Trapani v Ciocca and Anor
[2013] VSC 462
•6 September 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2012 4131
IN THE MATTER of the Will and Estate of Domenic Trapani, Deceased
IN THE MATTER of an Application pursuant to Part IV of the Administration and Probate Act 1958
BETWEEN
| GIOVANNI ANTHONY TRAPANI (by his litigation guardian CATHLEEN ANNETTE CARI) | Plaintiff |
| and | |
| JOHN CIOCCA AND MARIA ASSUNTA CIOCCA (who are and are sued as Executors of the Will of the Estate of Domenic Trapani, Deceased) | Defendants |
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JUDGE: | DALY AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 August 2013 | |
DATE OF JUDGMENT: | 6 September 2013 | |
CASE MAY BE CITED AS: | Trapani v Ciocca & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 462 | |
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TESTATOR’S FAMILY MAINTENANCE – Claim by adult son with mental health issues – Adequacy of life interest – Conduct of executors.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Isles | Faram Ritchie Davies |
| For the Defendants | Mr P Adami | F Butera & Co |
HER HONOUR:
The plaintiff, Giovanni Trapani (“John”) is the only son of Domenic Trapani (“the deceased”). Domenic died on 26 October 2009, aged 52. He left a will dated 25 September 2009, in which he appointed his sister, Maria Ciocca, and her son, John Ciocca, as executors. Probate of the will was granted on 7 May 2010.
Clause 2 of Domenic’s will provided as follows:
I give devise and bequeath all my Estate both real and personal whatsoever and wheresoever situate to my trustees upon trust as follows:
…
2. To hold the rest and residue of my estate UPON TRUST to apply the whole or any part of the income thereof and any part or parts of the corpus thereof as my Trustee may in her absolute discretion consider necessary or desirable to meet the needs or comforts (including accommodation, maintenance, support, education, advancement or benefit) of my son GIOVANNI ANTHONY TRAPANI with the power to pay the same or any part thereof to any person or persons having the care of my said son without seeing to the application thereof and in each year to accumulate any income not so applied.
3. In the event that my son the said GIOVANNI ANTHONY TRAPANI should predecease me or if on his death there is any corpus left in the Trust that I have herein established for his benefit then I DIRECT that such corpus be divided equally between those of my nephews and nieces, being the children of Vince Trapani, Enrico Trapani deceased, Assunta Ciocca, Maria Trapani, Elena Tarino and Rocco Trapani, who are then alive and attain the age of eighteen (18) years.
It is common ground that there are 23 nieces and nephews who qualify as remaindermen in the event that John dies before the capital of the estate is exhausted, one of whom is the first defendant, John Ciocca.
John was 23 at the time of his father’s death in 2009. Prior to Domenic’s death, John had lived with his father for approximately ten years on his father’s farm outside Shepparton. Since 2009, John has lived with his mother, Cathleen Cari. His parents separated when John was a small child, and John lived with her at her parents’ home until he moved to the farm to live with Domenic in about 1999.
John left school in 1998, during Year 9, and worked on his father’s farm and as a process worker until 2006. According to his mother, he started using marijuana in or about 2004 (although I note that Dr Hokin, a psychiatrist who prepared a report on 20 August 2013, stated that John reported using drugs and alcohol since his early teenage years). In 2007, John was diagnosed with schizophrenia, probably associated with long term marijuana abuse. Since that time, he has been hospitalised on a number of occasions, and has on occasion attended rehabilitation services. In his recent affidavit, Dr Hokin states:
I have determined that he suffers from severe mental illness including paranoid schizophrenia and chronic psychosis;
In the longer term, I believe that John’s psychiatric condition could stabilise, and that he may be able to marry and have a family, but I cannot say how long this might take; and
As regards his future to be able to work, this is unlikely, at least in the foreseeable future.
The medical evidence, along with the evidence of his mother, Cathleen, being John’s carer and litigation guardian about his day to day activities, suggests that while there are prospects that John may be able to recover or at least manage his illness in the longer term, his short to medium term prognosis is not encouraging. Indeed, the fact that John is seriously ill is not in contention.
Domenic’s will was made only weeks before his death, and the establishment of a trust for John was no doubt motivated by his concerns about John’s mental health, and John’s capacity to manage his own affairs, which are well founded. The real issue in this proceeding is whether the establishment of the trust, in its terms, made “adequate provision for the proper maintenance” for John within the meaning of s 91(4) of the Administration and Probate Act 1956 (Vic) (“Act”). Counsel for John submitted that the deceased, while no doubt well motivated, did not properly discharge his moral duty to make adequate provision for John. By providing John with a life interest only, Domenic neglected to anticipate that John might recover sufficiently to form a relationship and have his own children, and the terms of the
will would prevent John from passing on any assets to his dependents upon his death. Further, counsel submitted that the events which have transpired between Domenic’s death and the trial of this proceeding have demonstrated that John and Maria Ciocca are not suitable trustees, and that the estate ought to be given to John absolutely, subject to appropriate safeguards in recognition of John’s ongoing incapacity.
This proceeding was commenced on 17 July 2012, some twenty months after the grant of probate, and as such John, through his litigation guardian Cathleen, sought an extension of time to bring this proceeding pursuant to s 99 of the Act. It was accepted by the executors that at least a substantial cause of the delay in issuing this proceeding was the dilatory conduct of solicitors previously engaged by Cathleen to advise upon Part IV proceedings. The hearing proceeded on the basis that if John’s claim was meritorious, there should be no barrier to the grant of leave by reason of the delay. Given the length of the hearing was relatively short (less than one and a half days) there appeared to be limited advantage to the parties in terms of saved costs to warrant determining the application for leave separately to the trial of the proceeding.
In her affidavit sworn on 8 May 2013, Cathleen deposed, in summary, as follows:
(a)she married Domenic in 1982, and John was born in 1985. She and Domenic separated in 1987, and she and John lived with her parents between 1987 and 1997;
(b)John was a difficult child, and was diagnosed with attention deficit disorder at the age of three. He left school during Year 9. He lived with Domenic on his farm between 1997 and 2009;
(c)John worked at the Testa Rosa tomato factory between 2003 and 2006, when he lost his job after losing his driving licence;
(d)John had a girlfriend, Cara, for 2½ years from 2001;
(e)John was diagnosed with schizophrenia in 2007;
(f)prior to Domenic’s death Maria did not tell John, who was living at the farm, at which hospital Domenic was being treated in Melbourne, and did not extend any invitation to John to stay with her so that he could visit his father;
(g)some days after Domenic’s funeral John returned to the farm to discover the locks had been changed. John has not been able to recover his clothing and other personal items from the farm. Some months later Maria attended Cathleen’s home at Sanderson Street, Shepparton (“Shepparton property”), and accused John of taking a slicer machine from the farm;
(h)John was upset by the removal of all of the fruit trees growing in the orchards at the farm;
(i)in 2010 she overheard a heated telephone conversation between John and the first defendant, John Ciocca, when John wanted to buy a car, and John Ciocca refused to provide funds for the purchase of a car;
(j)in 2009 she purchased the Shepparton property, where John has lived with her. She has been unable to work because John is in need of her care, and therefore she has been unable to meet the loan repayments required under her mortgage with the Commonwealth Bank;
(k)on or about 16 April 2013 she received a Notice of Demand from the Commonwealth Bank. Her solicitors wrote to the solicitors for the executors seeking funds to pay out the arrears, and received no reply. Her solicitors wrote to the solicitors for the Commonwealth Bank requesting the bank refrain from further pursuing enforcement action pending the outcome of this proceeding;
(l)in 2011 and 2012 John attended the Innisfree Whole Health Repair and Recovery Clinic, at the cost of $10,000 on the first occasion and $13,000 on the second occasion, paid for by the estate. He found these stays beneficial. He attended Innisfree again earlier in 2013, but this stay was funded by a loan from Cathleen’s father;
(m)in January 2013 Cathleen’s sister had discussions with the Raymond Hader Clinic regarding treatment for John. This program would cost of $26,000, but the executors have refused to fund John’s treatment;
(n)Cathleen subsequently arranged for John to stay at the Delmont Private Hospital in Glen Iris, which was funded by John’s private health insurance. The private health insurance premiums are paid for by John; and
(o)both she and John have had a number of hostile telephone calls with Maria. In late 2012 Maria telephoned Cathleen to try and settle this proceeding. Maria stated that if the matter goes to court the lawyers can eat the money. She also stated “I don’t want to sell the farm.”
In her affidavit in support of an expedited hearing and interim relief (being the payment of the arrears owing under the mortgage of the Shepparton property) sworn on 27 May 2013, Cathleen deposed, in summary, as follows:
(a)John is seriously unwell, and she has been his full time carer since 2009. Since April 2013 he has been on medication prescribed by Dr Arthur Hokin, but medication has failed to assist in the past;
(b)she believes he needs to return to Innisfree for a three month stay, which would cost $30,000; and
(c)the mortgage is in arrears because she has been unable to work as well as be a full time carer for John.
Mr Marshall Richards, John’s solicitor, also swore an affidavit in support of the application, which exhibited an email copied to him by the first defendant on 28 May 2013, the text of which is as follows:
Mr Butera
This email is in response to the affidavit made by Cathleen Anne Cari.
Since the mediation back in February this year, we have requested on at least 3 occasions if you could please provide us with the necessary paperwork to be able to hand this matter over to the Senior Master’s Office. As this has been our decision since February and we no longer want to continue to act as Executors of the late Domenic Trapani’s Estate, can you please NOW organise any paperwork that is necessary for us to be able to hand this over to the Senior Master’s Office.
Due to our decision no more monies will be paid out from the Estate until this matter is rectified.
On 1 July 2013 the defendants swore affidavits in opposition to John’s claim which were substantially identical in terms, and, in summary, deposed as follows:
(a)John was three years old when his parents separated, following which he lived with Cathleen until he went to live on the farm with Domenic in 1999 or 2000;
(b)the only employment John has ever had is the position at the Testa Rosa tomato processing plant, despite being offered various jobs since 2005;
(c)John Ciocca has not spoken to either John or Cathleen for about two years, although Maria has spoken to Cathleen;
(d)they have been aware of John’s drug problem and mental health problems for some years;
(e)Cathleen has never contacted Maria regarding John’s condition or needs;
(f)the relationship between Cathleen and Domenic was acrimonious after their separation; and
(g)Domenic left a gross estate valued approximately $461,000, with liabilities of $80,000 (a debt due to the estate of his brother Enrico) and a mortgage of $56,081.64. Maria has made payments for and on behalf of the estate of $70,608.62, for which she has now been reimbursed.
In her affidavit, Maria also responded to the specific matters raised in Cathleen’s first affidavit, as follows:
(a)she was not aware that John had been diagnosed with ADD as a child;
(b)she believed John had used marijuana as a teenager, and had been cautioned by the police for stealing;
(c)while she does not accept the recommendation of the Goulburn Valley Health Services that John be treated at the Hader Clinic, she does agree that John requires ongoing treatment and support for his drug and mental health issues. She objects to the Hader Clinic on the basis that the costs are excessive having regard to the size of the estate, and John’s age and future accommodation needs;
(d)she was not aware that John had been admitted to Innisfree earlier this year. She is concerned that Innisfree is not an appropriate clinic for John given his needs, based upon a letter from Innisfree to Dr Hokin annexed to Cathleen’s first affidavit, which indicated that the staff at Innisfree consider that John’s disorders require treatment in a clinical setting;
(e)while she is prepared to consider funding John’s admission to a private clinic, she is concerned about the cost;
(f)she has made an offer to purchase a car for John valued at up to $20,000 and to pay him an allowance of $100 per week, but the estate can no longer advance an amount of $20,000. That offer was not conditional upon John’s claim not being pursued. She agreed that she was concerned that the legal costs were reducing the estate. She did not deny telling Cathleen that she did not want to sell the farm;
(g)she denied that she prevented John from seeing his father before his death, and that John, accompanied by a carer, visited Domenic at her home on a number of occasions prior to his death;
(h)she does not know what became of John’s clothing and personal possessions at the farm. Locks were installed because of the number of people who had access to the farm while Domenic was alive;
(i)the fruit trees were removed from the farm in order for the estate to comply with the terms of an Exit Grant of $150,000 provided by the Victorian Government for fruit growers prepared to leave the industry;
(j)she did refuse John’s request for a turbo charged vehicle costing $28,000. As John had a number of motor vehicle accidents, she does not believe he should have such a powerful and expensive car;
(k)she did confront John about taking items from the house at the farm, because neighbours reported sighting him there late at night;
(l)she does not consider that Cathleen’s mortgage arrears are the responsibility of the estate; and
(m)she will give consideration to assisting John with the costs of vocational training if the need arises, but she is anxious to preserve the assets of the estate.
Cathleen responded to the evidence of the executors in her affidavit sworn on 7 August 2013, as follows:
(a)she disputed various matters about the dates upon which the parties lived together and certain aspects regarding her relationship with Domenic;
(b)she disputed the fact that John had offers of employment that he has failed to take up;
(c)much of John’s income of $928 per fortnight is consumed by the cost of cigarettes, as he smokes heavily when his auditory hallucinations are severe;
(d)she believes that the treatment at Innisfree was beneficial, and that if John had been given the opportunity to go to the Hader Clinic he would be much better now. She considered it is wrong for the executors to “put a price on the health treatment of John”, as she has on occasions feared for his life when in a psychotic state; and
(e)the mortgage over the Shepparton property is in arrears because she had to give up her job two years ago to care for John, and she had to draw down on her mortgage to fund the legal costs associated with this proceeding.
Finally, John relied upon the evidence of Dr Arthur Hokin, a psychiatrist who has been treating John for the last few months. In Dr Hokin’s affidavit sworn on 21 August 2013, he deposed as to his diagnosis of John’s current position (severe mental illness including paranoid schizophrenia and chronic psychosis), his current medication and treatment regime, his prognosis, work capacity, and desirable treatment regime. He does not believe the Hader Clinic and Innisfree Clinic are suitable options at this stage of his treatment, but could be utilised as part of a long term treatment program. He exhibited a report prepared by him which went into greater detail regarding John’s history, presentation and symptoms.
Neither Cathleen nor Dr Hokin were cross-examined at trial. Counsel for John cross‑examined Maria, and Maria gave evidence regarding the following matters:
(a)her relationship with Cathleen;
(b)the fact that, apart from John’s request for a car in 2010, and recent requests to fund John’s admission to the Hader Clinic, neither Cathleen nor John have approached her for assistance;
(c)if she was very certain that the Hader Clinic would help John, she would pay for it, in fact she would sell her own property;
(d)she wanted to keep the farm to generate more income for the estate;
(e)she agreed that she and her son no longer wanted to be executors, and that the Senior Master’s office would be a suitable organisation to look after the estate in John’s interests;
(f)she has done works on the house at the farm and now rents it out. John could not live there as he would not be able to look after himself;
(g)she disputed that she told John that he was not welcome at the farm;
(h)if John had children, she would ensure any money that was left in the estate would go to them, but if there were no children, no property should go to Cathleen;
(i)the assistance sought by Cathleen to meet the arrears on her mortgage was for her accommodation, not John’s. John is welcome to live with her;
(j)she believes she no longer has a relationship with John because Cathleen and her family have deliberately kept them apart; and
(k)she gave some evidence regarding other payments from the estate, including funds paid to the estate of Enrico Trapani (Domenic’s brother) to satisfy a judgment debt.
The following relevant conclusions can be drawn from the affidavit and oral evidence:
(a)John is likely to be significantly disabled by mental illness for a long period of time, and, realistically, at this time, Cathleen is the only person who is in a position to provide the necessary supervision or care outside an institutional setting;
(b)the funds expended from the estate to date on treatment programs have been of limited effectiveness, perhaps in part because of their limited duration, but also in part because John needs more intensive clinical treatment;
(c)Cathleen and Maria have different views regarding the manner in which the funds of the estate ought to be utilised, in that Cathleen believes that no expense should be spared in obtaining treatment for John, while Maria is anxious to preserve the estate to meet John’s long term needs, and is sceptical about the effectiveness of some of the treatment programs proposed by Cathleen;
(d)both John and Cathleen are at risk of homelessness if funds are not used from the estate to purchase or rent a property for them to live in, on the assumption that John would not take up Maria’s offer to live with her;
(e)the antipathy between Cathleen and Maria, whatever its origin or cause, is such that it is almost impossible for them to engage in a courteous and reasonable dialogue regarding the best utilisation of the assets of the estate in John’s interests; and
(f)for various reasons, including the estrangement between Cathleen and Maria, and possibly the residence of the executors in Melbourne, John does not have any meaningful relationship with Maria.
As a result of orders made by me at the conclusion of the trial, on 2 September 2013 Maria filed and served an affidavit regarding the financial position of the estate.
Following the completion of the trial, the first defendant filed and served a further affidavit setting out the financial position of the estate. In summary, the estate has net assets of $468,189.03, comprised of the following:
Farm
$417,500.00
Cash at Bank
$24,169.00
F. Butera & Co trust account
$20,000.00
Amount owing by Cathleen
$6,425.00
This summary does not take into account the legal costs expended by the parties in this proceeding. If either the estate or John were to purchase Cathleen’s property for a net cost of, say, $220,000, and legal costs of approximately $100,000 were deducted from the estate (subject to hearing submissions from the parties), the cash balance of the estate would be approximately $150,000.
On 12 June 2013 this proceeding was given an expedited hearing date because the property in which John now lives, being the Shepparton property, is subject to possession proceedings by the Commonwealth Bank owing to arrears on the mortgage. Since that time, it appears that the Commonwealth Bank has refrained from pursuing enforcement action pending the outcome of this proceeding. The executors are close to entering into unconditional contracts of sale for Domenic’s farm at an acceptable value, and are prepared to use part of the proceeds of sale to fund the purchase of the Shepparton property from Cathleen at market value, which will enable Cathleen to pay out the loan owed to the Commonwealth Bank. Further, while there were some mixed messages emerging from the submissions of counsel for the executors and the evidence before the court, it appears that the executors do not strenuously object to the balance of the sale proceeds of the farm, along with the remaining assets of the estate, being paid to the Senior Master to be administered for the benefit of John, as proposed by counsel for John.
The real dispute between the parties remains whether the title to the assets of the estate, including the Shepparton property and the balance of the cash assets of the estate, should lie with John absolutely, or with the executors, to be administered in accordance with the terms of Domenic’s will. Given that the cash assets of the estate are unlikely to be large (depending upon the final accounting of the executors, and the ultimate orders as to the costs of this proceeding), the practical issue which arises is what would become of the Shepparton property upon John’s death. If it were to be administered in accordance with the terms of the will, the Shepparton property would be sold, and the proceeds of sale would be distributed among up to 23 cousins of John. If the Shepparton property were to be John’s absolutely, this asset would pass in accordance with John’s will but, most likely, to John’s next of kin, whether it be a domestic partner, a partner and/or children, or, in the absence of any partner or children, Cathleen. It is apparent from the evidence given by Maria in the course of cross-examination that it is the latter scenario (that is, the passing of the assets of the estate to Cathleen) to which she is vehemently opposed.
Of course, the court’s consideration of the issues in cases such as these should not be unduly influenced by what might occur after the death of the claimant. The primary considerations are the needs and welfare of John. However, counsel for John submitted that John’s ability to deal with his property in the manner he chooses (subject to the constraints upon his capacity) may well influence his well being and peace of mind, particularly if his health recovers sufficiently to start a family. While Maria stated during the course of cross-examination that she would make sure John’s estate would go to John’s partner and children in the event of his death, that would be no mean feat to achieve, given that there are up to 23 remaindermen whose consent would be required to legally give effect to that intention. I agree with the submissions of counsel for John that the best means of ensuring that the needs of John and any family he may subsequently form are met is to order that the estate pass to him absolutely, after the estate purchases the Shepparton property from Cathleen, or another equivalent property.
In regards to the question of whether, by appointing the executors to manage the affairs of the estate for the benefit of John, Domenic made adequate and proper provision for John, it should be noted that, while similar issues may arise, this is not an application to remove a trustee, and therefore, it is not necessary for me to make findings that the executors should be disqualified from being trustees by reason of misconduct or incompetence. Again, the question is what a wise and just testator would have put in place to meet John’s needs given his particular circumstances.
Counsel for John submitted that various events and aspects of the conduct of the trustees have demonstrated that they are unsuitable to manage John’s affairs, including:
(a)the refusal of the executors to fund appropriate treatment for John, as proposed by Cathleen and endorsed by appropriately qualified medical practitioners on the grounds that the proposed treatments are too expensive;
(b)excluding John from the farm, and preventing him from removing his belongings;
(c)refusing Cathleen’s request for a further loan from the estate to meet the arrears of mortgage payments, thus jeopardising John’s accommodation;
(d)failing to sell, or, until recently, rent out the farm;
(e)John has received no financial benefits from the estate for two years;
(f)failing to properly account for the assets and liabilities of the estate; and
(g)generally failing to engage with and address John’s needs.
Counsel for John submitted that it would be expensive and impractical for John to be forced to come to court to complain of the manner in which the executors exercise their discretion from time to time. The most practical solution would be to place any assets surplus to the Shepparton property in the care of the Senior Master’s office, which has the experience and expertise required to assess and address the needs of someone as severely disabled as John currently is.
Notwithstanding some of the contradictory evidence regarding the desire of the executors to continue administering the estate in accordance with the terms of Domenic’s will, in his final address counsel for the executors stated, presumably upon instructions, that the executors were willing, able and keen to remain executors. Counsel submitted that there was no misconduct on the part of the executors which warranted their removal. He submitted, correctly, that in order for the conduct of the trustees to amount to conduct which warrants removal:
the acts or omissions must be such as to endanger the trust properly or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.
Further, counsel submitted that the suggestion that the executors were in a position of conflict by reason of the first defendant being a contingent beneficiary under Domenic’s will was unsustainable, given that the likely potential benefit to the first defendant, that is, a one-twenty third interest of what remained in the estate, is inconsequential. In any event, any theoretical conflict would have been known to Domenic when he made his will.
Counsel for the executors submitted they have done nothing wrong. It was reasonable for them to query the value of the treatment proposed by Cathleen owing to the cost, no requests for assistance with private health insurance premiums or other living expenses have been made by John or on his behalf, an offer has been made by the executors to pay John a living allowance of $100 per week, which has not been responded to, and all payments made to Maria and to third parties have been in respect of bona fide expenses or liabilities of the estate.
In my view, the provision made for John by Domenic’s will was well motivated, but misconceived, in that a life interest in favour of John, under the management of his aunt and cousin does not meet his needs now, and his likely needs into the future, particularly in the event that he recovers and has a family (and there is no reason to believe that he will not have a partner and/or children even if he does not fully recover). In circumstances where Domenic had no obligations to provide for any other person apart from John, his only son, who had been maintained by him for many years prior to his death and has particular needs, it was not appropriate to deprive John of the benefits of an absolute interest in the assets of his estate, being, (subject to appropriate safeguards) security, flexibility, and the ability to use those assets to support and pass on to his dependants in the future. It may well be that Domenic was not aware of other options to prevent the assets of the estate being wasted or dissipated. He may have been motivated by a desire to keep any assets away from the control of Cathleen, with whom he had a hostile relationship, and in the hands of his own family. He may have been unduly pessimistic about John’s long term prognosis. He may have been influenced or motivated by all of the matters referred to above, and understandably so. However, the solution he adopted has not resulted in any tangible benefits for John, or turned out to be in John’s best interests, for a range of reasons, and as such, was not adequate provision for John’s proper maintenance and support.
In coming to this view, it is not necessary for me to consider in any detail all of the allegations and counter allegations made by Cathleen and Maria, or to form a view as to whether there has been misconduct on the part of the executors, either in terms of their management of the estate or their interest and concerns for John’s welfare. The fact that the executors have been reluctant to fund what are quite expensive treatment options for John does not necessarily reflect any lack of concern for John, but rather an understandable concern to protect the assets of the estate in circumstances where substantial sums have been expended in the past without any apparent lasting benefit, given the deterioration in John’s condition.
However, it is apparent that the conflict between Cathleen on the one hand, and Maria on the other hand, both in terms of how the estate should be managed on John’s behalf, and the personal conflict between them generally, has not been productive of any substantial benefit for John. As such, it would be in John’s best interests for his cash assets to be managed impartially and professionally by the Senior Master’s office.
For completeness, in determining that Domenic’s will has not made adequate provision for the proper maintenance and support of John, and in determining what would amount to adequate provision, I have taken into account the following provisions of s 91(4) of the Act: (e), (f), (g), (h), (i), (j), (m) and (n). In particular:
(a)John was Domenic’s only son, and the authorities suggest that an adult son does not have to make out any case for particular need in order for there to be a moral duty imposed upon a parent to make adequate provision;
(b)there was no obligation upon Domenic to make provision for his nieces and nephews, or any other person;
(c)the estate is modest, and as such, there is little scope to benefit persons other than John. On the other hand, if carefully administered, it is of a sufficient size to enable him to acquire secure housing and provide a modest supplement to his current income;
(d)John’s financial position is extremely poor, and may well be so for many years to come;
(e)John’s illness appears to be well-entrenched, and, while he may ultimately recover, this will take some time, and his prognosis is not overwhelmingly encouraging;
(f)John’s relative youth, combined with his illness, means that he may require support for many years. However, his health, family, and financial circumstances may well change significantly over time;
(g)Domenic had supported John for many years through the provision of rent‑free accommodation, presumably having voluntarily assumed that responsibility when John was a teenager; and
(h)while Cathleen has assumed the responsibility to care for John, the evidence is that assuming that responsibility has limited her capacity to support herself, to the extent that her own housing security has been jeopardised.
Accordingly, I propose to make orders in the form suggested by counsel for the plaintiff, including an order directing the Registrar of Titles to lodge a caveat over the Shepparton property to prevent any dealings with the Shepparton property without leave of the Court. I will hear further from counsel regarding the proposed form of orders, and the question of costs.
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