Hansen v Hennessey

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI 2011 1753

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

- and -

IN THE MATTER OF the Will and Estate of Christa Meta Elisabet Phillips, deceased

B E T W E E N

DORIS HANSEN, KAREN HANSEN and RALF HANSEN	Plaintiffs
v
INGE HENNESSY	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2012, 12 February 2013, 26 March 2013 and 19 December 2013; written submissions
DATE OF JUDGMENT:	10 February 2014
CASE MAY BE CITED AS:	Hansen v Hennessey
MEDIUM NEUTRAL CITATION:	[2014] VSC 20

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FAMILY PROVISION — Applications by adult children of the deceased — Defendant executor is sibling and residuary beneficiary — Long history of family conflict — Minimal provision for the plaintiffs in will — Estrangement between the first and second plaintiffs and the deceased prior to her death — Whether caused by the deceased — Whether third plaintiff abandoned the deceased prior to her death — Previous good relationships — Whether the deceased retained a responsibility to make provision for them — Small estate — award for third plaintiff — Defendant mixed estate funds with her own funds — Personal liability for award - Administration and Probate Act 1958 (Vic) ss 91 and 99A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Wells	Maddens Lawyers
For the Defendant	In person

TABLE OF CONTENTS

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

Outline of the facts............................................................................................................................ 4

Applicable law.................................................................................................................................. 12

Application of these principles to this case................................................................................ 16

Issues.................................................................................................................................................. 17

Relationship between the plaintiffs and the testatrix.............................................................. 18

The relationship prior to 2009................................................................................................... 18
Relationship with the plaintiffs from 2009.............................................................................. 21

Ralf........................................................................................................................................... 21
Doris......................................................................................................................................... 25
Karen........................................................................................................................................ 32

Conclusions as to relationship and conduct........................................................................... 33

Size and nature of the estate.......................................................................................................... 34

Mercedes Benz van..................................................................................................................... 36
Debts due by Ralf........................................................................................................................ 39
Ford bus........................................................................................................................................ 41
Shares............................................................................................................................................ 42
Allowable expenses and liabilities........................................................................................... 43
Conclusions as to the size and nature of the estate................................................................ 47

Other s 91(4) factors......................................................................................................................... 49

Section 91(4)(h) – financial resources and needs of the plaintiffs and the beneficiaries... 49
Section 91(4)(k) – contributions by the plaintiffs to the estate or welfare of the testatrix 50
Section 91(4)(l) – benefits previously given by the testatrix to the plaintiffs, defendant and other beneficiaries................................................................................................................................. 51
Section 91(4)(o) – character and conduct of the plaintiffs and any other person.............. 51
Section 91(4)(p) – any other relevant matter........................................................................... 52

Conclusion in relation to responsibility to make provision................................................... 53

Conclusion in relation to amount of further provision............................................................ 55

HER HONOUR:

Introduction

The plaintiffs are three of the five children of Christa Meta Elisabet Phillips and Gerhard Hansen. Ms Phillips died 14 November 2010 from pancreatic cancer, first diagnosed in May 2010. This proceeding concerns the plaintiffs’ application for further provision from her estate pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”).

The first plaintiff, Doris Hansen, is the eldest child, born 19 July 1958 and so now 55 years old. The third plaintiff, Ralf Hansen, was the next born child, born 9 April 1960 and now 53. The defendant is the executor of their mother’s will and was born next on 18 December 1962. She is now 51 years old. The second plaintiff, Karen Hansen, was the fourth born child on 12 October 1967 and so is now 46 years old. The fifth child, Michelle Kelleher, was born 21 January 1972 and is now 42 years old. She is not a party to the proceedings but filed an affidavit in support of the defendant. Her affidavit was admitted into evidence without objection and without cross examination. All the parties gave oral evidence and were cross examined. I will call the parties and Ms Kelleher by their first names in these reasons for convenience, without intending any disrespect. I will describe their mother either by that term, or as the testatrix.

By her last will dated 16 October 2010, the testatrix made a bequest of $40,000 to Michelle and several smaller bequests, including a gift of two motor vehicles to the plaintiffs collectively, and left the residue of her estate to the defendant. The plaintiffs contend that one of the motor vehicles gifted to them, being a Mercedes Benz van, was in fact the property of Ralf, not the deceased. They say the other motor vehicle, a Ford Bedford bus, is of no commercial value. Accordingly, they say that their mother made essentially no provision, or only very small provision, for them by her last will, and this provision was inadequate. They seek an order that further provision be made for them in the sum of $25,000 each. They do not seek to disturb the distribution already made of $40,000 to Michelle, although they do contend that the defendant was not required to make certain other payments to her, and so they are no allowable expenses in calculating the net estate. The plaintiffs also seek payment of all of their legal costs and disbursements. The plaintiffs seek that both the further provision and their costs and disbursements be met by the defendant personally, on the basis that she has mixed her own and the estate’s funds.

The defendant initially had solicitors acting for her, but they ceased to act prior to the filing of any evidence by her. The defendant was unrepresented at the hearing, save for one occasion when I requested that the Court arrange a duty barrister for her. Mr Gronow of counsel attended on that occasion and was of assistance to the defendant and the Court. I will discuss the circumstances that lead to that request later in this judgment. The defendant did not file any written closing submissions in opposition to those of the plaintiffs within time. I refused a late application by her to file written submissions out of time, for reasons given on that day, 19 December 2013.

One consequence is that there is no opposition to the factual contentions made in the plaintiffs’ final written submissions on the basis of the financial documents provided after the hearing by the defendant. Ordinarily of course, financial documents would be provided prior to, or in the course of the trial, and so factual contentions said to arise from them adverse to a party would be put to that party in cross examination, to give that party an opportunity to comment. The plaintiffs sought to give the defendant that opportunity, by a notice to produce served on her in the course of the trial. As set out in more detail later in this judgment, the defendant did not comply with the notice, did not comply with expanded orders to similar effect made on 12 February 2013 and only complied when still further orders to similar effect were made on 26 March 2013. The defendant would have had the opportunity to contest the plaintiffs’ conclusions arising from these documents had she filed her submissions within time, but she did not.

I will assume in fairness to the defendant that she opposes all aspects of the plaintiffs’ case, both legal and factual, unless it is clear from the hearing that in a particular instance she does not.

In opposing the plaintiffs’ application, the defendant has focused in particular on the last two years of their mother’s life, during which time the testatrix and each plaintiff became estranged and the testatrix reconciled with her youngest child Michelle, from whom she had previously been estranged. The plaintiffs have sought to place the events of these last two years within the whole of the relationship between the plaintiffs and their mother over their lives. Doris and Karen also say that the estrangement was caused by their mother’s conduct towards them. All plaintiffs dispute the defendant’s evidence as to the quantum and content of the estate.

Outline of the facts

I draw much of the following account of the early years of the family from the evidence in chief of Doris in her affidavit. I will indicate if that evidence was contested and make findings accordingly if required. The affidavits of Karen and Ralf contain very little additional factual information as to their relationships with their mother over time, and so provide little additional support for the submission put on their behalf that the relationship was such as to impose on their mother a responsibility to make adequate provision for their support irrespective of what occurred shortly prior to her death. Further, it was a regrettable feature of this case that, notwithstanding that the plaintiffs were represented, all of their affidavits contained much irrelevant or otherwise inadmissible material, including the expression of opinion. Perhaps taking her lead from the plaintiffs’ affidavits, Inge’s affidavits were similarly beset with much irrelevant or otherwise inadmissible material.

The parents of the parties both emigrated to Australia from Germany after the Second World War. They married in Australia in 1957 and subsequently divorced in 1984. Each re-partnered. The parents settled in the western suburbs of Melbourne where the children grew up, save for a period of about 12 months in which the parents and the three eldest children (Doris, Ralf and Inge) returned to Germany. Inge also spent a period in Germany as a child.

Both Doris and Inge testify to a turbulent family life in their natal home, although they differ as to reasons for the strife. In the account of Doris, her parents were controlling and emotionally abusive and would pick favourites amongst the children and play one child off against another. Doris says she had a difficult relationship with Inge during their childhood. Inge also reports difficult relationships between her and the plaintiffs in childhood. Inge and Ralf were close at times, but are no longer so. It appears from all the evidence that there is now a strong antipathy between the plaintiffs and Inge.

The first plaintiff, Doris, left home at the age of 17. She married at age 22 in 1980, and subsequently separated from that husband in 1984. In her evidence‑in‑chief she said that she remained in regular and amicable contact with both her parents after moving out of their home, initially seeing them together and then, when they separated, separately. In 1985, the testatrix formed a de facto relationship with Norman Phillips and they remained in that relationship until his death in 1994. The testatrix received a bequest from his estate.

In the years immediately after their mother’s divorce and property settlement from their father, it appears likely from the account given by Doris in her affidavit (on which she was not cross‑examined) and I so find that all five children were still living in Victoria and on reasonable terms with their mother. I make this finding on the basis of the evidence of Doris that the testatrix gave them each $5000 from the property settlement, and further that she then purchased a house in Sunbury where she lived with Karen (then approximately 17) and Michelle (then approximately 12) who were both still at school. Doris lived with her brother Ralf in Sunbury after she separated from her first husband in 1984 and then with Karen (who it appears had moved out of home) at Werribee. Neither Ralf nor Karen have given any detail as to where they were living, or their relationship with the deceased at this time, but as the account given by Doris is not contested by Inge, I find it to be correct.

Inge was 22 or 23 at the time of her parents’ divorce in 1984 and married her first husband that year. She moved interstate, to Queensland, in 1987 when that first marriage broke down. Inge has remained living in Queensland. Notwithstanding this move, Inge’s evidence‑in‑chief is that she was always emotionally close to her mother, and maintained a relationship with her after she moved to Queensland by telephone each week. It was not suggested otherwise in cross‑examination.

Ralf’s oral evidence is that he currently lives and works in the Northern Territory during the winter or northern dry season, and travels to work in Victoria in the other months. It appears from Ralf’s affidavit that he lived in Queensland from at least the late 1980s, and prior to that in Western Australia for two years. He does not give much evidence as to his relationship with his mother, with the exception of the last two years of her life, although efforts made by her to support him in various ways over the years (which I will detail later in this judgment) suggest there was no estrangement (if at all) until shortly before her death. Inge and Ralf, each living in Queensland from the late 1980s, agree that they were in contact with each other (although they disagree as to the degree of affection this indicated) and had a falling out over money issues in about 2003. Ralf’s relationship with his former wife and mother of his children became very acrimonious in the early 2000’s and he says he suffered a breakdown in 2003 and still suffers from depression and its consequential effects on his social and working life.

Doris commenced living with her current partner, James Broadley (“Gus”), in 1989 in Altona. The testatrix was still living in Sunbury at that time, and Doris says that she and Gus frequently visited both her parents, and in turn were visited by them. Doris and Gus moved to Apollo Bay in 1990/early 1991. It appears from Doris’ affidavit that their first child, Luke, was born in about 1991, their second child, Annie, two years later and Dylan, their third child, two years later again.

Doris says that she remained in regular contact with her mother after she moved to Apollo Bay. Her mother would spend two or three nights each two months at Apollo Bay, and there were similar visits by Doris and her children to her mother at Sunbury. Doris says that her mother was very fond of her grandchildren by Doris, particularly when they were young.

Doris has remained living at Apollo Bay. Her mother, the testatrix, relocated to Ocean Grove in 1995 after the death of her partner, Norman Phillips. At that time, Doris says Karen was living at Ferntree Gully in the outer east of Melbourne, and Doris says that both she and Karen had regular contact by way of visits with her mother and that she also visited them regularly. Karen confirms Doris’ affidavit, but does not add any detail in relation to this period.

Michelle moved to the United States in 1997. She does not give any evidence in her affidavit as to her relationship with her mother, save for the period following her mother’s diagnosis with terminal pancreatic cancer, in May 2010. There are suggestions elsewhere in the evidence that she and her mother had previously been, for four or five years at least, estranged or at least not in contact.

The testatrix remained living at Ocean Grove until 2001. She then moved to Lynbrook near Cranbourne where she lived until January 2010. During the period the testatrix was living at Cranbourne and up until early 2009, Doris says she visited her mother with the children, or her mother visited them at Apollo Bay, or they met in Geelong, at least once each month and sometimes more frequently.

In the early years at Cranbourne both Doris and Karen say that the testatrix babysat Karen’s children on a regular basis to allow Karen to work in a restaurant business with her partner. I accept Karen’s oral evidence that in 2002 the testatrix looked after her children five nights a week, while she and her partner worked at the restaurant, and then for a further year one night a week and weekends. Thereafter her mother babysat the children on occasion. In her affidavit Karen says that her relationship with her mother was “tumultuous”[1] and that while they enjoyed a “good relationship” while her mother lived at Cranbourne, her mother could be “hot and cold”.[2] Karen speaks of these years in an email that she wrote to her sister Michelle after her mother’s death, on which the defendant cross examined her and which became Exhibit 8. Karen says in that email that the years when her mother assisted her at Cranbourne were the best times in her relationship with her mother, but they had a falling out over Karen’s separation and then divorce from her husband.
[1]Affidavit paragraph 5.
[2]Affidavit paragraph 7.

Karen separated from her husband in 2005 and divorced in 2006. In that email she said that initially thereafter she remained living in Ferntree Gully and maintained a relationship with her mother, but when arguments continued she moved to Townsville in 2007. She said in cross examination that she was still in contact with her mother thereafter, but not regularly.[3] Karen subsequently moved back to Victoria in the Otway region, where she still resides, to be closer to Doris. It is not clear on the evidence when this occurred. In cross examination, she said that she last spoke to her mother, prior to seeing her two days before she died, in March 2009.
[3]T160.

In a previous will dated 22 March 1995 the deceased divided her estate amongst all five of her children in equal shares (subject to loans she asserted that she had made to the children). There are suggestions in the evidence that the deceased also made later wills (which are not themselves in evidence), in which she also provided for equal division amongst the children. Relations between the deceased and the plaintiffs became very strained, however, from January 2009 when they learnt that she had been advancing money to Inge from September 2008. An outline of the uncontested facts relating to the period from January 2009 to the deceased’s death in November 2010 follows. I will discuss this period in more detail later in this judgment.

The deceased wrote to the other four children i.e. the plaintiffs and Michelle on 28 January 2009. In that letter[4], the deceased reaffirmed an intention to divide her estate evenly between her five children, but said she was providing Inge’s inheritance to her upfront, by way of payments of $1000 per month from January of that year. She indicated that she proposed to change her will to reflect this advancement, and the other four children would in fact be better off financially as a consequence.
[4]DH-1 to the affidavit of Doris Hansen.

Karen wrote to her mother in early 2009 asking her not to contact her in any way thereafter. Doris wrote in similar terms to their mother in April 2009. Karen and Doris say that they did so to protect themselves against emotional harm and in response to abusive letters from their mother.

The testatrix gives an account, from her perspective, of her contact with Doris and Karen prior to and after these letters in her letter of 13 September 2009 to Ralf.[5] In that letter, the deceased writes that she has put her house at Cranbourne on the market and is planning to move to Queensland to live with Inge. She says that she had not heard from Michelle for four years, and expresses the view that only Ralf and Inge care for her. She refers to making a new will in May 2009 in terms that indicated that Karen and Doris (and perhaps Michelle) would not benefit. This letter is consistent with other letters[6] she wrote to Doris, Karen and Michelle on the one hand and to Inge in May 2009, to the effect that Doris, Karen and Michelle had behaved badly towards her, and she had “had it with them” (as per her letter to Inge), although she said in the letter to Doris, Karen and Michelle that she forgave them.
[5]IH-48 to the affidavit of Inge Hennessey sworn 1 May 2012.
[6]Respectively, IH-47 and IH-43 to the affidavit of Inge Hennessey sworn 1 May 2012.

In late 2009, the deceased sold her house in Cranbourne and with Inge’s help moved her belongings, including a VW Caddy she purchased for $36,000 to Queensland to live with Inge. Ralf visited them at Christmas and the deceased told Inge that she had decided to move to Ballarat with Ralf instead. Ralf had in fact purchased a house in Ballarat on her behalf in early December 2009. In January or early February 2010 the deceased moved to Ballarat to live with Ralf.[7] In May 2010, the deceased was diagnosed with pancreatic cancer, undergoing surgery in that month. Doris and Karen learnt of this diagnosis indirectly in about June, via a Facebook reference. Michelle learnt of the diagnosis by a telephone call in late June 2010.
[7]The house purchase settled on 21 January 2010, but Ralf’s evidence is he and his mother moved in a week later. T 81.

After learning of the diagnosis, Inge visited the testator from Queensland for seven weeks from late May until mid-July 2010. Michelle travelled from the United States to visit her mother five days after learning of the diagnosis and remained until mid-July 2010. According to Michelle, Ralf had already moved out of the Ballarat home where he had been living with his mother prior to Michelle’s arrival on 29 June 2010, initially to his father’s house in Sunbury from where he travelled a week later to the United States and Cuba. The arrangement between them was that he could stay at Michelle’s home in Virginia, although Michelle and her husband later withdrew their consent. Michelle’s evidence is that Ralf’s trip had been planned for August, but Ralf brought it forward, although their mother did not know of his travel plans until shortly after he left the Ballarat home. Ralf says it would have been evident to his mother from the nature of their discussions before he left that he was going overseas. There is conflicting evidence as to when Ralf returned, but it was at least by early September. He did not return to the Ballarat house where his mother remained on his return. There is no evidence that he saw his mother again before her death, and indeed the implication from the whole of the evidence is that he did not.

Doris and Karen did not see their mother after her diagnosis until two days before she died in November 2010. Michelle visited Apollo Bay twice in the two weeks she was in Australia in June/July, where she states she saw her “siblings” i.e. both Doris and Karen, and made efforts to arrange a visit between their children and their grandmother, the testatrix. She rented accommodation in Ballarat on two occasions so the grandchildren could visit their grandmother. No visit took place. Doris wrote a further letter to her mother in July 2010[8], stating that she, Doris, loved her and was sorry that she was very ill, but asking her mother not to contact her again.
[8]DH-3 to Doris’s affidavit.

Inge made another short visit to her mother in early August, after her chemotherapy regime ended[9], and in late September 2010, Inge made her third visit to Victoria to visit her mother after the diagnosis. She remained in Victoria until her mother’s death on 14 November 2010, returning for her funeral after a brief return to her home in Queensland. Inge’s account is that the testatrix rang her in late September and said that she was ready to move to Queensland as she “could not do it on her own any more”.[10] Inge says that she came down immediately, and she and Michelle began to implement arrangements that had been previously discussed to relocate the testatrix to Queensland, to either live with Inge or at a palliative care home near Inge’s home. Michelle returned to Australia from the United States on 25 October 2010, going first to Brisbane to set up arrangements there and then travelling to Ballarat. She remained in Australia until after her mother’s funeral.
[9]Inge in re-examination, T405.
[10]Ibid, T406.

As events transpired, the testatrix died before the move to Queensland was made. She made her final will, appointing Inge as executor and making her the residuary beneficiary, on 16 October 2010. The deceased entered hospital for the last time on 21 October 2010 due to dehydration and was not discharged before her death. Inge’s evidence is that on 21 October 2010 her mother had accepted an offer to purchase her Ballarat home, which was to be sold because of the move to Queensland. Inge subsequently signed the contract for sale as attorney for the deceased. According to Inge and Michelle, shortly before she died their mother asked to see her grandchildren. Doris and Karen attended the hospital on a Friday, with their children, and their mother died the following Monday. The sale of her home was completed on 26 November 2010, after her death.

The plaintiffs were effectively excluded from their mother’s funeral, Inge and Michelle saying that this was in accordance with their mother’s wishes. They caused a solicitor to write enquiring about the estate shortly thereafter. The defendant obtained a grant of probate on 25 January 2011. She had already made a substantial distribution under the will prior to that time, paying Michelle her legacy of $40,000 together with $6,540 for her expenses on 15 December 2010.[11] The plaintiffs contend that those expenses are not properly allowable under the will. The plaintiffs filed their claim on 14 April 2011, having given prior notice of it to the defendant.
[11]Plaintiffs’ Final Submissions at [20].

Applicable law

The power to award provision or further provision to a person from the estate of a deceased person, and so effectively change the distribution of the estate as set out in the deceased’s will, is contained in Part IV of the Act. That Part also provides for the time frame within which such an application must be made, and for protection of an executor who has distributed the estate after the expiration of that time period without notice of such an application, but not otherwise (except in limited circumstances not here applicable).

Section 91 of the Act empowers the Court to make an order for provision or further provision from the estate. It provides as follows:

(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
(2)The Court must not make an order under subsection (1) in favour of a person unless—
(a)that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.

(3)The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by—
(a)       his or her will (if any); or
(b)       the operation of the provisions of Part I, Division 6; or
(c)       both the will and the operation of the provisions—
does not make adequate provision for the proper maintenance and support of the person.
(4)The Court in determining—
(a)whether or not the deceased had responsibility to make provision for a person; and
(b) whether or not the distribution of the estate of the deceased person as effected by—
(i)the deceased's will; or
(ii)the operation of the provisions of Part I, Division 6; or
(iii)both the will and the operation of the provisions—

makes adequate provision for the proper maintenance and support of the person; and
(c)the amount of provision (if any) which the Court may order for the person; and
(d)any other matter related to an application for an order under subsection (1)—

must have regard to—
(e)any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i)any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j)the age of the applicant;
(k)any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m)whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n)the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p)any other matter the Court considers relevant.

The Court undertakes consideration of a claim under s 91 in two stages. The first stage grounds the Court’s jurisdiction. The plaintiffs must establish both that the deceased had a responsibility to make provision for each of them (s 91(1)) and that the will has not made adequate provision for each of their proper maintenance and support (s 91(3)). If a plaintiff so establishes, the Court moves to a discretionary consideration of the proper amount of further provision. In respect of both stages, the Court is required to consider the factors enumerated in s 91(4). The plaintiffs have made a joint application, and each seeks the same amount of further provision, but the case of each plaintiff must be separately established and considered.

In reasoning from the s 91(4) factors to a conclusion that the testator had a responsibility to make provision for the claimant and had failed to make adequate provision for his or her proper maintenance and support, the Court is required to apply a standard or make a value judgment,[12] often expressed as the “moral duty” of the testator. The test the Court applies is what “wise and just, rather than a fond and foolish (testator)” “ought to have done, in all the circumstances of the case”.[13] The concept of a moral duty or responsibility to act as a wise and just testator is an exception to the freedom to dispose of one’s property as one sees fit, which is regarded by the courts as an important human right.[14] The Court is required to make this value judgment as to a testator’s moral duty having regard to prevailing community attitudes.[15]
[12]Blair v Blair (2004) 10 VR 69, per Nettle JA at [41]; Forsyth v Sinclair [2010] VSCA 147, per Neave JA at [83].
[13]Bosch v Perpetual Trustee Company Ltd, [1938] AC 463,at 478-9 per Lord Romer, cited by Hargrave J in Herszlikowicz v Czarny [2005] VSC 354 at [106].
[14]Grey v Harrison [1997] 2 VR 359, per Callaway JA at 366; Hargrave J in Herszlickowicz v Czarny, op cit, at [110].
[15]Forsyth v Sinclair, per Neave JA ibid.

“Adequate provision” and “proper” maintenance and support are also relative concepts, that depend on all the facts of the case. What is “proper” maintenance and support will depend on the claimant’s situation in life, and what is “adequate” provision will depend on his or her financial needs, and capacity to meet those needs.[16] These issues too must be considered having regard to the size and nature of the estate and the other matters specified in s 91(4), including, within s 91(4)(p), the testator’s wishes as to disposition.
[16]See the discussion in Herszlickowicz v Czarny, op cit, at [111]-[115].

If jurisdiction to make an award is established, the Court moves to the next stage i.e. determining what further provision to order. In that regard, the Court also takes into account the s 91(4) factors. The Court is required to exercise its discretion so as to not “transgress unnecessarily upon the (testator’s) freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just (testator)”.[17]
[17]McKenzie v Topp, [2004] VSC 90, per Nettle J at [63].

The Court determines whether or not the testator made adequate provision for the claimant by consideration of the relevant facts and circumstances as at the testator’s death. The question of what further provision to order is determined having regard to the facts and circumstances at trial.[18]
[18]Prosser v Twiss [1970] VR 225 at 232, per Lush J.

The Act provides in s 99 that an application for provision or further provision must be made within six months of the date of the grant of probate. The plaintiffs’ application was made within that time frame. They had also given earlier notice of their intention to make application.[19] The defendant as executor had, however, already distributed the estate to some degree by that time (to herself as well as to Michelle), and within six months of the date of the grant of probate. In so doing, she has rendered herself unable to rely on the protection from personal liability that is afforded an executor by s 99A of the Act. The relevant portions of that section provide as follows:
[19]T292.
S 99A
(3)No action shall lie against the personal representative by reason of his having distributed any part of the estate if the distribution was properly made by the personal representative after the expiration of six months after the grant of probate of the will or of letters of administration (as the case may be) and without notice of any application or intended application under this Part in respect of the estate.
(4)For the purposes of this section notice to a personal representative of intention to make any application under this Part shall be in writing signed by the applicant or his legal practitioner and shall lapse and be incapable of being renewed, and the personal representative may act as if he had not received the notice, unless, before the expiration of three months after the day on which he first receives notice of intention to make the application, the personal representative receives notice in writing that the application has been made to the Court:
Provided that nothing in this subsection shall prevent the subsequent making of an application within any other period allowed by this Act.
Application of these principles to this case

The first matter for the Court to consider is whether the testatrix had a responsibility at the time of her death to make provision for the plaintiffs. In earlier times, there were reservations as to the extent to which an adult child, particularly a son, could successfully apply for further provision. This approach has softened in recent times. In Blair v Blair[20] the Court of Appeal held that it was no longer the case that an adult son must establish a special claim for further provision. In a number of recent cases further provision has been ordered for adult children, even adult children with other financial resources.[21] It remains the case, however, that there is no legal presumption or starting point that a parent remains responsible to make provision for an adult child, in particular for an adult child irrespective of the relationship between parent and child and other factors identified in s 91(4). Accordingly, the plaintiffs must first show that their mother retained a responsibility to make provision for each of them, having regard to the statutory criteria.
[20][2004] VSCA 149.
[21]Berkelmans v Bulach [2009] VSC 472; Klemke v Lustig [2010] VSC 502; Litchfield v Smith & Tingate [2010] VSC 466.

If they succeed in that regard, they must next show that the bequests in their favour were inadequate. The plaintiffs seek equal provision as between themselves, but do not seek equal provision for themselves as compared with the deceased’s other two children, Inge and Michelle. For completeness, however, I note that just as there is no presumption or starting point that a parent should make provision for an adult child, there is no presumption or starting point that a parent should make equal provision for all his or her children[22]. The onus of proof is on the plaintiffs on all issues. The defendant need not show reasons to justify the more favourable treatment of herself and Michelle. The plaintiffs bear the onus of showing both that their mother remained responsible to make provision for each of them, and that the bequests in their favour were inadequate. In discharging that burden just as they cannot rely on any presumption of equality of division as between all the testator’s children, they cannot rely on any presumption of equal treatment as between themselves. Each plaintiff’s case must be separately considered.
[22]Litchfield v Smith and Tingate [2010] VSC 466 Hargrave J. at [75] and the references there cited.

Issues

The Court is required to have regard to all the statutory criteria in making its determination. It is helpful, however, to first identify the particular factors of relevance and the issues between the parties. The particularly relevant factors in this case are as follows:

· s 91 (4) (e) the relationships between the testatrix and the plaintiffs

· s 91 (4) (g) the size and nature of the estate

· s 91 (4) (o) the character and conduct of the plaintiffs, the defendant and the testatrix

· s 91 (4)(p) other relevant matters, here in particular being the past intentions of the testatrix in relation to equal distribution amongst her children.

In this case, the defendant relies in particular on the estrangement between the plaintiffs and their mother, in the two years prior to her death (in the case of Doris and Karen), and from July 2010 in the case of Ralf. The plaintiffs say that it was their mother’s abusive conduct towards Doris and Karen that forced them to limit their contact with her, and that it was their mother who shunned Ralf.[23] They rely on earlier indications that she intended to benefit them all equally. The defendant says that the estrangement was due to the plaintiffs’ poor conduct towards their mother, not hers towards them.
[23]Plaintiffs’ Final Submissions dated 17 May 2013, at [3].

Both the plaintiffs and the defendant agree that on any view their mother’s estate was a small one. They are, however, in major dispute as to the assets in the estate, and the allowable expenses. The plaintiffs say that after deduction of specific legacies to the grandchildren, who are the only beneficiaries other than the deceased’s children, the estate would be in the order of $197,000 on the evidence before the Court. They deny that the Mercedes van purportedly left by the deceased to the three plaintiffs was in fact owned by the deceased. They say it was owned by Ralf. They also say that the Bedford bus is of no commercial value. They deny that any of them owed any money to the deceased, save for a small amount owed by Ralf, which the plaintiffs say in their final submissions was not legally recoverable. They say that the only allowable expenses total $16,803.15, leaving a residue of $180,196.85 for distribution amongst the five children. To this sum they add notional interest of $19,596.41 resulting in a total of at least $199,793.26.

The qualifier “at least” to the plaintiffs’ submissions as to the value of the estate arises this way. As noted earlier, after the conclusion of the trial, and before the written submissions were required, the defendant produced further financial documents, pursuant to an order requiring her to do so. The plaintiffs say in their final submissions that these documents show that in addition to the assets listed by the defendant in the inventory to the grant of probate and in her evidence in the trial, the deceased also owned shares. The defendant has never disclosed any such assets.

The defendant asserted at trial that the Mercedes van was part of the deceased’s estate, that the Bedford bus should be valued at $20,000 and that Ralf owed a significant amount of money to his mother. She also asserts that there were very many more estate expenses than the plaintiffs would allow. Her evidence in the most recent inventory before trial was that the net value of the estate, if Ralf did not repay the sums she claims he owes, was at that date $44,467.04.

Relationship between the plaintiffs and the testatrix
The relationship prior to 2009

Doris’s evidence that she maintained contact with her mother and saw her regularly, and the implication that they had an affectionate relationship prior to January 2009, was not the subject of dispute in cross examination nor contested. Ralf supports Doris’ evidence that their mother visited her at Apollo Bay. Indeed, the questions put to Doris in cross examination by the defendant assumed a close relationship- the questions were to the effect that the testatrix had assisted Doris financially and that she was a loving mother (to which Doris replied that she assisted and was a loving mother to each of them). I find that Doris and the testatrix had an affectionate mother/daughter relationship until 2009.

The testatrix moved in 2001 after her living arrangements changed at Ocean Grove to Cranbourne, which was closer to Karen who was then living at Ferntree Gully, and babysat her children regularly in the early days of the restaurant business. Karen said in oral evidence that she attended church on a regular basis with her mother n 2004-2005.[24] All these actions suggest a close relationship. Karen’s description of the relationship is that it was at its best during these years, and was “tumultuous”. She says that there was a falling out between them from 2005 arising from her separation from her husband, culminating in her move to Queensland in 2007. She also speaks at length of a dispute over a bracelet, which was clearly a significant matter to her and also features significantly in her mother’s letters. Nevertheless, Karen says she maintained some contact with her mother until 2009. The evidence does not permit detailed findings as to who was responsible for the cooling of the relationship before that time, and I do not consider them in any event necessary. This is because I find, on the basis of the testator’s letter of 28 January 2009 to all children other than Inge (DH-1), that whatever had occurred between her and her children to that date, the testatrix still regarded her responsibilities to all her children to be equal in January 2009.
[24]T162.

The letter states that the testatrix had deposited money into Inge’s account from which Inge could draw $1000 per month, being her inheritance “up front”. The letter asserts that the other children will still benefit equally on their mother’s death, and in fact will be better off by virtue of Inge receiving her inheritance up front in this way. The tone of the letter suggests there had already been some dispute within the family about their mother’s financial assistance to Inge, and it is clear from Doris’s account in her affidavit of what occurred when she learnt, just prior to the letter, of her mother’s financial support to Inge that this was the case. The letter also refers to a will having been made in 2008 (which is not in evidence but the letter implies made equal provision for the children) and the intention to make a new will in September 2009 (no such will is in evidence).

There are other indications in the evidence that the testatrix wished to assist her children financially. As noted earlier, on her own divorce and property settlement in 1995 she gave each child $5000, and Doris acknowledged in cross examination that all children had received some financial assistance. There is further specific evidence in relation to financial assistance the testatrix provided her son Ralf. In a letter dated 28 July 2004 to Ralf[25], the testatrix refers to her providing him with financial assistance by way of payment of legal fees on his divorce. She also purchased a Ford Bedford bus, which had been modified to provide accommodation, in 2005 or 2006 (per Ralf; January 2005 per Inge) to provide him with somewhere to live. The bus was purchased for $15,000, funded by way of the testatrix taking out a personal loan.[26]
[25]Court book page 247.
[26]T63-65, 245.

As to contact between Ralf and his mother, Ralf’s evidence is that prior to October/November 2009 he rang his mother “probably every few weeks” and visited her whenever he was in town.[27] There is no further evidence as to how often these visits occurred. He said he became alarmed in October or November 2009 when his mother told him she had sold the Cranbourne house and was moving to Queensland because no one else knew of this. Thereafter he saw her “quite a lot” before moving in with her at Ballarat in January 2010. He lived with the testatrix in that house until he moved out in late June and then travelled to the United States. Inge did not dispute that her mother decided to move in with Ralf in December 2009, rather than with her Inge as previously planned, motivated by concern that Ralf have somewhere to live.[28]
[27]T117.
[28]T242, ll 20-24.

Relationship with the plaintiffs from 2009

I find that the financial assistance that the testatrix indicated she would give Inge in late 2008 and early 2009 was a turning point in her relationships with Ralf and Doris, although to a lesser extent with Karen. I will deal with each in turn.

Ralf

Ralf in his affidavit deposes that when in late 2009 he questioned their mother after discovering that she had sold her house in Lynbrook, she said she had been making what he describes as “large” payments to Inge for “quite a while”.[29] He says he, Doris and Karen had been concerned with what they saw as “the way Inge has taken advantage of our mother’s financial position to support her own financial problems for many years”.[30] It was after his discovery that their mother had sold her house and was planning to move to Queensland in with Inge, that Ralf increased his contact with his mother, persuading her to purchase a house in Victoria instead, in which he would live with her as her carer. She agreed and they looked at houses together in Ballarat in December 2009. The testatrix travelled to Queensland with her possessions in December 2009 to stay with Inge as had been agreed, but signed the contract for purchase of the Ballarat property there, and did not tell Inge of her changed plans until after Ralf visited over Christmas. Ralf and the testatrix moved in together into the Ballarat house in late January or early February 2010. Ralf, who had previously been working in the Northern Territory looked for work as a carpenter in the Ballarat area. To assist him in that endeavour a second hand Mercedes Benz van was purchased in February 2010 for $14,000. The van was registered in the testatrix’s name, but the plaintiffs contend that it was purchased and paid for by Ralf and so does not form part of the estate. I will return to this later.
[29]Affidavit at [21].
[30]Ibid.

On Ralf’s account, he and his mother were the closest they had been in this period from December 2009 to the end of June 2010, when he left the house and then went overseas. [31] It was suggested in cross examination that the house he purchased was not suitable for an elderly woman; that he was not as available to his mother as he suggests; and that he benefited financially from the arrangement by not paying board or rent. Ralf agreed that he did not pay rent, board or other outgoings other than the internet, but I accept his evidence that he and his mother were close during this period; that he was instrumental in getting her to the better medical advice that identified the pancreatic cancer; that the choice of house that could be purchased by his mother was restricted by her limited means, which had been further depleted by the purchase in 2009 of an additional motor vehicle, a VW Caddy for $36,000; and that he did maintenance work on the house to improve it.
[31]Affidavit, at [36].

Ralf left the Ballarat house in late June 2010 and shortly thereafter travelled to the United States and Cuba, returning in early September. It is clear from letters that his mother wrote him after he left that she was upset at his departure. I will discuss these letters in detail in relation to the size and nature of the estate. The letters seek financial recompense from Ralf, but they do not suggest that the testatrix regarded that he had rejected, or even abandoned, her; and nor do they show that she rejected him. In this regard, they are quite different to the letters that the testatrix wrote to Karen and Doris after their letters to her ending all contact.

That the testatrix regarded Ralf fondly is also shown in earlier letters she wrote to Inge dated 20 August 2009 (IH-45 to Inge’s affidavit of 1 May 2012) and to Ralf himself dated 13 September 2009 ((H-48 to that affidavit). In those letters the testatrix spoke fondly of and to Ralf, and distinguished him in that regard from Doris and Karen. In the letter to Inge dated 20 August 2009, the testatrix says Ralf (as opposed to Doris, Karen and Michelle) “has not caused me any harm or showed any hate towards me”. She also specifically says in that letter that Doris and Karen will “have to cope now with no financial support from me….I am glad they made a decision not to have any contact with me- now I even can heap on you Inge more of the things I can give”.

In the letter dated 13 September 2009 addressed to Ralf, the testatrix gave an account of falling out with each of Karen and Doris in March 2009 and refers to letters they subsequently sent her indicating that they wished her out of their lives. I infer that those letters are the letter dated April 2009 from Doris to her mother which was exhibited to Inge’s affidavit of 1 May 2012 as IH-39 and became Exhibit 2, and the undated letter which was exhibited to the defendant’s affidavit as IH-42 and became Exhibit 10. I will discuss these letters further shortly. The testatrix says, in the letter of 13 September 2009 to Ralf, that she visited Doris in Apollo Bay on 12 May 2009 and returned gifts previously given to her, which is consistent with Doris’ own account of seeing her mother do so on that day. The tone of the letter is very hostile to Karen and Doris. It states that shortly after the May visit to Apollo Bay, the testatrix went to Queensland to see Inge, made a new will there “so that Karen and Doris cannot change theyre (sic) mind not wanting anything left in my will but left to theyre (sic) children” and indicates that the testatrix has her house on the market and is planning to move to Queensland to live with Inge. The letter is affectionate in tone towards Ralf, stating that “No one but you & Inge= 2 out of 5 children-wants to see me happy”, and noting that the testatrix had not heard from Michelle for almost four years.

These letters did not become distinct exhibits in the case, but there was no suggestion that they were not written by the testatrix; their content is consistent with other evidence; and they were available to the plaintiffs, although it was contended late, by attachment to Inge’s affidavit or subsequent provision. The plaintiffs had the opportunity to contest the letters or their content if they wished to do so, and they did not. I find that these letters accurately express the testatrix’s wishes as at their date.

Ralf’s account of his departure from the Ballarat house is that he was forced out by Inge’s actions[32]. He says that after leaving the house on 1 July 2010 he had a meeting with his mother, also attended by Inge, at which it was agreed he would repay certain sums.[33] What he owes the estate is in dispute and I will return to it later. He says that his trip to the United States and Cuba was pre-planned, but it is unclear as to whether he told his mother at that time.[34]
[32]Affidavit [44]-[51]; T81.
[33]Affidavit [55], T83-86.
[34]Michelle says she did not- affidavit [3(d)}; Ralf does not say that he had told her- see his affidavit [58]-although he says it would have been “obvious” that that was his destination- T86.

What is more significant is that there is no evidence that Ralf had any in-person contact with his mother after his return from the United States and Cuba before her death. Whether he sought to see her and resolve any conflict between them is clearly highly relevant to his case. Yet he does not say he saw her, or sought to see her, and the reference in his affidavit to correspondence only after 1 July 2010 implies that he did not. I find that he did not see his mother, or attempt to do so, after his return from overseas in September 2010.

The real issue is why not and, in particular, whether this was due to actions by the testatrix or Inge, which might excuse what could otherwise seem an abandonment. Given the level of hostility between Ralf and Inge and their differing accounts of what transpired, and the absence of any independent evidence, I am unable to determine this issue. I make no finding that Inge or their mother caused Ralf to leave and not return. However, I think it possible that Ralf did not re-enter what he saw as a contest with Inge for their mother’s affections because it was too emotionally fraught for him. His account of what occurred in the Ballarat house after Inge arrived in late May shows great conflict between them. Further, there is no dispute that Ralf suffered what he describes as a “breakdown” in 2003, brought about by the bitterness of the breakdown of his marriage and loss of contact with his children, and has suffered from recurring depression since that time. He leads an essentially itinerant working life, without a permanent home or family. His sister Karen described him in the email dated 31 July 2010 to Michelle which is headed “Ralf’s sudden departure” (Exhibit 9) as a “fragile soul”, noting that he had “run away” before. She expressed the view that “this time he has been so damaged by the whole experience that he will not return. He is such a fragile soul and he doesn’t have the strength to keep bouncing back …”.

The thrust of the email is a warning to Michelle about Inge and her effect on their mother, and I take into account that Karen’s views were no doubt influenced by her own estrangement from their mother and Inge, and her support for Ralf. Nevertheless, on the basis of Ralf’s undisputed history of depression, his account of the conflict with Inge, and a frailty that was apparent to me when he gave evidence, I do not consider I can find that he intended to reject his mother after he left the house in July 2010. The only evidence that his mother may have taken this view is his effective exclusion, with Doris and Karen, from her will.

Doris

Doris says in her affidavit that her mother told her about her payments to Inge in January 2009, on an occasion when she and her children were staying overnight with her mother. Doris’s evidence is that prior to this time they visited each other regularly and were on cordial terms, and I so find. When her mother told her of this assistance to Inge, Doris says she was taken aback, angry, and felt the payments to be unfair. It was shortly after this that her mother sent the letter dated 28 January 2009, which is DH-1, in which the testatrix asserts that the payments were Inge’s inheritance up front, and that she still intended to benefit her children equally. The tone of that letter shows that she had already received an angry response (presumably from Doris) and anticipated one from the others. Significantly, however, the testatrix still maintained at that point an intention to benefit all children equally eventually.

Nevertheless, a profound gulf then opened up between mother and daughter who had previously been on cordial terms and seen each other regularly. Doris and her mother did not have direct face to face contact with each other again until the hospital visit just before the testatrix’s death, nearly two years later. Doris says that they only saw each other on one other occasion in that period, on 12 May 2009 when the testatrix attended Doris’s house in Apollo Bay to return various gifts received from Doris, Ralf, Karen and Michelle. As noted earlier, this is consistent with the testatrix’s own account of this event in her letter of 13 September 2009 to Ralf.

Doris says in her affidavit that she received in excess of 30 letters from her mother between January 2009 and July 2010 which she describes as “nasty, cruel and abusive letters”.[35] She exhibits to her affidavit the penultimate correspondence between them, being her letter dated July 2010, enclosing a cutlery set that her mother had requested be returned, and her mother’s reply dated 22 July 2010. Doris says that she replied to that letter, but does not exhibit a copy of her reply. She says that the “dialogue and previous train of correspondence from my mother caused me significant ongoing distress, heartache and upset”[36] and that this was the reason she terminated contact by her letter of July 2010. In that letter she states:

I opened your letter hoping against hope that it contained words of love…
You should also know that I will not get into a dialogue with you about anything, so please do not contact me again, and know that all future correspondence with be returned to you.

I love you Mum, and am sorry that you are very ill; I also hope that your move to Queensland will be a happy one.

[35]Affidavit [16].

[36]Ibid.

As is evident, Doris knew by this time that her mother had been diagnosed with pancreatic cancer. The tone of this letter from Doris is final, although composed. Her mother’s reply was angrier in tone, but accepted in terms the end of the relationship. It includes the words:

You, Doris, Karen, blame yourself for giving up on your mother. Do not call me Mum! or call yourself’s daughters of mine!
P/S I am returning your letter from July 2010. I’ll not see you again in this life of mine!

Doris says that she gave her mother the opportunity between January 2009 and July 2010 to restore relations between them and her mother had failed to do so.[37] Her case is that her mother was responsible for the breakdown of their relationship and she, Doris, was blameless.[38] Doris does not, however, exhibit any of the letters her mother sent her which she says evidence her mother’s brutality to her. She says they were so hurtful that she destroyed them.[39] The consequence is, however, that there is no evidence other than her own to support her account of the letters.
[37]T54.
[38]T58.
[39]T33.

Further, and very significantly, Doris failed entirely in her evidence in chief to disclose that she had written to her mother earlier, in April 2009, to the effect that she would not receive contact from her mother in person, by telephone or by letter and enclosing her resignation as an executor of her mother’s estate. That letter and enclosure were IH-39 and IH-40 to Inge’s affidavit, and became Exhibit 2. The letter states amongst other things, that “I have come to realise that we will not, in this life, have a loving and trusting relationship” and “I am sorry that it has come to this, but I can no longer participate in our relationship, and release any karmic commitment and/or obligation we may have to each other.” The letter states that Doris will return any items of her mother’s, and immediately following the reference to the enclosed resignation as executor is the statement “I have no desire or need for any of your things”. The letter concludes:

I have love and gratitude in my heart for you, and that will be there forever but

I can no longer be abused by you.

In cross examination, Doris says that by the reference to not needing any or her mother’s things she meant to indicate to her mother that their relationship was not founded on material things.[40] The letter indicates that her mother may still write to her children directly, but warns that:

if any member of my family ever feels disrespected by your correspondence, and/or receives correspondence from you that inclines to disrespect myself, Karen, Ralf, Michelle or Dad, and any member of our families, I will actively pursue the release of your relationship with that family member by advising them that they are under no obligation to participate in a relationship with you.

[40]T43.

I find that this letter in its terms could fairly be read as a rejection by Doris of any relationship, either personal or financial, between her and her mother. I do not accept the interpretation she sought in cross examination to place on the reference to her mother’s “things”. In the context, particularly being placed immediately after the resignation as executor, it could fairly be read as a rejection of any material benefit sought to be given to Doris by her mother, including on her death.

It seems that the testatrix did not immediately accept that there was to be no further contact between mother and daughter, as she sent further letters to Doris, at least until July 2010,[41] and attended her home on 12 May 2009, although did not ask to be invited in. However, even if it was the case that letters to Doris from her mother or other conduct by her mother to her after this letter could be described as abusive (and I am unable to determine that in the absence of the letters) then that conduct would need to be seen in the context of the effective repudiation of their relationship by Doris’ own act. Some anger or hurt would not be surprising given that repudiation.
[41]There is a suggestion there may also have been further letters up until September 2010-see T53. These are not in evidence.

The April 2009 letter refers to previous abuse, but the accounts the plaintiffs give of what they describe as poor conduct towards them by their mother are in most instances general or conclusory,[42] and to the extent they refer to specific instances (such as the bracelet in relation to Karen), those instances may be capable, in the context of what all concede to be a volatile family, of multiple interpretations. There is, of course, with the exception of instances also recounted by the testatrix in her letters, no account of what transpired from her perspective; there is no evidence by any person who is not a family member; and Inge disputes the plaintiffs’ descriptions of their mother’s personality and conduct. It is also clear from the evidence of all the parties that their views about their mother and her treatment of them are very heavily influenced by the hostility between them i.e. between Inge on the one hand, and the plaintiffs on the other; and between Inge and her father, who she regards as favouring Karen and Ralf.
[42]See, for example, Doris’ affidavit at [4].

Doris sets out what may be intended to be compassionate explanations for her mother’s conduct in her affidavit, being a difficult childhood during the Second World War in Germany, and undiagnosed dementia as she grew older.[43] It may be that these explanations are helpful to the plaintiffs, but they are not supported by any medical or other expert evidence. They are the expression of lay, and subjective, opinion. Doris says that the parties’ childhood was marked by “emotional, spiritual, verbal and physical abuse” at the hands of both parents,[44] but her account that their mother was abusive as well as their father and both picked favourites amongst the children and played them off against each other is disputed by Inge. Inge concedes only that her father did this.[45]
[43]Affidavit [2]-[4].
[44]Affidavit [4].
[45]Inge’s affidavit of 1 May 2012, at [39]-[41].

Further, even though Doris and Ralf describe their mother as “difficult and unstable” with behaviour that became “erratic and brutal” as she aged (per Doris)[46] and as suffering “for many years with delusion…extremely spiteful and vindictive…(with) serious anger management issues and …easily manipulated and influenced by Inge” (per Ralf)[47], Doris had regular contact with her until the January 2009 disclosure of financial assistance to Inge, and Ralf says the time living with his mother was very happy, and was brought to an end only by Inge. As set out shortly, Karen had the least affectionate relationship with their mother of the three plaintiffs prior to 2009, but even she was still on speaking terms with her until that time.
[46]Affidavit, [23] and [8].
[47]Affidavit, [68].

Neither Doris nor Karen give evidence of any specific letter from their mother after that of 28 January 2009 or any particular conduct in the period between that letter and their own letters of March and April 2009 respectively that could explain their letters. The plaintiffs’ final submissions describe the correspondence from the testatrix in 2009 and 2010 exhibited to the defendant’s affidavit as “florid and extreme” and rely on this correspondence in support of the contention that “it was the deceased’s own abusive conduct towards the First and Second Plaintiffs, as evidenced by her extreme correspondence to them, that forced them to (refuse further contact with her)”.[48] The difficulty with this submission is that all the letters from the testatrix to Karen and Doris to which counsel refers post date the letters of March and April 2009 from Karen and Doris themselves, which refused further contact. I do not accept that the letters from the testatrix, apparently in response, show that Karen and Doris were forced to refuse contact.
[48]Plaintiffs’ Final Submissions, at [3(vii)].

Given all these matters, in the absence of compelling independent or objective evidence that the testatrix treated the plaintiffs poorly, and given the evidence that she had on previous occasions endeavoured to assist them and treat her children equally, I find that Doris and Ralf have failed to establish that their conduct towards their mother towards the end of her life was due to her conduct towards them. Indeed, I find that it was due to the intense hostility between them and Inge, and what they saw as their mother’s unfair benevolence towards Inge.

In her letter of April 2009 Doris said that she would not prevent direct contact between her mother and her grandchildren. By June 2010 she knew that her mother was gravely ill. She agrees that Michelle made attempts on her visit to Ballarat in June/July 2010 to facilitate contact between the grandchildren and their grandmother and that this did not take place. Doris says that “we” i.e. she and Karen “actively” pursued this contact, but it became “logistically impossible” due to it being school holidays, and the other commitments of the children.[49] Karen in her cross examination gave more detail, to the effect that due to the combination of access commitments to her children’s father during the school holidays and a school camp there was only a very short, and unfeasible, period of time during which her children at least could be taken to see their grandmother.[50] She says the plan with Michelle became to try again in September, but by that date communication even with Michelle had ceased.[51]
[49]T48.
[50]T181-183.
[51]T184.

I accept that the grandchildren may have had pre-existing commitments during this period. It is, however, a question of priorities. My impression of the whole of the evidence of Doris and Karen on the question of facilitating personal contact between their children and their mother in June/July, and I so find, is that they did not try very hard to facilitate this contact. In support of this finding I rely on the concession by Doris that she did not encourage her children to get in contact with their grandmother because she considered that her mother had defamed her in a letter to them.[52]
[52]T48-49.

In an email dated 31 July 2010 from Karen to Michelle, which became Exhibit 9, Karen refers to a letter “to the kids” received that week which she describes as “totally emotional crap, saying to them that doris (sic) and I deliberately have not allowed them to see her when you came”. It is correct that there is blame to this effect in the letter dated 22 July 2010 from the testatrix addressed to Doris, which Doris says she received, but not in the separate letter of that date addressed to the children which would appear to have been enclosed with it. In that letter, addressed to Annie, Alexandra, Dylan and Jackson (part of DH-2), the testatrix expresses her sadness that she did not see them and sets out details of her life in Ballarat and cancer treatment. Karen says in her email of 31 July 2010 to Michelle that following this letter both she and Doris have decided not to permit any contact between their mother and their children.

On the basis of the affection shown to her grandchildren in this letter, I find that the absence of personal contact with her grandchildren in June/July would have been a source of pain to the testatrix. I also find that, if Doris and Karen thereafter resolved not to permit any contact (noting that they did bring the children to the hospital just before the testatrix died when informed that their mother wanted to see them), there was no objective basis for them so resolving in the testatrix’s letter of 22 July 2010 addressed to Annie, Alexandra, Dylan and Jackson.

Karen

Karen by her own account was not on good terms with her mother at least from 2007, although still speaking to her at that time.[53] The last time Karen saw her mother was December 2008[54] and the last time she spoke to her in March 2009, in each case until the hospital visit two days before her death.[55] She says the last communication (of any sort) between them prior to that visit was in early 2009, being a “string of letters”, commencing with the 28 January 2009 letter from their mother in relation to financial assistance to Inge, and ending with a letter that Karen wrote to her mother which she said was sent in “early 2009”[56]. Thus Karen was estranged from her mother prior to her death for the longest period of the three plaintiffs.
[53]T160-161.
[54]T196, line 3.
[55]T155.
[56]T161, ll 29-31.

The defendant and the plaintiff’s counsel identified that letter as IH-42 to her affidavit. Unfortunately, the defendant did not then put the letter specifically to Karen for her to identify and comment upon. Notwithstanding these matters, from its content I infer that it was indeed her last letter to her mother. Counsel did not object to the tender of the letter, which became Exhibit 10, nor seek to re-examine Karen on it. The letter is handwritten, undated and addressed “Dear Christa”. It sets out that the author, Karen, is “for the first time in my life… truly happy”, sets out her grievances against the mother and asks why her mother would lie, why she hates her and want to hurt her, and concludes:

I am a good, honest, funny person who just wants to have a happy life with people I love and who love me.

Sending me biscuits does not replace your love. It is not the apology I deserve.

Please do not write, call or contact me in anyway anymore.

Goodbye, Karen.

This letter was sent after Karen became aware that the testatrix was providing financial assistance to Inge, but does not refer to that financial assistance. Rather it refers to other grievances, in particular Karen’s view that her mother had falsely accused her of stealing a bracelet which her mother had in fact given her. For the reasons set out earlier, I am unable to make findings as to the rights and wrongs of the dispute about the bracelet. It was clearly very important to Karen as a trigger for her estrangement from her mother, and perhaps more so than the financial assistance to Inge.

As in the case of the letters sent by Doris, this letter to their mother from Karen can fairly be read as a rejection by her of any relationship with her mother. Also in common with Doris, the letter was not disclosed in her own evidence in chief.

Karen says that her mother did not contact her again. A letter dated 15 May 2009 from the testatrix addressed to Doris, Karen and Michelle, is exhibited as IH-47 to Inge’s affidavit, in which the testatrix describes them as “not being the daughters I wished for” and tells them “you three have to live with your guild (sic) (in the context, for treating her poorly) for the rest of your life”. It is not clear on the evidence whether or not this was sent at that time.

Conclusions as to relationship and conduct

I find that prior to 2009 the testatrix was in contact with the three plaintiffs, and not estranged from them. In the case of Doris, they saw each other regularly, and were on affectionate terms. In the case of Ralf, they had contact on occasion, and I infer from the 2009 letters to Inge and Ralf discussed earlier that the testatrix regarded him fondly. The testatrix had given him financial assistance in 2004 and 2005, to the extent of undertaking a personal loan to do so, which shows she wished to assist him and so concern for his welfare and affection. In the case of Karen, the relationship between mother and daughter was close in the early 2000s, but strained from 2007. There was, however, still some contact between them up until 2009. At least until the time the testatrix wrote the letter of 28 January 2009 she intended to benefit her children equally financially, although she considered that Inge needed that financial assistance now.

I find that Karen expressed her wish that the relationship with her mother come to an end by letter in early 2009, and Doris did the same by letter in April 2009, reiterated in July 2010. Neither Doris nor Karen changed this attitude nor sought to reconcile with their mother prior to her death despite knowing of her terminal illness from June 2010. Given that both Doris and Karen had in the past been on affectionate terms with their mother, I find that the estrangement would have been a source of pain to the testatrix, as it may well have been to Doris and Karen themselves. They say their actions were caused by their mother’s abusive conduct towards them, but I do not consider this proved. As a consequence of this estrangement, they were not able to give any support to their mother in her illness, and she was also deprived of the comfort that I find she would have derived from seeing their children.

The testatrix regarded Ralf fondly, perhaps particularly fondly, after she became estranged from Doris and Karen in 2009. She changed her plans about living in Queensland with Inge at least in part because she was concerned about him. Ralf and his mother were particularly close in this period, from late 2009 until July 2010 when he left the Ballarat home to go to the United States and Cuba. Ralf did not take the same step as Doris and Karen of expressly repudiating the relationship with his mother. His mother was angry with him after he left, but her letters to him do not show that she thought he had rejected her, as had Doris and Karen, or that she rejected him. On the evidence before me, however, I find that he did not see his mother again after his return from overseas. Thus he was not able to be any comfort to her in her last days, whatever the reasons for the lack of contact.

Size and nature of the estate

The defendant gave a number of accounts of the assets and liabilities of the estate before trial. In the inventory dated 12 January 2011 prepared for the grant of probate the defendant declared the estate to be in the sum of $274,824.67. This sum was comprised of the two third interest in the sale proceeds of the Ballarat house ($166,666.66); a debt said to be owed by Ralf of $59,614.88, three vehicles (the Mercedes Benz van valued at $14,000; a Nissan Pulsar valued at $8,000; the Ford bus valued at $20,000), personal effects, minimal cash and personal estate outside Victoria (a total of $6546.17). No liabilities are shown. This inventory did not include the VW Caddy vehicle, purchased by the testatrix in late 2009 from the proceeds of the sale of her Cranbourne home for $36,000 and either given or lent by her to Inge in April 2010.

In the inventory attached to her affidavit sworn 19 July 2012, the defendant included this vehicle, valued by her at $13,000; increased her estimate of the value of the Mercedes Benz van to $20,000; reduced the value of the Nissan Pulsar to $5,000; separately identified a gold bracelet (gifted to her daughter by the testatrix); reduced the debt said to be owed by Ralf to $38,000; and added a tax refund, dividend, and bank account totalling $22,400. Neither the dividend nor the monies in the bank account are disclosed in the inventory attached to the grant of probate, and any shares in the estate on which the dividend was paid were not disclosed. The defendant also added liabilities totalling $82,375, including substantial expenses claimed to have been incurred by her or Michelle and allowances to the defendant herself for her time. This inventory indicated that the gifts to her daughter Sarah (the Pulsar and the bracelet) and to Michelle ($40,000) had been paid. The figure calculated for the net estate after these liabilities and distributions to date and anticipated was $121,345.

I accept the submission that the defendant’s evidence as to the assets and liabilities of the estate is unreliable unless it is supported by independent corroborative evidence. I reach that view for the following reasons. First, the defendant by her own admission is not good with handling money, keeping financial records or paying bills of the estate.[82] Secondly, and very significantly, she admits she lied under oath as to the amount remaining in the estate bank account as at the date of the trial. She initially said in cross-examination that the estate bank account had a remaining balance as at February 2013 of $45,000 to $50,000.[83] Later she admitted this was false, and that in fact there was less than $100 remaining in the account.[84] She said that the money went into her house.[85] She accepted the proposition put to her that she treated the estate funds as her own, because they had been willed to her, despite the claim for further provision by the plaintiffs.[86]
[82]T328.
[83]T297, line 19 to T299, line 7.
[84]T329.
[85]T329, T355.
[86]T330.

The third reason for my view is that the defendant had the opportunity to support her claims by supporting evidence, first by exhibiting this to her own evidence, and secondly by providing documents in response to the notice to produce served on her by the plaintiffs, which required her to produce all financial documents relating to claimed liabilities and expenses on the second day of hearing, 11 February 2013. The notice to produce was served on her in late January, the hearing having been adjourned over the Christmas break. That notice to produce made it sufficiently clear, if it was not otherwise so, that her claims were contested. The defendant conceded she had not properly answered the notice to produce, and in fact did not produce further documentation until ordered to do so on two subsequent occasions (12 February 2013 and 26 March 2013).

These documents when eventually produced confirmed that the defendant had opened an estate account on 6 December 2010 with a deposit of $160,597.06, being the proceeds of sale of the testatrix’s two-thirds interest in the Ballarat house.[87] By July 2011, however, virtually the whole of that amount had been withdrawn by the defendant. The plaintiffs contend that these withdrawals (with the exception of $46,540 withdrawn on 15 December 2010 and paid to Michelle) were broadly of small sums to a variety of shops and other commercial enterprises. In the absence of submissions from the defendant to the contrary, I accept that contention. Thus it would appear that, contrary to her evidence under cross-examination that the money had gone into her house (by way of mortgage payments and renovation), the defendant used the estate account for her own personal expenditure. Yet this was not the evidence she gave under oath, when she was purporting to correct her earlier evidence. For this reason as well I conclude that the defendant’s evidence as to her application of the estate funds is unreliable unless supported by independent corroborative evidence.
[87]T354-5; plaintiff’s final submissions at [20].

I do consider, however, that sufficient corroborative evidence is provided by invoice for a proper expense, and is not confined, as the plaintiffs submit, to evidence of payment. I consider that an invoice is sufficient evidence of a liability and if it is for a proper expense, a liability of the estate.

For these reasons I allow as proper expenses and liabilities of the estate only the following of the sums claimed in the inventory dated 26 November 2012:

Legal costs being

MacPherson + Kelley

8,229.00
3,383.60

Biddle Lawyers 3,322.20
3,922.00

Keith Mole
181.50
396.00
$19,504.30

Accountants 861.85
380.60

$1,245.45

Doctors 54.75
97.95
$252.70

Removalists 500.00

Funeral 4,856.15
$26,358.60

There is no supporting documentation for the other expenses that may have been proper expenses (such as cremation and the urn, and other expenses necessarily incurred on the sale of the testatrix’s house) and for the reasons given earlier I do not allow them for that reason.

Conclusions as to the size and nature of the estate

I conclude that the assets in the estate are as follows:

Motor vehicles

     VW

13,000

     bus

No commercial value

     Pulsar

5,000

$18,000

Bracelet

1,600

Proceeds of sale of Ballarat house

160,597

Other cash receipts:

     tax refund

3,400

     dividend

10,000

     bank account

9,000

$202,597

Less allowable expenses and liabilities (round figures)

26,359

Net estate

176,238

From this sum I deduct the following specific gifts to calculate the residuary estate

     Bracelet

1,600

     Pulsar

5,000

     Legacies to grandchildren

7,000

     Legacy to Michelle

40,000

$53,600

Residuary estate as at December 2010

$122,638

I find that the defendant has mixed the estate assets and income with her own, and did so within six months of the grant of probate. It was argued on her behalf by the duty barrister Mr Gronow on 12 February 2013, that this was not improper, to the extent of the residuary estate of which she was the beneficiary and until such time as any order for further provisions for the plaintiffs had been made. I did not rule on that submission at that time because I held that there was doubt as to whether the Court had jurisdiction in any event to make the order that the plaintiffs sought. I subsequently changed that view in published reasons[88] in which I gave the plaintiffs the opportunity to put further submissions as to whether the order should be made. They did not utilise that opportunity and accordingly I did not subsequently rule on whether the defendant’s conduct, in mixing the estate funds with her own, was or was not improper. Nor do I do so now. I do not consider such a ruling necessary in these proceedings. Whether or not the defendant’s conduct was improper, it was very unwise, given that she commenced using the estate funds as her own within six months of the grant of probate. Thus she cannot avail herself of the protection afforded by s 99A of the Act and exposes herself to personal liability for any order made in these proceedings for further provision and for payment of the plaintiffs’ legal costs.
[88]Hansen and others v Hennessy (Ruling No 1) 14 February 2014.

I accept the proposition advanced by the plaintiffs that to the net estate, available for distribution amongst all beneficiaries and any of the plaintiffs if successful, should be added interest, for the purpose of calculating the notional estate for determination of the plaintiffs’ application.

This is because the precautionary approach for an executor is not to make any distributions until the six month period has expired, and, if a claim for further provision is made within that time, not to distribute until it is determined. Interest for this purpose should be calculated on the net estate of $176,238. I accept the plaintiffs’ submission that interest should be at 4.5% from December 2010.[89] Interest at that rate on that sum from December 2010 is $176,238 x 4.5% x 38/12 = $25,113.90.
[89]Plaintiffs’ final submissions at [18].

Thus as at February 2014 the notional estate available for distribution amongst all beneficiaries and successful plaintiffs is in round figures –
$176,238 plus
$ 25,114
$201,352
Other s 91(4) factors

Of the other matters listed in s 91(4) only the following require specific mention in this case:

Section 91(4)(h) – financial resources and needs of the plaintiffs and the beneficiaries

None of the plaintiffs, nor the defendant, are well off. There is no information as to the financial position of the other principal beneficiary Michelle save that it is apparent from all the evidence that she and her husband are each employed, own a home and have no children. I will assume they are comfortable financially but no more.

All of the plaintiffs and Inge have equity in a home except Ralf. Ralf owns no real estate and travels to work in the Northern Territory in the dry season there and the southern states in the wet. His principal asset is the Mercedes van. He suffers from recurrent depression which impacts on his earning capacity.

Karen and Inge each also suffer from depression. Karen deposes to limited earning capacity by reason of ill-health. She is employed casually only and otherwise supported by NewStart allowance.[90] Doris and her partner are each employed (Doris part-time, her partner fulltime), but earn only modest incomes and own a modest home. Inge is employed, apparently fulltime. On her evidence her home may be worth a little more than that of Doris and Karen but is still a relatively modest one with limited equity.[91]
[90]T143.
[91]T358.

In summary, none of the plaintiffs or the defendant are well off. Ralf is in the worst position in terms of assets, in particular in that he does not own a home. His earning capacity may be greater than those of Doris and Karen, and possibly Inge, when in work, but his work is seasonal and so his income may not be secure.

Section 91(4)(k) – contributions by the plaintiffs to the estate or welfare of the testatrix

The plaintiffs do not rely on any material contribution made by them to the estate of their mother. As set out earlier, I find that the rejection of any contact with their mother by Doris and Karen from early 2009 not only deprived the testatrix of their support when she was ill; it was also a negative contribution to her welfare in that it caused her pain. I consider this is shown in her letters to them and her letters to Inge and Ralf as discussed earlier.

Similarly, the absence of contact between Ralf and his mother prior to her death after he left the house in late June was in all probability a source of hurt to her given their earlier closeness. His presence and support while they lived together was a contribution to her welfare.

I also find that both Inge and Michelle made significant contributions to their mother’s welfare by their attention to her and physical presence on occasion in her last months. Inge gave a moving account of her dedication to her mother’s welfare, in particular from her last visit in late September 2010, in re-examination. As this account was in re-examination it could not be the subject of cross-examination. I am also conscious that the plaintiffs are critical in their affidavits of Inge’s motivations for assisting their mother. Nevertheless, her account and her evident distress in giving it had the ring of real devotion to her mother and substantial assistance provided to her, and I so find.

Section 91(4)(l) – benefits previously given by the testatrix to the plaintiffs, defendant and other beneficiaries

Doris acknowledged that their mother had financially assisted all of them at times. There is specific evidence of substantial earlier financial assistance given by the testatrix to Ralf as set out earlier. Notwithstanding the implications in the letter of 28 January 2009 from the testatrix that financial assistance to Inge was ongoing, Inge’s evidence is that this was only $1,000 per month for three months when she was seriously ill with kidney disease in late 2008.[92] In the absence of evidence to the contrary, I accept this evidence. Inge was also given at least the use of the VW Caddy by her mother from April 2010. The defendant has included this in the estate, valued at $13,000. I accept her evidence that this is within the Redbook range, and in any event the value is not challenged. I also accept the evidence in the plaintiff’s case that the vehicle was purchased for $36,000 only shortly before in late 2009. Thus I infer that in April 2010 when Inge was given sole use of it, it was still of significant value.
[92]T216.

Section 91(4)(o) – character and conduct of the plaintiffs and any other person

I have discussed this in detail earlier in relation to the breakdown of the relationship between the plaintiffs and their mother. I conclude that the plaintiffs have not provided that the testatrix caused the estrangement by her conduct. This is not to say that I conclude that Doris and Karen had no reason for their actions. In the context of a long history of family conflict, it is possible that Karen and Doris may have considered it necessary for their own welfare to refuse further contact from their mother. Their actions nevertheless caused their mother pain. Similarly, the conflict between Ralf and Inge and Michelle may have made it difficult for Ralf to renew contact with his mother after he returned from overseas in September 2010.

I do not accept the descriptions given by the plaintiffs of the testatrix’s character and conduct as abusive. Certainly her letters suggest that she was volatile and could speak harshly, but the letters which the plaintiffs say show this all post-date the refusal by Karen and Doris to have any more contact with her. Other letters, in particular her letters to Ralf 2009, to Inge and to her grandchildren suggest a person who could also speak and act lovingly and who wanted affection in return. It is noteworthy that she and Michelle, from whom she had also previously been estranged, were able to reconcile their differences when Michelle visited her on learning of her illness.

Inge’s conduct and character was the subject of considerable attack in the plaintiffs’ affidavits. The plaintiffs are especially critical of Inge wanting to move their mother to Queensland to live with her; seeking and receiving financial assistance and gifts from their mother; seeking to be their mother’s carer instead of Ralf after she became ill; being the principal beneficiary under a will made only days before their mother was admitted to hospital for the last time; and selling the Ballarat home pursuant to a Power of Attorney. These actions are, however, just as consistent with what was, on Inge’s evidence, a longstanding and special closeness between her and her mother and acting in accordance with her mother’s own wishes, as with anything untoward. The plaintiffs’ counsel does not seek in final submissions any adverse finding against Inge, except in relation to mixing of the estate funds with her own. I consider this approach correct.

Section 91(4)(p) – any other relevant matter

The past expressed intentions of the testatrix up until at least January 2009 show that she had intended to benefit her children equally. It is also significant that she particularly wanted to ensure that Ralf had somewhere to live. This is shown by her purchase of a bus for him in 2005 and by her change of plans in late 2009 and decision to live with him in Victoria, rather with Inge in Queensland. It is particularly significant in my view that there is evidence that the testatrix changed her will in early 2010 to give Ralf the right to live in the Ballarat house as long as he chose to after she died. Ralf says that his mother told him this[93] and Inge agrees that her mother told her that she had made a new will in 2010 because she (the testatrix) was concerned for Ralf’s welfare and that she wanted to ensure Ralf had somewhere to live.[94]
[93]Affidavit at [36].
[94]T219, T242.

Conclusion in relation to responsibility to make provision

Having considered all the relevant matters pursuant to s 91(4) of the Act, I conclude that the testatrix did not have as at the date of her death any responsibility to make provision for the maintenance of Doris and Karen. I will dismiss their applications on that basis. I consider that the testatrix did retain a responsibility to make provision for the maintenance of Ralf. As the only provision she made for him in her will was a one third share of a bus that I have found has no commercial value, and a van that was not hers to give, I find that the provision she made for him in her will was inadequate. Accordingly, the jurisdictional requirements for an award of further provision in his favour are satisfied. I will consider the amount of further provision shortly.

I reach my conclusion in relation to Doris and Karen on the basis of the letters that they each wrote to their mother in April and March of 2009, refusing further contact, and their continuation of that stance notwithstanding her further attempts to contact them and her serious and ultimately fatal illness. I have discussed these matters in detail earlier. As there set out, I do not consider that the plaintiffs have proved that these actions by Doris and Karen were the result of abusive conduct towards them by their mother. In particular, the letters from their mother on which they rely to show this abusive behaviour all post-date their own letters.

I consider that their conduct amounted to a repudiation of the relationship, and so of any responsibility owed to them by their mother. I do not discount the possibility that Doris and Karen may each have considered that the steps they took to end all contact with their mother were necessary for their own wellbeing. Indeed, this is what Karen expressly says in her March letter. That is a matter for them. It is, however, inconsistent with the stance that they did not want any further relationship with their mother and the action they took to end it, including the express reference to estate matters in Doris’ letter of April 2009, to subsequently assert that nevertheless their mother still owed responsibilities to them on her death. This may be so if they were only young adults, or if their actions were ill considered and subsequently regretted, but this is not shown. They maintained their stance even when they knew their mother had a terminal illness and so the opportunity for any reconciliation or change of heart was limited.

The test the Court is required to apply is that of a wise and just testator. I have given very careful consideration to whether such a testator would overlook an estrangement between parent and child of comparatively short duration, even if the end of contact was at the child’s request, where there had been many earlier years of an ongoing, and at times affectionate, parent/child connection. I do not think that in the circumstances of this case that was required of the testatrix. I consider that a wise and just testatrix in her position would consider herself discharged from any further obligation to adult children who had so clearly rejected any further relationship.

The plaintiffs in their final submissions rely on Herszlikowicz v Czarny[95] as an illustration of a case where a parent was found still responsible for the maintenance of an adult son who was the author of his own very substantial fall from prosperity into penury. I consider that case quite distinguishable from that of Doris and Karen on the facts. The critical distinction is that in that case while the conduct of the plaintiff had caused his father disappointment, it was not directed at his father.[96] The plaintiffs are in error in stating in their final submissions otherwise.[97] There was no suggestion in that case that the relationship had entirely broken down. Here the conduct of Doris and Karen was directed at their mother and it caused a total estrangement. Further, while in each case, there was essentially no provision made for the applicant for further provision (once the debts of the plaintiff in Herszlikowicz were taken into account) the estate in that case was very large. Here the estate is very small. Finally, in that case the plaintiff was in poor health and in receipt of a pension only. While Karen is in something of a similar situation, Doris is not.
[95][2005] VSC 354.
[96]Ibid, at [139].
[97]Plaintiffs Final Submissions at [7].

I consider that Ralf is in a different position. He did not expressly reject his mother, and he was a substantial presence in her life, and they had a close relationship in the six months they lived together shortly prior to her death. Inge has characterised his departure for overseas and subsequent failure to renew contact as an abandonment, but there is no unequivocal evidence that his mother regarded it this way. As set out earlier, I consider that it may have been too difficult for him to renew contact, given the intensity of the family conflict. He has no home, and limited assets and his earning capacity is affected by ill health. His mother had shown a consistent concern for his welfare in the years since his breakdown, resulting in financial assistance to him, in particular to ensure that he have somewhere to live. I consider that in these circumstances she retained a responsibility to make proper provision for him, and that she failed to do so adequately.

Conclusion in relation to amount of further provision

The amount that is sought by way of further provision for Ralf is $25,000. I consider this is an appropriate sum, in particular given the very small estate and the testatrix’ wish to substantially favour Michelle and Inge. It also reflects a similar, but modestly increased, sum to that the testatrix previously spent to give Ralf a home, by way of purchase of the bus.

From that sum as indicated I will deduct an amount of $3000, being the amount that Ralf acknowledged he owed his mother. I will also deduct a sum to reflect his failure to maintain the bus, which might otherwise have been a more substantial asset. That sum is necessarily an estimate, there being no evidence on the point. I will deduct a further $3000.

The result is that I will make an award of $19,000 by way of further provision to Ralf.

I will make that order personally against the defendant. She has conceded that she mixed the estate funds with her own funds. The subsequently provided documents show that she did so within the six month period from the grant of probate, and that no funds remain in the estate account. Accordingly, she has lost the protection usually afforded a defendant executor, that orders are made against the estate, not the executor personally.

I will hear from the parties in relation to the form of orders to give effect to these reasons and costs.

Legal costs being MacPherson + Kelley	8,229.00 3,383.60
Biddle Lawyers	3,322.20 3,922.00
Keith Mole	181.50 396.00 $19,504.30
Accountants	861.85 380.60
$1,245.45
Doctors	54.75 97.95 $252.70
Removalists	500.00
Funeral	4,856.15 $26,358.60

Motor vehicles
VW	13,000
bus	No commercial value
Pulsar	5,000
$18,000
Bracelet	1,600
Proceeds of sale of Ballarat house	160,597
Other cash receipts:
tax refund	3,400
dividend	10,000
bank account	9,000
$202,597
Less allowable expenses and liabilities (round figures)	26,359
Net estate	176,238
From this sum I deduct the following specific gifts to calculate the residuary estate
Bracelet	1,600
Pulsar	5,000
Legacies to grandchildren	7,000
Legacy to Michelle	40,000
$53,600
Residuary estate as at December 2010	$122,638

[2014] VSC 20

10 February 2014