Keating v Jensen

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2014 753

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

- and -

IN THE MATTER of the Estate of DOROTHY ETHEL GILMORE (deceased)

BETWEEN:

TERENCE JAMES KEATING	First Plaintiff
- and -
TERRENCE JOHN KEATING	Second Plaintiff
- and -
PAUL JENSEN and CHERYL BROWN (who are sued as the Executors of the Will of DOROTHY ETHEL GILMORE deceased)	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2014
DATE OF JUDGMENT:	9 September 2014
CASE MAY BE CITED AS:	Keating v Jensen
MEDIUM NEUTRAL CITATION:	[2014] VSC 433

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ADMINISTRATION AND PROBATE — Testators’ family maintenance — Deceased a widow with no children or dependants — Claims by testatrix’s nephew and great nephews — Whether deceased had responsibility to make provision — Whether claims for further provision have no real prospects of success — Whether appropriate for summary dismissal — Whether dispute is of such a nature that only a full hearing on the merits is appropriate and it is not in the interests of justice to dismiss the application without a full hearing — Application refused — Administration and Probate Act 1958 (Vic), s 91 — Civil Procedure Act 2010 (Vic), Part 4.4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Kumar Kappadath	John Anile Pty
For the Defendants	Mr Graham A Devries	Mahons, with Yuncken & Yuncken Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavit material............................................................................................................................... 2

Applicable Law................................................................................................................................... 2

Evidence supporting the claims...................................................................................................... 2

Terrence James Keating (Mr Keating Snr)................................................................................. 3
Terrence John Keating (Mr Keating Jnr).................................................................................... 5

Submissions........................................................................................................................................ 7

Defendants’ submissions............................................................................................................. 7
Plaintiffs’ submissions............................................................................................................... 11

Consideration.................................................................................................................................... 16

A normal Aunt – Nephew relationship................................................................................... 19
Relevant Factors.......................................................................................................................... 19
Dorothy’s appreciation of the value of the estate......................................................... 20
The size of the estate......................................................................................................... 20
The competing claims....................................................................................................... 21
The plaintiffs’ needs.......................................................................................................... 21

Conclusion......................................................................................................................................... 22

SCHEDULE....................................................................................................................................... 23

Applicable law.................................................................................................................................. 23

Summary Judgment test............................................................................................................. 23
Family provision legislation..................................................................................................... 25
The Legislation and General Principles......................................................................... 25
The First Stage....................................................................................................... 28
The Second Stage.................................................................................................. 29
The Third Stage..................................................................................................... 32

HIS HONOUR:

Introduction

The plaintiffs are the nephew and great-nephew, respectively, of the deceased, Dorothy Ethel Gilmore (‘Dorothy’). They apply under Part IV of the Administration and Probate Act 1959 (Vic) (‘the Act’) for further provision to be made for their proper maintenance and support out of Dorothy’s estate.

The defendants are the executors of the estate. They apply in this and a related proceeding for summary judgment against the plaintiffs. In this proceeding, the plaintiffs are Terence James Keating (‘Mr Keating Snr’) and Terrence John Keating (‘Mr Keating Jnr’). In the other proceeding, which is proceeding number S CI 2014 858 (‘the Jensen Proceeding’) the plaintiffs are Bradley Paul Jensen and Stuart Anthony Jensen (‘the Jensen plaintiffs’).

The defendants are, of course, common to the two proceedings, and their applications in both proceedings were heard one after the other – that is, effectively at the same time. The defendants’ written outline of submissions related to both applications. In the result, the plaintiffs in this proceeding benefited, without objection, from the evidence and submissions of the Jensen plaintiffs.

Dorothy died on 10 July 2013, leaving a Will executed on 21 February 2005. Probate of the Will was granted to the defendants on 3 September 2013. The net value of the estate is about $1,925,000.00. The deceased married Patrick Gilmore (‘Patrick’) in 1948. He died on 2 July 2003. The deceased and Patrick had no children, but she was survived by seven nieces and nephews and 11 great-nieces and nephews on her side of the family, and five nieces and nephews and four great-nieces and nephews on Patrick’s side of the family. There is no evidence of any surviving siblings of either the deceased or Patrick. The first defendant, Paul Jensen, is a nephew of the deceased. The plaintiffs in this proceeding are a nephew of Patrick (Mr Keating Snr) and his son (Mr Keating Jnr) (both adults).

The will provides for 11 bequests of $5,000 each, a bequest of $3,000 and a bequest of $2,000. The residuary estate is to be divided between two charitable institutions: the former Williamstown Hospital (now under the auspices of Western Health) and the Anti-Cancer Council of Victoria (now known as Cancer Council Victoria).

For the reasons that follow, I am not satisfied that the plaintiffs have no real prospects of success in their claims. Further, this is a case to which s 64 of the Civil Procedure Act 2010 (‘CPA’) applies. Adopting the words of that provision, I consider that the dispute is of such a nature that only a full hearing on the merits is appropriate, and it is not in the interests of justice to dismiss the application without a full hearing.

Affidavit material

In this proceeding, the plaintiffs have each filed affidavits sworn 26 February 2014 and 20 June 2014, the latter being largely repetitive of the earlier affidavits. In both proceedings the defendants have filed an affidavit of John Joseph Hanlon, the solicitor for the estate, sworn 23 April 2014.

Applicable Law

I set out in the Schedule to these reasons the applicable law in relation to two matters. First, I have set out the principles to be applied in applications for summary dismissal under Part 4.4 of the CPA. Secondly, I have included an account of the principles applicable to claims under Part IV of the Act. The principles applicable in these areas of the law are well known to the practitioners. However, the litigants are unlikely to be familiar with them.

Evidence supporting the claims

The plaintiffs are, as I have said, the nephew and great-nephew of Patrick, and are father and son. Each has filed two affidavits setting out the evidentiary basis in support of their assertion that they are persons for whom the deceased had a moral duty to provide, and that any provision made is insufficient in the light of their specific needs.

Terrence James Keating (Mr Keating Snr)

Dorothy was Mr Keating Snr’s aunt through Patrick. That is, Mr Keating Snr’s mother, Elizabeth Keating (nee Gilmore) (deceased) was Patrick’s sister. Patrick was one of five children: Edward, Patrick, Mary, Elizabeth and Joseph. Mary married Arthur Spicer. In the 1960s and 1970s, Nana Gilmore (Mr Keating Snr’s maternal grandmother), Patrick and the deceased, and Mary and Arthur all lived next door to each other in the same block. During this time, Mr Keating Snr lived with his parents about two kilometres away, and rode his bike to their house regularly. He says he was like a son to Patrick and the deceased, as they had no children of their own, and he spent a considerable part of his early years in their house, although he did not live with them. His sister Kay (deceased) was treated like a daughter by Mary and Arthur, as they also did not have any children.

Mr Keating Snr has a clear recollection of Patrick and the deceased from the age of about 8. They owned a fruit shop in Buckley Street, Footscray and, when he was a child, he was taken by Patrick and the deceased on what were called picnics in their trucks to pick potatoes from in and around Melbourne. He then lived with his parents at 24 Maddocks Road, Newport. Patrick and the deceased used to visit at least once a week and would bring a box of fruit and vegetables. Patrick and the deceased obtained their produce directly from farms and not through the wholesale markets. Mr Keating Snr used to go with them two or three times each month for a number of years.

From the age of 16 to 21, Mr Keating Snr undertook an apprenticeship to become an electrician. His place of work was near the fruit shop in Footscray. He would take his lunch each day and have it with the Dorothy and Patrick. He would also help them out in the fruit shop during the lunch hour and after work. The fruit shop was closed in about 1975, and thereafter Patrick worked in the tool shop at the docks.

Christmases were often spent together with Patrick and Dorothy and other members of the family in the Keating house. When he was 22, Mr Keating Snr married his late wife Dianne and moved to Queensland to work for a couple of years. Dianne grew up in Buckley Street, Footscray. Patrick and Dorothy knew Dianne well. Patrick and Dorothy had stood beside Mr Keating Snr’s parents at his wedding. In short, they were a part of the close family of the Keatings. I note in this regard that more of the legacies in Dorothy’s Will are to members of the Keating family than the Gilmore family.

Mr Keating Snr deposes that “we were their family and they attended to all our family celebrations and shared in the significant milestones”. Patrick and Dorothy socialised with the Keating family regularly, in addition to special occasions such as Christmases, anniversaries and birthdays. Gifts were always exchanged and Dorothy was generous in giving money to the children as birthday presents.

When Patrick passed away in 2005, at the age of about 90, the Keating family and Mr Keating Snr were there to support Dorothy. They supported her when she moved in to a nursing home and visited her regularly.

Mr Keating Snr’s wife, Dianne, suffered a heart attack in 1998 and died in May 2012. Mr Keating’s mother went in to the Hobson’s Bay Nursing Home in 2006. Some months later, Margaret (Dorothy’s sister) – who was also well known and friends with the family – moved in to the Mariner Nursing Home, which was on the same street. Mr Keating Snr used to visit both Margaret and his mother every Tuesday and Friday. In 2007, when Dorothy moved in to the Mariner Nursing Home, he started to visit her along with his visits to his mother and Margaret. He says that, over the last five years or so, it had become a regular Tuesday morning visit to his mother first, and then to Dorothy.

Mr Keating Snr’s mother passed away in 2011, following which his practice of visiting the Mariner Nursing Home regularly continued. When Dorothy was moved to the Footscray Hospital, Mr Keating Snr would visit her there. Mr Keating Snr, and his late wife Dianne, would often make a cake for Dorothy when visiting her. He says they were famous for their cakes. He was one of the few elder members of the wider family that was intimately involved in providing care and support for both Dorothy and Patrick, particularly in their later years. On Dorothy’s 90^th birthday, he was one of the few in the short list of guests at the Mariner Nursing Home.

Mr Keating Snr says that he was surprised and disappointed when he learnt that he did not even get a mention in Dorothy’s will. He was one of the four people involved in the funeral arrangements for Dorothy, and delivered a eulogy at the funeral.

After Dorothy died, the former solicitor for the estate contacted Mr Keating Snr through his son, to find out ‘who was who’ amongst the various persons mentioned in the Will.

Mr Keating Snr is 73 and a widower. His wife Dianne died in 2012. He has been diagnosed with prostate cancer and has undergone 42 radiation therapies. He suffers from anxiety, but is otherwise healthy for his age.

He was an electrician by trade and worked at the docks until he was 50. In 1992 he started his own business as an electrician. When he turned 60, he retired to care for Dianne, whose health was failing. He owns his own home valued at about $350,000, which is free from debt. He owns vehicles valued at about $12,000, and has savings of about $16,000. He is in receipt of the age pension, which is his main source of income.

Terrence John Keating (Mr Keating Jnr)

Mr Keating Jnr’s main initial contact with Dorothy was through visits by her and Patrick to his grandfather’s home and – as his father’s aunt and uncle – to his parents’ home. Mr Keating Jnr described himself as Dorothy’s “maternal nephew”.

Mr Keating Jnr is one of the legatees referred to in clause 3(g) of the Will as one of Dorothy’s nephews. He received a legacy of $5,000.

Mr Keating Jnr has known Dorothy for his entire life. He spent time as a child in his grandparents’ house, and cherished the visits from Dorothy and Patrick. His grandparents were very sociable people and hosted parties, barbeques, lunches and dinners frequently. That tradition was carried on by his parents over many years. Dorothy and Patrick were always invited, and attended many of these functions. They were very much a part of the family.

Mr Keating Jnr’s mother, Dianne (nee Booth) lived close to Dorothy’s fruit shop in Footscray and she had spent a lot of time with Dorothy in the shop. Mr Keating Jnr recalls Dorothy reminiscing many times with his father and himself, particularly after his mother died. He says that the relationship with his mother explains why Dorothy had a fondness for him and his brother, Matthew.

He says that, for as long as he can remember, there has always been a present for him under the family Christmas tree and a birthday card with money in it from Dorothy and Patrick. Dorothy always had a keen interest in her relatives and their children. She was very much a part of his life, and was always there to share and support him at every significant event. She impressed upon him the value of hard work and strong family ties. She treated him like her own and offered encouragement and advice during his schooling and apprenticeship program, as well as during times of personal difficulty, both in his marriage and generally.

Mr Keating Jnr’s relationship with Dorothy grew in later years, especially when he moved back in with his parents. His father visited Dorothy once or twice a week when she was in a nursing home and, on occasions, Mr Keating Jnr accompanied his father on these visits. Sometimes Mr Keating Snr would take his two children on these visits. He accompanied his father to say goodbye, as it were, to Dorothy the day after she died.

Mr Keating Jnr is 47. He too is an electrician by trade. He presently works shifts for DP World. He is separated from his wife. He has two children, both girls. He shares custody of them with his estranged wife. He has been through hard financial times because of the ill health of his wife after the birth of their first daughter, the ill health of his second daughter, and disputes with his wife over custody of the children. He pays maintenance to his wife for her care of the children.

The build-up of debt due, in part, to these events – and no doubt other circumstances – and the effect of the global financial crisis has led to the sale of such real estate as he had built up (a house and a small farm), which still left him in debt. He now lives with his father, Mr Keating Snr, the first plaintiff. His assets are negative and he is in a parlous financial position.

Submissions
Defendants’ submissions

In relation to Mr Keating Snr, the defendants’ submissions regarding his relationship with Dorothy (s 91(4)(e) of the Act) were that:

(a) his affidavit described nothing more than a normal relationship between the testatrix and a nephew, founded on a normal sibling relationship between his parents’ household and the testatrix’s household. There was nothing, over and above such a normal relationship;

(b) he has not deposed to anything that sets his relationship with Dorothy apart from her relationship with her other 11 nieces and nephews. All of his involvement was by way of normal or ordinary family visits;

(c) he expresses disappointment that he did not even get a mention in the Will – however, neither did many other of her nieces or nephews; and

(d) clearly the testatrix did not differentiate between Mr Keating Snr and her other 11 nieces and nephews for very good reason – that is, none of them had a special relationship beyond merely that of aunt and nephew or niece.

In relation to Mr Keating Jnr, the defendants’ submissions regarding his relationship with Dorothy (s 91(4)(e) of the Act) were that:

(a) his main initial contact with Dorothy was through visits by her and Patrick to his grandfather’s home and, as his father’s aunt and uncle, to his parents’ home;

(b) there is nothing more than a bare great-aunt and great-nephew relationship; and

(c) there was nothing deposed to by Mr Keating Jnr that sets his relationship apart from any other great-aunt and great-nephew relationship, or that between Dorothy and her other great-nieces and nephews.

The defendants then addressed the other factors in s 91(4)(f)–(p) of the Act. In summary, it was submitted that:

(a) There was no asserted obligation or responsibility of Dorothy to the plaintiffs (s 91(4)(f));

(b) the estate is modest, and it may be relevant that if this proceeding and the Jensen proceeding go beyond summary judgment, all other nieces and nephews, great-nieces and great-nephews and siblings will need to be advised, and will have claims that may be no weaker than those of the plaintiffs’ in these proceedings;

(c) the plaintiffs had established no particular needs that are not presently being met or not likely to be met in the foreseeable future (s 91(4)(h));

(d) there was no asserted physical, mental or intellectual disability of the plaintiffs or of any other beneficiary of the estate (s 91(4)(i));

(e) there was no asserted contribution, otherwise than for adequate consideration, by the plaintiffs to the building up of the estate or to the welfare of Dorothy or her family (s 91(4)(k));

(f) there were no asserted benefits previously given by Dorothy to the plaintiffs or to any beneficiary (s 91(4)(l));

(g) there was no assertion that the plaintiffs had been maintained by Dorothy before her death (s 91(4)(m));

(h) there was no asserted liability of any other person to maintain the plaintiffs (s 91(4)(n)); and

(i) save that each of the plaintiffs’ conduct was that of a loving nephew or great-nephew, there is nothing in the character and conduct of the plaintiffs or any other person relevantly asserted.

The defendants made extensive reference to the cases in which the courts have considered claims by nephews and nieces, as follows.

A search of decisions reveals only one decided case in which a niece or nephew has been successful in the Supreme Court of Victoria. In Iwasivka v State Trustees Ltd[1] Hansen J, as his Honour then was, held that the plaintiff, a niece of the testatrix, was more than a niece to her and that, in effect, their relationship was akin to that of a mother and daughter. He found that there was much more to their relationship than a good, close aunt-and-niece relationship. This decision has been referred to in at least 18 other Supreme Court decisions – and one Country Court decision – but in none of those cases was there a successful claim by a niece or nephew.
[1][2005] VSC 323.

There are three decisions in which nieces have succeeded in obtaining an extension of time. The first two are Jotkowitz v Keating[2] and Keil v Cook & Anor,[3] in both of which the Judge appeared to believe the cases were arguable but not particularly strong. The third is McLeod v Troy,[4] in which Beach J merely held that the applicants had an arguable case but the decision went no further than that. In Re Will and Codicil of Griffiths (Dec’d)[5] a niece was successful in resisting a strike out application. It was held that she had more than “a fanciful case” as a number of previous Wills had made provision for her.
[2][2006] VSC 290 (Williams J).
[3][2008] VSC 53 (Hollingworth J).
[4][2002] VSC 187 (Beach J).
[5][2012] VSC 85 (Randall AsJ).

On the other hand, there are at least three cases in which nieces or nephews, or those akin to nieces and nephews, were unsuccessful: two upon a summary judgment application,[6] and one on an extension of time application.[7] In Napolitano, Mukhtar AsJ observed that

strong facts are needed to show that the aunt or uncle were like de facto mothers or fathers or had otherwise played a part in the life of a niece or nephew so as to give rise to a responsibility;[8]

[6]Jackson v Newns [2011] VSC 32 (Mukhtar AsJ) and Napolitano v State Trustees Ltd [2012] VSC 345 (Mukhtar AsJ) (‘Napolitano’).

[7]Erlich v Fleiszig [2013] VSC 63 (Lansdowne AsJ).

[8][2012] VSC 345, [28].

The defendants submitted that there are no such strong facts in this case, especially given that the parents of the plaintiffs were all present to undertake that role, and are still around to do that.[9]
[9]See also Webb & Ors v Ryan & Anor [2012] VSC 377, [23], [35]–[37] (Whelan J); Morris v Smoel [2014] 32, [75]–[76] (McMillan J).

Relevantly, in Erlich, Lansdowne AsJ distinguished Iwasivka on the basis that the applicant in the proceeding before her had a primary relationship with his own parents, in contrast to Iwasivka where the plaintiff had no contact with her own parents and lived with Dorothy during her childhood. The defendants submitted that Erlich was apposite in respect to each plaintiff in these proceedings.

Leaving aside claims by spouses, domestic partners, children and step-children of the respective deceased, all of the successful claimants in Part IV cases in this Court since 1997 appear to have established that they had a relationship to the deceased akin to that of a partner or child, or that they were carers of the deceased, that they had contributed to the deceased’s estate in a measurable way – whether directly or indirectly. Even those few claims by grandchildren that were successful required significantly more than just the relationship itself, even where there was a very good relationship between the deceased and the claimant.[10]
[10]See, eg, Harris v Bennett & Anor (No 1) [2002] 8 VR 411 (McDonald J) – a successful appeal against a strike out decision (his Honour applied the test of whether the case “…is so untenable that it cannot possibly succeed” [81]); Petrucci v Fields [2004] VSC 425 (Mandie J); Story v Semmens [2011] VSC 305 (Zammit AsJ) – summary judgment application unsuccessful; Scarlett v Scarlett [21012] VSC 515 (Vickey J).

In Corbett v State Trustees Ltd,[11] the claimant failed in an application for an extension of time. She asserted a relationship akin to that of niece and uncle with the deceased. In those circumstances, Kyrou J held that it was “relevant for the Court to consider … whether the nature of the relationship between the deceased and the applicant was akin to a close blood relationship”.[12] His Honour also observed, “[t]o my knowledge, there is no case in which an applicant who had a relationship with the deceased which was akin to that of a niece has succeeded …”[13] It was submitted that this observation was of particular relevance in these proceedings.
[11][2010] VSC 481 (Kyrou J).
[12][2010] VSC 481, [76].
[13][2010] VSC 481, [78].

In this case, the defendants argued that there is nothing more established than conduct of the kind previously found to be insufficient to ground a successful claim. In Whitehead v State Trustees Ltd, Bell J noted that:

indulgent behaviour by adults towards children, such as the loving kindness, practical and emotional support and gifts which grandparents typically give to grandchildren, have not themselves been regarded as sufficient to give rise to a responsibility to provide, although combined with other considerations, such as contributions by the grandchildren to the estate and the welfare of the grandparents, the closeness of the relationship will be relevant.[14]
[14][2011] VSC 424, [49].

Plaintiffs’ submissions

The plaintiffs’ submissions canvassed the general principles applicable under Part IV of the Act and the application of those principles to the facts of the case.

The plaintiffs submitted that the answer to the question whether Dorothy owed a moral duty to them must be based not merely on the characterisation of the relationship – such as “nephew”, “great-nephew” etc – but an assessment of the relationship in the context of the particular family circumstances. They argued that this, in turn, requires a fuller examination of the family relationships, the personalities and the interpersonal relationship and dynamics between them all in the backdrop of time, space and stations in life.

The plaintiffs pointed to the fact that Dorothy did not have any children, and said that their relationship with her can only be truly appreciated when compared and contrasted with her relationships with the other members of her wider family, some of whom are beneficiaries under the Will. There is, at this stage, scant evidence on this question. Mr Keating Jnr submitted that, in leaving a specific bequest under the Will to him, Dorothy has tacitly acknowledged and validated her special relationship and moral duty towards him. It was submitted that, while this in itself is not conclusive of the existence of the moral duty, it is an important consideration, and the Court ought to give it due weight.

The plaintiffs also adopted the submissions made by the plaintiffs in the Jensen Proceeding, so far as they were applicable. In summary, the significant points were that:

(a) an estate worth almost $2 million is substantial. In Erlich v Fleiszig, the estate was approximately $2.2 million and was described as “substantial”[15] (s 91(4)(g));
[15][2013] VSC 63.

(b) the plaintiffs’ needs are significant (s 91(4)(h));

(c) the plaintiffs’ contributions to Dorothy’s welfare (s 91(4)(k)) and their character and conduct (s 91(4)(o)) over an extremely long period of time include significant emotional support provided upon the deaths of Dorothy’s husband and sister, but also extended to the period when Dorothy resided in a nursing home. At this point, they continued to include and involve Dorothy in their lives in a meaningful and effective way, in circumstances where many other family members chose not to; and

(d) after payment of the specific legacies ($60,000.00), the balance of the estate is payable to The Williamstown Hospital and The Cancer Council of Victoria. Each stand to receive a substantial sum (approximately $900,000). There is no evidence of any obligation or responsibility of Dorothy towards those institutions. Moreover, neither organisation has demonstrated, or is likely to be able to demonstrate, a competing need greater than that asserted by the plaintiffs (s 91(4)(f) and (h)).

For these reasons, the plaintiffs submitted, a preliminary synthesis of the factors required to be brought to account leads to the following conclusions:

(a) There is an arguable case for relief, because the plaintiffs have shown a longstanding and loving relationship giving rise to a moral responsibility owed to them by Dorothy. Mr Keating Jnr is a beneficiary towards whom Dorothy turned her mind; however, her provision for him did not go far enough, particularly in light of his specific needs;

(b) The summary dismissal of testators’ family maintenance applications is rare, as there is a requirement to undertake a close examination of relationships and exercise a value judgment that is best left to trial. Only a full hearing of the case on its merits is appropriate;[16]
[16]Jackson v Newns [2011] VSC 32, [11] (Mukhtar AsJ).

(c) The defendants rely on the proposition that the plaintiffs’ relationship with Dorothy was unremarkable. However, this can only be truly accepted once all evidence is presented. The plaintiffs’ relationships with Dorothy may only be fully considered in contrast to other relationships that she experienced, and no evidence of such has been provided. Dorothy herself identified Mr Keating Jnr as a rightful recipient of a legacy, selecting him above a number of other family members of the same standing who did not receive any provision. This is an indication that she recognised the special nature of their relationship;

(d) In this case, prevailing community standards would insist that a childless great-aunt provide for those family members with whom she enjoyed a close and loving relationship, especially in circumstances where those family members demonstrate a significant financial need, as in this case. In Petrucci v Fields,[17] Mandie J stated that grandchildren cannot be ruled out or in until all the facts have been examined.[18] The same considerations apply in this case – all facts must be examined;
[17]Petrucci v Fields [2004] VSC 425.
[18]Ibid [64].

(e) The defendants refer to Whitehead v State Trustees Ltd,[19] a case in which it is said that determining what is adequate and proper must be approached on a case by case basis. That assessment can only occur at final hearing;
[19][2011] VSC 424, [53].

(f) It is of significance in this case that the claims are brought by two close family members of Dorothy, who not only had a close relationship with her, but also have a demonstrable need. The residuary beneficiaries, the Williamstown Hospital and the Cancer Council of Victoria, are unable to demonstrate a competing need at all, let alone one greater than the plaintiffs;

(g) Dorothy was neither wise nor just in making the Will in the way that she did, particularly if she had been aware of the specific needs of her nephew and great-nephew;

(h) If she had had a full appreciation of her testamentary bounty at the time of making her Will, her dispositions would have been different from those contained in paragraph 3 of her Will;

(i) Upon an examination of the facts as presently before the Court, the plaintiffs have at least a reasonable, if not greater, prospect of success;

(j) The discretion to summarily dismiss a proceeding of this kind should be exercised with caution. Further, this is a case for which s 64 of the CPA clearly applies. That is, the dispute is of such a nature that only a full hearing on the merits is appropriate and it is not in the interests of justice to dismiss the application without a full hearing;

The plaintiffs further submitted that:

(a) the decision in Jackson v Newns,[20] is distinguishable from this case because:
[20][2011] VSC 32 (Mukhtar AsJ).

(i) the plaintiff in that case had significant financial resources of his own;[21]
[21] Jackson v Newns [2011] VSC 32, [38].

(ii) the plaintiff was already the beneficiary of the estate in a substantial way;[22]
[22]Ibid [1] and [57].

(iii) Dorothy did not accept any paternal responsibility or other responsibility that might lead the Court to conclude that there was a moral duty owed by Dorothy to the plaintiff;[23]
[23]Ibid [55].

(b) the decision in Corbett v State Trustees Ltd[24] is also distinguishable, as that estate was valued at $600,000 (considerably less than the current estate), and the plaintiff in that case was an equal beneficiary with a next door neighbour, she herself being a longstanding friend of the deceased;
[24][2010] VSC 481.

(c) the categories of eligible claimants under Part IV of the Act are not closed, and the summary jurisdiction should not be used to stultify the development of the law;[25] and

(d) In Jackson v Newns, Mukhtar AsJ commented:

What can be said at the outset is that summary disposals in this type of case are rare. That is because facts in family claims are invariably in dispute to some appreciable degree, and a fair bit is at large in a field of discretion. The claims usually involve a close examination of human relationships, interpersonal affairs, family stories, beliefs, perceptions, expectations, people’s station in life and impalpabilities in life. The Court’s evaluation of the testator’s moral duty … and the exercise of a discretion that involves some value judgment means that ordinarily family claims are best left to trial to determine their sustainability.[26]
[25]See, eg, Spencer v Commonwealth of Australia (2010) 241 CLR 118, [25].
[26][2011] VSC 32, [11].

Consideration

The defendants argue that the plaintiffs do not now – and, if there were a trial, would not on the material filed – have a real prospect of satisfying the jurisdictional threshold, being the first of the three stages to which I refer in the Schedule. The defendants also contend that, on the material filed, the plaintiffs cannot establish that they have been left without proper maintenance and support.

The responsibility of Dorothy to make provision for the plaintiffs refers to a legal or moral responsibility, and is to be judged by reference to whether and, if so, what provision a wise and just testator would have thought it his moral duty to make in their interests. To that end, the Court must place itself in the position of the deceased and consider what she ought to have done in all the circumstances of the case, treating her for that purpose as wise and just, rather than fond and foolish.

Importantly for the present application, the absence of a list of eligible applicants makes a consideration of all of the factors listed in s 91(4) of the Act particularly difficult; especially given the summary nature of the application.

The cases that have been referred to by the defendants in their submission show the great difficulty that nephews and nieces have in establishing that a particular testator had a responsibility to them. However, all of the authorities in this area turn on their own facts. Moreover, Parliament’s decision not to specify a list of eligible applicants means that the Court must look at each individual case, consider and assess the evidence of each witness, and form a view on whether the deceased had a moral duty to make provision for the plaintiffs. This involves a value judgment based on the evidence of the witnesses as to the nature of the relationship and the application of all the factors specified in s 91(4)(e)-(p) of the Act.

The power to make an order under Part IV covers a wide range of circumstances. The submissions of the defendants attempt to categorise the relationship of nephew and aunt, or great-nephew and great-aunt, by reference to decisions that use the analogue of the relationship of parent and child. However, when reading other cases, it has to be recalled that this is merely a shorthand for a relationship that is identified as giving rise to a testator’s responsibility and moral duty to the claimant. Determining whether the jurisdictional threshold has been established must be approached on a case by case basis. No two cases are exactly alike.[27]
[27]In re Sinnott [1948] VLR 279, 281 (Fullagar J).

There is considerable force in the defendants’ submissions that the relationship of aunt and nephew and great-aunt and great-nephew are unlikely, without more, to give rise to the responsibility required by the Act. It is quite plain that the claims sit at the margin of valid claims for further provision. The two particular cases to which the defendants refer in which the claims of nephews have failed – that is, Jackson v Newns[28] and Napolitano v State Trustees Ltd[29] - are, however, distinguishable. The first, for the reasons advanced by the plaintiffs referred to above;[30] the second, simply, because the facts were quite distinct and, in particular, the relationship disclosed was vicarious - through the deceased’s wife.
[28][2011] VSC 32 (Mukhtar AsJ).
[29][2012] VSC 345 (Muhktar AsJ).
[30]See paragraph [47] above.

There is another important distinction between this case and Jackson v Newns and Napolitano v State Trustees Ltd. In those cases, Mukhtar AsJ proceeded on the footing that all the evidence that could be called by the plaintiff was before him. He said:[31]

But, the executor puts this application carefully. He accepts all that is contained in the plaintiff’s affidavit. Thus, questions about contested or additional evidence, the dynamics of trial and the deferral of more extensive argument to trial become immaterial. The question becomes the clinical one of asking now: on the plaintiff’s own evidence, is his case bound to fail because there is nothing to show that the plaintiff was a person for whom his uncle had a responsibility to make provision for proper maintenance and support? He says there was no moral duty at all.
In effect then, this Court on a summary judgment application is making the same evaluation of the merits as would occur at trial. It does not strike me as a situation where the trial milieu is going to be a different or better forum for an argument of a more extensive kind. One approach is to take a “look and sniff” at the facts and form some instinctive view of whether the matter ought to go to trial. Instinct can succumb to caution because of lawyer’s experience that “concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising case into a successful judgment”: Lindon v Commonwealth.[32]

[31][2011] VSC 32, [12]-[13], repeated in Napolitano at [7].

[32](1996) 70 ALJR 541, 545 (Kirby J).

In this case, after the application for summary judgment was made,[33] the plaintiffs were given the opportunity of filing any further affidavits in support of their application.[34] The affidavits subsequently filed were largely repetitive of the affidavits that had been filed in February 2014. As can be seen from my account of the plaintiffs’ evidence, it was mainly limited to their relationships with Dorothy and her late husband and their own financial circumstances.
[33]By summons filed 24 April 2014.
[34]Order 2 June 2014.

In my view, this case is different from Newns and Napolitano in relation to the evidence that may yet be available to the plaintiffs. In those cases, the competition, as it were, was with other family members. It seems that the view taken was that no other evidence could affect the prospects of the plaintiff’s success vis-a-vis the other members of the wider family who were beneficiaries under the Wills in question.

In substance, the competition here is between the plaintiffs in this proceeding and the Jensen plaintiffs, on the one part, and the two residuary beneficiaries, which are charitable institutions. It is not within the power of the plaintiffs to call the evidence that might be material to the claims that these charities have on the bounty of Dorothy. The evidence on applications for summary judgment is limited to evidence on affidavit, and cross-examination is usually not allowed. There is thus at least one lacuna in the evidence.

The evidence that may be available to the plaintiffs in an interlocutory application of this kind is more limited than the evidence that is available to them at trial. Putting aside any evidence that might be adduced by the defendants, or on their behalf, there is the prospect that persons may be subpoenaed or other persons may come forward to give evidence at a trial where they are unwilling to participate by providing affidavit evidence in an application of this kind.

Outlined below are the matters that lead me to conclude that this is a case in which the dispute is of such a nature that only a full hearing on the merits is appropriate, and it is not in the interests of justice to dismiss the application without a full hearing.[35]
[35]See, eg, CPA s 64.

A normal Aunt – Nephew relationship

The defendants’ submissions about what constitutes a ‘normal’ relationship between an aunt and a nephew, or a great-aunt and a great-nephew, whether a blood relationship or not, fails to persuade me that it is possible to conclude that there is no real prospect of the plaintiffs being successful in their claims. When asked what is such a normal relationship, the best that could be said was that the relationship described by the plaintiffs was the norm. What lies behind this submission are the authorities equating a relationship giving rise to the requisite moral obligation with that of a parent and child. An example of this is Iwasivka v State Trustees Ltd,[36] in which Hansen J found the relationship between an aunt and her niece to be of the nature of that between a mother and daughter.[37]
[36][2005] VSC 323.
[37]Ibid [93].

The authorities to which the defendants referred may be seen to establish a pattern in which, for convenience, the relationship giving rise to the requisite responsibility and moral duty is described as one more akin to that of parent and child. Such a relationship is said to be closer than that described by the plaintiffs in their affidavits. However, the authorities also reveal a wide and varied range of circumstances and each case has been, necessarily, decided on its own facts.

Relevant Factors

There are several factors in this proceeding, as in the Jensen Proceeding, that affect my consideration of whether the wise and just testatrix in the position of Dorothy had a responsibility to make further provision for the proper maintenance and support of the plaintiffs.

Dorothy’s appreciation of the value of the estate

As was submitted, in order to dispose of one’s assets freely, it is necessary to have a proper appreciation of the value of those assets. It is open for the plaintiffs to contend, as they did, that Dorothy did not have such an appreciation. The contention that Dorothy did not appreciate the true size of her estate is more than mere assertion.

A wise and just testatrix is deemed to be aware of the relevant circumstances prevailing at the time of death.[38] However, when she made her Will in 2005, Dorothy could not have appreciated the value of her Newport home, or the value of the nearby investment property, which was sold following her entry into a nursing home in 2006. That latter property realised over $750,000. Also, after the making of that Will, Dorothy received about $150,000 from her sister Margaret’s estate. Although these facts are facts adduced in the affidavits of Bradley Jensen in the Jensen Proceeding, they are facts nonetheless, and the defendants did not suggest that they could not be taken into account in this proceeding.
[38]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507-8.

During her life, Dorothy gave what she apparently considered to be generous gifts of money to her nieces and nephews, and great-nieces and great-nephews. By any modern standard they were small indeed. The legacies that she left her nieces and nephews are, in the context of the size of her estate, small. For these reasons, it is a fair inference that she did not appreciate the value of her assets – and thus the size of her estate – when she made her Will.

The size of the estate

The parties approached the issue of the size of the estate differently. The defendants said that it was modest, whereas the plaintiffs contended that it was substantial. In my view, the estate is more than modest. In managing the directions hearings for testators’ family maintenance applications, I see many estates of modest proportions, and they tend to be between $500,000 and $800,000. Dorothy’s estate is not, by today’s standards, large; however, it is of sufficient value when compared with the station in life of Dorothy and the plaintiffs to have significance in the assessment of the plaintiffs’ prospect of success. This is particularly so where the legacies are definitely small, and the residuary estate is to be divided between two charities about which there is no information of relevance.

The competing claims

Dorothy left what turns out to be a very large proportion of her estate to two charities. Little or nothing is known of the claims that those charities had upon her bounty. Neither the plaintiffs nor the Jensen plaintiffs can say very much about that. The defendants have said nothing. The only evidence possibly relevant was given by Mr Keating Snr, who refers to Patrick having suffered from skin cancer on his pate for about five to ten years, which in later years grew aggressively.

The combination of Dorothy’s lack of appreciation of the value of her estate and the very large proportion of the estate that now must go to the charities under the Will, leads me to conclude that there is a matter to be investigated at a trial, or a question to be tried. That is, whether Dorothy had a responsibility or moral duty to make further provision for the proper maintenance and support of the plaintiffs.

At this point, it is true to say that the plaintiffs’ case is weak, and may even fail. However, the authorities to which I have referred in the Schedule show that the power to dismiss summarily must be exercised with caution and in accordance with the overarching purpose under the CPA, taking into account the fact that, if granted, the plaintiffs will be deprived of the chance to pursue their claim.

The plaintiffs’ needs

The defendants’ contention that the plaintiffs have established no particular needs that are not presently being met, or are not likely to be met in the foreseeable future, is not a fair characterisation of the evidence to which I have referred. I need not repeat the short description of the evidence given above. Suffice it to say that both plaintiffs’ financial position, but particularly Mr Keating Jnr, discloses an arguable case for need. It is neither necessary nor appropriate to make any further remark on that score.

Conclusion

I am not satisfied that the plaintiffs have no real prospects of success in their claims. Further, for the reasons I have given, this is a case to which s 64 of the CPA clearly applies – that is, the dispute is of such a nature that only a full hearing on the merits is appropriate, and it is not in the interests of justice to dismiss the application without a full hearing. As such, the defendants’ application for summary dismissal of the plaintiffs’ claims is refused.

SCHEDULE
Applicable law
Summary Judgment test

The defendants’ applications are made pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Cth) (‘the CPA’), and Order 23 of the Supreme Court (General Civil Procedures) Rules 2005 (‘the Rules’). It is common ground that the test for summary judgment under s 63 of the CPA was authoritatively expressed by the Court of Appeal comprising Warren CJ and Nettle JA in Lysaght v Building Solutions Pty Ltd v Blanalko Pty Ltd.[39]
[39][2013] VSCA 158, [35].

Part 4.4 of the CPA sets out the test for summary judgment: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim – or part of the claim, defence or counterclaim – has no real prospect of success.[40]
[40]CPA s 63.

This liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success. The ‘real chance of success’ test is to some degree more liberal than the 'hopeless' or ‘bound to fail’ test, and acknowledges that there may be cases in which it appears that, although the respondent's case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[41]
[41]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, [29] (Warren CJ and Nettle JA, with whom Neave JA agreed).

The test must be applied according to its own terms and not according to considerations of whether the proceeding is ‘hopeless’ or ‘bound to fail’. To adopt “an unduly constrained, historical approach to the construction of s 63” would “subvert the purpose of the provision”.[42]
[42]Ibid [25].

Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[43] Courts should, therefore, only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that:
[43]Ibid [42] (Neave JA).

(a) the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or

(b) the action is frivolous, vexatious or an abuse of process; or

(c) the application for summary judgment is supported by evidence.[44]
[44]Ibid [35] (Warren CJ and Nettle JA, with whom Neave JA agreed).

If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a) it is not in the interests of justice to summarily dispose of the proceeding (s 64(a)); or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).

Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[45]
[45]Barber v State of Victoria [2012] VSC 554, [15].

It has been observed on a number of occasions that summary dismissal of claims under Part IV of the Act are rare.[46] That arises in many such cases because the facts are commonly disputed, and there is, as mentioned below, a considerable field in which the Court must exercise its discretion. The claims, when disputed, always involve an assessment of human relationships, interpersonal affairs, family stories, beliefs, perceptions, expectations, people’s station in life and impalpabilities in life. The Court’s evaluation of the testator’s moral duty and the exercise of a discretion that involves some value judgment means that, ordinarily, family claims are best left to trial to determine their sustainability.[47]
[46]Jackson v Newns [2011] VSC 32, [11] (Mukhtar AsJ).
[47]Ibid.

Family provision legislation
The Legislation and General Principles

Section 91(1) of the Act, which was inserted by s 55 of the Wills Act 1997 (Vic) and commenced to operate in July 1998, empowers the Court to “order that provision be made out of the estate of the deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision”.

This empowering provision does not include a list of eligible applicants for testators’ family maintenance, instead leaving it to the Court to determine on a case-by-case basis whether provision should be made for a particular applicant.

Section 91(3) of the Act prohibits the Court from doing so unless it is of the opinion that the distribution of the estate of the testator (or testatrix) effected by his (or her) Will does not make adequate provision for the proper maintenance and support of the plaintiffs.

Section 91(4) of the Act sets out 12 matters or factors to which the Court must have regard in determining:

(a) whether the testator had responsibility to make provision for a person, that is the eligibility of the applicant to obtain further provision;

(b) whether the distribution of the estate of the testator as effected by his Will makes adequate provision for the proper maintenance and support of the person;

(c) the amount of provision (if any) that the Court may order for that person; and

(d) any other matter related to an application for an order under sub-s 91(1).

The 12 matters in s 91(4) of the Act to which the Court must have regard are:

(a) any family or other relationship between the deceased and the applicant, including the nature of the relationship and, where relevant, the length of the relationship (91(4)(e));

(b) any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate (91(4)(f));

(c) the size and nature of the estate of the deceased (91(4)(g));

(d) 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 in the foreseeable future (91(4)(h));

(e) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate (91(4)(i));

(f) the age of the applicant (91(4)(j));

(g) 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 (91(4)(k));

(h) Any benefits previously given by the deceased to any applicant or beneficiary (91(4)(l));

(i) whether the applicant was being either wholly or partly maintained by the deceased person before that person's death and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility (91(4)(m));

(j) the liability of any other person to maintain the applicant (91(4)(n));

(k) the character and conduct of the applicant or any other person (91(4)(o)); and

(l) any other matter the Court considers relevant (91(4)(p)).

Section 91(4) of the Act is to be viewed as codifying established principles relevant to a Part IV application.[48] The post-amendment case law has made it clear that:
[48]Richard v AXA Trustees Ltd [2000] VSC 341, [7] (Eames J); Allan v Allan [2001] VSC 242, [60]-[69] (McDonald J); Lee v Hearn (2002) 7 VR 595, 606 [42] (Warren J); Blair v Blair [2002] VSC 131, [21] (Harper J); and Valbe v Irlicht [2001] VSC 53, [81]-[81] (Gillard J).

(a) The operation of the provisions must be considered in the light of the previous law;[49]
[49]Lee v Hearn (2002) 7 VR 595, [42], affirmed on appeal (2005) 11 VR 270; Blair v Blair (2004) 10 VR 69, [51]-[53]; Harris v Bennett (No 3) (2004) 8 VR 425, [22]; MacEwan Shaw v Shaw [2003] VSC 318 (MacEwan Shaw).

(b) The common law moral duty or obligation to provide still permeates the codification; and

(c) The significant changes introduced have been, first, the possibility of application by a wider class of persons and, secondly, the application by the Court of criteria in making its determinations.[50]
[50]Lee v Hearn (2002) 7 VR 595 at 606, [42] (Warren J – as her Honour then was); affirmed on appeal (2005) 11 VR 270.

In assessing applications under Part IV of the Act, and under corresponding family provision legislation in other States, the courts have distinguished two stages:

(a) The jurisdictional stage; and

(b) The discretionary stage.[51]
[51]Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J); Singer v Berghouse (1994) 181 CLR 201, 208-9.

In truth, under the Victorian Act, there are three stages:

(a) The first is whether the claimant falls within that class of persons for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support.[52] This is itself a jurisdictional question.
[52]Schmidt v Watkins [2002] VSC 273, [12] (Harper J); op cit Dodds-Streeton J in MacEwan Shaw at [43].

(b) Secondly, the usual jurisdictional stage determines whether the applicant, if an eligible applicant, has been left without proper maintenance and support.[53]
[53]Goodman v Windeyer (1980) 144 CLR 490, 502; Schmidt v Watkins [2002] VSC 273, (Harper J); MacEwan Shaw at [44].

(c) The third stage – the discretionary stage – determines whether the Court will, in fact, make an order for provision in the particular circumstances and, if so, precisely what that order should be.[54]
[54]White v Barron (1980) 144 CLR 431, 443 (Mason J).

The First Stage

The first of the jurisdictional stages, whether the deceased had a responsibility to make provision for the plaintiff, refers to a legal or moral responsibility.[55] As Chernov JA expressed it in Blair v Blair,[56] it is clear enough that the ‘responsibility’ of which s 94(1) of the Act speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, s 94(3) of the Act is essentially concerned with whether the deceased – as a wise and just testator – has fulfilled his or her moral obligation to make adequate provision for the claimant’s proper maintenance and support. Given, however, that the Court is now directed by the legislation to have regard to the matters specified in sub-ss 91(4)(e)-(p) of the Act when determining the jurisdictional issues, characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the amendments to Part IV of the Act.
[55]Blair v Blair (2004) 10 VR 69, [13] (Chernov JA); Lee v Hearn (2005) 11 VR 270, [5] (Callaway JA); Vigolo v Bostin (2005) 221 CLR 191, [2]-[25] (Gleeson CJ).
[56]Blair v Blair (2004) 10 VR 69, [13], which has been followed in numerous cases since. See, eg, Panozzo v Worland [2009] VSC 206, [27] (Forrest J).

However, it should be noted that, while the criterion in each of sub-ss 91(4)(e)-(o) is concerned with a specific matter, sub-s (p) is open ended. It enables the Court to consider “any other matter [it] considers relevant” and gives it a wide discretion to look beyond the specific statutory matters set out in the immediately preceding sub-sections for the purpose of determining whether the jurisdictional requirement has been satisfied. Where relevant, it also brings into consideration the testator’s moral obligation to the claimant.[57]
[57]Blair v Blair (2004) 10 VR 69, [13].

Nettle and Hansen JJA agreed with the reasons of Chernov JA in Blair v Blair.[58] However, Nettle JA added further support for the continuing relevance of moral duty to the jurisdictional questions posed by sub-ss 91(1) and (3), saying that to reason from the matters mentioned in s 91(4)(e)-(p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.[59]
[58]Blair v Blair (2004) 10 VR 69.
[59]Ibid [41].

Notwithstanding these statements of applicable principle, it must always be borne in mind that the Court is not entitled to rewrite the Will in accordance with its own ideas of fairness or justice. Rather, it must place itself in the position of the testator and consider what the testator ought to have done in all the circumstances of the case, treating him for that purpose as a wise and just, rather than a fond and foolish, testator.[60] This principle has application to each of the three stages. At each stage, the “wise and just” testator test is the norm, or the point of reference, subject to the stipulations of s 91.[61]
[60]Petrucci v Fields [2004] VSC 425, [58]; See also Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 146, citing Bosch v Perpetual Trustee Co [1938] AC 463, 478-9; Panozzo v Worland [2009] VSC 206, [25].
[61]Lee v Hearn (2005) 11 VR 270, 272-5, [1]-[9]; Vigolo v Bostin (2005) 221 CLR 191, 200-1, [13]-[18]; Panozzo v Worland [2009] VSC 206, [25].

The Second Stage

The second stage – the assessment of the adequacy of provision for proper maintenance and support – involves the following elements and considerations:

(a) the court must place itself in the position of the testator, treating the testator “as a wise and just, rather than a fond and foolish, husband and father”;[62]
[62]Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478 (Lord Romer).

(b) the wisdom and justice of the deceased is to be judged on the basis of the moral duty of such person to make provision for those for whom they had responsibility to make provision;[63]
[63]Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, 526-7; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Goodman v Windeyer (1980) 144 CLR 490; White v Barron (1980) 144 CLR 431; Vigolo v Bostin (2005) 221 CLR 191. In Singer v Berghouse (1994) 181 CLR 201, 209, Mason CJ, Deane and McHugh JJ doubted the usefulness of the element of ‘moral duty’, describing it a gloss on the statutory language. But Gleeson CJ in Vigolo at [25] considered it “valuable currency” which remains of value and should not be discarded. So too did the Court of Appeal in Lee v Hearn (2005) 11 VR 270.

(c) the expression ‘moral duty’ remains a simple and convenient way of referring to the obligation resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances. It is apt to describe what is generally considered, according to accepted community standards, to be the obligation of the testator to do what is right and proper for those members of his family (or for those for whom he is “responsible to make provision”) whom one would expect to be entitled to share in the distribution of his estate;[64]
[64]Collicoat v McMillan [1999] 3 VR 803, 819 [45] (Ormiston J).

(d) subject to the impact of s 91(4)(h) of the Act, the time for assessing the propriety of provision (that is, what a wise and just testator would have done) is the date of death, the intervening events between the date of death and the date of the hearing only being taken into account to the extent to which they are reasonably foreseeable;

(e) the question of what order should be made is answered by reference to the facts existing at the time of hearing by the Court.[65]
[65]Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Prosser v Twiss [1970] VR 225, 232; Panozzo v Worland, [2009] VSC 206, [50]-[57].

(f) the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the Court must determine whether the applicant has been left without adequate provision for her or his proper maintenance and support;[66]
[66]Singer v Berghouse (1994) 181 CLR 201, 210.

(g) an assessment of whether the provision in fact made was inadequate for what, in all the circumstances, was the proper level of maintenance and support appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty;[67]
[67]Ibid 209-10.

(h) the words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards;[68]
[68]Goodman v Windeyer (1980) 144 CLR 490, 502 (Gibbs J), cited with approval in Singer v Berghouse (1994) 181 CLR 201, 211.

(i) the courts do not disregard or discount the non-financial contributions made to the property and finances of the deceased that are not directly productive of a monetary return.[69] This is reflected in sub-s 91(4)(k) of the Act;
[69]See, eg, Mallet v Mallet (1984) 156 CLR 605, 623 (Mason J, with whom Deane J agreed), cited in Singer v Berghouse (1994) 181 CLR 201, 212.

(j) in assessing the adequacy of provision, the Court considers the needs of the applicant and balances those needs against the propriety of provision in each case.[70] In Blair v Blair,[71] the Court of Appeal approved the observations of Ormiston J in Collicoat v McMillan[72] that ‘need’ must be demonstrated by the claimant before the jurisdiction is exercised;[73]
[70]Re Allardice; Allardice v Allardice (1910) 29 NZLR 959, 970; Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 477-8.
[71](2004) 10 VR 69, [21].
[72](1999) 3 VR 803. [47].
[73]See also MacEwan Shaw v Shaw [2003] VSC 318, [214].

(k) the needs of the applicant are measured by considering the ability of the applicant to meet his or her financial responsibilities. The criteria of need must be looked at in a relative sense. Need is not simply to be measured by what is necessary for maintenance or survival, but must also be measured against such things as the size of the estate and any other competing claims upon the testator.[74] Where the estate is large, the range of matters that might be considered appropriate to the applicant’s proper provision is broad;[75]
[74]Vigolo v Bostin (2005) 221 CLR 191, [16], [122]-[123]; MacEwan Shaw v Shaw [2003] VSC 318, [48].
[75]Bosch v Perpetual Trustee Co Ltd [1938] AC 463;

(l) notions of what is adequate or proper are relative and, where demands other than the plaintiffs’ are made upon the estate, they must be taken into account;[76] and
[76]Pontifical Society for the Propagation of the Faith v Scales(1962) 107 CLR 9; Anderson v Teboneras [1990] VR 527; MacEwan Shaw v Shaw (2003) 11 VR 95.

(m)current community standards are relevant to the assessment of adequacy of provision for the applicant.[77] The “wise and just spouse and parent” is “that fair and reasonable man in the community, the spokesman of which is and must be the court itself”.[78]
[77]Vigolo v Bostin (2005) 221 CLR 191, [25] (Gleeson CJ); Singer v Berghouse (1994) 181 CLR 201, 211; Collicoat v McMillan [1999] 3 VR 803, [45]; McKenzie v Topp [2004] VSC 90, [63] (Nettle J).
[78]Kearns v Ellis (unreported, CA(NSW), CA363 of 1983, 5 December 1984), 8 (Mahoney J). See also White v Barron (1980) 144 CLR 431, 440 (Stephen J), 445 (Mason J); Vigolo v Bostin (2005) 221 CLR 191, [25] (Gleeson CJ); MacEwan Shaw v Shaw, [2003] VSC 318, [215].

The Third Stage

It is not necessary in this application to consider the third stage further than observing that its determination involves considerations similar to those of the second stage. Indeed, in the second stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the third stage of the process, that assessment will largely determine the order that should be made in favour of the applicant.[79]
[79]Singer v Berghouse, (1994) 181 CLR 201, 210 (Mason CJ, Deane and McHugh JJ).

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9 September 2014