Smith v Jones

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2012 06798

CONSTANCE SMITH and DAVID SMITH	Plaintiffs
v
EDWARD JONES (who is sued as the executor of the will of ABIGAIL JONES, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATES OF HEARING:	24, 25 March 2015
DATE OF JUDGMENT:	14 August 2015
CASE MAY BE CITED AS:	Smith v Jones[1]
MEDIUM NEUTRAL CITATION:	[2015] VSC 398

[1]To ensure there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms where relevant.

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TESTATOR’S FAMILY MAINTENANCE — Application by adult daughter for further provision — Where responsibility to provide for adult daughter conceded — Where defendant alleged deceased’s responsibility to adult daughter discharged — Where promises made by deceased for plaintiff to receive an equal share of estate — Where plaintiff sexually abused by father as a child — Where deceased knew of abuse and failed to take sufficient steps to remedy abuse – Further provision ordered — Extent of provision — Administration and Probate Act 1958, s 91.

TESTATOR’S FAMILY MAINTENANCE — Application by adult grandchild for provision — Whether deceased had responsibility to provide for adult grandchild — Where grandchild sexually abused by grandfather as a child — Where deceased knew of abuse and failed to take sufficient steps to remedy abuse – Provision ordered — Extent of provision — Administration and Probate Act 1958, s 91

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Shane Newton	Robinson Gill
For the Defendant	Mr Richard Phillips	Venizelakos

HER HONOUR:

Introduction

The first plaintiff (‘Constance’) seeks further provision from the estate of her mother, Abigail Jones deceased (‘the deceased’ or ’mother’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’). The second plaintiff (‘David’), is Constance’s adult son and a grandson of the deceased. He also seeks provision from the estate of the deceased.

The deceased died on 14 February 2012, aged 93 years. The deceased’s husband, John Jones (‘John’ or ‘father’), died on 26 June 2007. They were survived by their three adult children:

(a) Edward Jones (‘Edward’ or ‘the defendant’) born 10 September 1950;

(b) Constance born 29 March 1953; and

(c) Phillip Jones (‘Phillip’) born 19 December 1954.

Constance married Thomas Smith (‘Thomas’) in 1973. They have three children:

(a) Felicity Smith born 11 August 1975;

(b) David born 7 January 1977; and

(c) Robert Smith born 28 February 1980.

The will and estate of the deceased

By her will dated 27 September 2007, the deceased appointed the defendant as the executor and trustee of her estate. Probate of her will was granted to him on 6 June 2012.

At the date of death, the deceased owned five properties and had personal estate of approximately $226,000. These five properties were purchased jointly by her and her husband, John, during their marriage. On John’s death, the five properties passed to the deceased as the surviving proprietor. In John’s will dated 15 July 1964, he left his other assets to the deceased but, if she did not survive him, then to his three children.

At trial, the parties agreed the present day value of the estate was $6,181,759 comprising real estate valued at $5,985,000 and personal estate of $196,759. These figures were calculated after payment of administration costs and the estate’s legal costs to the date of trial.

The deceased’s will provided for her estate to be distributed as follows:

(a) Property 1 valued at $1.23 million to Edward;

(b) Property 2 valued at $1.28 million to Constance;

(c) Property 3 valued at $1.2 million and the family home property valued at $1.5 million to Phillip;

(d) Property 5 valued at $775,000 to Phillip and Edward as tenants in common in equal shares; and

(e) the residuary estate to the deceased’s three children as tenants in common in equal shares.

Future estate costs, including income tax, the estate’s costs of the proceeding and claimed executor’s commission of $160,000 calculated at two per cent, are still to be paid. This leaves a net value of approximately $5,900,000 and excludes any of the plaintiff’s legal costs being paid from the estate. On these figures, if the real properties are transferred in specie to the beneficiaries, there will be a shortfall of $85,000 in the estate.

Based on these agreed figures, Constance receives 22 per cent of the estate assets and David receives nothing. This was explicitly acknowledged by the deceased in clause 7 of her will as follows:

7. I have made this Will taking into account the competing interests and the financial needs of all those to whom I owe a duty to make proper provision. I specifically RECORD the fact that after serious consideration and after being informed by my lawyers of the existence of the provisions of Part IV of the Administration and Probate Act 1958, I have provided less in this my Will for my daughter CONSTANCE SMITH as I consider that more than adequate provision has been made for her by me and my husband during my lifetime. I also specifically RECORD the fact that after serious consideration and after being informed by my lawyers of the existence of the provisions of Part IV of the Administration and Probate Act 1958, that I make no provision for my grandson DAVID SMITH, as I consider that I have no duty or moral obligation to provide for him and in addition for the reason that I have made sufficient provision hereby for his mother and my daughter the said CONSTANCE SMITH.

In addition to the estate assets referred to above, the deceased was the owner of a Lifeplan Funds Management Capital Guarantee Fund of approximately $450,000 as at 30 June 2014. The deceased’s three children were nominated as the beneficiaries of the Fund and this amount has been divided equally between them.

The case for Constance and David

Constance contends the deceased had a moral obligation to provide for her proper maintenance and support due to the sexual abuse perpetrated by her father because:

(a) the deceased knew of the abuse and did not do enough to remedy it; and/or

(b) the deceased promised Constance that she would receive an equal share of the family wealth as the price for her remaining quiet about her father’s sexual abuse of her;

(c) the deceased received the family wealth by way of survivorship and under John’s will, this meant she had a moral responsibility to make proper provision for Constance; and

(d) the deceased had a moral obligation to make further provision for Constance due to the financial and psychological impact that the sexual abuse has had on her and her family.

David contends the deceased had a moral obligation to provide for his proper maintenance and support because of John’s sexual abuse of him and because:

(a) the deceased knew of the abuse and did not stop it from occurring; and/or

(b) the deceased is the beneficiary of John’s assets by survivorship and the moral responsibility to make provision for David passes to her with the receipt of the estate.

In opening submissions, counsel for Constance and David were content that the relief sought for David be included as part of Constance’s share of the estate.

The estate’s defence of the proceeding

Edward submits the claims by the plaintiffs should be rejected on the following bases:

(a) he does not accept that any sexual abuse of Constance and David by John as alleged occurred, noting this is a matter upon which they bear the burden of proof;

(b) he submits the Part IV provisions of the Act are not substitutes for compensation claims suffered by a person as a result of a deceased’s wrongful acts;

(c) he accepts that the deceased had a responsibility to make adequate provision for the proper maintenance and support of Constance but submits that when regard is had of her financial position and that of Thomas, together with her inheritance and share of the deceased’s Lifeplan Fund, the deceased has discharged her responsibility to Constance;

(d) he submits that as a grandchild of the deceased, she had no responsibility to make adequate provision for David’s proper maintenance and support.

The evidence of the plaintiffs

Constance said that during her school years, the family were scared of John. He was abusive, smacking the children for the slightest reason, hitting them with electrical cords and cursing them, as well as the deceased. She described her father as dominating, verbally and physically abusive and said that he suffered from incredible mood swings. He picked fights with the deceased who was afraid to stand up to him and was unable to protect the children from his behaviour. On one occasion, he threatened to shoot the family and, at other times, he threatened the deceased with a large hunting knife he kept in his bedroom. The deceased always forgave him and Constance struggled to understand this. Constance said she had a good relationship with her mother throughout her childhood and adolescence but it was tainted by her relationship with her father. Constance had very good relationships with her brothers and they cared for each other and were close.

John’s sexual abuse of Constance

In 1967, when Constance was aged around 14 years, her father started to sexually abuse her. One afternoon she arrived home from school and her father called her into his tool shed. He pulled out his large hunting knife, pressed it against her stomach and threatened to ‘gut’ her if she did not do what he wanted. He then sexually assaulted her and warned her not to tell anyone. The sexual assaults by her father continued for 12 months, at different times of the day and night and in different parts of the family home. The assaults generally occurred when her mother was not home, however Constance had her suspicions there were times when her mother knew what was going on:

Once my father was sexually assaulting me… in my bedroom, he had left his bedroom door - ajar and he had me in my bedroom, behind my bedroom door, which was only a couple of metres away … and he had left their bedroom door open and that stuck to - in my memory, why he would leave his bedroom door open while he had me in my bedroom?

Constance experienced a wide ranging combination of emotions: she was shocked, felt dirty, was ashamed, felt guilty and violated. She knew her father’s behaviour was not normal. Over the time of the sexual assaults, her father’s behaviour towards her deteriorated. She felt she would be better off if he did kill her and became increasingly desperate, at times, suicidal.

It was when she feared she would end up pregnant that Constance decided to tell her mother about the sexual abuse. Her mother told her she would ‘take care of it’. A few days later, her mother told Constance that she had discussed it with her father. He had begged for forgiveness and said he would not do it again. Because her mother took no further action, Constance was angry and confused. Constance pleaded with her mother to leave her father. Her mother told her that if she left her husband, Constance would lose out as the estate they were building together would go entirely to her husband. Constance said that although her father did not abuse her again, he made her life a living hell with his emotional abuse of her from that time onwards until she married Thomas in 1973. Constance described her mother as being kind and affectionate to her children but her downfall was that she had a weak nature and did not protect the children from their father.

Whilst Constance acknowledges what her mother did in stopping any further sexual abuse from occurring, she said that stopping the sexual abuse was not enough to fix the problem. She felt:

…she should have done more than that. She made me live in that house and accept my father as a loving father, she kept explaining him. She did nothing - she made me stay in that house.

Constance said her mother refused to go to the police with stories of the abuse. She also refused to tell authorities about the sexual abuse when her father had a mental breakdown and was involuntarily committed to a mental institution in 1969. While he was at the mental institution, her father asked her mother to tell the staff that he was a good person and asked Phillip to say he was a good father. Constance argued with her mother saying it was time to tell the truth, but her mother was anxious not to cause any conflict. Her father was discharged from the institution with medication for his mood swings but he threw it away once he returned home.

Constance’s teenage years after the sexual abuse

Constance said she was an average student at school and was not confident. She found it hard to concentrate in class and hard to maintain friendships. She referred to the constant stress at home caused by her father affecting her school life. She dropped out of school in Year 11, and worked as a data process operator in Clifton Hill. She started to defy her parents, particularly her father, not wanting him to control her life any more. Occasionally, her parents asked their relatives to lecture her. This upset her because she felt she was not doing anything immoral, and she could not stand the fact that her father acted as if he were a caring father before the relatives.

In 1972 and 1973, Constance was unable to cope with the stress of her father’s behaviour and she suffered a couple of minor breakdowns. Her father called the doctor the first time it happened. He attributed the breakdown to stress but her father did not tell the doctor about his sexual abuse of her. On another occasion when she broke down, her father did not call the doctor saying she ‘was fine and will get over it’.

Constance’s marriage to Thomas

In early 1973, Constance met Thomas. After dating for a time, he proposed to her and they married in December 1973. During her breakdowns in 1973, Thomas kept asking Constance what her father has done to make her feel as she did but Constance could not tell him.

After Thomas became engaged to Constance in 1973, John was always asking Thomas to help him out with errands. While Thomas was always helpful, he made it clear he was not happy to be the only one from the family who always assisted. John told Thomas on many of these occasions that ‘all their estate would be theirs one day’.

John did not drive a car and Thomas picked him up regularly from his house at 6am on a Saturday morning to take him shopping. He did so even though Edward lived next door to John.

Thomas said that for the first few years that he knew the family, they were always arguing. Despite this, Edward was allowed to stay in the house next door to his parents without paying any rent. When Edward moved out of the house, John expected Thomas to help him paint it before renting it. Thomas was not happy about that and he told his mother-in-law that he was angry to have to spend his family time helping John paint the house. She told Thomas ‘not to worry about John’ and asked if he could please help him as ‘all this will be yours one day’. Thomas was always reassured by both his mother-in-law and John that one day the properties would be shared amongst all of the children.

Constance and Thomas enjoyed a cordial relationship with the deceased and John in their early years of marriage and both described family visits to the grandparents, although Constance said that she would never leave her children at home alone with her father.

John’s physical attack on his wife

In 1978, Constance’s father violently attacked her mother, giving her a black eye. She called Constance and Thomas and when they arrived at her parents’ home, her father became enraged and tried to attack her mother again. Thomas intervened and they took her home with them, where she stayed for two to three months. Constance and Thomas supported her both financially and emotionally and let her know she could stay with them for as long as she liked. Her mother was concerned she would be left penniless and that her three children would miss out on their inheritance if she did not return to her husband.

Constance said her father’s behaviour did not improve when her mother returned home. Her freedom was severely restricted before this incident but it became worse after her return. She was no longer able to visit Constance or help her with her children as she would have liked, particularly when they were little.

John’s sexual abuse of David

David provided details of the sexual abuse that he suffered at the hands of his grandfather, which David claims started in 1980 and ended when he told his mother of the abuse in 1981, a period of between one and two years. There was some dispute at trial about how long the abuse went on. In his statement to the police, David said the abuse occurred until he was seven years old, meaning it would have continued after he told his mother in 1981. Ultimately, it was agreed by David that the abuse most likely stopped when he told his mother, but that there was some room for error due to his age and the nature of the abuse. He explained it by saying:

Well that must be an error because it may have felt like it was so long that um I couldn't break up or have a timeline. I guess it felt like that long. I was only four years old.

The abuse included molestation and graphic acts of a sexual nature. They are described in detail in both his statement to the police and in his statement of claim seeking compensation. David said that despite his age, the acts by his grandfather made him feel confused and ashamed.

David also testified that his grandmother was aware of the abuse. He stated that the abuse had occurred while his grandmother was at home and so she must have been aware of what was going on. He also described one incident where his grandmother had witnessed suspicious activity suggesting that the sexual abuse was taking place:

Well on one occasion I was being led down the hallway to his room and she was standing at the, at the door at the end of the hallway… and she saw me going into the bedroom with him.

In cross-examination, David added that his grandmother had seen John lock the door after they went into the room.

It was not until David told his mother about the abuse that the sexual attacks stopped. Constance confirmed that, in 1981, when she was giving her daughter Felicity and David a bath, David told her that his grandfather ‘rubs his pee pee on my bum and he wees on my bum’.

Constance described her reaction to this statement:

I believed him but I was hoping that I was – I mean – it was a big shock, so I asked him again and he repeated the same thing to me.

Constance’s reaction to John’s sexual abuse of David

Once the children were bathed, Constance asked Thomas to drive her to her parents’ house. While she was in the house, Thomas waited in the car. Constance was very emotional and upset. She went into the living room where her parents were sitting and yelled at her father about his sexual abuse of David. Her father denied any abuse of David, telling her that he was making it up. It was a heated exchange. Her mother remained silent throughout and looked worried. Constance told her father she would report him to the police if he did not get help. She asked her mother to get medical help for her father. She told her that the abuse of David would not have taken place if she had left her father when Constance was abused by him, as she had pleaded of her mother at the time. Constance repeated that she expected her father to get medical help or she would report him for the sexual abuse of David.

Constance went back to Thomas waiting in the car. She did not tell him what had happened because she felt immense shame and guilt for what her father had done to her son. She told Thomas that she did not want to go back to her parents’ house again.

Shortly after this, Constance told Edward what had happened. She said he was disgusted with their father and he never doubted that David was telling the truth. This was because Edward knew of their past home life. Constance said she did not tell Phillip as his own mental health was poor at the time.

Constance was too ashamed to discuss what had happened with anyone else. She did not tell Thomas. She felt completely lost and did not know what to do. She wanted to report the abuse of David to the police but was fearful that if she did, it would be more damaging to David’s psychological health.

After this, Constance and her family did not visit her parents for approximately six years although she did see her mother during this time, when her mother secretly came to Constance’s house during the day to visit her and the children. It was not very often and her mother did not stay for a lengthy time. Constance avoided calling her mother at home in case her father answered the telephone. David also said that after Constance’s confrontation with her father in 1981, David did not see his grandfather for six years. He said his mother maintained a relationship with his grandmother, as she visited Constance and the family and sometimes looked after the children.

Constance asked her mother from time to time if her father had sought help but she would not answer her. Constance concluded that he had not done so. If the subject was brought up by Constance with her mother, her mother changed the subject.

During this period, her father rang Constance on two or three occasions and asked her to visit him with her family. Constance declined. Each time she spoke to her father, she confronted him about what he had done to David but he continued to deny it and avoided the subject.

In mid-1986, Constance’s parents went overseas for about six months and before they left, her father rang her and said hello. Constance did not wish to talk to him and asked him to pass her on to her mother.

John’s admission to Constance and the deceased that he sexually abused David

In the year after her parents returned from their trip, Constance’s father again invited her family to visit them. Constance decided to speak to her father privately before considering taking her children to see her parents. She spoke to her father in the living room. Her mother was in the room but did not speak at all. Constance confronted her father about what he had done to David as well as his abuse of her. She told her father he had ruined her life and that her nerves had been shattered since he first touched her. Constance was extremely upset and shaken up. She told her father, ‘Don’t you dare tell me you didn’t touch David’. She accused him of lying and told him she would never bring her family into his house again if he ‘did not come clean’. On this occasion, Constance’s father hung his head and admitted to her what he had done. She said he seemed remorseful and asked her, ‘what do you want me to do?’ Constance again repeated that he was to seek help. Her father never did.

Constance told Edward that their father had admitted the abuse. She said that Edward was not surprised. Constance and Edward were still disgusted with their father at this point in time. When Edward’s daughters were growing up, Constance warned Edward and her mother on a few occasions to be careful not to leave Edward’s daughters on their own with their father. Constance did not tell anyone else about her father’s admissions as no one else knew about his sexual abuse of David.

Constance and her family start visiting John and the deceased again

After her father admitted to the abuse of David, Constance and her family gradually started to visit her parents again. Constance thought that by distancing her children from her parents they were missing out on bonding with their grandmother and other relatives. She made sure that none of the children were ever alone with her father and that she was always at the house with them when they visited. She also asked her mother to ensure that her father was not left alone with any of her children. Constance thought that David would not recall the sexual abuse because she had kept him away from her father for such a long time.

Once Constance and her family started visiting her parents again, she was able to bond with her mother and they had more time together, especially when Thomas was helping out her father. Sometimes she would drive to her parents’ place during the week when the children were at school and, on other times, she would visit with Thomas and the children on the weekend.

During this time, Thomas and Edward were working full-time on building up their business, Food Company. Thomas worked for long hours to build up the business but there was not enough cash flow to pay him any regular wages. Constance stayed at home to look after the children. Constance said that when the children were growing up there was more pressure on her to spend extra time with them, for example, by helping them with their homework as Thomas’s English was not very good. As a result of her trauma, Constance did not have much patience and would often feel overwhelmed. By then, Felicity and David had started language school but Constance pulled them out as the pressure on her was too much.

Constance considered that, on the whole, her children were happy doing normal family activities, such as picnics, birthday parties, and holidays. They often undertook these activities together with Edward and his son.

It was around this time, when David was in his early teens, that he began using marijuana. This progressed to the use of cocaine and ecstasy by the time David was 19 years old. David’s drug use was a constant source of conflict within his family. It affected Constance and Thomas as well as their other children, Felicity and Robert.

Towards the end of 2000, David was one of 23 out of a group of 5000 applicants accepted into a prestigious acting school. In 2001, he enrolled in a three year course in acting. Constance and Thomas were very excited and immensely proud of David, and hoped this was a new beginning.

In his second year at acting school, David began to suffer from psychotic episodes. He would ring home and his family would try to console him and persuade him to seek medical help. In 2003, David graduated from his acting school.

Constance and Thomas’s business issues with Edward

In about 1980, Constance and Thomas established a health food business with Edward. They operated the business through the company Food Company. Thomas worked in the business. In 1982, Edward’s friends, who operated a business under the name of Side Company, became partners in the business. Their accountant, who was also in the business, created a unit trust called Food Company Unit Trust. The business was not making any distributions and Thomas’s wages were low at that stage.

Constance and Thomas then sold their house in Thornbury and some of their units in Food Company and bought a home in Templestowe. In 1986 Thomas sold more of their units in Food Company. In 1994 the partners of Food Company put the business on the market, due to financial differences, and Thomas set up a small nut and confectionary business with Food Company’s accountant. Also in about 1994, Constance and Thomas set up a small business through their family trust in partnership with their accountant. This business machine-packed loose lollies, nuts, dried fruit mixes and the like into bags. Thomas and the accountant worked at this business after working at Food Company and on the weekends. By 2001, Thomas and Constance had increased their loans to $350,000 in order to run the business and support themselves. In 2002, they also took out a further loan of $504,000 to purchase an apartment in Docklands.

Around this time, Edward and Constance met privately in an attempt to patch up their financial differences arising from the business operated by Food Company. Edward wanted to know how David was as he had heard of his drug abuse. Constance told him that she and Thomas were very concerned about David and the business pressure from Food Company was contributing to his problems. Constance told Edward that David remembered his grandfather’s sexual abuse and had mentioned it a few times to her since his early teens. Constance thought Edward appeared angry at the thought at what their father had done to David.

Constance’s relationship with her mother until 2005

Notwithstanding Constance and Thomas’s business disputes with Edward, Constance’s relationship with her mother was affectionate and warm. Her mother was there for her and helped her whenever she could up until 2005. Constance noted however that sometimes when her father was aggressive towards her mother, it triggered memories of her own sexual abuse or David’s abuse. She would tell her mother that no good had come of her staying with her father and that it upset her to see her mother so sad all the time. When David’s memories of the abuse started to come back, Constance would tell her mother how worried she was for David and how upset she was with her for not taking action against her father. Her mother would be apologetic, telling her that ‘I stayed with him for your sake’, and ‘this will be all yours one day’. This upset Constance even more, knowing that her mother put her estate or assets first instead of Constance and David’s happiness and welfare.

In August 2004, Constance’s mother asked her to drive her to a new treatment involving a massage bed at a centre in Box Hill. The treatment seemed to ease her pain so Constance took time off work to drive her to the centre four times a week for a period of two months. During this time, her mother could see how busy Constance was with her family and the amount of work she did with cooking, cleaning and driving her back and forth to the centre. Her mother said to Constance on this occasion ‘I give you my blessing’ which was her mother’s way of expressing her gratitude. It made Constance happy to see that she could improve her mother’s quality of life. Constance also took time off work to care for her mother when she came to stay with her for a week while her floors were being polished.

In 2005, David went to an Institute of TAFE and completed a Certificate IV in Business. He considered establishing a consultancy business in Melbourne and was simultaneously auditioning for acting work. However, he began to experience bouts of severe depression and became very emotional. When he was living away from home and feeling depressed, he would turn off his mobile phone and refuse to speak to Constance or Thomas, and they spent many restless nights wondering if he was all right. David became increasingly anxious, irritable and aggressive. Thomas and Constance were so concerned for his mental wellbeing they had him admitted to hospital on 15 May 2005 as an involuntary patient. It was a devastating and emotional experience for the family and David has struggled to forgive his parents for going against his wishes.

David’s confrontation with his grandfather in 2005 about the sexual abuse

David said that as he grew older, he saw both his grandparents more and more, and even saw his grandfather alone. They enjoyed a good relationship, and David would drive them to and from Templestowe on special occasions.

The relationship changed when David confronted his grandfather in early 2005 over the sexual abuse he suffered. He did this to seek ‘closure’, and said that his grandfather admitted to the abuse, and said ‘he was sorry for what he did’. The confrontation became physical and the relationship between David and his grand-parents broke down.

In July 2005, David informed Constance and Thomas that he had reported his grandfather’s sexual abuse to the police. On about 9 August 2005, Constance made a statement to the police in relation to her father’s abuse of David.

Before David disclosed his grandfather’s abuse to the police, Constance’s parents always promised her that their estates would be effectively left equally between Edward, Phillip and her. Constance had known since she married Thomas that Property 2 would be left to her. When her parents moved from Property 1, where the three Jones children grew up, to the family home property, her parents told her that Edward would get Property 1 and Phillip would get the family home property. The residuary estate would be divided equally between the three of them. This was said many times by both her parents to her and it is an arrangement reflected in her mother’s previous will dated 25 June 1990. Constance’s father’s will also reflected this arrangement.

Thomas learns for the first time of John’s sexual abuse of David

When David told his parents that he had reported his grandfather’s sexual abuse to the police, Thomas was in shock because he had never been told about it. Constance told Thomas that she knew about what had happened to David when he was around four to five years old. She explained to Thomas that it had occurred at the time when she asked Thomas to drive her down to her parents to have a word with her father. Thomas remembered this occasion and that she was very upset but Constance only said to him that ‘she’d had enough of her father and wanted to have it out with him’. Thomas had thought it was probably due to his demanding attitude as he was a very hard person to get along with. At the time, Thomas also felt sorry for his mother-in-law for what she went through over the years. Constance also told Thomas that she had told Edward about the sexual abuse of David straight after she found out about it.

Thomas was devastated and haunted by these revelations. He could not understand how his father-in-law could have done such an act and still expected at the time for Thomas to provide him with so much assistance. Thomas says that his mental health has been affected as a result. Thomas had a lot of dreams in his life for his family but he stated that all of this was destroyed with his life never to be the same again.

Constance and Thomas confront Constance’s parents over his abuse of David

After August 2005, Thomas and Constance went to visit Constance’s parents and Constance again confronted her father. Her father was unable to answer any of their questions. Thomas was very angry and wanted answers. He asked John, ‘what did you do to my son?’ John turned around, looked at him, got up and pointed at Constance and said that we ‘had put David up to it to get his money’. He then ran to his bedroom and locked the door. Constance asked her mother why she had not done anything about the situation when the abuse happened, as at that time, Constance was a young mother and needed her mother’s support. She explained to her mother that the abuse had destroyed David’s life and torn the family apart, but her mother could not answer her. She told Constance and Thomas that they had put David up to it to extort money out of John. This was the first time that Constance noticed a change in her mother. Constance and Thomas told the deceased that they would do whatever it took to get justice for David. Her mother said she was very sad and that ‘it wasn’t good that this was happening in the family’. Constance felt betrayed by her mother that she could say such a thing, especially when she knew of the abuse that Constance suffered from her father. As a result, Constance kept away and did not visit her parents again. Thomas said his mother-in-law said nothing of the incident and she did not deny it. She only said words to the effect of ‘it’s not good what has happened in the family’.

After David filed his report with the police, his grandmother started to call Constance, asking her to come to their house and discuss what they could do for David. Constance was too shaken to do that. The family was affected by David’s health problems and Constance told her mother that she was not interested in their money.

Edward’s concerns over David and offers to help David

Around 2006, Edward came to Thomas’s house to talk about David and also to try and resolve their differences involving the business, Food Company. They spoke of David’s abuse and Edward asked Thomas, ‘how come you didn’t punch his face in?’ Over the following days, Edward kept in touch with Thomas, saying his main concern was to help David. Thomas said they started to become a happy family once again and he was glad to see Edward’s family and his family reunite. During these visits, Edward offered David a house and funding from his parents’ estate to help him attend a rehabilitation centre.

David’s claim for compensation claim against John

In February 2006 David engaged solicitors to bring a claim for civil compensation against John and a statement of claim was filed in the County Court on his behalf. David said that after he reported the abuse to the police in 2005 and engaged solicitors to commence a civil proceeding, his relationship with both grandparents was tense. It was limited to discussion of David’s requests for compensation for the abuse, although David said he spoke to his grandfather about seven or eight times.

When Constance looked at her mother’s accounts in preparation for this proceeding, she found documents that showed from late 2005 onwards, her parents put Properties 1, 2 and 3 on the market for sale.

David’s health deteriorates

In 2006, David began to use drugs again. He agreed to attend a rehabilitation program in Warburton. Constance and Thomas paid approximately $23,000 for the program, which included his admission and the subsequent Salvation Army program in 2008. However, as David was required to forego all prescription medication in the program, which assisted him with his mental health issues, he left the program after just four days.

Throughout 2006, David continued to suffer medical problems and, in later years, several seizures that resulted in his hospitalisation on more than one occasion.

Constance and Thomas commence and settle proceedings against Food Company

By December 2005, Constance and Thomas were in financial trouble with their business and were at risk of losing their home. They feared that if they continued they would not be able to repay their creditors. They commenced proceedings against Food Company. At this time, Edward was a director of Food Company and a majority shareholder with a 65 per cent share. The claim was mediated on 27 February 2007.

At the time of the mediation, David had recently been hospitalised in Sydney, which was a traumatic experience for Constance and Thomas as they had been misinformed by the police that he had died. Constance and Thomas were so concerned with David’s health and wellbeing that they were not focussed on the outcome of the mediation. As a result, they accepted a sale price of $1.7 million for their share of the business less $150,000 that they had borrowed from Edward in June 2006. Constance and Thomas were later informed by their accountant that the sale was not in their favour and they should have obtained financial advice prior to settling the proceeding. Over half the settlement funds went in repaying their bank loans and other liabilities and they used the remaining moneys to support themselves from 2007 onwards. Some of that amount forms part of their current savings.

The death of John

On 26 June 2007, Constance’s father died. Before John’s death, the police were still in the process of preparing their brief of evidence. On the same day, by letter dated 26 July 2007, the solicitors for John in the County Court proceeding informed David’s solicitors that they were instructed that the deceased was entitled to the jointly owned properties by survivorship and that John left no estate or personal assets to satisfy any claim or judgment against his estate. As a result of the death of John and the fact that he did not leave an estate, the civil and criminal cases that were being prepared against him could no longer proceed.

After John’s death

After her father died, Constance was very emotional towards her mother. Constance told her mother that she had betrayed her trust. She asked her mother how she ever doubted Constance after what her mother had been put through by her father. Constance continued to come and see her mother because she still cared for her. Her mother was always concerned about David’s struggle with life and would ask how he was and said she prayed for him at church.

After his grandfather died, David’s relationship with his grandmother became estranged and he became very angry with her. From time to time, his grandmother would call Constance to speak to her and ask to speak to David. David would then argue with his grandmother about how one-sided she was about John when David wanted to seek justice for what had been done to him. He said to her that she knew about the sexual abuse. David did not reconcile with his grandmother until 2009.

Constance and Thomas visited Constance’s mother each week. They cooked and cleaned for her, sorted her mail, advised Phillip and her when her bills were due and helped Phillip with other things. Thomas also continued to do any maintenance jobs around the house and would also take Phillip out to buy any supplies he needed. Constance said her relationship with her mother was generally good at this time and her mother often asked about David, Felicity and Robert. Her mother never discussed the abuse of David or Constance unless Constance brought it up with her. In response, her mother would be either quiet or apologetic. She would say things like, ‘I understand your pain’ or ‘I’m sorry for what you’re going through’. On other occasions she said, ‘he was a good, hard-working father providing for his family and had created this estate for you three’.

Thomas did not hold a grudge against his mother-in-law. This was because he felt she was weak and had to obey her husband. Thomas did the maintenance on her house. He fixed broken taps in the sink and replaced them with new ones, replaced the toilet, replaced the lock on the front door, installed a new door bell, repaired the garage door lock, checked the roof leaks in the kitchen, cleaned up all the spider webs, fumigated the property and took Phillip to do the weekly shopping. Most of the time Thomas’s mother-in-law would repeat to him ‘all this belongs to you all’.

David’s depression worsened. He returned to Sydney for some time before moving back to Melbourne. He was assaulted by a flatmate. He began to use drugs and alcohol again but recognised this was a problem and asked Constance and Thomas to pay for his admission to another rehabilitation program, which they did. He remained in the program for one month before moving into temporary accommodation at a nearby hostel. Despite his best efforts to make a fresh start, he suffered further physical injury and this set him back even further. He was hospitalised on numerous occasions in 2007 for depression, paranoia and issues with his medication.

Constance’s mother gives money to her three children

On about 14 August 2008, the deceased gave her three children a cheque and said she was giving equal amounts to all of them. The deceased told Constance that she had transferred the savings she had overseas following John’s death. Phillip and Constance received $200,000. Constance has since discovered that Edward received $250,000. Constance does not know why her mother gave more to Edward than to Phillip and herself. At the time she gave Constance the cheque she also told her that she had set $200,000 aside for her own expenses if needed and wanted to give all the children a gift. She reassured Constance that she had looked after her in her will and that there was another $400,000 set aside in another account. She told Constance she would be an equal beneficiary with Edward and Phillip under her will but that Constance was not to tell this to Edward and Phillip.

David is awarded some compensation and resumes a relationship with the deceased

On 7 July 2009, David was awarded $7,000 and future compensation for further counselling by the Victims of Crime Assistance Tribunal. In approximately 2009 after some time had passed, David went to his grandmother’s house and said he ‘forgave her’. He did not bring up with her the issue of the sexual abuse or the litigation. He did not once ask his grandmother for money in the years leading up to her death and he saw her regularly from this time onwards until her death in 2012. He said his relationship with her in this period was good and his grandmother was affectionate towards him. His grandmother was aware of his mental health problems and difficulties in finding work as his parents had told her about his problems. When he visited her, she would ask him how he was. David acknowledged that by the time his grandmother died, he had warm affection for her and she for him.

Constance sees her mother’s will

In about May 2011, her mother gave Constance a copy of her will and she was shocked at the contents of it, so shocked that she did not raise the subject with her for a number of months. Eventually she asked her mother why she had referred to David in her will in the way that she did and why she had made less provision for Constance than her brothers. Her mother looked surprised and replied she knew nothing about it, so Constance repeated it again and she replied in the same way. When pressed on the matter, her mother became confused and started telling stories of how she had heard about ‘other old people having signed a will that did not reflect their wishes’. Constance did not pursue the matter any further with her other than to urge her to consider re-drafting the will so it was fair to all of them, including David. The following week she asked her mother if she had spoken with Edward about her will and her mother replied ‘the will is made and it can’t be changed’. Constance did not pursue it further as her mother became distressed when talking about it.

David’s health deteriorates

As David’s health started to deteriorate and the phone calls for help became more frequent, Felicity’s health also suffered. Constance said that Felicity had already suffered from depression during her course at TAFE. After breaking up with her boyfriend of three years due to trust issues, she returned home to live. Her depression returned as she came home to a house full of despair with financial problems and ongoing concerns with David’s health. Each time Felicity felt stable, the family would go through another tragedy with David and this had a tremendous impact upon her.

In early 2013, David’s health had deteriorated to a level that Constance and Thomas had not experienced before. While Constance and Thomas were away in January, Felicity had to commit David to hospital. To see her brother so unwell shook Felicity up dramatically. David was in and out of hospital another three times between January and March. On one of these occasions, he attempted suicide and took double strength rat poison. No one in the family was coping very well. Felicity could not live with any more stress at home and moved out despite not being able to afford to do so. Constance and Thomas currently assist her financially.

Constance tells Thomas about John’s sexual abuse of her for the first time in May 2013

Constance did not disclose her father’s sexual abuse of her until six weeks before she affirmed her affidavit on 1 July 2013. This was the first time that her husband, Thomas, found out about John’s sexual abuse of Constance. Thomas agreed that he did not know about John’s sexual abuse of Constance until she told him in 2013. After Thomas found about the abuse, he was very angry with his mother-in-law that she did not protect Constance and David. This added to his outrage that her will was not as she had promised to him.

The impact of John’s sexual abuse on Constance

The impact of the sexual abuse on Constance is hard to quantify, given the period of time that has lapsed since it occurred and her inability to talk about it. Constance’s impetus to disclose this information was David’s disclosure of the sexual abuse by her father, where she said:

…the more sick David got, the more it all played out in my mind of what my father did to me…

Constance has suffered as a result of the sexual abuse but kept it to herself apart from telling her mother and confronting her father. It caused her to have an unhappy childhood suffering setbacks at school and, in 1972 and 1973, culminating in a series of nervous breakdowns that went untreated by professionals.

Constance said the process of reliving the abuse while preparing for trial has had a negative impact on her mental health:

The process of preparing this affidavit has been extremely difficult and heart wrenching and I have started to relive the abuse and feel the pain and trauma I was going through all over again. My mental health is not good at the moment and is impacting on my health in general.

Constance only began receiving counselling for the abuse in 2014. She received eight months of counselling, but stopped when David’s behaviour made it impracticable to continue and she has found it difficult and traumatic to discuss the abuse. Constance stated that she would like to continue the counselling:

I just didn't go back although I feel I should be. I um I didn't and a lot of times I feel I should and - and I think I eventually will because things just don't get any better in our household.

What she affirmed in her affidavit and in her oral evidence was all she could disclose at the time of the trial. She feels that she will need ongoing counselling and further treatment to deal with issues arising from the sexual abuse.

The impact of John’s sexual abuse on David

David described the impact of the sexual abuse as starting from an early age. He had nightmares, he wet the bed from the ages of five and six and was sleepwalking until the age of 13 years. He said he had found it ‘hard to focus’ at school and had problems ‘even fitting in with people’. Despite this, David acknowledged his primary and early secondary school years were not particularly problematic. He described those years as ‘okay’ and ‘all right’.

David’s drug use can also be linked to the abuse. He initially began using drugs because he was ‘curious’ and because ‘my friends were doing it’. But when he realised they were effective at alleviating the memories of the sexual abuse, David began to use them more heavily:

And then when I felt the effects of it and what it could do for me in - in that respect of ah you know blocking the memories of my childhood abuse I started taking it more and more as a form of medication you could say.

David has also received treatment for the significant psychological issues resulting from the abuse, first seeing a counsellor in 2000. He has been diagnosed with ADHD, depression and post-traumatic stress disorder and has also suffered from psychotic episodes. He has been hospitalised on a number of occasions when he exceeded the dosage of his medication.

David has used drugs, including marijuana, ecstasy and cocaine, throughout different periods of time up until this year. As stated, he has spent periods in rehabilitation but they were often unsuccessful due to his mental health issues. David’s drug problems and psychological issues have also resulted in a number of suicide attempts, most recently in 2014.

David’s drug use has had an impact on his career. Since his time at the prestigious acting university, David has had few acting roles, and has only found work in various roles in retail and hospitality. While he has had different ideas for new businesses, none of these plans have made it off the ground. He has lived out of home at various times, including once with a girlfriend, but has found it difficult to have long term relationships. He currently lives at home with his parents.

The medical and psychiatric reports concerning David’s health and wellbeing

In evidence are specialist reports concerning David’s state of health and wellbeing over the years and up to the trial date.

The first in time is Dr Alan Blandthorn, consulting psychiatrist, dated 29 May 2005. Dr Blandthorn saw David once in August 2000, then on 30 April 2003 and in December 2003 and finally at the beginning of 2004. In his report, Dr Blandthorn set out the medication and treatment undertaken by David for his ongoing difficulties. By the beginning of 2004, David had depressive symptoms and was on constant medication for his various conditions.

The second report is by Mr Ross Wall from the Eastern Centre Against Sexual Abuse dated 17 April 2007 and written for Victoria Police. The report details Mr Ross’ clinical work with David. Mr Wall has qualifications in psychology and counselling and works in sexual trauma. Mr Ross makes the point that childhood abuse can go unnoticed for a considerable period of time, and it is often not until a client has the verbal skills and understanding to start dealing with past traumas that it is revealed. Mr Ross also stated childhood abuse affects how a client might deal with life on a daily basis. Mr Ross concluded that because David was under six years when he was assaulted, it has had a profound impact on his subsequent development. He states that seemingly harmless or trivial events in later life can trigger emotional distress, with the past trauma becoming the present and causing difficulties with regulating its affect and impulses. In this situation, David can be disorientated, confused and see himself as ineffective and damaged and responsible for his shame and confusion. Such experiences alter David’s relationships with others through a lack of trust and a sense of re-victimisation, acting out with sexual symptoms and digestive upset.

The third report is by Dr Alan Large, consultant psychiatrist, dated 24 November 2014. In Dr Large’s opinion, David has suffered long term effects as a result of the repeated sexual assaults by his grandfather and this has probably played a part in his misuse of substances in his teenage years. The childhood trauma may have rendered him susceptible to continuing mistrust, leading later to social withdrawal and at times paranoia. It also may have increased his vulnerability to post traumatic stress, and been a factor in his psychotic reactions to the long term use of dexamphetamine for ADHD.

The fourth report is from Dr Xenia Prodromou, consultant psychiatrist at Eastern Health, dated 23 March 2015. Dr Prodromou sets out David’s current health issues, his current diagnosis and future prognosis. David has had a relapsing health issue with both a mood and psychotic component since the age of 21 years. This often occurs in the context of illicit and prescribed substance use and misuse. His illness has impacted him on a number of levels and has affected him achieving his potential. Dr Prodromou also assessed David’s future prognosis as having a longitudinal history consistent with a major health condition. His recovery has been complicated by noncompliance, illicit substance abuse and abuse of prescription medication resulting in psychotic decompensation and multiple inpatient admissions. He does not understand the need for ongoing psycho-tropic medication and monitoring and abstinence from other substances, and his safety is compromised due to drug use and possible drug side effects. Other insights into his ongoing health are set out in the report. Dr Prodromou concludes that David’s prognosis is guarded due to these factors.

The impact of the sexual abuse on Constance’s family

Constance described the impact of the abuse as ‘not getting any better’ for her family as time passes. Significant emotional and financial resources have been invested by the family in dealing with David’s drug use and psychological problems. Constance summarised it during the trial as follows:

David's been affected but then it's rippled on to the rest of us and when we see our kids - Felicity and Robert they've suffered along with David and they're also affected. So we don't see any progress in our house. Our children aren't in relationships. They should be married and out of the family home by now. But they're not.

Constance described a family where all three adult children do not work and are supported by their parents. Felicity suffers from depression and does not have much of a social life. David and Robert currently live at home. Robert has been affected in a similar way to Felicity but has not been diagnosed with depression. He suffers from sleep apnoea, anxiety and shortness of breath when he is stressed and takes prescribed medication. He works as a trader on the stock market and had hopes of taking up courses to further enhance his knowledge. Unfortunately, the ongoing stress of David’s life has caused him to make irrational decisions resulting in losses in his trading.

Thomas feels that he is paying the price for the abuse that David suffered. As David’s health deteriorates, the health of the whole family has been affected. Thomas thinks he will be supporting his family for the rest of his life because of the effect it has had on all of them.

Thomas started seeing a psychologist when David was suicidal in 2012, but has now stopped as he finds it very hard to talk about his feelings.

Constance and Thomas also described the impact of the abuse on their small business. David’s episodes have forced them to leave work early and left them unable to meet their obligations to clients. When they receive a telephone call from David in distress they cease production, irritating their clients as orders become delayed. As a result, a number of major clients stopped ordering from them because of the inconsistent supply and because of their limited capacity to work. Their business has suffered as a consequence:

Each time my husband and I receive[d] a telephone call from David in dis-tress, we ceased production and our clients became disgruntled as their orders were delayed. A number of major clients stopped ordering from us which we assume was as a result of our inconsistent supply. As we often had to stop work to attend to David, customers became angry when we failed to deliver on time. On one occasion, when David had had a seizure in 2006, we stopped work and a large confectionary firm was angry that their order had not been delivered on time as they had deadlines to deliver to the major supermarkets. We could not take the risk of buying in large volumes as we did before because our major customers had left us.

The current financial circumstances of Constance and Thomas

The financial circumstances of Constance and Thomas were the subject of much dispute between the parties. It is not contested that Constance and Thomas have substantial assets. Constance outlined them at trial as follows:

(a) a family home worth $855,000;

(b) the Smith Family Trust worth $1.5 million; and

(c) a superannuation account managed by Superannuation Company worth $1.5 million, which includes a property.

During cross-examination, further points were made about these assets: the superannuation account was possibly earning $126,000 per year in profits, as it did in 2013, and Constance had received $18-19,000 in rent from Property 2 owned by her mother each year until her mother’s death.

In addition, Constance has a share in two companies: Company 1 and Company 2. There was some dispute about the value of these companies. Constance said at trial that ‘there’s no profit being made in any of our companies.’ In 2013 the assets of Company 1 were listed as $67,189 and the total debt was listed as $162,616 in the company’s tax return. No tax return has been provided for Company 2.

Current figures, however, were unable to be independently determined from the companies’ records as Constance had not prepared any accounts for these companies since June 2013, making their value difficult to ascertain. Constance also acknowledged she had not done the profit and loss statements for the Smith Family Trust for four years, and had not prepared the accounts for the superannuation fund for 30 June 2014. Constance and Thomas have also not filed their tax returns with the ATO since 2012, when Constance recorded a personal income of $8,000 a year. Considering this lack of information, it is possible that their assets may be worth more or less than what is claimed by the plaintiff.

Constance said her family are currently living off the proceeds of the sale of the shares in Food Company. She referred to paying for her children’s living expenses as a substantial cost. Constance and Thomas have also helped Felicity and Robert purchase houses and have purchased a car for David.

There was also some dispute about a $100,000 loan from the deceased to Constance, of which Constance had repaid $40,000. Of the remaining $60,000, Constance said her mother forgave the debt and said it was a gift to the family. Constance also referred to the gifts of $200,000 to herself and Phillip in supporting her assertion that her mother did not want the loan repaid:

I think the evidence speaks for itself with the money that she gave me. The gifts - the gift of $200,000, why would she give me and Phillip $200,000? For what reason would she give me and Phillip the same amount of money if I owed her and she didn't want to waive that loan?

The current financial circumstances of David

It has been a significant period of time since David has worked as an actor, his last employment in this field being in 2007–2008. He has experienced an uneven career path with periods in and out of retail work over his adult life, also spending six years on the disability support pension. He currently works as a sales manager at a fashion store, and earns approximately $50,000 a year.

David has no assets and debts amounting to $60,000 comprising his HECs debt, medical bills, speeding and parking fines. He currently lives with his parents, paying $150 board per week. His parents have provided him with money for his living expenses, but have given him less since he commenced his current employment.

David hopes to improve this lifestyle. He has applied for and enrolled in a series of courses, including a Masters of Business Administration and a Masters of Entrepreneurship and Innovation, stating that he was ‘a bit ambitious’. However he has faced troubles in completing these courses, stating:

I applied like four times, to different courses and I just, I just can't do it you know. I'm just – yeah, just can't do it, just can't do it.

He is keen to move out of his parents’ home, believing it would give him more independence. He is also open to working as an actor again if his health improves:

Who knows. Maybe. Maybe. Hopefully I stay out of hospital and my mental health improves and if it does I would - I would like to give it another shot.

The evidence on behalf of the defendant

Edward did not give evidence, either by affidavit or vive voce evidence, and he did not put forward any competing financial need.

An affidavit sworn by Phillip on 28 August 2014 was tendered by the defendant. He was not cross-examined. Phillip does not admit any of the allegations or facts that the plaintiffs rely upon to support their claims. His position is that he wishes to protect his inheritance from his mother’s estate.

Phillip was born in 1954 and he went to Fitzroy High School, Northcote High School and Coburg High School. When he was in his early twenties, he was diagnosed with schizophrenia and has been on medication ever since.

His first job was as a pushbike mechanic. He then worked in a camera shop until he found work as a public servant with the Department of Works for a few years.

In 1981, he obtained work with the Victorian Railways and worked there until 1991. After he stopped work at Victorian Railways, he was hospitalised at Larundel Mental Asylum for four months. Between 1991 and 1998 he worked various jobs off and on until, in 1998, he went onto a disability support pension. He has been on that pension ever since, receiving $770 per fortnight from Centrelink. He lives in the family home property and did so with his parents for about 30 years.

His father owned two shops in Fitzroy costing about $40,000 at the time of purchase. Phillip recalls that Edward and he each put in $3,250 and $3,500 respectively for this purchase. After a fire in the late 1970s, his father sold the shops and used part of the sale proceeds to purchase Property 5. Phillip said that only some of the proceeds of sale of the shops in Fitzroy were used to purchase Property 5 with his father keeping the balance. He and Edward have never been repaid their original contribution towards the Fitzroy shops.

Phillip owns no real estate other than what he inherits from his mother’s estate. In mid-2008, he received $200,000 from his mother and has savings of about $400,000.

Relevant legal principles

In an application for further provision pursuant to s 91 of the Act, the Court must determine three questions:

(a) Did the deceased, at the date of her death, have a responsibility to make provision for the proper maintenance and support of the plaintiffs?

(b) If so, did the deceased, in the distribution of her estate effected by her will, make adequate provision for the proper maintenance and support of the plaintiffs?

(c) If not, what is the amount of provision (if any) that the Court should order?

In considering these questions:

(a) the Court must have regard to the matters set out in ss 91(4)(e)–(p) of the Act;

(b) the Court must determine whether the deceased had a moral duty, responsibility or obligation to the applicant;

(c) keeping in mind the weight given to the freedom of testation, the Court will only interfere if the testator has failed in his or her moral duty; and

(d) the Court must ensure that the moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards.[2]

[2] Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston J). See also Blair v Blair (2004) 10 VR 69, 77–80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Andrew v Andrew (2012) 81 NSWLR 656, 660 (Allsop P), 679–80 (Barrett JA).

The basis of the Court’s jurisdiction is responsibility, traditionally described as the enforcement of moral obligations.[3] The question is what a wise and just testator would have thought it his moral duty to make for the plaintiff,[4] as expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd:

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v Manchester:
The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.[5]

[3] Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston JA); Blair v Blair (2004) 10 VR 69, 75–6 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA).

[4]Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478–9 (Lord Romer); Grey v Harrison [1997] 2 VR 359, 361 (Tadgell JA), 364 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 820 (Ormiston J); Blair v Blair (2004) 10 VR 69, 76 (Chernov JA); Vigolo v Bostin (2005) 221 CLR 191, 200 (Gleeson CJ); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA).

[5][1938] AC 463, 478–9 (citations omitted). Cited with approval in, for instance, Grey v Harrison [1997] 2 VR 359, 364–5 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 815–19 (Ormiston J).

In Collicoat v McMillan, Ormiston J explained what is meant by the idea of a ‘moral claim’ so frequently referred to in the jurisprudence on this and similar legislative provisions:

In my opinion the expression ‘moral claim’ has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[6]

[6][1999] 3 VR 803, 818. See also Blair v Blair (2004) 10 VR 69, 77–80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA).

The question of whether a plaintiff has been made proper provision involves a ‘broad evaluative judgment’ unconstrained by preconceptions and predispositions, made with respect to a capable testator’s judgment as to who should benefit from the estate.[7] A balance must be struck between, on the one hand, the freedom our society accords to a person to do as he or she pleases with his or her own property, and on the other hand, the moral requirement that a testator consider those persons closest to him or her as being the first in the line of recipients of the estate. The Court should only interfere with the terms of a will if the testator has failed in his or her moral duty.[8] In Grey v Harrison Callaway JA stated:

it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.[9]

[7]Slack v Rogan [2013] NSWSC 522 (10 May 2013), [125]–[127] (White J). See also White v Barron (1980) 144 CLR 431, 440 (Stephen J); Whitehead v State Trustees [2011] VSC 424 (2 September 2011), [40] (Bell J); Andrew v Andrew (2012) 81 NSWLR 656, 660 (Allsop P) 679–80 (Barrett JA).

[8]Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA); Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

[9][1997] 2 VR 359, 366.

Whether the testator had a duty to provide further, and whether there is a failure to make adequate provision for the proper maintenance and support of an applicant, is determined by consideration of the facts and matters known to the deceased at the time of his or her death. What is adequate for the proper maintenance and support of an applicant must be determined by asking what further provision a wise and just testator would have thought it his moral duty to provide,[10] by reference to ss 91(4)(e)–(o) of the Act and any other matter the Court considers relevant.[11]
[10]Forsyth v Sinclair [2010] VSCA 147 (22 June 2010), [61]–[66] (Neave JA); Lee v Hearn (2005) 11 VR 270, 273–4 (Callaway JA) 285–6 (Batt JA); Blair v Blair (2004) 10 VR 69, 75–6 (Chernov JA) 84 (Nettle JA); Schmidt v Watkins [2002] VSC 273 (24 July 2002), [22] (Harper J).
[11]Administration and Probate Act 1958, s 91(4)(p).

The determination of the third question requires a balance between the claims of other beneficiaries, the needs of the plaintiffs and the size of the estate. In any one case, there is the possibility of a range of views where minds may legitimately differ. In Grey v Harrison, Callaway JA said:

There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made ... To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.[12]

[12]Grey v Harrison [1997] 2 VR 359, 366 (Callaway JA).; Friend v Brien [2014] NSWSC 613 (1 May 2014) [59],[63].

In McCosker v McCosker,[13] Dixon CJ and William J said the word proper ‘means ‘proper’ in all the circumstances of the case’. In an estate of this size, considered by the parties to be a large estate, proper provision may include the ‘cheese or jam’ and not merely the ‘bread and butter’. Adam J in Re Buckland[14] emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support. Certainly, the Court is justified in making provision for contingencies that would be disregarded in smaller estates, but any order must not exceed what is needed for the ‘proper maintenance and support’ of the plaintiffs.
[13](1957) 97 CLR 566.
[14](1966) VR 404.

In Borebor v Keane,[15] Hargrave J summarised the principles to be applied in relation to claims made against relatively large estates, referring to the decision of Adam J in Re Buckland that was endorsed by Gillard J in Re Buckland (No 2) as follows:

(1) A generous, and not ‘niggardly’ approach is justified.
(2)The amount of provision should not be limited by the standard of maintenance provided by the deceased or by the standard of living to which the claimant has been accustomed.
(3)A generous approach does not, however, justify the Court in ordering more than is needed for the claimant’s ‘proper maintenance and support’; as those words ‘place a ceiling upon what the Court may properly do’.
(4)The Court may be justified in making provision for contingencies that would be disregarded in smaller estates or if there were relevant competing claims.[16]

[15][2013] VSC 35 (19 February 2013).

[16]Ibid [68].

A wise and just testator is deemed to be aware of the relevant circumstances prevailing at the time of death, but the testator will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of death.[17]
[17]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ); Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013), [127] (White J).

A plaintiff bears the onus of proving that the deceased had such a responsibility, on the balance of probabilities. The onus also lies with a plaintiff to demonstrate the extent of that provision, and should be determined at the date of the trial, taking into account the plaintiffs’ position at that time.[18] Where an applicant’s financial position was sound at the date of death but had worsened substantially at the date of trial, the time for assessing need is at the date of the trial.[19]
[18]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8 (Dixon CJ); Blore v Lang (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013), [127] (White J).
[19]Panozzo v Worland [2009] VSC 206 (25 June 2009) [56]–[57] (Forrest J).

In assessing the evidence, the Court must have regard to the seriousness of an allegation that the testator has abused his freedom of testation, and the difficulty of assessing the evidence in the inevitable circumstance that the Court cannot hear from the deceased, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008.[20]
[20]Briginshaw v Briginshaw (1938) 60 CLR 336, 362, 368–9 (Dixon J); Schmidt v Watkins [2002] VSC 273 (24 July 2002), [17]–[21] (Harper J); Webb v Ryan [2012] VSC 377 (3 September 2012), [21] (Whelan J); State Trustees v Bedford [2012] VSCA 274 (16 November 2012), [104] (Neave JA).

In Webb v Ryan, Whelan J referred to the difficulties in assessing the evidence in Part IV claims when he stated:

An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.[21]

Claims by adult children

[21][2012] VSC 377 (3 September 2012), [22] (Whelan J).

The Court must, as with all applications under the Act, consider the responsibility of the deceased to the applicant, having regard to the factors set out in ss 91(4)(e)–(p).[22] In Walsh v Walsh, Hallen J helpfully summarised a number of general principles in relation to claims made by adult children:
[22]Allan v Allan [2001] VSC 242 (25 July 2001), [67] (McDonald J).

(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.
(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.

David did not contribute to the building up the estate or to the welfare of the deceased or the family of the deceased. However, he has indirectly contributed to the size of the estate because his compensation claim was discontinued after his solicitors were advised that John’s estate had no assets as the assets in John’s name passed by survivorship to the deceased.

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

In 1996, John and the deceased lent $100,000 interest free to Constance. She repaid $40,000 of that amount and the balance of the loan was forgiven. In August 2008, the deceased gave Constance and Phillip $200,000 each and Edward was given $250,000.

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

The plaintiffs were not being maintained by the deceased before her death, either wholly or partly.

(n) the liability of any other person to maintain the applicant;

Constance’s husband has a responsibility to maintain her. Constance and Thomas have the primary responsibility to maintain David.

(o) the character and conduct of the applicant or any other person;

The plaintiffs are of good character. Edward does not assert any disentitling conduct on the part of the plaintiffs.

(p) any other matter the Court considers relevant.

The first matter that is relevant to the claims made by the plaintiffs is John’s sexual abuse of them, the deceased’s knowledge of the sexual abuse, her silence about it and her support of her husband on this issue. In the case of Constance, the deceased did not do enough to remedy it and, in David’s case, the deceased failed to stop the abuse from occurring.

Edward submitted that the plaintiffs’ claims of sexual abuse by John should be rejected because he does not accept that the abuse took place, and says the plaintiffs must be put to their proof on this issue. Inherent in Edward’s opposition to the plaintiffs’ claim is that the allegations of sexual abuse have been fabricated.

Because John and the deceased are no longer alive, they do not have the opportunity to give their own account of these events. In these circumstances, the Court treats the evidence of these events as described by the plaintiffs with considerable caution and scrutinises it carefully.

I found Constance and David to be credible and truthful witnesses and I accept their evidence. For the reasons that follow, I am satisfied the sexual abuse occurred in the circumstances outlined by them.

Sexual abuse of any kind is abhorrent. It is particularly abhorrent when it is by a trusted family member against young children. It often takes place in secret. The abuser is usually in a dominant position over the abused person, who is usually vulnerable and trusting of the abuser. There is an expectation by the abuser that the victim of the abuse will not speak about it. In this case, John was in a position of authority in his family, with his behaviour often tyrannical, violent and angry. His family were fearful of him.

The sexual abuse by John occurred when Constance was a young teenager and David a very young child. The plaintiffs gave graphic and confronting evidence of the sexual abuse. Giving evidence of the abuse was difficult and traumatic for them. In giving their evidence, they relived the trauma of the abuse, abuse that had been suppressed by them for a long time. As well as describing the sexual abuse in detail, they described their reactions and emotions and the reasons for remaining silent about it ‑ in David’s case, until 2005 and, in Constance’s case, until recently.

Edward was critical of Constance’s evidence because apart from telling her mother at the time, Constance told no one else about her abuse until six weeks before swearing her affidavit in this proceeding. Edward submitted that if Constance had been abused then she would have disclosed that abuse when David was abused in 1981, alternatively and additionally, when David reported his grandfather’s abuse to the police in 2005. Edward was also critical that Constance did not tell Thomas about the abuse until recently.

The fact that Constance told no one other than her mother about her abuse is a common reaction to sexual abuse. The abuser usually denies the abuse. There is also a desire of those close to the abuser to protect him or her rather than the victim. This is particularly so when, as in this case, the abuser is prone to violent rages and physical altercations with family members. Constance was fearful of her father and saw that her mother would not stand up for her against him. Moreover, it is extremely distressing and traumatic for a victim to disclose the abuse, as was clear when Constance gave her evidence. It is common that victims of abuse are not able to disclose the abuse for decades or even at all.

In respect of David, I consider that Constance’s reaction to his abuse was consistent with a mother fiercely protecting her child as best as she knew in her circumstances. When David disclosed his sexual abuse to the police in 2005, Constance did everything she could within her emotional limits to support him.

Edward also relied on the following further matters in submitting that the claims of abuse were fabricated:

(a) knowing of her own experience with her father, Constance visited John and the deceased when her children were young and sometimes left them with her parents. Edward submitted that, knowing that her father was a sexual predator, Constance should have considered he could not be trusted with children, yet she entrusted David’s care to her parents;

(b) when Constance found out about David’s abuse in 1981, she did nothing apart from stay away from her parents for six years; and

(c) from 1986 onwards, Constance reconciled with her parents and her children had contact with her parents.

To conclude that these three matters meant the abuse did not occur fails to take into account that the abused person has difficulty for all sorts of reasons in talking about the abuse or revealing it within the family. At all times, Constance was at pains to ensure that her children were never left alone with her father when she visited them, and she explained how she coped with the situation and her reasons for doing so. The fact that Constance was abused as a teenager does not mean that she would expect that anything of a like nature would happen to her four or five year old son. It also fails to take into account that, no matter what did occur, Constance wanted to be part of a family environment and wanted her children to be part of that environment.

Edward was critical of David’s evidence because David did not report the abuse to the police until 2005 and has told differing versions of what occurred when he was abused. As stated, it is common that abuse is not disclosed for years, if at all. As to the differing versions, David explained in his evidence that he was only four or five years old when the abuse occurred. It is entirely understandable that there might be differences in what occurred but such differences as were pointed out do not, in my view, alter the conclusion that the abuse did occur.

This conclusion is corroborated by later events that could have been contradicted by Edward, but were not. First, after Constance initially confronted her father and her mother about her father’s abuse of David, she told Edward what had happened and said that Edward ‘never doubted David was telling the truth’. Constance also said that in 2005 when she told Thomas about David’s sexual abuse, she also told him that she had told Edward about it straight after she knew about it. Next, Constance told Edward that their father had admitted to his abuse of David and Edward indicated he was not surprised, with both of them disgusted with their father at this time. Then, in 2002, Constance and Edward spoke about John’s sexual abuse of David and Constance thought Edward appeared angry at the thought of what their father had done to David. Finally, around 2006, Edward expressed concern to Thomas about helping David and he offered David a house and to help him attend a rehabilitation centre.

Further facts support the abuse occurring as follows:

(a) the deceased knew about her husband’s sexual abuse of Constance. The deceased explained to Constance that, if she did report the abuse to the authorities or make her husband get help, she was fearful that she would lose her financial security. This was repeated to Constance on many occasions over the years despite Constance asking her mother to report the abuse or make John get help;

(b) the deceased was present when Constance confronted her father in 1981 over his abuse of David. After that initial confrontation with her parents over David’s abuse, Constance and her children stopped visiting her parents for six years. When her father called her during this period on two or three occasions, Constance refused to visit him, despite his pleas to do so;

(c) in 1987, John admitted his sexual abuse of David to Constance in the presence of the deceased. After her father admitted this, Constance and her family gradually started to see her parents again, always making sure that none of the children were left alone with her father;

(d) David had been seeking professional help for his abuse from at least August 2000 when Dr Alan Blandthorn first saw David professionally. David confirmed that he received treatment, starting in 2000, for the significant psychological issues resulting from the abuse;

(e) David reported the sexual abuse to the police in July 2005 and engaged solicitors to bring a claim for compensation against John;

(f) when Constance and Thomas confronted John in 2005 about the sexual abuse of David, the deceased was present and did not deny it. She said ‘it’s not good what has happened in the family’, thereby implicitly acknowledging that it occurred; and

(g) after David filed his report with the police, the deceased wanted to discuss with Constance what they could do for David.

The second matter that is relevant to the claims made by the plaintiffs is the fact that statements and promises were made by John and the deceased to Constance that Constance would receive an equal share of the family wealth. These statements and promises were made many times over the years, some in the presence of Thomas, and reiterated that the estate would be divided equally between Constance and her brothers. Both John’s will and the deceased’s will made on 25 June 1990 (the ‘June 1990 will’) are consistent with these statements and promises. They were made by John and the deceased and were part of the price for Constance remaining silent about John’s abuse of her. Thomas was made similar promises for carrying out work and assisting the deceased and John. Based on these statements and promises, Constance expected her mother to treat her three children equally.

The statements and promises made by the deceased and John concerning an equal share of the family wealth do not and cannot support a legal obligation to provide for an applicant. They are not in the nature of a contract. The freedom of testators to dispose of their assets as they wish has been affirmed time and time again. However, by its very nature, testator’s family maintenance sits somewhere between the realms of legal liability and moral liability. The expectation that Constance would be provided for on an equal basis to that of her brothers and that she should remain silent about the sexual abuse cannot but take on an enhanced moral character after the deceased changed her will leaving Constance an unequal share of her estate.

Did the deceased, at the date of her death, have a responsibility to make provision for the proper maintenance and support of the plaintiffs?

Edward accepts that the deceased had a responsibility to make provision for Constance but submitted that when account is taken of Constance’s assets, the deceased provided adequately for her proper maintenance and support.

In light of the findings of Constance’s financial circumstances, I do not accept that the deceased did provide adequately for Constance’s proper maintenance and support. That aspect is, however, only one aspect of Constance’s claim.

In support of her claim for further provision for her proper maintenance and support, Constance also relies on the statements and promises made to Constance and Thomas by John and the deceased that the family wealth would be shared equally between Constance and her brothers. Edward submitted that these were not promises made and acted upon and that, with time, circumstances change and there was no requirement that the deceased had to treat her children equally.

Although the expectation raised by both John and the deceased is not such that it can be enforced by way of proceedings under Part IV of the Act, the circumstances in which the statements and promises were made significantly colour and enhance the deceased’s moral responsibility to Constance, particularly in treating her children equally.

Edward also relied on clause 7 of the deceased’s will in which the deceased stated that she and her husband had provided more than adequate provision to Constance during the deceased’s lifetime.

The provision to Constance by John and the deceased during the deceased’s lifetime was similar to their provision to Edward and Phillip yet the deceased said nothing about her reasons for their provision in her will.

The deceased’s will was made after David reported John’s abuse to the police in 2005 and where Constance made a statement to the police about his abuse. Apart from this, there is no reason why Constance should be mentioned by the deceased in her will in this manner at all.

Further, the deceased’s reasons for making less provision for Constance are contrary to the provisions of the deceased’s June 1990 will and John’s will. Her June 1990 will provided for her three children equally in the event that John predeceased her, with gifts over to the grandchildren in the event that a parent predeceased the deceased. John’s will also provided equally for his three children in the event that his wife predeceased him. These two wills demonstrate that the statements and promises were acted upon by John and the deceased prior to David’s abuse being reported to the police.

In my view, the changes to the deceased’s will from the June 1990 will relate directly to David’s reporting of the abuse and Constance’s support for David, and confirm that Constance was being punished for supporting David.

In the event that it was determined that Constance had been sexually abused by John, Edward submitted that because the perpetrator of the abuse was John, no wrong was committed by the deceased against Constance and any moral obligation that John might have to Constance cannot be transferred to the deceased.

Whilst the sexual abuse was committed by John and was wrong and abhorrent, the deceased’s subsequent conduct towards Constance was also wrong and abhorrent. The deceased knew of her husband’s abuse of Constance yet remained silent about it. Although there may have been many reasons for the deceased not reporting the abuse, the effect of her silence protected her husband and not her young teenage daughter. She could not or would not stand up to her husband and she feared the family wealth would be at risk if she did take any action to report him. The deceased should have recognised that Constance would suffer consequent emotional and psychological damage caused by the sexual abuse. In extracting Constance’s silence about the abuse and failing to protect her, the deceased owed Constance a significant moral duty.

Edward does not accept that the deceased had a responsibility to make provision for David. He did not accept that David was abused by John, contending that it was a fabrication by David and Constance. Yet Constance and Thomas’s evidence, which was not contradicted by Edward, make it clear that Edward acknowledged and was aware that the abuse did occur.

As a grandchild of the deceased, in order for it to be determined that the deceased had a responsibility to provide for him, David must demonstrate a special factor or unusual circumstance that makes his case fall outside the general rule that the relationship of grandparent and grandchild does not create an obligation on the deceased to make provision for him.

The categories of special factors or unusual circumstances are not closed. The special factors or unusual circumstances and the impact of the other factors specified in s 91 of the Act are to be applied to the standard of a wise and just testator when measured against community standards.[34] As stated by Mandie J in Petrucci v Fields:

… It seems to me that grandchildren can neither be "ruled in" nor "ruled out" until all the facts are examined. It is important to distinguish between the general obligation of parents to provide for and support their children and the potential responsibility, in the statutory sense, of a testator, who is a grandparent, to make provision out of his estate for the proper maintenance and support of grandchildren. The obligation of living parents to provide for their children does not necessarily negate, in an appropriate case, the moral responsibility of a grandparent to make provision for the maintenance and support of those grandchildren out of his estate.[35]

[34]Scarlett v Scarlett [2012] VSC 515, [101] (Vickery J).

[35]Petrucci v Fields [2004] VSC 425, [64] (Mandie J).

In David’s case, the special factor or unusual circumstance is the deceased’s conduct towards David. John’s sexual abuse of David occurred when David was an extremely young child. The abuse was initially denied by John and the deceased, then admitted by them in 1987. Subsequently, in 2005, David went to the police and then commenced civil proceedings against John. Unlike Bentley v Brennan, David was deprived of his opportunity to pursue his compensation claim against John.

David was clear in his memory that the deceased was aware of an instance when John took David into the bedroom and locked the door behind them. Against the background of John’s abuse of Constance, the deceased did nothing to prevent this from occurring. Later events confirm this as she did not deny the fact that the abuse had occurred, seen first when Constance confronted her parents in 1981 about the abuse and when she spoke to the deceased on later occasions as already set out.

The deceased did not take any action concerning David’s abuse, remaining compliant and effectively protecting her husband, rather than David. Her conduct in failing to protect him by remaining silent about the abuse and not reporting it was, just as in Constance’s case, wrong and abhorrent. The deceased should have recognised that David would suffer consequent emotional and psychological damage caused by the sexual abuse. In remaining silent about the abuse and failing to protect him, the deceased also owed David a significant moral duty.

The plaintiff tendered paragraph 27 of Edward’s affidavit in which he speaks of the ‘unfounded allegations that David made against John, culminating in the issue of legal proceedings against him’ and his mother’s ‘firm instructions that David was to receive no benefit at all’. In speaking of his mother’s firm instructions, Edward is referring to the deceased’s statement in clause 7 of her will where the deceased set out the reasons why David has not been provided with anything from the deceased’s estate.

David is the only grandchild of the deceased mentioned in her will. Apart from the fact that David reported John’s sexual abuse and made a civil claim for compensation, there is no reason why David should be mentioned in the will in this manner at all.

In my view, clause 7 of the deceased’s will relates directly to David’s reporting of the abuse and confirms that David is being punished for bringing this abuse to light. This is confirmed by the deceased’s June 1990 will and John’s will where the grandchildren were treated equally in the event of their parent predeceasing the deceased.

In my view, in all of these circumstances, the deceased had a responsibility to make further provision for the proper maintenance and support of Constance and to make provision for the proper maintenance and support of David.

Did the deceased make adequate provision for the proper maintenance and support of the plaintiffs and, if not, what is the amount of provision (if any) that the Court should order?

What is adequate for the proper maintenance and support of an applicant must be determined by asking what further provision a wise and just testator would have thought it his moral duty to provide, by reference to ss 91(4)(e)-(o) of the Act and any other matter the Court considers relevant. In my view, the deceased failed to make adequate provision for the proper maintenance and support of the plaintiffs.

As a first step, the deceased’s moral obligation included that she keep her promises that Constance be treated equally with her brothers. There is, in effect, no residue of the estate after payment of administration costs and the estate’s legal costs to the date of trial. This means that any further provision must come out of properties devised to Edward and Phillip.

Edward does not assert any competing financial need. Although Phillip wishes to protect his inheritance, he was left two properties in his own right, one being the family home where he lives. The value of these two properties totals $2.7 million. He was also left a half share of Property 5 valued at $775,000. Edward was left the other half of Property 5. If that property were given to Constance, she would then receive a one third share of the estate. Phillip’s inheritance still remains protected in that he will have his other two properties, giving him a secure home and a sizable nest egg for any future contingencies. In order to equalise the shares of the estate between Constance, Edward and Phillip, I will order that Property 5 be transferred to Constance.

The deceased’s conduct towards Constance and David has directly impacted on their need for provision as it has caused them emotional, psychological and financial damage and deprived them of opportunities in life. They should receive further provision for their future costs of attempting to remedy the emotional, psychological and financial damage caused by the deceased’s failure in doing nothing about the sexual abuse of Constance and David, in protecting her husband and remaining silent about the abuse. That provision is to enable both of them to obtain professional advice and assistance to address their ongoing emotional and psychological issues, as well as contribute to their financial welfare, for the immediate and long term future.

These costs are difficult to evaluate because not all of the ramifications arising from their circumstances can be known and it is not clear how long the assistance will be required. Considering the severity of their situation and its traumatic aspects, I consider that Constance should receive further provision in the sum of $100,000. In making this further provision of $100,000 over and above receiving Property 5, I take into account that Constance will have the benefit of the property to assist in her expenses for professional advice whilst having financial security for the future with her assets already owned with Thomas and the property received outright from the deceased.

In David’s case, he has an uncertain prognosis and I consider that he needs a larger sum for his future health needs, obtaining professional advice for his emotional and psychological issues, and some financial security for the future. I consider that David should receive provision of $175,000 for these purposes. Although it was suggested that David should receive provision sufficient to purchase his own home, I consider that as a grandchild, the moral obligation of the deceased in this case is not such as to provide sufficient funds for a home. It is sufficient that he receives a fund to provide for his ongoing health, as well as a financial buffer for the future. If his prognosis improves and he is able to live independently and maintain employment, the provision of $175,000 should assist him in renting his own home and being independent from his parents.

The plaintiffs were content that any provision for David should be included as part of Constance’s share. I accept that this is a sensible and practical position because of David’s prognosis for the future. From a psychological view, it may be in David’s interests to know that he has provision in his own right however, in case his emotional and psychological health deteriorates, it is appropriate that his provision be protected in some manner for a period of time. This could be achieved either by the appointment of an independent trustee to manage the provision or by lodging the provision with the Funds in Court.

As there is effectively no residue of the estate, the provision of $100,000 for Constance and $175,000 for David must be funded from other estate assets. In view of the fact that Edward asserts no competing financial need, it is appropriate that the amount of $275,000 be provided from Property 1 devised to Edward valued at $1.23 million with a charge on that property to ensure payment of that amount.

I will hear the parties as to the appropriate protection of David’s provision and as to the costs of the proceeding.

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[2015] VSC 398

14 August 2015