Muhl v Bailey
[2025] TASSC 24
•16 April 2025
[2025] TASSC 24
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Muhl v Bailey [2025] TASSC 24 |
| PARTIES: | MUHL, Sandra Margaret |
| v BAILEY, Barbara Joy (in her capacity as executor of the late Nita Eileen Shields) | |
| FILE NO: | 1146/2023 |
| DELIVERED ON: | 16 April 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 17 March 2025 and written submissions |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Succession – Family provision – Requirement for adequate and proper maintenance – Duty of testator – Duty to children – Duty to adult adopted child of deceased spouse.
Aust Dig Succession [1419]
Testator's Family Maintenance Act 1912, s 3
REPRESENTATION:
Counsel:
Applicant: N Terracall Respondent: C Street
Solicitors:
Applicant: Terracall and Associates Respondent: Ogilvie Jennings
| Judgment Number: | [2025] TASSC 24 |
| Number of paragraphs: | 60 |
Serial No 24/2025 File No 1146/2023
SANDRA MARGARET MUHL v BARBARA JOY BAILEY (in her capacity as
Executor of the Late NITA EILEEN SHIELDS)
| REASONS FOR JUDGMENT | PEARCE J 16 April 2025 |
1 The applicant, Sandra Muhl, applies under the Testators Family Maintenance Act 1912 (the Act), s 3, for further provision from the estate of the late Nita Eileen Shields who died on 21 October 2021 aged 93. The respondent is the executor of her estate. Meaning no disrespect I will, for ease of understanding, refer on occasion to persons by their first names.
2 For the following reasons, the application should be allowed.
The applicant's eligibility to make application under the Act
3 Children of a deceased person are entitled to claim under the Act.[1] The applicant, born in October 1955, is the adopted child of Raymond Keith Shields and Sheila Alice Shields, both of whom are now deceased. Sheila Shields died on 14 December 1980. In 1982 Raymond Shields married the testatrix, Nita Shields. Their marriage continued until Raymond's death on 11 December 2015. As an adopted child of Raymond, the applicant was Raymond's child[2]. As Raymond's child, the applicant was, at the date of Nita's death, her stepchild and thus her child[3]. The respondent did not submit to the contrary.
The testatrix
4 The respondent is now aged 84 and is Nita's younger sister. She gave unchallenged evidence of Nita's personal circumstances. Nita was born in 1928 and was 11 years older than the respondent. During her life Nita had no children of her own. She was first married in 1952 and divorced in 1967. According to the respondent Nita received a "substantial amount" from the proceeds of sale of a matrimonial property in Hobart but there is no evidence of what that sum may have been. Nita then lived in Fern Tree until she moved to Melbourne in 1975, where she worked as a seamstress. She and Raymond, who was known to some as Keith, married in March 1982. Raymond was already retired and was, as a returned serviceman, receiving a Department of Veteran's Affairs pension. Initially they lived in the family home in Maidstone but they then purchased a home in Kew. She retired later in the 1980's.
5 In 1995 Nita and Keith relocated to St Helens in Tasmania where they bought a house in Douglas Court. In 2012, by which time Raymond's health was declining, they moved to a smaller home in St Helens in Lindsay Parade. Not long afterwards he began to live in Medea Park Nursing Home. For a time she continued to live in Lindsay Parade, but she also moved into Medea Park after she fell and broke her hip.
6 Following Raymond's death in 2015, Nita's health deteriorated. The house in Lindsay Parade was sold in 2017. She became incapacitated and wheelchair bound and remained living in Medea Park until she died in 2022.
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The will and the estate
7 The testatrix's last will was dated 12 July 2018. In it she appointed the respondent as her sole executor. Probate of the will was granted to the respondent on 20 February 2023. According to the statement of assets and liabilities prepared by the respondent, the estate consisted of assets of $491,873.88 comprising the Medea Park accommodation bond of $350,000, a Medea Park Trust Account balance of $78,418.24, a bank account of $59,556.30 and a small amount of interest and fees paid in advance. The only liabilities were some unpaid funeral expenses and legal fees resulting in a net estate for distribution of $481,559.38.
8 As will be further explained, the applicant had two siblings, both of whom are younger than her and are the biological children of Raymond and Sheila Shields. Her brother, Gary Shields was born in December 1956 and her sister, Robyn Shields was born in 1960. In her will, the testatrix, after making some specific gifts of jewellery and personal effects, provided that her net estate be distributed as follows:
• the balance in the Medea Park Trust account (of $78,418.24) to the respondent; • $50,000 to each of three charitable organisations, namely the Clifford Craig Medical Research Trust, the Royal Flying Doctor Service and Camp Quality; • $100,000 to Gary Shields; and • the residue, which amounted to $153,141.14, to Robyn Shields. 9 The testatrix expressly made no provision for the applicant in the will. Clause 9 of Nita's will
provided:
"I have not made any provision for Sandy in my Will because I have not considered her to be my child (step/adopted or otherwise). My deceased husband, Keith Shields and his first wife Sheila Shields adopted Sandy. I only met Sandy approximately four (4) times throughout my life."
The applicant
10 The affidavits sworn by the applicant in support of her claim were not subject to extensive challenge. I will refer to the areas of controversy as they arise. The applicant was born in October 1955. She was told by Raymond and Sheila, who she regarded as her parents, that she was adopted by them only weeks after she was born. They had been married for eight years but had been unable to conceive a child. However, not long after they adopted the applicant, Sheila fell pregnant and Gary was born. Soon afterwards Robyn was born. The applicant remembered her childhood as happy. She was close to her brother and sister, never made to feel any different, and loved and cherished by her parents. They grew up in a small home in suburban Melbourne which had a big back yard to play in. She shared a bedroom with Robyn. They went on family holidays from time to time, usually caravanning, mostly in Victoria. She attended the local high school to year 11 and a different high school for year 12. Her father was employed as a driver for the Commonwealth Government and was often away from home. Her mother was a stay-at-home mum but was trained as a hairdresser and sometimes worked from home. As the applicant grew up she thought her parents regarded her as mature and capable. She was close to her father and felt happy, safe and protected.
11 However, according to the applicant, as she became older and wanted to start going out with her friends and have a boyfriend, her father became overprotective and less trusting. She found this difficult and, in 1974 when she was 18, she left home. She remained in close and regular contact with her mother, but her father was very angry. He told her to either return home or "never darken the
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doorstep again". To add to the situation, the applicant discovered in 1975, not long after she left home, that her father was having "an affair", and eventually found out that the affair was with Nita. The applicant strongly disapproved of her father's relationship with Nita, while her mother "still had two teenage children at home". She said that "the affair broke mum emotionally", who started drinking "which destroyed her." Her mother's abuse of alcohol become problematic and her health deteriorated.
12 As a result of the tension between the applicant and her father, the applicant said that they "didn't have much to do with each other" between 1974 and 1980. In 1977 the applicant returned to high school to repeat grade 12 to obtain a better score and subsequently attended teachers' college. By then, she had a daughter who her mother helped care for while the applicant continued her education.
13 In December 1980, when the applicant was 25, her mother became gravely ill and was hospitalised. At that time her sister Robyn was advanced in her first pregnancy. Her father contacted the applicant and asked her to inform her sister of her mother's situation. Her mother died shortly thereafter. According to the applicant, Nita moved into the family home with Raymond very quickly after her mother's death, a fact she only learned about through her brother Gary. Her reaction, she said, was one of "disgust". Despite this, her father began to contact her regularly for assistance in decisions, and he would defer to her judgment and seek her approval. However, she felt ongoing resentment towards him as a result of how he had treated her mother and his infidelity. She said that her mother was a good person, devoted to her marriage and family, and she "did not deserve what happened to her". The applicant said that she could not resume a "happy family" front, with her father, as if things were normal.
14 The applicant declined an invitation to attend Raymond and Nita's wedding in 1982. What then followed was a lengthy period of relative estrangement between the applicant and her father. The applicant said that she "went back to her normal life", still felt aggrieved about her father's "affair" with Nita and was not "willing to get involved with his relationship with Ms Shields at this point." She said her life was "independent and removed from dad's life".
15 The estrangement between the applicant and her father continued until about 2010. At that time, according to the applicant, she decided that the wanted to "resolve things with dad". The applicant realised, she said, that she wanted to thank her father for the life he and her mother had given her, and for making her part of the family. She said that she wanted to convey to him her appreciation for everything he had done for her. She wrote him a letter which was followed by phone conversations. The evidence does not disclose his precise age but, by then, he must have been very elderly. He and Nita were living in Tasmania. The applicant described her father as "getting older". Though his memory and health were declining he was "still able to communicate and comprehend properly".
16 According to the applicant, she reconciled with her father. Although, because she lived in Melbourne and he lived in St Helens, there were only two or three visits between 2010 and his death in 2015, they stayed in regular phone contact. She said that their relationship was "good" and that he seemed to enjoy seeing her. She attended his funeral.
17 The applicant deposed that, after 2010, she had the opportunity to "get to know Ms Shields". The applicant accepted that Nita and her father had "many happy years together and were very happy." The applicant described Nita as a "lovely lady" and welcoming to her. She did not attend Nita's funeral but said that she and her siblings agreed that her sister Robyn would attend as a representative of the family.
18 Some issue was taken by the respondent with the applicant's evidence about the level of her contact with her father during his life and with Nita after Raymond's death in 2015. The respondent deposed that Nita had told her she had a "very strained relationship" with Gary and the applicant.
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According to the respondent Nita told her that she had no contact with the applicant as Raymond "insisted Sandra was no longer part of his family" and that he had "disowned Sandra as a daughter" arising from disagreements about her "lifestyle choices" many years earlier. The respondent said that, at Raymond's funeral, none of his children, Robyn, Gary and Sandra, spoke to Nita. When cross- examined the respondent accepted that there may have been contact between the applicant, Raymond and Nita which she was not aware of. She knew that the applicant visited her father and Nita once when they lived in Douglas Court, but accepted that otherwise she did not know whether other visits occurred. She also accepted that she may not have been fully aware of the reason for the estrangement between the applicant and her father.
19 The applicant's brother, Gary Shields, swore an affidavit in support of the application. He gave no further evidence and was not cross-examined. He deposed that his relationship with his father was also strained as a result of "the affair dad had with Nita". However by the time of his father's death they had substantially reconciled. He said that he was also "aware that Sandra and dad had reconnected and re-established their relationship by the date of dad's death". He agreed that, following his mother's death in 1980, his father had relied heavily on the applicant to organise her mother's funeral and affairs. After that, he said, the relationship between the applicant and her father again became distant until later in their father's life. He said that he was aware that Sandra visited her father and Nita in St Helens and that this was "the starting point of their renewed relationship" and was followed by other visits.
20 Robyn Shields swore an affidavit in the proceedings and gave evidence. She had a much closer relationship with Nita than the applicant. She visited Nita often and they exchanged letters and cards. However, when she saw the applicant and Nita together, she observed that their relationship was "not strained". She did not know what assets were in her father's estate and was "not sure" if Nita took anything into the marriage. She said that when her father and Nita were married, her father was living in the family home in Maidstone, in Melbourne. They next purchased a house in Kew before moving to St Helens and purchasing in Douglas Court, and then Lindsay Parade. Robyn Shields knew that Nita worked as a dressmaker before she began living with Raymond but did not, to her knowledge, work in paid employment after that.
The applicant's personal and financial circumstances
21 The applicant is now aged 69. She said that after leaving home, and later, with her husband, she worked hard to build her life. They did so without financial support from their respective families although she expected no such support. She had three children. The eldest Jessica, was born in November 1974 when the applicant had just turned 19. Jessica was blind from birth and, during her life, required a great deal of care, hard work and therapy to enable her to become independent, capable and happy. Regrettably she now, at age 50, has other health problems which mean that she requires constant care and supervision. From 1980 the applicant was employed with her husband in their arborist business for which she did the administrative work. It was a job she was able to do while raising her children, running the house and attending to Jessica's extra needs. She also held other employment, more so after the children were at school.
22 About 15 years ago the applicant and her husband separated. She remained living in the family home at 42 St Kinnord Street, Aberfeldie in Victoria which they had purchased in 1980. Aberfeldie is a suburb of Melbourne. The applicant and her husband are not divorced but, in December 2021, they reached a financial settlement which resulted in a division of the matrimonial property. Her husband received her share of the family business and retained a property he had inherited from his father. There was a division of their self-managed superannuation fund. The applicant became owner of the family home. There is no formal valuation of the property but the applicant gave evidence that she undertook "internet searches" which placed the value somewhere between $1.5m and $1.9m. She accepted that she paid the rates based on a value of just over $2m. At
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the time of Nita's death the applicant's balance in the superannuation fund was $285,624.86. At 13 November 2023 it was $421,182.20. The increase resulted from adjustments made in the process of reaching the property settlement. By 29 August 2024 the balance had accumulated to $452,928.40. She owns a 1974 BMW worth about $17,000.
23 The applicant expected to keep working in the family business following the property settlement in 2021, but her husband terminated her employment. For 11 years, until she retired in December 2021, the applicant was employed at Tiffany in Melbourne. She said she had been offered a number of jobs since then but did not wish to continue working, partly because she wanted to be free to regularly visit her son who had recently moved to Brisbane with his family. In her affidavit, sworn in December 2023, the applicant deposed that she had $88,500 in bank accounts, but, by the time of her evidence in March 2025, the balances had reduced to about $20,000. She said that her "cash on hand" had reduced significantly after she retired. She intended to meet her living expenses with regular withdrawals of about $500 per week from her super fund, supplemented by a partial aged pension which, at the moment, is about $450 per fortnight.
24 The applicant and her husband are the registered owners of the flat in which Jessica lives, but the property is subject to an express trust of which Jessica is the beneficiary.
25 As to liabilities and expenses, the applicant's evidence was that her personal living expenses during the year ended 30 June 2023 totalled $65,365.07 and for the year ended 30 June 2024 were $71,920.49. Those amounts collectively included the cost of an international trip which was, the applicant said, the first time she had been on an overseas holiday since 2013. The applicant's evidence was that her home required substantial repairs and maintenance, to replace the pool fence and the front and boundary fences, renovate the kitchen and bathrooms, replace the carpets, replace or repolish floorboards, repaint the exterior, restump the footings and repair and replace rotted weatherboards. The air conditioning is 24 years old and will at some stage need to be replaced. A quote for some of the work was attached to her affidavit. She said that she expected that she will need to spend at least $200,000 on the home over the next ten to twenty years to keep it in proper condition. Despite this, she had no plans to sell the home and wished to continue to live in it. Her evidence was that she was emotionally attached to the house and regarded it as her family home. It is in what she considered to be a good location, where she had a network of friends, and would find it very difficult to find something else within the same area.
26 The applicant is in reasonable health but expects that she will require dental work which will cost her more than $25,000.
27 The applicant received no financial assistance or gifts from her parents during their lives. Raymond was the sole beneficiary of Sheila Shields' estate. To the applicant's knowledge, her mother's estate consisted of her interest in the family home, by then free of mortgage, a new car, and a sum she had inherited from an aunt of uncertain amount, but which she described as a "nice windfall". Raymond Shields' will was made 28 January 2011. Nita Shields was the sole beneficiary of his estate. There was no evidence of the assets which comprised Raymond Shields' estate and so, though I will return to the issue, it is very difficult to make any finding about the extent to which Nita Shields' estate derived from the estate assets of Raymond Shields.
28 The applicant adduced actuarial evidence in the form of a report dated 30 July 2024 by Corey Plover, a Fellow of the Institute of Actuaries engaged by Cumpston Sarjeant. According to Mr Plover's report the median mortality projections from the ABS provide an indicative life expectancy for a 67 year old Australian female of an additional 21.66 years. Mr Plover calculated that a modest retirement lifestyle for a single person, which was better than the pension but which still only allowed for basics, required annual expenditure of $32,915. A comfortable retirement which enabled a good standard of living required annual expenditure of $51,630. Both budgets assumed that the person
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owned his or her own home and was relatively healthy. The position advanced by the applicant was that the calculations should not take into account an entitlement to the age pension. No contrary submission was made. On that basis, the gross annual lump sum required for a "modest" and "comfortable" life in the terms used by Mr Plover were respectively $435,100 and $682,300.
The law
29 Consideration of an application made pursuant to the Act, s 3, requires a two stage approach.[4] The first question to be decided is whether in the terms of the Act, s 3(1), the applicant was "left without adequate provision for his proper maintenance and support". It is a question of fact, notwithstanding that it involves the exercise of value judgments arising from the need to determine whether the applicant has been left without "adequate" provision for his or her "proper" maintenance. If it is answered in favour of the applicant, the onus being on her, the second question is what provision, if any, ought to be made out of the estate of the testatrix for the applicant.
[4] McCosker v McCosker (1957) 97 CLR 566; White v Barron [1980] HCA 14, 144 CLR 431; Goodman v
30 With respect to the first question, all the members of the court in Vigolo v Bostin[5] affirmed the statement of Mason CJ, Deane and McHugh JJ in Singer v Berghouse[6] that the Court is, in determining the jurisdictional question, to take into account:
[5] [2005] HCA 11, 221 CLR 191
[6] [1994] HCA 40, 181 CLR 201 at 209–210
• the size and nature of the estate; • the applicant's financial position; • the totality of the relationship between the applicant and the testatrix; and, • the relationship between the testatrix and other persons who have legitimate claims on her bounty. The words "adequate" and "proper" in s 3 of the Act connote different things. A small sum may be sufficient for the "adequate" maintenance of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her "proper" maintenance. The converse also applies.[7] The Privy Council in Bosch v Perpetual Trustee Co Ltd stated:
[7] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 47631
"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 can often 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' as the sub-section requires shall be done."
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32 In Pontifical Society for the Propagation of the Faith v Scales[8], Dixon CJ pointed out that the words 'adequate' and 'proper' are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration:
"The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."[9]
[8] (1962) 107 CLR 9[9] At 19
33 In Goodman v Windeyer[10] Gibbs J said:
"....the words 'adequate' and 'proper' are always relative. There are no fixed standards and the court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standard."
[10] [1980] HCA 31; 144 CLR 490 at (502). See also Vigolo v Bostin per Gummow and Hayne JJ at [114]
34 Generally speaking, the first question, whether the applicant was left without adequate provision for his proper maintenance and support, is to be determined on all of the circumstances which existed at the date of death of the testatrix, whether she knew of them or not, and not at the date of the application or the hearing. In addition to the circumstances existing at the date of death, I may have regard to the circumstances which could reasonably be foreseen at that time[11].
[11] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; 95 CLR 494.35 If the Court is satisfied that an applicant has been left without adequate provision for his or her proper maintenance and support, the second question involves exercise of a discretion. The court may order that such provision be made for the applicant as, having regard to all the circumstances of the case, it thinks proper. Such a provision "is that which a just and wise father would have thought it his moral duty to make ... had he been fully aware of all the relevant circumstances".[12]
[12] Re Allen (deceased), Allen v Manchester (1922) NZLR 218 at 220–22; Bosch v Perpetual Trustee Company [1938] AC
36 In Vigolo v Bostin, Gleeson CJ[13], and Callinan and Heydon JJ[14] confirmed that there are moral aspects to the concept of what is proper when determining both whether, and, if so, how much provision should be made for an applicant. At [25] Gleeson CJ said:
"In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time."
[13] At [24] and [25][14] At [121]
37 It is not to be assumed that the first stage requires an evaluation of whether the applicant has been left without adequate provision for his or her maintenance, education or advancement in life, thereby focusing primarily on the applicant's financial needs. As Basten JA said in Chan v Chan[15]:
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"... [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs."
[15] [2016] NSWCA 222 at [22]
38 Similar considerations to those involved in the first stage apply to the second stage.[16] There is no need for an applicant adult child to show some special need or some special claim[17]. In the many cases which have considered claims by adult children, statements can be found to the effect that the community does not expect a parent to look after a child for their whole lives. However, as Hallen J observed in Xiang bht Cao v Tong[18]:
"...there are no special rules or principles applicable to the claims of an adult child. Nor is there any presumption in favour of, or against, there being an obligation to make provision for an adult child: Towson v Francis [2017] NSWSC 1034 at [108]; Torok v Becker [2020] NSWSC 1570 at [320] (Ward CJ in Eq)... Each case must be considered by reference to its particular facts and circumstances."
[16] Singer at 210[17] McCosker v McCosker (1957) 97 CLR 566[18] [2021] NSWSC 44 at [361]
39 Nevertheless, in Blore v Lang[19] Fullagar and Menzies JJ said:
"The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family."
[19] (1960) 104 CLR 124 at 134-135
40 A court may find that the disposition of a deceased's estate did not fail to make adequate provision for the proper maintenance and support of an applicant even though no provision was made for him or her in the will: Goodman v Windeyer per Murphy J at 505 and Singer v Berghouse per Mason CJ, Deane & McHugh JJ at 210.
Was adequate and proper provision made?
41 The applicant was not dependent on the testatrix. Nor was the applicant destitute or in any need of urgent financial assistance. However, I find, notwithstanding the applicant's financial resources existing independently of the estate, that she was left without adequate provision for her proper maintenance and support. Having regard to all of the relevant circumstances, a proper provision was one which left her with a greater buffer against contingencies, gave her increased financial security and a more comfortable lifestyle, and added to her financial reserves to meet any demands which might be more likely in her advancing years, for example ill-health or maintenance of her home. The factors of particular importance in this case as to whether adequate and proper provision was made were, in my view, the nature of the testatrix's moral duty to the applicant and the absence of any competing moral claim against the testatrix's estate.
42 The respondent first submitted that I could not be satisfied that the applicant proved that she was left without adequate provision because she did not made full and frank disclosure of her financial circumstances[20]. It was contended that the applicant:
[20] Barbuto v Barbuto [2019] NSWSC 1023 at [153]-[155]; Foye v Foye [2008] NSWSC 1305 at [14]-[15] and [41];
• adduced insufficient evidence about the value of her home; 9 No 24/2025
• did not accurately represent the amount of her superannuation fund at the date of the death of the testator by failing to disclose the likely increase to the value resulting from her family property settlement; • offered no corroboration of the values of her accounts, superannuation and the amount due to her under the settlement, and was generally imprecise about values; • adduced insufficient evidence about the need for and costs of repairs and renovations to her home; • failed to adequately explain her expenditure during the financial years ended 2023 and 2024 or account for the source of the funds, suggesting that either she has an undeclared source of income or her savings must have been substantially higher than she deposed. 43 I would accept that some details about the benefit the applicant received from her property settlement did not emerge until she was cross-examined, but I am satisfied that her affidavits gave a sufficient picture of her overall financial position. I did not perceive any attempt to hide or falsify information and I am not persuaded that there are other assets or income she has not disclosed. Full disclosure of the balances of her superannuation fund, both at the date of death and subsequently, was made in her affidavit. Her evidence about what repairs and maintenance were likely to be required to her house were sufficiently corroborated by the contents of the building quote she produced as part of
her evidence.
44 The respondent submitted further that the evidence revealed that no provision was necessary because the applicant was adequately and properly provided for independently of the estate: by ownership of her home likely worth in excess of $2m, a superannuation balance at 29 August 2024 of over $450,000 and savings of more than $45,000, with only a small credit card debt.
45 The applicant's evidence that she was adopted as a baby and treated in every respect as if she were the biological child of Raymond and Sheila Shields was not disputed, and was strongly corroborated by the evidence of her sister Robyn and her brother Gary. Her application is to be assessed on that basis. No provision for her was made on either the death of her mother in 1980, or her father in 2015. When her mother died in 1980, her mother's estate went to her father. That is as it should have been. Although there was no direct evidence of it, the only reasonable inference is that when her father died in 2015 Nita inherited his entire estate. In those circumstances, I agree with the observations of Nettle J in McKenzie v Topp[21]:
"Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.
Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision."
[21] [2004] VSC 90
46 As subsequent cases have made clear, Nettle J's statement is fact dependant, not one of principle.[22] Nevertheless, the statement gives guidance in the hearing and determination of applications of this nature. Although Nita, during her life, did not assume any responsibility for the financial and emotional security of the applicant, the circumstances I have outlined imposed a moral
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[22] Keane v Corns [2021] VSCA 223 at [72]; James v Rost; Lanagan v Rost [2022] VSC 98 at [114]-[115].
duty upon her in favour of the applicant arising from the relationship between the applicant and her father, the absence of any provision for the applicant during the life of her mother and her father, the size and nature of the estate and the ability to provide for the applicant without affecting those beneficiaries with any competing moral claim.
47 I would next address s 8A of the Act, which enables the Court to have regard to the deceased's reasons for not making any provision for the applicant. As Porter AJ, with whom Brett J and I agreed, observed in Karimalis v Kapodistrias[23] this provision relates to the advantage of a testator or testatrix in knowing the relevant facts that inform the decisions made and their ability to judge. It facilitates the operation of the principle that some respect needs to be shown to the judgment of a testator or testatrix who has been shown to have duly considered the claims on the estate.
[23] [2022] TASFC 10 at [50] and following.48 In Karimalis v Kapodistrias Porter AJ went on to consider the related subjects of testamentary freedom and "community expectations". It is unnecessary to address those subjects at any length except to note that the legislation, while not authorising the redistribution of the testatrix's estate according to notions of fairness or equity, expressly imposes some limitation on testamentary freedom. I do not see that the reasons offered by Nita in her will undermine the moral duty which otherwise existed to any material extent. Whether or not she "considered" the applicant to be her step child, the applicant was her step child. The fact that the applicant was adopted by Sheila and Raymond should make no difference to her entitlement to provision. She must, in the circumstances of this case, be regarded in the same manner as if she had been Sheila and Raymond's natural child. To the extent that the clause in the will sheds light on the testatrix's own relationship with the applicant, her moral duty to the applicant arose principally from their respective relationships with Raymond. Had Raymond survived Nita, it would have been beyond doubt that he had a moral duty to the applicant.
49 The respondent, correctly in my respectful view, conceded that there was nothing in the evidence regarding the applicant's relationship with her late father which would have the effect of lessening his moral obligation to the applicant under the Act. There was a long period of estrangement between the applicant and her father. However, estrangement or even hostility between a testator or testatrix and an applicant does not terminate the obligation of the testator or testatrix to provide for the applicant.[24] Relationships may be complex and nuanced, and an overall view of the relationship between parent and child is to be considered and appraised in each case. In this case the reasons for the long period of estrangement were complicated and contributed to by both parties. I do not find it helpful to entertain notions of fault or responsibility for that state of affairs except to observe that, in the circumstances of this case, it did not in my judgment absolve Raymond Shields, and subsequently Nita Shields, of their respective moral duty to provide for the applicant. There was some conflicting evidence about the extent of their reconciliation, but I find that there was some repair in their relationship before Raymond's death and the fact of paternity arising from their lifelong bond remained an important factor.
[24] Foley v Ellis [2008] NSWCA 288 at [101]50 I regard it as more likely that the bulk of Nita's estate was derived from Raymond's estate. Although Raymond had retired by about the time they married, he owned a house and was in receipt of a pension. Nita did not engage in paid employment after the 1980's and the evidence from the respondent about what if any assets Nita had, for example following her divorce in 1967, was vague and inconclusive. No evidence was adduced by the respondent of what assets comprised Raymond's estate.
51 I accept that the home owned by the applicant is of substantial value. However, I do not regard it as excluding a claim. It is her long term family home. If she were to realise its value, she would face the prospect of having to purchase a replacement residence suitable to her needs and her
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standard of life. I accept also that this would likely require her to move from the area in which she is socially established. She is now aged 69. By modern standards, her superannuation fund, whether judged at the date of the testatrix's death or once adjusted by the property settlement, is relatively modest. Whilst she accepted that she had received other offers of employment, a comfortable retirement for her is a more than reasonable expectation.
52 The size and nature of the estate was such that there was ample scope to readily make provision for the applicant without affecting any competing moral claim against Nita's estate. A total of $150,000 was left to three charities. There was no evidence that the testatrix had any special relationship with or interest in any of the organisations to which she made substantial bequests. As deserving as those organisations were, it could not be said that their interests should prevail over the testatrix's duty to the applicant. Provision of almost $80,000 was made for the respondent, who admitted herself in evidence that she expected nothing from her sister.
53 I am satisfied that further provision should be made for the applicant. There was no obligation on the testatrix to treat the applicant equally with her siblings, but the provision made for them provides some guide as to what I regard as proper in this case. I do not see it as appropriate to disturb the gifts made to either Gary Shields or Robyn Shields. I would order further provision for the applicant in the total sum of $90,000. That amount will enable her to meet her dental expenses and undertake some of the work on her home before having to call on her savings and superannuation fund. The burden of the further provision should be borne by the charities and the respondent in roughly equal proportionate terms.
Premature distribution of the estate
54 One other issue remains to be addressed. The respondent fully distributed the estate before the expiration of the three month time limit for applications provided for by the Act, s 11. However, the Court retains jurisdiction to make provision from the estate notwithstanding that the estate was distributed: Easterbrook v Young[25]. Were it to be otherwise, proper claims under the Act could be defeated by premature distribution of the estate. As was said as long ago as 1949 by Vaisey J in Re Simpson (deceased)[26]:
"Duties and debts can be paid – there is no question about that – but no distribution to beneficiaries should be made while there is any possibility that an application under this Act will be made."
[25] (1977) 136 CLR 308 at 318[26] [1949] 2 All ER 826 at 828
55 Different considerations apply to a claim made out of time. I would refer also to the decision of the Full Court of the Supreme Court of South Australia in Brooks v Young[27]. In South Australia the time limit for claims under equivalent legislation was six months from the grant of probate. However, as to applications made within time, Doyle J, with whom Kelly and Bampton JJ agreed, stated:
"If the claim is made within six months of the grant of probate, then it will be determined in the ordinary course and may result in an order being made in respect of any part of the estate. Even if distributions have been made, including a final distribution, nevertheless an order for provision may be made in respect of assets distributed to beneficiaries under the will. That is the effect of the decision of the High Court in Easterbrook v Young, as confirmed in respect of the IFP Act in Blunden v Blunden and Broadhead v Prescott. This ability, to make an order for provision in respect of assets of the estate that have been distributed, is a product of the specification in s 10 that any order for provision operates as a codicil executed
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prior to the deceased’s death, and is recognised by s 14(3) of the IFP Act (citations
removed)."28[27] [2018] SASCFC 81; 361 ALR 329 at [64]
56 I was informed by counsel that two of the charitable beneficiaries, when they were informed that the distribution should not then have been made, returned the sums paid. The third has not yet done so. As to the basis upon which such a payment may then be held see Brooks v Young at [65].
57 Both parties made submissions concerning the credibility of the respondent's evidence about why the distributions were made. However, it is not an issue which requires resolution. I may make an order which affects any part of the estate, whether distributed or not.
Disposition and order
58 For those reasons I order:
(a) further provision be made for the applicant from the estate of Nita Eileen Shields by payment to her of the sum of $90,000; (b) the sum to be paid to the applicant is to be made by a payment of $24,000 from bequest made in the will for the Clifford Craig Medical Research Trust, $24,000 from bequest made in the will for the Royal Flying Doctor Service, $24,000 from bequest made in the will for the Camp Quality and $18,000 from the bequest made in the will for the respondent. 59 In accordance with s 9(2) of the Act, I direct that a certified copy of this order be made upon the probate of the will and for that purpose the respondent is to produce the probate of the will to the Registrar of the Court.
60 I will hear the parties further as to any consequential orders. Orders will be required as to the costs of the application. The whole of the net funds of the estate are taken up by the terms of the will and the provision ordered in favour of the applicant. As a result it will be necessary to determine where the burden of any costs order should fall.
Windeyer [1980] HCA 31, 144 CLR 490; Singer v Berghouse [1994] HCA 40, 181 CLR 201 at 208; Vigolo v
Bostin [2005] HCA 11, 221 CLR 191.
463 at 478-479.
Mann v Starkey [2008] NSWSC 264 at [25] and [29].
28 The equivalent provision in the Tasmanian legislation is s 9(3)
0
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