Re Flavel; Flavel v Flavel

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

IN THE MATTER of an Application pursuant to Part IV of the Administration and Probate Act 1958 as amended

- and –

IN THE MATTER of the Will and Estate of ALBERT GEORGE FLAVEL, deceased

BETWEEN:

S CI 2017 01049

PETER GEORGE FLAVEL (by his litigation guardian TOM JONES TRIMNELL)	Plaintiff
v
HEATHER LORRAINE FLAVEL (sued in her capacity as an Executor of the Will and a trustee of the Estate of ALBERT GEORGE FLAVEL, deceased)	Defendant

S CI 2017 01051

WENDY JOY FLAVEL (by her litigation guardian BRIAN RONALD PRESTON)	Plaintiff
v
HEATHER LORRAINE FLAVEL (sued in her capacity as an Executor of the Will and a trustee of the Estate of ALBERT GEORGE FLAVEL, deceased)	Defendant

S CI 2017 01052

GAIL MARGARET PANOUTSOS	Plaintiff
v
HEATHER LORRAINE FLAVEL (sued in her capacity as an Executor of the Will and a trustee of the Estate of ALBERT GEORGE FLAVEL, deceased)	Defendant

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JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	11-21 June 2019, 28 June 2019
DATE OF JUDGMENT:	5 February 2020
CASE MAY BE CITED AS:	Re Flavel; Flavel v Flavel
MEDIUM NEUTRAL CITATION:	[2020] VSC 19

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FAMILY PROVISION — Where testator made limited provision for three of his four children — Largest asset of the estate a family farm — Family farm left to fourth child — Adequate provision for proper maintenance and support — Where adult children suffer intellectual disability — Whether adult child estranged from deceased — Administration and Probate Act 1958 (Vic), ss 90, 91, 91A and 97 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Crofts Ms F Cockram	Taits Legal
For the Defendant	Ms C Sparke QC Mr M Goldblatt	Goldsmiths Lawyers

HER HONOUR:

What are these cases about?

The three proceedings before the Court are concurrent claims for family provision from the estate of Albert George ‘Bert’ Flavel (who, without any disrespect, I will refer to as ‘Bert’)[1] pursuant to Part IV of the Administration and Probate Act 1958 (Vic). Bert died on 21 May 2016, leaving an estate which is now valued at over $5 million. The Plaintiffs are three of Bert’s four children, Peter Flavel (‘Peter’), Wendy Flavel (‘Wendy’) and Gail Panoutsos (‘Gail’). The Defendant to all three claims is Bert’s fourth child, Heather Liston (‘Heather’), in her capacity as executor of his estate.
[1]With no disrespect to those involved, the Court will refer to the deceased, his wife, and their children by their first names throughout this judgment.

Bert’s last will and testament divided the estate approximately 89.5% in favour of Heather, 5.15% in favour of each of Peter and Wendy, and 0.2% in favour of Gail. The Plaintiffs challenge that distribution on moral obligation grounds. There are no other beneficiaries or claims upon the estate.

The three claims were heard before the Court together, and evidence in one claim was considered to be evidence in all.

Background
The Deceased – Bert

Bert was born on 16 July 1937. He was the owner and occupier of farmland located in Western Victoria at 324 Flavel Road, Jeparit (the ‘Farm’). Bert inherited the Farm from his father, he resided and worked there for most of his life. At the time of Bert’s death, the Farm comprised approximately 2,200 acres of land, which was used for a mixture of cereal crops and sheep grazing.

Bert married Vera Lorraine Flavel (‘Lorraine’). Together they had four children, who are the parties to this dispute. The marriage failed in or about 1994 and Lorraine moved away from the Farm to nearby Nhill. Lorraine passed away in January 2016.

Following several hospital visits in 2013, Bert entered a nursing home in Nhill in November 2014 where he remained until he died on 21 May 2016.

The parties
Peter Flavel

Peter George Flavel was born on 16 December 1964. He is the eldest child of Bert and Lorraine. Peter has suffered from an intellectual disability from a young age. Peter grew up on the Farm, where he lived until he was about 15 years old. At age 15 he moved to Pleasant Creek Colony in Stawell. Pleasant Creek Colony was an organisation administered by what was then the Department of Mental Hygiene which accommodated children and young people with intellectual disabilities. Whilst at Pleasant Creek Colony Peter attended Pleasant Creek Special School and learnt employment skills on a nearby farm. Peter remained at Pleasant Creek Colony until approximately 1986. Peter does not have any formal school qualifications, and describes his reading and writing skills as poor.

Peter worked on the Farm for some fifteen years after returning from Pleasant Creek Colony. He received payment from Bert of approximately $3,000 per year in recognition of that work. Peter understood and accepted that Bert limited this payment so as not to affect Peter’s means tested disability pension. Bert also paid for food and fuel, and never charged Peter rent to reside at the Farm.

Peter left the Farm in or around 2011, when he moved to Nhill to live with his mother and to care for her. By all accounts, Bert was well aware of these arrangements, however there was a dispute between the parties concerning the exact circumstances in which Peter left. Peter currently resides in Nhill, in a house that he co-owns with Wendy. The house was left to Peter and Wendy by Lorraine upon her death in January 2016. Peter receives a disability pension but has no other source of income. He has recently applied for further assistance from the National Disability Insurance Scheme (‘NDIS’). At the time of trial that application remains outstanding.

Wendy Flavel

Wendy Joy Flavel was born on 28 April 1976. Wendy also suffers from an intellectual disability, possibly associated with hydrocephaly suffered as a baby. As a child, Wendy was regularly sick, and suffered vomiting attacks for many years. Wendy’s vomiting attacks continued until about 2007, when she was prescribed medication to manage them. She started attending Nhill Primary School in or about 1984 and then attended Nhill Secondary School. As a result of her sickness Wendy missed many days of school and eventually left in year ten.

Wendy left the Farm when her parents separated in 1994. She went to live with Lorraine in Nhill, and has remained in Nhill since then. Wendy currently resides with her partner, Mr Gary Judd, in a house which is co-owned by Mr Judd and his sister. Wendy is employed as a shop assistant at Snappy Seconds, a shop managed by Cooinda Disability Services. At the time of Bert’s death she was also employed at a giftware shop owned by Ms Jennifer Meek, but has since left that role. Both roles involve ongoing supervision in a supported employment environment. Wendy supplements her income with a means tested disability pension, and receives weekly support from the NDIS.

Gail Panoutsos

Gail Margaret Panoutsos (nee Flavel) was born on 14 May 1980. She is Bert and Lorraine’s youngest child. Gail also grew up on the Farm. She briefly moved to Nhill in 1994 when her parents separated, but returned to the Farm about one year later. Gail attended school until year 10 or 11, after which she undertook a hairdressing course in Melbourne and Warrnambool. The cost of that course, approximately $10,000, was paid by Bert.

Gail resided in Warrnambool for approximately ten years, before moving to New Zealand in or about 2007. Gail currently remains in New Zealand with her husband, Mr Nick Panoutsos, whom she married in February 2014. They have two children aged eight and six. Throughout the period in which she lived in Warrnambool, and since moving to New Zealand, Gail’s relationship with her father was strained. More will be said of that relationship later.

Between 2008 and 2015 Gail owned and operated a hair design business in New Zealand. Throughout that time she undertook further study, and completed certificates in Small Business Management and in Applied Small Business, Growth and Development. Since 2015 Gail has worked for Healthcare New Zealand as a support worker for accident victims. She has been studying a Bachelor of Applied Social Work since 2016, which she expects to complete in the coming year.

Heather Liston

Heather Lorraine Liston (nee Flavel) was born on 21 June 1966. She is the eldest daughter of Bert and Lorraine. Heather grew up on the Farm, and attended a local primary and secondary school. After leaving school Heather held several different jobs, and started her own landscaping and gardening business. In 2005 Heather purchased a house in Nhill, where she lived until it was sold in 2014. Heather visited the Farm regularly and provided assistance and care to Bert, from at least 2011 until he went into care in 2014.

On 20 June 2013 Heather was appointed power of attorney over Bert’s affairs alongside Mr Philip Lipshut, Bert’s solicitor. Around that time, Bert entered into a share-farming arrangement with Mr Ian Keller, a local farmer, as he was no longer able to productively work the Farm himself. Heather came into conflict with Mr Keller, as well as Gail and her uncle, David Flavel, over the manner in which Bert’s affairs were managed. That conflict resulted in proceedings before the Victorian Civil and Administrative Tribunal (‘VCAT’) in late 2014 and early 2015. In those proceedings, Gail sought to have Heather removed as power of attorney over Bert’s affairs and replaced by David Flavel. The result of those hearings was that independent administrators were appointed to manage Bert’s affairs.

Although the VCAT proceedings are not strictly relevant to the present application, they provide context to the relationship between the parties, and their relationship with Bert in the latter part of his life. The Court does observe that the evidence given before it demonstrated unrest and discontent between Gail and Heather. The Court considers that these factors do not immediately bear upon the application before it, namely Bert’s moral obligation to his children and the extent, if any, the provision in his will ought be amended to reflect community standards as to that moral obligation.

Heather returned to live on the Farm after Bert went into full time care in 2014. She explained that, for insurance purposes, someone had to be living on the Farm at least three days per week. Heather married Mr Robert Liston in 2015. They have no children. Both Heather and Mr Liston continue to reside at the Farm.

The estate and Bert’s will
The estate

Probate of Bert’s estate was granted on 14 October 2016. In accordance with the terms of Bert’s last will and testament, dated 25 October 2012, Heather was appointed executor of the estate alongside Mr Lipshut. Mr Lipshut was discharged as an executor of the estate by order of this Court on 8 May 2018, and was subsequently removed as a defendant to the present proceedings.

The parties agreed that, as at 29 May 2019, the value of Bert’s estate was as follows:

Asset

Value ($)

Farm land – 324 Flavel Road, Jeparit

4,250,000

Unit – 18/20 Brougham Street, Nhill

165,000

Plant, equipment and livestock on the Farm

373,727

Motor vehicle

25,700

Sundry furniture and effects

24,511

Investments

101,608

Funds invested or held by estate solicitor

225,066

Total:

5,165,612

There was no evidence of any significant current liabilities of the estate. It is foreseeable that certain liabilities will arise or become payable, for example tax payable on income for the financial year ended 30 June 2019 and legal costs associated with this proceeding. The possibility of capital gains tax liability (‘CGT liability’) accruing upon the sale of the Farm, or parts thereof, was raised by the Defendant towards the end of the trial of this proceeding. No evidence was presented by either party as to the likely tax treatment upon the sale of any parcels of Farm land. In the absence of such evidence it is impossible for the Court to form conclusions regarding the likely impact of CGT liability nor is it appropriate to do so. Many and varied options may be available to the parties to give effect to any orders made by this Court. It is not for the Court to seek to anticipate what the parties may decide and engage in speculative tax planning.

The will

By his last will and testament, Bert’s estate was distributed as follows:

(a)All farming land, plant, equipment and livestock was left to Heather. Total value $4,623,727, or 89.51% of the total current value of the estate.
(b)A gift of $10,000 was left to Gail, 0.19% of the total current value of the estate.
(c)The remainder of the estate was split between Peter and Wendy in equal portions. On its current value, those portions are $265,942.5, or 5.15% of the total current value of the estate each. Pursuant to clause 3(c) of the will, Peter’s portion was to be held by way of a discretionary trust for his maintenance and benefit.

Claims made & orders sought
Peter

In his Originating Motion filed 24 March 2017 Peter sought the following relief:

(a)a declaration that he is a person for whom Bert had a responsibility to make provision;
(b)an order for provision to be made out of Bert’s estate of at least 40%;
(c)such further or necessary and consequential orders as the Court sees fit; and
(d)costs.

In closing submissions, Peter’s claim on the estate was narrowed to an amount of not less than $1,000,000, that is 19.4% of the net estate at current valuation.

Wendy

In her Originating Motion filed 24 March 2017 Wendy sought the following relief:

(a)a declaration that she is a person for whom Bert had a responsibility to make provision;

(b) an order for provision to be made out of Bert’s estate of at least 30%;
(c)such further or necessary and consequential orders as the Court sees fit; and
(d)costs.

In closing submissions, Wendy’s claim on the estate was narrowed to an amount of not less than $750,000, that is 14.5% of the net estate at current valuation.

Gail

In her Originating Motion filed 24 March 2017 Gail sought the following relief:

(a)a declaration that she is a person for whom Bert had a responsibility to make provision;
(b)an order for provision to be made out of Bert’s estate of at least 15%;
(c)such further or necessary and consequential orders as the Court sees fit; and
(d)costs.

In closing submissions, Gail’s claim on the estate was narrowed to an amount of not less than $250,000, that is 4.8% of the net estate at current valuation.

Legal principles

In Victoria, applications for family provision are governed by the terms of Part IV of the Administration and Probate Act 1958 (Vic) (the ‘Act’).

The terms of Part IV give rise to a two-stage enquiry:

(a)firstly, it must be established that the Court has jurisdiction to make an order for further provision from the estate; and
(b)secondly, the Court exercises its discretion as to the nature and size of further provision.[2]

[2]Singer v Berghouse (No 2) (1994) 181 CLR 201, 208 (Mason CJ, Deane and McHugh JJ).

As was observed by the High Court in Singer v Berghouse (No 2), there is considerable overlap between those stages:

Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.[3]

[3]Ibid, 210 (Mason CJ, Deane and McHugh JJ).

Part IV of the Act was amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), which amendments apply in relation to all deaths occurring on or after 1 July 2015. Among other changes, the amendments to the Act introduced two fetters upon the Court’s discretion to award further provision from the estate:

(a)firstly, with respect to certain applicants, the court must consider the degree to which they are not capable, by reasonable means, of providing adequately for their own proper maintenance and support;[4] and
(b)secondly, with respect to all applicants, a family provision order must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support.[5]
[4]Administration and Probate Act 1958 (Vic) s 91(4)(c).
[5]Ibid, s 91(5)(a).

Jurisdiction to make an order

Certain matters must be satisfied before the Court can make an order for family provision. Section 91(2) of the Act provides:

The Court must not make a family provision order under subsection (1) unless satisfied—
(a)       that the person is an eligible person; and
(b)in the case of a person referred to in paragraphs (h) to (k) of the definition of “eligible person”, that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and
(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, whether by—
(i)        the deceased’s will (if any); or
(ii)       the operation of Part IA; or
(iii)      both the will and the operation of Part IA.

Eligible persons

Section 90 of the Act lists several categories of person who fall within the definition of ‘eligible person’. For present purposes, two of those definitions are relevant:

“eligible person” means—
…
(b)a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was—
(i)        under the age of 18 years; or
(ii)       a full-time student aged between 18 years and 25 years; or
(iii)      a child with a disability;

…
(f)a child or stepchild of the deceased not referred to in paragraph (b) or (c);

‘Disability’, for the purposes of the definition of eligible person at paragraph (b), is further defined as follows:

“disability” means a disability—
(a)that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b)       the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities—
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self-care;
(vi)      self-management; and
(d)the impairment or impairments affect the person's capacity for social or economic participation;

Moral duty and adequacy of provision

Sections 91(2)(c) and 91(2)(d) provide that an order for further provision may only be granted where:

(a)the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(b)provision in the will is not ‘adequate’ for the applicant’s ‘proper maintenance and support’.

The terms ‘adequate’ and ‘proper maintenance and support’ have been the subject of significant judicial consideration.

The classic meaning attributed to those terms is that enunciated in Bosch v Perpetual Trustee Co, where Lord Romer observed, with respect to analogous provisions in the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (UK):

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”.[6]

[6][1938] AC 463, 476, cited in Re Brimelow; Brimelow v Alampi (2016) 50 VR 219, 222 [12] (McMillan J).

Similar observations were made by Dixon CJ of the High Court of Australia in Pontifical Society for the Propagation of the Faith v Scales:

Much has been written about the principles which should guide the Court in administering the provisions of the Testator's Family Maintenance legislation. But I do not think that any of the chief expositions give any foundation for applying the provisions to a case like this. It has often been pointed out that very important words in the statute are “adequate provision for the proper maintenance and support” and that each of these words must be given its value. “Adequate” and “proper” in particular must be considered as words which must always be relative. 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. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance.[7]

[7](1962) 107 CLR 9, 19.

In Re Marsella, McMillan J of this Court recently explained the distinction between the two terms as follows:

Generally, ‘proper maintenance and support’ means provision from the estate not simply to alleviate poverty, but also to take into account the vicissitudes of life, whereas ‘adequate’ means something that it may be insufficient for an applicant’s proper maintenance. What constitutes adequate provision for the proper maintenance and support of an applicant involves a consideration of the mandatory and discretionary matters under the Act, having regard to the meaning of these terms as developed in the jurisprudence of the family provision jurisdiction. This also involves a consideration of the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferred dispositions. In determining these questions, a balance must be struck between the established claims of named beneficiaries, the needs of an applicant, the size of the estate, and the benefits provided to an applicant and others with legitimate claims upon the testator. The Court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants but goes no further than making adequate provision for the proper maintenance and support of an applicant.[8]

[8]Re Marsella; Marsella v Wareham [2018] VSC 312, [82] (citations omitted).

Whether the testator failed to make adequate provision for an applicant must be assessed by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of death.[9] The task for the Court, at this stage, is to place itself in the position of the testator, treating them as ‘a wise and just, rather than fond and foolish, husband and father.’[10]
[9]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ).
[10]Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478 (Lord Romer); cited in Vigolo v Bostin (2005) 221 CLR 191, 200-201 [16] (Gleeson CJ).

The Court’s discretion – factors to be taken into account in making a family provision order

The legislation provides several factors to be taken into account when making a family provision order. Some of those are factors to which the Court must have regard, and others are factors that it may consider when making an order.

The factors which inform the exercise of the Court’s discretion are those that existed at the time of trial.[11]
[11]See, eg, Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VR 225, 232 (Lush J); Slack v Rogan (2013) 85 NSWLR 253, 285 [127] (White J).

Factors to which the Court must have regard

Section 91A(1) of the Act provides that, 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.

Further, s 91(4) provides that, when determining the quantum of a family provision order, the court must also have regard to:

(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) or (g) 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; and
(d)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of “eligible person”, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support at the time of the deceased’s death.

As observed, an order for provision also must not provide for an amount greater than is necessary for the applicant’s proper maintenance and support.[12]
[12]Administration and Probate Act 1958 (Vic) s 91(5)(b).

Those provisions reflect the balance that the Court must consider between the extent of the deceased’s moral duty, on one hand, and the extent to which the distribution of the estate fails to make adequate provision, on the other. In relation to adult children who do not suffer from a disability, the Court must also consider the degree to which that person is not capable, by reasonable means, of providing adequately for his or her own proper maintenance and support. This provision, introduced in the 2015 amendments, addresses concerns regarding claims by adult children who are not otherwise suffering financial hardship. It was said by then Attorney-General Robert Clarke in the speech accompanying the second-reading of the Justice Legislation Amendment (Succession and Surrogacy) Bill:

[T]he bill makes a distinction between applications brought by a child or stepchild of the deceased who is under 18 or a full-time student up to the age of 25 or who has a disability and, on the other hand, a child or stepchild who does not fall under one of these categories. Most adult children will fall outside these categories. In such cases, in determining the amount of provision, if any, to be ordered, the court must take into account, amongst other things, the degree to which the applicant is not capable, by reasonable means, of providing adequately for their own proper maintenance and support. 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.[13]
[13]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clarke, Attorney-General).

Factors to which the Court may have regard

Section 91A(2) lists several additional factors to which the Court may have regard in the exercise of its discretion:

(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.

What constitutes proper maintenance and support will turn on the facts of any given case, involving consideration of each of the factors extracted above. In Re Brimelow, McMillan J observed:

What constitutes proper provision for the maintenance and support of an applicant involves a consideration of the station in life of the applicant, the age, sex, health and financial resources of the applicant, the size and nature of the testator’s estate and the totality of the relationship between the applicant and the testator and the relationship between the testator and other persons who have legitimate claims upon his or her bounty.
In determining what is adequate for the proper maintenance and support of an applicant, the Court has regard to the necessities or needs of the applicant and his or her own capacity and resources for meeting them. This also involves a consideration of 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. Thus, in determining this question, a balance must be drawn between the established claims of the named beneficiaries, the needs of the applicant, the size of the estate and the benefits provided to the applicant and others with legitimate claims upon the testator. The Court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants. The Court’s role goes no further than making adequate provision for the proper maintenance and support of an applicant.[14]

[14](2016) 50 VR 219, 224-225 [20]-[21].

Three specific issues raised in this case warrant further exposition, each of those issues goes to a factor to which the Court may have regard in the exercise of the its discretion:

(a)firstly, the relevance of Bert’s intention to keep the Farm intact;
(b)secondly, the ‘character and conduct’ of the applicants; and
(c)thirdly, the relevance of state support in the form of disability benefits already received by Peter and Wendy.

The testator’s intention

When deciding whether to make an order for family provision, the Court’s approach is to be careful and conservative, with deference to the terms of the testator’s will and their stated intentions.[15] Of course, the testator’s expressed intentions as contained in the will are but one of several factors for the Court to take into account, the weight to be attached to such expressions will depend upon the specific circumstances of the particular case.[16]
[15]McKenzie v Topp [2004] VSC 90 [63] (Nettle J), cited in Davison v Kempson & Ors [2017] VSC 173, [27(c)] (Zammit J), both cases considering the relevant law prior to the 2015 amendments.
[16]Re McKenzie [2017] VSC 792, [50] (McMillan J).

In cases where a farm is the principal asset of an estate, it is not uncommon for the farming property to have been within a family for several generations. In such circumstances a testator will often structure their will such that the farm is kept within the family. Several authorities provide useful guidance as to the Court’s consideration of the testator’s intention in such claims.

In Young v Young,[17] Malcolm CJ of the Supreme Court of Western Australia heard an application for family provision from two daughters of the deceased, who had left the largest asset of the estate, a farm, to her son. The daughters had been left the deceased’s jewellery, furniture and personal effects, which were of negligible value. The daughters also each received a charge over the farmland to the value of $20,000 payable to them on the tenth anniversary of the deceased’s death, and a right to reside at the farmland free of charge. The son had worked on the farm for some years, for minimal remuneration, in the expectation that he would inherit it. Meanwhile, the deceased used income from the farm to pay for her other children’s education in order to ‘give them a start in life’.
[17](Supreme Court of Western Australia, Malcolm CJ, 26 April 1989).

Malcolm CJ dismissed the application. With regard to the deceased’s intention to preserve the family farm, his Honour said:

According to the evidence before me I am satisfied that it was very common in farming families to take the view that it was the moral duty of a testator or testatrix to discriminate between male and female children in certain circumstances. Where the male had foregone wages, worked on the farm and help [sic] build it up in the expectation of inheritance and the female children were supported by the family through their education to the point where they were qualified to obtain employment which would enable them to live comfortably and independently of the farm, the moral duty was discharged by the male inheriting the farm. This is such a case. No doubt the situation would be different if a son left the farm to become a nuclear physicist and a daughter chose to remain on the farm and run it… Each of these cases is dependent on their own facts and circumstances.[18]

[18]Ibid, 31.

An appeal by the deceased’s daughters was also unsuccessful. On appeal Pidgeon J observed:

In my view a wise and just testator, who has as one of his assets a farm on which he has resided or occupied for the greater part of his life and personally conducted and which is subsequently conducted by one of his children, would wish to make provision to preserve that farm even if it gives a greater benefit to the beneficiary conducting the farm. This would, a fortiori, be the position if the farm has been in the family for a number of generations.
It would still be necessary to make proper provision for other members of the family. This is often achieved by making provision that there be annuities charged on the farming property or legacies payable, either immediately, or charged on the farming property and paid over a period. As the trial judge pointed out this is not a question of sexual discrimination. The appropriate provision may be made in favour of a daughter conducting the farm. His Honour said he was satisfied on the evidence before him that it was very common in farming families to take the view that it was the moral duty of a testator, in certain circumstances, and in the circumstances that were before him, to discriminate in favour of the person carrying on the farm. I would consider that this is a fact known to the court and would not necessarily have to be established by evidence.[19]

[19]Young v Young (Court of Appeal of Western Australia, Wallace, Pidgeon and Walsh JJ, 3 April 1990) 5‑6.

The observations in Young v Young were repeated by Pidgeon J in Roberts v Roberts.[20] That case was an appeal against the decision of a commissioner with respect to family provision claims on the estates of a husband and wife. The largest asset of the estates was farmland, which the sons of the deceased had expected would be left to them.
[20](1992) 9 WAR 549.

The appeal was dismissed. Pidgeon J held that the commissioner’s observation that ‘the fact that the assets of the estate are substantially farming lands and that the sons are seeking to continue farming, does not permit the court to discriminate in favour of those sons as against other children with competing interests’, was accurate.[21] His Honour rejected the suggestion that there had ever been a distinction between male and female children of farming families:

I would see it as always having been the law that in proper circumstances provisions can be weighted to enable some members of a family to inherit a farming property formerly carried on by the family, provided that proper provision is made for those with competing claims.[22]

[21]Ibid, 559.

[22]Ibid.

Roberts v Roberts was approved and applied in this jurisdiction in Blair v Blair.[23] Blair v Blair concerned an application for further provision brought by one of two sons of the deceased. The deceased’s other son was defendant to the proceeding. Both sons were adults and, the Court found, were capable of supporting themselves financially. The plaintiff had received approximately twenty percent of the deceased’s estate, the remainder, principally comprising a farm, was bequeathed to the defendant. The deceased was a farmer who had been assisted on the farm from time to time by the plaintiff, but the defendant had lived and worked on the farm in a more consistent capacity. Both the deceased and the defendant had contributed financially to the development of the farm, and had shared in its profits.
[23][2002] VSC 95.

Justice Harper allowed the plaintiff’s application and ordered a small increase in provision for the plaintiff. His Honour was concerned in particular with the balance between testamentary freedom and moral duty, of which it was said:

It is in these circumstances not surprising that the effect of [the deceased’s] will is to leave the farm to [the defendant]. In my opinion, this reflected his testamentary wishes. That being so, I have no jurisdiction to interfere with them unless I am satisfied on the balance of probabilities that their fulfilment would amount to an abuse of [the deceased’s] freedom of testamentary disposition. Such an abuse will arise if by leaving the farm to [the defendant], [the deceased] was in breach of his moral duty to [the plaintiff]. Once such a breach is established, however, [the plaintiff] is entitled to such amount as is adequate to provide for his proper maintenance and support. If that amount cannot be provided without selling the whole or part of [the deceased’s] interest in [the farm], then so much must be sold as is required to remedy the breach. [The deceased’s] wish that [the defendant] have the farm as the third generation of the family to run [the farm] must in those circumstances yield to [the plaintiff’s] entitlement.[24]

[24]Ibid, [71].

His Honour did not see any conflict between his observations and those made by Pidgeon J in Roberts v Roberts and Young v Young. After extracting those observations, Harper J observed:

It is a very human thing to derive pride from the fact that for generations the same property has remained within the same family. It is likewise a natural human desire to pass that property from one generation to the next. In ascertaining his or her moral duty, a testator might properly take such considerations into account. But only to a point. The duty towards a number of possible beneficiaries might be ascertained, and the boundaries of the duty between each possible beneficiary might be set, after those considerations among many others have been placed in the scales. Having weighed them all, it may nevertheless be that the duty can only be discharged if the property is sold. If the deceased had responsibility to make adequate provision for a person’s proper maintenance and support, then that duty must be fulfilled. It is no excuse that the duty was incompatible with the preservation of the family farm.[25]

[25]Ibid, [74].

Justice Harper ordered a modest increase in provision to the plaintiff, in recognition of the fact that the defendant had, throughout the deceased’s lifetime, benefited from his joint use of the farmland from the deceased.

It is clear from the authorities that although the testator’s intention to maintain the family farm may be a relevant consideration, that intention is not paramount and will not preclude further provision where the testator’s moral duty has not otherwise been fulfilled.

Character and conduct

The conduct of an applicant may be relevant to an application under Part IV of the Act in two ways:

(a)diminishing the extent of the deceased’s moral duty toward the applicant;[26] or
(b)as a factor to which the court may have regard in the exercise of its discretion to order further provision from the estate.[27]

[26]See, eg , Delacour v Waddington (1953) 89 CLR 117, 126–127 (Dixon CJ, Kitto and Taylor JJ).

[27]Administration and Probate Act 1958 (Vic) s 91A(2)(k).

The practical effect of both is the same – diminishing an applicant’s entitlement to further provision. The applicant’s conduct may be taken into account in refusing to make an order entirely, or in reducing the quantum of relief to which they are entitled.[28] The onus of proof to establish disentitling or diminishing conduct is upon the party resisting the application for provision.[29]
[28]Re S (dec’d); H v T [1975] VR 47, 55-57 (Menhennitt J); Allan v Allan [2001] VSC 242, [67] (McDonald J).
[29]Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102, 105 (Herring CJ); Re Paulin [1950] VLR 462, 473 (Sholl J).

The relevant ‘character or conduct’ for the purpose of the court’s assessment is:

(a)the conduct of the applicant toward the deceased; or
(b)character or conduct which shows that the applicant’s need is a result of their own default.

In this respect it was said by Jordan CJ of the Supreme Court of New South Wales in Re Will of Gilbert (dec’d):

I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default.[30]

[30](1946) 46 SR(NSW) 318, 321.

In determining whether conduct is sufficient to disentitle relief the Court must balance the conduct itself with the applicant’s need for further provision from the estate. The greater the applicant’s need, the more serious the conduct must have been for it to be considered to be disentitling. That balance was described by Gibbs J in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd as follows:

The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision. The appellant has made out a strong case for relief. His conduct, although not meritorious, consisted in a failure to take positive steps to see and assist his mother rather than in any actual wrongdoing and was contributed to by the actions of the testatrix, which from his point of view were unreasonable and unfriendly. On balance, and having given careful consideration to all the circumstances, I have reached the conclusion that his conduct was not such as to disentitle him to relief.[31]

[31]Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 156.

In Hughes, the testatrix had left her entire estate to charity. Her only child, a son aged 54, sought provision from the estate. The son was able bodied, but had virtually no assets or income. As observed in the above passage, the alleged disentitling conduct consisted of a failure to take steps to see and assist the testatrix after she and the applicant ceased living together some three years before her death. The High Court held that, although such conduct was ‘unfilial’, it was not sufficient to disentitle the applicant to provision from the estate where his needs were significant.

A common form of conduct which is said to disentitle an applicant to further provision from the estate is estrangement from the deceased. There is a wealth of authority relevant to the question of estrangement, which was reviewed by Hallen AsJ of the Supreme Court of New South Wales in Andrew v Andrew and helpfully summarised as follows:

(a)The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the moral claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case…
(b)The nature of the estrangement and the underlying reason for it is relevant to an application under the Act…
(c)There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to “ample” provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(d)The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one “who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”…
(e)As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 per Kirby P (with whom Hope and Priestley JJA agreed),
If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.[32]

[32][2011] NSWSC 115, [74] (citations omitted), reversed on a separate point on appeal (2012) 81 NSWLR 656.

Hallen AsJ held that a daughter who had been estranged from the testator, her mother, for more than 35 years was not entitled to further provision under the Succession Act 2006 (NSW). That decision was reversed on appeal. The majority of the Court of Appeal considered that the trial judge placed too great an emphasis upon the terms of the testator’s will and the mere fact of estrangement, without considering its causes. Basten JA (with whom Allsop P agreed) did not reject Hallen AsJ’s analysis of the law, but added:

Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of “love and support” from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their ageing than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother’s will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.[33]

[33](2012) 81 NSWLR 656, 666 [53].

The observations of Hallen AsJ at first instance and of Basten JA on appeal in Andrew v Andrew were quoted and approved in this jurisdiction by McMillan J in Brandon v Hanley.[34] I agree that those observations reflect the current approach of the Courts to the impact of estrangement upon a family provision claim in Victoria.

State support

[34][2014] VSC 103, [23]-[25].

The relationship between state support received by an applicant and ‘need’ for the purposes of Part IV of the Act is a vexed issue. A person, particularly an adult person, to whom a moral duty will typically be owed will often be a person who is also entitled to support from the government. A question arises whether a testator is entitled to take account of those entitlements when distributing his or her estate, and rely upon the public purse to support an eligible person for whom they would otherwise have a moral duty to provide.

Different approaches to this question are reflected in the authorities. The general tenor of the authorities is that the entitlement of an applicant to state support should not itself be regarded as a substitute for the testator’s moral obligation, but is nonetheless a factor to which the Court may have regard in the exercise of its discretion, particularly where the estate is small. As is the case with many issues in this jurisdiction, the relevance of state support will vary on a case-by-case basis.

The leading Victorian case is King v White.[35]In that case, Hedigan J considered an application by a widow for further provision from the deceased’s estate. His Honour observed, with respect to the relevance of an old-age pension received by the applicant:

There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator’s duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known to the community that the receipt of the old age pension is now assets and means tested. Indeed, in this very case, this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow.[36]

[35][1992] 2 VR 417.

[36]Ibid, 424.

Hedigan J drew support for that proposition from the judgment of Roth J of the Supreme Court of New South Wales in Shah v Perpetual Trustee Co, where it was said:

I think that a wise and just testator would make provision for his widow out of his estate without regard to a means tested pension. The position could be different in the case where the competing claims on the testator would cause strains on his capacity to provide. That is not this case.[37]

[37](1981) 7 Fam LR 97.

Roth J’s observations have also been endorsed by the Full Court of the Supreme Court of Western Australia in Bondelmonte v Blanckensee, where it was said:

… there is a moral duty upon a father to provide for his daughter, greater than his neighbour’s (that is society’s) duty to provide. In other words, welfare payments made to a daughter do not relieve a father of his moral responsibility to her, especially when he had a substantial estate with no other moral claims upon it.[38]

[38][1989] WAR 305, 318 (Wallace J, Nicholson J agreeing).

An alternative, more permissive, approach is evident in other Australian jurisdictions. In Re Pope,[39] Bray CJ of the Supreme Court of South Australia considered an application by the wife of the deceased for further provision from his estate under the Inheritance (Family Provision) Act 1972 (SA). The applicant and her son (by the deceased) had each received $100 from the estate, the remainder of which was donated to a local hospital. Neither the son nor the hospital contested the application. At the time of the application, the applicant was in receipt of a widow’s pension. Bray CJ held that receipt of state support did not negate the deceased’s moral duty to provide for his wife, but nonetheless considered the entitlement to support to be a relevant consideration in determining relief:

I could give her an annuity to be paid out of income and, in so far as income is insufficient, out of capital, leaving the residuary gift to the hospital to stand. Such an annuity would have to be of a greater amount than $32.40 a week or it would merely replace the pension without conferring any real benefit on her. I do not think that I ought to regard the right to the pension as a substitute for the obligation on the deceased to maintain her, though it is a fact to be taken into account (In re Beard (deceased); Chapman v Elders Trustee and Executor Co, Ltd.). She says that she has high blood pressure but that she thinks she could take a job, but again I do not think that whatever capacity she has to earn should be regarded as a total or even a partial discharge of her husband’s moral obligation towards her. Nor do I see why I should make an order which would operate primarily in relief of the taxpayer: cf. In re Whiting. The position, as I see it, is that if the testator had performed what I must find on the evidence before me to have been his moral duty to the plaintiff, and if he had been fully aware of all the relevant circumstances, an assumption which I must make for the purpose of working out an appropriate order… he would have calculated on her becoming entitled to a widow’s pension and would have left her the bulk of the capital of his estate so that she could supply herself as far as possible with whatever she needed to make a comfortable home for herself in her widowhood without disentitling herself to the pension.[40]

[39]Re Pope; Pope v Public Trustee (1975) 11 SASR 571.

[40]Ibid, 574.

A similar approach was adopted by Young J (as he then was) of the Supreme Court of New South Wales in Parker v Public Trustee.[41] That case also concerned claim for further provision by the deceased’s widow, who took the benefit of an old age pension. Young J took the view that the authorities spoke to the following seven principles:
[41](Supreme Court of New South Wales, Young J, 31 May 1988).

1.The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of dependants upon the public purse. See e.g. Liebermen Morris (1944) 69 CLR 69.
2.It is no answer to a claim that a deceased failed to make proper provision for his dependant that the dependant is entitled to a pension under the Social Security Act. Re Hunter [1940] GLR 100, 101 at 8.
3.When making provision a wise and just testator usually makes his will without regard to any means-tested pension that a beneficiary may be able to receive. Shah v Perpetual Trustee Co (1981) 7 Fam LR 97, 100 and Dickie v Dickie an unreported decision of Master Gressier handed down on 21 February 1986 at p 9.
4.A wise and just testator however when formulating his bequests does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions. Re Lawford [1954] NZLR 1142, 1145.
5.A testator has no duty to organise his affairs so that his beneficiaries receive the maximum benefit from his estate so long as he makes adequate provision for them.
6.It would be contrary to the policy of the Act for the Court to so make an order that there was thrown on to the public purse the support of a dependant to the advantage of a “wealthy” beneficiary. See e.g. in the Family Law area Re F (1982) 8 Fam LR 29.
7.Where the estate is small and especially where there are a series of claimants on the testator’s bounty it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement. See again the analogous cases in the Family Law area Re Brady (1978) FLC 90-513 and Re Kauiers (1986) 11 Fam LR 41.[42]

[42]Ibid, 7-8.

Young J considered that the case before him fell squarely within his seventh guideline, as the estate was small and any benefit received by the deceased’s widow would likely replace part of her pension. However, that fact was given minimal weight in light of all of the circumstances of the case, and his Honour awarded substantial further provision from the deceased’s estate.

Similar observations have been made in more recent cases before the Supreme Court of New South Wales:

(a) In Whitmont v Lloyd, Bryson J said:

The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for protection of private interests and serves public policy… In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part.[43]
[43](Supreme Court of New South Wales, Bryson J, 31 July 1995), 14-15; cited in King v Foster (Court of Appeal of New South Wales, Sheller JA, 7 December 1995).

(b) In Gunawardena v Sri Kantha, Young CJ reviewed the authorities handed down since Parker v Public Trustee and agreed with the submission that:

The better and perhaps prevailing view seems to be that the court may take social service benefits into consideration, at least in cases where… the estate is relatively small.[44]

[44][2007] NSWSC 151, [60].

That approach has also carried favour in other jurisdictions. In Oswell v Jones,[45] Chesterman J of the Supreme Court of Queensland considered an application for further provision by one of the children of the deceased. The estate had been left, in large part, to the twelve-year-old grandchild of the deceased’s de facto partner of 16 years. The applicant suffered from significant disability associated with cerebral palsy. She sought further provision from the estate to meet her medical needs. The applicant was in receipt of a means tested disability support pension, and received further assistance from the Medical Aids Subsidy Scheme and Disability Services Queensland, the latter of which was not means tested. Chesterman J affirmed the observations of Bryson J in Whitmont v Lloyd, and stated:

Despite what I regard as the overstatement of the applicant’s needs there is no doubt that she requires substantial provision from the testator’s estate. Although the estate is substantial it is not huge by today’s standards, and is not sufficient to make adequate provision for the applicant without regard to pension and other social security benefits. If the whole of the estate were given to the applicant she would lose all her means-tested social security benefits and, depending on circumstances and the length of the applicant’s life, there is a distinct possibility that the estate might be exhausted and she would again be compelled to rely upon those payments. The estate might be completely consumed without having made complete provision for the applicant for the rest of her life.
In my opinion the better approach is to accept the applicant’s disabilities are such that it is appropriate she continue to receive public benefaction in addition to provision from the estate so that she can have financial security for the rest of her life but that something of the estate is preserved for those whom the testator wished to benefit. [46]

[45][2007] QSC 384.

[46]Ibid, [51]-[52].

Chesterman J addressed those competing needs by making orders for the creation of a special disability trust in favour of the applicant, which would not disturb her social security benefits.

In Taylor v Farrugia, Brereton J reviewed the above authorities and outlined the following statement of principle which balances the conservative approach favoured in this state with the more progressive approach of the New South Wales courts:

The Court’s attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant’s eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates.[47]

[47][2009] NSWSC 801, [59] (internal citations omitted); cited in Kohari v Snow [2013] NSWSC 452, [124]-[125] (Hallen J).

The principles discussed above were recently considered by Daly AsJ in Schmidt (a pseudonym) & Anor v Walter & Ors,[48] in the context of benefits received by a claimant under the NDIS. In that case, two of the four children of the deceased suffered from a profound intellectual disability. The deceased left those children with a right to reside in a property owned by him, with a requirement that the trustee pay for their meals. The value of the estate in that case was approximately $1,898,716 which her Honour considered to be insufficient to give effect to all of the deceased’s wishes.[49] A concurrent claim was made by the former partner of the deceased, who had been excluded from the will entirely.
[48][2019] VSC 385.
[49]Ibid, [96].

Associate Justice Daly refused to grant further immediate provision to the deceased’s disabled children but ordered that, upon the sale of the relevant property, those children ought share in 20% of the sale proceeds. Sale was subject to a life estate in favour of the deceased’s former partner. Her Honour reviewed the Victorian authorities discussed above, and confirmed the principle that the Court ought not take undue account of a claimant’s entitlement to government assistance.[50] Her Honour nonetheless observed that:

The NDIS is not a social security program. It is not means tested. While the future of any government program is never completely certain, the likelihood of the NDIS being dismantled or substantially denuded in the lifetimes of the participants in this proceeding seems slim.[51]

[50]Ibid, [85].

[51]Ibid, [86].

Daly AsJ had the benefit of a wealth of evidence regarding each child’s NDIS support, as well as expert evidence regarding the NDIS generally. Her Honour considered that the needs of each child were being met by the services provided by the NDIS and therefore that their entitlements under the will could be safely postponed. Her Honour observed that:

Their disability support pension meets their day-to-day financial needs. To the extent that they have needs for, or could benefit from, additional support, those needs will almost certainly be met by the services funded under the NDIS.[52]

[52]Ibid, [134].

However, her Honour was astute to observe that not all beneficiaries who receive services from the NDIS will be precluded from obtaining orders for further provision from a deceased estate:

I have already discussed the likely long term viability of the NDIS earlier in these reasons. This decision should not be taken as authority for the proposition that, in all cases where a beneficiary of an estate or a claimant upon an estate receives services from NDIS, it should be held that a testator does not owe a moral duty to make adequate provision for the proper maintenance and support for a disabled child, or a disabled spouse. It all depends upon the circumstances, including the size of the estate, and the competing claims upon the estate. However, the advent of the NDIS does represent a substantial shift in the landscape against which claims for provision by disabled people, particularly severely disabled people, must be assessed.[53]

[53]Ibid, [135].

On balance, the Court is of the opinion that the pension benefits received by an applicant for family provision are a relevant consideration to which it ought have regard. Notwithstanding the authorities discussed above, it is the remit of the Court in the testators family maintenance jurisdiction to determine whether, and if so in what amount, further provision ought to be granted by reference to the applicant’s need. Income received by the applicant, whether from employment income or a social security pension necessarily informs that analysis. The Court considers that the community would expect no less an analysis, given the constant and competing demands on the public purse for many and varied sectors of the community in need.

The evidence

At the trial of these proceedings the following witnesses of fact gave oral evidence on behalf of the Plaintiffs:

(a)Peter;
(b)Wendy;
(c)Gail;
(d)Mr David Flavel, Bert’s brother and former litigation guardian to Wendy;
(e)Mr Tom Trimnell, Bert’s brother-in-law and litigation guardian to Peter; and
(f)Mr Ian Keller, a local farmer with whom a share-farming arrangement was entered into over the Farm.

Four other witnesses of fact swore affidavits on behalf of the Plaintiffs but were not cross-examined:

(a)Ms Tracey Morphett, manager of Snappy Seconds, one of Wendy’s workplaces;
(b)Ms Jennifer Meek, co-owner of Jennifer Meek Giftware and Homeware, Wendy’s former workplace;
(c)Mr Ian Meek, co-owner of Jennifer Meek Giftware and Homeware, who also had dealings with Peter; and
(d)Mr Ritchie Dodds, Chief Executive Officer of West Wimmera Health Services, who confirmed the circumstances of Wendy’s supported employment through Cooinda Disability Services.

Expert evidence was also adduced on behalf of the Plaintiffs from a number of witnesses:

(a)Dr Sheryl Monteath, a clinical neuropsychologist who gave two assessments of Peter’s disabilities and medical conditions;
(b)Dr Jennifer McDowall, a clinical neuropsychologist who gave an assessment of Wendy’s disabilities and medical conditions;
(c)Dr Kalyani Sarkar, Peter’s treating physician at his local medical clinic in Nhill;
(d)Dr Debby Chinogara, Wendy’s treating physician at her local medical clinic in Nhill;
(e)Mr Michael Lawrence, an occupational therapist who produced several Occupational Therapy Needs Reports and costings with respect to Peter and Wendy;
(f)Mr Corey Plover, an actuary who calculated total estimated occupational therapy costs for Peter and Wendy throughout each of their remaining lifetimes, on the basis of Mr Lawrence’s costings;
(g)Mr Gary Allan, a forensic accountant who prepared a report estimating earnings to which Peter would have been entitled had he worked on the Farm on an arms-length basis between 1986 and 2011, by reference to the Pastoral Award 2010;
(h)Mr Benjamin Sawyer, a valuer who produced a valuation of the home owned by Peter and Wendy at 42 Rockley Street, Nhill;
(i)Ms Leslie Going, a real estate agent who produced a comparative market analysis of the home owned by Gail and her husband at 104 Otalka Road, Raumanga, New Zealand; and
(j)Mr Alan Hives, a valuer who produced two valuations of the Farm.

The Defendant gave evidence herself, but did not otherwise adduce further evidence in the proceeding.

Adverse inferences

In closing submissions the Plaintiffs urged upon the Court that inferences should be drawn from the failure by Heather to call her husband, Mr Robert Liston, and to tender certain diaries which belonged to Bert into evidence. The submission of the Plaintiffs is that the Court should conclude that the failure to tender that evidence and to call Mr Liston was because that evidence did not assist Heather’s case. That is, an inference in application of the rule in Jones v Dunkel.[54]
[54](1959) 101 CLR 298.

The Court does not consider that the failure to call Mr Liston gives rise to the inference contended for by the Plaintiffs. In my opinion, there is no relevant evidence that Mr Liston could usefully have been expected to give in this case. It is not necessary for Heather, as executor and Defendant, to prove her own entitlement to the inheritance received. To the extent that her financial position is a relevant consideration, the best evidence of that position is the evidence of Heather herself, and not that of her husband. The Plaintiffs also contend that the Court should draw inferences regarding several incidents on the Farm at which Mr Liston was present. The Court has had the benefit of several witnesses’ accounts of those incidents and, insofar as they are relevant to the issues in this proceeding, I do not consider that Mr Liston’s evidence was either necessary or required such that would justify drawing any adverse inference.

Likewise, the Court does not consider that it is necessary or appropriate to draw any inference from Heather’s failure to tender Bert’s diaries. The existence of the diaries was first raised on the third day of the trial, during the cross-examination of Peter. Mr Crofts objected to cross-examination on the basis of the diaries, copies of which had only been provided to the Plaintiffs the previous evening. After some discussion, Mr Goldblatt confirmed that he did not wish to tender the diaries themselves into evidence. A similar exchange took place later that day, during the cross-examination of Gail. The following day Mr Crofts foreshadowed an application by the Plaintiffs to compel production of the diaries. No such application was ever made. The Court does not consider that the failure to tender the diaries into evidence justifies an inference that those documents would not have assisted Heather. Mr Crofts objected to that very course, and when given an opportunity to make an application for production of the diaries the Plaintiffs did not do so. In those circumstances the Court will not draw any inference from the failure to tender the diaries.

General observations – eligibility and moral obligation
Eligible persons

It was accepted by both parties that all three Plaintiffs are ‘eligible persons’ within the definition provided in the Act.

Moral duty to make provision

In the course of opening submissions, Heather conceded that a moral duty to make provision for each of Peter, Wendy and Gail existed. However, it was urged upon the Court that the content and extent of that duty must be informed by the needs of each Plaintiff as well as the conduct which was said to diminish their entitlement to further provision from the estate. The Court will address each of the Plaintiffs’ circumstances and entitlement to further provision in turn, by reference to the matters for consideration listed in s 91A(2) of the Act.

Peter
Did the will adequately provide for Peter’s needs?
Peter’s circumstances

Peter was 51 years old when Bert passed away. At that time he was living with Wendy in their house in Nhill, which was left to them by Lorraine. Peter did not work, and relied upon his means tested disability pension as his sole source of income. The Court understands that there has been no change in the income derived by Peter from his pension, which currently provides him $853.18 plus a mobility allowance of $93.20 per fortnight.

As observed, Peter suffers from an intellectual impairment, which impairment was known to Bert at the time of his death. More specifically, that impairment was diagnosed by Dr Monteath as a ‘mild’ intellectual disability, which is a lifelong condition. Tests administered by Dr Monteath indicated that:

(a)Peter’s general intellectual functioning was in the ‘extremely low’ range;
(b)his attentional capacity was limited, and he was easily overloaded by complex information;
(c)his language based intellectual skills were extremely limited;
(d)his executive functioning, including planning, problem solving and insight was limited, he was aided in his approach to tasks by external structure and cues;
(e)learning and memory was well below age expectations, learning and memory were supported by repetition, external structure and external prompting; and
(f)his adaptive skills were extremely low.

Doctor Monteath considered that, due to his disability, Peter does not have the capacity to work. It is to be noted that Peter expressed that he had no desire to take on outside paid employment.

Dr Monteath’s second report indicated that Peter may not be cognisant of his own disability. Dr Monteath recorded Peter as stating to her ‘I am not handicapped, only a little bit slow’.

Through his work on the Farm prior to 2011, Bert taught Peter several skills including:

(a)driving trucks, tractors, combine harvesters and other heavy farm equipment;
(b)ploughing;
(c)cropping;
(d)seeding; and
(e)herding sheep.

Peter gave evidence that he was capable of carrying out each of those tasks himself without supervision, but that Bert gave him direction as to what needed to be done. Mr Lawrence’s opinion was that Peter could carry out work on the Farm, or farm work generally, in a supported environment where tasks are well defined. He did not consider that Peter was capable of working in an unsupported environment. Mr Lawrence’s opinion was corroborated by Peter’s uncles, Tom Trimnell and David Flavel, who each gave evidence that Peter’s capabilities were limited to a supported environment such as the family Farm.

Mr Lawrence considered that Peter was able to live independently with regard to most of the practicalities of everyday life but nonetheless required a strong support network. Peter is completely self-sufficient when performing tasks such as cooking, cleaning, washing, gardening and shopping. However, Peter relies upon others to assist with community engagement activities such as organising tradespeople to visit the house, administrative functions and business communications. At the date of Bert’s death, Peter was informally supported by Wendy and his uncles in those aspects of daily life.

Provision under the will

As observed, Peter and Wendy share in the residuary of Bert’s estate under the will. After subtracting the farm, plant and equipment bequeathed in favour of Heather, and the $10,000 gift left to Gail, Peter and Wendy received shares of $265,942.5, or 5.15% of the total current value of the estate each.

The Court is satisfied, on the evidence that Peter’s needs exceed what was provided for him in Bert’s will.

Is Peter entitled to further provision?
Bert’s obligations and responsibilities (s 91A(2)(b))

There was no evidence of any specific responsibilities or obligations owed by Bert to Peter. However, the Court accepts that as the father of a disabled child Bert had a responsibility to ensure that adequate provision was made to Peter for his proper maintenance and support.

The size of the estate (s 91A(2)(c))

The size of the estate as at 29 May 2019 was $5,165,612.

Peter’s current circumstances (s 91A(2)(e) and (f))

Peter is now 54 years old. He currently lives alone in the house owned by him and Wendy in Nhill. Peter continues not to work and relies upon his disability pension as his sole source of income.

In cross-examination, Peter accepted that he was satisfied with his present circumstances, and did not wish to actively seek employment within the local community. Several possibilities were put to Peter of businesses where he might find work, including a local duck farm and supermarket, however he gave evidence that he had no interest in pursuing any of them. The Court observes, however, that no evidence was available as to whether any of those suggestions might actually lead to gainful employment for Peter. Heather’s experience seeking work in and around Nhill indicated that employment is difficult to come by. The Court can have no confidence that the opportunities suggested were available to Peter, or whether he would find any success in pursuing employment at those workplaces.

Despite not working, Peter’s current financial position is relatively comfortable. Peter co-owns the house with Wendy, valued at approximately $131,000. Peter has savings of approximately $150,000. Approximately $90,000 of those funds were received from Lorraine’s estate upon her death. Peter also owns a vehicle with a value of approximately $5,000.

Peter has several hobbies including gardening, woodworking and collecting tin money boxes of which he has quite a collection. He and Wendy have constructed several sheds on the property at Nhill to house Peter’s woodworking tools and money box collection. Peter has not arranged electricity supply to the shed containing his woodworking tools. It was not clear to the Court why Peter has been unable to arrange for power to be connected to his shed. Peter’s own explanation was that he could not afford to do so. Mr Lawrence suggested that the long term delay was attributable to difficulties Peter faces in engaging with the community and managing his own affairs.

Peter’s current needs (s 91A(2)(d))

Peter’s weekly expenses, some of which he shares with Wendy, are as follows:

Expense

Cost per week ($)

Telephone plan

18.33

Electricity

33.33

Water rates

30.00

Council rates

41.66

Food

300.00

Clothing (Peter)

13.49

Clothing (Wendy)

19.23

Fuel / Maintenance

100.00

Total:

556.04

In cross-examination, Peter gave evidence that he was presently saving for a new trailer and a new ute collectively valued at approximately $62,000. Other than some maintenance work to be done on his house, Peter did not identify any other present needs which were not being met.

Mr Lawrence’s opinion was that Peter’s needs are likely to increase in the future, as he ages and his current support network falls away. Without support, Mr Lawrence identified a risk to Peter of increased social isolation.

Mr Lawrence identified the following services which may assist Peter in the future:

(a)case management;
(b)vocational assistance;
(c)social links;
(d)community engagement;
(e)administrative and business assistance;
(f)management of personal affairs;
(g)monitoring and advocacy;
(h)transitional assistance; and
(i)support co-ordination.

As at 1 February 2019 the costs of the services recommended by Mr Lawrence were as follows:

Service

Recommended Hours per week

Cost - per hour ($)

Total Cost - per annum ($)

Case Management

1

94.06

4891.12

Advocacy

1

94.06

4891.12

Community worker (access and transport)

2

52.20

5,428.80

Registered Nurse (post-retirement age)

0.25

70.40

915.20

Enrolled Nurse (post-retirement age)

1

58.29

3031.08

Transport (post-retirement age)

150km per two months

1.21 per km

1089.00

Mr Plover calculated that over the course of Peter’s expected lifespan, and at a discount rate of 3% per annum, the costs of those services would be $264,500.

Peter also considered that his pending NDIS application would likely assist him with any personal needs. In particular, Peter identified a need for assistance with paperwork, such as bills, and with finding activities to get him out of home. Otherwise, Peter did not personally consider that he required any other assistance in the manner recommended by Mr Lawrence.

Contribution to the estate (s 91A(2)(g))

As observed, Peter worked on the Farm alongside Bert for some 25 years between 1986 and 2011. He did so for a token wage of $3,000 per annum, as well as room, board and fuel. The Plaintiffs’ case in this respect appeared to evolve slightly in the course of the trial. Initially, their position appeared to be that further provision from the estate ought reflect unpaid wages to Peter. In closing, however, it was alleged that Peter’s work was a contribution to the build-up of the estate which enabled Bert to save funds which would otherwise have been paid as wages and to utilise those funds in expanding the Farm.

The evidence of Mr Allan made an effort to quantify earnings to which Peter would have been entitled during that period, by reference to the Pastoral Award 2010. In his initial report dated 22 March 2018 Mr Allan’s opinion was that, in current value terms, Peter would have been paid approximately $57,000 per annum for his work on the Farm if such work occurred on an arms-length basis. Mr Allan estimated that, upon the assumption that there were no significant changes to Peter’s duties or time commitments, the total current value of the work performed by Peter is $1,500,000. Notably, Mr Allan assumed that Peter worked from 1986 to 2013, rather than 2011. As the evidence established that Peter left the Farm in or about 2011, rather than 2013, it is prudent to reduce Mr Allan’s estimate by approximately $114,000 to $1,386,000.

In a supplementary report dated 23 August 2018 Mr Allan broke down the figures contained in his initial report to the following elements:

(a)total gross earnings (before superannuation) of approximately $797,150;
(b)total income tax and Medicare levy of approximately $142,750;
(c)total net earnings of approximately $654,400; and
(d)total additional superannuation contributions of $31,800, plus investment earnings of $53,000.

Rather unhelpfully, Mr Allan’s second report listed his estimates only in historical values, which would not take into account differences in purchasing power between 1986 and 2018. This omission causes some difficulty in comparing Mr Allan’s first and second reports.

The Court did not find Mr Allan’s evidence to be useful, or indeed relevant to the matters at issue in these proceedings. The evidence before the Court indicated that the working relationship between Bert and Peter was a congenial and mutually beneficial arrangement which would be expected of members of a loving family. Both father and son maintained the benefit of each other’s company, Bert was assisted on the Farm and Peter was provided with a place to live, food and fuel. The claim before the Court is not a claim for compensation. Amounts which would have been paid to an arms-length employee working in Peter’s position are of limited assistance when determining what is adequate provision for his proper maintenance and support. This is particularly so when several of the assumptions made my Mr Allan were contradicted in Peter’s own evidence. Although Peter’s work may have contributed to the build-up of the estate, there was no compelling evidence that wages which were saved by Bert would have alternatively been used to expand the Farm. On that basis, the Court does not give any weight to the evidence of Mr Allan.

Peter’s conduct (ss 91A(2)(a) & (k))

The diminishing conduct alleged of Peter concerned his departure from the Farm in 2011.

The circumstances of Peter’s departure from the Farm was a matter of dispute between the parties, on which the evidence was somewhat equivocal. Peter’s affidavit evidence deposed that his departure was the result of a conversation with Heather in which she ‘ordered [Peter] off the farm’. Peter deposed that this conversation occurred sometime in 2013, though in a later affidavit corrected this date to 2011. The conversation appears to have happened in a local supermarket at which Heather was employed at the time.

In oral evidence, Peter accepted that he left the Farm of his own volition as he moved in order to care for his mother. Peter gave evidence that he considered that Bert gave him permission to do so. Peter also accepted, however, that he no longer wanted to work on the Farm and told Bert as much. He maintained that Heather told him ‘Dad said clean your room out and move to Nhill’, and that she helped him to move the following day.

After leaving the Farm Peter did attend on occasions to assist with farm work and to check on belongings which he had left in a shed. Peter stopped visiting the Farm when Heather began her relationship with Robert Liston, with whom Peter did not get along. Several incidents between Peter, Heather and Mr Liston were discussed in the evidence, however the Court does not consider them to be directly relevant to the matters at issue in this proceeding.

Maintenance by Bert or others (s 91A(2)(i) and (j)) and benefits previously received (s 91A(2)(h))

There is no evidence that Peter was maintained by Bert throughout his lifetime, or that he received any particular benefits from Bert beyond those associated with his work on the Farm.

As observed, Peter receives a fortnightly disability support pension of approximately $853.

Effects on other beneficiaries (s 91A(2)(l))

Although it is not necessary for Heather to justify the benefit that she received from Bert’s estate,[55] her financial position as an eligible person and beneficiary is nonetheless a relevant consideration. Although Heather’s circumstances are detailed at this juncture, they are relevant to the claims of each of Peter, Wendy and Gail.
[55]Sammut v Kleeman [2012] NSWSC 1030, [138].

Heather is 53 years old. She currently resides on the Farm with her husband, Robert Liston. They have no children. Heather has been employed in various capacities since leaving school, including at the local IGA in Nhill, and at ‘Cheap as Chips’ in Horsham. Heather has also operates her own gardening business.

Heather derives monthly income of approximately $1,390 ($320.8 per week) from a combination of Centrelink benefits and her gardening business. Heather’s total assets are as follows:

Asset

Value ($)

Cash at bank

2,000

Other bank accounts

263.94

Motor vehicles

20,000

Furniture & household effects

10,000

Superannuation

74,000

Motor bike

500

Trailers

1,000

Tools

5,000

Dogs

2,500

Jewellery

1,000

Collections

2,000

Total:

118,263.94

Heather’s weekly household expenses are as follows:

Expense

Cost per week ($)

Rent

133.85

Superannuation

23.08

Insurance

11.54

Motor vehicle

207.69

Utilities

99.23

Living expenses

92.31

Entertainment

103.85

Total:

671.55

Other matters (s 91A(2)(m))

No other matters were brought to the Court’s attention with respect to Peter’s entitlement to further provision from the estate.

Conclusion on Peter’s entitlement to further provision

Balancing Bert’s testamentary freedom against his moral responsibility to Peter, the Court is of the view that it is just and appropriate for further provision to be made for Peter.

The Court considers that adequate provision for Peter is in the amount of $750,000. I make this order based on the following reasons:

(a)Peter is unlikely to work to support himself in the future, taking into account his unwillingness to engage in the workforce.
(b)The Court considers that a wise and just testator would have wanted Peter to have a roof over his head, means of modern transport and sufficient funds to sustain himself.
(c)Despite the fact that Peter receives income from the government purse, a wise and just testator would still wish to provide for Peter, to ensure that he was safe and secure and has access to support services to sustain himself going forward.

Wendy
Did the will adequately provide for Wendy’s needs?
Wendy’s circumstances

Wendy was 40 years old as at the date of Bert’s death. At that time, Wendy was living with Peter in the co-owned house in Nhill. Wendy worked in supported employment roles at Snappy Seconds and Jennifer Meek Giftware. She earned approximately $214 per week at Snappy Seconds and $182 per week at Jennifer Meet Giftware. She supplemented that income with her means tested disability pension of $853.18, plus a mobility allowance of $93.20, per fortnight. Wendy relied upon Peter for transportation in and around Nhill.

Wendy also suffers from an intellectual impairment, which was known to Bert. Dr McDowall described Wendy’s impairment as a permanent ‘severe cognitive disability’. Dr McDowall identified two factors which could account for Wendy’s disability:

(a)firstly, an acquired brain injury resulting from the insertion of a ventriculoperitoneal shunt to address hydrocephalus when Wendy was an infant; and
(b)secondly, the presence of an intellectual disability.

Tests administered by Dr McDowall indicated that:

(a)Wendy’s intellectual functioning was in the ‘extremely low’ range;
(b)she has difficulties with attention, and in manipulating information in working memory;
(c)her literacy skills were impaired, though her verbal skills fluctuated;
(d)she has impaired executive functioning, resulting in difficulties with abstract thinking, planning and problem-solving;
(e)for the most part, her ability to learn and recall information was not profoundly impaired; and
(f)she displays significant impediments to adaptive behaviour, difficulty with complex concepts and managing tasks beyond those which are simple.

Similarly to Peter, Dr McDowall observed that Wendy has a poor understanding of her own cognitive limitations.

Provision under the will

As observed, Peter and Wendy shared in the residuary of the estate to the order of $265,942.5, or 5.15% of the total current value of the estate each.

The Court is satisfied, on the evidence that Wendy’s needs exceed what was provided for her in Bert’s will.

Is Wendy entitled to further provision?
Bert’s obligations and responsibilities (s 91A(2)(b))

There was no evidence of any specific responsibilities or obligations owed by Bert to Wendy. However, as observed above with regard to Peter, the Court accepts that as the father of a disabled child Bert had a responsibility to ensure that adequate provision was made to Wendy for her proper maintenance and support.

The size of the estate (s 91A(2)(c))

The size of the estate as at 29 May 2019 was $5,165,612.

Wendy’s current circumstances (s 91A(2)(e) and (f))

Wendy is now 43 years old. She currently lives in Nhill with her partner, Mr Judd. The house in which Wendy resides is co-owned by Mr Judd and his sister. Wendy began living with Mr Judd in mid-2018. Wendy maintains an ownership interest in the property which was left to her and Peter by Lorraine, in which Peter now resides.

Wendy continues to derive income from her means tested disability pension as well as from employment at Snappy Seconds. Since moving in with Mr Judd, Wendy has given up work at Jennifer Meek Giftware entirely. Wendy’s disability pension has reduced to $690 per fortnight and her income from Snappy Seconds remains around $214 per week. Wendy remains reliant upon others, principally Peter and Mr Judd, for transportation.

Wendy’s hobby is collecting porcelain dolls, of which she holds a substantial collection. Wendy houses her dolls in sheds located on the property that she co-owns with Peter. Wendy is also a member of her local Lions Club, which she attends alongside Mr Judd, and is involved in activities such as barbecue fundraisers.

Wendy’s current needs (s 91A(2)(d))

Wendy’s financial position is also relatively comfortable. She owns half of the property in which Peter resides and has savings of approximately $120,000. Despite no longer living with Peter, Wendy still pays for half of the household expenses at that property, which are detailed at paragraph 113 above.

Mr Lawrence presented similar opinions with respect to Wendy’s occupational therapy needs to those presented with respect to Peter. Although Wendy has been able to live independently day-to-day, she has received ongoing informal family support from her uncles. While she is capable of performing simple routine tasks, Mr Lawrence’s opinion was that without support Wendy would be incapable of managing and administering her domestic and household management needs. Similarly, Mr Lawrence did not consider that Wendy had capacity to work in unsupported employment.

Mr Lawrence identified the following services which may assist Wendy in future:

(a)case management;
(b)vocational assistance;
(c)social links;
(d)community engagement;
(e)administrative and business assistance;
(f)management of personal affairs;
(g)monitoring and advocacy;
(h)transitional assistance; and
(i)support co-ordination.

As at 1 February 2019 the costs of those services were as follows:

Service

Recommended Hours per week

Cost - per hour ($)

Total Cost - per annum ($)

Case Management

1

94.06

4891.12

Advocacy

1

94.06

4891.12

Community worker (access and transport)

2

52.20

5,428.80

Registered Nurse (post-retirement age)

0.25

70.40

915.20

Enrolled Nurse (post-retirement age)

1

58.29

3031.08

Transport (post-retirement age)

150km per two months

1.21 per km

1089.00

Mr Lawrence’s report drew criticism from the Defendant as it recommended the same services in the same amounts for both Peter and Wendy. It was suggested by the Defendant that Mr Lawrence had simply copied those observations between the two reports and had not turned his mind to their individual needs. Mr Lawrence explained this similarity in oral evidence, stating that although the broad types and frequency of services match between the two reports the actual services provided would differ on an individual level.

The Court found Mr Lawrence to be a considered and reflective witness. His evidence was, as a Court may expect from an expert witness, detailed and discerning.

The Court does not accept that Mr Lawrence did not turn his mind to the individual needs of Peter and Wendy, notwithstanding that his conclusion, on the face of it, was the same in respect of both of them. Mr Lawrence was careful to point out that each of Peter and Wendy would utilise the same services, but in different ways. The Court accepts that evidence.

Mr Plover calculated that over the course of Wendy’s expected lifespan, and at a discount rate of 3% per annum, the costs of those services would be $302,614.

Wendy also takes the benefit of services provided by the NDIS. Since late 2018 Wendy has had the assistance of a carer who assists her with cooking and cleaning for two hours per day, three days per week. Wendy is allocated seven hours of time with her carer per week and is able to accumulate unused time for outside activities such as shopping.

Contribution to the estate (s 91A(2)(g))

There is no evidence that Wendy made any contribution to Bert’s estate beyond what may be expected in the normal course of contributing to the household as a family member. Due to her illnesses, Wendy’s contribution was focused upon domestic tasks such as cooking and cleaning, rather than work on the Farm.

Wendy’s conduct (ss 91A(2)(a) & (k))

It was submitted on behalf of Heather that, after Bert and Lorraine separated, Wendy made her life with her mother. She left the Farm in 1994 and thereafter had minimal contact with Bert until at least 2007, when her vomiting attacks were treated. Thereafter, Wendy visited Bert a small number of times per year. She attended some celebrations, such as Bert’s birthday on the Farm, but did not attend others, such as the award of a fire brigade medal and a birthday celebration after Bert entered into the nursing home. Wendy attributed her failure to visit Bert more often to her reliance on Peter for transportation, and to Peter’s fear of dealing with Heather and Mr Liston.

Maintenance by Bert or others (s 91A(2)(i) and (j)) and benefits previously received (s 91A(2)(h))

There is no evidence that Wendy was maintained by Bert throughout his lifetime, or that she received any particular benefits from him.

Wendy receives a fortnightly disability support pension of approximately $690.

Effects on other beneficiaries (s 91A(2)(l))

It is axiomatic that any increase in provision to Wendy will alter provision received by the other beneficiaries. In particular, any further increase will likely result in the liquidation of certain assets which comprise the Farm, impacting Heather specifically.

The Court refers to and repeats observations concerning Heather’s current circumstances above at 131 to 134.

Other matters (s 91A(2)(m))

No other matters were brought to the Court’s attention with respect to Wendy’s entitlement to further provision from the estate.

Conclusion on Wendy’s entitlement to further provision and quantum

Balancing Bert’s testamentary freedom against his moral responsibility to Wendy, the Court is of the view that it is just and appropriate for further provision to be made for her.

Taking account of the evidence that Wendy’s life expectancy is less than that of an average Australian woman, the Court considers that adequate provision for Wendy is in the amount of $500,000. I make this order based on the following reasons:

(a)Wendy has employment opportunities and other means of support.
(b)The Court does not consider a potential marriage, and any benefit that may materialise from such a union, should it materialise, as relevant.
(c)Nevertheless, on the evidence, Wendy may indeed have needs going forward and there is no reason why a just and wise testator would not have had regard to them.

Gail
Is Gail an ‘eligible person’?

It was accepted by both parties that all three Plaintiffs are ‘eligible persons’ within the definition provided in the Act. Gail falls within the definition in s 90(f) of the Act, being an adult child of the deceased who does not suffer any disability. As such, it is also necessary for the Court to consider, in making its determination, the extent to which Gail is not capable, by reasonable means, of providing adequately for her own proper maintenance and support.

Did the will adequately provide for Gail’s needs?
Gail’s circumstances

Gail was 36 years old when Bert passed away. At that time she was residing in New Zealand, where she had lived since 2007. Gail was married and had two young children. Gail jointly owned a house with her husband, which is presently valued at approximately $254,000. Gail and her husband both held employment as a social support worker and metal fabricator respectively.

No evidence was presented as to Gail’s financial position in 2016. The Court will proceed on the basis that her expenses differ little from those disclosed as at the date of trial.

Provision under the will

As observed, Gail received a gift of $10,000 from Bert’s estate under the will. That is 0.2% of the net estate on its current value.

Is Gail entitled to further provision?
Bert’s obligations and responsibilities (s 91A(2)(b))

As has been noted, it was accepted by Heather that Bert had a moral duty to make provision for Gail. The extent of that duty, however, as urged upon the Court and with which it agrees, must be informed by the needs of the individual moderated by any conduct which can be said to be disentitling.

The size of the estate (s 91A(2)(c))

The size of the estate as at 29 May 2019 was $5,165,612.

Gail’s current circumstances (s 91A(2)(e) and (f))

Gail is now 39 years old. She continues to reside in her home with her husband and two children. As observed, the value of that home is approximately $254,000 and approximately $117,000 is owed by way of mortgage on the house. Gail’s other assets comprise motor vehicles worth approximately $5,000 and savings of $10,000.

Gail’s husband maintains his employment as a metal fabricator. He has no formal trade or tertiary qualifications and earns approximately $900 per week. Gail deposed that her husband had minimal opportunity for future income growth. Gail works approximately eight hours per week as a social worker for Healthcare New Zealand at a rate of $16 per hour ($128 per week).

Gail’s current needs (s 91A(2)(d))

In addition to the mortgage over her house Gail’s liabilities are:

(a)credit card debt in an amount of $3,000;
(b)funds owed to New Zealand Inland Revenue of $773.31; and
(c)student loan debt of $16,360.58 – which will increase to $25,000 when Gail finishes her study.

Gail’s weekly household expenses are as follows:

Expense

Cost per week ($)

Mortgage repayments

219.50

Fuel

100.00

Food

140.00

School uniforms

11.53

Transport

43.26

After school care

50.00 to 125.00

School fees

15.84

Other school related expenses

2.30

Utilities (telephone, internet, electricity)

23.07

Life insurance

14.77

Other insurance

107.57

Rates

43.00

Waste management

8.00

Children’s sport (netball)

5.55

Children’s sport (rugby)

6.25

Total:

865.64

This equates broadly to current annual expenditure of $45,013.

Gail also contemplates further expenses associated with her children’s future education. She intends to send them to a local Catholic school with fees of $2,000 per annum, and will encourage them to attend university in Auckland. Gail predicts that costs associated with university will be approximately $26,000 per annum, plus rental accommodation in Auckland of approximately $550 per week.

Gail’s ability to provide adequately for her own proper maintenance and support (s 91(4)(c))

Gail’s position differs from that of Peter and Wendy as she does not suffer from a disability. Further, it is to be observed that it may be contemplated that Gail’s earning capacity may increase upon the completion of her study. At this stage, however, this is speculative. It is therefore necessary for the Court to consider, pursuant to s 91(4)(c) of the Act, the degree to which Gail is not capable of providing for her own proper maintenance and support.

Contribution to the estate (s 91A(2)(g))

There is no evidence that Gail made any contribution to Bert’s estate beyond what may be expected in the normal course of contributing to the household as a family member.

Gail’s conduct (ss 91A(2)(a) & (k))

Diminishing conduct alleged of Gail arises from the nature of her relationship with Bert, particularly in the last ten to fifteen years of his life.

Between leaving school in 1997 and moving to New Zealand in 2007 Gail’s contact with her parents was minimal. There was a period in which Gail ceased contact with her parents altogether, and did not inform them when she moved interstate to Perth for a short period. The evidence as to the regularity of contact between Gail and Bert throughout this period was otherwise unclear, it may have been weekly or monthly.

After moving to New Zealand in 2007 Gail’s contact with Bert diminished further. Gail denied, when it was put to her, that she contacted her father only once or twice during that period but was otherwise unsure as to the frequency of contact. In her affidavit evidence Gail deposed that she spoke to Bert approximately once per month in later years. There appears to have been no contact at all between 2010 and 2013. The period of no contact appears to have been the result of an argument between Bert and his brother, David, over the burial place of David’s late wife, Helen.

Much was made of a communication between Gail and Bert dated May 2010, which Heather says is indicative of the quality of the relationship between Gail and Bert. The communication, which takes the form of a series of internet instant messaging messages, was as follows:

‘flaves’ [Gail]: You no dad I cant believe that you would treat your family like this. You keep this up and you wont have a family just you. You have burnt your relationship with uncle david and he did nothing to you. Dont you forget that unty helen was so good to you she would do anything for you and all of us. How could you do that to her and uncle david I dont no how you could be so nasty. And telling me not to come over for the funeral to say good bye you had no right. I am so happy that peter is not living with you it is about time he left it is the best thing he has ever done. by the way dont ever ring up nick and have a go about me staying in hamilton who do you think he is gana side with me or you? In saying that you are missing out on being a grand father to two fantastic kids. You will never meet them or see them they are not missing out YOU are. Uncle david has been more of a father to me than you have ever been I love him and respect him more than everyone. He noes how to be a father.
Gail: I wish you know how to be a father.
Bert: well to answer your message I dont need you in my life as I have a brand new family with a decent son and a lovely extra daughter a beautiful little grandaughter and all my neighbours and friends.
Gail: you have a nice life with your new family. Dont ever contact my family.

Gail downplayed this exchange, characterising it as a fight which would not be uncommon between children and their parents.

Gail resumed contact with Bert in late 2013, at the suggestion of David Flavel. The extent of contact between Gail and Bert between late 2013 and his death in May 2019 was unclear on the evidence.

It was clear on the evidence that Gail and Bert’s relationship was possibly less than would be desired of a father/daughter relationship. Harsh words and, on occasion, unloving and inconsiderate behaviour were demonstrated. It is to be regretted that these interactions occur within families from time to time, even quite caring and considerate families. But the Court is bound by the principles set out in legislation to which it must have regard in determining whether further provision ought be made for Gail.

The Court has noted the evidence of some incidents in the relationship and the interaction between Gail and Bert above. In my opinion, the relationship was not so broken or irreconcilable to merit the conclusion that Bert would not have considered Gail’s welfare, and that of her family, in his will. There will invariably be a range of relationship dynamics between family members but, in my opinion, Gail’s relationship with Bert does not stray beyond reasonable boundaries of family life.

Maintenance by Bert or others (s 91A(2)(i) and (j)) and benefits previously received (s 91A(2)(h))

Gail’s contact with Bert occasionally involved requests for money from him. There was no conflict on the evidence that Gail was the object of her parents’ generosity in funding her hairdressing course and giving her money, sporadically, when needed. But to balance the testamentary freedom of Bert with Gail’s needs, or indeed – most significantly – wants, requires sound judgment. For example, in 2007, Gail sent a text message requesting funds to assist setting herself up in New Zealand and in 2013 requested assistance to pay for her wedding. The latter request occurred during a visit to the Farm at Christmas 2013, by which time Gail and Bert had resumed contact.

Apart from the benefits previously received by Gail from Bert, he did not contribute in any regular way to Gail’s maintenance.

Gail is supported by her husband, who contributes to the household in the order of $900 per week by virtue of his employment as a metal fabricator. The evidence was that Gail’s husband had little prospect of an increment in income in the future, given his lack of qualifications, tertiary or trade.

Effects on other beneficiaries (s 91A(2)(l))

It is axiomatic that any further provision awarded to Gail will reduce the total value of the estate available for distribution to the other beneficiaries, in particular the distribution to Heather.

The Court refers to and repeats observations concerning Heather’s current circumstances above at 131 to 134.

Other matters (s 91A(2)(m))

The Court does have regard to the fact that amongst all Bert’s children, Gail is the only one who has children of her own, being Bert’s grandchildren. This life circumstance of Gail sets her apart from her siblings. On the evidence, she will face upcoming costs associated with her children’s education.

She also has current liabilities related to her own education and further liabilities to be incurred on the completion of her present studies.

Conclusion on Gail’s entitlement to further provision and quantum

Balancing Bert’s testamentary freedom against his moral responsibility to Gail, the Court is of the view that it is just and appropriate for further provision to be made for her.

In my opinion, a wise and just testator would have regard to the future burdens faced by his daughter and her ability to build a future for her own children, his only grandchildren, to support their education and to establish a foundation for their independence.

The Court considers that adequate provision for Gail is in the amount of $225,000. I make this order based on the following reasons:

(a)Gail’s relationship with her father, although sometimes fractured, was not behaviour as to disentitle her to an entitlement such as which would be bestowed upon her by a wise and just testator.
(b)Gail is the only member of the family that has had Bert’s grandchildren and, accordingly, will be responsible for their care, education and to nurture them into adulthood.
(c)Gail has debts and her income sources in the future are limited. The expense of raising Bert’s grandchildren can, to some extent, be identified at this stage, but much may occur. So, to that extent, the Court’s orders in awarding further provision does not reflect a precise science, but more an approximation of what may be required for the adequate and proper care and maintenance of Gail and her family going forward in a responsible, not extravagant, fashion.

Conclusion

Given the nature of Bert’s estate, as well as its distribution under his will, any further provision made for Peter, Wendy and Gail must necessarily come from Heather’s entitlements, namely the Farm which was devised to her. For the purpose of securing the further entitlements to Peter, Wendy and Gail’s, those entitlements ought to be charged against the real property which comprises the Farm.

Accordingly, the following orders will be made. It must be noted that decisions such as these are never a correct science but a balance, on the evidence, between demand and need:

(a)Pursuant to s 91(1) of the Administration and Probate Act 1958, further provision out of the estate be made for Peter by payment to him of a total and fixed amount of $750,000, subject to the testamentary trust established by clause 3(c) of the will.
(b)Pursuant to s 91(1) of the Administration and Probate Act 1958, further provision out of the estate be made for Wendy by payment to her of a total and fixed amount of $500,000.
(c)Pursuant to s 91(1) of the Administration and Probate Act 1958, further provision out of the estate be made for Gail by payment to her of a total and fixed amount of $225,000.
(d)Pursuant to s 97(2) of the Administration and Probate Act 1958, the burden of the payments of the sums of $750,000 pursuant to paragraph (a) of this order, $500,000 pursuant to paragraph (b) of this order, and $225,000 pursuant to paragraph (c) of this order be charged on the estate property comprising farmland described in Certificates of Title:
(i)Volume 6111 Folio 019;
(ii)Volume 10682 Folio 453;
(iii)Volume 5358 Folio 466;
(iv)Volume 8821 Folio 374;
(v)Volume 2886 Folio 039;
(vi)Volume 2886 Folio 109;
(vii)Volume 8300 Folio 563; and
(viii)Volume 9482 Folio 988.

I will hear the parties as to the final form of orders and the question of costs.

Asset	Value ($)
Farm land – 324 Flavel Road, Jeparit	4,250,000
Unit – 18/20 Brougham Street, Nhill	165,000
Plant, equipment and livestock on the Farm	373,727
Motor vehicle	25,700
Sundry furniture and effects	24,511
Investments	101,608
Funds invested or held by estate solicitor	225,066
Total:	5,165,612

Expense	Cost per week ($)
Telephone plan	18.33
Electricity	33.33
Water rates	30.00
Council rates	41.66
Food	300.00
Clothing (Peter)	13.49
Clothing (Wendy)	19.23
Fuel / Maintenance	100.00
Total:	556.04

Service	Recommended Hours per week	Cost - per hour ($)	Total Cost - per annum ($)
Case Management	1	94.06	4891.12
Advocacy	1	94.06	4891.12
Community worker (access and transport)	2	52.20	5,428.80
Registered Nurse (post-retirement age)	0.25	70.40	915.20
Enrolled Nurse (post-retirement age)	1	58.29	3031.08
Transport (post-retirement age)	150km per two months	1.21 per km	1089.00

Asset	Value ($)
Cash at bank	2,000
Other bank accounts	263.94
Motor vehicles	20,000
Furniture & household effects	10,000
Superannuation	74,000
Motor bike	500
Trailers	1,000
Tools	5,000
Dogs	2,500
Jewellery	1,000
Collections	2,000
Total:	118,263.94

Expense	Cost per week ($)
Rent	133.85
Superannuation	23.08
Insurance	11.54
Motor vehicle	207.69
Utilities	99.23
Living expenses	92.31
Entertainment	103.85
Total:	671.55

Expense	Cost per week ($)
Mortgage repayments	219.50
Fuel	100.00
Food	140.00
School uniforms	11.53
Transport	43.26
After school care	50.00 to 125.00
School fees	15.84
Other school related expenses	2.30
Utilities (telephone, internet, electricity)	23.07
Life insurance	14.77
Other insurance	107.57
Rates	43.00
Waste management	8.00
Children’s sport (netball)	5.55
Children’s sport (rugby)	6.25
Total:	865.64

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5 February 2020