Jones v Alessi - [2018] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JONES v ALESSI & ORS
[2018] SASC 110
Judgment of Judge Bochner a Master of the Supreme Court
10 August 2018
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE
Inheritance (Family Provision) Act 1972 (SA) s 7 , referred to.
Singer v Berghouse (No 2) (1994) 181 CLR 201; Tiburzi v Butler [2017] SASCFC 89; Carter v Brine [2015] SASC 204; In the Estate of Puckridge Deceased (1978) 20 SASR 72, considered.

JONES v ALESSI & ORS
[2018] SASC 110

JUDGE BOCHNER. The plaintiff brings an application, pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act) for further provision from the estate of her late mother (the deceased or Mrs Alessi).
The deceased died on 21 February 2016, leaving a will dated 28 August 2009. Probate was granted in relation to this will on 24 January 2017.
Background
By her will, the deceased, who was a widow at the time of her death, left a legacy of $20,000 to the plaintiff with the balance of her estate to be divided between the plaintiff’s two brothers. The main asset in the estate is a residential property situated at Lockleys, with a value of approximately $640,000. The net estate is worth in total around $660,000.[1]
[1] See P2.
Clause 5 of the deceased’s will provided:
I give to my daughter Filippa Alessi the sum of TWENTY THOUSAND DOLLARS [$20,000.00]. I expressly limit my bequest / gift to my aforesaid daughter Filippa Alessi on the basis that I have had little contact, care or support from my aforesaid daughter Filippa Alessi over the last several years, and in particular, the death of my late husband some eights months ago. I have had no contact with my aforesaid daughter Filippa Alessi since the death of my late husband. I have attempted to telephone her on a number of occasions without any success of communicating with her. She has not provided for me in any way by providing care or support. My aforesaid daughter has shown a complete disinterest in me. For these reasons I further say that should my aforesaid daughter Filippa Alessi make any claim against my estate under the provisions of the Inheritance (Family Provision) Act or otherwise such claim should fail and she should be limited to the monies provided herewith before in this my Will.
The plaintiff’s evidence
The plaintiff’s evidence was primarily by way of affidavit, supplemented by oral evidence. Her husband, Mr John Jones, also gave evidence. In the main, the evidence given by the plaintiff was poor; her evidence at times was contradictory, hard to understand and confused. Mr Jones I found to be a reliable witness, whose evidence was generally given in a consistent and measured manner.
The personal circumstances of the plaintiff
The plaintiff was born on 14 March 1948 in Italy, and is the youngest of three siblings. In 1952, her father, Rosario Alessi (Mr Alessi) moved to Australia, with the intention of saving money to allow him to return to Italy and build a house for his family. Ultimately, it appears that the deceased emigrated to Australia with her three children to join Mr Alessi in 1958. It seems that the family lived in the Grampians for a few years, and then moved to Renmark, in South Australia. The plaintiff’s evidence as to her early life in Australia was scant and at times confusing. However, it appears that she worked for her parents picking fruit as a child and had limited education:
Well we were working for my parents when I was younger. Don't forget we never went to school, we hardly hardly went to school, we never went to high school none of us, we were always working with mum and dad and we were forced to go to work and the school was just nothing, only when they felt like it.[2]
[2] T42.34-T43.1.
In 1964, the plaintiff moved back to Italy with her parents. Her brothers stayed in Australia.
In 1966, while still in Italy, the plaintiff married her husband, Rocco Bella. Their first child, Elena was born on 4 June 1967. In late 1967, the plaintiff, Mr Bella and Elena moved back to Australia. When they first arrived in Australia, the plaintiff and her family lived with her brothers in Renmark. Not long after the plaintiff’s return to Renmark, her parents also returned to Australia. They bought a fruit block in Renmark and the plaintiff and her family went to live with them.
In April 1968, the plaintiff’s second child, Concetta (but known to the family as Tina) was born. During this time, the plaintiff says that she and Mr Bella worked as seasonal fruit pickers. She says she worked as a fruit picker during her pregnancy and after Tina was born. During this time, she took Tina with her to work. Her parents were not prepared to look after Tina as she suffered seizures following a medical episode a few days after she was born. Mr and Mrs Alessi were prepared to look after Elena while the plaintiff worked.
In about 1970 or 1971 the plaintiff, Mr Bella and Tina moved to Loxton. Elena remained in Renmark, in the care of the plaintiff’s parents. The plaintiff and Mr Bella continued working as seasonal fruit pickers. They visited Elena on weekends and at other times if they were not working.
Not long after the plaintiff moved to Loxton, Mr and Mrs Alessi moved from Renmark to Adelaide, taking Elena with them.
In December 1971, the plaintiff separated from Mr Bella. She says that initially she lived in a small unit with Tina in Loxton. Sometime later (although she could not remember how long) the plaintiff was introduced to Peter Van den Berg by a friend. At some point, she and Mr Van den Berg commenced a relationship. It appears that all of this may have happened within about two months of her separation from Mr Bella. Sometime not long after the separation, it appears that Mr Bella, without the consent of the plaintiff, removed Tina from the plaintiff’s care and took her to Italy. Thus, by early 1972, both of her daughters had been taken from the plaintiff, Elena by her parents and Tina by Mr Bella.
Not long after commencing her relationship with Mr van den Berg, the plaintiff and he moved to Queensland. They subsequently married. They had a child together, Wilma, on 21 December 1972. In about 1973, they moved to Deniliquin. Another child, Adriana, was born in May 1982.
On 11 January 1972, Mr and Mrs Alessi commenced proceedings in the Supreme Court of South Australia to adopt Elena. In the affidavit material supporting the application, they said that they were unable to locate the plaintiff and had no idea of her whereabouts. These statements were corroborated by Mr Bella, who supported the adoption application. Thus, the plaintiff was never served with the adoption application or supporting affidavit material. The plaintiff maintains that her parents always knew how to contact her, and indeed were in contact with her. After the adoption orders were made, on 17 April 1973, Mr and Mrs Alessi took Elena to Italy to live. Mr Bella and Tina had already moved to Italy. The plaintiff says that she was not aware of the fact of the adoption until 1978.
In May 1975, the plaintiff located Elena, who by this time was living in Adelaide with Mr and Mrs Alessi. She commenced a relationship with Elena, but was told by Mrs Alessi that she would not give Elena back until the plaintiff had brought Tina back to Australia. The plaintiff located Tina in Italy in June 1975, and brought her back to Australia in December 1975. Mrs Alessi continued to refuse to return Elena to the plaintiff.
In September 1978, Mrs Alessi allowed Elena to visit the plaintiff at her home in Deniliquin for the school holidays. At the end of the holidays, the plaintiff refused to return Elena to Adelaide. She says that it was at this time that she learned of the adoption of her daughter by her parents. She commenced court proceedings against her parents to have the adoption order set aside. These proceedings were finally resolved in October 1979.
At some point the plaintiff and Mr Van den Berg separated. Mr Van den Berg died at some time in the early 1990’s although the plaintiff could not remember when. The plaintiff subsequently met her current husband, Mr Jones. They bought a house together at Tura Beach in 1993, and sold that when they moved to Adelaide in 2001.
The plaintiff’s relationship with her parents
There was little evidence as to the plaintiff’s relationship with her parents during her childhood. It seems, however, that after her marriage with Mr Bella broke down, their relationship was poor as her parents strongly disapproved of her leaving her husband. The affidavit material relied on by Mr and Mrs Alessi in their adoption application was in evidence before me. On 11 January 1972, Mr Alessi deposed that he believed that the plaintiff was not a fit person to have custody of Elena, and that it would not be in the interests of Elena for her to reside with her mother. A similar deposition was made by Mr Bella on 7 January 1972.
The plaintiff says that immediately after her separation from Mr Bella, her brothers told her not to come home, as her father would kill her if she did. On 6 March 1972, the plaintiff received a letter from her father, where he said to her (amongst other things):
·…listen well as this is the last letter you will have from all of us. Poison yourself, kill yourself, the sooner the better…
·Don’t you dare show your face in South Australia. Guns will be waiting for you to send you to rest in peace.
A copy of this letter was in evidence before me.[3]
[3] P7 at FJ 14.
It seems that the relationship between the plaintiff and her parents improved for a while in about 1977 and during this year, they visited the plaintiff in Deniliquin. It seems, however, that their relationship hit a further hurdle in 1979, when the plaintiff issued proceedings to recover custody of her daughter. Mr and Mrs Alessi were very angry that the plaintiff had filed an affidavit in the 1979 proceedings challenging the truth of the matters deposed to by Mr Alessi in 1971. Mr Alessi claimed that he could have been put in gaol because of this. This is a matter about which it appears he remained bitter until his death.
It seems that the relationship underwent a further improvement during the 1990’s. During this period, the plaintiff came to Adelaide on a number of occasions (possibly three or four) to care for her parents after they had undergone medical procedures. Each visit was for approximately six weeks. From about 2001, Mr and Mrs Alessi regularly phoned the plaintiff and asked her to move back to Adelaide so that she could care for them as they got old and frail. The third defendant and his wife came to visit the plaintiff and Mr Jones and persuaded them to move back to Adelaide to care for Mr and Mrs Alessi. This occurred in late 2001.
Initially, the plaintiff and Mr Jones lived with Mr and Mrs Alessi, however they moved out after three days because of verbal abuse from them. Nonetheless, the plaintiff says that she provided significant care to them on a daily basis, when they were unwell, including meal preparation, cleaning, washing, personal care and administering medication.
It appears that the relationship between the plaintiff and her parents remained fractured and variable. On her evidence, her parents, and her father in particular, were volatile, verbally abusive to the plaintiff and her husbands and at times verbally and physically violent to each other. The plaintiff says that at times her brothers were also verbally abusive to her and to Mr Jones. Between her return to South Australia and her father’s death in 2008, there were periods of estrangement because of her parents’ treatment of her.
The plaintiff says that she provided significant care for her parents during the following periods:
·20 October 2001 to 13 December 2003;
·15 August 2004 to 5 September 2005; and
·19 November 2007 to 22 November 2008.
The plaintiff’s relationship with the deceased broke down irretrievably after her father’s death in 2008. She says that after her father’s death, she became quite unwell and was admitted to hospital with mental health issues where she remained for several days. She told the third defendant that she was unable to care for the deceased because of her ill-health. The third defendant told her to stay away from the deceased if that was the case. The plaintiff then spoke to the deceased, who became angry when told that she could not care for her because of her ill-health. The deceased also told the plaintiff not to come back. The plaintiff had no further contact with the deceased prior to her death.
In summary, the relationship described by the plaintiff was a very troubled one. She described periods of estrangement, many incidents of verbal and some physical abuse, and heavy demands made on her by her parents. In addition, the demands made on her were very different to the demands made on her brothers. As described by the plaintiff:
Well, my mother and father were never happy until they got the last drop of blood out of you. You have to work 24/7 no questions asked. That was expected of me. Only me, not the boys, the boys had excuses. One was working, one was at the goldmine, whatever the trouble it was always my bunny to carry, that's how it was in my family, I'm the daughter. 'You look after me', they can't do it and that's why and that's why I did it.[4]
The disrespectful that they call is when a person being a daughter within an Italian family, not all family is, you are the slave and that is nothing you can do about it, and they don't judge a daughter as a human being. You're just ... around the door, got to sweep and be quiet. And that's how I was treated. Their sons, all their sons they're up the top.[5]
[4] T101.25-32.
[5] T105.6-12.
It seems that their relationship was irretrievably damaged by the incidents surrounding the plaintiff’s separation from Mr Bella and the adoption of Elena. The plaintiff reiterated, however, that she loved her parents and returned to Adelaide in 2001 to provide them with care. On her evidence she provided significant care at the times in their lives when they needed it most, until her father died in late 2008.
The plaintiff’s financial circumstances
At the time of the deceased’s death, the plaintiff and Mr Jones were joint owners of a residential property at Underdale with an estimated value of $450,000. This property is mortgaged to the Commonwealth Bank of Australia with about $28,000 outstanding. Both the plaintiff and Mr Jones have been in receipt of a disability support benefit since the 1990’s. Each receives about $600 per fortnight.
The plaintiff has a somewhat complicated arrangement with her daughter, Wilma, whereby she uses Wilma’s credit card, and pays her back when she can. She says that she currently owes Wilma about $35,000. She has no superannuation and no savings.
Other relevant circumstances
The plaintiff says that her financial circumstances have deteriorated since the deceased’s death. She and Mr Jones have each incurred substantial medical expenses, and she has had to borrow money from Wilma to pay for them.
She says that she has significant health problems, including anxiety and depression, diabetes, a leaky heart valve, bowel problems and high blood pressure.
Mr Jones’ evidence
Mr Jones confirmed the plaintiff’s evidence as to the amount of care provided by the plaintiff to her parents prior to their move from Tura Beach to Adelaide, in particular that the plaintiff visited them once with her daughter Adriana and three times with him. He confirmed that each of these last three visits were of about 6 weeks’ duration and that both he and the plaintiff assisted the deceased, and Mr Alessi.
He also confirmed the circumstances surrounding their move back to Adelaide, in that it was at the request of Mr and Mrs Alessi and the third defendant, so that the plaintiff could care for her parents.
Mr Jones also confirmed the plaintiff’s evidence that the plaintiff would care for her parents whenever they became ill or were admitted to hospital. He said that the plaintiff would stay overnight with them at their home to care for them during these periods. He confirmed that during the period that Mr Alessi was in hospital prior to his death, the plaintiff stayed with the deceased for most of this time to care for her. It seems that this was a period of about three months.
He generally confirmed that abusive statements were made by Mr and Mrs Alessi to the plaintiff.
The evidence of the second defendant
The second defendant gave evidence primarily by way of affidavit. The second defendant’s oral evidence was poor; it was frequently confusing and contradictory. At times the second defendant appeared obstructive and argumentative. He was a poor witness, with evident problems remembering when events occurred, and the correct sequence of events. As with the plaintiff, it was difficult to establish a coherent narrative from his evidence. Indeed, he said himself:
See and that's where we again - going wrong again. Sorry, I know I'm not supposed to speak like that, but you telling me the dates and the time. I can answer anything else you want to know, but not the dates and the time because if you ask me how old I am now, I have to think about it myself, to see how old I am. I just don't remember; sorry about that.[6]
[6] T220.2-8.
Given the very clear limitations on his memory, I am reluctant to accept his evidence except where it has been corroborated by another source.
The second defendant’s response to the plaintiff’s evidence
The second defendant rejected the plaintiff’s assertion that she was a dutiful daughter. He says that she occasionally and sporadically communicated with their parents, but that her accounts of the assistance that she provided to them over the years are greatly exaggerated. It appears that he accepts that she and Mr Jones came to assist Mr and Mrs Alessi at various times, but not for the length of time deposed to by the plaintiff. His evidence in this regard was somewhat contradictory and confusing:
Q.Is this the case that whilst Filippa was still living interstate, there were three occasions where she and her husband, Mr Jones, came to Adelaide, as in three occasions, and for about six weeks they stayed in your parents' house.
A.    Not the whole three times. What, every time they would come down here?
Q.No. I'm not asking you about every time you recall them coming, I'm just saying; were there three separate times when both of them came to Adelaide - this is obviously they're living interstate, they came to Adelaide, and for about six weeks they were staying in your parents' house; just that simple question. Three times -
A.    Yeah, not six weeks, no.
Q.    How long do you think each time was.
A.Some very short, depend how they got on. Some very short, but not six weeks at a time, but three times a year, yes, they probably did come down.
Q.    Three times a year.
A.No, like you said, they come down here three times. They probably did, but not six months, saying in the house for six months.
Q.Sorry, if I said 'six months' I should have said six weeks. Each visit about six weeks.
A.    I don't think they were that long, no.
Q.I think you've been sitting in court and heard Mr Jones, for example, say they did that, haven't you. You heard him say that.
A.    I heard him say that, yes.
Q.    Is there any chance you're mistaken and that he's right, they did do that.
A.    I don't remember what Mr Jones said.
Q.He said they came to Adelaide, that is he and Filippa, three times, stayed in your parents' house each time for about six weeks. Now, you're saying that's wrong, are you, or you're not sure.
A.I'm saying that they did stay there but I'm not saying six weeks at a time, maybe less. I can't remember - I can't be sure, but not six weeks.[7]
[7]    T221.20-222.21.

In addition, he said in second affidavit:
I do not recall Fillipa undertaking any household chores or general property maintenance when I saw her at my parents’ house;[8]
[8] D18 at [27.4].
However, in his cross-examination, he said:
Q.During the times that Filippa and her husband were visiting at your parents, you also went to that house, didn't you.
A.    Yes.
Q.    And you saw that Filippa and her husband were there, correct.
A.    Yes.
Q.Did you hear that they were doing work around the house or helping, caring for your parents.
A.    Yes, occasionally they were doing things for them.
Q.    Occasionally -
A.Well, occasionally I would go there and I see my sister washing the window or washing the floor or making a cup of tea for mum and dad but, yeah.
Q.Did you hear this, that one reason for these visits was so that there was somebody in the house to help care for your parent after they'd had an operation, that was one reason these visits happened. You may not have heard that but I'm asking whether you did hear that.
A.    Well, if they come down - no, just, sorry - ask me the question again please.
Q.Did you hear that one reason why Filippa and her husband came and stayed with your parents after medical procedures, was so that they could provide care for them.
A.    Yes, I'm sure they did for that, yes, yep.[9]
[9]    T223.28-224.15.
He said that the plaintiff regularly argued with the deceased. He gave evidence of the periods of estrangement between the plaintiff and her parents, including their complete estrangement following the death of Mr Alessi.
The second defendant conceded that the plaintiff was treated differently by her parents to the treatment received by him and the third defendant:
Q.Do you agree with this statement; that your sister Filippa wasn't treated as kindly, say, as you have been throughout your parents' life.
A. Yes, I would agree that she got treated not the same as us, the boys.[10]
[10] T221.10-14.
The second defendant’s personal and financial circumstances
The second defendant is married and has two adult children. He worked for some years in a fruit and vegetable shop operated by him and the third defendant, and spent the last twenty years of his working life employed as a manager at a supermarket. His wife continues to work part time while the second defendant is in receipt of a Centrelink benefit in the sum of $513.34 each fortnight. He also has a pension fund, with a balance of around $66,000. He and his wife jointly own their own home, which is valued at $560,000 and is unencumbered.
The second defendant suffers from Parkinson’s Disease.
He described a close and supportive relationship with the deceased.
Other relevant circumstances
The second defendant has provided to the Court a previous will dated 3 October 2002 and a codicil dated 13 May 2006, made by each of his parents. Each of the wills contains the following clause:
8. I AM AWARE of the existence of the Inheritance (Family Provision) Act of South Australia and I am aware that sections 6 and 7 of that legislation contain provisions that, briefly, where a person entitled to claim the benefit of the said Act is left without adequate provision for his/her proper maintenance education or advancement in life, the Court may in its discretion, upon application by or on behalf of the person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person (in this case, myself) for the maintenance education or advancement in life of the person so entitled. I AM FURTHER AWARE that my daughter the said FILIPPA ALESSI is by such law a person entitled to make a claim under such provisions of the said Act in relation to my estate, HOWEVER, it is still my intention that my said daughter shallnot receive a greater share of my estate than as provided in clause 5. above of this my will as she did not leave us more than twenty years ago rarely keeping in touch and showing a complete disinterest towards me and their mother my said wife whereas my two said sons have always been in close contact with us, caring, helpful and giving us all the moral financial and physical assistance we needed.
Mr Alessi’s codicil reads as follows:
1. I HEREBY vary clause 8 of my said Will by adding the following words:
“I further say that in the month of June 2005 I became very sick. I was admitted as a patient at the Queen Elizabeth Hospital for a total period of about three months. Then I was taken to Hayward House on Forsters Road, Oakden. In that terrible period I really wanted to see my daughter the said Filippa Alessi, but she only came to visit me once very briefly. When I went back home still being very sic I wanted my said daughter to come to my house to assist me as I needed help, or at least visit me. I telephoned her numerous times and told her or left messages on her answering machine that I was very sick and needed her help, but she would not even speak to me. Many times when I telephoned her I knew she was at the other end, but as soon as I talked to her she would hand up without saying a word. She never came to my house or contacted me nor even my wife her mother. She showed a complete disinterest in us. For such reasons I now further say that if my said daughter SHOULD make any claim against my estate under the said Inheritance (Family Provision) Act or otherwise my said daughter shall not even be entitled and shall not receive any moneys at all as are provided for her in clause 5 of this my Will”.
The deceased’s codicil is in identical terms, in that it purports to document the same conduct of the plaintiff in relation to Mr Alessi’s illness in June 2005.
The second defendant’s position was that his parents’ description of the plaintiff’s conduct and her relationship with them should be accepted.
The evidence of the third defendant
The third defendant’s evidence in chief was also primarily by affidavit. As with the plaintiff and the third defendant, his oral evidence was poor. His evidence was often confused and confusing. He appeared to have problems with his memory. At times he was obstructive.[11]
[11] See for example T244.19-245.22 and T246.13-19.
The third defendant’s response to the plaintiff’s evidence
Generally, like his brother, the third defendant rejected the plaintiff’s evidence of the assistance that she provided to their parents over the years. Indeed, his affidavit evidence was in the main identical to that of the second defendant. He confirmed the total estrangement of the plaintiff from the deceased following the death of Mr Alessi in 2009. He confirmed that Mr Alessi had made threats towards the plaintiff at the time of her separation from Mr Bella.[12]
[12] T251.18 – 24.
The third defendant’s personal and financial circumstances
Like his brother, the third defendant worked much of his life with fruit and vegetables. He is currently in receipt of a Centrelink benefit. He is married and has four adult children, each of whom is financially independent. He owns his own home jointly with his wife. His home is valued at around $600,000 and is currently subject to a mortgage of around $195,000. His wife works part time. The third defendant has no savings or superannuation. He has a number of non‑life threatening medical conditions.
Specific issues in dispute between the parties
Other than the defendants’ rejection of the plaintiff’s evidence as to the assistance and support that she provided to her parents, there were a number of other factual issues in dispute between the parties. These included the length of time that Mr Alessi spent as an in-patient at The Queen Elizabeth Hospital and at Hayward House, whether he was transferred direct from The Queen Elizabeth Hospital to Hayward House, and whether Mr Alessi suffered from mental health problems and dementia.
I am of the view that not much turns on these disputes, given the poor memory of each of the second and third defendants.
The other principal issue very much in dispute between the parties was the events surrounding the separation of the plaintiff from Mr Bella and the subsequent adoption by Mr and Mrs Alessi of Elena. The evidence of the parties concentrated to a very large extent on whether the plaintiff met Mr Van den Berg before or after she separated from Mr Bella, and whether Mr and Mrs Alessi knew of the plaintiff’s whereabouts at the time that they applied for adoption of Elena. Admitted into evidence were affidavits sworn by Mr and Mrs Alessi, and also by Mr Bella in support of the adoption application. I allowed these documents to be admitted on the basis that they were evidence of the nature of the relationship between the plaintiff and the deponents of those documents, and of the subjective beliefs of each of the deponents. I allowed this limited use only, on the basis that Mr and Mrs Alessi and Mr Bella could not be cross-examined on them, and also on the basis that they were deposing to matters that occurred some 46 years ago. While some of the matters deposed to by Mr and Mrs Alessi were at odds with the evidence given by the plaintiff in this matter, I do not consider that it would be fair to the plaintiff, given the effluxion of time, to allow the statements of others made in 1972 to impugn her credibility in this hearing, particularly when those others are not available for cross examination.
The plaintiff’s evidence was that she left Mr Bella in mid-December 1971 and met Mr van den Berg in late January 1972. The affidavits of Mr and Mrs Alessi were to the effect that the plaintiff had met Mr van den Berg by the time they filed their application to adopt Elena in early January 1972. This disagreement as to the date of meeting Mr van den Berg is neither here nor there. The affidavits clearly demonstrate the disapproval felt by Mr and Mrs Alessi about the breakdown of their daughter’s marriage.
There are other matters in the affidavits of Mr and Mrs Alessi that are in dispute between the parties. For example, the plaintiff maintains that at all times her parents knew how to contact her and were, indeed, in contact with her, contrary to their affidavit evidence that they did not know how to contact and had had no contact with her. There is evidence produced by her that supports her contention, including correspondence between a solicitor instructed on her behalf and Mr Bella and Mr Alessi and a letter from Mr Alessi to the plaintiff dated 1 March 1972.[13]
[13] This correspondence is exhibit FJ14 to the plaintiff’s affidavit, P7.
Without reaching a decision as to the truth of events that occurred in 1972, it is clear that the breakdown of the plaintiff’s marriage to Mr Bella caused a serious rift in her relationship with her parents. The subsequent adoption by them of Elena and the plaintiff’s recovery of Elena compounded the poor relationship between them. The discrepancies in the affidavit material of Mr Alessi and Mrs Alessi and Mr Bella on the one hand and the plaintiff on the other are not matters that can now be determined. Too much time has passed to reach any conclusion as to the truth of those events. There is evidence which impugns the affidavit evidence of Mr and Mrs Alessi, there is also evidence that calls into question the correctness of the plaintiff’s depositions. This is not assisted by the vague and at times obstructive evidence given by the second and third defendants on this topic, such as that given by the third defendant, where he said:
Q.At around about that time, and by that I mean within a month or two around about that, did you ever hear your father say anything like he wanted to kill Filippa.
A.Look, I'll tell you something straight now. I'm sick and tired hearing about my poor father. My father was not as bad as all seemed to be. He was a hard man but he had a good heart and let's leave it like that, please, if you don't mind - and my mother by the way. My mother and father was good people. Now because the money comes around, everybody's discriminating my mother and father. My parents were beautiful people, and every week we go to the grave and put flowers there, so just have that respect.
Q. Sir, just answer my questions, please.
A. I'll answer your question, but do not rubbish my parents - I'm telling you.[14]
[14] T249.2-17.
The final matter that I must mention is an allegation made by the plaintiff against the second and third defendants in her first affidavit, P4. This allegation was strenuously denied by the second and third defendants. The plaintiff says that she told the deceased of this allegation in about 2005. I make no finding about the truth or otherwise of this allegation.
Finally, I note that the relationship between the plaintiff and the second and third defendants was volatile and at times acrimonious. Each of them gave evidence consistent with this finding.
The principles to be applied
The plaintiff brings her claim pursuant to section 7 of the Act, which reads:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
The principles to be applied when considering whether a claimant under s 7 should succeed were not in dispute between the parties. The parties agreed that a two stage process was required, to determine firstly, whether a claimant had been left without adequate provision for his or her proper maintenance, education and advancement in life, and secondly, if the first question is answered in the affirmative, what provision ought to be made for the claimant out of the estate of the deceased. In Singer v Berghouse (No 2),[15] the Court described it this way:
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". That description means no more than that the court's power to make an order in favour of an applicant under s7 is conditioned upon the court being satisfied of the state of affairs predicated in s9(2)(a).
In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen (Deceased), Allen v Manchester. In that case his Honour said: "The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."[16]
(citations omitted)
[15] (1994) 181 CLR 201.
[16] (1994) 181 CLR 201 at 208 – 209.
Section 7 was considered by Doyle J in Tiburzi v Butler:[17]
[70] As the trial judge recognised, this section requires a two stage process. The first stage, sometimes referred to as the jurisdictional question, calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to determine what provision ought to be made out of the testator’s estate for the plaintiff.
[71] In McCosker v McCosker, Dixon CJ and Williams J described the first stage, and in particular the role of the concepts of “adequate” and “proper” at this stage, in the following terms:
…As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[72] It is accepted that the concept of “advancement in life” extends to a person’s adult years. Thus, for example, where an adult child of a testator falls on hard times, and where there are assets available, it may be proper to provide for a buffer against contingencies, including a lack of superannuation funds. Similarly, an adult child’s lack of reserves to meet the demands of advancing years, particularly of ill health, is a relevant consideration.
[73] In Vigolo v Bostin the majority of the High Court held that when the jurisdictional question was being considered a court could have regard to considerations of a moral claim and moral duty. They are considerations that connect the general, but value-laden, language of the statute to community standards and give it practical meaning. However, a moral claim cannot be a claim founded upon considerations not contemplated by the Act, and a court should not rewrite the will simply by reference to notions of fairness.
[74] Assuming the first stage is determined in the plaintiff’s favour, the second stage involves the exercise of a judicial discretion, but taking into account similar considerations to those which are relevant to the first stage. A potentially significant difference, however, is that the first stage involves a determination as at the date of the death of the deceased, whereas the second involves a determination as at the date of any order.
(citations omitted)
[17] [2017] SASCFC 89.
In Carter v Brine,[18] Blue J explained the principles to be applied in the following terms:
[18] [2015] SASC 204
[591] The question whether by reason of the testator’s testamentary dispositions the claimant has been left without adequate provision for his or her proper maintenance, education or advancement in life is a question of fact involving the exercise of value judgements. The question is to be determined objectively by the Court and not by reference to the subjective knowledge, beliefs or intentions of the testator.
[592] The question is to be determined as at the date of death by reference to the objective facts then existing including prospective future expectations and contingencies foreseeable as at the date of death: it is not appropriate to determine this question retrospectively with the wisdom of hindsight or by reference to the objective facts existing at the date of trial. The Court assesses the position by placing herself in the testator’s position and making its own objective assessment by reference to objectively proved facts and circumstances in existence as explained above as at the date of death.
[593] The words “adequate” and “proper” in the composite phrase “adequate provision for his proper maintenance, education or advancement in life” are both relative. This requires an examination of all relevant circumstances. Factors to be assessed and weighed relative to other factors include but are not limited to:
·the age, condition, general situation and other factors relating to the claimant;^{- 185}
·the needs of the claimant and the lifestyle and standard of living to which the claimant has become accustomed;^{- 186}
·the claimant’s capacity and resources to meet those needs, lifestyle and standard of living;
·the relationship between the testator and the claimant;
·the nature, extent and character of the estate;
·the relationship between the testator and other persons for whom the testator provided or having claims against the estate;
·other claims against the estate.
[594] When considering the claimant’s “needs” and the lifestyle and standard of living to which the claimant has become accustomed, the Court does not make an assessment in absolute terms of what a person needs to survive or even to live comfortably but a relative assessment by reference to the claimant’s history and circumstances and all other relevant factors including those identified above.
(citations removed)

Thus, my first task is to determine the “jurisdictional question”. In doing so, I must take into account:
the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.[19]
[19] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 210.
These elements are considered as at the date of the deceased’s death.
In my view, the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life.
The plaintiff and Mr Jones live in very modest circumstances. They are both on Centrelink benefits; they have no superannuation or savings. While they own their own home, it is encumbered. They owe money to their daughter. I accept that they have limited reserves to meet the demands made by failing health.
The second and third defendants are in very similar circumstances. Each of the three siblings lives in modest circumstances.
The second and third defendants took the position that any moral duty owed by the testator to the plaintiff was negated by the plaintiff’s own conduct. In this regard, they pointed to the periods of estrangement between the plaintiff and the deceased, and what they saw as the plaintiff’s poor conduct in relation to their mother.
I do not accept these submissions from the defendants. I accept that the plaintiff and the deceased had a very troubled relationship. It is clear that the deceased deeply disapproved of the plaintiff’s conduct surrounding the breakdown of her marriage. It is equally clear that the plaintiff felt deeply aggrieved by the conduct of the deceased and her father. Despite this, I find that on at least three occasions prior to her relocation to South Australia in 2001, the plaintiff attended in Adelaide, for periods of up to six weeks, to care for her parents following surgery or illness. I also find following her return to Adelaide she provided significant care to her parents including washing, cleaning, and personal care. I accept that she stayed overnight with the deceased for lengthy periods of time while Mr Alessi was hospitalised. In this regard, I prefer the evidence of Mr Jones and the plaintiff, to that of the defendants, who, I find, deliberately and significantly understated the level of care and assistance provided by the plaintiff. I also reject the description of the plaintiff’s conduct found in the codicils of Mr & Mrs Alessi. This description is at odds with the rest of the evidence before me.
While I accept that there were periods of estrangement between the plaintiff and the deceased, I am of the view that they do not serve to defeat any moral claim that the plaintiff might have on the bounty of the deceased. In Tiburzi v Butler,[20] Doyle J said:
[105] The trial judge explained the relevance of the issue of estrangement in the following terms:
Estrangement of a child and parent should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement. However it is a factor that can be taken into account. The Court should take into account the whole of the circumstances regarding the relationship. It is for the Court to evaluate all the relevant circumstances, including a period of estrangement and the circumstances of that estrangement, when considering the jurisdictional question.
[106] The trial judge’s statement of principle is consistent with authority. In particular, how a period of estrangement affects a claim will depend upon the circumstances of the particular case. Depending upon the nature and extent of the estrangement, and in some cases the reasons for it, it may in some cases be of little moment, or operate merely to restrain the level of provision to be made. In other cases it may go as far as defeating the moral claim of a plaintiff, or terminating the moral duty of the testator towards the plaintiff.[21]
(citations omitted)
[20] [2017] SASCFC 89.
[21] [2017] SASCFC 89 at [105] – [106].
It is clear that there were significant periods of estrangement between the plaintiff and the deceased, including at the end of the deceased’s life. It is clear, also, that they had a troubled relationship, at least from 1971, and possibly earlier. I accept the plaintiff’s evidence that her father made threats against her, following the breakdown of her marriage, and that both of her parents were verbally abusive to her about herself, her husband and her children. It is clear that the plaintiff felt deeply wronged by her parents’ adoption of her daughter.
I note, too, the evidence of the defendants that the plaintiff was treated differently by her parents, compared to how they were treated. This evidence supports the plaintiff’s own evidence where she said:
A.Well, my mother and father were never happy until they got the last drop of blood out of you. You have to work 24/7 no questions asked. That was expected of me. Only me, not the boys, the boys had excuses. One was working, one was at the goldmine, whatever the trouble it was always my bunny to carry, that's how it was in my family, I'm the daughter. 'You look after me', they can't do it and that's why and that's why I did it.
Q. You were looking after them 24/7.
A.On call 24/7 practically when they needed me I did it. If they wanted me overnight for a month, which I did, I stayed.[22]
[22] T101.25-36.
Taking all of this into account, including the level of assistance provided by the plaintiff during the periods when she was not estranged from her parents, I am of the view that the periods of estrangement do not operate so as to preclude the plaintiff from satisfying the jurisdictional requirement of the Act.
In the circumstances, I am of the view that the deceased did not fulfil her duty as a wise and just testator, by leaving the plaintiff a bequest of only $20,000. In doing so, she failed to take into consideration her daughter’s assets, income, health needs, and situation generally. I am of the view that the description of the plaintiff and her behaviour by the deceased in clause 5 of her last will and in the earlier wills and codicils of her and her husband should not be accepted. Those views are belied by the evidence that was before me, and which I accept.
I turn to the question of the amount that is appropriate to award the plaintiff to provide for her proper maintenance and advancement in life. In answering this question, I note that it is not the role of the Court to rewrite the will of the deceased to represent what might be regarded as a fair division of the estate, but to provide the plaintiff with sufficient a sum so as to make proper provision for her.
I note that the needs of the plaintiff and the second and third defendants are similar. I note that each of them has health problems, which, it can be assumed, will only increase as each gets older. Each of the three receives a Centrelink benefit. The second defendant is perhaps marginally better off than his brother and sister.
In determining the appropriate figure, I take into account the circumstances and needs of the defendants as well as the plaintiff. In my opinion, the plaintiff should be awarded the sum of $150,000 from the estate of the deceased, in lieu of the provision made for her. In reaching this view, I take into account the words of King CJ in In the Estate of Puckridge Deceased,[23] where he said:
The power to make the order is discretionary. In exercising the discretion as to whether any and what order should be made, I must look at the circumstances as they now exist… It is not for the judge to remake the will to give effect to his own ideas of how the estate should have been disposed of. The order should vary the dispositions in the will only so far as is necessary to rectify the omission to make adequate provision for the applicants’ proper advancement in life.
…
…Finally it comes to a matter of judgment as to what provision is necessary to satisfy the moral claims of the applicants.
[23] (1978) 20 SASR 72.
The sum of $150,000 will allow the plaintiff some financial security as she grows older. It gives her the ability to meet her future health needs without having to borrow money from her daughter. It does justice to her moral claim. It allows significant provision for the second and third defendants.
I will hear the parties as to the form of the orders and costs.