Kostopoulos v Dellis

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KOSTOPOULOS v DELLIS & ANOR
[2023] SASC 78
Judgment of Auxiliary Judge Costello a Master of the Supreme Court
SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - PRINCIPLES OF EXERCISE OF DISCRETION
Application for provision - applicant and second respondent are children of the deceased - applicant received legacy of $20,000 with the residue being left to the second respondent - net value of estate approximately $400,000 - in her will the deceased recorded her disapproval of the applicant's former lifestyle as an escort worker - applicant 62 years old, impecunious and over her life a victim of physical, sexual and financial abuse - consideration of whether applicant's conduct disentitling - second respondent was the main carer for the deceased and her husband in their latter years - second respondent a 60 year old pensioner with limited means - in his capacity as executor, the second respondent breached an undertaking given under oath not to use monies set aside for the applicant, used estate monies for unauthorised purposes and intermingled trust and estate monies - exact value of the estate thereby rendered uncertain - consideration of the respective entitlements of the parties.
Held:
1. The applicant is to receive 40% of the estate.
2. The second respondent is to receive 60% of the estate.
Inheritance (Family Provision) Act 1972 (SA); Aged and Infirm Persons' Property Act 1940 (SA), referred to.
Illman v Sterrey & Ors [2023] SASC 50; Scott & Anor v Scott & Anor [2021] SASC 96; Bramwell v Bramwell & Ors [2022] SASC 12; Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, considered.

KOSTOPOULOS v DELLIS & ANOR
[2023] SASC 78
CIVIL

This is an application pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”). Mary Kostopoulos (“the applicant”) seeks provision to be made out of the estate of her mother, Efstathia Dellis (“the deceased”), for her maintenance and advancement in life.
Vasilios Dellis (“the second respondent”), the applicant’s brother, is the executor of the will and a beneficiary in the estate. In his capacity as a beneficiary he opposes the application.
Background
The deceased left a will dated 28 September 2015 (“the will”). She died on 26 August 2021. Probate of the will was granted on 19 October 2021. By her will the deceased made a specific bequest of $20,000 to the applicant and left the residue to the second respondent.
In Clause 8 of the will the deceased set out the reasons as to why she left only $20,000 to the applicant and the residue to the second respondent. Clause 8 reads:
8.I wish it noted that I make the dispositions above noting the difficulties I have experienced in my relations with my daughter and her family for well over twenty years. In that time she and her family have been careless of any responsibility to me and my spouse and she has undertaken and been engaged in a life and in activities which I will not detail in this document, but which are absolutely unacceptable and repugnant to us both, and I cannot in all of the circumstances make a larger bequest. My son and his family however, have never stinted in any way in giving to [me] and my spouse all the physical, personal and financial support they were able to give.
The reference, by the deceased in this Clause, to the applicant’s life and activities is largely, if not exclusively, a reference to the applicant’s work as an escort and to her and her partner’s use of illicit drugs. I will have more to say about this issue later in these reasons.
In his initial affidavit,[1] in his capacity as executor, the first respondent deposed to the Statement of Assets and Liabilities as disclosing a net estate of $426,713.45 which was generally comprised as follows:
Assets Within South Australia
[1] Exhibit R1.

Asset

Liabilities

Real estate

Property at 16A Little Sturt Street, Adelaide (Valuer General Valuation)

$330,000.00

Furniture, household and personal effects

Applicant’s estimate

$11,000.00

Bank Accounts

Westpac Account No. 291970

$33,052.36

Westpac Account No. 623872

$32,188.82

Westpac Account No. 291989

$22,380.59

Total Assets

$428,621.77

Liabilities

$1,908.32

Net value of estate

$426,713.45

Preliminary Matters
Westpac Account 291970

In a subsequent affidavit[2] the second respondent deposed to the fact that the monies in Westpac Account 291970, namely the sum of $33,052.36, did not form part of the estate and should be removed from the assets, such that the value of the estate was in fact $395,569.41. The basis, upon which these monies initially were said to form part of the estate and later were agreed to be excised from the estate, was the subject of both evidence and argument. After the completion of final submissions, the parties reached their agreed position with respect to these monies, in relation to which I was asked to make and made the following orders:
[2]    Exhibit R5.
By consent, the Court:
1. Declares that that the funds held by the deceased at her death in Westpac Account 291970 (“the Account”) being the sum of $33,052.36 were held by the respondent under a separate trust to the deceased estate and do not form part of the deceased estate.
2. Declares that the applicant and second respondent are entitled to the funds held in the Account in equal shares.
3. Releases the [first] respondent from the undertaking[3] provided by him on 22 February 2022 with such release limited to order 4 herein.
[3]    Exhibit R1 paragraph 8.
4. Declares that the release from the undertaking provided in order 3 herein is limited to the divestment of the sum of $20,000.
5. Orders that the [first] respondent is to do all things necessary to instruct his solicitors to transfer the sum of $20,000 (“Payment Sum”) currently held in the trust account of Lynch Myer Lawyers to the trust account of Camatta Lempens Lawyers as the solicitors of the Applicant.
6. Orders that the transfer of the Payment sum referred to in order 4 herein be made within seven (7) days of the date of this order.
7.     Declares that, from the Payment sum:
a.     the sum of $16,526.18 is paid to the Applicant in satisfaction of the applicant’s beneficial interest in the funds held in the Account at the date of death of the deceased;
b.     the balance of $3,473.82 is paid as a partial interim distribution of the legacy payable to Applicant pursuant to clause 6(b)(ii) of the deceased’s last will in time dated 28 September 2015.
8.      Orders that there be no order as to the costs of orders 4 and 5 of the Amended Originating Process filed 20 April 2023 [FDN24].
Size of the Estate
Regardless of whether or not the monies in this Account formed part of the estate, the net value of the estate is considerably less than $750,000.00. In the result, the action proceeded as a summary trial in accordance with the provisions of UCR 254.15.
Injunction
By reason of the manner in which the first respondent conducted his dealings with the estate monies (about which I will also have more to say later) the applicant applied (FDN 21) for an injunction preventing “Mr Vasilios Dellis” from dealing with the estate property.
The application was not opposed and I made orders in the following terms:
1.   Until the further order of the Court, Mr Vasilios Dellis of 12A Porchester Street Campbelltown SA 5074 be restrained from selling, transferring, partitioning, disposing of or in any way encumbering the land comprised in Certificate of Title Register Book Volume 6049 Folio 866 situate at 16A Little Sturt Street, Adelaide, 5000 (“Property”) or any interest in the Property and from taking any steps to do any of those things without written agreement of a solicitor at Camatta Lempens Pty Ltd Lawyers of 345 King William Street Adelaide SA 5000 or by order of the Court.
2.   Order 1 takes effect upon the making of such order by this Honourable Court.
3.   This order be served upon the Registrar-General of the Land Titles Office at Adelaide and that a memorial of this order be placed on the Certificate of Title of the Property.
Provision subject to Protection Order
The applicant has accepted, due to the fact of her vulnerability (financial and otherwise), that it is appropriate, if the Court awarded further provision to her, for such provision to be made the subject of a Protection Order either under the Aged and Infirm Persons’ Property Act 1940 or under the SACAT equivalent of an Administration Order.
Objections to Evidence
The parties prepared a schedule which set out particular pieces of evidence, to which objection was taken, in various numbered paragraphs, in the sundry affidavits tendered in the trial, together with an Objection Code in accordance with UCR 154.2. Apart from certain specific pieces of evidence, the admissibility of which I ruled on in the course of the trial, I determined to receive the balance of the evidence, to which objection was taken, “de bene esse” and if ultimately admitted to give appropriate weight to that evidence in the context of all the other evidence in the trial.[4]
[4] See UCR 254.14.
The evidence at trial
In support of her claim the applicant filed two affidavits[5] of her own, together with an affidavit[6] sworn by a Ms Vander Sman, the centre co-ordinator at the Adelaide Day Centre for Homeless Persons Inc (“the Centre”).
[5] Exhibits A2 and A3.
[6] Exhibit A1.
The Applicant
In her first affidavit[7] the applicant said that she had been married and had two children, both of whom are now in their early to mid-thirties.
[7] Exhibit A2.
In about 2004 her marriage ended and she began living in a women’s shelter. At that time she commenced a relationship with a man who introduced her to drugs and encouraged her to work as an escort. This man and others were abusive to her, kept from her the money she earned and supplied her with drugs. This lifestyle continued until around 2015 when she says that she ceased using drugs and working as an escort.
Thereafter, she moved back to her parents’ house and commenced to help each of them with various household duties until their deaths in 2018 and 2021 respectively. She stated that after moving back in with her parents her relationship with her mother improved.
In terms of her needs, she is 62 years of age and in receipt of a Disability Support Pension of approximately $970 per fortnight. She has no savings or other assets and only a small amount of furniture and household effects.
In her second affidavit sworn in December 2022,[8] she gave further details of her early life, work as an escort, her relationship with her parents after returning home in 2015, and her current commitments in terms of her lifestyle. She also responded to some of the allegations made by the second respondent in his various affidavits.
[8] Exhibit A3.
She said that as a very young person she was in receipt of unemployment benefits, some of which her parents took from her to assist them to pay off their mortgage.
She said that her brother was in trouble with the law as a teenager. In contrast to her situation where she received no financial assistance from her parents, she said that, from the time of his marriage, her parents had given him various sums of money not only for general living but also to purchase a business and renovate a home.
She said that after moving back in with her parents in 2015, the combination of her parents’ ages and health difficulties meant that she was regularly involved in caring for them, shopping and helping with paying bills etc.
She detailed her relationship with her partner Richard which, to put it mildly, is fraught but said that prior to their deaths her parents had gotten to know him better and that respectively their relationships with him had improved.
She said that her failure to see her father in hospital prior to his death was due largely to the fact that her mother was scared to be on her own and did not want her to leave the home, even to visit her father.
In terms of accommodation, she has nowhere to live other than the house at Little Sturt Street (“the property”). As to her current outgoings, she said that she pays $100 per fortnight for gas and electricity. She gives her pension to Richard out of which he gets his tobacco, buys them food and tops up his phone card. He then gives her what is left over. She eats basic food and relies on the Centre for top-up food hampers.
In terms of her brother’s allegations, she rejected the assertion that she was abusive to the deceased. She said that her parents would regularly fight and that it was not easy living with them.
She said that her brother often pressed his parents to give him money. She also rejected his assertion that he bought her father cars.
Finally, she said that there were not a lot of men who visited the property and that the only “strange” men who came to the house were Richard and a long-term friend of hers, Wesley Snell, neither of whom posed a threat to her mother. She also denied stealing her mother’s Valium tablets which she found stored behind the deceased’s bed after her death.
She supplemented her affidavit evidence with some brief oral evidence.
In cross-examination she said inter alia that her partner of some 19 years, Richard, moved into her parents’ house when her mother died. She acknowledged that he was still regularly taking drugs but that when her parents were alive she always made him leave the property when he was actually using the drugs.
She denied any suggestion that her parents were exposed to harm by his presence or that of any other friends who came to the property.
She said that prior to moving into the property her lifestyle was such that she was always terrified. She reaffirmed her affidavit evidence that, during the time she was in the property while her parents were alive, she cared for them in various household duties.
She also made allegations of having been raped by the second respondent, allegations which, in the absence of any corroboration, I am not prepared to accept. Finally, she said that, if she was required to leave the property, she had discussed with her ex‑husband the possibility of living with him but that her discussions with him on this topic had not progressed any further.
Assessment of the applicant
She was an unimpressive witness. She was constantly on the alert and appeared to be looking for “traps”, real or imagined, in the questions she was being asked. So much may be a consequence of her previous lifestyle. She often sought to answer questions with her own. Her evidence about her work around the house and in general with respect to her partner, Richard, lacked the “ring of truth”.
In light of other evidence I heard and which I prefer, I have difficulty in accepting much of her evidence, particularly in areas such as her view of her parents’ safety or lack thereof, the amount she did around the house and Richard’s positive relationship with her father. I do however accept her evidence about being terrified in her general life and as to her precarious financial situation. I am also prepared to accept the thrust of her evidence in terms of her being a victim of physical, emotional and sexual abuse by men over many years.
Ms Vander Sman
In support of her claim she also relied on an affidavit[9] from Ms Vander Sman. She said that the applicant has been receiving food parcels from the Centre since 2015 and that the supply of parcels had gradually increased to the point where she currently receives a food parcel every fortnight. She expressed concern as to where the applicant’s money was going and that her money may be being spent in ways outside her control.
[9] Exhibit A1.
She said that in the months prior to the deceased’s death she visited the house on two occasions. On those occasions she formed the impression that the atmosphere in the house was calm and said that she did not see anything to give her cause for concern for the deceased’s safety.
In her oral evidence she made it very clear that if the applicant was forced to leave her current accommodation, she would have to live on the streets for at least a fortnight before “qualifying” for emergency shelter/accommodation. This, she said, was a product of the housing/accommodation shortage in Adelaide, a situation which had become markedly worse in recent years.
Assessment of Ms Vander Sman
She was an impressive, dispassionate witness. I have no reason to doubt the overall thrust of her evidence including the fact that, on the two occasions when she visited the home, the atmosphere was calm and the house was tidy. In light of other evidence, I do not accept that the state of the house, as she observed it, represented the norm.
The second respondent
The second respondent filed some five affidavits, some in his capacity as a beneficiary and others in his capacity as the executor. It is unnecessary to recite the contents of each affidavit in detail.
In his first affidavit,[10] sworn on 10 May 2022, he deposed to the fact that the assets and liabilities of the estate, as recorded in the Statement of Assets and Liabilities, had changed. He said that the ownership of the property had now been changed into his name and that the monies comprised in each of three Westpac accounts had been transferred into a single consolidated account.
[10] Exhibit R1.
In that account there was approximately $26,000 of which $20,000 had been set aside for the applicant, which money represented her entitlement under the will.
He referred to an undertaking which he had given, through his solicitors, to the applicant not to dispose of the property and to hold the $20,000 amount and not divest it without approval from the applicant or the Court.
In his second affidavit[11] he spoke of seeing the applicant in Hindley Street in 2009 and learning that she was working as an escort. The next day he spoke to his parents about this and found out that they already knew. He said his parents appeared to him to be devasted, embarrassed and ashamed. I am prepared to accept that this observation accurately represented his parents’ respective states of mind after learning of the applicant’s lifestyle. As far as the deceased is concerned so much is evidenced by Clause 8.
[11] Exhibit R2.
He spoke of his father’s emerging health issues later in 2009 and the need (which he fulfilled) for him to care thereafter for his father’s regular health needs.
He said that during this time his taxi business suffered. He became anxious and depressed. His marriage ended and he was forced to sell his matrimonial home and move into rental accommodation which he is still doing. He said that his father’s health deteriorated over the next few years and that as that situation evolved the burden on him to care for his father increased.
He spoke of the difficulties faced by his parents after the applicant moved in, in 2015. He said that they were fearful of her partner Richard and for the applicant and that they were concerned for their own safety. During this period it is accepted that when Richard was visiting the house he was still continuing to use drugs and as a result was requested by the applicant to leave the house when so doing. I accept that they were fearful of him and for their daughter.
He said that, after his father’s death, his mother would often call him saying that she was afraid and that when he attended he had many heated discussions with the applicant wherein he told her to stop bringing men over to the house. He said that she would often claim to be associated with an outlaw motorcycle club which was distressing to his parents.

He said that, to his observation, his parents endured immense psychological pain, anguish and humiliation during their latter years and that the applicant’s behaviour deprived them of the freedom, happiness and joy they previously experienced with extended family and friends. Again, I have no difficulty in accepting his evidence on this issue.
In terms of personal circumstances, he said that he lives in rental accommodation and pays rent of $950 per fortnight. He said that he is unable to work and receives approximately $800 per fortnight from Centrelink.
In his third affidavit[12] he said that his parents had advanced him and his wife money on their marriage and had also given them various furniture and effects. However, he said that his parents had also gifted furniture and household effects to the applicant when she married.
[12] Exhibit R3.
He said that after his father’s death, his aunt, Ms Papazoglou, regularly assisted his mother with shopping and paying bills.
He said that he had suffered significant financial detriment by reason of the applicant’s occupation of the property. As a result he had been forced to pay approximately $35,000 in rent, between his mother’s death and February 2023, together with approximately $4,000 in outgoings on his rental property. He also deposed to having spent over $15,000 on his mother’s funeral expenses.
In April this year, he filed two further affidavits[13] wherein he detailed, first, the dealings he had made with respect to each of the three of his mother’s bank accounts with Westpac, and secondly the fact that he had opened a consolidated bank account into which he transferred the balance of monies from those three Westpac accounts.
[13] Exhibits R4 and R5.
The total amount transferred to the consolidated bank account would appear to be approximately $56,000 being some $30,000 less than the amount originally disclosed in the Statement of Assets and Liabilities.
He indicated that since November 2021 he had used the consolidated bank account to pay expenses related to the administration of the estate and in some instances his own personal expenses.
He also admitted to breaching his written undertaking to hold the $20,000 (referred to in exhibit R1) and not divest it without approval from either the applicant or the Court. He conceded that he had reduced the amount of that $20,000 by nearly $10,000. He said that he had since borrowed funds to restore the sum to $20,000 and was arranging for that money to be held in his solicitor’s trust account.
In his latter affidavit, sworn on 18 April 2023,[14] he deposed to the fact that it had been brought to his attention that the funds of $33,052.36 (in Account 291970) were not in fact funds which form part of the estate but were funds which were the subject of a separate trust which fell outside the estate. This is the trust to which I referred earlier and in relation to which I made the consent orders set out in [7] above.
[14] Exhibit R5.
In the result, he said that the estate identified in the Statement of Assets and Liabilities should now be reduced from $428,621.77 to $395,569.41.
He also gave supplementary oral evidence.
In examination in chief he said that on one occasion the applicant called his mother a “dirty slut, whore and a dog”, and his father “a cunt”.
He said that after the applicant moved in to the property the deceased was regularly fearful for her safety. He said that to his observation the house was always in an unclean state after she moved in. At one point he gave her a new vacuum cleaner to use in the house but said that this was never used. He said that he was desperate to live in the property and to cease paying rent.
In cross-examination, he conceded that he had used part of the $20,000 which he set aside and kept in an envelope, in breach of the undertaking.
He said that, at times over the recent years, he had been desperately short of money and that on some occasions he had taken money from the envelope in breach of the undertaking. He had done so in order to relieve him from, what he suggested, was his dire financial state. He said that he had also borrowed, from time-to-time, from his son but that more recently his son was unable to continue to support him.
He reaffirmed that his financial detriment, due to the applicant remaining in the property, amounted to some $35,000 represented by the rent he had otherwise been required to pay.
However, he did concede that during this time he had received payments from his son to defray his rental requirements but disagreed that those payments had had the effect of reducing his overall detriment.
He agreed that he had spent much of the applicant’s half of the proceeds of the Account 291970 but said that he had used those funds for funeral type expenses. He did concede, however, that at least some of the money he spent had been for his own personal expenses.
He accepted that, contrary to the assertion in his affidavit evidence, of not working since around 2018, he had in fact worked on odd jobs including painting and the transport of goods. He said that he received only small amounts of money (perhaps hundreds of dollars) for those jobs and that much of the work he did was undertaken as a sort of recompense to those who had done work for him.
Assessment of the second respondent
I generally accept his evidence with respect to his observations as to the state of the property after the applicant moved back in, the lack of care and attention provided to his parents by the applicant and to their expressed concerns for their safety.
However, in relation to his dealings with estate funds I found his evidence to be unimpressive and self-serving and that he sought to convey a version of events somewhat sympathetic to himself which portrayed him as being effectively forced into some of these dealings.
I do not accept his evidence that he “unwittingly” (my word, not his) accessed money in breach of his undertaking. Nor do I accept his evidence that his resort to trust funds was always because of his dire financial status. The number of times he did so and the variety of personal items upon which funds were expended suggests a more liberal and carefree approach to his obligations with respect to these funds than his evidence would have me believe.
Ms Papazoglou
She is the sister of the deceased. In her affidavit[15] she said that the applicant’s return to the property proved very difficult for her sister and brother‑in‑law.
[15] Exhibit R6.
She said she visited her sister regularly after the applicant resumed living there but never observed her to provide any assistance to the deceased. She said also that she never observed her to clean the house. She said that when she told the applicant to help her mother she always refused. She said that she witnessed the applicant on various occasions swear at her mother and push or hit her.
She said that the applicant gave her mother (from what she saw) none of the love, care, attention and support she would expect from an adult child to her parents.
In her oral evidence she was cross-examined about an incident where she initially said that the applicant had hit her mother. After detailed questioning she conceded that she did not in fact see the applicant’s hand make contact with the deceased’s face or body. Whilst I accept her affidavit evidence that on occasions she observed the applicant to swear at her mother I am not prepared to accept her evidence that she saw her hit her mother on various occasions.
Assessment of Ms Papazoglou
Despite the reservation referred to above, I generally found her to be a careful, honest witness who was prepared to concede to suggestions that she may have been incorrect in her affidavit evidence.
I accept her evidence, particularly where it conflicts with the applicant’s evidence, as to the absence of housework done by the applicant and the lack of care and attention that she provided to her mother. In short, I accept her evidence that on the many occasions she was at the property, after the applicant moved back in, she saw no evidence that the applicant was cleaning the property and nor did she observe her to provide an appropriate level of care to the deceased.
The statutory scheme
The Act in question relevantly provides:
6—Persons entitled to claim under this Act
The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:
(a)      the spouse of the deceased person;
(b)     a person who has been divorced from the deceased person;
(ba)    the domestic partner of the deceased person;
(c)      a child of the deceased person;
(g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h)     a child of the child of the deceased person;
(i) a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
(j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
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.
…
Relevant legal principles and approach
The relevant legal principles in applications of this nature are well established. They have been variously articulated in this State and elsewhere.
Although made in the context of a very different application from the present, the recent observations of Judge Dart, on the relevant principles and approach, in Illman v Sterrey & Ors,[16] are particularly helpful and I gratefully adopt them.
[16] [2023] SASC 50.
His Honour said:[17]
[17] [2023] SASC 50 at [14] – [20].
There is now more than 100 years of authority in relation to family provisions matters. The principles to be applied in determining a claim are well‑established and beyond any reasonable dispute. They may be stated as follows:
1.   The statute requires the Court to carry out a two-staged process. The first stage requires a determination of whether the applicant has been left without adequate provision. If that is decided in the affirmative, the Court is then required to determine what would be an appropriate provision.
2.   The legislation is remedial in character and is to be construed to give the most complete remedy which the phraseology will permit.
3.   The words “adequate” and “proper” are relative. The word “proper” connotes something different from the word “adequate”. It connotes an ethical position as to what allowance should be made. Adequate provision for proper maintenance is not limited to providing what is sufficient for basic subsistence.
4.   The time for considering whether the applicant has been left without adequate provision is the date of the death of the testator.
5.   Consideration of moral claims and moral duty are useful as a guide to the meaning of the statute and they connect the general value-laden language of the statute to community standards which give it practical meaning.
6.   The provision which the Court may properly make is that which a just and wise testator would have thought it his or her moral duty to make had he or she been fully aware of all the relevant circumstances.
At first blush it might be thought that s 7(1) of the Act is setting out an economic test by which it is determined whether an applicant has adequate provision for her proper maintenance, education or advancement in life. However, ultimately it was the moral or ethical approach that has been accepted as the correct approach. That approach arises from the use of the word “proper” in the statute. In Bosch v Perpetual Trustee Co Ltd the Privy Council made clear that an economic approach to the interpretation of the section was not the correct approach. It found that a judgment as to the maintenance which is “proper” for a particular applicant in the circumstances of a case is necessarily a judgment as to what maintenance the applicant ought to have in the circumstances and not what he or she needs.
The moral approach was approved by the High Court in Worladge & Anor v Doddridge & Ors where Kitto J said:
What is proper is to be tested by reference to the provision which in all the circumstances of a case satisfies but does not exceed the requirements of moral justice in regard to those particular purposes.
The purposes, of course, were provision for the proper maintenance, education and advancement in life.
As mentioned, there is a two-stage process. The first stage is the conventional jurisdictional question. That is, has the Court’s jurisdiction to make an award of provision been enlivened. In Singer v Berghouse (No 2), in the decision of Mason CJ, Deane J and McHugh J, their Honour’s said:
Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of the 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 his or her proper maintenance, education and advancement in life.
[footnote omitted]
In Tiburzi v Butler in the principal judgment Doyle J noted:
There is no doubt that the second stage of the process of determining an application under s 7 of the Act, being an exercise of judicial discretion, is subject to the principles concerning appellate review of a discretionary decision in House v The King. Further, it is now settled that an appeal against a trial judge’s determination of the first stage, or jurisdictional question, is also governed by these principles of appellate restraint. This is so despite the first stage sometimes being described as the application of the facts to a legal standard, and involving an evaluative judgement rather than a discretion.
[footnote omitted]
A similar explanation was provided in Kozlowski v Kozlowski where Sulan J wrote the principal judgment. His Honour said:
The first stage of the inquiry involves an objective assessment of all the circumstances in the case and determining whether, in fact, adequate provision has been made for the applicant. Where the first stage of the inquiry is answered in the affirmative, the second stage involves the exercise of judicial discretion in determining what provision ought to be made having regard to the factors identified by the legislation.
The issue before the Court on each of the two jurisdictional questions is one of fact. There is no exercise of discretion in answering either question. A discretion arises only in respect of the second step which is determining what an adequate provision will be if the two jurisdictional questions have been answered in the affirmative.
[footnotes omitted]
I also adopt the observations of Judge Dart (in Scott & Anor v Scott & Anor[18]) in relation to aspects of the assessment task where his Honour said:
[18] [2021] SASC 96 at [13]-[14].
… it is also necessary to have regard to the conflict between the statutory scheme allowing the Court to award further provision by way of an amendment to the will of the deceased and the entitlement of a person to freely make a testamentary distribution as they see fit. There is an obvious and unavoidable tension. In Andrew v Andrew Hallen AsJ said:
In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were given in the context of the former Act, they are equally apt in a claim such as this one.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a “fair” disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.
In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding “against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant”.
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system.
The task before the Court is limited to the making of an adequate provision for claimant who satisfies the jurisdiction requirement. No interfering with the terms of the will beyond that is authorised by the Act.
[footnotes omitted]
Consideration
Against this factual and statutory background, the following issues arise for consideration and determination:
(i)The true value of the estate.
(ii)The treatment and disposition of the monies originally deposited in Westpac Account 291970.
(iii)Whether the applicant been left without adequate provision?
(iv)Whether the applicant’s conduct been such as to disentitle her from being able to prosecute her claim?
(v)The relevance and treatment of Clause 8 of the will.
(vi)What amount (if anything) would represent an appropriate level of provision?
The true value of the estate
On the evidence before me, it is simply not possible to determine the true or accurate value of the estate.
First, the respondent has used (by his own admission) the funds standing in the consolidated bank account (for all intents and purposes the estate bank account) for purposes other than estate purposes. Secondly, he has also breached his undertaking to the Court by accessing, for his own personal purposes, portion of the $20,000 representing the amount of the specific bequest to the applicant.
Leaving aside the issue of the moral culpability of his actions, his conduct and treatment of the estate’s assets, whereby he has intermingled trust and estate monies (and used these monies for a variety of purposes, some legitimate and others not), has effectively precluded the Court from being able to make an informed judgment as to the estate’s exact value.
Westpac Account 291970
This issue has now been resolved consequent upon the consent orders I have made.
Adequate provision for the applicant
For the purposes of any consideration under this head, I need only to consider the financial position and moral claim of the applicant.[19] I am in no doubt that she has satisfied the jurisdictional test.
[19] Bramwell v Bramwell & Ors [2022] SASC 12 at [87].

Her financial circumstances can best be described as poor. Her only income is via a Disability Support Pension, control of which she has effectively ceded to her partner, Richard. He gives her money from her pension but only after he has paid for household bills, bought food and tobacco for himself, and topped up his phone card. I suspect, without knowing, that he also uses her money to purchase illicit drugs.
She has a regular and growing reliance on the Centre for food and is now receiving a food parcel approximately every fortnight.
She has little, if anything, in the way of assets and no apparent ability to earn income. Quite apart from her financial circumstances, I am also satisfied that during the course of her life, particularly for the period during which she was working as an escort, she has been the subject of physical, emotional and sexual abuse. It may be accepted that, absent an award, there is a real potential for her to be rendered homeless and forced (even if only for a short time) to live on the streets.
I am satisfied that, as at 1 August 2021, the applicant has been left without adequate provision for her proper maintenance, education and advancement in life.
Disentitling conduct
It was not in dispute that the applicant worked as an escort for many years. I accept that the knowledge of her lifestyle caused the deceased to be distressed, embarrassed and ashamed and that it diminished her parents’ enjoyment of life in their respective latter years.
I am equally satisfied that the applicant’s decision, to return to the property in 2015 and to introduce her drug-addicted partner into the household, led to understandable tensions in the house and caused the deceased to be fearful for her safety.
However, I also accept that, although for many years she was the author of her own misfortune, she was also in many respects a victim. Over the years she has been subjected to various forms of abuse and prior to returning home was regularly terrified in her daily life.
The deceased clearly recognised the difficulties facing the applicant and as Ms Papazoglou recognised, despite the fear it caused the deceased she nevertheless allowed the applicant to stay in the property because she was “worried about what might happen to Mary if she was not living under her roof”[20].
[20] Exhibit R6 at paragraph 27.
Subject to what I have to say in relation to Clause 8, I am not persuaded that the applicant’s conduct was such as to disentitle her from the benefit of any provision.
Clause 8
In Hughes v National Trustees, Executors & Agency Co of Australasia Ltd[21] the High Court said:
If reasons are given by the testator reflecting on the character or conduct of that child, the Court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator…
[21] (1979) 143 CLR 134 at 156.
I have already accepted the truth of the various allegations about the applicant’s conduct.
Nevertheless, for the reasons already articulated, I do not regard the applicant’s character or conduct as being of sufficient gravity to negate the deceased’s moral obligation to her. True it is that her lifestyle and choice of partner had a significant detrimental impact on the deceased’s enjoyment of life but her decision to continue to live this way was not entirely or always within her control and Ms Papazoglou’s evidence manifests (at least to some extent) a degree of ambivalence on the part of the deceased.
Appropriate level of provision
The applicant’s personal and financial circumstances
As I noted earlier, she presents as a woman in her early 60’s with limited financial means and no ability to earn income. She has few or no assets.
There would seem to be little prospect of her circumstances changing. Her past lifestyle and current living arrangements mean that she will probably continue to remain a vulnerable person.
This is perhaps best exemplified by the fact that, without appropriate provision, she is likely to continue to need ongoing support from a charitable organisation for food. As a result of her vulnerability she will also have an ongoing need for safe and secure accommodation.
However, her current predicament has been brought about, in no small measure, by decisions that she took many years ago as to how she wished to live her life. She said as much to her brother when he confronted her in the street and asked her to stop living this way, namely by saying “It’s my life, I want to live my life how I would live it”[22].
[22] Transcript – page 93, lines 35-36.
Balancing factors both pro and con, I am satisfied that she is entitled to an award representing a significant proportion of the estate. However prior to determining the extent of any such award, I need to consider the second respondent’s conduct and his personal financial position.
Second respondent’s conduct and personal circumstances
In his dealings with the estate, the second respondent behaved reprehensibly. Although his dealings with Account 291970 may arguably have resulted from a misunderstanding on his part, the breach of his undertaking was calculated and ongoing.
When given an opportunity to explain his behaviour in the witness box, he sought to excuse it by saying that he was financially desperate. This is arguably an insufficient justification when considered in the context of him needing money to pay his rent but it is fanciful when one considers that he used these funds for things like family celebrations and Italian cigars.
I also consider that on other issues, such as him working, albeit on a part‑time basis, he was both self-serving and lacking in appropriate candour. In my view he also sought to exaggerate the level of detriment he has suffered in paying rent, during the period when the applicant has been occupying the property, by omitting to factor in the amount paid to him by his son for rent and usual household expenses.[23]
[23] Exhibit R2, paragraph 116.
On the other hand, I accept the overall thrust of his evidence as to the assistance, care and support he provided to the deceased, both before and after the applicant moved in.
I accept that he was the primary, if not the sole, carer of his father in times of his health needs and that he attended the house on many occasions to address the safety concerns of his parents (but particularly those of the deceased) occasioned by the presence in the house of the applicant, her partner and other men.
I also accept that his financial position, while not quite as dire as the applicant’s, is still relatively precarious. He is 60 years old, largely unemployed and is in receipt of a Centrelink allowance of $800 per fortnight. His current rent is over $900 per fortnight. He has no shares, real estate, savings, superannuation or other substantial assets. From time-to-time, he has been reliant on his son for financial support.
While he received financial assistance from his parents before and after he married, I accept that he also financially assisted his father by purchasing three cars for him. In addition, he often bought furniture and household effects for them and paid contractors such as electricians and plumbers who were called to the house.
Although his conduct in dealing with the estate fell well short of that which is to be expected of a responsible executor, he has clearly been a source of love, care and support to the deceased for many years. He too is deserving of an award representing a significant portion of the estate.
Conclusion
As I said earlier, it is not possible to determine the exact value of the estate. As such, it is appropriate to apportion the estate between the applicant and the second respondent by allocating to each a proportion of the estate based on a percentage.
I recognise that by so doing, the property in which each of them would prefer to reside, will probably have to be sold. Sadly, the relatively small amount of the estate means that such a prospect may be largely unavoidable.
It may also mean that the applicant could be forced onto the street. However if the proceeds from her proportion of the estate are appropriately managed this outcome may be able to be mitigated in various ways or even avoided altogether. In so saying, I bear in mind the potential (uncertain as it is) for her to secure at least temporary accommodation with her ex-husband.
Finally, even though, as I have said, the applicant’s circumstances dictate an award to her representing a significant proportion of the estate, I need also to be mindful of and guard against the “natural tendency to reform” the will.
I am satisfied that further provision should be made for the applicant out of the deceased estate. In lieu of the bequest of the sum of $20,000.00 to the applicant, the estate should be divided by distributing an amount equal to 40% of the estate to the applicant and 60% to the second respondent.
I will hear the parties on any other orders I should make consequent upon these reasons.

Asset	Liabilities
Real estate Property at 16A Little Sturt Street, Adelaide (Valuer General Valuation)	$330,000.00
Furniture, household and personal effects Applicant’s estimate	$11,000.00
Bank Accounts Westpac Account No. 291970	$33,052.36
Westpac Account No. 623872	$32,188.82
Westpac Account No. 291989	$22,380.59
Total Assets	$428,621.77
Liabilities	$1,908.32
Net value of estate	$426,713.45

[2023] SASC 78

17 May 2023