Brandon v Hanley

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 3227 of 2012

IN THE MATTER of Pt IV of the Administration and Probate Act 1958

- and –

IN THE MATTER of the Will and Estate of DAVID BRANDON, deceased

DAVID ROBERT BRANDON	Plaintiff
v
DIANA LOUISE HANLEY (who is sued in her capacity as the proving executor of the will and estate of the abovenamed deceased)	Defendant

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11, 12, 13 and 18 December 2013
DATE OF JUDGMENT:	21 March 2014
CASE MAY BE CITED AS:	Brandon v Hanley
MEDIUM NEUTRAL CITATION:	[2014] VSC 103

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TESTATOR’S FAMILY MAINTENANCE – Application under Part IV of the Administration and Probate Act 1958 – Claim by adult son of the deceased – Adult son and daughter left small legacies – Remaining adult daughter left the residuary estate – Whether the deceased had a responsibility to make further provision for the adult son – Whether further provision should be made – Further provision ordered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Wainwright Ryan Eid
For the Defendant	Mr R Shepherd	The Probate Professionals

TABLE OF CONTENTS

Introduction................................................................................................................................... 2

The value of the estate................................................................................................................. 2
The provisions of the deceased’s will........................................................................................... 3
The evidence relied on in the proceeding.................................................................................... 4

The Act............................................................................................................................................ 5

Large estates............................................................................................................................... 6
Adult children............................................................................................................................ 7
Acrimony and estrangement...................................................................................................... 9
Statements by the testator......................................................................................................... 12

The evidence................................................................................................................................ 12

The early years.......................................................................................................................... 12
The family moves to Australia.................................................................................................. 14
Discipline in the family............................................................................................................. 16
The deceased’s heart attack....................................................................................................... 19
The plaintiff leaves home........................................................................................................... 20
The defendant’s relationship with the deceased......................................................................... 22
The plaintiff’s marriage and afterwards.................................................................................... 22
The defendant’s first marriage and education........................................................................... 24
The parents’ move to Sydney.................................................................................................... 25
The death of the plaintiff’s mother and afterwards.................................................................... 27
The family relationships in the new millennium....................................................................... 33
The deceased at the Brighton Regis.......................................................................................... 39
Proceedings in the Victorian Civil and Administrative Tribunal............................................ 41

The other witnesses.................................................................................................................... 43

The evidence of the deceased’s community care manager, Mrs Heather Butler........................ 43
The evidence of Mr William Edwards...................................................................................... 50
The evidence of Ms Sharon Martindale.................................................................................... 54
The evidence of Mrs Mary Zaarour......................................................................................... 54
The evidence of Ms Hazel Todd................................................................................................ 55
The evidence of the defendant’s husband, Mr Derek Hanley.................................................... 55

The position of the parties......................................................................................................... 56

The plaintiff’s health................................................................................................................. 56
The plaintiff’s earning capacity................................................................................................ 57
The plaintiff’s financial resources............................................................................................. 57
The defendant’s health and earning capacity............................................................................ 59
The health of the defendant’s husband...................................................................................... 60
The defendant’s financial resources.......................................................................................... 60

Other specific matters to be considered under the Act......................................................... 62

The evidence and credibility of the witnesses....................................................................... 63

The plaintiff, Mrs Moss and Mrs Butler were credible witnesses............................................. 64
The defendant was not a credible witness................................................................................. 65
Mr Edwards was not a credible witness................................................................................... 69
The remaining witnesses.......................................................................................................... 69

Conclusions.................................................................................................................................. 70

The relationship between the plaintiff and the deceased was not one of estrangement.............. 70
The deceased did not make adequate provision in leaving the plaintiff a legacy........................ 72
The Court should order sufficient provision to satisfy the plaintiff’s debts................................ 72

Orders........................................................................................................................................... 74

HER HONOUR:

Introduction

The plaintiff is the adult son of David Brandon deceased (‘the deceased’ or ‘his father’) who died on 14 August 2011, aged 98 years. Pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’), the plaintiff claims that the deceased had a responsibility to make further provision for him under his will dated 31 March 2005 (‘the will’).

At the time of his death, the deceased was a widower, his wife having died in 1976. The deceased was survived by his three adult children:

(a)the plaintiff, aged 71 years;
(b)Diana Louse Hanley (‘the defendant’), aged 68 years; and
(c)Denise Josephine Moss (‘Mrs Moss’), aged 58 years.

A grant of probate was made to the defendant on 21 March 2012, the other two executors named in the will having renounced probate.

The value of the estate

The inventory of assets filed with the grant of probate valued the estate of the deceased at $1 677 401.83. This amount included the deceased’s real estate at 16 Boronia Avenue, St Ives, New South Wales, then estimated at $950 000. In the statement of the financial position of the estate filed at the date of trial, that property was valued at $980 000, and by agreement of the parties at further $25 000 was ultimately added to that value.

At the date of trial, the gross value of the estate was agreed at $1 896 022.72. After subtracting the expenses charged to the estate, but ignoring:

(a)legal costs totalling $184 794.12, comprising;
(i)$161 202.12 already paid; and
(ii)$23 592 charged as a liability; and

(b)interim distributions of $186 220.62, comprising;
(i)$186 220.62 distributed to the defendant from the residuary estate; and
(ii)$65 000 distributed to each of the plaintiff and Mrs Moss as legacies;

the net estate was valued at $1 851 817.35.

The provisions of the deceased’s will

The deceased left pecuniary legacies to his children, grandchildren and great-grandchildren as follows:

(a)$65 000 to each of the plaintiff and Mrs Moss;
(b)$25 000 to Darren Brandon (the plaintiff’s son and a grandson of the deceased);
(c)$20 000 to each of the following grandchildren of the deceased: Steven Brandon, Callum Harris and Max Harris;
(d)$20 000 to each of the following grandchildren of the deceased: David Brandon junior; Peter Hanley; Simon Turner; Melissa Harris; Stephen Moss; and Natalie Moss, reduced by their beneficial entitlement in the Brandon Family Trust valued at $36 220.63.

The total value of the pecuniary legacies to family, ignoring the legacy of $65 000 to the plaintiff and taking into account the trust distributions of $36 220.63 is, in effect, $233 779.37.

The deceased left the following charitable legacies valued at $84 000:

(a)$10 000 to each of Rabbi David Freedman, the Multiple Sclerosis Society of New South Wales, the Sir Eric Woodward Memorial School for Handicapped Children, and JewishCare;
(b)$2000 to Israelitise Gemeente (Netherlands Israel Municipal Council); and
(c)$1000 to each of 42 various charitable organisations as set out in cl 11 of his will.

After payment of the total amount of the family and charitable legacies of $317 779.37 the balance remaining of the estate is presently divided under the will as follows:

(a)$65 000 to the plaintiff; and
(b)The balance of the residuary estate of $1 469 037.98 to the defendant.

The only legacies paid by the defendant are the legacies to the plaintiff of $65 000 and to Mrs Moss of $65 000. In addition, the defendant has made payments out of the estate to herself totalling $186 220.63 by way of interim distribution of $65 000 plus a further $121 220.63. None of the other legacies have been paid to date.

In this proceeding, the plaintiff seeks further provision by way of a further legacy of $427 000 so that he is able to repay his debts.

The defendant contends that the deceased did not have a responsibility to make provision for the plaintiff, or alternatively, if such responsibility is established, that the deceased satisfied his responsibility by leaving the legacy of $65 000 to the plaintiff.

The evidence relied on in the proceeding

As well as his own evidence, the plaintiff relied on the evidence of:

(a) his sister, Mrs Moss;
(b)Mrs Heather Butler, the community care manager and case manager for the deceased between 2004 and 2008; and
(c)his accountant, Mr Steward Ferguson.

The defendant gave evidence and also relied on the evidence of:

(a)Mrs Mary Zaarour, the deceased’s next door neighbour in St Ives;
(b)Ms Sharon Martindale, the facility manager at the Brighton Regis Aged Care Facility in Brighton, Melbourne (‘the Brighton Regis’) where the deceased resided from 29 December 2006 until his death in August 2011;
(c)Ms Hazel Todd, a solicitor with the defendant’s instructing solicitors;
(d)Mr Derek Hanley, the defendant’s husband;
(e)Mr William Edwards, who was described as a close friend of the defendant; and
(f)her accountant, Mr Stephen Lewandowski.

The Act

In an application for further provision made under s 91 of the Act, the Court must decide three questions:[1]

(a)Did the deceased, at the date of his death, have a responsibility to make provision for the proper maintenance and support of the applicant?[2]
(b)If so, did the deceased, in the distribution of his estate effected by his will, make adequate provision for the proper maintenance and support of the applicant?[3]
(c)If not, what is the amount of provision (if any) that the Court should order?[4]

In determining each of these questions, the Court must have regard to the matters set out in sub-ss 91(4)(e)–(o) of the Act, and any other matter the Court considers relevant.[5]

[1]Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [58] (Neave JA).

[2]Administration and Probate Act 1958 s 91(1).

[3]Ibid s 91(3).

[4]Ibid ss 91(1), (4)(c)–(d).

[5]Ibid s 91(4).

The traditional test for determining whether the deceased owed such a responsibility is to ask whether a wise and just testator would have thought it his moral duty to make provision for the applicant.[6] The overwhelming weight of authority is that the threshold question of responsibility continues to be determined by examining the moral obligations of the deceased toward the applicant, and deciding whether their relationship possesses that particular quality that entitles them to provision from the deceased’s estate.[7]
[6]Laird v Laird (1903) 5 Gazette Law Reports 466, 467 (Edwards J); Plimmer v Plimmer (1906) 9 Gazette Law Reports 10, 24 (Edwards J); Rowe v Lewis (1907) 26 NZLR 769, 772 (Chapman J); Allardice v Allardice (1910) 29 NZLR 959, 972–3 (Edwards J); In Re Allen [1922] NZLR 218, 220 (Salmond J).
[7]Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61]–[66] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA) 285–6 (Batt JA); Blair v Blair (2004) 10 VR 69, 75–6 (Chernov JA) 84 (Nettle JA); Schmidt v Watkins [2002] VSC 273 (24 July 2002) [22] (Harper J).

The onus of proving that the deceased had such a responsibility lies with the plaintiff. Because the deceased cannot refute the allegation that his or her freedom of testation has been abused, the evidence in support must be carefully examined, having regard to the principles expressed in Briginshaw v Briginshaw.[8]
[8](1938) 60 CLR 336, 362, 368–9 (Dixon J); Schmidt v Watkins [2002] VSC 273 (24 July 2002) [17]–[21] (Harper J); Webb v Ryan [2012] VSC 377 (3 September 2012) [21]–[22] (Whelan J); State Trustees Ltd v Bedford [2012] VSCA 274 (16 November 2012) [104] (Neave JA).

The assessment as to whether the testator had a responsibility to provide, and failed to make adequate provision, is determined by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of his or her death.[9] The assessment as to what provision the Court should make should be determined at the date of trial, taking into account the applicant’s position at that time.[10]
[9]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ).
[10]Ibid. See also Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [127] (White J).

Large estates

In Re Buckland, Adam J made a number of observations in relation to the general principles to be applied in claims for further provision from a relatively large estate.[11] In closing submissions, counsel for the defendant referred Borebor v Keane, where Hargrave J summarised Adam J’s earlier observations:

(1) A generous, and not ‘niggardly’ approach is justified.
(2) The amount of provision should not be limited by the standard of maintenance provided by the deceased or by the standard of living to which the claimant has been accustomed.
(3) A generous approach does not, however, justify the Court in ordering more than is needed for the claimant’s ‘proper maintenance and support’; as those words ‘place a ceiling upon what the Court may properly do’.
(4) The Court may be justified in making provision for contingencies that would be disregarded in smaller estates or if there were relevant competing claims:
For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance.[12]
[11][1966] VR 404, 414–5.
[12][2013] VSC 35 (19 February 2013) [69] (citations omitted).

Adult children

Although it was long the position that for adult children, and in particular adult sons, ‘some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act’,[13] this is no longer the case.[14] Instead, the Court must, as with all applications under the Act, consider the responsibility of the deceased to the applicant, having regard to the factors set out in ss 91(4)(e)–(p).[15] In Walsh v Walsh, Hallen J helpfully summarised a number of general principles in relation to claims made by adult children:
[13]Re Sinnott (dec’d) [1948] VLR 279, 280–1 (Fullagar J); Hughes v National Trustees Executors and Agency Co of Australiasia Ltd (1979) 143 CLR 134, 147 (Gibbs J); Anderson v Teboneras [1990] VR 527, 538 (Ormiston J); Niehoff v Niehoff [1995] 2 VR 356; Grey v Harrison [1997] 2 VR 359; Collicoat v McMillan [1999] 3 VR 803 (Ormiston J).
[14]Blair v Blair (2004) 10 VR 69, 78–9 (Chernov JA).
[15]Allan v Allan [2001] VSC 242 (25 July 2001) [67] (McDonald J).

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.

(d) If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons.
(e) There is no need for an applicant adult child to show some special need or some special claim.
(f) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.
(g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim.
(h) Although some may hold the view that equality between children requires that ‘adequate provision’ not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court’s determination of an applicant’s case.
(i) There is no obligation on a parent to equalise distributions made to his, or her, children so that each child receive benefits on the same scale as the other. There is no standard measure for the extent of the duty owed by a parent to a child.[16]

[16]Walsh v Walsh [2013] NSWSC 1065 (12 August 2013) [121] (Hallen J) (citations omitted). Where his Honour refers to the Act, it is a reference to the Succession Act 2006 (NSW). However, the same principles would apply in the context of the Victorian regime.

A common issue in examining the responsibility of a testator to provide for an adult child is the nature and extent of the continuing relationship. In Kleinig v Neal (No 2), Holland J opined:

Differences of outlook between different generations is not exceptional, it is the general rule so some friction between parent and child or disappointment in a parent’s hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the Court to consider whether it has been performed.[17]

[17][1981] 2 NSWLR 532, 540 (Holland J); Vincent v Rae [2006] VSC 346 (22 September 2006) [97] (Hansen J).

A further issue in the provision for adult children is where the contest is between siblings, an issue on which Basten JA, in Phillips v James, recently noted:

There is probably a reasonable level of acceptance for the view that, other things being equal, siblings should be treated broadly equally. Unfortunately, other things rarely are equal. One sibling may have shown devotion and care to the testator over a long period; another may have had minimal contact of any kind during his or her adult life. One sibling may have acted responsibly in relation to his or her own family, another as a wastrel.
The latter example highlights a particular difficulty: the responsible sibling (who may have been favoured by the testator) may be better off than the other and less in need than the other who has made nothing of whatever opportunities were available. One approach in the latter case is to say that the wastrel should not expect more, despite being in greater need, than a proportionate share of the estate. In relation to the former case, involving the inattentive or distant sibling, a less than equal share may be thought appropriate.[18]
[18][2014] NSWCA 4 (6 February 2014) [113]–[114] (Basten JA).

Acrimony and estrangement

Although the Act no longer provides that the Court may refuse an application if the character or conduct of the applicant was such as to disentitle him or her from any provision,[19] character and conduct remain relevant to reduce or entirely disentitle an applicant.[20] Yet character and conduct is relevant, in truth, only to the extent it alters the responsibility of the testator to provide — conduct directed towards the testator, and was relevant to ‘their mutual association and the closeness of the bond existing between them’.[21] In Collicoat v McMillan, Ormiston J expressed his view as to the proper relevance of the testator’s conduct:

Their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator’s obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour. ... It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.[22]

[19]Administration and Probate Act 1958 s 96(1) repealed 20 July 1998.

[20]McKenzie v Topp [2004] VSC 90 () [39] (Nettle J).

[21]In Re Buckland [1966] VR 404, 413 (Adam J).

[22][1999] 3 VR 803, 817.

The classic case concerning the conduct of the applicant is that of an estrangement. In Pontifical Society for the Propagation of the Faith v Scales, the High Court rejected a claim where there had been no contact between the testator and the claimant for a period of over 40 years,[23] although in other cases courts have rejected the notion that ‘the bare fact of paternity’, without more, cannot give rise to a claim.[24] Hallen AsJ,[25] as his Honour is want to do, provided a useful précis of the principles relating to estrangement in Malone v Runge:
[23](1962) 107 CLR 9, 20 (Dixon CJ).
[24]Lo Surdo v Public Trustee [2005] NSWSC 1186 (23 November 2005) [63] (Hamilton J); Nicholls v Hall [2007] NSWCA 356 (13 December 2007) [43], [48] (Mason P, Hodgson & McColl JJA).
[25]As his Honour then was.

(a) The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case.
(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act.. In Palmer v Dolman Ipp JA, after a review of the cases, observed that:
... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.

(c) There is no rule that irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to ‘ample’ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’.
(e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter:
If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.

(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court’s discretion under … the Act to make a family provision order where the jurisdictional requirements … are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration.
(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made.
(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, [the Act] permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time.[26]

[26][2012] NSWSC 1032 (10 September 2012) [68] (Hallen AsJ) (citations omitted).

In Andrew v Andrew, Basten JA endorsed the explanation given by the Hallen AsJ (the trial judge) of estrangement:

As explained by the primary judge, the term ‘estrangement’, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the ‘natural’ process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience.[27]
[27][2012] NSWCA 308 (28 September 2012) [40] (Basten JA).

Statements by the testator

Where a testator has made statements about the exclusion of the applicant, or statements relevant to the character and conduct of the applicant, the law is that:

It is clear that under the rules of the common law a statement by a testatrix that her son has been guilty of misconduct, and for that reason she has excluded him from any benefit under her will, is not admissible to prove that the son was in fact guilty of misconduct.
…
The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said that or believed was true.[28]

[28]Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 149–150 (Gibbs J).

The introduction of s 94(c), which allows the Court to acceptance evidence ‘of the deceased person’s reasons for making the dispositions in his or her will’ and ‘for not making proper provision for the applicant’ does not change the position. Although the Court may accept that evidence, may accept that those were the reasons for the deceased disposing of his estate in the manner chosen, and may give weight to those reasons under s 91(4)(p), they are not evidence of the truth of the allegations they contain.

The evidence
The early years

The plaintiff was born on 24 July 1942. When he was born, his mother was living in Elsternwick and his father was a prisoner of war in Indonesia. The plaintiff first met his father after the war ended in 1945. The plaintiff said that, according to his father, they never got on from the first day they met, and this stuck in his father’s mind until he died.

The plaintiff was aged three when his father arrived home from the war. Until then, the plaintiff had only ever had his mother as a parent. All of a sudden, the plaintiff found himself sleeping in another room, and there was another man in the house. The plaintiff said that he was told that when he met his father for the first time, he threatened his father, although he obviously could not recall this event himself.

The plaintiff said that even up until he died, the deceased would talk about when he first met the plaintiff in 1945. That this appears to be the case is evidenced by the contents of a letter dated 13 September 1991, typed by the deceased when he was aged 78 years, to the plaintiff and his wife as follows:

I came back in Sept/Oct 1945 from the Pacific War after almost 4 years elsewhere and tried to start family life again with your Mother and you David, then about 3 ¼ years old. The first morning your Mother and I woke up with loud kitchen noises and immediately after that, you rushed into the bedroom with a kitchen knife saying: ‘Mum, cut his throat’.

The plaintiff always had a strong bond with his mother and that bond never wavered throughout her life. The plaintiff said that his father never forgot this and he thought his father was always jealous of the close bond he had with his mother. The defendant agreed the plaintiff had a good and strong relationship with his mother and that it endured for the whole of their mother’s life. In another letter dated 2 February 1988 to the defendant, typed by the deceased when he was aged 75 years, the deceased referred to that close bond when he wrote:

Throughout all those years and a multitude of diverse problems (which I do not remember clearly) Mum adored [the plaintiff], he was the apple of her eye until she passed on. This deep-rooted love became evident during the tape I made when Mum was so violently ill in May 1976.

His view was also repeated in his letter dated 13 September 1991 to the plaintiff and his wife when he said:

Your Mother loved you very much and even on the tape which I took a few weeks prior to her passing on, we talked about our life and our children and she glorified you being such a good clean boy.

The defendant was born four years after the plaintiff, in 1946. She does not remember a great deal of her early years, apart from her father not being in a good state from of his war injuries.

In about 1948, the family of four moved to Indonesia where the deceased worked in Jakarta for Hagemeyer, a Dutch importing and exporting firm. The plaintiff went to kindergarten in Jakarta. After a time in Indonesia, the family moved to Singapore where when he was aged six or seven years the plaintiff was sent to boarding school in Malacca. The plaintiff said that he would have preferred to have stayed at home but his memory of boarding school was that everyone got on and it was good fun. He boarded at school in Malacca for 12 months, during which time his parents visited him once or twice.

In cross-examination, he agreed that when he was about six years old, his father arranged for him to see a psychologist. He thought his father had arranged this because their relationship was not very good. In his letter dated 2 February 1988, the deceased referred to taking the plaintiff to a Dutch psychiatrist and psychologist in Jakarta when the plaintiff was about eight years old which confirmed what the deceased described as the plaintiff’s ‘negativism’ towards the deceased which ‘dominated our relationship over the years’.

The family moves to Australia

After 12 months in Singapore, the family moved to Sydney where they lived with their uncle for 12 to 18 months. During that period, the plaintiff went to a local primary school. After about 18 months, the family moved to a rented home in Cronulla. The plaintiff lived at home for a couple of months until he was told by his father that he would be boarding for his sixth year at school at St Bernard’s College, a Christian Brothers College in Katoomba. This decision was not discussed with the plaintiff and he did not want to be at the school.

At the school, he was punished for talking in the dining room. He was slapped by the brothers with the slipper as well with either a strap or a ruler with a brass edge on it. He went home about twice a year and never on the weekends. His parents visited him once during the year. He said that he missed his mother but not his father, whom he described as ‘someone to stay clear of’. The defendant said that the plaintiff was sent to boarding school at Katoomba because there were problems between the deceased and him. At this time, the defendant would have been in about the second grade at school.

After a year at school in Katoomba, the family moved to Melbourne, at first renting in Elsternwick and subsequently to their own home in East Brighton. The plaintiff attended school at Gardenvale Central.

In cross-examination, the plaintiff was taken to a paragraph from his father’s typewritten letter dated 13 September 1991. In that letter, his father wrote:

In Jakarta (you were [about] 11 years old) we took you to doctors and specialists you being recalcitrant, spiteful and uncontrollable. A psychologist diagnosed a ‘negative in aptitude’ and he warned us that the process of gradual improvement would take a long time.

The plaintiff denied that, at the age of 11 years, he had problems with being spiteful to others, was uncontrollable or recalcitrant. He said that he never had a fight at school, he did not have problems with friends and he still has friends from his school days.

After leaving secondary school, the plaintiff went to the Moorabbin Institute of Technology. He said that he was not a brilliant scholar, and the one thing he wanted was to be a motor mechanic. While he was at school at Gardenvale and Moorabbin, he lived at home with his parents. After finishing at Moorabbin Institute of Technology at age 16, the plaintiff worked as an apprentice motor mechanic in Huntingdale. He did not know if his father was happy with him being a motor mechanic because his father was not a person who praised people. The plaintiff could not remember being praised by his father at any time for anything and said that whatever he did was never agreeable to his father.

Discipline in the family

The plaintiff said that his father started being violent towards him when they lived in Indonesia. When he was young his father, to punish him, would hit him with his hand either across the backside or across the face and head. He said that this usually occurred if he made a mistake in his homework. His father would set him homework and, if he answered it incorrectly, his father would either slap him over the head or strike him on the backside. In cross-examination, the plaintiff agreed that when his father was setting homework for him, he was trying to assist him to learn.

The plaintiff described his father as stern man who adopted ‘old school’ standards. His father, he said, was as a man of principle, and was the ‘boss’ in the family. His father made the decisions in the family and, once made, they were not changed. In cross-examination, the plaintiff said that his father was a ‘strict disciplinarian’. He denied inventing his allegations of his father’s violence towards him as a means of criticising his father.

The plaintiff said that he feared his father when he was young, but that his mother was very protective of him. The plaintiff said that his father was not violent towards his mother but that sometimes she was hit by his father when she tried to intervene between his father and him. The deceased’s letter dated 13 September 1991 supports the plaintiff’s claims of his mother’s protectiveness:

Over the years [your mother] always tried to protect or defend you whenever there was an argument about your behaviour, and there were many.

During his teenage years, the plaintiff’s father continued his violence towards him. The deceased would drag the plaintiff by the hair, pin him against the wall and punch him. This stressed his mother out. The plaintiff became used to his father’s punishment over the years. He said that he was not hit every day, but that if he did anything wrong, his father solved it by hitting him. The plaintiff did not fight back when his father hit him and never raised his voice, swore at him, or called him names. He said that this was easier as he did not want provoke his father any further. The plaintiff did not shout at the deceased because it would have been of no use as his father would just shout louder.

The plaintiff learned to simply walk away from his father, as his father was not a person who was comfortable talking about conflict. In cross-examination the plaintiff said that, on many occasions as a teenager, he deliberately avoided contact with his father because they were ‘not always happy’ meetings and he did not want to be with someone he did not particularly like. There were many occasions where the plaintiff just switched off and decided not to ‘boil and bubble’ about what happened between them. He said that he wanted a peaceful life and so he learned to stay out of his father’s way, but that otherwise he felt that he had a pretty happy family life.

When he was living at home as a teenager, his father required him to be home by 11pm. If he were one minute late, his father would lock the door so he could not get inside the house and he had to sleep elsewhere.

The plaintiff gave two examples of provoking his father when he was about 15 or 16 years old and living at home:

(a)The first was when his father found out that he had been caught stealing a packet of cigarettes from a milk bar. His father took him back to the shop where he stole the cigarettes and made him pay for them. When they arrived home, his father gave him ‘a few punches’. The defendant said that her father told her the plaintiff had stolen cigarettes and alcohol but agreed that she only knew what her father told her. In his letter dated 2 February 1988, the deceased referred to this event as occurring at a milk bar, making it unlikely that the incident included alcohol.
(b)The second was when his father sent him to get a haircut and he got a trim, rather than a cut. His father then cut the plaintiff’s hair himself, making it much shorter and leaving it in clumps. The defendant described this incident as the plaintiff defying his father who then took to the plaintiff’s hair and cut it for him. She said that the plaintiff had no choice other than to accede to his father’s discipline.

The defendant said that she never witnessed her father thrashing the plaintiff but she did witness arguments between them, the earliest being from when she was aged 7. The defendant said that she thought the relationship between her father and the plaintiff was turbulent. There were very serious arguments that were aggressive and unpleasant. She said that the plaintiff was belligerent and that her father tried on several occasions to get him to see reason. She could see that there was a lot of animosity there.

The defendant said that her father was not a violent man at all and that he tried to rationalise with the plaintiff. She also said that her father was ‘big on discipline’ and that it was very important to her father that he was respected and obeyed by his children. He was very strict, and if his children did not do what he asked or did not respect and obey him, he would take it into his own hands and there would be consequences that were ‘not pleasant’.

She said that the plaintiff did not respect and obey his father, and things ended up getting worse. Her father tried his best to improve his relationship with the plaintiff. For example, when the plaintiff joined the Boy Scouts, her father was quite heavily involved. In cross-examination, the plaintiff agreed that he was a member of the East Brighton Boy Scouts and that the deceased was a public relations officer in the Boy Scouts. The plaintiff said that he moved through the ranks in the scouts organisation, rising to the top level as a ‘rover’, and was not involved with his father in the Boy Scouts. He said that he did not have any problems with any of the other scouts. In his letter dated 13 September 1991, the deceased referred to becoming the

secretary of the Moorabbin Parents Association as well as Public Relation officer East Brighton Boy Scouts for a number of years but problems over there continued which I was able to overcome by talking and persuading and doing things for them.

The defendant did not ever have a relationship with her brother at all. She said that he was never at home, he was very distant with her, they had nothing in common and she never felt close to him. Mrs Moss said that she did not remember the relationship between the plaintiff and her father and she does not recall witnessing any incidents between the two of them when she was a young child.

The defendant said that, with her mother and brother, her father took them to concerts and they went on picnics. Her father played tennis and soccer and had many interests. The plaintiff said that he and his father might have gone to the football once. The plaintiff would go to tennis with his father every week at the Mentone Tennis Club because on these occasions the deceased would allow him to drive the family car.

Mrs Moss said that, as a young child, she did not spend much time with her father. He went to work and, on the weekends, he would work in his office at home. She said that they did not go on outings and do things as a family.

The deceased’s heart attack

The defendant said that when she was 12 years old their father had a severe heart attack and he was told to remain in bed and rest. The defendant claimed she and her mother provided support to her father in the home. The defendant’s support consisted of helping her mother with cooking, vacuuming, cleaning and looking after her sister. She said that the plaintiff did not provide any support. Her father was unwell for a period of time, and the defendant thought it took him well over four years to sort himself out and get back on track. She agreed that he did return to work and continued to work until 1976.

In cross-examination, the plaintiff said that his father had a mild heart attack when he was playing tennis on one of the occasions when the plaintiff was not present at the tennis club. In re-examination, the plaintiff said that his father’s heart attack occurred when the plaintiff was about 16 or 17 years old. The plaintiff said that his father was not unwell after his heart attack. His father was ‘pretty fit’ before his heart attack and was still fairly fit afterwards. After his heart attack, his father had some time off and then he went back to work. He ultimately retired when he was about 70 years old. The plaintiff said that his father was a sporting person in his younger days. He boxed, rowed, played soccer and tennis and would exercise in the mornings, doing push-ups and similar activities.

The plaintiff leaves home

When the plaintiff was 17 or 18 years old, he purchased his own car. At around the age of 18 years, he moved out of home. He left home because of a confrontation that occurred between his mother, his father and himself. He said that his father ‘cracked it’ and said that to his mother ‘either he goes or I go’. The plaintiff thought the reason his father said that this was because of the strong bond between his mother and him. When the deceased gave this ultimatum to the plaintiff’s mother, she insisted that he stay. However, the plaintiff refused, and told his mother ‘no, you’re married to him, I’ll be fine’. The plaintiff believed the deceased would have carried out his threat to move out because, whenever there were arguments with his wife, his father would usually go to the RACV Club for a couple of nights. The defendant said that she did not ever remember the deceased leaving the house during any conflicts or going elsewhere to stay overnight.

In response to a suggestion put in cross-examination that his father had not given any such ultimatum to him but rather a decision was arrived at between the plaintiff and his mother that he should go, the plaintiff replied he ‘made the choice’ and insisted the words used by his father about leaving were ‘either him or me’. This was said to his mother, not to him. The plaintiff has no doubts about his recollection of this event.

The defendant agreed that she was not present when the ultimatum to move out was given to the plaintiff. Although not present, she nevertheless said that the plaintiff told his father that he was moving out, and that it was his choice to do so. At this stage, her father said that he had given up trying to give values to the plaintiff because he refused to listen to the deceased or take any notice of him. The defendant said that her father told her mother and the defendant that it was time he moved out, that he was old enough to do so and that it would make life a lot easier for them to function as a family.

The plaintiff said that after he moved out of home, he lived in various boarding houses. He kept in touch with his mother and went home to have lunch with her three or four times a week when his father was not at home. His mother would also do some washing and ironing for him because he was boarding in a bungalow.

Mrs Moss was quite young when the plaintiff left home, having been born 14 years after the plaintiff, but said that she remembered the drama of the plaintiff leaving home. She remembered her mother’s grief that he was no longer living at home. She said that she and her mother would visit the plaintiff at his boarding house to bring him food, and her mother would do his ironing.

In cross-examination, the plaintiff said that after he moved out of home, things stayed the same with his father. If the plaintiff went to the family home and the deceased was there, they were civil and said that ‘hi’ to each other. The plaintiff said that he did not avoid his father on purpose, but did say that he arranged to meet his mother at lunchtimes because he knew his father would not be there. He said that if he were invited home for a meal at night, the deceased would not be happy about him coming home and being fed. For the plaintiff, that was no ‘big deal’.

The defendant said that she did not know where the plaintiff went to live when he moved out other than she knew he boarded with someone. The defendant never saw the plaintiff come back home and never saw him at all after he moved out of home. She did not stay in contact with the plaintiff before he was married in 1964. The defendant agreed that she lived away from home for the two years before the plaintiff married in 1964 and she had no idea who visited home while she herself lived away from home. She did not deny that the plaintiff may have visited home during the daytime. She also agreed that before she moved out of home, she was at school during the day and would not have known if the plaintiff visited his mother during the day.

The defendant’s relationship with the deceased

The defendant said that the relationship between her and the deceased had been ‘up-and-down’ from the time she became a teenager. An example of their relationship arose when the defendant wanted to pluck her eyebrows and the deceased did not want her to do so. The defendant plucked them anyway. In response, the deceased shaved off the end bits of her eyebrows. The defendant said this was just her father’s way, and the plaintiff agreed this was a typical reaction from the deceased when things did not go his way. The defendant said that when her father shaved her eyebrows, she sat there and allowed him. She did not resist in any way, nor did she complain.

Mrs Moss remembers her father’s relationship with the defendant as very argumentative and the defendant being a very difficult person.

The plaintiff’s marriage and afterwards

The plaintiff met his future wife, Joy, in 1961. They married on 5 September 1964. Mrs Moss was aged 7 years when the plaintiff married and she remembers the wedding because she was a flower girl.

The plaintiff said that he asked the defendant to be a bridesmaid at his wedding. The deceased told them if the defendant came to the wedding, he would not come, as he had fallen out with her. The plaintiff said that the defendant had a ‘big blue’ with her father and had thrown her out of the house. The falling out occurred because his father had asked her to attend to his mother, who was not well. The defendant had said that she was too busy as she was going on a holiday to Rye with her boyfriend. The deceased told the defendant if she did not do what he asked, she could not come back into the house. The defendant, who the plaintiff said that had always been headstrong, went on the holiday anyway. The defendant and the deceased had previously had many clashes and he ended up not letting her back home.

Because of this fight, and because of the deceased’s threat not to attend, the plaintiff and Joy asked the defendant not to come to the wedding. They were not happy about it and neither was the defendant, but the plaintiff felt he could not have a wedding without both his parents being present. His parents attended his wedding and the defendant did not. The plaintiff said that by the time he married, the defendant was not living at home.

The defendant denied she was ever requested by her father to stay home on a weekend or cancel a proposed weekend away. She said that she moved out of home because her father did not approve of her boyfriend, Gary Turner. Her father did not like him and he gave her an ultimatum - either stop seeing him or leave home. She said that she had been going out with Gary Turner for 9 months before her father told her he did not want her to continue the relationship. In response, she left home and went to live with Gary Turner’s family, staying there for three years. The defendant thought she was aged about 17 years when she left home and did not see her father for about 18 months after the incident as they were estranged. She initially said that her parents told her that the plaintiff was getting married, then said it was her mother who told her and it was her mother who maintained a bridge between each one of her children. The defendant said that this period was the one and only time she and her father had a ‘really bad’ falling out.

The defendant agreed that she did not attend the plaintiff’s wedding. She said that she was invited, but was not asked to be a bridesmaid, nor was it mentioned to her that she be one. The defendant said that the plaintiff and Joy did not discuss being in the bridal party with her. The plaintiff’s wedding occurred at a time when her father was very upset with her and they were not talking to each other, and he said that he would not go to the plaintiff’s wedding if she attended it. The defendant said that she was aware that if she went to the plaintiff’s wedding, her father would not go because he was, in her words, ‘a bit of a control freak’.

After his marriage, the plaintiff and his wife continued to visit his father and mother, who had by then shifted to East Brighton. The plaintiff and his wife had meals with his parents on a Sunday night for a number of years. In the early years of his marriage, the plaintiff felt his relationship with his father was ‘okay’. He said that his mother was happy, and while sometimes his father was ‘okay’, sometimes he was not. He said that his father was a ‘sulker’ and would disappear from time to time. He could also be annoying and sometimes the plaintiff would have a ‘bit of a run in’ with him.

The plaintiff and his wife lived with the plaintiff’s parents in East Brighton for about a month when they were expecting their first child, and at that time they had family dinners together. After they moved out, his mother was the one who invited them over. The plaintiff maintained the invitation was from both of them, because if his father did not want them to come, his mother would not have invited them.

In 1965, the plaintiff and his wife had their first child, Steven. His mother was very keen on her first grandchild. His father was not displeased about the birth of his first grandchild but did not really like children. His mother was a doting grandmother. Their second son was born in 1966. His mother continued her frequent contact with the grandchildren but his father’s attitude towards the grandchildren did not change.

The defendant’s first marriage and education

The defendant married Gary Turner in 1967 when she was aged 21 and no longer needed her parents’ consent to the marriage. Mr Edwards was the best man for Mr Turner. She invited the plaintiff and his wife and they attended the wedding, as did her parents.

The defendant said that when she told her father that she was marrying Gary Turner, he was not happy. She then said that when her father realised she had made up her mind that they would marry, he accepted that. He told her he was not in favour of it but that it was her choice. The defendant said that her relationship with her father went back to a normal relationship, and indeed a good relationship. The defendant did not move back home before she married Gary Turner.

The defendant’s first tertiary qualification was a diploma in design and technology. She said that her father placed great weight on tertiary study, and he bought her a valuable pottery kiln after she obtained her diploma. She agreed her father did not do anything like that for the plaintiff or Mrs Moss.

The parents’ move to Sydney

The day after the defendant’s wedding to Gary Turner, the deceased, his wife and Mrs Moss, then aged 11 years, moved to Sydney as a result of the deceased’s work transfer within Hagemeyer. The plaintiff said that his mother was not happy about moving to Sydney.

After his parents moved to Sydney, the plaintiff said that his mother came to Melbourne whenever she could or whenever she was allowed to by the deceased, which was probably about once a year. The plaintiff said that it was always a battle when his mother came to Melbourne because the defendant did not want to share her with him. His father did not ever come with his mother on any of these visits but he did come to Melbourne on his own.

The plaintiff and his wife kept in touch with his parents by telephone. Joy also wrote to the plaintiff’s parents, and the plaintiff would often add a note on any card or letter. The plaintiff called his mother about once a month and his mother would ring him about once a month. The plaintiff did not have any telephone conversations with his father while his mother was alive and living in Sydney.

Mrs Moss said that her mother was not happy with the move to Sydney because she would be leaving her two of her children in Melbourne. She was also a grandmother and fretted that she would not be able to see her family. At the time of the move to Sydney, the plaintiff was married with two children and the defendant had just married.

Mrs Moss said that after they moved to Sydney, she and her mother would travel to Melbourne to see the plaintiff and the defendant and their children. Her father would normally stay at home. She remembered telephone calls to and from both the plaintiff and defendant to her mother and said that all of them were very close to their mother. She said that her mother did all the communication with the children. Mrs Moss did not recall her father making any calls to the plaintiff and defendant.

The defendant said that after her parents moved to Sydney, she continued to have contact with them. She and her family drove to Sydney when they could. In cross-examination, the defendant said that between 1967 and 1976, she travelled by car to visit her parents in Sydney about three times year, primarily in the school holidays. By 1976, the defendant had separated from Gary Turner and had two children, aged three and five years old. She said that she stayed with her parents when she went to Sydney. The defendant was unable to recollect how many times she actually travelled to Sydney, nor could she recall on how many occasions she left the children in Melbourne and on how many she took them to Sydney with her. She could not recollect the sleeping arrangements when they stayed at her parent’s home in Sydney. Mrs Moss lived at home with her parents in that period.

The deceased, his wife and Mrs Moss would also travel to Melbourne. When they did, there were barbecues and dinners where they all came together as a family. The defendant said that when her mother came to Melbourne she stayed with her, but that she would always visit both the plaintiff and her. Contrary to the plaintiff’s evidence, the defendant insisted her father came to Melbourne with her mother two or three times, but while her mother was alive, he did not come to Melbourne on his own. On the other hand, her mother would come to Melbourne on her own.

The defendant said that her father did not want her to tell the plaintiff that he was coming to Melbourne. Although he said this, she claimed she would always tell the plaintiff when their father came to visit in Melbourne because they always stayed with her and she thought it might be good for them to make some contact. The defendant said that she never forewarned her father that the plaintiff was coming over, because if she did, he would have left the house. To warn him, she said, would have defeated the purpose. In her eyes, there was no point in trying to convince the deceased to see the plaintiff as he would not be swayed.

On one of the occasions when the plaintiff and his wife came to her house while her parents were visiting Melbourne, the defendant said that there was an altercation between her father and the plaintiff. She alleged her father said to the plaintiff ‘why is it that you never call me “Dad”, you always say “hey”’. She said that after the deceased said this, the plaintiff lost his temper and walked off. On another occasion, the defendant said that Mr Edwards told her that something had occurred at a barbecue and the defendant thought her father was visibly upset about whatever it was that happened.

The death of the plaintiff’s mother and afterwards

In the 1970s, the plaintiff’s mother was diagnosed with leukaemia. She died in 1976, when she was just 64 years old. The plaintiff said that when his mother was ill, Mrs Moss was still a teenager yet she stayed with her mother and looked after her as if she were a nurse. In all, over the period of 12 to 18 months before she died, the plaintiff and his wife visited his mother three times in Sydney. Mrs Moss said that both the plaintiff and defendant came to see their mother during her illness.

The defendant disputed that the plaintiff and his wife went to see their mother while she was ill but did not give any basis for disputing this. The defendant agreed Mrs Moss was the primary carer for their mother during her illness and also supported her father that time.

Just prior to his mother’s death, his father called the plaintiff to tell him his mother’s health was not good and that they had better come to Sydney. On his last visit to his mother, she was in hospital and drifted in and out of consciousness. His father, the defendant and Mrs Moss were there. The plaintiff said that when he and his wife arrived, his mother ‘sparked up’ and had a bit of a joke with them. She passed away shortly thereafter, and they stayed in Sydney for the funeral.

After her mother died in 1976, the defendant said that she supported her father, inviting him to come and stay with her in Melbourne. She said that the plaintiff did not provide any support to their father that she was knew about.

The defendant divorced Gary Turner in 1978. The defendant said that, at the time of her separation and divorce, her father provided her with emotional support. He reminded her he had told her not to marry him.

Mrs Moss was aged about 19 years and still living at home when her mother died in 1976. She was still studying and remained living at home for another two years. At some point after her mother died, her father met a woman and they were partners for approximately 12 months. Later on, when he was aged about 66 years, her father began a relationship with another woman called Chris Condonis, who was about 20 years younger than him. The relationship continued until her death in July 2006. Mrs Moss said that Ms Condonis had psychiatric issues and was in and out of psychiatric wards.

The defendant said that about a year after her mother died, her father began a relationship with Ms Condonis. The defendant said that she met Ms Condonis many times. She said that her interaction with her father was good at this time. Her father and Ms Condonis lived in separate houses. She was not a healthy woman and was on a lot of medication. The deceased became her mentor. At this particular time, the defendant said, to her knowledge the plaintiff was not involved in her father’s life.

The plaintiff said that he met Ms Condonis at a wedding. He was aware she was his father’s partner and that it was a relationship of long duration although his father was not living with her. The plaintiff did not have any dealings with Ms Condonis.

Mrs Moss said that her father became ‘a different person’ in his relationship with Ms Condonis. He was very demanding of Mrs Moss in the home, expecting her to do all of the domestic work in the house while he entertained Ms Condonis in a most demonstrative manner. On one occasion, an altercation occurred when Mrs Moss cooked dinner late. The deceased became so angry at Mrs Moss that she chose to move out of home that very night, staying with her boyfriend’s parents until she found a room in a boarding house.

Mrs Moss said that this was the first time she had argued with her father. For reasons unknown to Mrs Moss, her father blamed her boyfriend for the argument. After the argument, he sent her a typed letter saying that unless her boyfriend apologised to him, he was never to come to the deceased’s home ever again. In the letter, her father made certain demands. Mrs Moss said that his approach was very much

You do it my way or the highway. You know he was a man who was black and white; you do it my way or leave. You leave — you walk through that door, don’t come back. He meant it.

Mrs Moss said that she was traumatised by the whole event. Initially, she had nowhere to live and no money. She could not remember how long it was after the argument that she contacted her father, but eventually she did so. Her father did visit her in her boarding house but he never talked about the argument. They kept in regular contact but she said that in many ways it was like dealing with a stranger because her father had changed after meeting Ms Condonis. Mrs Moss said that she had no objections to the relationship, but it did mean that the relationship between her and her father altered.

Soon after the argument with her father, Mrs Moss became engaged to her boyfriend. She asked her father to her engagement party but he refused to go because her boyfriend had not apologised to him. She also asked her father to come to her wedding but he refused and was not open to persuasion. Subsequently, in 1980, she married her boyfriend and, true to his word, her father was not present.

After she married, Mrs Moss continued to have with little contact with her father. She did ring him over the years but said that he was not that open to seeing her because he was involved with Ms Condonis on a full-time basis. Although she did not know whether her father lived with Ms Condonis, she knew they spent almost all of their time together. Mrs Moss described her father’s relationship with Ms Condonis as an intense relationship, and said that it remained so until she died in July 2006. Up until her death, her father took care of Ms Condonis.

After the death of his mother, the plaintiff said that he had some contact with his father, occasionally speaking to him on the telephone. He said that sometimes the deceased came to Melbourne on his own. The plaintiff said that his father did not visit him during this time, although he was aware that his father visited the defendant. The plaintiff said that whilst he and the deceased were not close he did not feel any discomfort in visiting his father.

The defendant said that between 1976 and 1985 she would travel to Sydney to see her father, and they took turns visiting each other for Christmas. The defendant married her second husband, Derek Hanley, in 1984. The defendant said that her father also came to Melbourne for Easter and some family events, such as her daughter’s wedding in 1994. She said that her former husband invited the plaintiff and his wife to the wedding, but that if it was up to her she would not have done so. She also said that her health issues impeded long distance travel for her.

Mrs Moss said that when the defendant’s last child was small, the defendant sometimes stayed with the deceased but Mrs Moss said that it was difficult for the defendant to stay at their father’s house because he had no tolerance for children. He was not a warm person and would blame the defendant’s small child if anything was not in its place in the house. As well, Ms Condonis was at the house most of the time. When the defendant stayed with her in Sydney, Mrs Moss would drive her to their father’s house and either drop her off or stay and spend the day with their father. Sometimes, they would take him out for lunch.

The defendant claimed that after 1976 there was little to no contact between the plaintiff and the deceased. She relied on statements made by the deceased in two typed letters by the defendant:

(a)In the letter dated 2 February 1988, the deceased wrote that over the past decade, the plaintiff had no communication with him. Christmas cards or letters came from the plaintiff’s wife, but there were no letters or words from the plaintiff to him.
(b)In the letter dated 13 September 1991, the deceased also referred to an absence of birthday and Christmas cards, saying that ‘for about 12 years David I did not hear from you at all’.

In response, the plaintiff acknowledged that as far as any letters were concerned, his wife wrote all the letters. He said that he has never written a letter to anybody. He did send birthday cards and Christmas cards to his father but agreed he did not send him Father’s Day cards. However, he continued contact with his father by telephone in that period.

The plaintiff was also taken to another typed letter from his father dated 14 January 2002. In that letter, his father referred to the fact that during the plaintiff’s recent holiday in Queensland, the plaintiff had ‘missed the unique opportunity on two occasions to visit [his] mother’s grave at the Ryde Crematorium’ when he had plenty of time to do so. His father said that ‘for a first born son to ignore an [sic] unique opportunity to pay respect to his Mother who loved him so much is a lousy attitude.’ The letter went on:

Incidentally some 5–6 years ago your son Steven came to see me on his way back/to Queensland and on that occasion casually mentioned that I had sent you a letter disinheriting you. I commented: at no time had I ever written to that effect to you; up until this moment no one knows the contents of my will except the solicitor. However I assumed that you/family had analysed my letter’s contents concluding you had been excluded; you have to be patient.

Included at the end of the letter is typed note to the defendant dated 8 April 2002 stating:

Diana
Steven called on me early March 2002 when I was in Melbourne; he had this letter with him. According to him: His father was trying to heal the conflict; it was my misunderstanding that money/inheritance were involved; his father was not after money/inheritance. Simon was present during this meeting.

The defendant said that the letter came to her attention in-April 2002, because her father sent it to her. Her father did not say a lot about the letter but just wanted her to read it. The defendant’s view was that her father’s mention of ‘inheritance’ in the footnote was him being sarcastic, and she was certain he was not about to ‘build a bridge’.

After receiving these letters, the plaintiff said that he continued to have contact with the deceased by telephone. He and his family also called in to see the deceased when they went on holidays to Queensland. The plaintiff said that at these times, he was well-received by the deceased.

The plaintiff said that he had always tried to talk to his father. Sometimes he was successful, and other times, he was not. He said that the letters sent to him by his father over the years were not happy letters. The plaintiff said that his father was a hard man who never held out an olive branch to him. His father never spoke or wrote to him about how successful he (the plaintiff) was in his work, nor did he encourage him to keep up the good work. He said that the deceased was not interested in hearing from the plaintiff, and that it was hard to talk or communicate with his father.

In reference to the various letters referred to, he described them as his father having a ‘gripe’. He said that his father’s letters were not always full of complaints necessarily, but there was never a positive. An example is contained in the letter dated 13 September 1991 where his father said:

Let us make it now irrevocably official that I am not your ‘Dad’ (which I never was) and you are not my son any longer. You can continue the practice ‘Say …’ or nothing at all when you want to have a chat. I know this will not stir you and perhaps feel relieved without all these complications and non-sense about family life.

He said that his father had tried different things over the years to stir him up and in that way, the letters did not surprise him. It was the sort of thing he expected his father to write. The plaintiff said that he became accustomed to his father’s behaviour. His attitude was to treat it as ‘water off a duck’s back’, otherwise he would have become ‘screwed up’ about it. He said that he never let the letters affect him, otherwise he would have ended up being a ‘nut case’.

Mrs Moss said that her father’s letter dated 2 February 1988 is an example of the sort of letter that her father would send from time to time.

The defendant described her father as a frequent letter writer. She said that his typewriter was one of his favourite things and was well used. She said that he always kept a copy of his letters. She also said that her father gave her the copies of his letters when he moved back to Melbourne.

The family relationships in the new millennium

Mrs Moss separated from her husband in 2000. After that, she started to spend more time with her father. In 2000, she said that he was quite well for his age of 87 years. Although he had arthritis and was a diabetic, he was happy and in his relationship with Ms Condonis. He was busy socially, attended the synagogue, joined Probus, and was a volunteer for charitable work while he was still well enough to drive. The plaintiff said that by 2000, the deceased was having medical problems and his car licence was eventually taken from him. He said that Mrs Moss saw the deceased regularly, taking him to his medical appointments and the chemist.

Mrs Moss said that she made herself available to her father regularly from 2004 onwards and was aware of the support and assistance her father was receiving. She said that their relationship had mended somewhat by 2004. Her father was becoming very frail and, although on the occasions when they met he was polite to her, he treated her more like an acquaintance and did not tell her much about what was happening. Mrs Moss took the attitude that she would take what she could get, and do what she could for him. Mrs Moss said that she cooked for her father and took him food between 2004 and 2006.

In relation to his health and medical support services, Mrs Moss said that her father was also getting daily care support from the United Protestants Association (‘UPA’), an organisation providing aged care facilities throughout New South Wales. Mrs Moss was the liaison point for UPA. Mrs Butler of UPA was her father’s case manager and was in charge of organising his day-to-day care. Before Mrs Butler, Mrs Moss liaised with another lady called Danielle to assist in her father’s care. Mrs Butler remained her father’s case manager until he left for Melbourne in December 2006. Mrs Moss said that it was mainly herself and Mrs Butler who were involved in the care of the deceased. In contrast, the defendant said Mrs Moss was not involved in the support or care of the deceased. The defendant said that she had lot of communication with Mrs Moss about her father and his health. She told her sister that he was getting frail and old and he needed a lot more support.

Mrs Moss said she was constantly on the telephone to the defendant concerning the support their father was receiving. She said that during this period she was close to the defendant and they talked about what should be done to assist their father. They spoke on the telephone and e-mailed each other often. She said she loved and supported her sister and had also asked her father on occasions to support the defendant financially.

By 2003, the deceased was 90 years old and had slowed down considerably. He was a person of habit, so that every day he read the paper, went to the St Ives Shopping Centre where he was well known, and ordered the same meal – a sandwich and a cup of tea with a slice of lemon.

Mrs Moss said that, from 2004 onwards, her father’s health deteriorated quite rapidly, although he was still driving. Mrs Moss took the view that her father should not be driving as he was a danger on the road. In 2005, she contacted the appropriate authorities in order to have his driver’s licence cancelled.

Mrs Moss met her father’s next door neighbour in St Ives, Mrs Zaarour, in 2004 and kept in touch with her. She said that her father had nominated the defendant and Mrs Zaarour as his contact persons with Vitalcall, a service that enabled the deceased to raise an alarm in the event he needed urgent assistance at home. This made sense to Mrs Moss because Mrs Zaarour was next door and the other contact was a family member.

Mrs Moss said that when the defendant travelled to Sydney, she usually stayed with her. Before 2006, the defendant came to Sydney twice a year on average to see Mrs Moss and their father. By 2006, Mrs Moss said her father was suffering from psychosis and was not able to look after himself. In late 2006, he was involved in an incident and, as a result, went into respite care at Kari Court Nursing Home in St Ives (‘Kari Court’), a home for dementia patients. Mrs Moss said that the defendant did not have any involvement in arranging for her father’s care at Kari Court.

[32][2013] NSWSC 1895 (17 December 2013) [118].
[33][1968] 2 Lloyd’s Rep 403, 431.

The plaintiff, Mrs Moss and Mrs Butler were credible witnesses

The plaintiff impressed me as a credible and truthful witness. The plaintiff appeared to find it difficult to speak about his early life and the issues in his relationship with his father before he left home. He appeared to find it particularly difficult when giving evidence of his father’s approach to disciplining him. I accept that he felt a natural reluctance to speak about these issues. What he did say was candid. Although the defendant contested his evidence of a physical approach to discipline, all of the deceased’s children gave evidence that the deceased was a strict disciplinarian, and that this made their relationship with him difficult. This corroborates the plaintiff’s account.

I also found Mrs Moss to be an impressive and reliable witness. She too had to deal with her father’s discipline when she was much older. Bearing in mind the attitude of the deceased, it is to the credit of both the plaintiff and Mrs Moss that they were able to maintain and continue a relationship of sorts with their father until his death.

I am fortified in my conclusions as to the credibility of the plaintiff and Mrs Moss by the evidence of Mrs Butler. She is independent of the family and came to know the deceased well. As a professional carer, she was able to bring a degree of expertise and understanding to her observations and conclusions concerning the deceased and his relationship with his three children.

The defendant was not a credible witness

In respect of the defendant, I accept that she has a number of health and medical issues, including depression and anxiety. In assessing her credibility, I have taken those issues into account. This possibly made it difficult for her to recall events with clarity from time to time. It also possibly affected her concentration during the proceeding. On many occasions, she gave combative or argumentative answers, and on other occasions, her answers were non-responsive or gratuitous. On a number of occasions, I had to speak to about her behaviour whilst giving evidence. Her memory of events was selective and, in some instances, contradictory or unreliable. Generally, I found that she lacked credibility.

An example of the defendant’s lack of credibility was her response to the deceased’s letter to her dated 2 February 1988. The content of the letter insofar as it refers to the defendant is not complimentary. Without setting out the detail, it is sufficient to refer to the deceased’s conclusion concerning the defendant’s character:

You, Diana, could have been the pick of the crop were it not for your determination to always have it your way, whatever the cost to others, but ultimately at the expense of your credibility and – which you do not fail to mention – integrity. Honesty and fidelity are precious qualities and should within short replace masquerades, else in times to come you may find yourself in very deep waters. You don’t care to hurt people.
…
You astounded me with your plan to claim a pretended loss of a TV camera and it is not impossible to think that you went ahead with it. It is a character component., part and parcel of ‘integrity’.

The defendant’s response to this letter was telling. She said that the date on this letter was not correct and she did not recall receiving it. Initially she said that she found it in the bundle of letters she discovered when she cleaned out her father’s property in St Ives. She then denied this and said that she had first seen the letter when it was exhibited to an affidavit filed in this proceeding. She then claimed that Mrs Moss found the letter in a bundle of the deceased’s possessions ‘when she entered my father’s home and stole $78 000’. She also said that she thought her mother had persuaded her father not to send the letter to her. This was notwithstanding that the death of her mother is referred to throughout the letter and there are references to her husband, Derek, by whom she had a child in 1982 and whom she had married in 1984.

In addition, I consider that the defendant’s credibility was affected by her overwhelming sense of entitlement concerning her father’s estate. On many occasions, she sought to demonstrate that she was the deceased’s favourite child. In particular, she relied on two letters of the deceased to explain why her father had made her the principal beneficiary of his estate.

The first is a typed letter dated 31 October 1999 to Mr Jan Berg, Registrar of NESWA (an organisation for Dutch returned soldiers) concerning the essential details of his funeral arrangements. In the letter, her father enclosed papers describing his war experiences and asked Mr Berg to pass the relevant papers to the defendant so that his family would get the full picture of his war experiences. The defendant said that her father gave her a copy of this letter either at Christmas 1999 when she was staying in Sydney or when her father moved to Melbourne at the end of 2006.

The second letter is a handwritten letter dated 6 February. The year of the letter is either 2001 or 2007, and although the original of that letter was produced, it is difficult to determine the year it was written. The defendant said this letter was given to her by her father because he wanted to make sure that she would receive his legacy for all that she had done for him over the years. The defendant thought she received the letter in 2007, then she said she thought it was in 2001.

Although some of the handwriting is unclear, the letter states as follows:

Dear Diana
You will inherit an estate which will give you and family a safe guard for practically the rest of your life.
I therefore strongly advocate that any investments will be guided by an expert financial adviser or brokers.
In your situation you will [indecipherable] your life. Invest in your name only Diana Louise Hanley-Brandon; only you are the decision maker.
You have the option to sell the house or let it out at about $700 minimum a week, which will give you an annual return of approx. $35 000 minimum gross; or even move in yourself and let the house at Holyrood Street.
Do not give furniture and paintings away ~~unless there are some~~ [unclear] ~~prices~~.
You deserve my decision: you are like my mother in looks and character. Give my father and mother’s portraits a special place in your home. I love you.
Dad

The words ‘signed by me’ and the deceased’s signature was written on the side of the letter. The other letters written by the deceased do not have those words, or indeed anything similar, written at the end of the letter.

On balance, I consider it more probable that the letter was written in 2007, for the following reasons:

(a)all the other letters written by the deceased are typed. They are written when the deceased lived in Sydney. There is no evidence that the deceased took his typewriter to the Brighton Regis and, considering his state of health at that time, it would be unlikely that he did so;
(b)the letter speaks of the defendant inheriting the deceased’s estate. If the letter were written in 2001, the defendant would from that time have known she was inheriting her father’s estate. However:
(i)in her email to Mrs Moss dated 1 December 2006 she complained of her father’s lack of financial generosity towards her. Had she believed that she were to inherit the bulk of his estate, it is unlikely she would have written this; and
(ii)the defendant gave evidence was that she did not know the contents of her father’s will until he moved to the Brighton Regis;

(c)the deceased wrote in his letter dated 14 January 2002 ‘up ‘til this moment no-one knows the contents of my will except the solicitor’. If he had in 2001 written to the deceased telling her that he would inherit under his will, this letter would be inaccurate;
(d)there is no evidence of what was provided by any previous will of the deceased other than the will the subject of this proceeding, dated 21 March 2005. Unless that earlier will also left the residuary of the estate to the defendant, this letter could not have been written prior to 2005; and
(e)although in 2001, the defendant lived in Holyrood Street and did not live there in 2007, from 2004 onwards, the deceased was suffering from dementia, which, by 2007, was diagnosed as severe. That part of the letter can be explained by the fact that it is possible that by 2007 the deceased no longer remembered the defendant’s current address.

The defendant relied heavily on these two letters to justify being the principal beneficiary of her father’s estate. However, the will provides that she is the principal beneficiary, and the validity of the will is not in issue. The defendant did not need to justify her inheritance under the will. Rather, her insistence on the significance of this evidence is itself evidence of her own strong view as to her entitlement. That sense of entitlement has possibly clouded her judgment in respect of the principal issues to be determined in this proceeding.

Accordingly, where there is a conflict between the defendant’s evidence and the evidence of the plaintiff and Mrs Moss, I accept the evidence of the plaintiff and Mrs Moss and not that of the defendant.

Mr Edwards was not a credible witness

In respect of Mr Edwards, I do not accept his evidence for the following reasons. First, I find that his evidence-in-chief concerning the strength of his relationship with the deceased was misleading. He claimed to be a friend when, in fact, he was no more than an acquaintance. Secondly, the purpose of calling him was to give evidence about an alleged anti-Semitic incident by the plaintiff that he overheard over 40 years ago at a barbeque. His evidence in regard to the incident was specific yet, in the rest of his evidence, he had little or only a general recall of events put to him. When his memory of the alleged anti-Semitic event was challenged in cross-examination, his responses were lengthy and non-responsive. Thirdly, he gave similarly lengthy and non-responsive answers to questions throughout his evidence. In those mostly irrelevant answers, he also made gratuitous allegations, such as his claim that the plaintiff was an habitual smoker of marijuana. Fourthly, he is a close friend of the defendant and his evidence, whether he intended it or not, demonstrated that he could not be impartial where she was concerned.

The remaining witnesses

The other witnesses (Ms Martindale, Mrs Zaarour, Mrs Todd and Mr Hanley) were of marginal importance and probative value for the issues to be determined in the proceeding. None were cross-examined. The evidence of the medical witnesses, Dr Lowther, Dr Sweica, Dr Thomas and Dr Rose, were tendered by consent. None were cross-examined.

In respect of the accountants, I have found that the evidence of the defendant’s accountant, Mr Lewandowski, was compromised because he had not been provided with all of the necessary financial data. Save for that caveat, I accept his evidence. I also accept the evidence of the plaintiff’s accountant, Mr Ferguson.

Conclusions
The relationship between the plaintiff and the deceased was not one of estrangement

The defendant contended that the deceased did not have a responsibility to make provision for the plaintiff. The defendant also contended that, even if the Court was satisfied that the deceased did have a responsibility to provide for the plaintiff, the deceased satisfied his responsibility by leaving the plaintiff a legacy of $65 000.

The gravamen of the defendant’s submissions was that the relationship of the plaintiff and the deceased was one of estrangement, and that estrangement was caused by the plaintiff’s decision to shun and avoid his father. In support of this, the defendant relied on a number of specific examples of the plaintiff’s behaviour towards his father as evidence of how he had caused the estrangement. The defendant opened his case by noting that, as at 1991, the plaintiff had not sent the deceased a Father’s Day card for 13 years.

Having determined that the evidence of the plaintiff and Mrs Moss should be accepted where it conflicts with that of the defendant, it becomes abundantly clear that this is not a case of estrangement. True it is that in 1991, the plaintiff may not have sent a Father’s Day card to the deceased for 13 years. However, his evidence establishes that there was regular written and verbal communication with his father throughout his married life. True it is that the plaintiff’s relationship with the deceased was less than ideal. Indeed, the plaintiff conceded this at the outset. But there was never a total absence of a relationship, and nor was the plaintiff ever permanently estranged from his father. This is so notwithstanding that there were certainly periods were his contact was not frequent, something that was again conceded by the plaintiff.

As Mrs Butler said, the deceased was a difficult person, and he admitted to her that he was not a good parent. All of the deceased’s children said that he was a strict disciplinarian, and that it was ‘his way or the highway’. The deceased had a further difficulty with the plaintiff arising from his close relationship with his mother. This difficulty permeated his relationship with the plaintiff throughout his life. But the fact that there were difficulties in his relationship with the plaintiff does not mean that he was estranged from the plaintiff, and nor does it abrogate his responsibilities to the plaintiff.

Notwithstanding these hurdles, the plaintiff did keep in touch with the deceased. He was able to do so because he wanted to do so, although he found it was hard to talk to or communicate with his father at times. He coped with the situation by becoming accustomed to his father’s behaviour. He chose not to let the so-called ‘gripe letters’ affect him, despite the fact that in some of these letters the deceased was very hard on the plaintiff. In my view, this shows a strength of character in the plaintiff. I would also note that the deceased was hard not just to the plaintiff, but also to Mrs Moss and the defendant. They too showed great resolve in remaining in contact with him.

Noticeably, even though the deceased wrote some harsh things in his letters to the plaintiff, the evidence shows that they remained in contact over the ensuing years. As the deceased grew older, and especially after the deceased developed dementia, the plaintiff found that his father mellowed towards him, and from that point onwards the plaintiff was able to enjoy a warmer relationship with him. Once the deceased moved into Brighton Regis, he was able to enjoy regular, friendly contact with the deceased until his death.

The defendant contended the plaintiff did not regularly visit the deceased at the Brighton Regis. However, both Mrs Moss and Mrs Butler confirmed the plaintiff visited the deceased at the Brighton Regis. The fact the visitor book at the Brighton Regis was not signed by the plaintiff was explained by the plaintiff. The fact that Ms Martindale said the deceased never mentioned the plaintiff in their discussions or that she had never met the plaintiff over the period 2008 onwards does not detract from my findings concerning the relationship between the plaintiff and his father in that period.

Having rejected the defendant’s contention that the plaintiff and the deceased were estranged, I am satisfied that having regard to all the factors set out in sub-ss 91(4)(e)-(p) of the Act, the deceased did have a responsibility to make provision for the proper maintenance and support of the plaintiff.

The deceased did not make adequate provision in leaving the plaintiff a legacy

I also consider the deceased did not satisfy that responsibility by leaving the plaintiff a legacy of $65 000. This question is intimately connected to the question as to the responsibility that the deceased owed to the plaintiff, and also to the question of what provision should be ordered. In considering whether the provision in the will satisfies the responsibilities of the deceased, the same factors must be considered, and although the matters are not identical, there will be substantial overlap.[34]
[34]Blair v Blair (2004) 10 VR 69, 75 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [66] (Neave JA).

Given the conclusions that I have reached on the relationship between the plaintiff and the deceased, it is evident that the plaintiff is a person who naturally has a strong claim on the deceased’s bounty. There is no requirement that the deceased treat all of his children equally — far from it — but where there is a high degree of disproportion in the treatment of siblings there ought be something in the nature of the relationship or the wellbeing of the competing claimants which justifies that disproportion. Although the precise extent of the appropriate provision is a separate question, I am satisfied in light of the size of the estate and the medical and financial needs of the plaintiff that it ought to have been more than $65 000.

The Court should order sufficient provision to satisfy the plaintiff’s debts

I turn now to consider what provision should be made for the proper maintenance and support of the plaintiff. Where the only competing claimant is the defendant as the residuary beneficiary, it is appropriate to take into account the defendant’s financial position and her health as well as the position of the plaintiff.

Overall, the plaintiff’s health is not good. His medical conditions are serious and are expected to continue. He is now aged 71 years and no longer works. He and his wife have a limited income. Their current total liabilities stand at $426 923.53. They have four properties, comprising a matrimonial home and a rural property, a factory property from where they operated their refrigeration business and a rental property from which they derive their income. For the future, they intend selling one of their residences. They will have their son, Darren, living with them for the foreseeable future and this impacts on their ultimate decision on which residential property they will keep. In considering what amount of provision should be made for the plaintiff, I do not take into account any obligation the plaintiff might have to support his son, Darren, other than to note that Darren will live with the plaintiff for the foreseeable future.[35]
[35] As noted by Hallen J in Walsh v Walsh [2013] NSWSC 1065 (12 August 2013) [121(d)] (Hallen J) the plaintiff’s obligation to support his son is a relevant factor, although where there is no obligation of the deceased to support his son, the relevance of the plaintiff’s support cannot extend to a de facto order to support his son.

In respect of the defendant, her overall health is also not good and this is expected to continue. Likewise with her husband. The defendant and her husband have an estimated income of at least $60 000 with net assets of at least $1 million.

In terms of provision for the proper maintenance and support of the plaintiff, I take into consideration that this is a relatively large estate. As noted, the estate of the deceased’s wife passed to the deceased. The defendant and Mrs Moss received small personal items belonging to their mother but the plaintiff received nothing. After allowing for the unpaid legacies, the balance of the deceased’s residuary estate is $1 469 037.98. As the will now provides, the defendant will receive the whole of that sum.

Where the estate is a large estate, a generous approach is justified, but the Court should not order more than is adequate for the plaintiff’s proper maintenance and support. In submissions, the plaintiff sought further provision sufficient to repay his debts of $427 000. In my view, such an amount would provide for the plaintiff’s proper maintenance and support. If he paid out his debts, his income would be sufficient for his support as he would no longer need to service his loans. He has no ready cash reserves to meet his liabilities. Although he plans to dispose of one of his residential properties, an opportunity to clear his debts now would provide him with financial security for the future. This would mean that, with the sale of one of his residential properties, he will be able to create his own financial buffer against the ordinary vicissitudes of life. Considering his age, and his serious health issues, such a buffer is necessary.

Further provision in the sum of $427 000 would still leave more than $1 million of the estate to pass to the defendant. This amount still gives sufficient regard and weight to the deceased’s testamentary wishes.

Orders

I am satisfied that the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff. I am further satisfied that the deceased’s will did not make adequate provision for the proper maintenance and support of the plaintiff.

I order that, pursuant to s 91 of the Act, further provision be made for the plaintiff from the estate of the deceased by the payment of a further pecuniary legacy of $427 000.

I will hear the parties as to the appropriate form of orders and as to costs.

---

[2014] VSC 103

21 March 2014