Cotter v Tomassini - [2025] VSC 518

THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2021 00860

JACQUELINE CONCETTA COTTER	Plaintiff
v
PAUL ROBERT TOMASSINI (who is sued as the Executor of the Estate of IAN SACKVILLE COTTER)	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20, 21 & 24 February 2025 and further written submissions dated 26 & 28 February 2025
DATE OF JUDGMENT:	29 August 2025
CASE MAY BE CITED AS:	Cotter v Tomassini
MEDIUM NEUTRAL CITATION:	[2025] VSC 518

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FAMILY PROVISION AND MAINTENANCE – Application by adult daughter for provision from father’s large estate – Deceased’s will makes no provision for daughter – Whether moral duty owed by deceased – Mother received most of large matrimonial asset pool upon separation from deceased – Daughter is beneficiary of substantial estate under mother’s will – Deceased declared that no provision made for daughter because of assets provided to mother and daughter benefits under mother’s will – Deceased had dysfunctional relationship with daughter – Daughter not dependent on deceased at time of death – Daughter is member of limited class of beneficiaries of discretionary family trust with substantial income – Mother is trustee and unaware of obligations towards beneficiaries – Daughter has not received any distributions from trusts – Whether a wise and just testator would have made provision in the circumstances – Deceased had moral duty to provide for daughter’s proper maintenance and support – Will failed to make adequate provision – Further provision made to plaintiff to secure independent housing – Administration and Probate Act 1958, Part IV – Family Law Act 1979, s 90C – Owies & Owies v JJE Nominees Pty Ltd [2022] VSCA 143 – Lennan v Chao [2025] VSC 220 – McFarlane v McFarlane [2025] VSCA 163 – Vigolo v Bostin (2005) 221 CLR 191 – Collicoat v McMillan [1999] 3 VR 803 – Walsh v Walsh [2013] NSWSC 1065 – Re Christu [2021] VSC 162 – Seng Hpa v Walker [2017] VSC 320 – Hedman vFrazer [2013] NSWSC 1915 – Joss v Joss [2020] VSC 424.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Gannon	Nicholas O'Donohue & Co
For the Defendant	Mr J Evans KC with Mr J Smith	King & Collins

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Witnesses............................................................................................................................................. 2

The Cotter Family.............................................................................................................................. 3

The Ian Cotter Family Trust and the Crepes Au Grattan Unit Trust....................................... 5

Maria and Ian’s Divorce................................................................................................................... 7

Wills.................................................................................................................................................... 10

Other proceedings............................................................................................................................ 12

The Estate........................................................................................................................................... 12

Jacqueline Cotter: background and circumstances................................................................... 13

Trusts controlled by Maria............................................................................................................. 21

Legislation and general principles............................................................................................... 28

Moral duty............. ..................................................................................................................... 34

Section 91A(1): mandatory considerations.................................................................................. 38

Section 91A(2): discretionary considerations.............................................................................. 40

Moral duty......................................................................................................................................... 51

Plaintiff’s submissions................................................................................................................ 51
Defendant’s submissions........................................................................................................... 56
Consideration........ ..................................................................................................................... 60

An order for provision?................................................................................................................... 70

HIS HONOUR:

Overview

In this proceeding the plaintiff, Jacqueline Cotter, seeks an order pursuant to Part IV of the Administration and Probate Act 1958 (the Act) that provision be made for her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cotter v Tomassini

Details

AGLC: Cotter v Tomassini [2025] VSC 518
Case: [2025] VSC 518
Decision Date: 29 August 2025

CaseChat Overview and Summary

In Cotter v Tomassini, the deceased father's estate was the subject of a claim for additional provision by his adult daughter. The deceased had made no provision for the daughter in his will, and the daughter sought maintenance under the Family Provision Act. The daughter was not dependent on the deceased at the time of his death, but she had a dysfunctional relationship with him. The deceased had provided significant assets to the daughter's mother, and the daughter stood to benefit substantially from her mother's will. The deceased had declared that no provision was made for the daughter due to the assets provided to her mother and the daughter's benefits under her mother's will. The daughter was also a beneficiary of a discretionary family trust with substantial income, but had not received any distributions.

The court was required to determine whether the deceased had a moral duty to provide for the daughter's proper maintenance and support, and whether the will failed to make adequate provision. The court considered the deceased's relationship with the daughter, the assets provided to the daughter's mother, and the daughter's benefits under her mother's will. The court also considered the daughter's status as a beneficiary of a discretionary family trust with substantial income. The court had to balance the deceased's right to dispose of his property as he sees fit with the moral duty to provide for the proper maintenance and support of his family members.

The court found that the deceased had a moral duty to provide for the daughter's proper maintenance and support, but that the will failed to make adequate provision. The court held that the deceased had provided significant assets to the daughter's mother, but that this did not absolve him of his moral duty to provide for the daughter. The court also found that the daughter's benefits under her mother's will did not absolve the deceased of his moral duty. The court made an order that the daughter receive a further provision from the estate to secure independent housing. The court considered the deceased's dysfunctional relationship with the daughter, but held that this did not absolve him of his moral duty. The court also considered the daughter's status as a beneficiary of a discretionary family trust with substantial income, but held that this did not absolve the deceased of his moral duty.

Orders