there. It may be that the latter portions of Mario’s affidavit, which responds to Pina’s, also qualify the bald assertion that this father lived with him till 1990/91.[15] The absence of detail as to this contention, which coincided with events that Mario records with more detail, and absence of corroboration are also striking. I find that Mario’s contention is not correct, and that the deceased continued to live at Green St, with assistance from his children and some periods spent at the houses of Ergisa and Pina, until January 2004. The period 2003-2004 is discussed in further detail below.
[15]Mario para 84 cf para 22.

The sisters agree that they all gave assistance to their father in the period from their mother’s death until late 2003 but they disagree as to which of them gave more or the most assistance, and of what type.[16] Pina agrees that their father spent nights at Ergisa’s home on occasion, and concedes that their father may have eaten at Elia’s house once or twice a week. Pina asserts she provided the principal domestic assistance to her father, visiting him every day at Green St up until 1990 when she moved further away, and thereafter several times a week, and brought him to her house for the evening meal two or three nights a week. This is disputed by Elia and Ergisa, but Pina and Ergisa concede that they each did washing and ironing for him. Having regard to the agreed position taken by the plaintiffs at trial, I do not consider it necessary to make detailed findings as to who provided exactly what form of assistance to the deceased during this period and to what extent. My overall impression, and I so find, is that all the sisters assisted their father in this period in a variety of ways and that, by and large, they worked together to look after him after their mother’s death,[17] enjoyed his company and spent time with him and each other on social and holiday occasions. Ergisa asserts there was a specific occasion in 1995 when their father lived with her for approximately 6 months after a bout of sciatica.[18] Pina says she does not recall this, but does not dispute it. She says their father stayed with her on occasion, and with Ergisa on occasion, when he was unwell.[19] Pina asserts that Elia “stopped seeing as much of Dad in 1992-1993”.[20] Perhaps due to the sequence of affidavits, Elia does not respond directly to this assertion. The medical report tendered on her behalf without objection states that her multiple sclerosis first became evident in 1993.[21] Accordingly, it is possible that, if it be the case that her physical contribution to assisting their father became less at this time, it was due to her health.
[16]Pina’s affidavit in reply to Elia and Ergisa sworn 16 July 2010 paragraphs 17-34, Elia in reply to Pina para 23.
[17]See for example Pina’s affidavit in reply to the other plaintiffs, paragraphs 29 and 31 re co-operation between Pina and Ergisa to care for their father.
[18]Ergisa principal affidavit paragraph 59.
[19]Pina affidavit in reply to other plaintiffs, paragraph 33.
[20]Ibid, paragraph 27.
[21]Exhibit A, report of Professor Richard Macdonell dated 28 May 2011.

None of the plaintiffs nor Mario himself (other than his contention that his father lived with him for a period) record Mario giving any special assistance to their father after their mother’s death, other than taking him home for dinner once a week. Pina says that she asked Mario to give some assistance in 1998, after Ergisa could no longer come to Green St as her husband could no longer drive her there. Pina says that after she made this request, Mario would collect their father for dinner once a week, but did not provide any domestic assistance. Mario may dispute receiving this request[22] but in any event agrees that he and his wife (despite their separation) visited his father at least once a week.
[22]Compare paragraphs 85 and 87 of his affidavit.

Late 2003 to January 2004

The deceased was diagnosed with Alzheimer’s disease in September 2002. There is no dispute that he became incapable of living independently by late 2003. There is also no dispute that he suffered shingles in August 2003 and moved in with Ergisa for a period. What is in dispute is how long he stayed with her and how he was cared for thereafter, until January 2004 when it is agreed he came into Pina’s care, although the circumstances are in dispute. Ergisa says he stayed with her until Christmas or thereabouts, and Mario agrees with her, but Pina says it was only a month or two as she was visiting him at Green St from about September and he was not being looked after by any of the other parties. The deceased was assessed for aged care at Green St on 3 September 2003 apparently accompanied by Mario. The terms of the recommendation imply that he was then living, or at least expected to return shortly, to Green St.[23] A report from Austin Health to VCAT dated 12 February 2004 records further assessments conducted on 25 November 2003, and 10 December 2003 also at Green St and an assertion that Mario cancelled council assistance on 30 December 2004,[24] all of which tend to support the view that at this time the deceased was living at Green St, and not with Ergisa. In her affidavit in reply to Pina, Ergisa refers to the fact that her husband was very ill in the summer of 2003 recovering from bowel cancer and for that reason she was not able to take her father with her as in previous years to her beach house.[25]
[23]EA 3 to Elia’s affidavit sworn 2.2.10.
[24]EA 4 to Elia’s affidavit sworn 2.2.10.
[25]Ergisa in reply to Pina, paragraph 18.

The plaintiffs do not seek that I make any findings as to their respective contributions to their father’s care for the period September 2003 to January 2004. Given the level of dispute and the absence of cross examination it is not possible to do so.[26] They do seek a finding that Mario did not contribute, in the sense that he gives no evidence that he implemented the recommendations of the various aged care services, although he was the contact person for them and so was given the information as to what was required.[27] In my view it is not appropriate for the plaintiffs to seek a finding against Mario in the absence of findings as to their respective roles during this period. It is agreed by them that it would be undesirable and unnecessary to do so as between them, and I consider that the same approach needs to be taken to Mario’s role, as another sibling with potential responsibility for his aged father’s care. I find on the basis of the contemporaneous independent assessments for aged care set out earlier that the deceased was living at Green St from September 2003 to January 2004, but make no findings as to his care for that period.
[26]As to the disputed accounts of this period see for example Pina’s primary affidavit paragraphs 44-55, and Mario’s principal affidavit para 36, where he says there was a dispute between the sisters about their father’s care, in which he was not involved, and paras 88-102 in reply to Pina, in particular para 98 where he says he and Pina fell out about a debt he claims she owed Teresa.
[27]Transcript page 92 line 7 to page 94 line 28, Ms Sparke.

January 2004 to July 2006

Pina says she collected her father from Green St in early January 2004 and brought him to live with her. Proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”) were commenced because of disputes as to the care of their father, and on 11 March 2004 VCAT ordered that the Public Advocate be appointed limited guardian of the deceased in relation to accommodation and contact and that Ergisa and Elia be his administrators. Pursuant to these and subsequent guardianship orders, the deceased remained living with Pina from January 2004 until he moved to a nursing home in July 2006. VCAT made further orders on 12 January 2005 appointing external administrators, Judge and Papaleo, to replace Ergisa and Elia, and on 19 December 2005 the administrators were changed to FTL Judge and Papaleo Pty Ltd. In 2008 Mario brought an application in VCAT seeking initially orders for the transfer of the Green St property to him on the basis that it was held by his father on trust for him, and subsequently declarations that it was so held. The application was unsuccessful. It is discussed further below.

Pina’s account is that she left work to care for her father after he came to live with her, and that she renovated a spare bedroom to be his own. She says she washed him, apart from the occasions when the council assistance did so, cooked and washed for him and took him to his clubs, to visit friends, to the doctors and so on. Some aspects of this account are disputed in their affidavits by the other plaintiffs,[28] there is a dispute as to whether Pina was paid by the administrators for her services (to which I will return later), and there is some dispute as to the extent to which the other sisters provided respite care.[29] The contemporaneous independent evidence supports a finding that the deceased required assistance with all aspects of his life at this time, and was well cared for by Pina.[30] The other plaintiffs were their father’s administrators at this time, and they did not dispute the quality of Pina’s care in their report to VCAT.[31] The report is undated, but a date for its delivery was sought by the guardian’s letter of 8 June 2004,[32] and so it appears it was prepared at some time thereafter. In that report, Ergisa and Elia stated that Pina had given up her full time job to care for their father, and that she was caring for him well. Having regard to these contemporaneous accounts, I find that while all sisters contributed to their father’s welfare at this time, in their respect capacities as guardians and administrators, Pina made a particular contribution in personal care of the deceased for this 21/2 year period.
[28]See for example Elia in reply to Pina, paragraph 29.
[29]Pina’s affidavit paragraph 60 and Ergisa’s reply to it.
[30]Report by Austin Health dated 1 March 2004 to VCAT, being EA-6 to Elia’s principal affidavit. The deceased’s guardian also does not disclose any concerns for the deceased’s welfare while in the care of Pina in his letter of 8 June 2004 to Elia, EA-11 to Elia’s principal affidavit.
[31]Plan of Management by Ergisa and Elia, being EA-8 to Elia’s principal affidavit.
[32]EA-11 to Elia’s principal affidavit.

There were disputes between the sisters over access to their father’s pensions, and all three imply in their affidavits that Mario may have used some of his father’s pensions for himself. Mario refutes these allegations. At trial the plaintiffs agreed that they did not seek any finding of negative contribution by Mario, and so I disregard these assertions of misuse of his father’s funds. Mario otherwise does not assert any particular contribution to his father’s welfare during this period. The impression from his affidavit, and those of the plaintiffs, is that the financial and guardianship disputes, and the assumption of responsibility for their father’s care, were between the sisters, and that he was not involved. Pina says his only contribution was to have their father collected once a week for dinner.

July 2006 to July 2009

The deceased lived in a nursing home from July 2006 until his death in July 2009. Pina asserts she visited him there every day, Ergisa says she visited him once a week and sometimes twice a week. Elia does not give any specific detail, but asserts that “All 4 siblings visited our father at the home on a varying basis”.[33] Mario asserts that he visited his father at least once a week, and that his daughter took his father for outings.[34]
[33]Elia in reply to Pina, paragraph 31.
[34]Mario’s affidavit in the Veneziale claim, paragraph 111.

The estate

Probate of the will was granted to the defendant on 28 August 2009. In the inventory of assets and liabilities[35] the defendant as executor asserted that the estate contained only one substantial asset, being the real estate at 56 Green Street, Ivanhoe, registered in the name of the deceased at his death. The only other assets disclosed were $15,839.80 held on behalf of the deceased by his former administrators, pre-paid internment and funeral expenses and a very small amount by way of personal effects. The inventory disclosed no assets outside Victoria and the only liability disclosed was a mortgage to Harplex Pty Ltd in the sum of $42,500. The most recent title search in evidence, being part of the valuation report and dated 25 May 2011, reveals that that mortgage was registered 23 June 2008 i.e. before the deceased’s death. That title search shows two further encumbrances on the title: the defendant’s own caveat lodged in March 2004 in respect of the trust he asserted and a caveat in favour of Ask Funding Pty Ltd lodged 14 September 2010 (after the defendant had become registered as sole proprietor as legal personal representative on 9 September 2009) in respect of a claim dated 14 January 2010.
[35]Part of EA-22 to the principal affidavit of Elia.

The plaintiffs asserted in their affidavits that there was at least at one time real property in Italy owned by their father, and that the defendant may have dissipated this property or failed to properly safeguard it. The defendant denied these allegations. The plaintiffs had trial expressly withdrew reliance on any disentitling conduct of the defendant. In any event, this Court does not have jurisdiction to order further provision from real estate outside Victoria.[36] Although the existence of such property could, in an appropriate case, influence the order to be made in respect of property within Victoria,[37] the plaintiffs did not make any submissions to this effect. For these reasons, I disregard any property in Italy.
[36]Re Paulin [1950] VLR 462.
[37]Taylor v Farrugia [2009] NSWSC 801.

There is no evidence as to the disposition of the deceased’s personal estate, in particular the sum of $15,839.50 held by his administrators at his death.

The principal asset in the estate, the property registered in the deceased’s name at 56 Green St, Ivanhoe, was sold by the first mortgagee in possession, Harplex Pty Ltd, on 3 September 2011 for the sum of $1,265,000.00. Settlement is scheduled within 60 days i.e. by 2 November 2011. The solicitors for the first mortgagee, Trumble Szanto, have advised the solicitors for the plaintiffs by letters dated 12 and 16 August 2011 and 23 August 2011 respectively that their current instructions are to pay into court the proceeds of sale after payment of the first and second mortgagees. They advise that they have told Mr Mario Di Tullio, the current registered proprietor, who was previously represented by this same firm, of this intention, and that they will inform the plaintiffs of any change in their instructions.

The first mortgage to Harplex Pty Ltd was taken out by the administrators with the approval of VCAT to secure a loan taken out by Mario to pay unpaid rates for Green St, and to discharge a debt owed by the deceased to Legal Aid Victoria of $3,567.50 incurred in respect of proceedings to recover outstanding pension amounts.[38] As at 8 March 2004, unpaid rates owed to Banyule City Council were $20,900.10.[39] They increased to $29,236.27 by March 2007 when, according to the defendant’s account,[40] the Council commenced proceedings against the deceased to recover them. The administrator of the deceased’s estate joined the current defendant as third party to those proceedings. The proceedings were settled on 4 December 2007 on the basis that the administrator pay the Council the sum of $29,236.27, interest at that date of $1509.07 and $5,625.70 costs.[41] The defendant says it was he who “made all necessary arrangements to raise the finance for the rates to be paid”.[42] Harplex Pty Ltd provided certain documents in relation to the loan in answer to subpoena, which were tendered after trial be consent as part of Exhibit I. These confirm that the debtor was “Mario Di Tullio”, not the deceased, and disclose an advance of $42,500 on 13 June 2008 with interest and costs thereafter so that as at 18 May 2011 the total debt was $81,121.37. The plaintiffs estimated the current balance of the Harplex mortgage at the trial date as $100,000.[43] The pay out figure as at the anticipated settlement date is not in evidence.
[38]Elia’s principal affidavit, paragraphs 52-53, and 65, and EA-19.
[39]Rate notice from Banyule City Council dated 8 March 2004, being EA-10 to Elia’s principal affidavit.
[40]Paragraph 43 of his affidavit in the Amicucci proceedings.
[41]Terms of settlement, being MDT 1.9.
[42]Paragraph 88 of his affidavit in the Amicucci proceedings.
[43]Transcript page 14.

There is a further encumbrance on the title, being a caveat lodged by ASK Funding Limited in respect of an unregistered second mortgage. That mortgage was taken out by the defendant apparently wholly or in part to fund his legal fees in these proceedings.[44] The caveat recites an agreement dated 14 January 2010, which is not in evidence. The plaintiffs have tendered a loan agreement dated 19 August 2010 between the defendant and Ask Funding Limited and described as an “Inheritance Funding Progressive Real Security Contract” which may be a further loan agreement[45]. Information obtained by subpoena directed to Ask Funding Limited and tendered after the hearing by consent[46] indicates that as at 9 June 2011 the pay out figure in respect of that unregistered second mortgage was in the sum of $140,712.24. This figure includes an initial loan disbursement of $73,999.95 on 2 March 2010 and several subsequent loan disbursements to 29 July 2010, which together total $100,000. The balance consists of fees, interest and enforcement expenses. The pay out figure as at the intended settlement date is not in evidence.
[44]Caveat AH057832A, being part of Exhibit I (documents tendered by consent in the Amicucci and Accaputo proceedings as listed in the Plaintiff’s Court Book Index dated 1 July 2011).
[45]Part of Exhibit I.
[46]Marked Exhibit J in the Amicucci and Accaputo proceedings.

The acquisition of 56 Green St

The real estate disclosed in the inventory was previously registered in the name of the deceased and the parties’ mother as joint registered proprietors. The deceased became registered as sole proprietor on 9 June 1989, following the death of his wife. The defendant asserts in his affidavit in each proceeding that notwithstanding that the property was registered initially in the joint names of his parents, he had purchased the property and paid all the mortgage payments. The defendant placed a caveat on the title of the property in 2004 claiming that the property was held on trust for him by virtue of a trust deed dated 24 September 1976. He does not, however, in these proceedings, make any such claim of trust whether by virtue of the deed or by reason of his purchase of it. In his application for probate, he described the real estate as an asset of the deceased and did not qualify this description by any claim for trust. Accordingly, I conclude that the defendant relies on his claimed payment of the deposit and mortgage repayments by way of contribution only in these proceedings.

Defendant’s claim that he purchased Green St

The defendant claims that he entered into the contract for the purchase of Green St in February 1967, having first approached a firm of real estate agents; that he retained solicitors to act on the sale, a Mr Natoli; that he paid the deposit; that he made a further payment of $2,7400 to Mr Natoli on account of the purchase on 23 March 1967 and that he made all the repayments of the mortgage, which was discharged on 20 June 1974. He says that the property was registered in his parents’ names, not his, at his mother’s suggestion, and with his agreement, to protect him against a claim by a future girlfriend or wife.[47] He says that the reason both his parents left the property to him in their wills, each dated 19 September 1974, was that he had paid for it. Further, the defendant says he met all the expenses of Green St while the deceased lived there.[48]
[47]His affidavit in each proceeding paragraphs 12-16.
[48]Ibid, paragraph 41.

In support of these contentions, the defendant exhibits a “With compliments” slip from Mr Natoli, referring to a bank cheque in the sum of $560, which the defendant says Mr Natoli gave to him when he advised him to go to his bank and obtain a bank cheque in that sum towards the deposit. He next exhibits a trust account receipt from Mr Natoli dated 6 February 1967 in the sum of $560 which refers to Green St, which he says Mr Natoli gave to him when he provided the bank cheque. He also exhibits a further trust account receipt from Mr Natoli dated 22 March 1967 in the sum of $2740. This trust account receipt does not refer to Green St by name. The description of the purpose is illegible. Notably, the defendant does not exhibit the contract for sale (which he says he no longer has); any other documentation of the purchaser, purchase price, or loan such as the statement of adjustments (which he says he has seen, but does not account for its absence as an exhibit); any bank records to support his contentions either as to the deposit or the mortgage payments, which continued for seven years; or any other correspondence from the solicitors addressed more particularly to him. Both the “With compliments” slip and the trust account receipts refer to “Di Tullio” but the initial or title (i.e. whether “M” or “Mr” even “Mrs”) is unclear.

The plaintiffs all dispute this account. Pina gives the most detail. Her account in her principal affidavit is that she assisted her father to save the deposit for a house by giving him her entire wage, from when she commenced work shortly after arrival in Australia. She says the purchase price of the house was $10,600, and the mortgage payments were $57 per month. She recounts a fight between her father and Mario after the parents returned from the solicitors and said they had put the house in their names, during which Mario got very angry and said that he would not put any money towards the house.[49] In her affidavit in response to Mario, Pina adds that her mother used to go to the bank at Clifton Hill each month to pay the mortgage and would tell her she was doing so. Elia, who was also living with the parents at the time of the purchase, disputes that Pina gave her wages to their father, as does Ergisa, but she agrees that the purchase was funded by her father. She says that as Mario had a car her father gave his money to take to Mr Natoli in Kew.[50]
[49]Pina’s principal affidavit, paragraphs 14-20.
[50]Elia in reply to Mario, paragraph 6.

In oral evidence, Pina gave further details. She produces original documents relating to the purchase, which she says were given to her by her parents in the 1970’s.[51] These documents are the original of the “with compliments” slip exhibited by Mario; the original statement of adjustments dated 3 April 1967 which records a purchase price of $10,600 and deposit of $1,060; letter dated 5 April 1967 from A.B. Natoli solicitor to “Mr and Mrs T. Di Tullio” confirming settlement on 3 April 1967 and enclosing his bill of costs, also addressed to them; letter dated 18 April 1967 from the mortgagee bank, the Commonwealth Savings Bank, Clifton Hill addressed to “Mr and Mrs T. Di Tullio” enclosing an instalment book and noting that monthly instalments of $57 were due commencing 7 June 1967; and two earlier documents from the Clifton Hill branch dated 20 March 1967 i.e. before settlement. One of these is a receipt for search and registration fees, which is made out to “T and E Di Tullio”, and the other a record of the balance in a particular account. These documents had previously been the subject of a notice to produce by the defendant.
[51]Transcript, page 107 ll 22-27; Exhibit 6.

Pina also produced bank books which she testified were in respect of Mario’s accounts.[52] The bank books are in respect of an account at the Clifton Hill branch of the Commonwealth Savings Bank, running from 21 June 1965 to 21 February 1969, when the new passbook commences from the Ivanhoe branch recording a transfer from Clifton Hill running to 14 September 1973. The Clifton Hill passbook commences with a transfer from a Bourke St account, although it does not state whether or not all the funds were transferred. The Clifton Hill passbook does not show any withdrawal in February 1967 to correspond with the amount of $560 the defendant claims to have paid at that time towards the deposit. In fact, it does not show any withdrawals at all until 15 September 1967 in the sum of $810, which Pina says she believes was used by the defendant to buy a car.[53] She exhibits to her principal affidavit a copy of a car insurance policy in the sum of $860, in the name of M. Di Tullio and dated September 1967 which is corroborative of this assertion. There are no regular monthly withdrawals corresponding to the mortgage payments.
[52]Exhibit 7, transcript page 111 line 6 to page 112 line 10.
[53]Pina’s principal affidavit, paragraph 20.

My analysis of the defendant’s claim is as follows. At the time the Green St house was purchased, in February 1967, Mario was 18 years old. Although he was employed, and had been for 2 years since arrival in Australia, it seems unlikely that he would have had the funds to pay the whole of the deposit of $1,060 or the commitment to purchase a house at this young age. The plaintiffs’ account is far more likely, being that their father, the head of the household and with a long history of hard work and financial prudence, paid the deposit, funding the deposit from his wages, any monies he was able to bring from Italy, and contributions from family members. The father may have asked Mario to physically take the funds to the solicitor. There is no documentary evidence that unequivocally supports the defendant’s account, and it is not clear that one of the documents on which he relies, being the copy trust account receipt for $2,740, even relates to the purchase. The date of that receipt is later than the deposit, the sum well exceeds the deposit and the description does not refer to Green St. By contrast, the contemporaneous records that Pina produces are consistent with the parents being the purchasers both in fact as well as name. In particular, the receipt from the Commonwealth Savings Bank for search fees prior to settlement is made out to them, as well as the subsequent letter once they were the transferees.

The defendant claims to have had at the time of the purchase “at least two bank accounts with the Commonwealth Bank, one in the city and one at Clifton Hill branch”.[54] The pass books for Clifton Hill and then Ivanhoe do not show any withdrawals that correspond with either the deposit or mortgage payments, or his asserted payment of $2,740. While it is possible that these were paid from another account by the defendant, he gives no detail.
[54]Paragraph 13 of his affidavit.

Mario states in his affidavits that in addition to purchasing the Green St property he purchased land at Rosanna on which he subsequently built a house. His affidavits are inconsistent as to when he purchased the Rosanna land. In his affidavit in the Amicucci proceedings he says it was in 1967.[55] In the Veneziale proceedings he says the purchase was 1975.[56] If the earlier date is correct, it seems unlikely that he would have been able to both make this purchase and Green St at the same time as an unskilled labourer of 18 or 19 years of age. If the latter date is correct, which is more likely, the entries in the passbook for the Ivanhoe branch suggest a regular pattern of saving towards this purchase, rather than payment of mortgage payments on Green St. The account is entitled a “Home Savings Account” and the passbook shows regular deposits from February 1969 to September 1973, with infrequent withdrawals, resulting in a last entry of $4564.05 to Mario’s credit.
[55]Paragraph 24 of his affidavit.
[56]Paragraph 24 of his affidavit.

Finally, the defendant has not participated in the trial and so has not formally put his account into evidence nor exposed himself to cross examination. The plaintiffs by contrast have done both, although as it transpired no plaintiff has been cross examined by another and their accounts in respect of the acquisition of Green St agree. I consider that the failure of the defendant to pursue his account and submit it to testing is consistent with it lacking veracity, as compared with the account given by the sisters.

The defendant also claims to have undertaken renovations to the Green St property. The documents he exhibits in support of this contention bear his name and date from a time, 1976, when he had become a registered builder. That contribution is plausible. Further, he claims that his father did not pay council rates, because he did not regard the property as his.[57] Mario claims to have met all the expenses on the property, but to have become unable to do so after his car accident in 1989.[58] This may be consistent with accumulation of the rates to a total of $20,900.10 by March 2004.[59] Payment of the rates and other expenses is consistent with initial purchase, but could be consistent with other explanations (for example, anticipated future inheritance).
[57]Mario’s affidavit in the Amicucci proceedings, paragraph 88.
[58]Ibid, paragraph 43.
[59]EA-10 to Elia’s principal affidavit.

The fact that Mario was the sole beneficiary under wills by each parent made in 1974, shortly after the initial mortgage was discharged, is indeed the only other matter that is potentially corroborative of the defendant’s account that he paid for Green St. While this devise is consistent with his account, there may be other explanations, such as the relevant situations of the children at the time the wills were drawn, or cultural views as to inheritance by a son, rather than daughters. In the absence of independent evidence as to the parents’ actual motives, and having regard to the other matters noted above, I do not consider the devise alone is sufficient to enable me to find that the defendant paid for Green St.

Having regard to all these matters, I find that the defendant made a financial contribution Green St in the form of renovations in 1976 but did not fund the purchase or mortgage payments. In the absence of more detailed evidence from Mario as to the payment of rates or other expenses, I am unable to make any finding as to a contribution by him in that form.

The defendant’s earlier claim of a trust

The defendant did make a claim that the property was held in trust for him in earlier proceedings, in VCAT. These proceedings were commenced after the defendant in 2007 requested his father’s then administrators, FTL Judge & Papaleo Pty Ltd (“FTL”) to transfer Green St to him on the basis that his father held it in trust for him. FTL declined to do so. The defendant then made application to VCAT on 7 May 2008 pursuant to s 56 of the Guardianship and Administration Act 1986 (“the Guardianship Act”) for a declaration that he was the beneficial owner of Green St and for an order compelling the administrators to transfer it to him. He relied upon declarations of trust he said were executed by his parents in 1967, and a second set he said were executed by them in 1976 in his presence and the presence of his then friend, subsequently wife.

The Tribunal held on 19 November 2008 that it had power under s 56 of the Guardianship Act to make the declarations sought as to the existence of a trust, but no power to compel the administrator to transfer ownership.[60] A subsequent hearing over three days was held in relation to the existence of a trust. The administrators denied that any such trust existed. The current plaintiffs, the defendant and his wife, two of her brothers and a solicitor all gave evidence. The defendant in those proceedings gave the same account of the purchase of Green St and payment of the mortgage as in these proceedings. The current plaintiffs gave the same account that they have given in these proceedings. The defendant was cross examined about the inconsistencies between his account and his bankbooks, apparently to the same effect as the submissions made by the plaintiffs in these proceedings.
[60]These and subsequent references are to the Reasons of Member Proctor dated 19 February 2009 in VCAT proceedings G40676/04, provided to the Court by the solicitors for Ms Veneziale.

The Tribunal, constituted by Member Proctor, declined to make the declarations sought. Member Proctor distinguished between the two sets of declarations of trust. In relation to the earlier set, said to have executed in 1967, the Tribunal was not satisfied that the declarations of trust were authentic. Further, the Tribunal expressed doubts as to Mario’s reliability as a witness and preferred the evidence of his sisters, the current plaintiffs. In relation to the 1976 declarations of trust, the Tribunal did not express a doubt as to their execution, but expressed doubts as to their enforceability. The Tribunal said that a Court may decline to enforce them on the basis that they were unconscionable, as the parents had had no opportunity to obtain independent legal advice and may have been exploited by the defendant and his then girlfriend, later wife.

The plaintiffs do not assert that the Tribunal’s findings are binding by issue estoppel in these proceedings. This is correct, as the defendant does not in these proceedings assert a trust, and nor does the refusal of an injunction or declaratory relief establish a res judicata.[61] The defendant does, however, rely upon essentially the same factual matters, here by way of contribution, to defend his inheritance of the whole of the title, as he did in those proceedings to explain the asserted trust. It is also of note that the defendant was represented by the same solicitors as represented him in the VCAT claim, Trumble Szanto. The defendant does not, in my view, give a convincing explanation in his affidavits for his failure to take the matter of the trust any further, if those factual matters were correct. His explanation is that the decision of the Tribunal was delivered in February 2009, and his father died in July 2009 and “(A)s I was the beneficiary under his will, I did not pursue the matter any further after his death”.[62] While this may have been sufficient explanation for not pursuing any appeal from the Tribunal’s orders, or taking other proceedings immediately after his father’s death, it is clearly insufficient explanation once the sisters’ had made their claims. It was then apparent that the inheritance of the title was under challenge, and so it would be necessary to defend it, or make appropriate cross claim. Further, his affidavits do not seek to explain the deficiencies in his account of funding the purchase that were the subject of adverse comment in the Tribunal’s reasons, although it might have been anticipated that the plaintiffs would seek to attack his account by reason of those deficiencies, as indeed they do.
[61]In this regard, I adopt the submissions of Pina’s counsel.
[62]Mario’s affidavit in the Veneziale claim, paragraph 112.

I have found against the defendant’s claim of contribution by initial purchase of Green St on the evidence in this proceeding alone. In addition, I consider that the failure of the defendant to give evidence addressing the deficiencies in his account already exposed in the VCAT proceedings , notwithstanding clear opportunity to do, and his failure to give convincing explanation for not pursuing his claim in trust cast additional doubt on the his account that he paid the deposit and the mortgage payments, which he also relied upon in the earlier claim in trust.

Power to award further provision

Section 91 of the Act provides as follows:

(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.

Consideration of a claim under s 91 is undertaken in two stages. The first stage grounds the Court’s jurisdiction. The plaintiff must establish both that the deceased had a responsibility to make provision for him or her (s 91(1)) and that the will has not made adequate provision for his or her proper maintenance and support (s 91(3)). If the plaintiff so establishes, the Court moves to a discretionary consideration of the proper amount of further provision. In respect of both stages, the Court is required to consider the factors enumerated in s 91(4).

In reasoning from the s 91(4) factors to a conclusion that the testator had a responsibility to make provision for the claimant and had failed to make adequate provision for his or her proper maintenance and support, the Court is required to apply a standard or make a value judgment,[63] often expressed as the “moral duty” of the testator. What is considered a testator’s moral duty will depend on prevailing community attitudes.[64] “Adequate provision” and “proper” maintenance and support are relative concepts, that depend on all the facts of the case. What is “proper” maintenance and support will depend on the claimant’s situation in life, and what is “adequate” provision will depend on his or her financial needs, and capacity to meet those needs. Each must then be considered having regard to the size and nature of the estate and the testator’s views as to disposition.[65] If jurisdiction to make an award is established, in undertaking the next stage i.e. determining what further provision to order, the Court is required to exercise its discretion so as to not “transgress unnecessarily upon the (testator’s) freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just (testator)”.[66]
[63]Blair v Blair (2004) 10 VR 69, per Nettle JA at [41]; Forsyth v Sinclair [2010] VSCA 147, per Neave JA at [83].
[64]Forsyth v Sinclair, per Neave JA ibid.
[65]Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, per Dixon CJ at 19.
[66]McKenzie v Topp, [2004] VSC 90, per Nettle J. at [63]

The Court determines whether or not the testator made adequate provision for the claimant by consideration of the relevant facts and circumstances as at the testator’s death. The question of what further provision to order is determined having regard to the facts and circumstances at trial.[67]
.[67] Prosser v Twiss [1970] VR 225 at 232 per Lush J.

Assessment of s 91(4) factors
Section 91(4)(e): family or other relationship

The plaintiffs are the children of the deceased. In earlier times, there were reservations as to the extent to which an adult child, particularly a son, could successfully apply for further provision. In Blair v Blair[68] the Court of Appeal held that it was no longer the case that an adult son must establish a special claim for further provision. In a number of recent cases further provision has been ordered for adult children, even adult children with other financial resources.[69] In one such case, Berkelmans v Bulach, the amount of further provision afforded the natural child of the deceased, one of her four children, in fact approximated one quarter of the testator’s residuary estate, although this was arrived at by consideration of the statutory factors, rather than any presumption of equality amongst children.[70]
[68][2004] VSCA 149.
[69]Berkelmans v Bulach [2009] VSC 472; Klemke v Lustig [2010] VSC 502; Litchfield v Smith & Tingate [2010] VSC 466.
[70]Further, the residuary estate had been willed to the deceased’s husband, the stepfather of the plaintiff and natural father of the other children.

In relation to the nature of the relationship between the respective plaintiffs and the deceased, there is no dispute that in each case it was a loving and close one, which endured until the testator’s death. The plaintiffs and their families shared many family occasions, excursions and holidays with their parents and each other, each had their father living with them at different times, and all assisted him in different ways when he became older.

Section 91(4)(f): obligations of the deceased to the plaintiffs and defendant

The deceased had no obligations to persons other than his children.

Section 91(4)(g): size and nature of the estate

The value of the estate, excluding the personal effects of the deceased and pre-paid funeral costs, is $1,280,839.80 being the sale price of Green St and the monies held by the administrators at the deceased’s death. There is no evidence as to the application of the monies at the deceased’s death, and, indeed, whether any sum remains. From the estate would ordinarily be deducted the costs of sale, and any proper testamentary expenses. The plaintiffs have agreed on an inscription for their father’s tombstone, and propose that they pay the costs in the first instance, but that they be reimbursed by the estate. I am satisfied that their proposal is appropriate.

In relation to other deductions, the plaintiffs do not dispute that the principal payable to Harplex Pty Ltd, the first mortgagee, be deducted from the estate prior to distribution. The orders that they have proposed indicate, however, that they may dispute the estate’s liability for interest and costs on that mortgage, and may dispute some or all of the principal, as well as interest and costs, in respect of the unregistered mortgage to the second mortgagee, Ask Funding Pty Ltd. I will hear them further in relation to these matters before making orders.

The plaintiffs seek that their costs, and the defendant’s proper costs, be borne by the estate prior to further provision being made to them.

Depending on the sums properly owed by the estate to Harplex Pty Ltd and to Ask Funding Pty Ltd (the whole of these sums were said to be at or shortly after the trial in the order of $100,000 and $140,000 respectively, as set out earlier in these reasons for judgment) then there may be approximately $1,000,000 for the parties’ costs and any further provision. There is no evidence as to the parties’ legal costs.

Section 91(4)(h): financial resources and needs and s 91(4)(i) any disability of the plaintiffs and the defendant; s 91(4)(j) age of the plaintiffs

The plaintiffs agree that Pina’s need for financial assistance is greater than that of either of Ergisa and Elia, and do not dispute that Mario is in the worst financial position, and has a need for a home. No plaintiff challenged the evidence of another as to her financial needs or health, or contests the evidence given by the defendant in his affidavits as to his own circumstances. The defendant disputed in the reply portion of his affidavits some of the evidence given by the plaintiffs as to their respective financial positions, but did not test their evidence by cross examination at trial or attend to verify his own. Having regard to the absence of cross examination on contested material, I accept the evidence given by each plaintiff and by the defendant as to her or his own financial position and health. That evidence is set out below.

Ergisa is now aged 75 years. She is widowed, with three adult children. She is the registered proprietor of four pieces of real estate, being her home, a family holiday home (which is not rented out) and two investment properties, one a home and one a factory, all apparently unencumbered. She provides rate notices valuing her home at 58 Sheahan’s Road, Bulleen as $609,000 as at 1 July 2010, the holiday home at Rye as $404,000 as at 26 July 2010, the factory at $400,000 as at 1 January 2010, and the residential investment property at 40 Ramsden St Clifton Hill at $805,000 as at 1 January 2008. Her income is drawn from the investment properties. She deposes that her income from these properties for the tax year ending June 2008 was $44,209.10. Her taxation estimate for the year ending June 2009 states taxable income of $13,401. She says the residential investment property was vacant for a period in that year to allow for renovations. Ergisa says her current savings are “substantially depleted” after these renovations. Her taxation estimate for the year ending 2010 states that her taxable income for that year was $47,620. In relation to health, Ergisa deposes to a number of ongoing medical conditions and serious falls and operations in the last two years and has supplied after trial by consent a medical report from Dr Sam Assad dated 10 May 2011 which confirms this evidence.

Her case is that although she is comfortably situated financially, particularly from an asset perspective, her need for medication and treatment for her medical conditions, will, in the absence of private health insurance, further deplete her savings. She deposes that she wishes to preserve her investment properties for her children, and does not charge her adult daughter rent or board as she wishes to allow her to accumulate savings.

Elia is now aged 68 years, and was widowed in 1983. She has 3 adult children, the eldest of whom is her carer. She deposes to being the owner of a number of pieces of real estate, being her home, a retail shop and four two bedroom investment units, all apparently unencumbered. She provides rate notices for 94 and 94A Bell St in respect of the shop that give a combined capital improved value for the shop as at 1 July 2010 of $355,000, and for her home at 147 Hawdon St, Heidelberg of $763,000. She gave oral evidence that the capital improved value for each of the residential units as assessed by the Valuer General as at 1 January 2010 was $259,000. Her income is drawn from the shop and the investment units. Her taxable income from these properties was the sum of $24,277 in the tax year ending 30 June 2009 and $29,864 in the tax year ending 30 June 2010. Elia has suffered multiple sclerosis since the early 1990’s. She is required to take medication and attend regular medical appointments in respect of this condition, and does not hold private medical insurance. The condition is a progressive one, and the medical reports tendered in her case[71] support her submission that her physical health is likely to continue to decline, and her need for treatment and assistance, and consequent expense, increase in the future.
[71]The report of Professor Richard Macdonnell dated 24 May 2011, Exhibit A, and a report of her general practitioner Dr Sally Manuell dated 20 May 2011, tendered by consent after the conclusion of the trial.

Pina is aged 61 years. She is divorced with three adult children, the youngest of whom together with that child’s husband live with her. She has fewer assets than the other plaintiffs. She owns her home, subject to a small mortgage, but no other real estate. She deposes to savings of only $637 as at 23 May 2011 and superannuation of $14,201.61 as at June 2010. She receives a disability pension and works occasionally as a nanny. Her income in the tax year ending June 2010 was $22,633. She deposes to ongoing medical problems, including a digestive condition which may require further surgery. She has given detailed evidence of financial needs exceeding her capacity to meet them in relation to renovations to her home (totalling $90,934.77); need for dental work ($16,000) and further likely hospital expenses for her oesophageal condition; and need for a new car ($29,000). She also deposes to a debt to her daughter Annalisa in the sum of $17,753, and remaining mortgage of $17,600. None of these proposed expenses or existing debts were challenged by the other plaintiffs. On their face they appear appropriate for Pina’s proper maintenance and support, having regard to her station in life.

After trial by leave Pina re-opened her case to rely on the further financial need created by the determination of Magistrates Court proceedings taken against her by Teresa Di Tullio, the wife or former wife of Mario. By affidavit sworn 20 July 2011, Ms Tran, Pina’s solicitor in these and the Magistrates Court proceedings, deposes that the Magistrates Court proceedings were dismissed on 20 June 2011, with an order for costs in Pina’s favour in the sum of $14,064. The affidavit sets out that Teresa owns no real estate and is in receipt of disability pension. I accept the submission that these circumstances make recovery of the party/party costs unlikely. Ms Tran assesses Pina’s solicitor/client costs in the sum of approximately $22,000. I find that Pina has a further financial need in the sum of $22,000 in respect of these costs. The total of the proposed expenditure or debts deposed to by Pina is $193,287.77.

Mario is aged 63 years. He is divorced with two adult children. He deposes that he has been unable to work due to injuries received in a car accident in 1989 from that date. He owns no real estate, and has no savings. As at the date of his affidavits he was living at Green St, but was subsequently required by the first mortgagee in possession to vacate the property. He states that his only income is the disability pension and that he is unable to live at his ex wife’s home, and she does not support him. He deposes to the back injury suffered in the car accident of 1989, but no other health problems.

The plaintiffs concede that the defendant has a need for a home. They rely on an affidavit of Geoffrey Mark Gray, sworn 10 May 2011, which deposes to searches of real estate internet sites as to the sale prices of one and two bedroom apartments in Ivanhoe in the preceding 12 months. The searches revealed that the average property price for a one bedroom unit in that period was between $365,333 and $372,750, and for a two bedroom unit was between $498,625 and $513,428. The average price for a one bedroom unit is within the likely value of the one half share of the estate after proper debts and costs that the plaintiffs propose the defendant retain.

Section 91(4)(k): contribution (not for adequate consideration) by the plaintiffs to the estate or welfare of the deceased or his family

Contributions considered under this head may be financial or in kind, and to the property of the deceased, or to his welfare (or that of his family). Overall, I consider the contributions in kind by the plaintiffs to the welfare of the deceased, and, prior to her death, to the welfare of his wife (their mother) to be more significant in the determination of these proceedings than any financial contributions made by them. I discuss their contentions as to financial contribution further below. I accept the evidence that each party contributed to their family’s financial and general welfare as children in Italy, by work on the family farm or in the home, but place greater weight on their voluntary contributions as adults.

The defendant principally relies on financial contribution to the property of the deceased, in the form of purchase of Green St. As set out earlier, I have found against him in that regard. He asserts some in kind contributions to Green St, by way of renovation, and I as indicated I find that some contribution of that type was made. He does not assert any substantial contribution to the deceased’s welfare, other than contact by way of visits or collection for meals in later years, which evidences a continued concern for his father but not the same degree of actual assistance as deposed to by his sisters. In summary, I find that Mario’s contribution to the deceased’s estate and welfare was of substantially lesser degree than that of his sisters.

In relation to the plaintiffs’ financial contributions, Ergisa claims a financial contribution in the early years by provision of funds from Australia when she first migrated. The amount is in dispute, but not the fact of contribution. I find that it occurred, although I am unable to determine in what amount. It is agreed that Elia housed their father, mother and Pina and Mario for the first two years after their arrival in Australia, and shared accommodation with them after Green St was purchased. The details of the financial arrangements during these periods are not in evidence. I find that it is likely, however, that provision of housing by Elia in the first two years was a contribution by her to the deceased’s estate and/or welfare.

Pina asserts a financial contribution to the purchase of Green St in the early years (she moved out on her marriage two years after the purchase) by provision of her wages to her father. This is disputed by the other plaintiffs. In the absence of testing of the competing accounts, I am unable to find that she made that contribution. In the overall scheme of things, however, that does not substantially diminish Pina’s case, given the extent of her contributions in kind in her the later years of both her mother and her father’s lives. The parties also variously claim financial contributions in smaller amounts by way of provision of goods to their father and mother. I do not make any findings in relation to these contributions, both because to some extent they are disputed as between the plaintiffs, and, because, in the overall scheme of the life of this family, such financial contributions are not significant.

This is because the most significant contributions are those made by the plaintiffs, and to a much lesser degree by the defendant, to the welfare of the deceased, their father, or to the welfare of their mother. Those contributions took the form of household assistance, visits, meals, outings and shared family occasions over many years, and personal care for both father and mother in their later years. The extent of the in kind contribution made by each sister is in dispute as between them, and the parties have not considered it necessary to test those differences. As a consequence I am unable to make detailed findings as to the respective contribution of each. Elia concedes that from some point[72] after the onset of her multiple sclerosis (in the early 1990’s) she was unable to physically visit her father as often as she previously had, but deposes to regular telephone contact. I find that each of the sisters made significant in kind contributions to the welfare of their mother and father, and then father after their mother’s death, by domestic and personal assistance at Green St to the extent they were able.
[72]Paragraph 26 of her affidavit in reply to Pina. It is not clear if this is a concession in respect of the period from Christmas 2003 only, or also earlier. Pina claims Elia stopped seeing their father as much from 1992-1993.

In addition, I find that Elia and Pina each made a particular contribution by care of their mother in their own homes at different times, and that Ergisa and Pina made particular substantial contributions to the welfare of the deceased by caring for him in their own homes, when he was incapable of doing so himself. In the case of Ergisa this was for a six month period in 1995 and for a period in late 2003, and in the case of Pina for two and a half years from January 2004. Pina’s contribution in this period is particularly noteworthy. Reports from aged care services prepared for a mediation at VCAT in December 2004 record how great the level of personal care the deceased required at this time, and how well Pina was caring for him.[73]
[73]Reports prepared by Austin Health Aged Care Services and Co-As-It for mediation hearing at VCAT in December 2004, being GV6 and GV 7 to Pina’s primary affidavit.

The evidence as to who received their father’s pensions during this period, and so whether or not Pina’s contribution was for adequate consideration, is conflicting.[74] Pina concedes that she received some financial support by way of one or more of her father’s pensions[75] but she says that she was not compensated for necessary renovations to her home when her father came to live with her or bills of his that she paid[76] and that overall she spent more than she received on keeping her father when he lived with her.[77] In particular, Pina gave oral evidence that she did not receive monies requested by her in a list she sent to the solicitors for her sisters. She also deposes that she left work to care for her father, and as noted earlier this was accepted as correct in the administrators’ report prepared by Elia and Ergisa. She reported to aged care services at the time she was caring for her father that she was not fully reimbursed for the cost of his care.[78]
[74]Compare paragraphs 51 of Elia’s principal affidavit with paragraphs 42 and 43 of Pina’s affidavit in reply.
[75]Her affidavit in chief paragraph 62.
[76]Ibid, paragraph 61.
[77]Ibid, paragraph 62.
[78]GV6 and GV 7 to Pina’s primary affidavit.

Pina was not cross examined by counsel for the other plaintiffs in relation to her oral evidence, the contemporaneous accounts support it, and counsel for those plaintiffs does not make any submission that she was adequately compensated for her care of her father at this time. Accordingly, I find that this substantial contribution was not for adequate consideration.

Section 91(4)(l): any benefits previously given by the deceased

It flows from my finding above, that Pina was not financially compensated to the extent of her care of the deceased from January 2004 to July 2006, that I also reject any implication from the affidavits of Ergisa and Elia that Pina financially benefited from receipt of their father’s pension income during this time. Mario asserts that Pina received a financial benefit from a mortgage of Green St in 1974. The mortgage is evidenced on the title, but Mario’s account that it was taken out to secure a loan to pay legal expenses for Pina’s divorce is denied by her, and is implausible given her uncontested evidence that family law proceedings between her and her husband did not occur until 2002 or 2003. Mario does not attend to verify this account, or be cross examined on it, and nor does he exhibit any loan or mortgage documents to support his account. I find that no such benefit was received by Pina from the deceased or his estate.

No benefits to either Elia or Ergisa are claimed by any party. The plaintiffs submit that the financial benefit to Mario of residence at Green St from 2004 to the taking of possession of the property by the first mortgagee in August 2011, without the payment of rent to his father’s administrators or estate, should be taken into account. Mario claims that the property was in a poor condition in this period, and this is not denied by the plaintiffs, and is consistent with the valuer’s report obtained by them, but nevertheless accommodation without payment of rent for a period of 7 years is a substantial benefit. The plaintiffs do not propose any specific amount to be calculated for such accommodation benefit, but say that the defendant should bear the interest and legal costs on both the Harplex and ASK Funding mortgages by reason of it. While there may be some attraction in the simplicity of such in an offset, it suffers from significant drawbacks. First, there is no immediate correlation between residence from 2004-2011 and mortgages taken out in 2008 to pay Council rates for a preceding period (Harplex) or 2010 to fund this litigation (assuming that to be the purpose of the ASK Funding loan). Next, until the deceased’s death his finances were the responsibility of the administrators, not Mario. There may also be a distinction to be drawn between the two loans as to the benefited parties. The Harplex loan was to preserve Green St from forced sale, as opposed to the Ask Funding loan which was for the benefit of the defendant, though query whether as executor, or as beneficiary. Finally, the final amounts of such interest and costs are presently unknown. I will hear the plaintiffs further on these matters.

Section 91(4)(m): maintenance of a claimant by the deceased

This does not apply to any party.

Section 91(4)(n): the liability of any other person to maintain the claimants

None of the parties has an enforceable claim to assistance from any other person. Pina has borrowed money from her daughter, but is required to repay it.

Section 91(4)(o): the character and conduct of the applicant or any other person

The affidavits of all plaintiffs contained material that suggested Mario may have misappropriated some of the deceased’s pensions, or failed to act in his interests in respect of property in Italy. These allegations are denied by Mario. None of the plaintiffs rely on that material, and it is their joint position that Mario remain entitled to half the net residuary estate.[79] I find that all the parties had a loving relationship with their father, as did he to them.
[79]Transcript pages 34, 45-46.

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

A matter I consider relevant in this case is that the plaintiffs have agreed between themselves the further provision from the estate that is sought. As a consequence, no plaintiff cross examined another, and the trial was completed in a day. As set out earlier, agreement between the plaintiffs is not determinative, but I consider it relevant to the question of what further provision should be ordered, if jurisdiction is established, because it has greatly reduced the legal costs that would otherwise have been incurred had any plaintiff sought to test the evidence of another, or maintain a position on the facts that was not accepted by another plaintiff. In usual circumstances, the extra legal costs thus incurred would have been borne by the estate, thus diminishing not only the amount available to that plaintiff by way of further provision, if to be ordered, but the balance available for the defendant and any other successful plaintiff.

The plaintiffs are also in the best position, given the family bonds and shared family history, to determine how they wish to assess the contributions by way of household and personal assistance claimed by each to the welfare of their parents, and that of their father after their mother’s death. Many of the disputes in the affidavits about these matters turn on questions of degree or perception, and others may depend on knowledge exclusive to one plaintiff. It is not necessarily the case that if one account of a claimed contribution is correct, the others are incorrect. For these reasons, I consider that the agreement of the plaintiffs as to respective division of the proposed further provision of one half of the estate has considerable weight.

I also consider it relevant that the defendant did not participate in the trial. In their affidavits, Ergisa and Elia each sought a minimum of one quarter of the estate, as did Pina. Notwithstanding this, and so potential diminishment of his entitlement to one quarter or less, Mario did not seek to defend his share or argue against further provision to his siblings. At least one possible explanation for this approach, is that he recognised that some further provision was appropriate for his sisters. At a minimum, he has not sought to press by participation at trial any particular claim of his own.

Counsel for Pina also relies under this heading on Pina’s evidence that she holds the originals of some documents relating to the purchase of Green St relied upon by Mario, because her father gave them to her saying “one day you’ll need these because one day you will own the house.”[80] This account of how Pina obtained the originals is disputed by Ergisa and Elia, and the different accounts have not been tested. Accordingly, I do not find that possession by Pina of the original purchase documents is corroborative of her account, although I do find it tends against Mario’s account.
[80]Paragraph 19 of her primary affidavit.

Conclusion: jurisdiction

As set out earlier, there are two matters of which the Court must be satisfied to confer the power to award further provision. They are that the deceased had a responsibility to make provision for the plaintiffs, or one or more of them, and that his will failed to make adequate provision for their proper maintenance and support. I find that these are satisfied in the case of each plaintiff. In respect of the first, the plaintiffs are the children of the deceased, and although adults at his death and, at least in respect of Ergisa and Elia, comfortably financially situated, their contributions to his welfare and that of his wife, their mother, were such throughout the whole of their lives that the testator had a responsibility to make provision for them on his death, in addition to his male child. This responsibility was amplified, in my view, by their circumstances at his death, in that none at that time had a husband to whom she could look for her primary support, although this had been the position in each case at the time the testator drew his will. There is nothing on the evidence, other than Mario’s claim that he purchased Green St, which I have rejected, to justify a conclusion that the testator’s responsibility was to one only of his children, his male child, and not to all his children. In particular, there is no allegation that any plaintiff did not contribute to her father’s welfare, or committed any disentitling conduct.

The deceased did not make any provision for the plaintiffs. I do not consider that this was adequate for their proper maintenance and support, notwithstanding their own personal financial resources, given the extent of their contributions to their father’s welfare, particularly in his later years, and the closeness of the family throughout the children’s lives. Ergisa and Elia are in comfortable financial positions, but this does not of itself mean that nil provision is adequate. In this regard I adopt the submissions of counsel for Ergisa and Elia that contribution can outweigh an absence of financial need. This submission is supported by the following paragraph from Unger v Sanchez [2009] VSC 541[81] at [78]:

“On the one hand, what constitutes adequate provision for an indigent, but undeserving, offspring, may be dictated significantly, if not wholly, by the financial needs and circumstances of the claimant. On the other hand, what constitutes such provision for a loyal and devoted child, who is not in dire economic straits, would involve considerations which are not limited to economic need, but which would reflect what, in all the circumstances, would be a fair assessment of the claimant’s deserts.”

[81]The judgment of Justice Kaye was overturned on appeal, but not on this point. See also [76], Goodman v Windeyer (1980) 144 CLR 490, per Gibbs J at 498 and McKenzie Topp [2004] VSC 90 at [31]-[35] as to the relevance of contribution to the jurisdictional questions.

Accordingly, I find that the Court has jurisdiction to award further provision to each plaintiff.

Conclusion: further provision

The plaintiffs, are not, however, in the same position as each other in respect of the question as to what further provision should be ordered. The impact of further provision for the plaintiffs on the intended beneficiary, Mario, must also be carefully considered at this point. I accept the submissions put by each counsel that further provision for the plaintiffs to the extent, collectively, of one half the net residuary estate affords sufficient protection for Mario, having regard to his needs, and does not trespass beyond exercising the discretion “carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just (testator)”. This off repeated maxim is from McKenzie v Topp [2004] VSC 90.[82] In that case the amount of further provision afforded a step son who had made a substantial contribution to the testatrix’s care, particularly in her later years, having regard to this maxim was nevertheless found to be a sum sufficient to purchase a home. Limiting the further provision to the plaintiffs to one half collectively recognises that Mario is in the greatest financial need, but that the contributions to the estate or welfare of the deceased by the plaintiffs have been very substantial, and that the plaintiffs have some financial needs as well. Such further provision also does not assume equality of treatment for all children.
[82]At [63].

In relation to the sum that would then be available to Mario, one half of the net proceeds of sale of Green St will equate to approximately $500,000 or less, depending on the final costs of sale and payout of the mortgagees. There remains an issue as to whether the whole of the mortgages, interest and costs should properly be borne by the estate or whether Mario should be required to bear some of those sums individually. I will hear the parties further in relation to that. Mario’s most urgent need would appear to be for a home. It appears likely on the basis of Mr Gray’s affidavit that Mario would be able to purchase home, albeit a modest one being a one bedroom apartment, in the area where he formerly lived, for approximately $370,000 plus costs of purchase. He may be able to purchase a more substantial home for this sum elsewhere. In my view, there is an element of speculation in undertaking further enquiry as to Mario’s needs, given that he has not participated in the trial to resist the plaintiffs’ claims, or seek to minimise them, or to advance any particular claim of his own. Further, while a greater proportion than one half of the net residuary estate could afford him the comfort of a capital sum over and above a home, this must be balanced against the competing needs of the plaintiffs, particularly Pina.

I consider that the proposed sub-division of the collective one half afforded the plaintiffs as to one quarter to Pina, and one eighth each to Ergisa and Elia appropriately takes into account both Pina’s greater financial need and her special contribution in caring for their father in her home from January 2004 to July 2006. This proposed sub-division also reflects the financial needs of which she has given detailed evidence. The total of all the capital sums by way of required expenditure to which she deposes is $193,287.77. While some of this proposed expenditure may not be essential, or essential immediately, is it is clear that she does not have the capacity to fund any of the individual items from her own resources. The proposed sub-division would afford her one quarter of the proper amount remaining of the sale proceeds of Green St, and so in the order of $250,000 or less, depending on what matters should properly be borne by the estate from those proceeds, and which by the parties.

The financial needs of the other plaintiffs, Ergisa and Elia, are much less. It is not necessary, however, for a claimant for further provision to be in actual financial need[83]. Ergisa’s and Elia’s incomes are not large, and there will be increasing calls on their financial resources given their increasingly poor health, and age. They have assets they could sell, or rent (in the case of Ergisa’s holiday home) to meet these needs, but their desire to preserve these assets for their own children is understandable, given the hard work required of them and their husbands to build up those assets. I have given earnest consideration to whether it is appropriate to afford them each the amount of further provision that they seek, and that Pina agrees, or whether a lesser amount, without diminishing the further provision to Pina, would be appropriate. The impact would be to preserve more of the estate for Mario. I conclude that this would not be appropriate, first, because to do so would not give, in my view, adequate weight to their joint contributions to their father’s welfare, particularly after their mother died, which contributions were considerable and exceeded those of Mario.
[83]See, for example, In Re Harris (1936) SASR 497, at 501.

Further, to afford less to them than the combined one quarter share they seek would not, in my view, pay adequate regard to the consent between the plaintiffs that led to a very much shorter trial (and so preserved more of the estate for all the parties), or the lack of resistance by the defendant to their claims. I do not consider it necessary to reach findings as to the respective contributions and needs of Ergisa and Elia, as between them, to justify the proposed further division of one quarter by one half each, because they have prosecuted their claims and agreed the outcome jointly, and I am satisfied that the amount of further provision that is appropriate to them together is one quarter of the estate, to be further divided in halves, as they agree.

Orders

I will in due course make orders to give effect to the proposed further provision from the “net residuary estate” of one quarter to Pina, and one eighth each to Ergisa and Elia. What constitutes the “net residuary estate” in turn depends on determination if any of the principal, interest and costs in respect of the mortgages is to be borne by Mario personally, rather than the estate. It is desirable in my view that any such orders be informed by detailed information as to the amount of each of those components throughout the life of each mortgage, culminating in the final figures as at settlement. The plaintiffs are not able to require that information of the mortgagees. They could, however, require it of Mario, as the executor, and he in turn can require that information as the mortgagor. I will make orders that each mortgagee provide that information to the plaintiffs after settlement and prior to an adjourned date on which orders are to be made. These orders are ex parte of the mortgagees, but will be subject to any application by either of them on the next occasion for discharge.

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[2011] VSC 539

24 October 2011