Lennan v Chao
[2025] VSC 220
•30 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2023 00410
| ANTHONY LENNAN | Plaintiff |
| v | |
| TAT WOON CHAO and FAY LIN CHAO who are sued in their capacity as Executors of the Estate of the abovenamed FAY PING CHAO Deceased) | Defendants |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30, 31 October 2024 and 1, 7 November 2024 |
DATE OF JUDGMENT: | 30 April 2025 |
CASE MAY BE CITED AS: | Lennan v Chao |
MEDIUM NEUTRAL CITATION: | [2025] VSC 220 |
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FAMILY PROVISION AND MAINTENANCE – Application by domestic partner for further provision - Alleged failure by deceased to make adequate provision for plaintiff’s proper maintenance and support – Where deceased executed will with letter of wishes – Testamentary freedom – Dispute as to length of domestic relationship - Widower cases distinguished - No need demonstrated by plaintiff – Application dismissed - Administration and Probate Act 1958 ss 3, 91, 91A – Relationships Act 2008 s 35(2) – Nock v Austin (1918) 25 CLR 519 – Bosch v Perpetual Trustee Co Ltd [1938] AC 463 – Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 – Re Buckland [1966] VR 404 – Singer v Berghouse (1994) 181 CLR 201 – Grey v Harrison [1997] 2 VR 359 – KQ v HAE [2007] 2 Qd R 32 – FO v HAF [2007] 2 Qd R 138 – Borebor v Keane (2013) 11 ASTLR 96 – Brimelow v Alampi (2016) 50 VR 219 – Davison v Kempson (2018) 17 ASTLR 244 – Re Ho; Liang v Broadfoot [2020] VSC 168 – Gash v Ruzicka [2023] VSCA 189.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Rizzi | Moores |
| For the Defendants | Mr J Smith | Nathan Yii Lawyers |
HIS HONOUR:
Introduction
In this proceeding the plaintiff, Anthony Lennan (Anthony), seeks orders under Part IV of the Administration and Probate Act 1958 (the Act) for provision to be made for him from the estate of his former domestic partner, Fay Ping Chao (Ping)[1] who died on 1 July 2022 at 45 years of age as a result of metastatic breast cancer.
[1]In the interests of clarity and without intending any disrespect to the parties, in these reasons for judgment I have generally referred to the parties and witnesses by their first names.
The only provision made for Anthony under Ping’s last will dated 11 March 2022 (the Will) was a stipulation that, if a binding death benefit nomination made by Ping in respect of her superannuation benefit failed, and her superannuation was paid into her estate, those benefits were to be paid to him. In the events that occurred, Anthony has in fact received Ping’s superannuation death benefit in the sum of $378,164.89.
Under the terms of the Will, Ping’s estate is distributed between her two siblings: her brother Tat Woon Chao (Tat Woon) and her sister Fay Lin Chao (Fay). Tat Woon and Fay are also the instituted executors of Ping’s estate under the Will and are accordingly the defendants in this proceeding.
The provision that Anthony seeks from Ping’s estate is that he be given an absolute interest in a unit located at 11/285 Tooronga Road, Glen Iris (Tooronga Road), or an equivalent capital sum. Tooronga Road has a value of approximately $850,000.
The defendants conceded that the relationship between Ping and Anthony, which is considered in detail below, was a domestic partnership so as to make Anthony a person eligible to bring a claim for further provision under the Act.[2] They also conceded that, at the time of her death, Ping had a moral duty to provide for Anthony’s proper maintenance and support, being another threshold requirement as stipulated in s 91(2)(c) of the Act. The focus of the proceeding was accordingly on whether the distribution of Ping’s estate fails to make adequate provision for Anthony’s proper maintenance and support, being the remaining matter of which the Court must be satisfied before any family provision order can be made.[3]
[2]See s 91(1) and (2)(a).
[3]Pursuant to s 91(2)(d) of the Act.
For the reasons which follow, I have determined that this question is to be answered in the negative, with the consequence that the application must be dismissed.
Background
Ping was born in Malayasia on 12 March 1977, the second child of Kee Min Chao (Kee Min) and Gaik See Goh (Gaik See).[4] She and her siblings grew up and attended secondary school in Malayasia. They each later migrated to Australia for university: Fay in 1993, Ping in 1995 and Tat Woon in 2005.
[4]At the time of trial, Fay and Tat Woon were approximately 48 and 36 years of age respectively.
Ping obtained degrees in Law and Arts in 2001 from Monash University, and a Master of Laws in 2002. She then returned to Malaysia, but moved back to Melbourne in about 2005, soon after Tat Woon had moved to Australia to attend university. By this stage, all the siblings were living in Australia and their parents were frequent visitors. From about 2005 until 2008, Ping and Tat Woon lived with Fay and her husband in Glen Waverly.
Tooronga Road was purchased in August 2008 for $655,000. Ping and Tat Woon became the registered proprietors of the property as tenants in common and commenced living there together.
In 2012, Ping and Tat Woon became the registered proprietors as tenants in common of a property at 19 Parslow Street, Malvern (Parslow Street) which was purchased for $2.15 million. Ping and Tat Woon moved into Parslow Street; Tooronga Road was then tenanted as an investment property.
When they visited Melbourne, Kee Min and Gaik See would stay at Tooronga Road and later Parslow Street.
Ping and Anthony met on a blind date in May 2013 and began a relationship soon thereafter. At the time, Ping was living in Parslow Street and Anthony was living in a rental apartment in Carlton.
Ping was diagnosed with cancer in July 2020 and underwent surgery in December 2020. Although the cancer went into remission in March 2021, she discovered six months later in September that the cancer had metastasized and was in stage 4. She ceased work due to her health in November 2021.
Until she ceased work, Ping had a successful professional career as a corporate lawyer and worked for a number of employers. In the financial year ending 30 June 2021, being the last full financial year in which she was employed, her gross income from employment was $225,000.00.
The Will and the Estate
Probate of the Will was granted to Tat Woon and Fay on 30 August 2022.
The Will was prepared by a solicitor with expertise in the area of wills and estates about four months before Ping died. Ping was then in the final stages of breast cancer.
Although the Will is long and complex, its essential provisions and dispositions are straightforward. It appoints the defendants as executors and trustees of Ping’s estate and gifts Tooronga Road and Ping’s half interest in 19 Parslow Street to Tat Woon, with the residue of her estate passing to Fay.[5]
[5]Additionally, as already noted, it also provides for the payment of Ping’s superannuation death benefits to Anthony in the event that her binding death benefit nomination failed.
The inventory of assets and liabilities dated 15 August 2022 prepared in support of the application for probate disclosed the following assets and liabilities:
(a) 50% interest in Parslow Street;
(b) Tooronga Road;
(c) CBA bank accounts, with an estimated balance at date of death of $597,256.14;
(d) 300 units of EFTS Physical Gold, with estimated value at the date of death of $7,107;
(e) Credit card debts, with an estimated amount outstanding at date of death of $3,136.31; and
(f) Commonwealth Bank of Australia home loan, with an estimated amount outstanding at date of death of $399,605.
An updated inventory of assets and liabilities dated 7 June 2023 also includes the following overseas assets: units in the Amanah Saham Unit Trust with an estimated value of AUD $83,533.75 and a 2011 motor vehicle with an estimated value of AUD $4,0010.58.
On the basis principally of the contents of an affidavit sworn by Tat Woon and Fay shortly before trial on 26 October 2024, the composition of Ping’s estate and its net value was estimated as follows:
(a)
50% interest in Parslow Street
$ 1,675,000.00
(b)
Tooronga Road
$ 850,000.00
(c)
CBA account #3139
$ 2,247.88
(d)
CBA account #4408
$ 399,656.91
(e)
Nathan Yii Lawyers trust account
$ 7,200.59
(f)
Units in Amanah Saham Unit Trust, Malaysia (est.) $
$ 83,553.75
(g)
2011 VW Golf, Malaysia (est.)
$ 5,203.85
Sub total
$ 3,022,862.98
(h)
less - CBA home loan (est.)
$ - 399,210.00
(i)
less – defendants’ further costs (est.)
$ - 90,000.00
Net estate (after estate liabilities and defendants’ costs)
$ 2,533,652.98
By reference to this estimate, the value of the distribution to Tat Woon provided by the Will is a net amount of $2,125,790, with the residue of $407,862.98 being gifted to Fay.
Counsel for Anthony advanced various criticisms of the defendants about their alleged failure to properly record the true nature and value of Ping’s estate. It is unnecessary to resolve these controversies because, in determining this application, I will proceed on the assumption that the net value of Ping’s estate is approximately $2.8 million, rather than $2.5 million, as was submitted by Anthony’s counsel.
Legal principles: s 91(2)(d) of the Act
Section 91(2)(d) of the Act stipulates that the Court ‘must not make a family provision order under subsection (1) unless satisfied’:
that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person …
The right of freedom of testation must be borne steadily in mind when considering the application of this and the other provisions of Part IV of the Act. As Callaway J explained in Grey v Harrison,[6] freedom of testation:[7]
… is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of "proper" maintenance and support but also, and more fundamentally, from those considerations.
[6][1997] 2 VR 359 (with whom Charles and Tadgell JJ agreed).
[7]Ibid 366.
The meaning of the words ‘adequate’ and ‘proper’ were considered in Singer v Berghouse[8] in which Mason CJ, Deane and McHugh JJ stated:[9]
The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. Ltd.[10] The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
[8](1994) 181 CLR 201.
[9]Ibid 209.
[10][1938] AC 463 at 476 (‘Bosch v Perpetual Trustee Co Ltd’).
As the Court of Appeal stated in Davison v Kempson,[11] in deciding what is adequate and proper:[12]
… the Court’s discretion, while broad, is to be exercised carefully and conservatively according to prevailing community perceptions of the provision that would be made by a wise and just testator.[13]
In order for a Court to award provision, an applicant must have shown a “need”, which is a relative concept that has to be considered in the circumstances of each case.[14] It is not confined to economic need.[15] If circumstances permit, a testator should go beyond merely providing for the bare necessities of life.[16]
[11](2018) 17 ASTLR 244 (‘Davison v Kempson’).
[12]Ibid [35]-[36].
[13]McKenzie v Topp [2004] VSC 90 at [63] (Nettle J), citing Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146 (Gibbs J) (‘Hughes v National Trustees’).
[14]MacEwan Shaw v Shaw (2003) 11 VR 95 at [50] (Dodds-Streeton J) (‘MacEwan Shaw v Shaw’), citing Hallam v Maxwell (Unreported, Supreme Court of Victoria, Hansen J, 13 November 1998); Re Anderson (1975) 11 SASR 276 at 283 (Zelling J). See also Goodman v Windeyer (1980) 144 CLR 490 at 497 (Gibbs J, with whom Stephen and Mason JJ agreed) (‘Goodman v Windeyer’).
[15]Unger v Sanchez [2009] VSC 541 [78] (Kaye J); Semmler v Todd [2015] VSC 567 [96] (Zammit J).
[16]Blore v Lang (1960) 104 CLR 124 at 135. Fullagar and Menzies JJ said: “In such a case as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit.”
It is also well established that the ‘need’ of an applicant for provision is a ‘threshold’[17] or ‘essential’[18] issue for the establishment of a successful claim under Part IV of the Act. ‘Need’ is, however:[19]
… a relative concept that has to be considered in the circumstances of each case. It is not confined to economic need. If circumstances permit, a testator should go beyond merely providing for the bare necessities of life.
[17]Fanning v Harding [2013] VSCA 208 [25].
[18]Jones v Smith (2016) 15 ASTLR 403 [65].
[19]Davison v Kempson (n 11) [36].
The continuing applicability of the above principles to Part IV of the Act in its current form was confirmed by the Court of Appeal in Gash v Ruzicka:[20]
[20][2023] VSCA 189 at [20]-[22] (‘Gash v Ruzicka’).
In considering what is necessary for proper maintenance and support the Court must assume the position of a ‘wise and just’ testator judged by current community standards.[21] However, the Court should not be drawn into rewriting the testator’s will by reference to general considerations of fairness.[22]
The parties accepted that the trial judge correctly set out the applicable principles which relevantly included:[23]
In determining whether the deceased has fulfilled his or her moral duty, and the extent of any provision to be ordered, the Court must have regard to the relative concepts of ‘adequate’ and ‘proper’. Adequacy is assessed by reference to the Court’s inherent knowledge and inquiry into current social conditions and standards.[24] In this context, it is necessary that an applicant demonstrate need in order to be successful in his or her claim; mere proof of a moral duty is not in itself adequate.[25] However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is ‘not restricted to the requirements of basic necessity or sustenance’[26]. …
…
Overall, the assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations.[27]
[21]Bosch v Perpetual Trustee Co Ltd (n 10) at 478–9; White v Barron (1980) 144 CLR 431 at 440–1 (Stephen J), 444–5 (Mason J) and 460 (Wilson J); Davison v Kempson (n 11) [35] (Tate , Santamaria and Beach JJA).
[22]Worladge v Doddridge (1957) 97 CLR 1 at 12 (Williams and Fullagar JJ) and 20–1 (Kitto J).
[23]Re Janson; Gash v Ruzicka (No 2) [2022] VSC 139 [53]–[55] (citations in original).
[24]See eg, Goodman v Windeyer (n 14), at 501–2 (Gibbs J);[1980] HCA 31; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9at 19 (Dixon CJ) (‘Pontifical Society for Propagation of the Faith v Scales’). See generally, GE Dal Pont and KF Mackie, Law of Succession, (LexisNexis Australia, 2nd ed, 2017) 607 [17.86].
[25]MacEwan Shaw v Shaw (n 14) 104 [50] (Dodds-Streeton J).
[26]Ball v Newey (1988) 13 NSWLR 489 at 492 (Samuels JA, Hope JA agreeing at 490, Mahoney JA agreeing at 493–4).
[27]Blair v Blair (2004) 10 VR 69 at 81–2 [30] (Chernov JA, Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]) Davison v Kempson (n 11) [70]–[71].
In Bosch v Perpetual Trustee Co Ltd, cited by the Court of Appeal in Gash v Ruzicka, Lord Romer stated:[28]
The first thing to be noticed is that the powers given to the Court only arise when any of the persons mentioned is left without adequate provision for his or her proper maintenance, which word will be used in this judgment where necessary as including education and advancement. The use of the word “proper” in this connection is of considerable importance. It connotes something different from the word “adequate”. A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his “proper” maintenance. So, too, a sum may be quite insufficient for the “adequate” maintenance of a child and yet may be sufficient for his maintenance on a scale that is “proper” in all the circumstances. A father with a large family and a small fortune often can only afford to leave each of his children a sum insufficient for his “adequate” maintenance. Nevertheless, such sum cannot be described as not providing for his “proper” maintenance, taking into consideration “all the circumstances of the case” …
…
The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration.
[28]Bosch v Perpetual Trustee Co Ltd (n 10) at 476, 478.
Mandatory considerations: s 91A(1) of the Act
Pursuant to s 91A(1) of the Act, in making a family provision order, the Court must have regard to the deceased’s will, evidence of the deceased’s reasons for making the dispositions in the will and any other evidence of the deceased’s intentions in relation to providing for an eligible person.
I have detailed the salient features of the Will and the circumstances in which it was made in [16]-[17] above.
Ping expressed her testamentary intentions in a ‘Letter of wishes’ which she signed on 11 March 2022 (the Letter), the same day that she executed the Will. The Letter is in formal terms and was prepared with the assistance of the solicitor who prepared the Will. In it, Ping records, amongst other things, that she wished to explain the reasons for providing for her beneficiaries in the manner in which she did in the Will. She notes that, as part of her estate and succession planning, she had considered her obligations to Fay, Tat Woon and Anthony (who she refers to as her ‘partner’). Under the heading ‘Reasons for Division’ she states as follows:
5.1I have given careful thought as to the distribution of assets on my death as part of my estate planning and after discussions with My Solicitor.
5.2I have decided to benefit my sister Fay Lin and my brother Tat Woon in recognition that we all have a close relationship as siblings.
5.3I have decided to benefit my brother Tat Woon with 19 Parslow Street and Unit 11, 285 Tooronga Road for the following reasons:
(a)Tat Woon and I initially purchased the Tooronga Road Property sometime in 2009 and we held the property as tenants in common in equal shares. Following this, Tat Woon and I moved into that property and lived there. In 2018, Tat Woon sold his 50% interest in the property to me such that I became the sole registered proprietor. It is for sentimental reasons that I wish to leave this property to my brother Tat Woon.
(b)Sometime in 2012, both Tat Woon and I purchased Parslow Street Property and we held the property as tenants in common in equal shares. Both Tat Woon and I moved into this property as our family home and the Tooronga Road Property was then rented out. Tat Woon is currently working in the Australian Capital Territory, but regards the Parslow Street Property as his family home. Furthermore, he owns the other 50% of the property and it makes rational sense for him to receive my 50% share of the property.
5.4I note that Fay Lin is married and is supported by her husband so I have made lesser provision to her.
5.5Although Anthony verbally said to me that he does not want or wish to benefit from my estate, I have decided to leave Anthony my superannuation entitlements to recognise that he is my partner. I expect that these superannuation entitlements would pass to him tax-free under tax law.
In the Letter, Ping also states that her solicitor advised her of the existence of Part IV of the Act and that, given her personal circumstances, there may be persons who may be eligible to seek an order for provision from her estate, in particular, Anthony. After referring to various matters in relation to any such potential claim, Ping records her wish that any court hearing an application by a claimant for a family provision order against her estate take into account the contents of the Letter.
It was submitted on behalf of Anthony that the Court should find that Ping’s reasons for gifting Tooronga Road to Tat Woon (paragraph 5.3(a) of the Letter) were misconceived because ‘sentimental reasons’ were poor reasons for making such generous provision for the benefit of a sibling at the expense of a spouse. This was particularly so given Tat Woon’s relative youth, his likely high income earning capacity[29] and the fact that, as a result of the gift to him of Ping’s share in Parslow Street under the Will, he would also own another unencumbered property valued at approximately $3.35 million.
[29]See n 72.
The legal basis advanced for this submission was the following statement by McMillan J in Brimelow v Alampi:[30]
It has always been the case that the courts have taken into account the terms of any expressions of the deceased in admissible form.[31] In respect of applications made where a deceased died after 20 July 1998, the Court may accept any evidence of the reasons of a deceased for making the disposition in his or her will (if any) and for not making proper provision for an applicant, whether or not the evidence is in writing. By mandating that the Court must take such expressions into account it is not intended that such evidence, by will or in other evidence, suddenly takes on some higher status. The weight to be attached to such statements will depend on the circumstances. Reasons can be shown to be incorrect or misconceived, which may enhance or boost the strength or defence of a claim.
[30](2016) 50 VR 219 [15].
[31]Hughes v National Trustees (n 13) at 149-150, 152 (Gibbs J).
As her Honour recognised, the weight to be attributed to a statement by a testator as to their reasons for their testamentary dispositions will depend on the circumstances. In this case, the circumstances in which the Letter was made are such that the reasons contained within it should be given significant weight. The Letter was prepared at the same time as the Will with the assistance of a specialist estate planning lawyer for a client who herself was a lawyer and who may be taken to have known that the end of her life was near.[32] I infer from these circumstances and the terms of the Letter that Ping well understood the significance of the dispositions she made in the Will, and that the reasons for those dispositions were as articulated in the Letter.
[32]See [13] above.
Although circumstances may arise where a testator’s stated reasons for making certain dispositions can be shown to be untrue, incorrect or misconceived,[33] that is not this case. Anthony submitted, and I accept, that the Letter reflects Ping’s true reasons for making the dispositions in the Will, including her reasons for leaving Tooronga Road to Tat Woon. Given their inherently vague and subjective character, the ‘sentimental reasons’ for why Ping gifted Tooronga Road to Tat Woon are not amenable to being revealed to be in some way ‘incorrect’, ‘mistaken’ or ‘misconceived’. To adapt the words of Isaacs J in Nock v Austin:[34]
So long as there is freedom to dispose of one's property by will, a testator is not bound to expose to the world the delicate and perhaps indefinable relations that exist within his family circle. It may be that [Ping] felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate.
[33]For example, where the exclusion of a family member as a beneficiary is said to be because of alleged conduct which is shown to be based on a mistaken or erroneous belief on the part of a testator.
[34](1918) 25 CLR 519 at 527.
In truth, Anthony seeks to challenge Ping’s stated reason for gifting Tooronga Road to Tat Woon on fairness and equity grounds, based upon the matters referred to in [34] above. There are two problems with this approach.
First, it is logically flawed as it proceeds from the premise that Anthony had a superior claim to Tooronga Road than Tat Woon. Whether or not Ping breached her moral duty to Anthony by gifting the property to Tat Woon is the very issue the Court is seeking to determine by considering the matters referred to in s 91A of the Act, including Ping’s reasons for making the dispositions in the Will.
Secondly, it has long been established that, in exercising power under provisions such as those in Part IV of the Act, the Court ‘is not entitled to re-write the will of a testator in accordance with its own ideas of fairness or justice’.[35] The Act does not authorise a general curial redistribution of the deceased’s property according to notions of fairness.[36] As Dixon CJ stated in Pontifical Society for Propagation of Faith v Scales:[37]
The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. …
[35]As stated by Gibbs J in Hughesv National Trustees (n 13) at 146.
[36]MacEwan Shaw v Shaw (n 14), [48].
[37]Pontifical Society for Propagation of Faith v Scales (n 24) at 19. See also Taylor J in Stott v Cook (1960) 33 ALJR 447 at 453.
I accordingly reject the submission that Ping’s reasons for gifting Tooronga Road to Tat Woon should in some way be disregarded or deprecated. It is necessary to take into account that Ping determined to make the dispositions contained in the Will for the reasons she expressed in the Letter, including that her superannuation death benefits were left to Anthony in recognition of the fact that he was her partner.
Discretionary considerations: s 91A(2) of the Act
Nature and length of Ping and Anthony’s relationship[38]
[38]Section 91A(2)(a).
The principal controversy at trial concerned the parties’ competing characterisations of Ping and Anthony’s relationship.
Anthony submitted that Ping was his ‘life partner’ and that, in the context of the provisions of the Act, he was to be treated as her long-term domestic partner.
By contrast, Fay and Tat Woon submitted, by reference to the indicia of a domestic relationship in the Relationships Act 2008, that it was only from sometime after March 2019 that Ping and Anthony’s relationship had the character of a domestic relationship. Prior to that time, they did not manifest a commitment to a shared life together, it being ‘five years of dating’, as Anthony described it in his evidence. They submitted that the Court should accordingly proceed on the basis that their relationship was a very short domestic relationship.
In reply, counsel for Anthony submitted that a determination as to whether Ping and Anthony were domestic partners before 2019 was not relevant to the assessment of the consideration in s 91A(2)(a) of the Act. The characterisation of a person as a ‘domestic partner’ was only relevant to whether the person was an ‘eligible person’ and therefore able to bring a claim for provision, being a matter which the defendants had conceded. The focus must be on the nature and length of the relationship; it was submitted that Ping and Anthony’s relationship was very serious and committed from its inception.
Although this last submission appears inconsistent with Anthony’s principal submission referred to above, it directs attention to the specific criterion to which the Court may have regard under para (a) of s 91A(2), namely, any relationship between the deceased and the eligible person, including:
(i) the nature of the relationship; and
(ii) if relevant, the length of the relationship.
It is uncontroversial that, at the time of Ping’s death, the nature of her relationship with Anthony was a domestic partnership. As contemplated by sub-para (ii) above, the length of that relationship is indeed a relevant matter in the circumstances of this case. It is therefore appropriate to determine when the domestic partnership between Ping and Anthony commenced. As has been observed, unlike ascertaining the commencement of a marriage, this is a task which may be attended to with considerable uncertainty.[39]
[39]As observed by Keane JA (with whom McMurdo P and White J agreed) in FO v HAF [2007] 2 Qd R 138 [21] (‘FO v HAF’).
The Act relevantly defines a ‘domestic partner’ of a deceased person to include an ‘unregistered domestic partner’ of the person.[40] An ‘unregistered domestic partner’ is in turn defined as someone:[41]
[40]Section 3(1).
[41]Section 3(1).
… who, although not married to the person—
(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and
(b) either—
(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or
(ii)is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.
In determining whether a couple were in an unregistered domestic partnership, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in s 35(2) of the Relationships Act 2008 as may be relevant in a particular case:[42]
[42]Section 3(3).
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children; and
(h) the reputation and public aspects of the relationship.
The relevant principles which guide the Court in applying these provisions were summarised by McMillan J in Re Ho; Liang v Broadfoot:[43]
[43][2020] VSC 168 [9]-[10].
Although all of the matters listed in s 35(2) should be considered, no one factor is determinative. A domestic relationship may exist ‘when the couple have separate residences and are not financially dependent on each other’.[44] The Court is to ‘stand back and look at the relationship as a whole’.[45] Identifying whether the applicant was ‘living with the deceased’ should not be construed ‘on narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex’.[46] In Re Estate of Sigg deceased, Pagone J stated:
[44]Forsyth v Sinclair [2010] VSCA 147 [88] (Neave JA, Redlich and Habersberger JJA agreeing).
[45]White v Hume [2013] VSC 95 [50] (Daly AsJ).
[46]Dow v Hoskins [2003] VSC 206 [32] (Cummins J).
[I]t would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities.[47]
Such an approach reflects the reality that, as with married couples, people who are domestic partners live in a diversity of arrangements.[48] Each ‘element of a relationship draws its colour and significance from the other elements’.[49]
[47]Re Estate of Sigg (dec’d) [2009] VSC 47 [7].
[48]Ibid [7]; see also Chan v Mazurkiewicz [2015] WASC 432 [10] (La Miere J).
[49]Marrando v Rizzo [2012] NSWSC 739 [49] (Hallen AsJ), quoting Lynum v Director General of Social Security (1983) 52 ALR 128 at131 (Fitzgerald J).
Although couples may elect to conduct a shared life without living together[50] such that cohabitation is not essential to the existence of a domestic relationship, the fact that they have never lived together in a common abode has been described by Keane JA (with whom McMurdo P and White JJ agreed) as a ‘strong indicator’ that they have not lived together as a couple on a genuine domestic basis.[51] As he explained by reference to the earlier decision of the Court of Appeal of Queensland in KQ v HAE in the context of legislation in substantially the same terms as is presently relevant:[52]
… it will be an exceptional case where two people who have not lived in a common residence, and who have not made actual provision for their mutual support, can be said to have been "living together as a couple on a genuine domestic basis". A case is not rendered exceptional in this context merely because the parties intend, eventually, to live together as a couple. That is simply a case where an existing courtship has not matured into the kind of commitment in which the parties have so merged their lives that they were, for all practical purposes, a married couple. Just as people who are affianced cannot be confused with people who are married, so people who intend to live together as a couple should not be confused with people who do live together as a couple.
[50]Bailey v Palombo [2020] NSWSC 1209 [94] (Hallen J).
[51]FO v HAF (n 39) [25].
[52]Ibid [26], with reference to KQ v HAE [2007] 2 Qd R 32 [20]. Both cases relevantly concerned the definition of ‘de facto partner’ in s 32DA of the Acts Interpretation Act 1954 (Qld).
For the reasons which follow, the evidence before the Court supports a finding that, in the period prior to about March 2019, Ping and Anthony’s relationship had not matured into a shared life together as a couple so as to be properly characterised as a domestic partnership within the meaning of the Act. The better view is that this remained a period of what Keane JA described as ‘courting’, or what might otherwise be described as ‘dating’, a period when a life together for Ping and Anthony remained a future possibility, but not a reality.
The period of February-March 2019 was a watershed in Ping and Anthony’s relationship as a result of two key developments.
(a) First, it is when they ‘rekindled’ their relationship, as Anthony described it, after having been separated for about 10-12 months. Although Ping and Anthony had become engaged on 7 March 2018 and then travelled to Malayasia to tell Ping’s parents of the news, two weeks later Anthony told Ping that he was not comfortable to proceed with the engagement; they then separated. It is relevant that this was the second occasion when Anthony had decided not to proceed with further committing to their relationship through marriage.[53]
(b) Secondly, it is in March 2019 when Anthony and Ping first began cohabiting. I accept Anthony’s evidence that at this time Ping moved into his rental apartment located at 1615 Malvern Road, Glen Iris (Malvern Road unit). I also accept Anthony’s evidence that he and Ping subsequently moved in together at Parslow Street in about January 2021, soon after Ping underwent cancer surgery.[54]
[53]In 2016, Ping and Anthony had set 11 December 2016 as their wedding date and wedding plans ensued. However, a trip to Malaysia in September 2016 for Anthony to ask Ping’s parents for her hand in marriage was called off because Anthony got ‘cold feet’.
[54]As further discussed below, it is also relevant that, despite then moving into Parslow Street with Ping, Anthony continued to thereafter pay rent on the Malvern Road unit.
Importantly, in his own evidence, Anthony recognised that the nature of his relationship with Ping was not of a consistent character over their years together. In referring to the years of their relationship before their engagement as ‘five years of dating’, Anthony acknowledged that the nature and character of their relationship was not a uniform continuum from 2013 until Ping’s death, and that the period after they ‘rekindled’ their relationship in February-March 2019 was qualitatively different to what preceded it. The earlier period was one of courtship or dating when, in the language of Keane JA in FO v HAF, their relationship had not ‘matured into the kind of commitment in which the parties have so merged their lives that they were, for all practical purposes, a married couple’.[55]
[55]FO v HAF (n 39) [26].
This is confirmed by three important features of Ping and Anthony’s relationship.
(a) First, although in 2016 Ping and Anthony considered borrowing money to purchase an investment property and inspected several properties, nothing eventuated in this regard and at no time in their relationship did they jointly own any property or chattels. Nevertheless, Ping realised her ambition to own an investment property when, in the period of her separation from Anthony, Tooronga Road was transferred to her sole ownership (from joint ownership with Tat Woon).
(b) Secondly, other than the payment of some grocery, holiday, dining and like expenses, Ping and Anthony were otherwise not financially dependent or interdependent on one another.
(c) Thirdly, it is apparent that there was no consensus or shared understanding between Ping and Anthony about whether to have children. According to Anthony, in the first 12 months of their relationship they were mutually indifferent about whether or not to have children. However, he identified that Ping’s views on the topic then ‘started to change’. That was borne out by Ping’s actions over the next three years: in August 2014, when she was 37, she had a blood test to check her ovarian reserves; in April–May 2015 she consulted with a fertility specialist and undertook a procedure directed at ascertaining her fertility; and in February 2017, she had her eggs frozen. Over this time Anthony remained undecided or uncertain about whether to have children.
In terms of the remaining indicia in s 35(2) of the Relationships Act 2008, I also note that there is no evidence as to whether the relationship between Ping and Anthony was sexual.
For the above reasons, I take into account that, although Ping and Anthony enjoyed a loving and caring relationship for about nine years, their relationship only had the character of a domestic relationship from about March 2019, being a period of about three years and four months before Ping’s death.
Ping’s obligations and responsibilities to eligible persons or beneficiaries[56]
[56]Section 91A(2)(b).
The authorities establish that, as a general principle, the moral duty of a deceased to provide for a spouse’s proper maintenance and support is to provide the security of an appropriate home in which to live, a secure income and a fund to meet unforeseen contingencies.[57] This is not, however, a rigid rule; its potential application depends on the facts and circumstances of the particular case.[58]
[57]See Steinmetz v Shannon (2019) 99 NSWLR 687 [101]-[109]; and Re Papaioannou; Papaioannou v Kronemann [2019] VSC 844 [18].
[58]Thompson v Thompson [2015] VSC 706 [61].
Counsel for Anthony submitted that the Court should apply this principle on the basis that his client does not own any real property. This submission faces two obstacles.
First, as counsel for the defendants submitted, many of the features typically associated with the widow/widower cases from which the above general principle has emerged are not present in Anthony’s circumstances. For example, as is addressed further below, this is not a case of a widower who has no alternative accommodation aside from the matrimonial home, who is of advanced years with no, or only a modest income, and who has no real possibility of purchasing a home, or building their savings or superannuation.
Secondly, Anthony’s own evidence was that, even without further provision from the estate and while continuing to increase his savings and superannuation, [59] he:
(a) could ‘quite comfortably’ purchase with his own funds a property for around $600,000 (being the approximate cost of a two bedroom apartment of the type he had rented since 2017); and
(b) was capable of purchasing a property in the price range of $800,000 – $850,000 (Tooronga Road having a value of approximately $850,000).
[59]See [70] in relation to Anthony’s savings and superannuation.
Counsel for the plaintiff sought to avoid the implications of this evidence by emphasising the difference between ‘adequate’ and ‘proper’ maintenance and support as explained in Gash v Ruzicka and Bosch v Perpetual Trustee Co Ltd referred to above. It was submitted that for Anthony to reside in an apartment worth $600,000, in circumstances where he was ‘accustomed’ to living in Parslow Street, a ‘very beautiful house’, would wrongly involve the application of a standard of necessity or sustenance connoted by ‘adequate’, as distinct from ‘proper’, provision.
The evidence indicates that Parslow Street is a capacious, semi-detached house consisting of two bedrooms with ensuites, a third bedroom or study, and communal living areas. It appears to be a very comfortable and well-appointed home. Given this amenity, the plaintiff’s submission has some force in circumstances where Anthony had been cohabiting at the property with Ping for about 18 months before her death. However, approaching the matter cautiously from the position of a wise and just testator, on the evidence before the Court, I am not so persuaded in relation to the second aspect of Anthonys evidence referred to [61(b)] above.
Given Anthony’s evidence that he is capable of purchasing a property worth in the range of $800,000 – $850,000, in the context of his particular circumstances, I am unpersuaded that the principles drawn from the widow/widower cases are engaged so as to impose a moral duty on Ping to provide for Anthony’s proper maintenance and support by providing him with a home in which to live.
As to Ping’s obligations to the beneficiaries of her estate, I accept the submission made on behalf of Anthony that Ping did not have any obligation to provide for her siblings Tat Woon and Fay.
Counsel for the defendants invited the Court to have regard to the circumstances in which the principal assets of the estate were acquired. In particular, it was submitted that Tooronga Road and Parslow Street came into Ping and Tat Woon’s names through the benevolence of their parents and through the cooperation of family members. Although the provenance of those properties is a unique feature of this case which makes it appropriate to consider under s 91A(2),[60] it does not raise any question of obligation or responsibility on the part of Ping towards her siblings with which s 91A(2)(b) is concerned.
Size and nature of Ping’s estate[61]
[60]See [88] below.
[61]Section 91A(2)(c).
It was submitted on behalf of Anthony that Ping’s estate is large and that the principles relating to such estates should apply. Those principles were submitted to be encapsulated by Hargrave J’s discussion of the matter in Borebor v Keane[62] by reference to the earlier decision of the Court in Re Buckland:.[63]
[62](2013) 11 ASTLR 96 [68] (‘Borebor v Keane’).
[63][1966] VR 404 (‘Re Buckland’).
In Re Buckland, Adam J considered a claim by a daughter for provision from her father's very large estate. The estate was sufficiently large, as here, to enable other competing claims to be ignored. Adam J reviewed the relevant authorities and made a series of observations about the proper approach to be adopted in determining whether adequate provision has been made for a claimant's “proper maintenance and support” in such circumstances and, if not, what amount of further provision should be ordered. These observations may be summarised as follows:
(1) A generous, and not “niggardly” approach is justified.[64]
(2) The amount of provision should not be limited by the standard of maintenance provided by the deceased or by the standard of living to which the claimant has been accustomed.[65]
(3) A generous approach does not, however, justify the Court in ordering more than is needed for the claimant's “proper maintenance and support”; as those words “place a ceiling upon what the Court may properly do”.[66]
(4) The Court may be justified in making provision for contingencies that would be disregarded in smaller estates or if there were relevant competing claims:
“For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance.[67]
[64]Ibid 414.
[65]Ibid 413.
[66]Ibid 415.
[67]Ibid 415.
As a general proposition, it is correct that the authorities establish that a more liberal approach to what amounts to adequate provision for the proper maintenance and support of a claimant may be adopted where an estate is large and the claimants of the deceased’s bounty are few. However, I do not consider that these principles are engaged in this case. Although an estate of $2.8 million is self-evidently substantial, in contemporary circumstances it is not in the same order as the estates which this Court has characterised as being ‘large’ so as to enliven the principles summarised by Hargrave J in Borebor v Keane.[68]
[68]Estates which this Court has characterised as being ‘large’ are: Re Buckland (n 63) in which the estate was (in 1964) £4,829,644; McCann v Ward and Burgess [2012] VSC 63 in which the estate was approximately $15 million; Borebor v Keane (n 62) in which the estate was $4.75 million; Joss v Joss [2020] VSC 424 in which the estate was $12.4 million; Kornwasser v Spigelman [2022] VSC 759 in which the estate was $13 million; and Francis v Martin [2024] VSC 340 in which the estate was $7.3 million. See also the judgment of Keogh J’s in Ligeti v Ligeti [2016] VSC 448 in which he characterised an estate of approximately $2.5 million as being ‘relatively large’.
Financial resources, earning capacity and financial needs of eligible persons and beneficiaries[69]
[69]Section 91A(2)(d).
Anthony
Anthony is a qualified information technology professional whose occupation is ‘infrastructure architect’ or ‘infrastructure domain architect’. He has worked in this capacity for several years at the University of Melbourne. Since March 2021, he has done so as an independent contractor, his services being provided though a third party professional services company pursuant to rolling six month contracts.
Anthony’s annual income over the past six financial years has been as follows:
(a) $147,558 in 2018-19;
(b) $97,639 in 2019-20;
(c) $50,291 in 2020-21;
(d) $229,164 in 2021-22;
(e) $157,389 in 2022-23; and
(f) approximately $200,000 in 2023-24.[70]
[70]And ‘possibly more’ on Anthony’s evidence. The tax return for the 2024 year had not been completed at the time of the trial of the proceeding.
Anthony’s income in 2020-2021 was significantly lower than in other years because it corresponded with the time of Ping’s cancer diagnosis. Anthony, who was ‘between contracts’ at the time of that diagnosis in July 2020 (reflected in the lower earnings in the 2019-2020 year), was then closely involved in supporting and caring for Ping.
Anthony also receives the statutory minimum superannuation contribution[71] in addition to his income from providing his services to the University of Melbourne. At the date of trial, the total value of Anthony’s superannuation benefits was $425,588.
[71]Currently calculated at the rate of 11.5 % of income.
Separately to his superannuation, Anthony also has savings of approximately $550,000 (which includes Ping’s death benefit of $378,164.89). Significantly, he also agreed in evidence that, on the basis of his income of recent years, he has the capacity to save between $60,000 - $70,000 per annum.
Some precarity is inherent in the nature of the arrangements by which Anthony provides his professional services as an infrastructure architect. However, there is otherwise little basis in the evidence to consider that Anthony’s future earning capacity will likely be materially less than what it has been over the last three years in which his income (excluding superannuation) has averaged approximately $195,000 per annum. Despite his concern expressed in an affidavit sworn on 16 June 2023 that the project on which he was engaged at the University would likely be finished by the end of 2023, he remained working at the University at the time of trial a year later. Similarly, having deposed in September 2024 that the team in which he had worked had been dissolved with 10 people being made redundant, Anthony remained working at the University.
Anthony’s evidence that his contract would likely terminate by the end of December 2024 and likely not be renewed is to be viewed in light of his evidence that he has not applied for any other jobs. I infer from the absence of any explanation for why he has not applied for other work, either that his concerns about work insecurity are overstated, or that he considers that he has at least reasonable prospects of obtaining alternative work. The latter explanation would be well founded given the abundance of available positions for ‘solution architects’ revealed by the evidence. Although Anthony considered such positions to be a ‘downgrade’ from his current role (being the reason he advanced for why he had not applied for any of them), it is clear that he is well qualified to work as a solution architect and that the remuneration associated with some of the available positions is broadly similar to his current remuneration. Moreover and in any event, the evidence also indicates that there are roles available for infrastructure domain architects.
As I have noted elsewhere, it is also of course relevant that Anthony does not own any real property. However, the significance of that fact is affected by the fact that Anthony could have in the past, but did not, purchase property, and has the capacity to now do so, as discussed in [61]-[64] above.
Tat Woon and Fay
Neither Tat Woon or Fay disclosed their financial positions to the Court. In those circumstances, the Court is entitled to assume that, other than by reason of relationship, they have no special claim on Ping’s estate and have adequate resources upon which to live.[72] I accordingly proceed on the basis that Tat Woon and Fay do not have any competing financial need. Furthermore, their standing as medical specialists means that they will each likely have substantial earning capacity in their respective careers.[73]
Physical, mental or intellectual disabilities of Anthony or beneficiaries[74]
[72]Davison v Kempson (n 11) [38].
[73]Fay is a specialist doctor (and is married to a specialist doctor). Tat Woon is an orthopaedic registrar in training to become an orthopaedic surgeon.
[74]Section 91A(2)(e).
There was no evidence that any person relevant to this proceeding has a disability.
Anthony’s age[75]
[75]Section 91A(2)(f).
Anthony is 46 years of age.
Contribution to Ping’s estate or welfare[76]
[76]Section 91A(2)(g).
Although Anthony gave evidence to the effect that he had assisted with Parslow Street by contributing to the maintenance of the property, these activities were of minor significance given the property’s value; no submission was ultimately advanced that he contributed to building up Ping’s estate.
However, it is clear that Anthony made a significant contribution to Ping’s welfare by being closely involved in her care and by supporting her quality of life throughout the period of her treatment for cancer, including in the last months of her life as her health deteriorated.
Benefits previously given to eligible persons or beneficiaries[77]
[77]Section 91A(2)(h).
In the context of Part IV of the Act, the invitation in s 91A(2)(h) for the Court to consider any benefits ‘previously’ given by the deceased appears to direct attention to any inter vivos benefits a deceased may have made to any eligible person or beneficiary.
The only benefits of this type referred to in the parties’ submissions were payments of $150,000 made by Ping to each of Fay and Tat Woon.[78] While it is appropriate to consider the fact of these payments, their significance is limited given that, as explained below, they were not gifts, but part payments of the purchase price of Tooronga Road which was owing to her parents, Kee Min and Gaik See, and made pursuant to a series of informal family arrangements.
Maintenance of Anthony by Ping[79]
[78]See n 84 below.
[79]Section 91A(2)(i).
Anthony submitted that he was ’maintained’ by Ping because she allowed him to spend a significant part of their relationship in Parslow Street; a large and comfortable home. Although ‘maintenance’ has a potentially wide meaning, it is inapt to describe Anthony’s circumstances given that at all times he continued to pay rental for the Malvern Road unit. Similarly, no question of maintenance arises in relation to Ping’s payment of groceries, dinners and holidays; the evidence indicates that both Anthony and Ping paid these expenses for each other from time to time.
Liability of others to maintain Anthony[80]
[80]Section 91A(2)(j).
No other person has any liability to maintain Anthony. He has remained single since Ping’s death.
Character and conduct of Anthony or other person[81]
[81]Section 91A(2)(k).
No issue relating to the character or conduct of any relevant person arises for consideration.
Effects of a family provision order on other beneficiaries[82]
[82]Section 91A(2)(l).
Any order for provision from Ping’s estate to the benefit of Anthony would be at the expense of Tat Woon or Fay, whose entitlements under the Will are referred to in [17] and [21] above. Further, as I have noted, neither Fay nor Tat Woon have any competing financial need.
Other relevant matters[83]
[83]Section 91A(2)(m).
The defendants submitted that the Court should take into account the fact that Ping’s parents were responsible for funding the acquisition of the bulk of the assets in her estate. Although the factual basis of this submission may be accepted[84] and was not seriously contested by Anthony, I am not persuaded that it has any particular relevance in assessing whether the distribution of Ping’s estate fails to make adequate provision for Anthony’s proper maintenance and support.
[84]The evidence establishes that the effect of a series of informal arrangements, understandings and transfers between Kee Min and his children which it is unnecessary to recount was that, as at the date of her death, Ping had personally contributed from her own funds about $300,000 towards the real property held by her estate, with the remainder being funded by Kee Min. The amount of $300,000 was paid by Ping by payments of $150,000 to each of Fay and Tat Woon in about November 2018.
It was submitted on behalf of Anthony that the Court should infer that Kee Min and Gaik See are likely to support Fay and Tat Woon in the future. I accept the factual basis of this submission: Kee Min and Gaik See are likely to have sufficient wealth to enable them to support their children, and that they have done so in the past. However, again, I am not persuaded that it has any particular relevance in assessing whether the distribution of Ping’s estate fails to make adequate provision for Anthony’s proper maintenance and support.
Conclusion
At a general level, a number of considerations of significance may be identified as providing particular support for Anthony’s contention that the distribution of Ping’s estate by her Will fails to make adequate provision for his proper maintenance and support. Anthony is the surviving partner of a domestic relationship which endured for more than three years, during which time he provided important care and support to Ping before her untimely death. He is now approaching middle age, but does not own any real property to secure his future living and accommodation needs, in circumstances where Ping’s estate is substantial, and where there are no competing needs on her bounty.
However, the assessment of whether these and the other features of Anthony’s circumstances in relation to Ping’s estate provide a sound basis to conclude that distribution of the estate fails to make adequate provision for Anthony’s proper maintenance and support is not to be undertaken by reference to generalised notions of equity and fairness. Rather, such a conclusion is dependent upon a finding that, from the vantage point of a wise and just testator informed by an appreciation of current community standards, and having regard to the considerations identified in the Act, Ping breached her moral duty to Anthony by the provision she made for him in the Will.
Adopting this approach, I am unpersuaded that Ping’s exercise of her freedom of testation miscarried by the making of the Will. She exercised her testamentary freedom in an informed and deliberate manner with an awareness of all those persons who might have a claim on her bounty, and explained her reasons for doing so. In making those judgments, Ping was best placed to weigh the extent of her moral duty to Anthony; it is apparent that she considered that ensuring a disposition to him of the substantial sum of $378,164.89 was sufficient to discharge that duty. In circumstances where their domestic relationship was not of long duration and where, critically, Ping had not been maintaining Anthony and where his future prospects and financial independence (including having the capacity to purchase an apartment of the same approximate value as Tooronga Road) foreclose a conclusion that he was in a situation of need, I am not satisfied that the distribution of Ping’s estate fails to make adequate provision for Anthony’s proper maintenance and support.
Anthony’s application under Part IV of the Act must accordingly be dismissed.
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