Cavallaro v Cavallaro - [2011] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CAVALLARO v CAVALLARO
[2011] SASC 123
Judgment of The Honourable Justice Gray
16 August 2011
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Application for provision to be made from the estate of the deceased for the maintenance and advancement of her eldest son, the plaintiff - dispute between the four surviving children of the deceased, each asserting a moral claim against the deceased's estate - where the deceased's will provided the plaintiff with a right to reside in the family home; with entitlement to one-fifth of the remainder interest in the home property when he ceases to reside at that property; with entitlement to a one-fifth interest in the proceeds of the sale of the other land in the deceased's estate, and, with entitlement to a one-fifth interest in the residuary estate - whether the provision made for the deceased's eldest son in the will was inadequate.
Held: the plaintiff made out a case for further provision from the deceased's estate - the deceased saw a need to benefit each of her children, but a particular need to address the needs of the plaintiff and her youngest daughter (who died shortly after the deceased) - in this respect, the plaintiff was left without adequate provision for his proper maintenance - the plaintiff’s right of residence of the home property is to be converted to a life interest - the plaintiff’s one-quarter interest in the home property is to be converted immediately into cash; in an amount of $75,000.00.
Inheritance (Family Provision) Act 1972 (SA) s 6 and s 7, referred to.
Vigolo v Bostin (2005) 221 CLR 191; Singer v Berghouse (1994) 181 CLR 201; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; McCosker v McCosker (1957) 97 CLR 566; In Re Pope, Deceased (1975) 11 SASR 571; Bondelmonte v Blanckensee [1989] WAR 305; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97; King v White [1992] 2 VR 417; Whitmont v Lloyd (Unreported, Supreme Court of New South Wales, Bryson J, 31 July 1995); McKenzie v Topp [2004] VSC 90; Gapes v Haeberle and Haeberle [2003] VSC 461, considered.

CAVALLARO v CAVALLARO
[2011] SASC 123
Civil
GRAY J:
Introduction

This is an application for provision to be made from the estate of Caterina Cavallaro for the maintenance and advancement of her eldest son, Cosimo Guiseppe Cavallaro.[1] Cosimo is commonly known as Joseph.
[1] Pursuant to sections 6 and 7 of the Inheritance (Family Provision) Act 1972 (SA).
The dispute is between four siblings – the surviving children of Caterina. Each defendant sibling, Rosa Caristo, Carmela Miraglia and Ilario Cavallaro assert a moral claim against the estate of Caterina. Before coming to discuss the evidence given in the trial, and the issues to be addressed and resolved, I propose first to briefly outline the Cavallaro family history, drawing on non-contentious evidence.
Caterina was born on 21 September 1910. She died aged 97 years on 17 December 2007. Caterina was married to Vincenzo Cavallaro. Vincenzo was born on 11 November 1908 and pre-deceased Caterina, dying on 19 June 1989. Caterina and Vincenzo were married in about 1933. Both Caterina and Vincenzo were from Calabria, Italy. They married in Italy and their five children were born in Italy. The plaintiff, Joseph, was born on 27 September 1935, Rosa on 15 February 1941, Carmela on 9 February 1943 and Ilario on 6 September 1946.
On 7 June 1948, Maria Cavallaro, Caterina and Vincenzo’s youngest child, was born. Maria died on 15 February 2008.
Joseph has never married. He presently resides at the family home at 38 Gawler Road, Two Wells, South Australia. Rosa lives in suburban Adelaide with her severely disabled husband. They were married on 12 October 1957. They have two fully independent adult children. Carmela lives in suburban Adelaide with her disabled husband. They were married on 24 December 1960. They have three fully independent adult children. Ilario married on 19 November 1977 and has three adult sons. The two eldest are married, the youngest still lives at home, but is shortly to marry and will then leave home.
Vincenzo came alone to Australia in the late 1940s. He arranged for Joseph to join him in about 1949. At the time, Joseph was about 15 years of age. Initially they resided in the Riverland, but soon moved to Adelaide. Vincenzo purchased land at Findon, where he and Joseph built a shed in which they then lived. Vincenzo, with Joseph’s assistance, then set about building a house on the land. Vincenzo had some experience as a builder. Vincenzo obtained employment at General Motors Holden and worked on the Findon property outside his employment hours.
In 1955, Vincenzo arranged for Caterina and the four children remaining in Italy to join him and Joseph in Adelaide. In the years prior to that time, Vincenzo had remitted monies to Italy to provide for his family. The family had been in generally poor circumstances in Calabria, but it is evident that they came from hard-working stock. Caterina sold land to raise the money to allow Joseph to travel to Australia. Vincenzo and Caterina were determined for their young family to flourish in their new country.
In or about 1961, Vincenzo and Caterina sold the Findon property and purchased a property at Two Wells. By that time, Joseph was living away from home. By 1961, Carmela and Rosa were both married and were living independently with their husbands. Ilario was living with his parents, studying and working outside school hours assisting Vincenzo at the Two Wells property. Maria was at home. She was then aged about 12 years, suffered from epilepsy and was mildly intellectually retarded. She remained living with her parents throughout most of their lives. Following Caterina’s relocation to a nursing home in about 2000, Maria lived the last eight years of her life with Joseph in the family home at Two Wells.
When first purchased, the Two Wells property comprised an area of about 10 acres on the one certificate of title. The family lived in a house on the land and arrangements were made to have the land subdivided so that the house property was on about a half acre of land with its own certificate of title. In 1967 the principal property was further subdivided. Slightly more than half an acre, now on its own title, was transferred to Ilario to enable Ilario to build a home in close proximity to Caterina and Vincenzo’s home.
Vincenzo retired from General Motors Holden in or about 1973, when aged 65 years. His health started to deteriorate and cancer was diagnosed in or about 1976. From that time, his health continued to deteriorate and he became depressed because of ill-health and its consequences to his everyday life. He attempted suicide and finally committed suicide in 1989 by shooting himself in a bedroom in the family home. Vincenzo’s property passed to Caterina pursuant to the terms of his will. As a consequence, Caterina became the owner of the family home on its separate title and the balance of the property of about nine acres on its separate title. Her other assets at the date of her death were personal effects of little monetary value.
Testamentary Documents
Caterina executed her last will and testament in 2003. At that time she was resident in a nursing home in suburban Adelaide. Ilario was granted probate of her will with leave being reserved for Joseph to apply for a grant of probate. Caterina’s will relevantly provides:
2.I APPOINT my sons ILARIO CAVALLARO and COSIMO GUISEPPE CAVALLARO (hereinafter called my trustees) executors and trustees of this my will.
3.I GIVE my house property at 38 Gawler Road Two Wells in the said State being the whole of the land comprised in Certificate of Title Register Book Volume 5840 Folio 593 (hereinafter called the residence) and the household contents therein at my death to my trustees UPON TRUST as follows:
(a)     to hold for the lifetimes of my children MARIA CAVALLARO and the said Cosimo Giuseppe Cavallaro or until they both cease residing in it as their principal place of residence they being responsible for paying all rates and taxes and keeping the residence insured against loss and damage from fire storm and tempest in an amount and in an insurance office approved by my trustees;
(b)     on the death of the last of the said Maria Cavallaro and Cosimo Giuseppe Cavallaro or when they have both ceased to reside in my residence I GIVE my said residence and household contents to those of my children the said Maria Cavallaro Ilario Cavallaro Cosimo Giuseppe Cavallaro ROSA CARISTO and CARMELA MIRAGLIA who survive me AND I DECLARE that if any of the said Ilario Cavallaro Rosa Caristo and Carmela Miraglia predeceases me leaving children then their children take equally the share which their parent would have taken.
4.I GIVE my vacant land at 40 Gawler Road Two Wells in the said State being the whole of the land comprised in Certificate of Title Register Book Volume 5545 Folio 956 (hereinafter called the residence) to those of my children the said Maria Cavallaro Ilario Cavallaro Cosimo Giuseppe Cavallaro   Rosa Caristo and Carmela Miraglia who survive me AND I DECLARE that if any of the said Ilario Cavallaro Rosa Caristo and Carmela Miraglia predeceases me leaving children then their children take equally the share which their parent would have taken.
5.I GIVE all my personal estate to my trustees UPON TRUST to pay all my debts funeral and testamentary expenses and SUBJECT THERETO I DIRECT my trustee to divide the rest and residue of my estate equally among those of my children the said Maria Cavallaro Ilario Cavallaro Cosimo Giuseppe Cavallaro Rosa Caristo and Carmela Miraglia who survive me AND I DECLARE that if any of the said Ilario Cavallaro Rosa Caristo and Carmela Miraglia predeceases me leaving children then their children take equally the share which their parents would have taken.
6.     I EMPOWER my trustees:
(a)     To sell any assets in my estate;
(b)     To lease any part of my estate for the periods and upon and subject to the covenants and conditions as they think fit.
(c)     To invest any part of any of my estate which requires investment in any of the modes of investment authorised by legislation in Australia regulating the investment of trust funds with full power for my trustees to vary investments within such modes as they think fit.
(d)     To distribute assets in specie as they in their absolute discretion decide and for that purpose to value and to apportion or partition assets between beneficiaries and any such valuation apportionment or partition shall be binding on the beneficiaries under this will.
During these proceedings, no challenge was made to the testamentary capacity of Caterina at the time of the execution of her will. However, there was a suggestion made by Joseph that Caterina suffered from dementia. This suggestion was firmly refuted by Ilario, Rosa and Carmela. Further, a medical certificate tendered in evidence which addressed Caterina’s state of health, made no reference to dementia.
Maria was diagnosed with terminal cancer soon after Caterina’s death. She died a little more than a year later. The terms of her will included the following:
3.I APPOINT my brother ILARIO CAVALLARO hereinafter called “my trustee” sole executor and trustee of this my will.
4.I GIVE all my estate and interest in the vacant land at 40 Gawler Road Two Wells in the said State to the said Ilario Cavallaro.
5.     I GIVE my clothing and shoes to my trustee to give to the poor.
6.I GIVE the rest of my estate to my trustees UPON TRUST to pay all my debts funeral and testamentary expenses and SUBJECT THERETO I DIRECT my trustee to divide the balance of my estate equally among those of my brothers and sisters the said Ilario Cavallaro COSIMO GUISEPPE CAVALLARO ROSA CARISTO and CARMELA MIRAGLIA who survive me.
The Witnesses[2]
[2]    I also received at trial documentary evidence including the following: agreed book of documents; copy of a trust ledger of the executor’s solicitors; plaintiff’s UniTab account for September 2010; power of attorney dated 3 March 2000; death certificate of Caterina Cavallaro; four certificates of title; two memoranda of transfer; Commonwealth Bank account record; CPS certificate of term deposit; Seaton Medical Centre Report dated 20 August 2010; Commonwealth Bank record of Mr and Mrs Cristo; annual report of ECH Homes Inc.; ECH Homes Inc. charts.
Joseph was the only witness to give evidence in support of his case. At the time of giving evidence he was aged 75 years. He appeared to have a poor recollection of dates and times and was vague in his evidence about the detail of family life.
Joseph gave evidence of being involved in a major road collision in Europe in 1974. He said that at the time he was riding a motor scooter with his fiancé as a passenger. She died as a result of her injuries at the scene. Although Joseph sustained minor physical injuries, he apparently suffered psychologically. Soon after, he returned to Australia and attempted to return to work in Canberra in the public service, but found after several weeks that he could not cope. He returned to Adelaide and recounted that he underwent 14 months rehabilitation at Payneham, followed by two years rehabilitation at Montacute. The attendance at Montacute was said to be private rehabilitation and was not live-in. He described ongoing disabilities from this time, however his descriptions were vague.
Joseph also gave evidence of having fallen from the roof at the house at Two Wells and having been admitted to hospital for several days. Again his description of the injuries sustained and their sequelae was vague.
No medical evidence was led to support Joseph’s evidence of his earlier injuries, although a document described as a “health summary sheet” printed on 7 February 2008 was tendered by consent. Entries on this sheet continue to 7 December 2007. This summary sheet records, inter alia, a past medical history of a motor vehicle accident, of Joseph having fallen from the roof of a house and having sustained multiple fractures in 2001 and, more particularly, compression fractures at thoracic level five, a spinal cord injury and a head injury. A complaint of sciatica was recorded in 2004 and urinary incontinence in 2006. The summary sheet would suggest that there has been a diagnosis that Joseph has suffered from a gastro oesophageal reflux disease from 7 December 2007.
The animosity evident at trial between Joseph and his siblings appears to have only arisen since the deaths of Caterina and Maria. Joseph spoke of his entitlement to “compensation” for duties he had performed for his parents and Maria. He presented a picture of being the principal supporter of both his parents and Maria and as being the attender to their needs. Joseph considered that his father was particularly demanding because of his cancer and associated depression. Joseph gave evidence that later his mother became increasingly dependant on him because of her illnesses and what he described as her dementia. Joseph also presented a picture of Maria being heavily dependent on him because of her epilepsy and mental retardation. He only acknowledged minimal support being provided by his siblings Ilario, Rosa and Carmela. This led to Joseph informing the Court that he was entitled to “two or three times” what had been provided for him in Caterina’s will. Later, he said that he deserved at least 45 or 50 per cent of Caterina’s estate.
I was unimpressed with the evidence of Joseph. His vagueness and the inconsistencies in his evidence may well have been due to his advancing years. I do not consider that he set out to deliberately mislead the Court, but I do not find his evidence to be reliable. During cross-examination, despite repeated requests, he would not confine his answer to the question. He saw a need to address non-responsive matters when answering questions. I suspect that this tendency on his part again had much to do with his advancing years. I do not conclude that he deliberately attempted to evade or avoid a direct answer. However, I consider his evidence to be unreliable. As a consequence I am only prepared to act on his evidence in circumstances where it accords with what might be expected as a matter of common sense or otherwise has some support.
The defendants presented oral evidence from Ilario, Rosa and Carmela. They also called Robert Gordon Hankins, the chief executive officer of ECH Homes Inc, a provider of independent living units, residential care centres and community services for the aged. There was no challenge to the evidence of Mr Hankins. I accept his evidence. Mr Hankins’ evidence indicated that retirement living suitable for a single man is available, subject to a vacancy, the cost will vary, but at the present time, something suitable for a man like Joseph could be available for an amount in the order of $100,000.00 or a little less. The ability to receive care in that home, and if needed, be transferred into nursing care, may also be available.
I should say immediately that I was impressed by the evidence given by Ilario. He gave a straightforward account and appeared in my view to be at pains to recount the truth of events as he recalled them. Illario’s testimony was corroborated in important respects by the evidence of Rosa and Carmela. Ilario did not suggest that Joseph did other than provide material support for his parents and Maria. He accepted that Joseph resided at the family home in Two Wells for many years prior to Caterina’s death and that he provided companionship as well as physical support to his father, mother and Maria. I found Illario’s evidence both credible and reliable and I am prepared to act on his evidence.
Ilario outlined the extensive assistance he provided his father in the demanding work of glasshouse tomato production at the Two Wells property for a number of years. He described the role that he played in his regular, almost daily, visits to the family home for decades. He lived in close proximity and his parents, Maria and Joseph were all dependent upon him for private transport arrangements. He was the only motor vehicle driver among these members of his family. It is also apparent that he was the person responsible for dealing with financial and business matters within the family. He was the executor of the estates of Vincenzo, Caterina and Maria.
When Caterina moved to a nursing home in or about 2000, cash of about $28,000.000 was found in her bedroom. Ilario, Joseph and Carmela were present and the cash was counted in the presence of all of them. It was then agreed that Ilario would take the money and use it to provide for Caterina’s wellbeing. Thereafter, Ilario used the money to meet Caterina’s ongoing living expenses, including the monies required to meet the cost of nursing home accommodation.
I found the evidence of Rosa and Carmela to be both credible and reliable. Their evidence was corroborative of Ilario’s evidence. They described the ongoing support by themselves and by Ilario for Vincenzo, Caterina and Maria. They both spoke of Ilario’s generosity towards their parents and Maria.
The Value of Caterina’s Estate
The net worth of Caterina’s estate was not in dispute. At the time of trial, the home property at 38 Gawler Road, Two Wells, had a value of about $310,000.00. This was based on a “drive-by” evaluation by a real estate agent and was subject to the caveat that it was “an appraisal only and should not be taken as a sworn valuation”. The other property – the nearby land – was sold after Caterina’s death and realised a gross price of $910,000.00. The nett amount received by the executors on settlement was $896,536.09. From that amount, $70,000.00 was paid by way of an interim distribution to Ilario, $70,000.00 by way of an interim distribution to Joseph, three amounts each of $3,685.43 to Ilario, Rosa and Carmela as a refund of burial and associated expenses incurred in regard to the estate and $3,207.23 in respect of legal expenses associated with the estate. From the balance, an amount of $730,000.00 had been invested on term deposit, leaving $12,272.57 in trust on account of the estate of Caterina.
The Relevant Legal Principles

Section 7(1) of the Inheritance (Family Provision) Act 1972 (SA) provides:
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
Analogous statutory provisions to those relevant in the present proceeding were discussed by the High Court in Vigolo v Bostin.[3] Gleeson CJ summarised the legislative position as follows:[4]
The general structure of the Act follows a form familiar in all Australian States, and pioneered in New Zealand. The key provision is s 6. The power of a court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by will, or the law relating to intestacy, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of a person mentioned in s 7. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the will, or in the case of intestacy, as a modification to the applicable rules of distribution (s 10).
What has been described as the two-stage approach to the exercise of such a statutory power was explained by this Court in Singer v Berghouse, and is not in controversy in this appeal. It is evident that, depending upon the stage of consideration involved, the following judgments are required by the terms of s 6. What kind of provision for the matters referred to in that section should be regarded as adequate? What should be regarded as proper maintenance, support, education or advancement in life in the case of a particular applicant? If the court comes to exercise its discretion to make an order in favour of an applicant, what should it regard as fit provision for the purposes referred to in the section? Upon whom should the burden of such an order fall?
Each of those judgments is to be made by reference to criteria that are expressed in the most general terms. Two of the key words are "proper" and "fit". Fitness and propriety are value-laden concepts. Those values must have a source external to the decision-maker. Morality is the source of many of the values that are expressed in the common law, in statutes, and in discretionary judicial decision-making.
…
These basic features of what is commonly called testator's family maintenance legislation have existed in Australia for almost a century. Such legislation is imbued with concepts of entitlement and disentitlement, claims and obligations, propriety and fitness, related to questions of inheritance. Australian courts, guided by decisions of this Court and of the Privy Council, have interpreted and applied the legislation by giving it a purposive construction. In its original form, the legislation conferred upon courts, in limited circumstances, a discretionary power to interfere with the exercise of freedom of testamentary disposition. Where such an interference was regarded as justified, it defeated the intention of a testator, and conferred a benefit upon an applicant at the expense of others whom the testator intended to benefit. From the beginning, a number of fundamental issues were obvious. Was this an extensive power to re-write a testator's will to make it conform to a judge's idea of how an estate should be distributed, or was it more limited, and, if so, in what way? Were issues of adequacy and propriety to be decided by reference only to minimum standards of subsistence? Was this merely a power to relieve the state of the burden of supporting indigent people? What account was to be taken of the expectations and needs of persons other than an applicant where a testator had made provision for such persons? In what circumstances should a testator's decision to disinherit a family member on grounds of character or conduct prevail?
[Footnote omitted.]
[3] Vigolo v Bostin (2005) 221 CLR 191.
[4] Vigolo v Bostin (2005) 221 CLR 191, 196-198.
In Singer v Berghouse, Mason CJ, Deane and McHugh JJ said the following about analogous interstate provisions:[5]
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the “jurisdictional question”. That description means no more than that the court’s power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a).
…
The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance…
[Footnotes omitted.]
[Emphasis added.]
[5] Singer v Berghouse (1994) 181 CLR 201, 208-210.
The Privy Council commented on the distinction between the words “adequate” and “proper” in Bosch v Perpetual Trustee Co Ltd:[6]
The use of the word "proper" in this connection is of considerable importance. It connotes something different from the word "adequate". A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may be quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his "adequate" maintenance. Nevertheless, such sum cannot be described as not providing for his "proper" maintenance, taking into consideration "all the circumstances of the case" as the subsection requires shall be done.
[6] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476.
In McCosker v McCosker, Dixon CJ and Williams J observed:[7]
The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v. Perpetual Trustee Co. (Ltd.) the word "proper" in this collocation of words is of considerable importance. It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.
[Footnote omitted.]
These authorities guide the approach that I am to take to the resolution of the within proceedings.
[7] McCosker v McCosker (1957) 97 CLR 566, 571-572.
Joseph’s Claims
The first question to be addressed is whether the provision made for Joseph in the will was inadequate; for what in all the circumstances was the proper level of maintenance and advancement appropriate for Joseph, having regard to, inter alia, his financial position, the size and nature of Caterina’s estate, the totality of the relationship between Joseph and Caterina and the relationship between Caterina and Ilario, Rosa and Carmela – the other persons having an asserted legitimate claim upon her bounty. In posing this question, I have drawn on the earlier extracted and emboldened observations of Mason CJ and Deane and McHugh JJ in Singer v Berghouse.[8]
[8] Singer v Berghouse (1994) 181 CLR 201.
The evidence before the Court establishes that Joseph provided assistance to his parents and Maria. In the final years of his father’s life, Joseph provided companionship, a degree of physical support and generally assisted to lessen the effects of his father’s illness and depression. I am confident that he provided a level of companionship and physical support to Caterina. Equally I am satisfied that he provided direct support to Maria, including support at times of epileptic seizure.
A medical certificate from Dr Fernandez of 9 May 2009 was tendered without objection:
To whom it may concern
I was working as a general practitioner in Mallala from June 69 – Dec. 96 and cared for the Cavallaro family in Two Wells.
Mr Vincenzo Cavallaro was diagnosed with Prostrate Carcinoma in 1978, and became very depressed & often expressed his feelings of despair to his son, Joseph who looked after him – he became suicidal from 1987 and eventually shot himself on 19-6-1989.
Mrs. Catherine Cavallaro was distraught, and also suffered progressively worsening arthritis and Heart Failure and her mobility was restricted and she too required constant assistance from Joseph – She eventually was compelled to move to a Nursing Home when she fell down and fractured her hip in 1999 Dec. I still attended Mrs. Cavallaro fortnightly in the Tregenza Avenue Nursing Home till she was moved to the Smithfield Plains Nursing Home in Nov 2007.
Maria Cavallaro suffered Epileptic seizures since the age of 7 yrs & was regularly monitored by Specialist Neurologist – She was intellectually retarded, and had various medications for the Epilepsy but continued to have seizures at unexpected times and places & she was semi dependent on her brother Joseph to render first aid when required – As the years went by, her seizures became more frequent requiring constant attention. She eventually was diagnosed with Hepatic Carcinoma in Dec-2007 when she was admitted to the Lyell McEwin Hospital, and as her condition was advanced & inoperable, she died on Feb 15^th 2008.
I state with confidence that these facts are true.
M Fernandez
Dr Myrna Fernandez
M.B.B.S.
No doubt Joseph’s support to Vincenzo, Caterina and Maria was of considerable comfort to Caterina. However, this is to be balanced against the circumstance that Joseph was, apart from some short stays, away from the family home from about 1960 through to the early 80’s, travelling overseas and generally living independently from his family. He visited Caterina when she was in a nursing home for the last eight years of her life. It is also to be borne in mind that for the best part of three decades he lived without the expense of rent at the house property at Two Wells. He also benefitted from the produce from the associated property. I am satisfied that in this way Joseph received substantial material benefits.
For reasons discussed later, any moral obligation on Caterina’s bounty was in my view no greater than the moral obligation owed to Ilario and perhaps only to a slightly greater extent than that owed to Rosa and Carmela.
I make the following findings with respect to Joseph’s financial position. Joseph is a 75 year old aged pensioner. At the time of trial, he received a fortnightly pension of about $658.00. From Caterina’s estate, he has received a right to reside in the family home at Two Wells. Following Maria’s death and as a consequence of the terms of her will, his share is increased from one-fifth to one-quarter in the remainder interest in the home property when he ceases to reside at that property or if he dies while still resident at the home. A one-quarter interest in the property is presently worth about $75,000.00. He has a one-fifth interest in the proceeds of the sale of the other land. This interest has a value of about $180,000.00, against which already he has received the earlier referred to interim distribution of $70,000.00 in August 2010.
Joseph has used the interim distribution of $70,000.00 to make a payment of about $7,000.00 to his solicitor, presumably on account of the costs of these proceedings. He has made an undocumented loan, on no terms as to interest or repayment, to an unnamed female acquaintance in the amount of $28,000.00. He has cleared undisclosed debts in unspecified amounts and has made undisclosed purchases in unspecified amounts. He currently retains a balance in cash of about $10,000.00.
Joseph has a life expectancy according to published actuarial tables of a little more than 11 years. His health is poor. He described a particularly bad period in the months following December 2010. He recounted being in considerable pain with difficulty moving and being bedridden from time to time.
Joseph was concerned about the state of the house property at Two Wells and spoke of the need for painting and the repair of cracks. He spoke of a shed on the property needing maintenance and repair to avoid what he thought to be the risk of wind damage. He described his worry and concern about the increasing passing traffic and the need for a wall to be constructed to reduce noise and dust.
I consider it probable that Joseph will need some form of residential care in the future and possible that he will need to move to residential care accommodation in the immediate to near future.
Joseph has continued to reside alone in the house property at Two Wells for the last three years. He did not speak of any friends in the Two Wells area. However, he has the support of a long-term female acquaintance in suburban Adelaide. He spoke vaguely of other persons who had supported him through times of difficulty. He gave the appearance of an ageing, disabled man, suffering to some degree from mild depression. To my mind, he has made out a case for some further maintenance, and as a consequence, for some further modest provision from the estate. I consider that that further provision should come from the conversion of his right of residence of the home property to a full life interest and the immediate conversion of his one-quarter remainder interest into an immediate cash payment. In other words, Joseph would then receive a life interest in the home property in lieu of his right of residence and an immediate cash payment of $75,000.00 in lieu of his remainder interest.
Joseph in evidence estimated that he required a further $300.00 per week in addition to the pension to meet his reasonable needs. He was unable to explain how such an amount would be spent each week. He spoke very generally about possible medical and pharmaceutical expenses, the possible expense of domestic help and other expense such as “the provision of better food”. I understood his estimate to be driven by the caution of old age, the fear of what might be around the corner and the fear of the unexpected expense. These are understandable concerns and fears.
The evidence of the use he made of the interim distribution of $70,000.00 has led me to conclude that Joseph does at the present time have adequate resources to meet his reasonable everyday needs. Of the $63,000.00 available to him, $38,000.00 remains, partly in cash and partly in a receivable. The fact that he can make an undocumented, unsecured loan without any terms as to interest and repayment, confirms the above view.
The evidence suggests that Joseph has an interest in gambling. His Unitab account for September 2010 disclosed that he placed more than 80 bets over about 17 days during the month. He sustained a loss of about $400.00. He spoke also of making a wager at a hotel that yielded about $3,000.00 around the same time. It was not suggested that Joseph had a gambling addiction. However it was contended that this evidence established that he did have the ability to stand the loss of $400.00 in one month, and that his financial resources were such that he could afford to engage in this social interest with its attendant risks. Joseph explained that he enjoyed small-time gambling and that it helped to ease his depressed moods.
I consider that in assessing Joseph’s claim, the Court must take a realistic and common sense approach to his future needs. Given his health concerns, and in particular, his description of their debilitating effects from time to time, the provision for his future requirements should be assessed against his need for support and his possible move to residential care accommodation in the foreseeable future. This could be achieved with the conversion of his right of residence in the house property, to a life interest. By that I have in mind that, if he is to move into residential care, the property could be sold and the proceeds representing the life interest be used for that purpose. It is well understood and supported by the evidence of Mr Hankins, that such accommodation can be acquired with a part refund being made on death.
The only other provision that should be contemplated in my view is the earlier discussed conversion of Joseph’s one-quarter of the remainder interest of the house property into a cash payment. If each of Ilario, Rosa and Carmela’s interest in the property was increased to one-third and in lieu, Joseph’s one-quarter interest was converted to $75,000.00 cash, Joseph’s claim for increased cash resources would be addressed.
The effect of these two adjustments to the provisions made in Caterina’s will would be to provide Joseph initially with secure accommodation at the Two Wells property, then residential assistance when needed and nursing assistance when needed. In addition to an aged pension, Joseph would have cash in the order of more than $180,000.00.[9] There is no suggestion of any debt. He has in addition the receivable of $28,000.00 and the $10,000.00 cash balance of the interim distribution.
[9] The $180,000.00 is represented by the remainder of the one-fifth interest in the net proceeds of the sale of the nearby land and the conversion of the one-quarter remainder interest of $75,000.00.

Before reaching a final conclusion that such further provision would be appropriate it is necessary to consider the claims of Ilario, Rosa and Carmela on Caterina’s bounty.
Ilario
Ilario lives in modest circumstances. He is in poor health. He has had long term back problems and a spinal problem which led to partial paralysis of his right arm and leg. He turns 65 this year and wishes to retire. He works as a public servant in the area of records administration and he is able to cope with his daily duties at work. However, he has great difficulty with mobility. His wife also has health problems including deterioration of the knee, requiring a knee replacement. She is now aged 54 years and has not worked for some time. Ilario will retire with a superannuation payment of $70,000.00. He now lives in the township of Two Wells in a property valued at $335,000.00. He and his wife have another block of land, but they have promised to subdivide that land to provide a one-third interest in the land to each of their sons.
Ilario provided much support to his parents and Maria throughout their lives. He worked with his father in developing the Two Wells property from the time it was acquired in about 1961, until the time of his father’s death in 1989. As mentioned above, he has been the driver for the family when transport has been needed. He was the provider of business and financial advice and was the attendee to those matters on behalf of his parents. In his work on his parents’ property, he materially assisted his father for many years in the commercial production of glass-house tomatoes. He also assisted in olive, vegetable and fruit production on the property. That production provided substantially for the needs of his parents, Maria and close family members. He helped with the livestock on the property.
Ilario also provided considerable companionship and assistance to Caterina and Maria, particularly when they were in need of support. He did this by his daily visits, by accompanying them on medical, dental and other appointments and by attending to a number of Caterina’s needs while she was in nursing care. I consider that he has established a moral obligation on the part of his parents and Maria to him. I consider that Caterina owed Ilario a moral obligation. I consider that this moral obligation is at least equal to any moral obligation owed to Joseph.
Rosa
Rosa was aged 70 years at trial and lives with her severely disabled 75 year old husband. Rosa’s husband has multiple and serious health issues. He suffered a severely disabling stroke 17 years ago and as a consequence suffers much paralysis, is limited in speech, limited in mobility and is grossly disabled. He requires daily support from his wife in regard to most aspects of everyday living. Rosa is his full time carer and receives some carer support for this. They live in suburban Adelaide in their home of almost 40 years. The home has a value of $826,000.00 and is owned outright by them. They only have a pension income. They have two adult married children. Rosa suffers from painful arthritis and stopped working when she was 61 due to poor health.
Rosa gave evidence that before her husband suffered the stroke, she visited Caterina frequently. As she does not drive, and never has, following her husband’s stroke, Rosa’s visits to her mother became less frequent. Rosa has however over the years frequently spoken on the telephone to her mother.
Carmela
Carmela was aged 68 at the time of the trial. Carmela and her husband, who will be 80 years old this year, live in suburban Adelaide and have done so since 1964. They own their home. The home has a value of $255,000.00. They have no debt. They have three adult children, aged between 42 and 50 years. Carmela’s husband has suffered for some time from heart problems, and has been reliant on a pension for many years. Carmela is in receipt of the aged pension.
Carmela married when aged 17 years. She gave evidence of visiting her parents every weekend to the time of her father’s death. Carmela continued to visit frequently following the death of her father. She spoke of frequent telephone contact with her mother. Carmela ensured that her mother received appropriate Italian food twice a day during the last eight years of her life in the nursing home. Carmela visited her mother every day.
Relevance of Joseph’s Pension to the Assessment of his Claim
There is some debate in the authorities, and indeed conflicting authorities, on the topic of the relevance in a family inheritance claim of a claimant’s receipt of a pension.
The decision of Bray CJ in this Court is a convenient starting point. That decision involved a claim by a deceased’s widow for further provision from the estate; an estate of about $12,000.00. The testator, by his will, left $100.00 each to his wife and son and the remainder to a children’s hospital. Bray CJ determined that the testator had failed to discharge his moral duty to provide adequately for his wife and that her right to a pension, though a relevant fact to be taken into account, was not to be regarded as a substitute for the obligation on the testator to provide for his wife’s maintenance. Bray CJ reasoned:[10]
I could give her an annuity to be paid out of income and, in so far as income is insufficient, out of capital, leaving the residuary gift to the hospital to stand. Such an annuity would have to be of a greater amount than $32.40 a week or it would merely replace the pension without conferring any real benefit on her. I do not think that I ought to regard the right to the pension as a substitute for the obligation on the deceased to maintain her, though it is a fact to be taken into account (In re Beard, (deceased); Chapman v. Elders Trustee and Executor Co. Ltd.). She says she has high blood pressure but that she thinks she could take a job, but again I do not think that whatever capacity she has to earn should be regarded as a total or even a partial discharge of her husband's moral obligation towards her. Nor do I see why I should make an order which would operate primarily in relief of the taxpayer: cf. In re Whiting. The position, as I see it, is that if the testator had performed what I must find on the evidence before me to have been his moral duty to the plaintiff, and if he had been fully aware of all the relevant circumstances, an assumption which I must make for the purpose of working out an appropriate order (In re Allen (Deceased); Pontifical Society for the Propagation of the Faith v. Scales, per Dixon C.J. at p. 20) he would have calculated on her becoming entitled to a widow's pension and would have left her the bulk of the capital of his estate so that she could supply herself as far as possible with whatever she needed to make a comfortable home for herself in her widowhood without disentitling herself to the pension. That I think would have been adequate provision for her proper maintenance—or advancement, if that is the preferable term—as far as the testator could provide it.
[Footnotes omitted. Emphasis added.]
[10] In Re Pope, Deceased (1975) 11 SASR 571, 574.
The decision of the Full Court of the Supreme Court of Western Australia in 1989 in Bondelmonte v Blanckensee[11] is also relevant. In that decision, following an earlier decision of Shah v Perpetual Trustee Co,[12] it was determined that the receipt of a pension by the claimant in that case was not a relevant consideration in the determination of the quantum of provision:[13]
The second ground of the appeal raises for decision the relevance of the amount of the widow’s pension received by the appellant in the determination of the amount required for her proper maintenance. The learned judge said:
“In directing my attention to the question to the question of what provision ought to be made out of the estate of the deceased I take into account…that to provide her with any benefit by way of an annuity would affect her entitlement to receive a pension under the Social Security Act 1947 (Cth).”
The clear inference from this passage, and what follow it, is that the learned judge approached the matter on the basis that the provision which should be made for the appellant’s proper maintenance should be one which would supplement her pension. In my opinion, this approach was in error. The fact that the appellant was in receipt of a widow’s pension was relevant to a determination of her financial needs and circumstances. As the learned judge said “…the amount of the pension is barely enough for her personal survival”. That being so, the pension ceased to be of relevance. It was not a proper exercise of discretion to structure the provision for the appellant so as to preserve her right to a pension or otherwise to assume its continuance: Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 100, per Rathe J; cf Lieberman v Morris (1944) 69 CLR 69 at 81, per Rich J.
[11] Bondelmonte v Blanckensee [1989 WAR 305.
[12] Shah v Perpetual Trustee Co (1981) 7 Fam LR 97.
[13] Bondelmonte v Blanckensee [1989] WAR 305, 312.
In King v White, Hedigan J observed:[14]
There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator’s duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known in the community that the receipt of the old age pension is now assets and means tested. Indeed, in this very case, this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow.
[14] King v White [1992] 2 VR 417, 424.
In Whitmont v Lloyd, Bryson J commented:[15]
The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for protection of private interests and serves public policy: see Dillon v Public Trustee of New Zealand [1941] AC at 303, 304 and observations, not uniform in their import in judgments in Lieberman v Morris (1944) 69 CLR 69. In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court’s task to be vigilant to throw burdens off public funds and on to private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources. In my understanding this expresses the view on which this Court administers the legislation. See my observations in Wentworth v Wentworth (14 June 1991, unreported at 132) which appears not to have attracted criticism in the Court of Appeal (3 March 1992): ‘The testator should not have disposed of all the family wealth in ways of his own choosing and left the family’s economic casualty to relative penury or dependence on social agencies.’ See too Parker v Public Trustee (Young J, 31 May 1988) and Thom v Public Trustee (Master McLaughlin, 2 April 1992), both noted in Leslie’s Equity and Commercial Practice F30: 1010.
[Emphasis added.]
[15] Whitmont v Lloyd (Unreported, Supreme Court of New South Wales, Bryson J, 31 July 1995).
In the Supreme Court of Victoria in 2004, Nettle J in McKenzie v Topp,[16] followed Re Pope, when assessing the circumstances of the claimant in that case:[17]
Apart from his own children, there is no one with responsibility to maintain the plaintiff. He is alone and without support except for the old age pension. I take the pension into account as a relevant consideration but I do not regard it as a substitute for the obligation of the testatrix adequately to provide.
[Footnotes omitted.]
[16] McKenzie v Topp [2004] VSC 90.
[17] McKenzie v Topp [2004] VSC 90, [38], there his Honour also referred to the decision in Gapes v Haeberle and Haeberle [2003] VSC 461, [23], [30].
I consider that Joseph’s receipt of an aged pension is a relevant consideration. The receipt of the pension is relevant to a determination of Joseph’s financial needs and circumstances. As directed by the High Court in Singer v Berghouse,[18] this is a critical consideration in the two-stage inquiry undertaken in a family provision claim. Some authorities may express concern about the appropriateness of, in a way, fashioning further provision so as to avoid causing a plaintiff to become disentitled to a means-tested government benefit. This question, however, does not directly arise in the present proceeding.
[18] Singer v Berghouse (1994) 181 CLR 201.
As demonstrated by the passages extracted from the above authorities, the size of the estate may impact an entitlement to the receipt of a pension; that is, in the case of a small estate, the pension may assume more relevance than in a large estate.
Findings
As earlier discussed, Joseph’s claim for further provision from the estate of Caterina is to be addressed having regard to the two-stage process identified in Singer v Berghouse.
Joseph assisted Vincenzo particularly in his teenage years in the development of the Findon property. However, in his early twenties he obtained employment and elected to reside away from the family home and then to travel overseas for a number of years. He returned in a disabled state to the family home and for several years was supported by his parents. It is difficult to gauge the extent of their support, though it appeared to be substantial. Thereafter from about the early 80’s Joseph’s health improved but he remained with his parents and sister in the family home at Two Wells. He remained there throughout Caterina’s life without being required to pay rent or board. It is clear that the property at Two Wells was productive, providing not only fruit and vegetables but also olive oil and wine as well as products from livestock. Once Joseph’s health improved he provided support to his parents in their ageing years as well as to his sister Maria. It might be expected that his support to his father and sister benefitted his mother Caterina.
The above summarises the give and take of a family arrangement. In my view, Joseph not only provided benefits to his parents and sister but in return he received benefits both in support and of a material kind.
As discussed above, Ilario provided continuing support to his parents and Maria throughout his life. In substance, he was the child who stayed at or near home throughout his parents’ lives. He resided with his parents until he built his home in close proximity. Although he had employment away from home he continued to assist his parents and in particular his father in the working of the Two Wells land. He assisted his parents and Maria as well as Joseph in transportation requirements. He assisted his parents in regard to their everyday financial affairs. His assistance to his mother was through daily support, continuing throughout her years at the nursing home.
Rosa and Carmela provided ongoing support to their parents, their sister Maria and, in particular, Carmela provided daily support while Caterina was in nursing home care. In my view it has been established that they met their duties and obligations as daughters of Caterina, particularly bearing in mind their own family responsibilities.
When assessing Joseph’s position it is relevant to observe that he has lived his life without the acquisition of assets. It does not appear that he has ever had a substantial income. Notwithstanding his living rent free and making use of part of the produce from the Two Wells property for almost three decades, he has not been able to put aside any money or acquire any assets. His only source of income for many years has been the aged pension. He appears to have led a simple and frugal life for the past nearly 30 years. This is the background against which the Court is to determine whether he has made out his application for further provision.
Joseph’s claim is also to be considered having regard to the size of Caterina’s estate. The estate at trial had a value of about $1.2 million.
It is clear that Caterina saw a need to benefit each of her children, but a particular need to address the accommodation requirements of Joseph and Maria. It is in this respect that I have reached the conclusion that Joseph has been left without adequate provision for his proper maintenance. I consider that Joseph should have the benefit of a life interest in the Two Wells home property rather than a right of residence. I consider that Joseph should have the ability, if appropriate, to make use of the house property to provide for his future accommodation in alternative premises and in particular with a view to his care in old age. This provision can be met by converting his right of residence into a life interest and by providing power to the executor to sell the property and use the proceeds in the purchase of alternative property including entry into residential care accommodation.
I also consider that one other modest adjustment should be made to provide a greater cash resource to be invested and be available to meet Joseph’s everyday needs for the balance of his life. Joseph’s proper maintenance is best addressed by providing him with the present day value of his one-quarter remainder interest in the Two Wells home property.
In my view, the conversion of the right of residence to a life interest and the conversion of the remainder interest to a present day cash sum would properly address the making of adequate provision for Joseph’s proper maintenance when regard is had to the other benefit flowing to him through the estate of Caterina. The impact of these further provisions on Ilario, Rosa and Carmela in my view can be fairly borne by them having regard to their bounty on Caterina’s estate and their own personal circumstances. The conversion of Joseph’s remainder interest is to be achieved by assessing the present day value of Joseph’s one-quarter interest at $75,000.00 and to have Ilario, Rosa and Carmela each contribute one-third of that amount. That contribution could be made by an adjustment in regard to their present share of the sale proceeds of the Two Wells block.
Earlier in these reasons I set out the terms Maria’s will. It has been noted that she left her one-fifth interest in the Two Wells block to Ilario and her one-fifth interest in the Two Wells home equally to each of her siblings. The evidence allows the conclusion that Ilario provided considerable assistance to Maria throughout her life. During the course of final submissions it became apparent that Joseph seeks to reserve his position concerning any claim he might make for further provision from Maria’s estate. It appears that Joseph considers Maria to have been under some form of moral obligation to him as a consequence of his support to her. In making further provision from Caterina’s estate in favour of Joseph, I specifically have had regard to the support that Joseph provided to Maria. I consider this support would have been of great comfort to Caterina. If I had not had regard to this factor, the provision I would have made to Joseph from Caterina’s estate would be less than that outlined above.
A Further Matter

Some time after the conclusion of the evidence, I indicated to the parties my intention to make the orders I now make. However, I deferred delivering judgment until a report from an appropriately qualified medical practitioner as to the capacity of Joseph to manage his own financial affairs was obtained. That report has now been received. It is authored by Dr Hecker, a physician who specialises in the area of the mental health concerns of the aged. Dr Hecker observed that Joseph demonstrated a considered approach to the expenditure of any inheritance and she expressed the opinion that Joseph does have the capacity to manage his own financial affairs.
Conclusion
The plaintiff has made out a case for further provision from the estate of the deceased. The plaintiff is to have a life interest in the house property at Two Wells. The plaintiff’s one-quarter remainder interest in the house property is to be converted to an immediate cash payment of $75,000.00.
I will hear the parties as to the detailed terms of an order to reflect the above provisions. I will hear the parties as to costs.