Lawless v Jacobs

[2009] VCC 535

, of probabilities,

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-00009

RODNEY LAWLESS	Plaintiff
v
MICHAEL GEOFFREY JACOBS	Defendant
(who is sued as Executor of the Will of Peter John Lawless, deceased)

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2009
DATE OF JUDGMENT:	8 May 2009
CASE MAY BE CITED AS:	Lawless v Jacobs
MEDIUM NEUTRAL CITATION:	[2009] VCC 0535

REASONS FOR JUDGMENT

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Catchwords: TESTATOR'S FAMILY MAINTENANCE – application by adult intellectually disabled son – whether provision made by the testator in the will was inadequate – reliance by the testator on son’s continued receipt of government benefits: Administration and Probate Act 1958, section 91(1), (3) and (4)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	State Trustees
For the Defendant	Mr J Arthur	Mackinnon Jacobs Horton & Irving Pty Ltd
HIS HONOUR:

Introduction

1          Before the Court is a proceeding brought by Originating Motion filed 3 January 2008, by which the plaintiff seeks an order for further provision, out of the estate of the deceased, for his maintenance and support.

2          Mr R Boaden of counsel appeared for the plaintiff, and Mr J Arthur of counsel appeared for the defendant.

3          The following evidence was adduced during the hearing:

•  Ms Martha Pavlidis gave evidence and was cross-examined.

•  Ms Elise Venables gave evidence and was cross-examined.

•  The plaintiff tendered the following evidence:

ƒ the affidavit of Martha Pavlidis sworn 24 June 2008, together with

Exhibits "MP1" - "MP3": Exhibit A

ƒ the affidavit of Martha Pavlidis sworn 14 April 2009, together with

Exhibit "MP6": Exhibit B

ƒ the affidavit of Elise Venables sworn 18 March 2009, together with

Exhibit "EV1": Exhibit C.

•

The defendant tendered the following evidence:

ƒ	the affidavit of Michael Jacobs sworn 2 October 2008, together with Exhibits "MGJ1" - "MGJ9": Exhibit 1
ƒ	the affidavit of Patricia Gephart sworn 2 October 2008, together with Exhibits "PG1" - "PG2": Exhibit 2

ƒ the affidavit of Sean Lawless sworn 2 October 2008, together with

Exhibits "SL1" - "SL2": Exhibit 3

ƒ the affidavit of Michael Jacobs sworn 23 March 2009, together with

Exhibits "MGJ10" - "MGJ13": Exhibit 4

ƒ the affidavit of Michael Jacobs sworn 16 April 2009, together with

Exhibits "MGJ14 – MGJ20": Exhibit 5

ƒ a letter of State Trustees Limited dated 8 April 2009, together with a
client budget annexed: Exhibit 6.

4          At the commencement of the proceeding, Mr Boaden and Mr Arthur handed to me a Joint Court Book (“JCB”) containing all of the exhibits. For ease of reference and location of the documentary evidence Mr Boaden and Mr Arthur referred me to the evidence within the JCB by reference to the pagination of the JCB. I propose to do the same in the course of giving these reasons for judgment.

5          By agreement, the report of Dr Vowels, neuropsychologist, dated 9 December 2008 was altered by amending the answer to Question 3 from:

"Given the family history, I consider that it would be appropriate …"

to:

"I consider that it would not be appropriate … ."[1]

[1]             JCB 151. Mr Arthur informed me that he had obtained instructions from Dr Vowels that the answer to Question 3 required amendment in that form, and reference to the vulnerability of Sean.

6          Furthermore, by agreement I was asked to note on the report of Dr Vowels the following agreed statement of fact:

"Sean is vulnerable to exploitation."

The Testator and the Estate

7          The testator, Peter John Lawless, is the father of Rodney Lawless ("Rodney"), who is the plaintiff in this proceeding, and Sean Lawless (“Sean”).

8          The testator died on the 14th of February 2007 at age sixty-nine. At the time of his death the testator resided in the family home at 56 Park Boulevard, Ferntree Gully ("the family home").

9          The defendant, Michael Geoffrey Jacobs, is a legal practitioner whom the testator appointed as one of two executors of his estate by his last Will and Testament made on 27 June 1996. On 23 August 2007, Mr Jacobs proved the Will of the deceased and obtained a grant of probate.[2]

[2]             JCB 17

10        The testator established a trust in his last Will and Testament, appointing Mr Jacobs as one of the trustees of the trust.[3]

[3]             JCB 56-58

11        According to Mr Jacobs, the estate of the testator is presently valued at $853,313.57, made up of the present value of the family home of $315,000.00 and the balance of $538,313.57 made up of cash investments.[4]

[4]             JCB 162

12        The testator gave and devised the family home to Mr Jacobs as trustee, permitting Sean a life interest in the family home.

13        The testator gave, devised and bequeathed the remainder of his estate to Mr Jacobs, as trustee, directing Mr Jacobs, in his capacity as trustee, to divide the residue of his estate into equal parts to be held upon trust, as to one such part, to pay to Sean, during his lifetime, as much of the net annual income as Mr Jacobs, in his absolute discretion, saw fit for Sean's maintenance, education, support, advancement in life and general benefit and welfare, and similarly, as to the other one such part, to pay to Rodney, during his lifetime, or to the personal society or institution whose care Rodney may be in, as much of the capital or income as Mr Jacobs, in his absolute discretion, saw fit for Rodney's maintenance, education, support, advancement in life and general benefit.

Rodney's Position

14        Rodney was born on 20 January 1963. He is now forty-six years of age. He is severely intellectually disabled. He suffers from autism. He presently resides in the Wesley Mission community residential unit and has lived in those circumstances for approximately fifteen years.

15        State Trustees Limited ("STL") was appointed administrator of the estate of Rodney pursuant to the provisions of the Guardianship and Administration Act 1986.[5]

[5]             JCB 10

16        Ms Elise Venables is a consultant to and a director of an organisation known as ARNICA Community Care Consultancy Services. She swore an affidavit on 18 March 2009, to which is exhibited an Assessment of Needs Report which she prepared after assessing Rodney on 18 March 2008. She was engaged to make that assessment by STL.[6]

[6]             JCB 107-134. The qualifications of Ms Venables are set out at JCB 112.

17        As part of her assessment of Rodney, Ms Venables made an assessment of Rodney's interpersonal skills, including cognition and communication. What is very evident from that part of her assessment of Rodney is that he is very significantly intellectually disabled:

ƒ “He is gentle, timid and withdrawn with a moderate level of

cognitive skills and appears to have good receptive

communication memory skills.

ƒ He is principally non-verbal, vocalising in sounds to indicate what he needs, wants and dislikes. He uses some sign language and can use approximately 10 signs. He is able to physically gesture to communicate logically and clearly to staff.

ƒ He participates in activities, but relies upon staff for direction,

advice and help. He has a good attention span when undertaking

activities.

ƒ	He has a poor concept of time and is unable to read time nor is he able to name the days of the week or understand the differences between the day/week, minutes nor month/year.
ƒ	He is fixated in adhering to routine. If his routine is interrupted he becomes upset and has displayed challenging behaviour such as spitting, hitting others, urinating on the floor and damaging the walls of his bedroom.
ƒ	He dislikes loud noises and if there is a lot of noise he will behave inappropriately, requiring staff to keep noise to a minimum where possible.

ƒ He requires staff prompting to shower, dress and groom. He

requires staff assistance to administer medication. He is capable of preparing his breakfast, lunch and drinks with staff supervision.

[7]             JCB 120-121

ƒ	He is dependent on others to determine his clothing needs. He is not able to discriminate between clothing which fits properly, is appropriate for particular weather conditions or is dirty or soiled.
ƒ	He is able to navigate around the residential unit but is unable to go out without staff support and has limited road and safety skills.
ƒ	He is unable to receive or make telephone calls.”[7]

18        Dr David Chesney, general practitioner, is Rodney's family doctor. Ms Venables obtained some information relevant to Rodney's state of health from Dr Chesney. At present he requires medication - Lexapro, Neulactil and Olanzapine.[8]

[8]             Lexapro is used to treat depression. Neulactil is used to treat anxiety, tension and to control symptoms such as impulsiveness and aggression, and Olanzapine is an anti-psychotic.

19        Ms Venables made an assessment of the support requirements for Rodney which are relatively noncontroversial; however, one aspect which was controversial was the cost of nursing care in nursing home accommodation, estimated at $250,000.[9]

[9]             JCB 129-130

20        Ms Martha Pavlidis ("Pavlidis") swore an affidavit on 24 June 2008 in which she referred to some of the background of Rodney and his present residential circumstances, containing similar background information referred to by Ms Venables.[10]

[10]           JCB 5-8

21        Ms Pavlidis swore a second affidavit on 14 April 2009 exhibiting a client budget prepared by STL. It demonstrates that Rodney’s present sources of income are:

ƒ Centrelink Pension - $575.80

ƒ Rent Assistance - $111.20

ƒ Mobility Allowance - $79.30

ƒ Utility Allowance - $19.95

22        Rodney's total fortnightly income is $817.62 from the above sources. He has a lump sum invested by STL of $20,391.35 invested at 4 per cent, returning interest of $31.37 per fortnight. Against that, a calculation was made of his living expenses, amounting to $889.98 per fortnight. It is obvious that there is a shortfall, requiring Rodney to call upon his capital. The author of the client budget estimated that if the income received and the living expenses remain static, that Rodney will be able to meet his living expenses for another 10.8 years.[11]

[11]           JCB 156

23        Mr Jacobs swore an affidavit on 16 April 2009, in which he set out the cash investments made by him. He projected the income likely to be earned for the financial year ending 30 June 2009 of $39,560, which would provide Rodney with $19,780 gross for that year.[12] None of the income earned has been paid by Mr Jacobs to STL for the benefit of Rodney.

[12]           JCB 157-160

Sean's Position

24        Sean was born on 18 December 1973. He is now thirty-five years of age. He resides in the family home.

25        Sean swore an affidavit on 2 October 2008. He said that he works as an assembly worker in Bayswater for a firm known as RF Industries, earning $532.34 net per week. He has savings totalling $119,411 in term deposit accounts.

26        Sean was examined by Dr Vowels, neuropsychologist, on 15 October 2008. Dr Vowels subsequently provided a report of the results of his testing dated 23 October 2008. He conducted elaborate neuropsychological testing of Sean. The testing revealed that Sean has an intellectual disability in the mild to moderate range with difficulties in social participation and social anxiety which warranted a diagnosis that Sean was suffering from an autistic spectrum disorder in the milder range.

27        It is clear that although Sean is able to live independently in the family home and is able to maintain employment, he is nonetheless fragile personally, domestically, occupationally, socially and recreationally, and has a limited capacity to cope with change.[13]

[13]           JCB 139-144, and particularly, at 144

28        In a supplementary report, Dr Vowels was of the opinion that, among other things, Sean required an administrator and would benefit from formal case management of a supervisory nature.[14]

[14]           JCB 151-152

29        Mrs Patricia Gephart is the aunt of Rodney and Sean. She swore an affidavit on 2 October 2008, setting out the relevant family history and the position of both Rodney and Sean. Much of the historical background referred to by Mrs Gephart is not controversial.

30        She traversed the report of Ms Venables, expressing her view about the appropriateness or otherwise of the assessment and recommendations made by Ms Venables.

31        In many respects the matters deposed to by Ms Gephart are argumentative and more consistent with a submission, and I think go beyond what she can validly depose to. For example, she makes the sweeping observation that the needs referred to by Ms Venables are “excessively priced or unnecessary”. On another occasion she made the observation that, in her opinion, Rodney's entitlement under the Will is adequate to meet the reasonable costs of Rodney's care.[15]

[15]           JCB 87A

32        To the extent that there is any conflict in the opinion expressed by Ms Venables and the argument and submission made by Mrs Gephart, I prefer the opinions expressed by Ms Venables because they were expressed by someone with specialist qualifications and training to make the very kind of assessment relevant to Rodney's position and his needs.

The Evidence of Need

33        Mr Arthur submitted that the testator made a calculated assessment of the position of his sons, paying very particular regard to the unfortunate, but peculiar and unique nature of the medical conditions which disable them. In doing so the testator provided for Sean by giving him a life interest in the family home and access to income from cash investments which would permit him to live independently for as long as possible, and by providing him ultimately with the means by which his life interest can be converted from real estate in order to provide him with nursing home accommodation when that becomes necessary.

34        Furthermore, Mr Arthur submitted that the income from the cash investments would provide for anticipated needs which will inevitably arise over the balance of Sean's life.

35        In relation to Rodney, Mr Arthur submitted that the testator well knew that Rodney's intellectual disability was so significant that it was unlikely that he would ever live in circumstances different from where he resides presently, and that given he is entitled to government benefits as described in the client budget,[16] his needs now are more than adequately met by the addition of the income from the cash investments.

[16]           JCB 156

36        Lastly, Mr Arthur questioned whether the opinion of Ms Venables regarding her assessment of support requirements for Rodney were warranted, and in particular, the cost of nursing home accommodation.[17] Mr Arthur cross- examined Ms Venables on that issue as follows:

[17]           JCB 40-41

"Q:	Yes, okay, all right. In relation to bond, how have you fixed upon that figure?---
A:	Okay, to be one hundred per cent honest with you, I don't know if that is actually enough. If I can just say that we rang around at the time. Because we do a number of these reports every year and we ring around, finding out different numbers that they – figures that they're coming to for bond at different facilities and it varies greatly between – in recent times - we are averaging at about $350,000.
Q:	What if I put to you that most people who are clients of DHS, most people who are on DSP don't have to pay an accommodation bond at all?---
A:	That's – are you putting it to me saying - ?

Q: I'm putting to you to say that if Rodney, we'll speak in the particular, got to a stage where he needed to move into a high care facility?---

A:	Yes.
Q:	Given the responsibility that the government has got for him?---
A:	Yes.
Q:	Money wouldn't be the object, they would find him a suitable facility?---
A:	I don't feel that – I don't necessarily agree with that considering that we are moving into an era where baby boomers are going to be placed in aged care facilities coming up. It's an aged care crisis as it is, and it's only going to become more of an issue with finding places. My understanding has always been that unless a person is medically unable to return to their accommodation for medical reasons, in nursing homes there is required a bond – if they've got assets.
Q:	If it was put to you that an accommodation bond can only be asked for if you are entering at low-level care, or entering a home that offers extra service, would you agree with that proposition or disagree with it?---
A:	No, that's not my understanding.
Q:	Or you don't know?---
A:	That's not my understanding.
Q:	Do you understand or do you have any knowledge about the level of bond that can be charged to various …?---
A:	It varies significantly. I can't remember the ratio off the top of my head. There is a weekly ratio that is charged, or a per day ratio plus bond and it varies significantly from facility to facility to facility. Some have even – I've known them to waive the fees at times. I can't give you ….
Q:	So you aren't really able to positively say?---
A:	I can't in this situation, no. I was trying to make a proviso for …. "[18]

[18]           Transcript 57-59

37        Ms Venables described the level of care in which Rodney presently resides as moderate to high-level care which she based upon a behavioural assessment of him.[19]

[19]           Transcript 60

38        It is clear enough to me from the evidence of Ms Venables that when Rodney needs to be moved into a nursing home that there is no certainty that government funding will be available to provide him with a suitable nursing home. It is also reasonably clear from the evidence of Ms Venables that her initial estimate of a bond of $250,000 might be an under-estimate and that it could be as high as $350,000.

39        Although I have described the other assessments and recommendations made by Ms Venables as non-controversial, Mr Arthur cross-examined her about whether items such as CDs, a DVD, decoration of his room and similar items were necessary.[20] Ms Venables made the assessment based upon a history that she obtained that Rodney enjoys numerous recreational activities, including going to the movies, dining out, tenpin bowling and swimming. She considered, and I think fairly and properly, that having funds available to ensure that he can continue to have a room of a reasonable standard with the availability of music, or a DVD player to play films and to be able to engage in recreational activities, should be assessed as part of Rodney's needs.

[20]           Transcript 56

Reliance on Government Funding

40        Both Mr Boaden and Mr Arthur referred me to a number of authorities dealing with the question of testamentary dispositions reliant upon the receipt of government funding and benefits.

41        In Lieberman v Morris,[21] Rich J made a number of observations relevant to a widow who contracted out of what right she had to make a testator's family maintenance claim under the equivalent New South Wales Act. The following observation is relevant. It deals with the imposition on the community of the obligation to become responsible to the widow, which obligation, as a matter of public policy, was that of the testator:

“… But the evident purpose of this legislation in general, and that of New South Wales in particular, is quite different, that of providing for the proper maintenance, education or advancement of members of a family who would otherwise be left without adequate provision, and might, in many cases, become a charge on the community. It is for this purpose, and this alone, that members of a family are invested with the right to invoke the exercise by the court of its discretion. I think that the Act now in question is designed to serve a public purpose as well as that of benefiting individuals, the purpose being, as it was put by the Privy Council in Dillon v Public Trustee of New Zealand (1), ‘to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by his will, shall not be permitted to leave widow and children inadequately provided for’."[22]

[21] (1944) 69 CLR 69

[22]           85-86

42        In King v White,[23] Hedigan J, when dealing with a submission that he could not conclude that there was a want of adequate provision for the maintenance and support of a widow because the government was supporting her by a pension, observed:

“There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator's duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known in the community that the receipt of the old age pension is now assets and means tested. Indeed, in this very case, this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow.[24]

[23] [1992] 2 VR 417

[24]           at 424

43        Hedigan J referred to Shah v Perpetual Trustee Co[25] and to the judgment of Rath J in which Rath J observed that a wise and just testator would make provision for a widow out of his estate without regard to a means tested pension, and then observed:

"… The position could be different in the case where the competing claims on the testator would cause strains on his capacity to provide. That is not this case."[26]

[25] (1981) 7 Fam LR 97

[26]           King v White (supra), at 100

44        The consideration of the receipt of pensions by claimants has been dealt with in similar contexts. In Bondelmonte v Blanckensee,[27] Malcolm CJ observed that the trial judge's exercise of discretion to structure the provision for the claimant so as to preserve her right to a pension and to assume its continuance was not a proper exercise of discretion, and the other members of the court agreed.[28]

[27] [1989] WAR 305

[28]           at 312, and Wallace J, at 318, and Nicholson J, at 320-321

45        Mr Arthur referred me to a number of authorities which he submitted stood for the proposition that provision made by a testator by taking into account the receipt of a pension is an approved practice.

46        In Herszlikowicz v Czarny,[29] Hargrave J referred to section 91(4)(n), that is, the liability of any other person to maintain the applicant, and in that connection, referred to the Commonwealth responsibility to continue to provide a claimant with a pension.[30] However, Hargrave J did not make any observations contrary to what was said in the authorities referred to above.

[29] [2005] VSC 354

[30]           paragraph 144

47        In Ross v Ross; McLean v Ross,[31] Ashley J observed that the fact that a claimant is in receipt of a pension can be taken into account, but he added, with the qualification clearly stated by Hedigan J in King v White.[32]

[31] [2002] VSC 544

[32]           (supra), at paragraph 44. In the footnote accompanying that observation, Ashley J specifically referred to pages 422 and 424 of the judgment of Hedigan J, to which I have referred in paragraph 42 above.

48        In Re: W F Duff (decd),[33] Sugerman J observed that where the state is maintaining the claimant financially, need is not established and provision should not be made merely by way of reimbursing “the revenue”.[34]

[33] (1948) 48 SR (NSW) 510

[34]           At 512. Mr Arthur also referred me to Re WTN (1959) 33 ALJ 240, which is not a full report of the decision, but a case note. McLelland CJ made an order for provision for moneys to be applied for such things as extra comforts, extra clothing and outings. The paucity of detail makes it difficult to understand the nature of the claim for it be of any real use on the issue I am dealing with presently.

49        Mr Arthur also referred me to ‘Family Provision in Australia’,[35] where the authors refer to Re: W F Duff (decd)[36] and Re: WTN.[37] The authors observed that no order will be made in favour of an intellectually disabled claimant unless the claimant is able to derive some real benefit from an order making further provision.[38] However, the authors also referred to persons who live in the community, and made specifically referred to the unreported decision of Re: Musgrave.[39] The court made special provision for the claimant who was living in a nursing home. He was suffering from Down’s syndrome. The special provision included, among other things, accommodation fees.

[35]           3rd ed. (Butterworths 2007)

[36]           (supra)

[37] (1959) 33 ALJ 240

[38]           paragraphs 4.55-4.57

[39]           SC (QLD), Weld M, OS No 651/83 (26 October 1984, unreported)

50        It is clear enough to me that Rodney is significantly intellectually disabled, but not so severely disabled as to not derive enjoyment from a number of activities which Ms Venables referred to. It seems to me that his position cannot be equated with a resident in an accommodation setting who is so severely intellectually disabled as to be incapable of fending for himself to any degree at all. If that were the case, then there might be some merit in the submissions made by Mr Arthur.

51        It occurs to me that the observations made by Hedigan J in King v White[40] are apposite. The whole of the income presently received by Rodney is derived from government sources. Even if he were to receive the income referred to by Mr Jacobs for the financial year ending 30 June 2009 from the cash investments, it is a modest sum on which tax will probably need to be paid and which may have an impact on his receipt of income from government sources, thereby reducing his overall gross income.

[40]           (supra)

52        Furthermore, there is a degree of speculation associated with assuming that he will continue to receive that income in those amounts from the same government sources, and whether there will be an increase to keep up with inflationary influences on income and its value against goods and services. I share the observation made by Hedigan J, that there are significant vagaries associated with operating on the assumption that income from those government sources will not be affected by different tests in the future, and of great importance is the evidence of Ms Venables regarding the availability of nursing home accommodation in the setting of an ageing population calling more heavily upon that sort of accommodation, and placing individuals in need of that sort of accommodation in the position where reasonable accommodation may not be available without the payment of a bond. At present Ms Venables assesses the value of such a bond at up to $350,000.

53        I also consider that the observations made by Rich J in Lieberman v Morris, and Hedigan J in King v White must be considered, in that provision should be made from the estate of the testator rather than estate planning, which relies upon the public purse, especially where the estate is a moderate to large one and where further provision will not work to the serious disadvantage of other beneficiaries under the will of the testator.

Should Further Provision Be Made?

54        The statutory regime is such that the discretion exercisable under Part IV of the Administration and Probate Act 1958 (“the Act”) can only be enlivened upon Rodney establishing that, at the date of death of the testator, the testator had responsibility to make further provision for Rodney's proper maintenance and support: section 91(1) – and that the Will does not make adequate provision for the proper maintenance and support of Rodney: section 91(3)(a).

55        In this case, there can be no doubt that the testator had a responsibility to make provision for Rodney's proper maintenance and support, and so much was conceded by Mr Arthur. The real argument centred upon whether adequate provision had been made for Rodney's proper maintenance and support.

56        In Blair v Blair,[41] Chernov JA made a number of observations relevant to whether a testator had fulfilled his moral obligation to make adequate provision before the enactment of section 91(4)(e)-(p), including the following:

“Given, however, that the court is now directed by the legislation to have regard to the matters specified in paras (e) to (p) of s 91(4) 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 recent amendments to Pt IV of the Act. Be that as it may, it should be noted that while the criterion in each of paras (e)-(o) of s 91(4) is concerned with a specific matter, para (p) is open ended, enabling the court to consider ‘any other matter [it] considers relevant’ and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding subparagraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator’s moral obligation to the claimant.”[42]

[41] [2004] 10 VR 69

[42]           at 76

57        Nettle JA made the following observations regarding the continuing relevance of the concept of moral duty:

“To reason from the matters mentioned in ss 91(e) to (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.”[43]

[43]           at 84

58        Both Mr Boaden and Mr Arthur referred me to a number of often cited authorities relevant to the general principles which apply in making a judgment whether the provision made by the testator was that of a wise and just testator having regard to his moral duty. I was referred to Bosch v Perpetual Trustee Co (Ltd)[44] and the observations of Lord Romer:

“Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.”[45]

[44] [1938] AC 463

[45]           at 478-479

59        In Re Allen (decd), Allen v Manchester,[46] Salmond J observed:

“The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.”[47]

[46] [1922] NZLR 218

[47]           220. I was also referred to White v Barron (1980) 144 CLR 431, per Stephen J, at 440; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J, at 818-819

60        In Grey v Harrison,[48] Callaway JA made the following observations relevant to the process of reasoning in quantifying any further provision made by a court:

“As Fullagar and Menzies, JJ said in their dissenting judgment in Blore v Lang (1960) 104 CLR 124 at 135, the purpose of testator's family maintenance legislation is to remedy ‘breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family’. The breach is objective, being measured against all the relevant facts, which may include facts that were unknown to the testator. … Any provision made by the court is determined according to the circumstances obtaining at the time of the order. …”[49]

[48] [1997] 2 VR 359

[49]           at 364-365

Rodney’s Claim

61        What now arises for my consideration is whether the provision made by the testator for the maintenance and support of Rodney measures up to the standard of what a wise and just testator ought to have done.

62 I now turn to consider the facts of this proceeding in the light of the criteria laid down by section 91(4) of the Act.

63        Paragraph (e):

“Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.”

64        Rodney is the son of the testator.

65        Paragraph (f):

“Any obligations or responsibilities of the deceased person to the

applicant, any other applicant and the beneficiaries of the estate.”

66        There is no question that the testator had both an obligation and a responsibility to Rodney which he recognized in his will to the extent to which I have described above.

67        Paragraph (g):

“The size and nature of the estate of the deceased person and any

charges and liabilities to which the estate is subject.”

68        The estate is of moderate size. Subject to the reasonableness of the estimate given by Mr Jacobs of the value of the family home, the estate amounts to $853,313.57. There are no charges or liabilities to which the estate is subject. Rodney and Sean are the only issue of the testator.

69        Paragraph (h):

“The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.”

70        It is clear from my outline of the position of Rodney and Sean what their financial resources are. Apart from Rodney's receipt of the income referred to in paragraph 22 above he has an entitlement to the income referred to by Mr Jacobs referred to in paragraph 23 above which has not been paid to him as yet. Sean has a life interest in the family home and earns an income and has the savings referred to in paragraph 25 above. It is abundantly clear that they are both intellectually disabled, however, it is clear enough to me that Rodney is more seriously intellectually disabled. Sean has the capacity to live independently and to be gainfully employed, although it is also clear that he labours under real difficulties.

71        Paragraph (i):

“Any physical, mental or intellectual disability of any applicant or

any beneficiary of the estate.”

72        I repeat the observation I made in paragraph 70 above that it is clear that both Rodney and Sean are intellectually disabled, however, that there is a clear distinction between the degree of their intellectual disabilities and their individual capacity to live independently.

73        Paragraph (j):

“The age of the applicant.”

74        Rodney is relatively young. He is forty-six years of age. Mr Arthur submitted that I should not be satisfied that there is evidence upon which I can assume that Rodney can expect a reasonable life expectancy for a male forty-six years of age in the absence of any medical evidence. I consider that to be a rather novel proposition. There is no evidence to suggest that Rodney labours under any physical or other disabilities which will render him more susceptible to early death. I see no reason why I cannot assume that in the absence of any such risk factors that there is as much a likelihood of Rodney living into his 70s, if not his 80s, as any other forty-six-year-old male in the community. I do not accept that the matter of life expectancy is beyond an average person's understanding and is not something which requires expert evidence.

75        Paragraph (k):

“Any contribution (not for adequate consideration) of the applicant to building up the estate or for the welfare of the deceased or the family of the deceased.”

76        I think I can infer that because the degree of Rodney's intellectual disability, that he made no such contribution, and there is no evidence adduced on behalf of Sean to suggest that he made any such contribution either.

77        Paragraph (l):

“Any benefits previously given by the deceased person to any

applicant or to any beneficiary.”

78        If benefits means any gifts of value, such as advances of cash moneys or property, then apart from the obvious concern of the testator to see to the maintenance and support of his two sons during his lifetime, there is no evidence of any such benefits being provided by him to his sons.

79        Paragraph (m)

“Whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.”

80        I have dealt with this aspect adequately in paragraph 78 above. It is obvious that the testator assumed responsibility for Rodney because he was his son and because he was so significantly intellectually disabled.

81        Paragraph (n):

“The liability of any other person to maintain the applicant.”

82        This was a major platform upon which Mr Arthur based his submissions that the income received by Rodney referred to in paragraph 22 above will be a constant liability on the part of the Commonwealth government to provide adequately for Rodney, however, I am not persuaded that such liability will be as constant and reliable as Mr Arthur contended it will be for the reasons set out in paragraphs 40-53.

83        Paragraph (o):

“The character and conduct of the applicant or any other person.”

84        There are no factors in this proceeding which would go to disentitle Rodney by reason of any aspect of his character or his conduct generally or specifically in relation to the testator.

85        Paragraph (p):

“Any other matter the Court considers relevant.”

86        The matters of particular significance in this proceeding have essentially been dealt with by me in my summary of Rodney's position in paragraphs 15-24, and in the evidence of Ms Venables set out in her report and in the oral evidence she gave, some of which I have quoted above.

Should the Testator Have Made Further Provision for Rodney?

87        Mr Arthur submitted that in determining this question, I have no jurisdiction to interfere with the terms of the testator's Will unless I am satisfied, on the balance of probabilities, that the fulfilment of the terms of the testator’s Will would amount to an abuse of the testator's freedom of testamentary disposition.[50]

[50]           Grey v Harrison (supra), per Callaway J, at 363.

88        I am entitled to judge what the testator ought to have done in all the circumstances in this proceeding on the facts, and even on those facts unknown to the testator, and according to the circumstances which obtained at the time when an order is sought.[51] I am to make the foregoing judgment conservatively and objectively.

[51]           at 364-365

89        The factors which have persuaded me that the testator was both unwise and unjust are as follows:

• the testator assumed that Rodney would continue to receive government benefits at a level which would pay for all of his accommodation needs and expenses of life when in fact that is not the case, given the client budget which shows a shortfall when the income is measured against expenditure.

• The testator also assumed that the Commonwealth government would provide Rodney with nursing home accommodation at its expense when the evidence of Ms Venables points to that not being a safe assumption, and that when Rodney requires nursing home accommodation it may come at a cost of up to $350,000 in payment of a bond.

90        Mr Arthur submitted that the income referred to by Mr Jacobs is adequate to cover any shortfall in Rodney's expenditure, however, that has not yet been paid to Rodney, or to the person to have his care. Even assuming that Mr Jacobs commences to pay the income which is Rodney’s share of the cash investments at the sum estimated as the return of those cash investments, it is nonetheless a modest sum subject to taxation. In all probability, it may meet the shortfall in Rodney's expenditure, but will not provide a fund from which a bond can be paid.

91        I do not accept that making further provision for Rodney will be to the significant prejudice of Sean. I consider that the analysis made by Mr Boaden of the position of both Rodney and Sean is such that if further provision is made for Rodney consistent with these submissions made by Mr Boaden, that it will serve the dual purpose of making adequate provision for Rodney to cover his expenditure and to provide a fund from which a bond can be paid without depriving Sean of the family home and his life interest in it, and also sufficient funds from which a bond can be paid should Sean also require nursing home accommodation.

92        The submission made by Mr Boaden is that the estate of $853,313 should be divided equally between Rodney and Sean, amounting to $426,650 each.

93        Rodney's position would then be:

$426,650[52]

$20,391[53]

$447,041

[52]           Half of the estate

[53]           Rodney's present capital

94        Sean's position would then be:

$315,000[54] $119,411[55] $111,650[56] $546,061

[54]           The value of the family home in which it is proposed he retain his life interest

[55]           Sean's savings

[56]           Sean's share of the estate

95        Mr Boaden submitted that under the Settled Land Act 1958, the family home can be sold and the proceeds used for the benefit of Sean, and more particularly, the purchase of suitable accommodation for him should he require nursing home care. Mr Arthur concurred with that submission.

96        Given the submission made by Mr Boaden, which I accept, regarding the division of the estate to make further provision for Rodney, I am satisfied that the foregoing is the provision which the testator ought to have made.

Conclusion

97        I propose to take further submissions from counsel as to the appropriate orders and directions that should follow the findings and conclusions I have reached.

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