Stamoutsos v Stamoutsos
[2024] VCC 847
•27 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| FAMILY PROPERTY LIST |
Case No. CI-23-04641
IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
-and-
IN THE MATTER of the Estate of ANNA STAMOUTSOS, deceased
| ARISTEA STAMOUTSOS | Plaintiff |
| v | |
| LABRINI STAMOUTSOS (who is sued as the Executrix of the Estate of ANNA STAMOUTSOS, deceased) | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2024 | |
DATE OF JUDGMENT: | 27 June 2024 | |
CASE MAY BE CITED AS: | Stamoutsos v Stamoutsos | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 847 | |
REASONS FOR JUDGMENT
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Subject:TESTATOR’S FAMILY MAINTENANCE
Catchwords: Testator’s family maintenance and provision – application by adult daughter of testator – whether adequate provision for the need of adult daughter
Legislation Cited: Administration and Probate Act 1958 (Vic), s90, s91; County Court Civil Procedure Rules 2018, r49.01
Cases Cited:Singer v Berghouse (1994) 181 CLR 201; Re Flavel; Flavel v Flavel [2020] VSC 19; Pavlidis v Pavlidis [2023] VSC 92; Saric v Vukasovic [2019] VSCA 57; Walsh v Walsh [2013] NSWSC 1065; Grey v Harrison [1997] 2 VR 359; Re Donateo [2021] VSC 792; Firth v Reeves [2019] VSC 357; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Judgment: Family provision orders granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S V Kipen | Galbally & O’Bryan |
| For the Defendant | No appearance | - |
HIS HONOUR:
1Anna Stamoutsos (“the deceased”) died on 14 June 2023 at age seventy-four. She was survived by her husband, Georgios Stamoutsos (“Georgios”), who lived separately to her as at the date of death, and her adult two daughters: the plaintiff, Aristea Stamoutsos (“Aristea”) and the defendant, Labrini Stamoutsos (“Labrini”).
2By her last Will and Testament dated 21 September 2022, the deceased appointed Labrini as her executrix and bequeathed the whole of her estate to Labrini.
3The Inventory of Assets and Liabilities dated 2 August 2023 provides that the estate is valued at $1,156,006.89. The main asset of the estate is a unit in a block of land subdivided by the deceased and Georgios, namely Unit 3, 58 Yarralea Street, Alphington, Victoria (“Unit 3”) registered to the deceased. At the time of Probate, the estimated value of Unit 3 was $1,150,000.00.[1] Probate was granted on 9 August 2023.[2]
[1] Inventory of Assets and Liabilities dated 2 August 2023, Plaintiff’s Court Book (“PCB”) 12
[2] PCB 6
4Labrini remains in possession of Unit 3. The rest of the estate is comprised of a Holden Commodore, jewellery, furniture and household items, and a National Australia Bank account with an insubstantial balance.
5Aristea brings a claim against the estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”) for further provision from the estate in the form of a pecuniary legacy in the sum of $578,000.
The deceased’s Will
6The terms of the deceased’s will provide:
“5.I GIVE, DEVISE AND BEQUEATH the whole of my Estate to my daughter Labrini Stamoutsos for her own use provided her [sic] survive me by thirty (30) days.
6.IN THE EVENT that my beneficiary does not survive me by thirty (30) days or more THEN I GIVE, DEVISE AND BEQUEATH the share that the deceased beneficiary would have received to be divided amongst any child or children that they may have at the time of my death to be divided equally amongst those children.”
7The Will does not contain any statement of reasons for the disposition to Labrini.
Statutory framework
8The determination of an application for a family provision order under the Act is a two-stage process.[3] The Court must first be satisfied that the threshold requirements for the making of a family provision order under s91(2) are met.
[3]Singer v Berghouse (1994) 181 CLR 201 at 209-210
9If satisfied that there is power to make a family provision order, the Court must then determine whether to grant a family provision order; and, if so, the amount of any such provision. It must take into account:
(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person;[4]
(b) the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person;[5] and
(c) the degree to which Aristea is not capable, by reasonable means, of providing adequately for her own proper maintenance and support.[6]
[4]Section 91(4)(a)
[5]Section 91(4)(b)
[6]Section 91(4)(c)
10In making a family provision order, the Court must have regard to:
(a) the deceased’s Will;
(b) any evidence of the deceased’s reasons for making the dispositions in her Will; and
(c) any other evidence of the deceased’s intentions in relation to providing for eligible persons.[7]
[7]Section 91A(1)
11Section 91A(2) of the Act lists a number of other criteria to which the Court may have regard.
12An order for provision must not provide for an amount greater than is necessary for the applicant’s proper maintenance and support.[8]
[8]Section 91(5)(b)
Procedural matters
13This application was commenced by Originating Motion filed 24 August 2023. A directions hearing on 20 October 2023 was conducted in the absence of Labrini. Judicial mediation on 22 March 2024 was ordered, and the trial was listed for hearing in July 2024. A directions hearing was listed for 2 February 2024 for the purposes of managing the proceedings.
14On 1 February 2024, the Court received an email from the defendant stating that, “You will never see me in court proceedings”.
15On 2 February 2024, in the circumstances of Labrini failing to appear on two occasions and her correspondence, the Court vacated the orders in relation to judicial mediation and the trial, and the proceeding was relisted for final hearing on 22 March 2024.
16A copy of the Orders made on 2 February 2024 was served personally on the defendant.
17Labrini did not appear on 22 March 2024, and, accordingly, the trial was conducted undefended.
18The evidence comprised:
(a) Aristea’s updated position paper dated 20 March 2024, adopted as part of her evidence-in-chief; and
(b) her oral evidence at trial.
19The Court reserved its judgment.
The application to re-open the Plaintiff’s case
20Subsequent to the hearing, but before judgment, the Court received an application for leave to re-open the plaintiff’s case following a change in Aristea’s living arrangements.
21In accordance with the Court’s directions, the plaintiff filed and served:
(a) a brief affidavit affirmed 20 May 2024 outlining the changes to her living arrangements; and
(b) submissions in support of the application to re-open her case and on the substantive application, for further provision from the estate.
22I am satisfied, pursuant to r49.01 of the County Court Civil Procedure Rules 2018 that it is appropriate and in the interests of justice to grant leave to re-open the case. In the circumstances of the proceeding being undefended, there is no embarrassment or prejudice to the other side. Further, the change in circumstance is material and would most probably affect the result of the application. Accordingly, I granted the plaintiff leave to adduce fresh evidence in the form of the affidavit of Aristea affirmed 20 May 2024.
The issues
23The trial proceeded on the basis that the deceased had testamentary capacity at the time of execution of her Will.
24I accept that Aristea, as a child of the deceased, is an “eligible person” within the meaning of s90 of the Act.[9]
[9]Section 90(f), “eligible person”
25Although undefended, the Court must be satisfied, on the basis of credible evidence, that:
(a) at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(b) the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of Aristea.[10]
[10]Section 91(2)(d)
26The deceased’s Will makes no provision for Aristea, and I accept that if a moral duty to provide for her existed, then the distribution of the deceased’s Estate failed to make adequate provision for her proper maintenance and support.
27The questions for the Court to determine are as follows:
(a) whether the deceased, at the date of her death, had a moral duty to provide for the proper maintenance and support of Aristea;
(b) if so, in what amount should further provision be ordered.
28A summary of Aristea’s evidence is as follows.
The Stamoutsos’ family
29The deceased and her husband, Georgios, were the joint registered proprietors of 58 Yarralea Street, Alphington. In the 1980s, the property was subdivided into three units.[11] Prior to her death, the deceased and Georgios lived separately, with Georgios living in Unit 1, and the deceased in Unit 3, at 58 Yarralea Street.
[11]Exhibit A, Updated position statement of the plaintiff dated 20 March 2024 (“Plaintiff’s position statement”) at [12],
30Labrini and Aristea grew up with their parents at 58 Yarralea Street.
31Units 1 and 2 do not form part of the deceased’s estate.
32By signed Agreement dated 8 February 1995 (“the 1995 Agreement”), Unit 2 was transferred by way of gift from Georgios and the deceased to Labrini and Aristea as joint tenants in equal shares.[12] The Agreement provides a mechanism of repurchase of Unit 2 by Georgios and the deceased for the agreed sum of $10,000, in the event that:
(a) Labrini and Aristea desire to sell or otherwise dispose of Unit 2;
(b) Labrini and Aristea fail to pay the rates or outgoings on Unit 2;
(c) Labrini and Aristea fail to keep the property in good order and repair; or
(d) should either Labrini and Aristea marry or live in a permanent relationship with another person and such marriage or relationship fails.
[12] The 1995 Agreement: PCB 273; PCB 285
33The 1995 Agreement also provided that upon the death of either Georgios or the deceased, the surviving parent may exercise their right to repurchase; and that Labrini and Aristea will execute a transfer of Unit 2 to be held in escrow and to be used should Georgios and the deceased exercise the right to repurchase.
34Labrini and Aristea’s title to Unit 2 is otherwise indefeasible.
35On 9 November 2022, Unit 1 was transferred to Georgios as the sole registered proprietor,[13] where he continues to reside.
[13] PCB 276
Aristea
36Aristea, the youngest daughter of the deceased, is currently aged forty-nine years. Following completion of a Bachelor of Arts degree at La Trobe University in 2001, Aristea has had a varied employment history, including office administration and as a disability support worker.
37In March 2022, Aristea ceased working as a disability support worker with Carinya Society due to a workplace injury.[14] She was in receipt of WorkCover payments for her workplace injury until very recently, and is now on Centrelink benefits.
[14] Plaintiff’s position statement, paragraph [24]
38She has a son, Jed, aged twelve years, and is a single mother with sole parental responsibility for Jed. Jed stays with his paternal grandparents four nights a fortnight.
39At trial, her evidence included that she and her son are unable to reside in Unit 2 (in Alphington) due to its distance to Jed’s school in Glen Waverly, and because, as part of her family law proceedings, she is able to maintain sole custody of Jed provided that she does not reside in close proximity to Labrini and Georgios.[15]
[15] Plaintiff’s position statement, paragraph [30]; Transcript (“T”) 50, Line (“L”) 29
40At the time of the trial on 22 March 2024, Aristea was living with her son, Jed, in rental accommodation in Glen Waverley. On 20 March 2024, she had been issued with a notice to vacate by 11 April 2024. Aristea’s evidence included that she could not afford to continue renting the property, having regard to a rental increase of $170 per week.
41At the time of the hearing, she believed she could not reside at Unit 2 because of the hostile environment it posed, and she also presumed that Jed’s paternal grandparents would not agree to them living there. Previously there had been an Order in Family Court proceedings that Aristea could not live with Jed at Unit 2.
42Aristea was not able to obtain a good rental reference because of the notice to vacate and late payment of rent. Unemployed, unable to meet rent on her own, Aristea held well-founded concerns about living with other people. She was also concerned not to compromise Family Court Orders in relation to the custody of Jed if they did not have secure accommodation. She formed the view that she would not be able to find alternative rental accommodation. I accept her evidence that temporary accommodation was not appropriate, and Unit 2 was her only option.
43Labrini and Georgios did not object, and Jed’s paternal grandparents approved, so in April 2024, Aristea and Jed relocated to Unit 2.
44By that stage, Unit 2 had been vacant for five or six years, and was in a dilapidated state. It requires repairs and ongoing maintenance.
45Aristea’s evidence as to the living conditions at Unit 2 is as follows:
“Unit 2 is not a healthy living environment for me and Jed in the short or long term. If I could sell the property or rent alternative accommodation, I would.
There are major issues with the electrical wiring, and it is a safety hazard. Jed is temporarily staying with his paternal grandparents until the electrician can fix the issues. I cannot afford to pay for an electrician in full and I am looking into a payment plan. In any event my sister and my father have not agreed to me doing any electrical upgrades at the property. There is also no heating, or cooling. There are also significant cosmetic defects. I had started painting the walls, but I cannot afford more paint …
My sister’s and father’s behaviour is also a continuous challenge for me and Jed. I feel that they are hostile towards us and consider me to be the enemy as my mother did. My sister treats me with distain [sic] and says that I am trying to destroy her life. My sister is also very interfering in mine and Jed’s lives and aggressive in her beliefs (for example, covid-19 and 5G conspiracy theories) and actions. My father has little or no interest in Jed and this upsets me greatly because I do not want … [Jed] to be subjected to any treatment like I was subjected to growing up. I am currently co-existing with my sister and father in the neighbouring units, but I feel that this could change at any time because their behaviour is so volatile.”[16]
[16]Affidavit of Aristea Stamoutsos affirmed 20 May 2024, paragraphs 13-15
46As at the date of the hearing, Aristea had $353.77 in her bank accounts, a superannuation balance of $10,426, no motor vehicle or other savings, shares, investments, or other financial assets.
47Her current expenses include basic living costs such as food, medical bills and utilities, and fees for Jed’s medical bills and extracurricular activities.
48Aristea has a number of liabilities which she is unable to pay:
(a) $81,905.14 to Bowlen Dunstan & Associates for legal fees in relation to her family law proceedings;
(b) $18,024.44 to Victoria Legal Aid, secured by a caveat over Unit 2;
(c) $3,739.46 to Momentum Energy for gas;
(d) $2,505.10 to Momentum Energy for electricity;
(e) $1,118.29 to Safe Financial for outstanding cash loans;
(f) $1,050.00 to Boutique Psychology for an ADHD assessment for Jed; and
(g) $144 to Ivanhoe Dermatology Clinic.[17]
[17] Plaintiff’s position statement, paragraph [36]
49Aristea has been diagnosed with various health issues, namely:
(a) generalised anxiety disorder;
(b) complex post-traumatic stress disorder (c-PTSD);
(c) attention deficit/hyperactivity disorder (ADHD); and
(d) psoriasis.
50She takes Vyvanse, 70 milligrams, for ADHD, Effexor, 150 milligrams, for anxiety, and monthly injections of Taltz for the psoriasis,[18] and requires treatment for her c-PTSD.
[18] Plaintiff’s position statement, paragraph [20]
Did the deceased owe Aristea a moral obligation?
51Aristea bears the onus of proof, on the balance of probabilities, of the justification for the claim; however, the onus of proof to establish disentitling or diminishing conduct is upon the estate.[19]
[19]Re Flavel; Flavel v Flavel [2020] VSC 19 at paragraph [64]
52It is not for Labrini to establish need or otherwise justify her position as a beneficiary of the estate. Nevertheless:
(a) I infer that as a child of the deceased, she was likely owed a moral obligation to provide for her proper maintenance and support, which is reflected in the Will;
(b) Labrini elected to allow the proceeding to go undefended, so the extent of any moral obligation owed to her is not able to be determined on the evidence before me; and
(c) based on the limited evidence available to the Court as to the financial resources of any other beneficiaries, no other beneficiary has specific need.
53Aristea submitted that the deceased owed a moral obligation to her to provide for her proper maintenance and support, and that any lack of contact or support afforded to her mother in the latter years of her life was in part a consequence of the relationship between her and the deceased. I accept that submission.
54I find that the deceased had a moral obligation to provide for Aristea’s proper maintenance and support as at the date of her death. Aristea was living in rented premises, with virtually no assets, a dependant son, a number of significant debts and was employed part time as a disability support worker.
55In light of Aristea’s circumstances, in my view, the deceased’s Will does not make adequate provision for her proper maintenance and support. By the time of the hearing, Aristea was destitute, save for her interest in Unit 2 which is subject to the restrictive terms of the 1995 Agreement.
Should the Court make an order for further provision?
Relevant principles
56I adopt the principles set out in Forbes J’s decision in Pavlidis v Pavlidis,[20] which considers an application by an adult child and competing need of a sibling, and an allegation of disentitling conduct.[21]
[20][2023] VSC 92 (“Pavlidis”)
[21]Pavlidis at paragraphs [85]-[94]
57Her Honour stated:
“The power to make a family provision order displaces the testator’s freedom to dispose of her property as she sees fit. It is based upon the recognition that a testator has a responsibility to make provision for certain persons, and intrudes only when satisfied that the obligation has not been met. Historically this has been described as a ‘moral duty’, distinguishing it from a legally enforceable obligation. The extent of the obligation is judged by the Court placing itself in the position of a ‘wise and just testator’, and judged according to current community standards.
…
The adequacy of provision is assessed at the time of death, in light of matters known or reasonably foreseeable to a testator. Where further provision is to be made, the Court assesses need and the claimant’s circumstances as at the time of trial.”[22]
[22]Pavlidis at paragraphs [90] and [94] (footnotes omitted)
58The discretion to make a family provision order is to be exercised:
(a) carefully and conservatively;[23]
(b) with deference to the terms of the testator’s will and his or her stated intentions; and
(c) according to prevailing community perceptions of the provision that would be made by a wise and just testator.
[23]Saric v Vukasovic [2019] VSCA 57 at paragraph [11] (per Tate, Niall and Emerton JJA)
59In Walsh v Walsh,[24] Hallen J helpfully summarised from the authorities a number of general principles in relation to claims made by adult children. The summary included:
“(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, … 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 … Plainly, if an adult child remains a dependant 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. …
(d)…
(e)There is no need for an applicant adult child to show some special need or some special claim. …
(f)The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. … Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. … In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased. … .”[25]
[24][2013] NSWSC 1065
[25]Walsh v Walsh (Ibid) at paragraph [121]
60The community usually expects:
(a) provision from available assets if a child has fallen on hard times, to buffer against contingencies;
(b) if circumstances permit, provision to go beyond the bare necessities of life; and
(c) acknowledgement of a child’s lack of financial reserves to meet their needs, including ill health in advancing years, protection against the vicissitudes of life and support if a child is unable to earn (or has limited means of earning) an income.
61In Grey v Harrison,[26] Callaway JA, with whom Tadgell and Charles JJA agreed, explained:
“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. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. 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. … .”[27]
[26][1997] 2 VR 359
[27]Ibid at 366-7 (emphasis in original)
62It is not disputed that the deceased had testamentary capacity when she signed her Will. Accordingly, I must take into account her expressed intention as contained in the Will, unfair or not, that all of her estate go to Labrini. The Court’s role is to assess what is the least amount that a wise and just testator, wishing to leave all of her estate to Labrini, would nonetheless leave (albeit reluctantly) to Aristea having regard to her moral obligation to provide for her.[28]
[28]Section 91(5)(a) of the Act; see Gorton J in Re Donateo [2021] VSC 792
63It is important that the Court does not underestimate the significance of the freedom of testation.[29] Of course, the testator’s expressed intentions are but one of several factors for the Court to take into account. The weight to be attached to such expressions will depend upon the specific circumstances of the particular case.
[29]Grey v Harrison (supra) at 363 and 366, per Callaway JA
64As stated by John Dixon J in Firth v Reeves:[30]
“Concepts of ‘fairness’ or ‘equality’ of treatment between beneficiaries have little role to play in determining the jurisdictional question, and equality of treatment is not a necessary element of testamentary duty. … .”
[30][2019] VSC 357, at paragraph [72]
65In a recent decision on the applicable provisions, Gash v Ruzicka,[31] the Court of Appeal summarised the relevant principles in these terms:
“In considering what is necessary for proper maintenance and support the Court must assume the position of a ‘wise and just’ testator judged by current community standards. However, the Court should not be drawn into rewriting the testator’s will by reference to general considerations of fairness.
...
Overall, the assessment calls for an instinctive synthesis of the relevant considerations and is not an exercise involving precise mathematical calculations.”[32]
[31] [2023] VSCA 189
[32] Ibid at paragraphs [20] and [22]
66Where a testator lacks an estate that is capable of meeting all of their moral obligations, the obligations will compete against each other.
67Family disharmony is commonplace and thus only one factor to be taken into account (as opposed to being inherently disentitling), and has even less relevance where the disharmony is not between the testator and his family but between the testator’s family members.
68The question of what is adequate and proper was considered in Pontifical Society for the Propagation of the Faith v Scales.[33] Dixon CJ said:
“… The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should rewrite the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. … .”[34]
[33](1962) 107 CLR 9
[34]Ibid at 19, paragraph [6]
Mandatory factors
69In considering whether further provision should be made, the Court must take into account the factors s91(4)(a), (b) and (c), and s91A(1) of the Act.
70The Court must have regard to the deceased’s Will – it is the first mandatory consideration in s91A. It must also consider any evidence of her reason(s) for making the dispositions in the Will.
71The deceased’s Will does not contain any statement of reasons for the disposition to Labrini and not Aristea, nor is there any other evidence of the deceased’s reasons for doing so.
72The Will nevertheless is clear that the deceased intended that her entire estate, including Unit 3, be gifted to Labrini, and was only executed a relatively short time before the deceased’s death.
73On the evidence available to me, while the deceased intended Labrini to receive Unit 3, the Will may not have reflected Aristea’s relationship with her mother at the time of her death. Their relationship was apparently a complex one, marked by the deceased’s difficult temperament, cultural issues and the understandable desire of Aristea for independence and to remove herself from the negative environment engendered by aspects of the Stamoutsos’ family dynamics. Perhaps against the expectation of a wise and just testator who had forced a daughter and grandchild out of her life, Aristea maintained a relationship with the deceased.
74In the absence of any evidence of well-founded reasons for leaving the entire estate to only one of two daughters, it is difficult to conclude that a wise and just testator would exclude a daughter in dire financial need.
Section 91A(2) discretionary considerations
75I set out below my findings in relation to the relevant discretionary considerations under s91A(2) of the Act.
(a) any family or other relationship between the deceased and the claimant, including the nature and length of the relationship
76Georgios, now retired, was an electrician, and the deceased ran a sewing business from home.
77The deceased was very religious, attending church several times per week, and prayed daily. The deceased believed she had direct contact with God, and thought she had special gifts and powers. She believed people were jealous of these powers, including her black magic.
78Due to the deceased’s conflict with various congregations, the family moved from various churches around Melbourne over time.
79Aristea was subject to corporal punishment by the deceased, often for insignificant things, which were beyond Aristea’s control. There were other more serious incidents.
80The deceased alleged Georgios was having an affair, was trying to poison her, her trees, and pets, and was raping her. Aristea hated her father accordingly, as she was protective of her mother.
81It was rare for the family to have friends around at the home when Aristea was a child, because the deceased would abuse them.
82The deceased exhibited many aspects of controlling behaviour, including following Aristea, and trying to prevent her from seeing friends outside of the home. The deceased apparently also considered the plaintiff to be possessed, certainly “evil”.
83The deceased exhibited many characteristics of somebody suffering from psychiatric problems, and Aristea was gracious in the witness box concerning her mother’s difficulties with mental health.
84As a consequence of the situation at home, Aristea was withdrawn at school and did not do well. She had no friends, and was bullied. Her evidence included that she:
“… ran away from home when she was about 18 years old because she could not cope with the screaming and violence. She moved back home after a short time due to pressure from the Deceased and Georgios. The Deceased and Georgios allowed … [her] to move into … [Unit 2], with the defendant. However, the Deceased and Georgios’ abuse escalated, including monitoring … [her] phone calls, and forcing entry into Unit 2. … [Aristea] left home a second time.
In … [her] early 20s, she took the Deceased to the late Dr Moratidis, a well-known psychiatrist in the Greek community. … Dr Moratidis said that the Deceased had psychosis. The Deceased refused to return to the clinic and claimed that the medicine had made her sick and the psychiatrist was part of a conspiracy.
The Deceased’s abusive and erratic behaviour continued throughout … [her] adulthood. For example, the Deceased contacted … [Aristea’s] employers and stalked her. Despite this, … [Aristea] continued to visit the Deceased and to try to help her.
… [Aristea] moved back into Unit 2 after leaving an abusive relationship with her son’s father. However, about five to six years ago, … [Aristea] moved back out of Unit 2 because she could not handle the Deceased’s abuse any longer and needed to remove herself from the toxic situation. For the benefit of her mental health, … [she] could not have the Deceased in her life. … [Aristea] had minimal contact with the Deceased after she moved out of Unit 2.”[35]
[35]Plaintiff’s position statement, paragraphs [13]-[16]
85Aristea did eventually reconnect with her parents prior to the deceased’s passing.
(b) any obligations or responsibilities of the deceased to the claimant, any other eligible person or beneficiary of the estate
86The deceased owed obligations and responsibilities arising as part of being a parent to both Aristea and Labrini.
(c) the size and nature of the estate
87The estate comprises the family home. The inventory records the value of the property at $1,150,000.00.
88Any family provision order may necessitate sale of the sole estate asset, Unit 3, where Labrini currently resides.
(d) the financial resources, including earning capacity, and the financial needs of the claimant, any other eligible person or beneficiary of the estate at the time of the hearing and for the foreseeable future
89Aside from 15 hours as a casual support worker for Better Care Options in early February 2024, Aristea has not worked since 2022.[36] Her medical conditions of generalised anxiety disorder, c-PTSD and ADHD impact upon her capacity for employment.
[36] Plaintiff’s position statement, paragraph [23]
90Aristea’s current income is limited to Centrelink benefits. She also has a child support assessment in her favour of $41.08 per fortnight from Jed’s father; however, this is currently in arrears of $417.00.[37]
[37] Plaintiff’s position statement, paragraph [26]
91Aside from the joint ownership of Unit 2 with Labrini, and personal effects, Aristea’s only assets as at March 2024 comprise three National Australia Bank accounts with a combined total balance of $353.77 and superannuation of $10,426.08.[38]
[38] Plaintiff’s position statement, paragraphs [32]-[33]
92Aristea was renting a house in Glen Waverley for $3,042.00 per calendar month, but was forced to vacate in April 2024. Her income is insufficient to cover her and her son’s basic living costs, including a motor vehicle, suitable rental accommodation or basic maintenance and repairs to Unit 2.
93Aristea’s evidence included that her sister, Labrini:
(a) is single and does not have children;
(b) has a degree in Biological Sciences and worked for many years in pathology;
(c) has not worked for about five years, and currently receives WorkCover payments;
(d) lives in Unit 3; and
(e) has a half interest together with Aristea as a joint tenant of Unit 2.
(e) any physical, mental or intellectual disability of any eligible person or beneficiary of the estate
94This factor is not relevant.
(f) the age of the claimant
95Aristea is forty-nine years old.
(g) any contribution of the eligible person to building up the estate or the welfare of the deceased or her family
96This factor is not relevant.
(h) any benefits previously given by the deceased to the claimant, any other eligible person or any beneficiary
97The deceased and Georgios gifted Unit 2 to Aristea and Labrini by Transfer of Land dated 8 February 1995[39] registered 9 August 1995,[40] subject to Caveat T796580X lodged by the deceased and Georgios on the grounds of the terms of the 1995 Agreement.[41]
[39] PCB 293
[40] PCB 285
[41] PCB 295
(i) whether Aristea was being wholly or partly maintained by the deceased before her death
98This factor is not relevant.
(j) the liability of any other person to maintain the eligible person
99This factor is not relevant.
(k) the character and conduct of the eligible person or any other person
100Whilst Aristea was estranged from the deceased for periods of time, I accept her explanation as to the reasons for leaving home and her desire to limit contact with her mother because of her extreme views and occasional violent and abusive behaviour. There is no basis to make a finding of any disentitling conduct on the part of Aristea.
(l) the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries
101Labrini is the only beneficiary affected by a family provision order in favour of Aristea.
(m) any other matter the Court considers relevant
102Aristea has sole parental responsibility of Jed, who is twelve years old, and will be financially dependent on her for the foreseeable future.
Should further provision be made?
103Upon consideration of the factors referred to above, I am satisfied that Aristea is a person for whom the deceased had a responsibility to make adequate provision for her proper maintenance and support.
In what amount should provision be made?
104Aristea submits that as a daughter, she was owed an ordinary moral obligation on the part of the deceased, and that an appropriate amount of family provision is $578,000, being approximately half of the Estate.
105Aristea submits that the evidence establishes she has fallen on hard times, and is in dire financial need as a single mother to her dependent son. Her only asset remains the joint proprietorship of Unit 2 with Labrini, which is subject to the 1995 Agreement, and a caveat to secure $18,024.44 owed to Victoria Legal Aid.
106I accept Aristea’s submissions that her risk of homelessness, although reduced in the immediate term, is dependent on her ability to coexist with her sister and father in the neighbouring units. This is not a healthy living environment for Aristea and Jed, due to Labrini’s and Georgios’ behaviour. On the evidence before me, they are hostile toward her, and consider her to be the enemy, as her mother did.
107In all the circumstances, a wise and just testator would view the amount of $475,000 payable as a lump sum within 90 days as adequate and proper. Such a sum from the estate provides Aristea with a financial buffer, while at the same time giving due consideration to the terms of the Will.
108The amount provides for an amount no greater than is necessary for her proper maintenance and support, having regard to the following considerations:
(a) a pecuniary legacy obviates the need for Aristea to live at Unit 2 and will allow her to obtain alternative accommodation;
(b) the likely monthly rental payable based on her previous suitable accommodation in Glen Waverly; and
(c) her half interest in Unit 2 as a tenant in common with Labrini.
109The figure represents an appropriate amount from the available assets in the Estate by way of provision for an adult child who is in a state of significant financial hardship, to discharge her existing debts, obtain suitable accommodation for her and her son, purchase a motor vehicle and provide a buffer against contingencies. With careful management, together with her interest in Unit 2, it should provide a measure of financial security and something beyond the bare necessities of life.
110It acknowledges Aristea’s lack of financial reserves to meet her own needs, including her various medical conditions, her limited means of earning an income and the uncertainty of her present accommodation in Unit 2 having regard to the terms of the 1995 Agreement and her difficult relationship with Georgios and Labrini.
111I will hear from the parties as to the form of final orders, and costs.
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