Bain v Ingham

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BAIN & ANOR v INGHAM & ANOR
[2025] SASC 22
Judgment of the Honourable Auxiliary Associate Justice Flourentzou
SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - TREATMENT OF PARTICULAR APPLICANTS - GRANDCHILDREN AND OTHERS
Mary Ellen Ingham died on 12 November 2022 - the deceased had two children: Dianne Mary Ingham and Allan Maxwell Ingham - the deceased was only survived by Allan - Dianne died during the lifetime of the deceased but was survived by Alison and Glenn - during the deceased’s lifetime, she executed a will on 5 February 2015 - pursuant to the terms of her will, she appointed Allan as her sole executor and beneficiary - Alison and Glenn sought provision from the deceased’s estate for their maintenance, education and advancement in life - the net value of the estate of the deceased as at the date of the trial was approximately $630,000.
Held:
1. Glenn has not established that he has been left without adequate provision for his maintenance, education and advancement in life. Glenn’s claim is dismissed.
2. Alison has established that she has been left without adequate provision for her maintenance, education and advancement in life. She is to receive a fixed legacy of $70,000 from the estate of the deceased inclusive of interest.
Inheritance (Family Provision) Act 1972 (SA) s 6 and s 7; Succession Act 2023 (SA) s 2 of Schedule 4 and s 115(5), referred to.
Parker & Ors v Australian Executor Trustees Limited [2016] SASC 64; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; In the Estate of Puckridge, deceased (1978) 20 SASR 72; Eckert v Starick & Eckert (1993) 172 LSJS 150; Eckert v Starick [1994] SASC 4584; Wall v Crane & Ors [2009] SASC 382; Columbus v Efstathis & Ors [2019] SASC 149; Grey v Harrison [1997] 2 VR 359; Re Fulop (Deceased) (1987) 8 NSWLR 679; Schmidt v Watkins [2002] VSC 273 ; Wesley v Wesley (1998) 71 SASR 1; Vigolo v Bostin (2005) 221 CLR 191, considered.

BAIN & ANOR v INGHAM & ANOR
[2025] SASC 22

It is convenient in these reasons to refer to each family member by their first name. I do so without intending any disrespect.
Mary Ellen Ingham, late of 86 Oaklands Road Glengowrie 5044, died at Glengowrie on 12 November 2022 (“the Deceased”).[1] The Deceased was married to Maxwell James Ingham (“Maxwell”). Maxwell died on 14 August 2014.[2] The Deceased and Maxwell had two children. Dianne Mary Ingham (“Dianne”) and Allan Maxwell Ingham (“Allan”). The Deceased was only survived by Allan. Tragically, Dianne was murdered by her second husband on 28 August 1992.[3]
[1]    Death Certificate for Marry Ellen Ingham, Applicants’ tender book, pages 074–075 (inclusive).
[2]    Affidavit of Glenn Peter Bain sworn on 31 July 2023, paragraph 4.2.
[3]    Affidavit of Glenn Peter Bain sworn on 31 July 2023, paragraph 4.3.
Dianne was survived by two children, Alison Julie Bain (“Alison”) and Glenn Peter Bain (“Glenn”). At the time of Dianne’s death, Alison was 17 years of age and Glenn was 12 years of age.[4]
[4] Affidavit of Glenn Peter Bain sworn on 31 July 2023, paragraph 5.
During the Deceased’s lifetime, she executed a will bearing the dates 5 February 2014 and 5 February 2015 but in fact the will was executed on 5 February 2015 (“the Will”). Pursuant to the terms of the Will, the Deceased appointed Allan as her sole executor and beneficiary.
Probate of the Will was granted to Allan on 22 November 2023.[5]
[5] Grant of Probate, Applicants’ tender book, pages 028–033 (inclusive).
As at the date of the Deceased’s death, there were no outstanding liabilities and the assets of the estate included:
·a refundable accommodation deposit held by Eldercare in the amount of $540,000;
·a bank account containing the sum of $93,423.65; and
·personal belongings with an estimated value of $500.[6]
[6] Affidavit of Allan Maxwell Ingham affirmed on 12 December 2023, exhibit “AMI-2”.
As at the date of the trial, the estate consisted of cash in the sum of approximately $630,000 with some minor estate expenses still to be paid.[7]
[7] Transcript pages 9–10.
Glenn and Alison commenced these proceedings on 31 July 2023 pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) seeking provision from the estate of the Deceased for their maintenance, education and advancement in life.[8]
[8] Originating Application (FDN 1).
Because the net value of the Deceased estate that will be available for distribution does not exceed $750,000, the trial of the action proceeded by way of summary determination.[9]
[9] Uniform Civil Rules 2020, r 254.15.
The Law
The Act was in force when the proceedings were commenced and when the trial was heard. However, on 31 December 2024, the Act was repealed, and the Succession Act 2023 (SA) commenced on 1 January 2025. Section 2 of Schedule 4 of the Succession Act states:
2—Continuation of proceedings under repealed Acts
Any proceedings commenced in the Court under a repealed Act that have not been finally determined before the designated day may be continued and completed under that Act as if this Act had not been enacted.
Accordingly, the Act is still to be applied to the determination of this decision.
The law regarding family provision is well settled. However, the question regarding a testator’s moral obligation to make provision for a grandchild is somewhat more complex.
Section 6 of the Act lists the class of persons who are eligible to make a claim for provision. The section states:
6—Persons entitled to claim under this Act
The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:
(a) the spouse of the deceased person;
(b) a person who has been divorced from the deceased person;
(ba) the domestic partner of the deceased person;
(c) a child of the deceased person;
(g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h) a child of the child of the deceased person;
(i) a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
(j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
Therefore, a grandchild is entitled to claim the benefit of the Act without needing to satisfy any other pre-conditions.
Section 7(1) of the Act then provides:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled
In Parker & Ors v Australian Executor Trustees Limited,[10] the Honourable Justice Lovell described the general purpose of the Act as follows:[11]
The purpose of the Act is to permit a court in certain circumstances to displace a testator’s dispositions. It does not impose any limitation on a testator’s power of disposition but if the statutory conditions are satisfied a court is empowered to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. The legislation is remedial in character and has been construed to give the most complete remedy which the phraseology will permit.
(Footnote omitted)
[10] [2016] SASC 64.
[11] [2016] SASC 64 at [17].
His Honour then went on to consider the relevant test to be applied and the two-stage process.[12] His Honour said at [18]–[21]:
[12] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.
The inquiry as to whether adequate provision has been made involves a two-stage process. The first stage calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education and advancement in life (this has been referred to as the “jurisdictional question”). The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to decide what provision ought to be made out of the testator’s estate for the plaintiff.
In relation to the two-stage process Gleeson CJ in Vigolo v Bostin stated:
What has been described as the two-stage approach to the exercise of such a statutory power was explained by this Court in Singer v Berghouse, and is not in controversy in this appeal. It is evidence that, depending upon the stage of consideration involved, the following judgments are required by the terms of s 6. What kind of provision for the matters referred to in that section should be regarded as adequate? What should be regarded as proper maintenance, support, education or advancement in life in the case of a particular applicant? If the court comes to exercise its discretion to make an order in favour of an applicant, what should it regard as fit provision for the purposes referred to in the section? Upon whom should the burden of such an order fall?
(Footnotes omitted)
Thus when considering the first stage of the test the question is whether, in all the circumstances of the case, it can be said that an applicant has been left by the testator without adequate provision for his or her proper maintenance, education or advancement in life. The second stage involves the Court exercising its discretion in all of the circumstances of the case.
The twin tasks facing a court are similar. The first stage involves the application to the facts of a legal criterion although that involves a value judgment by the Court. The second question involves the exercise of a judicial discretion. Although they are separate questions they may in many circumstances come close to each other and a favourable determination of the first may substantially influence the answer to the second. However, the first question is to be decided as at the date of death of the deceased and the second as at the date of any order.
(Footnotes omitted)
The relevant test to be applied regarding the two-stage process is well settled and is not in dispute between the parties.
There have been few decisions delivered by this Court regarding a claim commenced by a grandchild of a deceased person. That is not because claims are not made by grandchildren, but rather, many of those claims are resolved prior to trial. Given the modest size of this estate, it is unfortunate that this matter needed to proceed to trial.
However, the Succession Act now imposes pre-conditions before a grandchild can commence a claim seeking provision from a deceased estate. Section 115(5) states:
(5) A grandchild of a deceased person is only entitled to claim the benefit of this Part if the grandchild satisfies the Court that—
(a) the grandchild's parent, being a child of the deceased person, died before the deceased person; or
(b) the grandchild was maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased person immediately before the deceased person's death.
By imposing such pre-conditions, the inference to be drawn is that Parliament intended to restrict a grandchild’s ability to make a claim for provision. This would appear to stem from the general expectations of the community that a grandparent does not carry a moral obligation to make provision for a grandchild, unless special circumstances exist. Time will tell regarding how the Court will approach the pre‑conditions when assessing a claim instituted by a grandchild under the Succession Act.
In the following decisions, the Court has considered a claim commenced by a grandchild.
In the Estate of Puckridge, deceased[13]
[13] (1978) 20 SASR 72.
In the estate of Puckridge, the testator had married twice during his lifetime. From his first marriage he had one daughter. She married and had four children, two boys and two girls. The deceased left an estate with a net value of between $500,000 and $1,000,000. Under the terms of his will, the deceased gave a pecuniary legacy of $6,000 to each of his grandchildren and left the residue of his estate to his second wife.
During the deceased’s lifetime, his daughter had agreed to receive a payment of $100,000 on the basis that she would not dispute the terms of his will or seek provision from his estate.
However, the four grandchildren each issued a claim seeking further provision from their grandfather’s estate.
The two boys, aged 25 and 24 years of age respectively, worked on a farm in partnership with their parents. The farm could support one family unit but was inadequate to support the families of the boys if they were to marry.
The eldest girl was aged 27 years and was married. She was working as a nursing sister, and her husband was working as a builder's labourer.
The youngest daughter was aged 17 years of age. She was supported by her parents and was being trained at a business college for secretarial work.
Chief Justice King held that although the four applicants were grandchildren, and not children, of the testator, their blood relationship to the testator gave them a valid moral claim for their advancement in life. His Honour said:[14]
The applicants are grandchildren and not children. The relative remoteness of the relationship is a factor to be taken into account in determining what would be adequate provision for their proper advancement life: In re Izard (Deceased); In re Wright (Deceased). Three of them were adults and one was approaching adulthood at the time of the deceased's death. They have no particular claims on the affection of the deceased other than those arising out of the blood relationship.
In many situations people in the position of the applicants would have no moral claim on the deceased's bounty. But the situation in this case is unusual. The widow was sixty-three years of age at the date of death and she had substantial assets of her own. The applicants needed capital to establish themselves in life in the various ways appropriate to their individual situations and ambitions. The estate was large enough to have enabled the deceased to make substantial provision for the applicants' advancement in life and still to have left the respondent a capital fund capable of producing an income which would support her, without recourse to capital, on the highest standard of living to which she could reasonably aspire. There were no other claims on the bounty of the deceased. The blood relationship may of itself give rise to a sufficient moral claim to justify an order under the Act: Blore v. Lang, per Dixon C.J. at p. 128. In the circumstances recounted above, I think that the blood relationship gave to the grandchildren a valid moral claim on the bounty of the deceased …
(Footnotes omitted)
[14] (1978) 20 SASR 72 at 77.
Accordingly, his Honour ordered that the pecuniary legacies to each grandchild should be increased from $6,000 to $50,000, free of duty.
Eckert v Starick & Eckert[15] and Eckert v Starick[16]
[15] (1993) 172 LSJS 150.
[16] [1994] SASC 4584.
Hilda Sophie Eckert died on 16 August 1991. Her husband had predeceased her in 1986. The deceased and her husband had lived in Springton for many years on a modest farming property.
The deceased and her husband had three children. One child died at 11 years of age. The other two children were Judith Starick (“Judith”) and Lyall Eckert (“Lyall”). Lyall was a severe asthmatic and died in 1971 aged 41 years of age. Lyall was survived by his widow, Margaret Eckert (“Margaret”), and two children.
Pursuant to the terms of the deceased’s will, the deceased devised a block of land containing 22.37 hectares (valued at $77,000) to Margaret. She then gave the residue of her estate to Judith.
John Lyall Eckert (“John”), who was one of Lyall’s children, commenced a claim seeking provision from the deceased’s estate. At the time of the trial, John was married (but separated) and had one young child whom he was liable to support to the extent that he was able to do so.
The estate was valued with a net sum of approximately $370,000.
The Honourable Justice Duggan said:[17]
“…
It is necessary to keep in mind that it is not permissible to remake the deceased's will simply because, by reason of the size of the estate, the claims could be easily accommodated: Bosch v Perpetual Trustee Co Ltd [1938] AC 63, at 477; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 94, per Williams J at 514. Nevertheless the size of the estate is an important consideration in determining what is proper as regards maintenance, education or advancement in life.”
The question as to whether a person has been left without adequate provision for proper maintenance, education and advancement in life is to be looked at as at the time of death, although events that are reasonably foreseeable at this time may be taken into account. (Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 94 at 508.) If the stage is reached where the discretion is to be exercised, then the value of the estate at the date of the hearing is relevant. (White v Barron (1980) 144 CLR 431 at 447.)
Although the court must look at the matter through the eyes of a wise and just testator or testatrix, it is given no broad authority to remake the will. Justice rather than generosity is the purpose of the legislation and, of course, it must be justice within the confines of the section. In the event that an order is appropriate the court cannot interfere with the will any further than is necessary to provide proper maintenance, education and advancement in life.
Whereas the degree of relationship with the testatrix is a matter to be taken into account together with all the other circumstances of the case (Puckridge supra at 77), there is no general rule limiting the claims of grandchildren where they fall within the purpose of the statute. (In re Wright [1954] NZLR 630.) It is relevant to consider what inheritance or financial support a grandchild might expect from his or her parents as this may make it more difficult to establish a moral duty on the part of a grandparent. In this respect it is interesting to note that at one stage in the statutory development of family inheritance provisions in New Zealand a claim by a grandchild was limited to cases of grandchildren whose parent through whom the grandchild was related to the testator "had died before the testator". While the plaintiff cannot make a vicarious claim based upon what his deceased father might have inherited from the estate, it is nevertheless relevant in this case that the plaintiff had a close relationship with his grandparents which became more direct when his father died.
[17] (1993) 172 LSJS 150 at 153-154.
Therefore, his Honour concluded that John had been left without adequate provision for his proper maintenance, education and advancement in life. His Honour then said:[18]
As to the latter aspect I regard this as a proper case in which is exercise the discretion given by the Act to make some provision out of the estate for the plaintiff's maintenance and advancement in life. The plaintiff had few prospects for alternative employment at the time of the deceased's death. He has a significant liability in the form of the loans which he had already taken out at that stage. However I must take into account the fact that the value of the estate is not great. In my view the plaintiff is entitled to a modest share by way of a legacy of a lump sum of $50,000. I think it would be quite unfair for this provision to come out his mother's share of the estate and I direct that it be paid out of the residue which, according to the terms of the will, is due to Judith Starick.
[18] (1993) 172 LSJS 150 at 155.

Judith appealed the decision to the Full Court.[19]
[19] Eckert v Starick & Ors [1994] SASC 4584.
The Full Court was comprised of Mohr, Bollen and Olsson JJ. Olsson J stated at [18] and [22]:
Having adverted to the salient concepts and principles of approach identified by various authorities, the learned trial judge pointed out that there is no general rule limiting the claims of grandchildren, where they fall within the purpose of the Act, although it is relevant to consider what inheritance or financial support a grandchild might fairly expect from his or her parents. He stressed that, in the instant case, it was relevant to take into account that the respondent had a close relationship with his grandparents, which became more direct when his father died.
….
At the end of the day it was his view that the respondent had been left without adequate provision for his proper maintenance and advancement in life and concluded that, having regard to the size of the estate, he ought to receive "a modest share by way of a legacy of a lump sum of $50,000" - which, in all fairness, ought to come from residue and not out of the devise to the respondent's mother.
(Footnotes omitted)
Accordingly, Olsson J concluded that the appeal be dismissed. Mohr and Bollen JJ both agreed.
Wall v Crane & Ors[20]
[20] [2009] SASC 382.
Keith Crane died on 22 October 2002. His wife had predeceased him. The deceased and his wife had four children. David Glen Crane (“David”), Kevin Keith Crane (“Kevin”), Jennifer Anne Wall (“Jennifer”) and Barbara (“Barbara”).
Pursuant to the terms of the deceased’s will, the deceased appointed David and Kevin as his executors and his beneficiaries. He did not make provision for Jennifer and Barbara because he considered that he had already made provision for them during his lifetime time.
The net estate was valued by the Honourable Justice White to be $1,138,978.24.[21]
[21] [2009] SASC 382 at [48].
Jennifer and Barbara commenced proceedings seeking provision from the deceased’s estate. Barbara later discontinued her claim.
On 24 January 2008, a separate claim was then brought by Andrew Shepherdson (“Andrew”). Andrew’s circumstances were as follows:[22]
As already noted, Andrew was born in August 1999 following a short relationship between David and his mother Ms Shepherdson.
Ms Shepherdson has had seven other children (none of them fathered by David). Andrew, now 11 years old, lives with her and his step-siblings at Mount Barker. Ms Shepherdson subsists on a variety of Centrelink benefits. It was not really in dispute at trial that Ms Shepherdson has only limited monies with which to support her family. I am satisfied that she lives from one Centrelink payment to the next. That was also the case in October 2002.
When the testator died, Andrew was three years old and was living in a Housing Trust home at Mount Barker with Ms Shepherdson and four of his step-siblings. Now there are seven children in the home.
[22] [2009] SASC 382 at [107]-[109].
His Honour then said at [133]–[135]:
Consideration of Andrew’s Claim
Courts will often find in IFP claims that a grandchild of a testator has not been left without adequate provision. That is in part because the parents of the grandchild can be expected to provide the necessary support and in part because of the relative remoteness of the relationship between the grandchild and the deceased.
However, in particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased. This was the view taken by King CJ in The Estate of Puckridge. That moral claim may be less than that of the deceased’s own children, but it may nevertheless be a valid moral claim.
In the present case, I am satisfied that Andrew did have a valid moral claim on his grandfather’s bounty. That moral claim existed even in the absence of a developed relationship between the two of them…
(Footnotes omitted)
His Honour then said at [142]:
Having regard to all the relevant factors, I consider that a pecuniary legacy of $50,000 should be made in favour of Andrew. That amount should be deducted from David’s share of the residue, and should be paid to the Public Trustee to be held on Andrew’s behalf and disbursed, from time to time, to meet Andrew’s needs.
Columbus v Efstathis & Ors[23]
[23] [2019] SASC 149.
Eva Columbus died on 20 August 2014. The deceased was survived by three children, Olga Efstathis, Stephanie Columbus and Frederick Steven Columbus (“Fred”). John Constantine Columbus (“John”) was a child of the deceased who died in 1993. Fred also died shortly after the deceased on 24 December 2015.
Yiannis Christian Columbus commenced the substantive action on 5 December 2018 seeking provision from the deceased’s estate. Yiannis is the son of John. Yiannis’ claim was filed and served within the limitation period prescribed by s 8(1) of the Act.
Yiannoula Constantina Lisson, a granddaughter of the deceased, and the daughter of Fred, filed an application seeking to be joined to the proceedings as a claimant. She also sought an order that the time within which the application for joinder may be brought be extended. At the date of the argument, the current net value of the deceased’s estate was not clear but may have been in the vicinity of $2 million.
The Honourable Justice Stanley held there was no reasonable prospect of Yiannoula being able to establish any moral obligation on the part of the deceased to have made provision for her from her estate.
His Honour assessed the merits of Yiannoula’s claim and said at [21]–[27]:
A claimant for the benefit of the Act must establish, inter alia, that he or she has been left without adequate provision for his or her proper maintenance, education or advancement by reason of the testamentary dispositions or the operation of the laws of intestacy in respect of the estate against which the claim is brought. Whether a claimant can satisfy the Court of this matter depends on the Court’s satisfaction that the testator was under a moral obligation to make such adequate provision for the claimant from his or her estate.
In Bowditch v NSW Trustee and Guardian, Hallen AsJ (as his Honour then was) suggested guidelines for claims made by grandchildren in the following terms:
In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:
(a)     As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.
(b)     Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.
(c)     The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.
(d)     Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.
(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.
(f)     It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.
In Chapple v Wilcox Barrett JA approved the guidelines identified in Bowditch as providing a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply “the feeling and judgment of fair and reasonable members of the community” in such cases. With minor qualifications those guidelines were also approved by Basten JA and Gleeson JA. This statement of principle was followed by the Court of Appeal of the Northern Territory in Simonetto & Anor v Dick.
In Simonetto Riley CJ, with whom Southwood and Barr JJ agreed, noted that while the New South Wales legislative scheme differed from that in the Northern Territory, by requiring that a grandchild could only apply if he or she was wholly or substantially maintained or supported by the deceased, the guidelines in Bowditch remained apposite to the Northern Territory legislation. The Northern Territory legislation is in substantially the same terms as the Act. As the trial judge in Simonetto Hiley J observed, the guidelines, with the exception of sub-paragraph (e), are apposite to claims made under legislation elsewhere than New South Wales, including the Northern Territory, because they apply to the adequate provision for the proper maintenance, education and advancement in life of the claimant.
In this State a similar approach was taken in Wall v Crane & Ors where White J said:
Courts will often find in IFP claims that a grandchild of a testator has not been left without adequate provision. That is in part because the parents of the grandchild can be expected to provide the necessary support and in part because of the relative remoteness of the relationship between the grandchild and the deceased.
[Citations omitted].
However, White J recognised that in particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased. That moral claim may be less than that of the deceased’s own children but may nevertheless be a valid moral claim.
In that case, White J found that a grandchild did have a valid moral claim on his grandfather’s bounty in circumstances where for various reasons, neither the child’s father nor mother could be relied upon to provide adequately for his proper maintenance, education and advancement in life.
(Footnotes omitted)
His honour then said at [40]–[41]:
In accordance with Bowditch, as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition. That obligation rests on the parent of the child. Nor is a grandchild normally regarded as a natural object of the deceased’s testamentary recognition. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. While a moral obligation may be created in a particular case by reason of the care and affection provided by a grandchild to her grandparent, there is no evidence of that in this case.
At its highest the evidence goes no further than establishing the existence of a close and loving relationship between the applicant and her grandmother. There is no evidence that would support a finding of the kind identified in Bowditch, where a grandchild has lost her parents at an early age or where she was taken in by the grandmother in circumstances where the grandmother became in loco parentis, which would give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandmother. There is no evidence to support a finding that the deceased had come to assume, for some significant time in the applicant’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the applicant’s support and welfare, or else that the deceased had undertaken a continuing and substantial responsibility to support the applicant financially or emotionally.
His honour said that Yiannoula’s claim did not have a reasonable prospect of success, and the application was dismissed.
I am not only bound by the above authorities, but they also provide helpful guidance on how to consider whether Glenn and Alison have been left without adequate provision for their maintenance, education and advancement in life.
Glenn’s circumstances
Glenn is 44 years of age. He is married to Linda Marie Bain (“Linda”). She is 51 years of age. Together they have three children: Olivia Marie Bain who died at birth on 11 April 2008, Julian Maxwell Bain (“Julian”) who is 15 years of age and Amelia Rose Bain (“Amelia”) who is 12 years of age.[24]
[24] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 9.
Glenn has been employed by the Federal Government for 17 years[25] and drives a Mini Cooper.[26]
[25] Transcript page 61, line 21.
[26] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 9.4.
He currently works full-time for the Australian Taxation Office as a lawyer, but previously as an auditor in the fraud and criminal behaviours department.[27]
[27] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 9.5 and Transcript page 61, line 28.
He also has the further following qualifications:
·Bachelor of Management;
·Masters Degree in accounting;
·Fellow of the Certified Practicing Accountants Australia;
·Law degree; and
·Master’s degree in tax.[28]
[28] Transcript page 62, lines 6-9.
For the financial year ending 2022, Glenn’s taxable income was $79,918[29] and Linda’s taxable income was $94,477.[30] In regard to Glenn’s taxable income, there was a deduction of $11,000 for the fees paid for his master’s degree in tax.
[29] Applicants’ tender book page 016.
[30] Applicants’ tender book page 025.
For the financial year ending 2023, Glenn’s taxable income was $89,444[31] and Linda’s taxable income was $104,462.[32] In regard to Glenn’s taxable income, there was again a deduction of $8,250 for his fees paid for his master’s degree in tax.
[31] Applicants’ tender book page 024.
[32] Applicants’ tender book page 017.
Glenn and Linda own their home located in North Adelaide, which is worth approximately $1.45 million.[33] There is a mortgage secured against the North Adelaide property for the sum of approximately $900,000.[34] The weekly repayments for the mortgage are approximately $1,300.[35]
[33] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 9.3.
[34] Transcript page 64.
[35] Transcript page 66, line 6.
Julian successfully obtained a half scholarship to attend St Peter’s College. He was due to commence year 10 at St Peter’s at the start of 2025. Glenn and Linda will need to fund the remaining school fees of approximately $17,000.[36]
[36] Applicants’ tender book pages 065-070.
As at the end of June 2023, Glenn had $330,847.60 held in superannuation[37] and Linda had $254,221.07 in her superannuation account.[38]
[37] Second Affidavit of Glenn Peter Bain sworn on 30 January 2024, see exhibit “GPB90”.
[38] Second Affidavit of Glenn Peter Bain sworn on 30 January 2024, see exhibit “GPB92”.
Glenn’s father, Graham Walter Bain (“Graham”), died on 6 December 2021. Glenn did not receive an inheritance from his father’s estate.[39]
[39] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraphs 4.4 and 9.6.
Alison’s circumstances
Alison is 50 years of age and is a single mother.
She has two daughter, Isabella Sciberras (“Isabella”) and Lola Bain (“Lola”) who is 12 years of age.[40] Isabella’s precise age is unclear from the evidence. However, there is sufficient evidence to be satisfied that Isabella is an adult.
[40] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 8.
She works full-time as a real estate agent and her base salary is approximately $90,000. Any extra commission that she earns, is by working a six-day working week.[41]
[41] Affidavit of Alison Julie Bain sworn on 8 July 2024, paragraph 41.
For the financial year ending 2021, her taxable income was $87,223.[42]
[42] Applicants’ tender book pages 010-012.
For the financial year ending 2022, her taxable income was $90,624.[43]
[43] Applicants’ tender book pages 013-015.
For the financial year ending 2023, her taxable income was $105,148.[44]
[44] Applicants’ tender book pages 021-023.
In 1993, Alison received compensation in the sum of $80,000 from the Victims of Crime Scheme following the murder of Dianne.[45]
[45] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 8.5.
As at the end of June 2023, Alison had $178,814.54 in superannuation held with Australian Super.[46]
[46] Second Affidavit of Glenn Peter Bain sworn on 30 January 2024, see exhibit “GPB91”.
Alison does not own her own home. She currently rents at South Plympton. She has no other significant assets but also does not have any debt.[47]
[47] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 8.10.
Alison also did not receive an inheritance from Graham’s estate.[48]
[48] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 8.11.
Glenn and Alison’s relationship with the Deceased and the alleged promises
Before Dianne passed away, Glenn and Alison would regularly visit the Deceased and Maxwell at their home in Seacombe Gardens. The Deceased and Maxwell would also go to Dianne’s place for Sunday lunches.[49] They would also celebrate special events such as birthdays and Christmas together. Based on Glenn’s evidence, Dianne had a strong relationship with her parents, and this was also shared with Glenn and Alison.
[49] Third affidavit of Glenn Peter Bain sworn on 8 July 2024, paragraph 6.
After Dianne passed away, Glenn and Alison continued to maintain a close relationship with the Deceased and Maxwell. They relied heavily upon the Deceased and Maxwell for emotional family support.[50] They say that the Deceased stepped into the role of their mother. They continued to share special occasions together and were present in each other’s lives.
[50] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 5.2.
However, they did reside with their biological father after Dianne’s death.[51] Glenn struggled with his relationship with his father and the Deceased would act as a conduit between him and his father when they were not getting along.[52]
[51] Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 5.1.
[52] Third Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 27.
Glenn and Alison stated that during the Deceased’s lifetime, she and Maxwell continued to promise Glenn and Alison that they would receive Dianne’s share of their estate after they had both died.[53] Glenn and Alison stated that this arrangement was also known to Allan.[54]
[53] Third Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraphs 45, 46, 50 and 51.
[54] Affidavit of Alison Julie Bain sworn on 8 July 2024, paragraph 29.
For the sake of clarity and the avoidance of doubt, at the commencement of the trial, there appeared to be a suggestion in counsel’s opening submissions for Glenn and Alison that there may have been an allegation regarding the validity of the Will. However, counsel confirmed that a Probate Action had not been commenced and the validity of the Will was not being disputed. The proceedings that were strictly before the Court were claims for provision from the Deceased’s estate pursuant to the Act.
Allan’s circumstances

Allan is 67 years of age and is married to Maria Ingham (“Maria”).[55] They have four children. One of their children, Millie, still resides with them at home. Allan states that Millie suffers from autism, obsessive compulsive disorder, depression and severe anxiety. She receives a disability support pension and NDIS support.[56]
[55] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraphs 2 and 5.
[56] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraph 3.
Allan receives a pension from Super SA of approximately $80,000 per year. He does not have a fixed superannuation balance, but rather he receives approximately $3,096.71 per fortnight.[57] For the year ending 30 June 2023, Allan’s taxable income was $85,305.[58]
[57] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraphs 4 and 7.
[58] Second respondent’s tender book page 19.
Maria works part-time for a bank. For the financial year ending 2023, her taxable income was $47,121.[59] Maria has a superannuation balance of $232,419.38 as of 30 June 2023.[60] She also has a small number of shares in ANZ and Westpac.[61]
[59] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraph 5.
[60] Second respondent’s tender book page 32.
[61] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraphs 8 and 9.
Allan and Maria have a savings account with a balance of $9,088 as at 29 February 2024. They also have accounts with Westpac totalling approximately $242,680.[62]
[62] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraph 11.
Allan also has a term deposit with People’s Choice Bank with an approximate amount of $121,811.[63]
[63] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraph 12.
Allan and Maria own their home in Aberfoyle Park. Allan estimates the value of their property to be approximately $800,000. The Valuer-General’s valuation of the property is $690,000.[64]
[64] Second respondent’s tender book page 34.
The incident that occurred on Sunday 31 January 2021 and the events that then followed
As a result of various health issues, it was apparent from December 2020 that the Deceased could no longer remain living independently on her own at the Seacombe Gardens property.[65]
[65] Transcript, pages 107–108 (inclusive).
Therefore, from early January 2021 the Deceased began residing at the Allambi Aged Care Facility in Glengowrie. To be able to fund the refundable accommodation bond, the Deceased’s property needed to be sold.[66]
[66] Transcript, page 109.
On 28 January 2021, Allan sent the following text message to Glenn, Alison and his daughters:[67]
Hi all, just a message to say that nannas house will go on sale in two weeks time via Klemich Realestate (sic), we are using the agent that she bought it from. We are donating the older furniture to the Salvos and selling the appliances etc to help cover the costs of Allambi.
[67] Trial book page 84 (it is not entirely clear who the text message was sent to, but it can be inferred from the evidence that it was received by Glenn and Alison).
Glenn sent the following message in response to Allan’s message:[68]
whilst I do not doubt your intentions for caring for nana and you have taken on a massive load, which is to your credit. I am concerned, though, that you are disposing of her main asset without any discussion with Alison and I. It has always been our understanding that you will be a 50% beneficiary to any estate and that Alison and I will receive the other 50%. This was always the way it was explained to us by nana and pa. Whilst not preempting nanas passing, we hope there is many more years to come, we would like it appropriately documented what is to occur in the event of her passing. Therefore, I am suggesting, before the sale of the property, that a Will be drawn up to reflect what I have said above, that’s if it doesn’t already exist. We simply don’t know. In addition, that there be a trust, with you as the trustee, but any funds held after the sale of her house and any other funds, be held in trust, with nana as the beneficiary until she passes. Whilst it sounds over legalistic, I do not want to (sic) a situation where there is a legal dispute following her passing. This is not what mum, nana or pa would want. I am willing to contribute to any legal costs associated.
[68] Second respondent’s tender book, page 2.
It does not appear that Allan responded to Glenn’s message.
Alison also replied to Allan’s initial message stating:[69]
Right. If you can let me know how much the appliances are selling for as Bella may move out soon and I’d be interested in possibly buying them.
Thank you.
[69] Trial book page 085
Again, it does not appear that Allan responded to Alison’s text message.
On 31 January 2021, Glenn and Linda with their children went to visit the Deceased at Allambi. Alison was also there with Isabella and Lola.[70]
[70] Third Affidavit Glenn Peter Bain sworn on 31 July 2023, paragraph 57.6.
Based on Glenn’s evidence, during the visit Alison asked the Deceased why she did not use her employer to assist with the sale of her property. Glenn also asked whether he could collect some sentimental items from her house such as photographs of their mother.[71]
[71] Third affidavit of Glenn Peter Bain sworn on 8 July 2024, paragraph 57.6.1.7.
Glenn states in his affidavit that the Deceased then told everyone to get out and to never come back. They all then left the room.[72]
[72] Third affidavit of Glenn Peter Bain sworn on 8 July 2024, paragraph 57.6.1.8.
In Allan’s evidence he states that on the same day, Maria received a telephone call from Allambi asking Allan to attend urgently because the Deceased was distressed from a visit. Upon attending at Allambi the Deceased told Allan that during her visit with Glenn and Alison, Alison suggested that her daughter Isabella have her household electrical items and furniture. The Deceased told Allan that Alison said she should have sold her house through the real estate agent she works for, and that Glenn had mentioned the word “Will” at which point the Deceased told them to leave.[73]
[73] Affidavit of Allan Maxwell Ingham affirmed on 10 July 2024, paragraph 28.
There was then a flurry of text messages between different members of the family regarding what transpired on Sunday 31 January 2021. I cannot say with confidence who said what in the text messages, but suffice to say, this then caused the relationship between the families to breakdown.
A letter dated 18 June 2021 was then sent from Grope Hamilton Lawyers, acting on behalf of Glenn, to Allan. At the start of that letter, it states that although Grope Hamilton are not acting for Alison, they are writing the letter with Alison in mind. The relevant paragraphs of that letter state:[74]
[74] Second respondent’s tender book, pages 3–5 (inclusive).
Background
1.Following the murder of your sister, our client’s mother Dianne Mary Dale, nee Ingham, in 1992, at a time when our client was aged 12, and his sister was aged 17, your mother and father, as our client’s grandparents, promised that our client and his sister would receive the 50% share of their estate that their late mother would have otherwise received.
2.This was a grave promise, which was repeated many times over the years.
3.Our client instructs that you have previously been assisting your mother with managing her finances in terms of paying bills.
4.Mrs Ingham spent a period in the dementia ward at Flinders Medical Centre. This was from approximately October 2020 to January 2021.
5.Our client’s grandmother’s home at 2 Ross Street, Seacombe Gardens was sold for $437,500.00 on 12 April 2021.
6.Mrs Ingham entered Allambi Aged Care on 5 January 2021.
7.Our client’s research suggests that it costs approximately $550,000.00 to $650,000.00 to purchase a position in this aged care facility.
Recent events
Our client further instructs us that:
8.On 28 January 2021, he made some enquiries of you by SMS regarding the existence of a will for his grandmother. Our client wished to confirm that her will was in accordance with her (and her husband’s) long expressed wishes. Our client, at that time, suggested that any remaining money be placed in a trust account.
9.You did not respond, except to cut our client off as a contact on social media.
10.When our client and his family went to see his grandmother on 31 January 2021, she told them to get out and to not come back, in emotional and strong terms.
11.The necessary implication of this unprecedented behaviour by our client’s grandmother was that you had made misleading statements to her about our client’s conduct. To raise these matters with your mother, at her age and condition, is pointless and inappropriate, and constituted cruel behaviour.
12.Our client’s cousin, Laura Ingham, your daughter, then asserted that we had gone to see his grandmother on 31 January 2021 in order to ask her to change her will [presumably to include our client and his sister]. Our client had, in fact, presumed that he and his sister were beneficiaries.
13.This occurred in circumstances where our client had not ever been specifically aware of the existence or contents of his grandmother’s will. He assumed that it would reflect the promises made by her and her husband over 28 years.
Request for copy of will
14.Our client hereby formally requests:
14.1. A full and complete copy of the last will and testament of his grandmother;
14.2. In the event that the will has been made in the last twenty (20) years, then he seeks a copy of all previous wills, made and revoked during that period.
Allan did not respond to the letter dated 18 June 2021.
Grope Hamilton then sent a further letter dated 14 July 2021 requesting a response to their letter dated 18 June 2021 and stating that a failure to respond within 14 days will leave their client with no alternative but to resort to formal legal steps.[75] However, I am not entirely sure what formal legal steps could have been taken. During the trial, counsel for Glenn and Alison alleged that there may have been a failure on behalf of Allan to manage the Deceased’s affairs as her attorney.
[75] Second respondent’s tender book – page 6.
Allan then responded via email stating that he does not have copies of the Deceased’s current or previous wills and suggested that a request be sent to the Deceased.[76]
[76] Second respondent’s tender book – page 7.
In addition, a letter dated 21 August 2021 was sent from the Deceased to Mr Hamilton. That letter stated the following:[77]
[77] Second respondent’s tender book – page 8.
Dear Mr Hamilton
WILL of Mary Ellen Ingham
It has recently been brought to my attention that you wrote to my son Allan Ingham on 18 June 2021 and 14 July 2021 demanding a copy of my Will.
Could you please advise your client Glenn Bain that I will not provide a copy of my Will to him or my granddaughter Alison Bain.
The actions of Glenn and Alison in pursuing this matter with me at my aged care home on 31 January 2021 and the subsequent correspondence threatening my son Allan has caused me great distress. I fail to understand why Glenn wishes to continue to pursue this matter with his 87 year old grandmother, a grandmother who is very much alive and of sound mind. It is obvious that Glenn and Alison are more interested in my money than my health and wellbeing.
The visit by Glenn and Alison and their families, including their young children, on the 31 January 2021 at my aged care home to openly discuss the contents of my Will was disgraceful. Their actions in wanting to discuss my Will in my room in front of others including my great grandchildren caused me to be so upset that a nurse from the home provided me a sedative to help me calm down.
I would also take this opportunity to dispute the false information as described in your correspondence of the 18 June 2021. I was not and have never been admitted into a dementia ward at any hospital, further to this I have never been diagnosed with having dementia. Late 2020 I was admitted into a geriatric rehabilitation ward (GEM Unit) at Flinders Hospital due to a medical imbalance causing my sodium level to temporarily drop, this medical condition was resolved prior to me voluntarily moving into an aged care facility.
Finally, it is requested that Glenn and Alison cease pursuing this matter and allow me the peace and enjoyment I deserve in my twilight years.
It is Allan’s evidence that he spoke to the Deceased about the letters that he had received from Grope Hamilton. Allan stated that the Deceased wanted to respond. She then told Allan what she wanted to say in her response. Allan then typed the letter and provided it to the Deceased to read. The Deceased wanted to make some changes, which Allan completed, and the letter was then signed by the Deceased and sent with the assistance of Allan.[78] I am satisfied that Allan would have provided significant assistance with the preparation and drafting of the letter dated 21 August 2021.
[78] Transcript page 133.
I also note that the Deceased’s death certificate does not record dementia as a cause of death.
By letter dated 13 September 2021, Glenn then wrote directly to the Deceased. The letter was addressed to Eldercare Allambi and stated:[79]
[79] Second respondent’s tender book – pages 11-13.
Dear Nana,
Linda, Alison and I are writing in response to the letter sent to our lawyer, Mark Hamilton, dated 21 August 2021.
The letter was very upsetting. The letter states that we pursued the matter of your ‘will’ with you at the aged care home. As you know, this did not occur.
We attended your aged care home with our families to check on your welfare, to see how you are, as we always do.
When we visited you, Alison simply asked why she hadn’t been consulted on the sale of your property. Alison said she could have had the marketing fees for your property sale heavily discounted through her employer.
In an instant, you subsequently yelled at all of us (your family) to ‘get out and not come back’. We have never experienced this type of behaviour from you throughout our lives. It was very out of character. It made us feel like you had been coached or told how to react when we came to see you.
There were four adult witnesses in the room throughout the five minutes we were at your aged care home. We all entered and exited the room at the same time. We all heard what was said clearly. Linda was sitting on your bed reading a magazine and Alison was sitting next to you. What you have written to us in the 21 August 2021 letter, simply did not occur.
Importantly, we were only made aware of a will, following a text message from Laura after we visited your aged care home.
We were accused by Laura of not only coming and discussing your will, but also that we made a request of you to change your will. This is false, as we didn’t know a will existed. We do not know if this came from you or if it was Allan spreading malicious rumours throughout the family. In any case, it was very hurtful and insulting to all of us.
Since Mum died, Alison, Linda and I have all been present on many occasions, over a period of up to 29 years, when we were told that Alison and I would be 50% beneficiaries of any estate. Both Pa and yourself made these statements to us. We have discussed this matter with others who were also present when these statements were made to us. They are also prepared to be witnesses.
The letter of 21 August 2021 suggesting that we are only interested in your money, is not correct. We don’t even know how much money you have. We are merely attempting to reconcile what would be fair and equitable, what has been told to us, in the circumstances surrounding our Mum’s death.
Alison, Bella and I also have a different recollection of what occurred when you were in Flinders Hospital. Very clearly it was a locked ward. You did not have the freedom to leave on your own volition. You did not know who we were and did not remember we had been there at our next visit. We do not understand why there was such a need to sell your property in such a rush, incur high nursing home fees, if you were of a sound mind, per the claim in the 21 August 2021 letter.
We have attempted to resolve this matter in good faith. Allan has not. We have been removed from social media accounts by Allan. We have tried to reconcile this matter with Allan through our lawyer. Allan’s response has been to ignore letters or to send a sarcastic response. His behaviour has caused significant distress and expense.
It has been noted that we have been excluded from family events since Pa passed. We are not invited, for example, to Christmas, birthdays or Mother’s Day events. Last Christmas, you were taken out of hospital and went to Laura’s. We were not invited to come and see you. We have increasingly felt that there has been a concerted effort to exclude as (sic) from the family.
Whilst no doubt you have been told a different story, this matter commenced after we received terse text messages from Allan about your health care and subsequent sale of your property and goods.
I simply asked that any money you may have, to be put into a trust for your benefit, not anyone else’s. We do not want anyone taking advantage of you being elderly and vulnerable.
Being advised third hand that we can collect a box of sentimental items of Allan’s choosing, was offensive. What a heartless thing to do to family! And to still not receive this offering, we find it puzzling.
It has been most disappointing that you have not tried to resolve this matter with us. Over the past period, you have not attempted to contact us, nor show interest in Julian, Amelia, Lola or Bella, all of whom love you very much. The children do not understand why they cannot see you or why you yelled at them to never come back.
We wish you well, however, we will continue to pursue this matter until it is resolved.
Yours sincerely
[signature illegible]
I accept that Alison did not have knowledge of this letter at the time that the letter was drafted and sent.[80]
[80] Transcript page 49.
It does not appear that the Deceased responded to the letter dated 13 September 2021.
I find the letter sent from Glenn concerning and the last line threating. To send a letter of that nature and tone to an 87 year old woman who is residing in a nursing home after enduring the difficult circumstances of COVID‑19, in addition to needing to relocate to a nursing home, was self-serving and was self‑motivated to ensure that his own interest was protected, at whatever cost. Our elderly are entitled to enjoy peace and quiet and not be subjected to family squabbles regarding their money while they are still very much alive.
Consideration
The Deceased’s last Will is dated 5 February 2015. It was prepared and signed before a solicitor and the Deceased was 81 years of age at the time. It is evident that she had settled testamentary dispositions prior to her death. If not, she had eight years to change her mind, she did not do so.
There is a fundamental importance placed on the freedom of testamentary intention. As Callaway JA said in Grey v Harrison:[81]
… it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of “proper” maintenance and support but also, and more fundamentally, from those considerations.
[81] [1997] 2 VR 359 at [366].

Regarding a claim for provision, the Court is only to interfere with the will to the extent necessary to make adequate provision for an applicant’s maintenance, education and advancement in life.[82] As Harper J described at [24] in Schmidt v Watkins:[83]
To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it that those who have a duty not so much to reward but rather to provide maintenance and support do so by appropriate testamentary disposition. And the question: “Should I reward my benefactor?” is very different from the question: “Do I have a duty to X to make provision for his or her proper maintenance and support?” Different questions demand different approaches as one seeks to formulate the correct (or, rather, a proper) answer.
[82] Re Fulop (Deceased) (1987) 8 NSWLR 679.
[83] [2002] VSC 273.
Glenn and Alison placed significant weight upon the assertions purportedly made by the Deceased and Maxwell during their lifetime for them to receive a portion of their estate which their mother would have received had she not predeceased them. I accept that those conversations may have taken place.
However, that does not mean that a testator is bound to execute a will in accordance with those conversations. Indeed, based on Glenn’s behaviour, it is more likely that the Deceased decided to exclude Glenn and Alison due to his sense of entitlement.
As the Honourable Justice Debelle said in Wesley v Wesley:[84]
Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.
[84] (1998) 71 SASR 1 at 5.
Furthermore, this is a claim for provision, it is not an action regarding promissory estoppel or a breach of contract. The relevant question is whether Glenn and Alison have been left without adequate provision. The promises provide context surrounding their claims; however they are not directly relevant to the question of provision.[85]
[85] Vigolo v Bostin (2005) 221 CLR 191.
Prior to the January 2021 incident, I accept that Glenn and Alison had a good relationship with the Deceased and Maxwell. However, the evidence does not suggest that their relationship was anything other than the usual relationship between grandparent and grandchild. Upon the death of Dianne, Glenn and Alison commenced living with their father. Therefore, it cannot be asserted that the Deceased and Maxwell become in loco parentis. As the authorities state, a grandparent does not carry a moral obligation to make provision for a grandchild if special circumstances do not exist.
Glenn’s claim
Based on Glenn’s financial resources, his qualifications and his joint income with Linda, he has not met the first stage of the two-stage inquiry for the Court to be satisfied that he has been left without adequate provision for his maintenance, education and advancement in life.
The testator’s moral compass was on point. Glenn is well-educated, and he and his wife can enjoy the greater things in life such as being able to send their child to one of Adelaide’s most prestigious schools, regardless of the assistance of a half-scholarship. In addition, they live in one of Adelaide’s most expensive suburbs.
Furthermore, Glenn has been able to fund furthering his education to increase his already very impressive list of qualifications. It is likely that these qualifications will result in an increase in his income over the coming years.
There has also been no suggestion that he or his wife are unable to continue to work until retirement age and they both already have healthy superannuation balances.
Accordingly, I dismiss Glenn’s claim.
Alison’s claim
On the other hand, Alison is in a substantively different position.
She does not own her own home; she does not have any savings and is a single mother. Alison completed year 12 but did not attend University. She began working as an administrative assistant for a real estate agency in Adelaide. She does not have any further tertiary education qualifications.
I am also satisfied that she was unaware of the correspondence that was being sent from Glenn to Allan and the Deceased. I also accept that she was genuinely asking about sale of the Deceased’s property with a view of assisting to reduce the costs associated with engaging a real estate agent.
Based on Alison’s financial position, she has satisfied the first stage of the two-stage inquiry. She has been left without adequate provision for her maintenance, education and advancement.
However, the Deceased did not have a moral obligation to provide for her as though she was a child of the Deceased. Furthermore, it is not for the Court to rewrite the terms of the Deceased’s Will. The Court is only to make an order for provision to achieve the purpose of the Act, and no more. Based on a review of the above authorities, it is appropriate for a modest legacy to be made to Alison.
Therefore, given the size of the estate and Allan’s financial position, I order that Alison is to receive a legacy of $70,000 from the estate of the Deceased.
I will hear the parties on the question of costs. However, I will remain optimistic that the parties may be able to resolve the issue of costs without incurring further substantial costs.
Orders
1.Glenn Peter Bain’s claim for provision from the estate of Mary Ellen Ingham is dismissed.
2.The following provision be made out of the estate of Mary Ellen Ingham, late of 86 Oaklands Road Glengowrie 5044, who died at Glengowrie 5044 on 12 November 2022 for Alison’s maintenance, education and advancement in life, namely:
(a)Alison Julie Bain be paid a legacy of $70,000 inclusive of interest to the date of this order.
3.The burden of the legacy referred to in paragraph 2(a) of this order be borne by and paid out of the residuary estate of the Deceased.
4.Save as aforesaid the Executor shall stand possessed of the estate of the Deceased upon and subject to the trusts declared in the Will so far as such trusts shall be capable of taking effect.
5.A certified copy of the order is to be incorporated into the grant of probate of the Will of the Deceased and, for that purpose, the Executor is to produce a certified copy of the order to Registrar of Probates.
6.I will hear the parties on the question of costs.

[2025] SASC 22

28 February 2025