McFarlane v McFarlane

-SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0030

ADAM PAUL MCFARLANE	Applicant
v
HEATHER JEAN MCFARLANE (WHO IS SUED AS THE EXECUTRIX OF THE WILL AND ESTATE OF BRIAN HUGH MCFARLANE, DECEASED)	Respondent

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JUDGES:	McLEISH, KAYE and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2025
DATE OF JUDGMENT:	7 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 163
JUDGMENT APPEALED FROM:	McFarlane v McFarlane [2023] VSC 379 (Barrett AsJ)

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TESTATOR’S FAMILY MAINTENANCE – Family provision – Adequacy of reasons – Applicant adult son of deceased – Respondent wife of deceased – Whole of deceased’s estate passed to respondent – Applicant sought provision of $265,000 under Administration and Probate Act 1958 pt IV – Associate judge refused application on basis deceased not having failed to make adequate provision – Reasons not expressly finding deceased owed moral duty to applicant – Judge’s consideration of adequacy of provision depended on anterior finding of moral duty – Implicit in judge’s reasons that moral duty was established – Whether associate judge erred in determination that deceased failed to make adequate provision to applicant by focusing only on whether to order provision in amount sought by applicant – No error.

TESTATOR’S FAMILY MAINTENANCE – Alleged error in determination of adequacy of provision – Value of estate approximately $420,000–$487,500 – ‘Reasonably modest’ size of estate central to associate judge’s finding no failure to make adequate provision – Financial resources of respondent included real estate worth $1,920,000–$2,287,500 formerly held jointly with deceased and cash and superannuation accounts worth $1,262,000 – Whether judge erred by failing to take proper account of respondent’s financial resources – Size of deceased’s estate of relatively minor significance to respondent’s financial position – Leave to appeal granted – Appeal allowed.

TESTATOR’S FAMILY MAINTENANCE – Order for provision – Jurisdictional requirements in Administration and Probate Act 1958, s 91(2) satisfied – Applicant adult son having fallen on hard times following divorce – Applicant seeking provision of $265,000 to provide house deposit and discharge debts – Debts not so burdensome as to warrant provision – Applicant and wife having some means to save for house deposit – Applicant able to purchase suitable property with $147,000 deposit by taking mortgage insurance – Moral duty – Order made for provision of $125,000.

WORDS AND PHRASES – ‘moral duty’ – Administration and Probate Act 1958, s 91(2)(c).

Administration and Probate Act 1958, ss 90, 91, 91A.

Singer v Berghouse (1994) 181 CLR 201, Blair v Blair (2004) 10 VR 69, Walsh v Walsh [2013] NSWSC 1065, referred to.

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Counsel
Applicant:		Mr P Reynolds
Respondent:		Mr N McOmish
Solicitors
Applicant:	Clancy & Triado
Respondent:	GR Legal

MCLEISH JA
KAYE JA
KENNY JA:

Brian McFarlane died on 21 September 2020. He was survived by his second wife, Heather McFarlane (the respondent), as well as two adult children from his first marriage, including his son Adam McFarlane (the applicant). It is convenient to refer to the family members by their first names.
On 15 April 2021, probate of Brian’s estate was granted to Heather. On 14 October 2021 Adam made an application for provision to be made out of the estate for his proper maintenance and support pursuant to s 91(1) of the Administration and Probate Act 1958. An associate judge dismissed the application.[1] He went on to order that Adam pay Heather’s costs on the indemnity basis from 22 June 2022, the date a Calderbank offer expired, and that the parties otherwise bear their own costs of the proceeding.
[1]The matter was referred to an associate judge by order of a judge under the Supreme Court (General Civil Procedure) Rules 2015, r 77.05 (‘Supreme Court Rules’). The Court of Appeal has jurisdiction to hear an appeal from an associate judge in those circumstances: see Supreme Court Act 1986, ss 10(1)(ab), 17(3); Supreme Court Rules, r 77.07(1).
Adam seeks leave to appeal. His first three proposed grounds allege errors in the way the associate judge dealt with his application. If he is successful, he seeks an order from this Court for provision in the amount of $265,000. If those grounds fail, he seeks leave to appeal against the associate judge’s orders as to costs.
For the reasons that follow, leave to appeal should be granted and the appeal should be allowed. In place of the orders of the associate judge, there should be an order for provision to Adam out of Brian’s estate in the amount of $125,000.
In light of that conclusion, the associate judge’s order as to costs must be set aside and the fourth proposed ground of appeal does not arise. We will hear the parties as to the appropriate orders for costs, at first instance and on the appeal.

Background and issues in the proceeding

Brian and Heather were together for 32 years. Each had two children from a previous marriage. An agreed summary prepared by the parties described their relationship as loving and supportive. Heather cared for Brian after he was diagnosed with lung cancer in 2011, and from 2015 onward she was his full-time carer.
Adam gave evidence that, while he was growing up, he witnessed family violence inflicted by Brian on his first wife. He said the violence was in his earliest memories and that he did not have a happy childhood. Despite that, the two ‘kept in contact’ once Adam was an adult, playing golf and seeing each other at Christmas and on other holidays, even though theirs ‘wasn’t the closest of relationships’.
In 2017, Adam and his first wife divorced. They had jointly owned a property valued at approximately $1 million, encumbered by a mortgage of $337,000. In the divorce settlement, Adam’s former wife kept the house and Adam kept his superannuation. In the period following the divorce, Adam rented a dwelling that was sufficient for him to share with his twin teenage children, who stayed with him on a week-on week-off basis. He financed the move with about $14,500 of credit card debt.
Adam remarried in 2022. When he gave evidence in February 2023, he and his second wife Amanda were renting a home which they shared with Adam’s two children, who continued to stay with him on a week-on week-off basis. One of Amanda’s children had recently moved out, and the other had left two years earlier. Other than his superannuation, Adam owned nothing of significant value at that time.
Brian’s will, which was dated 3 August 2018, appointed Heather as executrix and gave his entire estate to her. If Heather had predeceased him, the will appointed Adam and one of Heather’s sons as executors, and divided the estate into five equal shares. A share each would have gone to Adam, his sister and Heather’s two children. The final share would have been distributed in equal shares as tenants in common among Brian’s grandchildren. Heather gave evidence that at the same time as Brian made his will, she made a will that was ‘pretty much … identical’, in that it provided for her estate to be given entirely to Brian or, if he predeceased her, to be distributed among her children and grandchildren in the way described in Brian’s will. The wills were mirror wills rather than mutual wills. In other words, Brian and Heather did not bind each other not to change their wills without the other’s consent.
Consistently with his will, upon his death the whole of Brian’s estate passed to Heather. The estate comprised a half share of a property in which they lived in Rowville, which he owned with Heather as tenants in common in equal shares, as well as $950 of personal estate. Brian had other assets held jointly with Heather that passed to her by survivorship upon his death. These were a property in Mount Martha and $540,000 in cash at bank. He also held $227,000 in superannuation that was paid to Heather in accordance with a binding death benefit nomination.
The parties were in dispute as to the value of the Rowville and Mount Martha properties. Adam valued the Rowville property at $975,000, while Heather valued it at $840,000. Adam valued the Mount Martha property at between $1.7 million and $1.8 million while Heather valued it at $1.5 million.

Grounds of appeal

The application for leave to appeal was filed on 25 March 2024 and set out four grounds of appeal. On Thursday 29 May 2025, four days before the hearing of the application, Adam sought leave to amend the first proposed ground. Heather opposed the application. Adam’s proposed amendments are underlined in the grounds set out below:
1.       The trial judge erred in failing to give adequate reasons and to determine           matters significant to the outcome of the proceeding, including in failing    to decide whether, and to find that:
(a)[Brian] had a moral duty to provide for the [Adam’s] proper maintenance and support;
(b)      the gross size of the estate was $488,450; and
(c)the property at 14 Ian Road, Mount Martha, was valued at between $1,700,00 and $1,800,000.
2.       The trial judge erred in finding that [Brian] had not failed to make adequate provision for [Adam].
3.       The trial judge erred in the exercise of his discretion:
(a)by giving inadequate weight to the fact that [Brian] and [Heather] had made mirror wills leaving one fifth of their combined estate to [Adam];
(b)by treating the size of the estate as a limiting factor on the award of provision that should be made; and
(c)by erring in his assessment of the effect of an order for provision on the amount received by [Heather].
4.The trial judge erred in ordering [Adam] to pay [Heather’s] costs from 22 June 2022 on an indemnity basis or at all.
Adam should have the leave sought to amend proposed ground 1. Notwithstanding the delay on Adam’s part and the short timeframe between the filing of the application to amend and the hearing, there was sufficient time for Heather to address the revised case, and her counsel made responsive written and oral submissions, without taking up an offer from the Court to file supplementary written submissions if necessary. Had the amendments not been notified to Heather in advance of the hearing, the result may well have been different. In the circumstances, however, if any prejudice was caused to Heather by the late amendments, it could be addressed by way of costs.

Orders for provision — statutory regime and principles

The Court’s power to make a family provision order is contained in pt IV of the Administration and Probate Act, which is titled ‘Family provision’. Section 90A provides that an eligible person may apply for such an order, and it is clear that Adam, a child of Brian, is such a person.[2] The power to make the order is set out in s 91, which is in these terms:
[2]Administration and Probate Act, s 90. Adam is a ‘child … of the deceased not referred to in paragraph (b) or (c)’: para (f) of the definition. Paragraphs (b) and (c) refer to children and stepchildren who are aged under 18, are full time students or have a disability.
(1)Despite anything to the contrary in this Act, on an application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.
(2)The Court must not make a family provision order under subsection (1) unless satisfied—
(a)that the person is an eligible person…
…
(c)that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(d)that the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person … by—
(i)the deceased’s will …
…
(4)In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—
(a)the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
(b)the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
(c)in the case of an eligible person referred to in paragraph (f) … of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person’s proper maintenance and support …
…
(5)The amount of provision made by a family provision order—
(a)must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support …
It can be seen that the inquiry involves five steps.[3] The Court must decide:
(a)whether the applicant is an eligible person: s 91(2)(a);
(b)whether, at the time of death, the deceased had a moral duty to provide for the applicant’s proper maintenance and support: s 91(2)(c);
(c)whether the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the applicant: s 91(2)(d);
(d)if these matters are established, whether an order should be made for provision for the eligible person: s 91(1);
(e)if so, what amount of provision ought to be made: s 91(4) and (5).
[3]Section 91(2) provides for other matters which the Court must determine in specific cases, not relevant for present purposes: see in particular s 91(2)(b).
Previous iterations of similar provisions have been held to raise a ‘jurisdictional’ threshold which must be crossed before an order for provision may be made.[4] The same may be said of the first three issues above, which are set out in s 91(2). A complicating factor under pt IV in its current form is the enactment of s 91A which describes a list of factors that must or may be considered ‘[i]n making a family provision order’. The introductory words of s 91A(1) and (2) imply that a decision to make an order for provision has already been made, and it is only the amount of provision which remains in issue. Previously, regard was specifically able to be had to factors such as those in s 91A in determining the ‘jurisdictional’ questions about the deceased’s responsibility to make provision and the adequacy of the provision made, as well as the amount of provision.[5]
[4]Singer v Berghouse (1994) 181 CLR 201, 208–9 (Mason CJ, Deane and McHugh JJ) (concerning Family Provision Act 1982 (NSW) s 7, which did not contain an express requirement that there be a ‘moral duty’); Blair v Blair (2004) 10 VR 69, 75 [11]–[12] (Chernov JA, Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]), 84 [40]–[41] (Nettle JA) (concerning a previous version of pt IV, which used the language of ‘responsibility’ rather than moral duty (held to be to the same effect in that respect as the current provisions, but factors of the kind now found in s 91A were listed in s 91 and the Court was expressly required to have regard to them in determining the ‘jurisdictional’ requirements contained in that section)).
[5]Blair v Blair (2004) 10 VR 69, 75 [11]–[12] (Chernov JA, Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]), 84 [40]–[41] (Nettle JA).
The question arises, therefore, whether the factors listed in s 91A bear on the ‘jurisdictional’ questions or only on the amount of provision to be made.
Section 91A is in these terms:
(1)In making a family provision order, the court must have regard to—
(a)the deceased’s will, if any; and
(b)any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any); and
(c)any other evidence of the deceased’s intentions in relation to providing for the eligible person.
(2)In making a family provision order, the court may have regard to the following criteria—
(a)any family or other relationship between the deceased and the eligible person, including—
(i)the nature of the relationship; and
(ii)if relevant, the length of the relationship;
(b)any obligations or responsibilities of the deceased to—
(i)the eligible person; and
(ii)any other eligible person; and
(iii)the beneficiaries of the estate;
(c)the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;
(d)the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—
(i)the eligible person; and
(ii)any other eligible person; and
(iii)any beneficiary of the estate;
(e)any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
(f)the age of the eligible person;
(g)any contribution (not for adequate consideration) of the eligible person to—
(i)building up the estate; or
(ii)the welfare of the deceased or the deceased’s family;
(h)any benefits previously given by the deceased to any eligible person or to any beneficiary;
(i)whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;
(j)the liability of any other person to maintain the eligible person;
(k)the character and conduct of the eligible person or any other person;
(l)the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;
(m)any other matter the Court considers relevant.
The literal reading of the opening words of s 91A(1) and (2) gives s 91A a limited operation, consistent with a sequential consideration of the issues in ss 91 and 91A. On that construction, s 91A is only reached once the court has determined that the person in question is an eligible person, that the deceased had a moral duty to provide for their proper maintenance and support, that the distribution of the estate failed adequately to do so, and that the court should exercise its discretion to make an order for provision. In other words, s 91A would only apply once the jurisdictional threshold has been passed and the court has decided to make an order for provision.
This construction involves a rigid and artificial approach to an application for provision. The factors in s 91A are clearly capable of bearing not only on the amount of provision that should be ordered, but on the question whether an order for provision should be made at all. It would therefore be artificial, and serve no apparent purpose, to construe s 91A as applying only to the determination of the amount of provision that should be made, after it has been decided to make an order. As Mason J put it in White v Barron, there is ‘an element of the artificial’ in saying that it is only after jurisdiction is established that the exercise of discretion begins.[6]
[6](1980) 144 CLR 431, 443, citied with approval in Singer v Berghouse (1994) 181 CLR 201, 210–11 (Mason CJ, Deane and McHugh JJ).
The tasks involved in addressing the jurisdictional issues and the discretion are similar. Mason CJ, Deane and McHugh JJ observed in Singer v Berghouse that, in the ‘jurisdictional’ stage of determining an application, the court may need to arrive at an assessment of the proper level of maintenance and what is ‘adequate’ provision, and this will largely determine the order which should be made.[7] The literal construction would deny this reality.
[7](1994) 181 CLR 201, 210.
The factors in s 91A are capable of bearing on each of the jurisdictional issues in s 91(2). The scope for substantial overlap among the specified factors and the jurisdictional questions was recognised under the former regime.[8] It is plainly also a feature of s 91A. For example, the ‘family or other relationship between the deceased and the eligible person’ (s 91A(2)(a)) may be relevant to the eligible person issue; any ‘obligations or responsibilities of the deceased to the eligible person’ (s 91A(2)(b)) may be relevant to the moral duty of the deceased to provide for the eligible person; and the ‘financial resources … of the eligible person’ (s 91A(2)(d)) may be relevant to the adequacy of the provision made.[9]
[8]Blair v Blair (2004) 10 VR 69, 75 [12] (Chernov JA, Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]).
[9]Re Christu [2021] VSC 162 [11] (McMillan J).

The opening words of s 91A(1) and (2) are therefore to be read as respectively requiring or permitting the court to have regard to the identified matters when deciding whether to make a family provision order, including deciding whether the jurisdictional requirements are satisfied, and the amount of provision to be made, if any.[10] This means that the factors in s 91A are relevant to the application of s 91(4) and (5). They are also relevant to the exercise of the discretion in s 91(1) whether to make an order at all.
[10]See, as to s 91(2)(d), Ross v Ross [2019] VSC 820 [28]–[41] (Moore J).

Associate judge’s reasons — no order for provision

The associate judge had regard to each of the mandatory considerations listed in s 91A(1), which required him to consider the terms of Brian’s will, as well as any evidence of his reasons for making any dispositions in the will, and his intentions in respect of Adam. In light of the terms of the will and Heather’s evidence, the associate judge found that it was clear that Brian and Heather intended to leave their estates to each other, or, if one had predeceased the other, in five equal shares to their four children and their grandchildren collectively. The associate judge found that it was Brian’s intention for Adam to have his share in the estate after both Brian and Heather had died. Heather’s will was in very similar terms. The associate judge stated that the application for provision sought to accelerate the bequest that Brian had intended would be paid to Adam after Brian and Heather had died. But Brian never intended Adam to receive one fifth of the current value of his estate, or the current value of his and Heather’s combined assets.[11]
[11]Reasons [45]–[48].
The associate judge referred to evidence given by Heather that, in her most recent will, she had cut Adam out of her estate, but that she would reassess that decision if he was unsuccessful in his claim. The associate judge said there was, therefore, ‘a degree of uncertainty’ in respect of what, if any, bequest Adam might eventually receive.[12] The associate judge said that it would have been open to Brian and Heather to have made a mutual wills agreement. Because they did not, the arrangements put in place meant Heather was able to change her will. He said that there was ‘no way of knowing’ whether Heather’s will would have continued to provide for Adam had he not instituted the proceeding.[13]
[12]Ibid [51].
[13]Ibid [53].
The associate judge then turned to consider each of the factors set out in s 91A(2), beginning with the nature and length of the relationship between Brian and Adam. Without finding that any specific instance of family violence occurred, the associate judge accepted that Brian’s behaviour ‘deeply and adversely’ affected Adam’s experience of growing up,[14] and affected the nature of the relationship between the two once Adam was older. He found that the extent of contact between them did not count against Adam’s case, and observed that Adam made greater efforts to stay in touch with Brian once his health began to decline.[15]
[14]Ibid [11]–[13].
[15]Ibid [54], addressing Administration and Probate Act, s 91A(2)(a).
The associate judge noted the amount of time and effort that Heather had spent caring for Brian, and the psychological and physical burden of providing such care. He referred to the moral duty of a deceased to provide for their spouse’s proper maintenance and support,[16] and set out an extract from Walsh v Walsh summarising the principles that apply to an application for provision made by an adult child.[17]
[16]Re Papaioannou [2019] VSC 844 [18] (McMillan J).
[17][2013] NSWSC 1065 [121] (Hallen J); Reasons [55]–[57], addressing Administration and Probate Act, s 91A(2)(b); see [91] below.
The associate judge found that the estate was relatively modest, especially taking into account the costs of the proceeding. Adam argued that the value of the Rowville property was $487,500, while Heather said it was $420,000. They broadly agreed that the estate had incurred expenses of about $10,000, excluding the costs of defending the proceeding.[18]
[18]Reasons [58], addressing Administration and Probate Act, s 91A(2)(c).
The associate judge referred to the current and future financial positions of Adam and Heather. Adam was 52 years old and was employed as a detective sergeant with Victoria Police.[19] His superannuation balance was $965,199.92 taxed and $1,084,012.64 untaxed and that his salary for the year ending 30 June 2022 was $157,838 per annum, exclusive of superannuation.[20] Adam’s wife Amanda earned about $119,000 per annum. Heather was 71 years old and retired. She depended on her savings and a war widow’s pension of $25,000 per year.[21] Her assets were her half interest in the Rowville property, the Mount Martha property, $540,000 in cash at bank, $495,000 in superannuation and Brian’s superannuation which was valued at $227,000.[22]
[19]Ibid [59]. See also [64], addressing Administration and Probate Act, s 91A(2)(f).
[20]There was an estimate of Adam’s superannuation benefit in evidence that stated the values as $993,046.80 for a taxed option and $1,111,889.58 for an untaxed option. An income tax return for the 2021–22 financial year suggested Adam’s salary for that period was $160,425. These discrepancies are not material to the disposition of the case.
[21]Heather gave a figure of $27,000 in evidence. See also Reasons [74].
[22]Reasons [59]–[61], addressing Administration and Probate Act, s 91A(2)(d).
The associate judge found that Adam took blood pressure medication and a nicotine replacement product that together cost about $250 per month. Heather had blood pressure issues, high cholesterol, psoriasis, back and neck pain, degenerative chronic low back pain and bilateral leg pain.[23]
[23]Ibid [62]–[63], addressing Administration and Probate Act, s 91A(2)(e).
The associate judge found that Adam’s contributions to building up the estate and to Brian’s welfare were minimal at best, but this was explicable having regard to Adam’s experiences with his father during his adolescence. He found that Brian had contributed $500 towards Adam’s first wedding and that Adam was not being maintained wholly or partly by Brian. It was common ground that Amanda had an obligation to maintain Adam and that his mother may have an obligation to provide for him in her will.[24]
[24]Ibid [65]–[68], addressing Administration and Probate Act, ss 91A(2)(g)–(j).
There was no submission at trial that Adam’s character should weigh against an order for provision being made. The associate judge held that aspects of his financial background — his divorce settlement and his limited savings — should also not weigh against his application. He noted Adam’s acknowledgment of Heather’s good character, particularly her caring for Brian during his final years.[25]
[25]Ibid [69]–[70], addressing Administration and Probate Act, s 91A(2)(k).
The associate judge found that the order sought by Adam, which was ultimately for $265,000,[26] would have a ‘significant effect’ on the amount received by Heather, who was the sole beneficiary of the estate. That was particularly so having regard to the legal costs incurred as a result of the proceeding.[27]
[26]Adam initially sought an order for $400,000.
[27]Reasons [71], addressing Administration and Probate Act, s 91A(2)(l).
The associate judge took into account the practical effect that an order for provision would have on Adam and Heather.[28] He found that an order would be likely to assist Adam to purchase a property in circumstances where he was otherwise not able to do so. His only significant asset was his superannuation, which could be expected to increase. He was not yet old, and would remain employed for ‘some years’.[29] His expenses could be expected to reduce as his and Amanda’s children respectively, all on the cusp of adulthood, became less financially dependent on their parents.[30]
[28]Administration and Probate Act, s 91A(2)(m).
[29]Reasons [73].
[30]Ibid.
The associate judge said there was no reason to expect that Heather would not continue to live for many more years, which would require her to draw on her pension and savings. The two properties she owned each played an important part in her life and the associate judge was satisfied that Brian intended that she continue to hold and enjoy both of them after he died. Both properties required significant repairs and maintenance, which Heather could afford, although not without significantly depleting her financial resources. An order for provision would necessarily make her financial future less secure.[31]
[31]Ibid [74]–[75].
Having taken account of the preceding considerations, the associate judge was not satisfied that Brian had failed to make adequate provision for Adam’s proper maintenance and support. He said it was ‘understandable’ that Adam
might feel that his father failed to make adequate provision for him in accordance with his obligation having regard to [his] financial position. Such obligations are acknowledged in authorities such as Walsh v Walsh, where, as noted there, an adult child is not required to establish some special need or claim.[32]
[32]Ibid [77].
But the question whether provision should be ordered needed to be answered having regard to all the circumstances, which included the modest size of the estate, the fact that Adam and Amanda were securely employed, that he had working years ahead of him in which to accumulate wealth, and that his superannuation balance was already over $1 million.[33] Further, it was Brian’s intention that Heather receive his estate, and that disposition was consistent with his obligation to ensure that, as his wife, she was provided with an appropriate home, secure income and the means to lead an independent life.[34] The associate judge reiterated that any order for provision would have ‘a significant impact on [Heather’s] life and financial security’.[35]
[33]Ibid.
[34]Ibid [78], citing Re Papaioannou [2019] VSC 844 [18] (McMillan J).
[35]Ibid.
The associate judge concluded by stating that, because he was ‘not persuaded [as to] the jurisdictional question of whether the distribution of [Brian’s] estate had failed to make adequate provision for the proper maintenance and support of [Adam]’, the application must be dismissed.[36]
[36]Ibid [79].

Applicant’s submissions — grounds 1–3

By his first proposed ground, Adam argued that the associate judge failed to give adequate reasons and to determine matters significant to the outcome of the proceeding.[37] He submitted that the reasoning process was such as to leave him with a justifiable sense of grievance.[38]
[37]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, 237 [58] (Muir JA, Holmes JA agreeing at 224 [1], Daubney J agreeing at 240 [72]).
[38]Beale v Government Insurance Office of NSW (1997) NSWLR 430, 431 (Mason P, Sheller JA agreeing at 446), 442 (Meagher JA).
Adam submitted that the associate judge erred by failing to decide whether, and to find that, Brian had a moral duty to provide for Adam’s proper maintenance and support. He said the reasons disclosed no finding on the point, and instead went straight to the question whether Brian had failed to make adequate provision. But the question whether a moral duty was owed was an essential element in Adam’s claim and a precondition of the Court’s jurisdiction to make an order. Adam submitted that the associate judge could not be taken to have found for him on the issue because, if a moral duty was owed, then Brian must have failed to make adequate provision for Adam by leaving him nothing. Yet the associate judge found that Brian had made adequate provision. Alternatively, if the reasons should be read in a way that assumed a finding against Adam on the issue of moral duty, the associate judge erred by failing to give reasons for his conclusion. Nor was it open to him to make no finding at all in respect of moral duty. He could only be satisfied that there was a failure to make adequate provision after having first determined whether there was a duty to make provision at all.
Next, Adam referred to the dispute over the value of the estate, which largely comprised Brian’s interest in the Rowville property. Adam relied on a $975,000 valuation of the Rowville property, while Heather argued it was worth $840,000. Adam submitted that the amount was critical to the result, given the weight the associate judge’s reasons assigned to the size of the estate, but the associate judge did not make any positive finding on the point.[39] Adam submitted that the associate judge should have accepted the formal valuation he had tendered. Heather’s valuation, which was based on a council rates notice from 2022, was ‘not supported by evidence’.
[39]Reasons [58], [77](a), [78].
As to the Mount Martha property, Adam had obtained a kerbside valuation of the property which placed its value between $1.7 million and $1.8 million. Heather’s valuation of $1.5 million was, again, ‘not supported by any evidence’. The associate judge proceeded on the basis that the property was valued somewhere within a range capped and collared by the parties’ estimates.[40] The total difference between those estimates was between $335,000 and $435,000. Adam submitted that, in circumstances where provision in the amount of $265,000 was sought, the true value of the two properties was plainly a matter of significance.[41]
[40]Ibid [35].
[41]Adam also noted that the associate judge said that the parties gave their evidence by affidavit, and were then cross-examined, whereas evidence-in-chief was given viva voce. The associate judge also said that Adam relied on Heather’s evidence, but that was ‘obviously incorrect’.
Adam’s second proposed ground argued that the trial judge erred in finding that Brian had not failed to make adequate provision for him. Adam argued that the associate judge’s reasons showed that he determined the issue by considering whether Brian failed to make adequate provision by not leaving Adam $265,000. That was the wrong approach. Instead, the associate judge should have considered whether there was a failure to make adequate provision by leaving Adam nothing at all. In oral submissions, counsel for Adam submitted that the associate judge had adopted an ‘all or nothing’ approach. He submitted that, because Brian had a moral duty to make provision for Adam, it followed that he could not have left him nothing.
Under cover of proposed ground 3, Adam alleged three errors in the exercise of the associate judge’s discretion. First, he submitted that the associate judge gave inadequate weight to the fact that Brian and Heather made mirror wills, each ultimately leaving a fifth of their estate to Adam. It was significant that Brian intended one fifth of his net assets to be given to Adam. The associate judge wrongly rejected Adam’s submission to that effect on the basis that it failed to have regard to Brian’s intention that Heather should enjoy the estate’s assets for the remainder of her life, and that it was never his intention for Adam to receive his share in the estate at the time of Brian’s death while Heather remained alive. It was wrong, too, for the associate judge to draw anything from the fact that no mutual wills arrangement had been made, and to contemplate what Heather might have done had the proceeding not been instituted. The relevant issue was what Brian intended. By Heather cutting Adam out of her will, the testamentary arrangements in effect at trial were such that Brian’s intentions had been defeated. That should have been a matter of significance to the Court’s discretion.
Secondly, Adam submitted that the associate judge should not have treated the size of the estate as a limiting factor on the order for provision that should be made. In circumstances where Heather received the whole estate and Adam was the only applicant for provision — and where he sought an amount less than the total size of the estate — the size of the estate was submitted to be irrelevant to the exercise of the associate judge’s discretion. The only relevant factor was the extent of Heather’s competing claim. In that respect, Adam focused on how large Brian’s estate would have been had he held his interest in the Mount Martha property as a tenant in common, and had his superannuation been included in the estate. In those circumstances, his estate would have been valued at between $1.4 million and $1.61 million, depending on which of the various estimates advanced at trial was accepted. In that event, the size of the estate would not have placed any limit on an order for provision of the kind sought. The fact that these assets passed directly to Heather, rather than under Brian’s will, could not rationally affect the assessment of what provision for him would be adequate in the circumstances. The error was compounded by the associate judge factoring legal costs associated with the proceeding into his consideration of the size of the estate. There had been no costs order at the time of judgment, and, in the result, no costs were ultimately borne by the estate.
Thirdly, Adam submitted that the associate judge erred in his assessment of the effect an order for provision would have on the amount received by Heather. It was wrong to have found that ‘any order for provision would … have a significant impact on [Heather’s] life and financial security’. Adam submitted that, having regard to Heather’s assets and entitlements, an order that the estate pay $265,000 to him would reduce her wealth by between 6.57 and 7.4 per cent, depending on whether Adam’s or Heather’s estimates of value were accepted. Making the order would still have left Heather in a secure financial position; the associate judge was therefore wrong to have found the order would lead to a ‘significant impact’. It followed that it was also wrong for him to have found that ‘any order’ would have that impact. An award for provision amounting to $100,000 would, for example, have had ‘no meaningful effect on Heather’s financial position whatsoever’. As such, the associate judge ‘grossly overstated’ the effect an order for provision would have on the amount received by Heather.
Adam submitted that, if the appeal is allowed, this Court should take into account the matters relied upon under proposed ground three, as well as various other matters described in the following paragraphs, to determine that Brian had a moral duty to provide for him, that he breached that duty, and that the associate judge should have awarded Adam $265,000 by way of provision.
Adam submitted that, while his relationship with Brian was complex, that was partly the result of the way Brian treated Adam’s mother during Adam’s early life. Significantly, when Brian’s health was declining, Adam made more of an effort to stay in contact with him. Adam referred to the finding that his only significant asset was his superannuation, and that, with a 20 per cent deposit, he would be able to borrow $770,000 to purchase a home. Meanwhile, Heather had substantial assets including the two properties, $540,000 cash at bank, her and Brian’s superannuation and her war widow’s pension.[42]
[42]See above at [30].
Adam submitted that Brian knew that he was dealt a ‘large financial blow’ by his divorce settlement. He should have known that Adam was destined for a ‘precarious retirement’ living off of his superannuation, with no buffer for contingencies and no home of his own. He would have known that he could make provision for Adam without breaching the moral duty he owed to Heather.
Adam contended that he was entitled to an order that would provide him with a small buffer against contingencies, put him back on his feet financially and set him up for retirement. The order for provision in the amount of $265,000 would achieve that by enabling him to purchase a ‘modest property’ and discharge his household debts.

Respondent’s submissions — grounds 1–3

In respect of the value of the estate and the two properties, Heather observed that, during discussion at the hearing, the associate judge explained that he was not sure the material before him enabled him to resolve the valuation disputes. Adam’s closing submissions stated that he was ‘mindful of the Court’s comments on the difficulty in resolving disputes about the value of properties. Given the range between each party’s estimates, it may have little bearing on the Court’s ultimate conclusion’. Having taken that attitude to the issue at trial, Heather argued that Adam cannot now resile from it.
As to Adam’s claim that the associate judge needed to reach a conclusion on the value of the estate, Heather argued that on any view the estate was reasonably modest. In any case, the associate judge understood that the Rowville property could be worth as much as Adam submitted, and it followed that he took that possibility into account. It was also relevant that no valuers had been called to give evidence, and that Heather had made financial contributions to her life with Brian.
The associate judge noted that the fact that no valuers had been called to give evidence also limited his capacity to reach a view on the value of the Mount Martha property.[43] Heather argued that he was, again, conscious that the property could be worth as much as Adam contended, and that he took that into account in his reasons.
[43]Reasons [35].
Heather argued that the associate judge did not fail to consider whether Brian owed Adam a moral duty. While not considering the matter in terms, he identified it as an issue for determination in the proceeding, and, as a matter of logic, his conclusion that Brian had not failed to make adequate provision for Adam necessarily entailed a conclusion that no moral duty was owed.[44] By ‘taking into consideration all relevant factors and surrounding circumstances’, and acknowledging that he could only determine whether the order should be made by reference to ‘all the circumstances’, the associate judge, by inference, gave reasons addressed to the moral duty point.[45]
[44]Ibid [6](a), [76].
[45]Ibid [76]–[77].
In any event, it was submitted, success on the moral duty point could not avail Adam, because of the associate judge’s determination that Brian had not failed to make adequate provision for him. Adam was also wrong to submit that the associate judge had failed to consider whether there was a failure to make adequate provision by leaving Adam nothing at all and only considering whether $265,000 would be adequate provision. The associate judge held that ‘any order’ for provision would have a significant impact on Heather.[46] His specific consideration of the impact of an order for $265,000 preceded that general holding in his final analysis.
[46]Ibid [78].
In response to the first of the errors alleged by Adam under proposed ground 3, Heather submitted that the associate judge correctly approached the issue of Brian’s intentions, which he properly construed as being that Adam would inherit a fifth of Brian and Heather’s combined assets, but only after they had been enjoyed for the duration of their lives. Heather was free to depart from that arrangement, and could in any event dissipate assets during her lifetime. It was not irrelevant for the associate judge to consider what Heather might have done had the proceeding not been brought, but in any event he found that there was ‘no way of knowing’ the answer to that question.[47]
[47]Ibid [53].
Next, Heather rejected Adam’s submission that the size of the estate was not a limiting factor. By way of example, if a further $1 million were available, Adam’s claim could have been accommodated. But the estate was much smaller than that. Heather submitted that to incorporate the value of Brian’s superannuation and the two properties was speculative.[48] In any event, Heather could be expected to remain dependent on the estate for many years, and needed to make extensive repairs to the properties. It was also open to the associate judge to consider the effect that costs of the proceeding would have on the estate.
[48]See above at [46].
Heather argued that the associate judge’s assessment of the effect of the proposed order on her was correct. The repairs and renovations required at the two properties would cost $862,058, before increases in building costs since that estimate was formulated. Heather submitted that, after that work was done, she would be left with $399,942 for her retirement, which would necessitate a frugal lifestyle, especially taking into account the likelihood of future health expenses, and the need to provide for contingencies. Overall, Adam’s submission failed to take account of the nature of the estate, and sought to have the matter determined by reference to Heather’s assets more generally; there was no basis in law to approach the issue in that way.
If the discretion whether an order should be made were to be reopened, Heather submitted that the ‘fundamentals’ remained the same and that they justified making no order. Heather submitted that it was Brian’s intention that his whole estate go to her, and he did not intend Adam’s interest to be advanced in the way sought through his application for provision. Heather submitted that a spouse’s interest should be prioritised. She was a dedicated wife for 32 years and contributed to their combined assets. She is retired, while Adam has many years ahead of him in secure employment. Adam had a distant relationship with Brian. He has significant superannuation and, viewed from the perspective of community standards, his life is comfortable. Far from having fallen on hard times, he plans to retire early at 61 years of age. The law did not require Brian to make provision that would set Adam up for a ‘comfortable but modest retirement’, as Adam sought.

Consideration

Proposed ground 1

The fact that there is a discretion under s 91(1) means that the principles in House v The King apply to appellate review of a court’s decision under pt IV, including the determination of the questions in s 91(2).[49]
[49]Singer v Berghouse (1994) 181 CLR 201, 210–12 (Mason CJ, Deane and McHugh JJ).
As discussed above, there is some overlap in the five steps required to be undertaken by the Court in deciding an application under pt IV. In particular, the question whether adequate provision has been made for the eligible person’s maintenance and support will involve factual issues bearing on the appropriate order to be made if the answer to that question is in the negative, and the assessment as to adequacy of provision may largely determine the appropriate order for further provision.[50] At the same time, reflecting the Court’s discretion, there may be circumstances in which, even though an eligible person is found to have been left without adequate provision, no order should be made.[51]
[50]Ibid 208–10.
[51]Ibid 210, citing Ellis v Leeder (1951) 82 CLR 645.
Ground 1(a) concerns the associate judge’s treatment of the requirement in s 91(2)(c) that there be a ‘moral duty’ to provide for the eligible person. Under the previous legislation, which did not use the expression ‘moral duty’ but required that the testator have a more diffuse ‘responsibility’ to provide for the applicant, the courts applied the notion of a moral duty to explain the rationale for making an order for provision. The existence of a ‘moral duty’ was held to supply the justification for curial intervention, and simultaneously the limit to its legitimate exercise.[52] So understood, the court needed to not only identify a moral duty but to decide its scope. This in turn informed the determination whether the provision that had been made was ‘adequate’. It was put this way:
The provision which the Court may properly make in default of testamentary provision is that which a just and wise [testator] 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.[53]
[52]Grey v Harrison [1997] 2 VR 359, 366 (Callaway JA, Tadgell JA agreeing at 360, Charles JA agreeing at 361); Lee v Hearn (2005) 11 VR 270, 273–4 [6] (Callaway JA, Batt JA agreeing at 286 [55], Buchanan JA agreeing at 286 [57]), 285–6 [53]–[55] (Batt JA, Buchanan JA agreeing at 286 [57]).
[53]Re Allen; Allen v Manchester [1922] NZLR 218, 220–1 (Salmond J). See also Singer v Berghouse (1994) 181 CLR 201, 209 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin (2005) 221 CLR 191, 202 [21] (Gleeson CJ), 228–30 [113]–[121] (Callinan and Heydon JJ); cf 218 [73] (Gummow and Hayne JJ); Grey v Harrison [1997] 2 VR 359, 365–6 (Callaway JA, Tadgell JA agreeing at 360, Charles JA agreeing at 361).
Leaving aside the specific expression ‘moral duty’, the existence of a moral obligation still provides the justification for curial intervention; and the limit to the legitimate exercise of the court’s power is still determined by reference to the ‘adequacy’ of the provision made, having regard to that moral obligation. Gleeson CJ said in Vigolo v Bostin,[54] in terms applied by this Court to the current form of the Victorian legislation:[55]
The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member … The justification for conferring upon a court a discretionary power to intervene, and to make an order modifying the legal effect of the will, was explained in terms of familial obligation, not unnaturally or inappropriately described as moral.[56]
[54](2005) 221 CLR 191.
[55]Scott-Mackenzie v Bail [2017] VSCA 108 [44]–[45] (Beach and Ferguson JJA and McMillan AJA).
[56]Vigolo v Bostin (2005) 221 CLR 191, 199 [11]; see also 204–5 [25] (Gleeson CJ), 230–1 [122] (Callinan and Heydon JJ).
Under the current legislation, the requirement for there to be a ‘moral duty’ is express, and is drafted as one of a series of questions, separate from consideration of the adequacy of the provision made. It is not clear whether the ‘moral duty’ to which the legislation refers is the same as that identified in the earlier case law, tied to the deceased’s available resources which define its scope, or whether it is a more diffuse responsibility to provide, if circumstances permit, to be considered in a more confined way.
We have not had the benefit of submissions on the meaning of ‘moral duty’ in s 91(2)(c), and we are therefore reluctant to decide the point. We observe, however, that the different meanings identified above appear to underlie the competing submissions about how the associate judge’s reasons treated the issue of moral duty.
The associate judge made no express finding that Brian owed a moral duty to provide for Adam’s proper maintenance and support. He went on, however, to address the adequacy of the provision that was made. Heather submitted that it can be inferred from the associate judge’s ultimate conclusion that he must have found that Brian had no moral duty to provide for Adam. That would be so, if ‘moral duty’ is to be understood in the way in which the expression was used in the case law. It would be implicit in the Court’s refusal to make an order for provision that there was no ‘moral duty’ in that sense. But if ‘moral duty’ connotes a more diffuse sense of responsibility to provide, if circumstances permit, the associate judge can be seen to have accepted that Brian had a moral duty in that sense to provide for Adam, and only then to have sought to identify whether the will failed to make adequate provision for Adam.
The reasons tend to suggest that the associate judge proceeded on the latter understanding, noting the observation in his concluding reasoning that it was ‘understandable that [Adam] might feel that his father failed to make adequate provision for him in accordance with his obligation’.[57] The following passage in the reasons also suggests that the associate judge declined to make an order for provision, despite the moral duty Brian had to provide for Adam:
Such obligations are acknowledged in authorities such as Walsh v Walsh …, where, as noted there, an adult child is not required to establish some special need or claim. However, the question whether provision should be ordered must always be answered having regard to all the circumstances. And in this case they include:
(a)the extent of funds available from the estate, which are reasonably modest; and
(b)the fact that the plaintiff is securely employed, has a wife who is employed, has a number of working years ahead of him in which to accumulate wealth, and has a superannuation policy that is currently worth in excess of $1 million.[58]
[57]Reasons [77] (emphasis added).
[58]Ibid.
It is not necessary for us to decide whether the obligation to which the associate judge referred constituted a ‘moral duty’ under s 91(2)(c), but that the size of the estate meant that there was no failure to make adequate provision, or whether he held that Brian did not owe Adam a ‘moral duty’ because there was not enough in the estate for one to arise. What matters, and what led the associate judge to reject Adam’s claim, is that the size of the estate was inadequate to require Brian to make provision for Adam. That critical aspect of his path of reasoning is fully exposed. We do not consider the reasons inadequate by virtue of the absence of a discrete conclusion on the ‘moral duty’ question, especially in circumstances where the meaning of that expression as used in s 91(2)(c) does not appear to have been canvassed at trial.
Further, by referring in his conclusion to ‘adequate’ provision, the associate judge treated the factors in s 91A that he had previously canvassed as relevant to the jurisdictional threshold, rather than deciding that the threshold was met but that an order for provision out of the estate should not be made.[59] The reference at the end of the judgment to the associate judge not being persuaded as to the ‘jurisdictional question’ confirms that understanding.[60]
[59]The same issues about the adequacy of provision arise under the ‘jurisdictional’ question and the exercise of the discretion: see [23], [62] above.
[60]Reasons [79].
Even if this reading of the reasons is wrong, and the associate judge was treating s 91A as relevant only after addressing the jurisdictional questions, which he answered favourably to Adam, the result is the same: the application failed because, applying the factors in s 91A, the associate judge was not satisfied that an order for provision should be made.
Like the meaning of ‘moral duty’ in s 91(2)(c), the proper approach to s 91A is not straightforward, and has left scope for ambiguity in understanding the reasons in this case. But the substance of the reasoning and the conclusions on the matters of significance are clearly articulated. We therefore reject Adam’s contention that the associate judge’s reasons failed sufficiently to disclose his path of reasoning, even if he failed expressly to determine the issue of moral duty. Ground 1(a) therefore cannot be upheld.
Ground 1(b) and (c) address a number of miscellaneous issues. We do not consider that there is any substance in them. The first two concern the valuation of the Rowville and Mt Martha properties. The associate judge explained that, given that Brian had a half interest in the Rowville property, the difference in valuations was the difference between $420,000 and $487,500. There was a related dispute, which the associate judge also saw as unnecessary to resolve, about the cost of necessary repairs to that property. In respect of the Mt Martha property, the difference was between a valuation of $1,500,000 and a valuation of $1,700,000–$1,800,000. Again, there was a dispute about the extent of requisite repairs, which the associate judge found unnecessary to resolve.
Adam contended that, in the context of a modest claim for provision of $265,000, these issues were all potentially significant, both individually and collectively. That may be so, but the associate judge reasoned that the properties had a value within a range. Wherever the true value lay within that range, his reasoning led to the conclusion that an order for provision should not be made. Again, the associate judge’s path of reasoning is apparent. In the circumstances, there was no need to make a more specific finding as to the values of the properties because, on the associate judge’s reasoning, that could not have affected the result.
Adam also took issue with the associate judge’s account of the way in which evidence in chief was adduced, and the role of affidavits in the proceeding. We are far from convinced that there was merit in this criticism, but counsel properly accepted that it only supplemented the other arguments in respect of the first proposed ground in any event. Our conclusions above mean that the first proposed ground cannot succeed. We will, however, grant leave in respect of it, in light of the fact that aspects of the associate judge’s reasons are fairly open to more than one interpretation.

Proposed ground 2

The second proposed ground of appeal contends that the associate judge failed to determine whether Brian failed to make adequate provision, instead deciding only that provision in the sum of $265,000 should not be made. It was contended that he adopted an ‘all or nothing’ approach.
In particular, the associate judge concluded that an order for $265,000 ‘would have a significant effect on the amount received by [Heather] as the sole beneficiary of the estate’, being the factor in s 91A(2)(l), but did not address that issue in respect of any lesser amount.[61]
[61]Ibid [71].
Heather, in contrast, pointed to the associate judge’s later conclusion that ‘any order for provision would in my estimation have a significant impact on [Heather’s] life and financial security’.[62] She submitted that this conclusion was borne out by the fact that she was left with about $1,250,000 and faced significant costs in making necessary renovations to the two properties. She said that, after making those renovations, she would be left with about $400,000. In that context, even an order for provision in the range of $50,000–$100,000 would have had a significant impact on her financial position, given it was easy to imagine her living for twenty years longer.
[62]Ibid [78] (emphasis added).
We refuse leave to appeal on this ground. We accept Heather’s submissions. In context, the associate judge’s conclusions as to the making of an order for ‘any’ provision show that, when considering the discretionary factor in s 91A(2)(l), the associate judge was addressing the effect on Heather of an order for provision in the amount of $265,000, or any other amount.

Proposed ground 3

The next proposed ground of appeal asserts three errors in the exercise of the associate judge’s discretion, namely the giving of inadequate weight to the mirror wills, treating the size of the estate as a ‘limiting factor on the award of provision that should be made’, and erring in the assessment of the effect of an order for provision on the amount received by Heather.
In respect of the mirror wills contention, Adam submitted that the associate judge had either mistaken the facts, or failed to have proper regard to Brian’s intention that one fifth of his estate would eventually pass to Adam, which would no longer occur because Brian had predeceased Heather and she had changed her will to omit any bequest to Adam.
This part of the ground is not made out. The associate judge had regard to the wills of Brian and Heather, and correctly found that Brian did not intend Adam to have his share of the estate immediately. The associate judge was correct in observing that Adam was ‘seeking to accelerate what he discerns to be his entitlement to a share of [Brian’s] accumulated wealth’.[63] That acceleration would not only give Adam an immediate benefit, but would give him a larger share of the estate than Brian intended. The associate judge took account of these matters and the uncertainty regarding Heather’s ultimate testamentary arrangements.
[63]Ibid [48].

The second and third alleged errors are related. They concern the size of the estate and the effect of the order sought by Adam on the amount received by Heather.
Adam submitted that his application for provision needed to be considered in a context broader than the distribution of Brian’s estate. In particular, Heather was provided for, in effect, by the assets which she held jointly with Brian, to which she succeeded as sole owner, by virtue of survivorship when Brian died. Adam also submitted that the associate judge had wrongly assumed that legal costs would be paid out of the estate. He submitted that the size of the estate was irrelevant in the circumstances. An order for provision of $265,000 could be met by Heather out of the joint bank account, from the superannuation, or through the unencumbered properties. In addition, Heather had a war widow’s pension and was entitled, as a veteran’s widow, to free healthcare and discount medication. An order for provision of $265,000 would leave her with two unencumbered properties and funds in the order of $1 million. Such provision would represent 6.57 to 7.4 per cent of her total assets.
In response, Heather submitted that the size of the estate was always a relevant consideration. In any event, Adam and Amanda had a substantial collective income, and Adam was sufficiently well situated that he was planning an early retirement. Brian’s estate was relatively modest, especially having regard to the costs of the proceeding, which stood at least as a contingent liability of the estate. Heather had effectively paid for the Rowville property which was the matrimonial home. The capital reserve which would remain after repairs to the two properties was said to be inadequate. Heather submitted that her cash and superannuation reserves were $1,262,000, out of which she had to spend $862,058 on repairs and meet living expenses for the rest of her life, in circumstances where she suffered from a debilitating back condition.
It was relevant for the associate judge to take account of Heather’s financial resources including her earning capacity: s 91A(2)(d), (l). The associate judge acknowledged that Heather received the Mt Martha property by survivorship.[64] To that must be added the cash account of $540,000 and Brian’s superannuation of $227,000. She also had her own superannuation in the amount of $495,000. The associate judge referred to these matters.[65] He also had regard to the size of the estate, as was appropriate.[66]
[64]Ibid [29](b), [61](b).
[65]Ibid [61].
[66] Ibid [58]; s 91A(2)(c).
When it came to making his ultimate decision, however, the associate judge relied on the size of the estate, without reference to Heather’s other sources of finance. In particular, he said that ‘[h]aving regard to the modest size of the estate, any order for provision would … have a significant impact on [Heather’s] life and financial security.[67] The ‘reasonably modest’ extent of funds available from the estate was the first of two reasons for declining to make an order which the associate judge mentioned in his conclusion.[68]
[67]Ibid [78].
[68]Ibid [77]. The second reason concerned Adam’s financial resources.
In approaching the matter this way, in our view the associate judge fell into error. In the final analysis, he did not have regard to Heather’s financial position when considering the effect on her of an order for provision, but treated the size of the estate as a limiting factor precluding the making of any order for provision. More specifically, the associate judge did not address the fact that Heather had financial resources of $1,262,000, plus the two properties.[69] She would still have $997,000 if the estate were required to pay $265,000 by way of provision for Adam. While Heather submitted that she faced $862,058 in repairs, the associate judge did not accept that this figure reflected only necessary repairs. Moreover, even accepting Heather’s valuations of the properties, those valuations proceeded on the basis of the existing state of the properties. Expenditure on repairs or other improvements would enhance their value. In the end, Heather could decide whether to spend $862,058 (or some other sum) on repairs or improvements, or to sell either or both of the properties and make other arrangements. In any case, the size of Brian’s estate was of relatively reduced significance to her financial position. Had these matters been taken into account, it could not have been concluded that any order for provision would have such a significant effect on Heather’s financial security as to preclude making any order for Adam’s proper maintenance and support.
[69]As noted at [86] above, those resources consisted of $540,000 in cash at bank, $227,000 from Brian’s superannuation and $495,000 of her own superannuation.
Grounds 3(b) and (c) are therefore made out. The associate judge’s emphasis on the size of the estate meant that the adequacy of the provision made for Adam was assessed in too confined a way. Once the financial resources available to Heather from sources outside the estate were taken into account as permitted by s 91A(2)(d)(ii), that matter bore heavily on the adequacy of provision made for Adam. The effect of an order for provision needed to be measured, not just against the size of the estate, but against the resources available to Heather more generally, but this was not done. As a result, the associate judge’s discretion miscarried and the decision must be set aside.

Conclusion

The parties agreed that, if the appeal were to succeed, this Court should re-exercise the discretion, rather than remitting the matter for further hearing. We agree that this is the appropriate course.
It is convenient to start with some observations from the case law regarding claims for provision on the part of adult sons and spouses of a deceased. While it was once necessary for an adult son to demonstrate a ‘special claim’ or ‘special need’ before obtaining provision,[70] no such requirement persists.[71] Nevertheless, as Chernov JA said in Blair v Blair, ‘it may be very difficult for an adult son, who is in an independently sound financial position, to establish the jurisdictional requirements’ necessary to enliven the Court’s power to make an order for provision.[72] In this context, the following observations of Hallen J in Walsh v Walsh have been cited with approval by this Court:
(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form …
(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.[73]
[70]See, eg, Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, 147 (Gibbs J, Mason J agreeing at 157, Aickin J agreeing at 160).
[71]Blair v Blair (2004) 10 VR 69, 78–9 [20]–[22] (Chernov JA, Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]); Davison v Kempson (2018) 17 ASTLR 244, 275 [91] (Tate, Santamaria and Beach JJA); [2018] VSCA 51 (‘Davison’) citing Taylor v Farrugia [2009] NSWSC 801 [58] (Brereton J).
[72]Blair v Blair (2004) 10 VR 69, 79 [22] (Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]).
[73][2013] NSWSC 1065 [121] (citations omitted), cited in Gash v Ruzicka (2023) 23 ASTLR 52, 57 [21] (Kennedy and Walker JJA and J Forrest AJA); [2023] VSCA 189 (‘Ruzicka’); and Davison v Kempson (2018) 17 ASTLR 244, 254 [40], 275 [91] (Tate, Santamaria and Beach JJA); [2018] VSCA 51.
There is a suggestion in the legislation that an adult child, other than a full-time student aged up to 25 years or a child with a disability, is in a different position to an adult child within any of those categories. All are eligible persons, but in the case of adult children outside those categories, regard is specifically required to be had to the degree to which the child is not capable, by reasonable means, of providing for their proper maintenance and support: s 91(4)(c). This is not, however, to say that this prescribes an additional jurisdictional gateway. Provision may still be made for an adult child who is not a student and is not disabled, even if that child is capable of providing for their proper maintenance and support. Further, there is nothing to prevent the court from having regard to the degree to which any child, adult or otherwise, is capable of so providing.[74]
[74]The legislation therefore does not, in terms, require a different approach to the question of moral duty in respect of the two classes of children. This is so despite the tenor of the following statement in the Second Reading Speech for the Bill that enacted the current form of pt IV, referring to these provisions: ‘This is intended to reflect the position that parents should not usually be regarded as having a moral duty to make provision for adult children who are capable, by reasonable means, of providing adequately for their own proper maintenance and support’ (emphasis added): Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clark, Attorney-General).
In respect of a spouse, the moral obligation of a deceased will generally extend to provision of the security of an appropriate home, secure income, a contingency fund, and the means to live with independence, self-respect and autonomy.[75] That general position, however, is not unyielding. In each case, the outcome is determined by the statutory inquiry into the applicable facts and circumstances.[76] In a case such as this, where obligations may be owed to a widow and another person, it has been suggested that, all things being equal, the interests of a widow are usually prioritised.[77] But there is no general rule to that effect.[78] Again, the inquiry turns in each case upon the application of the statute to the facts. Overall, what is called for is an instinctive synthesis that takes into account all relevant factors and gives them their due weight.[79]
[75]Re Papaioannou [2019] VSC 844 [18] (McMillan J). See also Luciano v Rosenblum [1985] 2 NSWLR 65, 69–70 (Powell J).
[76]Re Papaioannou [2019] VSC 844 [18] (McMillan J).
[77]See, eg, Bladwell v Davis [2004] NSWCA 170 [2] (Ipp JA, Stein AJA agreeing at [24]); McKenzie v Topp [2004] VSC 90 [58] (Nettle J).
[78]Steinmetz v Shannon (2019) 99 NSWLR 687, 708 [98]–[99] (Brereton JA, White JA agreeing at 696–7 [37]–[38], Simpson AJA agreeing at 722 [151]).
[79]Grey v Harrison [1997] 2 VR 359, 366–7 (Callaway JA, Tadgell JA agreeing at 360, Charles JA agreeing at 361); Blair v Blair (2004) 10 VR 69, 81–2 [30] (Chernov JA, Nettle JA agreeing at 84 [39], Hansen AJA agreeing at 84 [42]; Davison (2018) 17 ASTLR 244, 269–70 [70]–[71] (Tate, Santamaria and Beach JJA); Ruzicka (2023) 23 ASTLR 52, 57 [22] (Kennedy and Walker JJA and J Forrest AJA).
Taking the steps in s 91(2) sequentially, we consider that Brian owed a ‘moral duty’, in the more diffuse sense of a responsibility, to make provision for Adam, an eligible person, if there were resources available to do so. It may be accepted that the content of the duty is attenuated in circumstances where Adam is gainfully employed and he and Amanda have a significant joint income, but in our view the duty still subsists in circumstances where Adam, aged in his fifties, cannot afford a deposit on a house, having ‘fallen on hard times’ as a result of his divorce.
We next conclude that the distribution of Brian’s estate failed to make adequate provision for Adam. It may be recalled that by his 2018 will, Brian bequeathed Adam a one-fifth share in his estate only in the event that Brian survived Heather. Since Brian predeceased her, however, Heather received the entire benefit of his estate. Adam might have ultimately received a one-fifth share of Heather’s estate under her 2018 will, but for his institution of the present proceeding, which led her to make a new will (as she was entitled to do). Although Heather indicated that she might change her will again at some point, at present Adam stands to receive nothing at all.
As appears from what follows, we would reach the same conclusion whether we treated ‘moral duty’ in s 91(2)(c) as encompassing the extent of the justification for curial intervention, in conformity with the use of that expression in the case law, or whether we applied the provisions sequentially with ‘moral duty’ meaning a more diffuse responsibility to make provision, if circumstances permit. As we have indicated, it is not necessary, or desirable, for us to decide the question of construction.
On either view, having regard to all the matters in s 91A, the question is whether provision should be made out of an estate valued at something between $420,000 and $487,500 (leaving out of account a small bank balance and unspecified liabilities), in circumstances where Heather is the sole beneficiary under Brian’s will and Adam receives nothing. The effect on Heather of the order Adam seeks is at the heart of the present case.[80]
[80]See s 91A(2)(l).
Leaving aside the half interest in the Rowville property which formed the main part of Brian’s estate, Heather owns real estate valued, on the associate judge’s findings, in a total range of between $1,920,000 and $2,287,500.[81] She has cash and superannuation accounts totalling $1,262,000. She is aged 73, retired and dependent on her savings and a veteran’s widow’s pension of approximately $27,000 per annum.
[81]$420,000 + $1,500,000 = $1,920,000; or $487,500 + $1,800,000 = $2,287,500.
Adam and Amanda have a combined income of approximately $275,000 and superannuation, to which they do not currently have access, totalling approximately $1,120,000.[82] They have no other assets of note, and rent a property which accommodates Adam’s two adult children when they stay with him. As mentioned, Adam seeks provision under pt IV in order to fund a deposit on a property.
[82]See [30] above.
In our view, taking account of the considerations listed in s 91A, there should be an order for provision for Adam. An order for provision would help him to pay a deposit and direct income to repayments on a home loan rather than rent. At the same time, we do not think that the full amount sought by Adam can be regarded as necessary for Adam’s proper maintenance and support. Section 91(5) requires the Court not to provide for an amount greater than necessary for that purpose.
Adam submitted that he needed $237,000 to pay a deposit. The balance of the amount sought was directed at paying off his and Amanda’s debts. Those debts are not so burdensome as to call for provision from Brian’s estate. Moreover, it can be inferred from the combined income of Adam and Amanda that they have capacity to save further towards a deposit. It is significant in that context that during the period since his divorce settlement, Adam chose, for financial reasons, to put extra money into superannuation which could have been put towards saving for a deposit. There was also evidence that Adam could purchase a suitable property with a deposit of about $147,000 if he was prepared to pay mortgage insurance. In our view, provision of $125,000 is appropriate.
Heather’s financial resources leave her the flexibility to repair and, if she wishes, improve, either or both of her properties. If provision of $125,000 were to be ordered out of the estate, Heather could fund the amount rather than liquidate the estate’s major asset, being the half share in the Rowville property, and still have over $1 million available to fund such works as she saw fit and to supplement her pension to meet living expenses. This ensures that Brian has still met his moral duty to provide Heather, who had cared for him over such a long period, ‘the security of an appropriate home in which to live, a secure income and a fund to meet unforeseen contingencies, with an entitlement to independence, self-respect and autonomy’.[83] Although it was not Brian’s intention to provide for Adam in this way, the order we propose is consistent with his underlying intention to benefit Heather in this respect.
[83]Reasons [78], quoting Re Papaioannou [2019] VSC 844 [18] (McMillan J).
In other words, applying the understanding of ‘moral duty’ in the case law to that expression in s 91(2)(c), we again conclude that Brian had a moral duty to make provision to Adam in the amount of $125,000.

Orders

We will therefore order that leave to appeal be granted on grounds 1 and 3 but otherwise be refused, that the appeal be allowed, the orders of the associate judge be set aside, and in their place it be ordered that there be provision for Adam out of the estate in the amount of $125,000.
It is not necessary in the circumstances to deal with proposed ground 4. We will instead hear the parties on the question of costs, both of the appeal and at first instance. In the interests of saving further costs, however, we indicate that our present inclination is that there should be no order as to the costs of the trial. Adam has been successful to a significantly lesser extent than he had sought, and a disproportionate amount of time and expense was spent addressing questions of value and repairs in respect of the two properties, which turned out not to be important to the disposition of the case. As to the appeal, again in light of Adam’s relatively modest success, our provisional view is that Heather should pay half of Adam’s costs on the standard basis, and that Adam should pay the costs of Heather, if any, thrown away by virtue of the late amendment to his application for leave to appeal.
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[2025] VSCA 163

7 July 2025