Wadsley v Sutherland

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2013 01648

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the estate of Heather Margery Robinson, deceased

B E T W E E N:

ROBERT WILLIAM WADSLEY (by his litigation guardian, Pamela McCredden)	Plaintiff
v
VICKI SUTHERLAND, ANNA COLETTE CONNOLLY (as executrices of the will of Heather Margery Robinson) and STEVEN MICHAEL BOX	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4 and 5 March 2014
DATE OF JUDGMENT:	22 July 2015
CASE MAY BE CITED AS:	Wadsley v Sutherland and others
MEDIUM NEUTRAL CITATION:	[2015] VSC 344

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TESTATOR’S FAMILY MAINTENANCE - Application for further provision by cousin against a cousin’s estates - Provenance of deceased cousin’s estate - Claimant disabled son deprived of inheritance from widowed mother - Deceased cousin inherited instead with promise to provide reasonable care and benefit to deprived cousin - Whether transmission of mother’s moral obligation - Extent of moral responsibility as between cousins in the circumstances - Substantial estate - Bequest of $250,000 life fund - Adequacy of provision for proper maintenance and support - Significance of claimant’s disability pension in the assessment - Administration and Probate Act 1958 (Vic) s 91

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr P D Bravender-Coyle	Bartram Lawyers
For the first and second defendants	Mr R Phillips	Wakefield & Vogrig Lawyers
For the third defendant	Ms E Coates	Stidson Warren Lawyers

HIS HONOUR:

It may truly be said of the plaintiff, Robert William Wadsley, that he has had a piteous life.

He is 65 years of age. He is the only child of Colin Victor Wadsley and Dorothy Edna Wadsley, both deceased. He did not advance beyond Year 10 at school. He worked with his father and mother on the family farm in Pakenham South raising sheep and cattle, and growing vegetables. When he was 18 (the year was 1968) he was traumatised by the sight of his father lying dead in a paddock ― a rifle by his side. Until the age of 23, Robert worked on the farm with his mother, and for a short time also worked as a road labourer until he witnessed a terrible workplace death. He then came to be afflicted with serious psychiatric disorders.

I shall defer reciting the details of a life spent in institutionalised care from time to time, or in supported care services. He has had an extensive reduced level of functioning throughout his life in all areas, including work, interpersonal relationships and self-care. He has deficits in learning and cognitive functioning. Recent diagnosis has him as experiencing residual symptomatology consistent with a primary diagnosis of schizophrenia. He has never married or had any long term or intimate relationships. On the psychiatric evidence, his functional rehabilitation will be limited and it is unlikely he could live a fully independent lifestyle or live in independent accommodation without close support.

His financial position appears to be parlous. He has little by way of liquid assets. He depends on a disability pension which he has been receiving since 1972. Since 2013, he has lived with his paternal cousin, Pam McCredden (by whom he sues as his litigation guardian) in her home at Croydon. She cares for him and attends to his needs. She is the most important support person in his life.

Robert’s father died in 1968. His mother died in March 2000 by which time she had left the family farm and become a resident at Meadowvale Village, a retirement home in Pakenham. She is described as having been a wonderful homemaker. Her schooling did not progress beyond primary school and her lack of education is said to have been her downfall in life.[1] She had lived a very isolated life on the farm, as she did not have a driver’s licence and hardly left the farm. In dealing with financial matters, she had the help of her only sibling, a sister Gwenneth Robinson. Dorothy was not able to help her son Robert with his condition, leading eventually to Gwenneth’s intercession to put Robert in psychiatric care. Gwenneth’s daughter Heather Robinson (who is Robert’s cousin, and whose will is under attack in this case) is said to have assisted Robert’s mother with her financial affairs, certainly by the time she had moved out of the farm to Meadowvale Village.
[1]See affidavit of Lorraine Lee Box sworn 18 February 2014.

Robert’s mother died leaving him, at the age of 50, nothing by way of bounty in her will. It is trite to say that as his mother, she obviously had a moral responsibility to provide for her only son who, moreover, was intellectually and functionally disabled. It may be assumed that such a responsibility would be met justly and wisely by mother giving son the entirety of her estate, as the evidence does not show any others for whom Dorothy had a moral responsibility to make provision for care and support. There is no suggestion of neglect or disaffection or abandonment by mother; or disqualifying or disentitling conduct by Robert. And he certainly had no other means and ability to look after himself financially apart from a disability pension.

What explains giving him nothing? Under her will, Dorothy appointed her niece Heather Robinson to be her sole executrix. There were two specific bequests. The first was to Heather absolutely of moneys ‘...held in a Westpac Investment Account or in a Bank Account under our joint names’. I do not know the origins or purpose of that account or the amount held. As the account was held jointly, at law those moneys go to Heather as survivor as her property anyway. The second bequest was of Dorothy’s interest in her accommodation unit at Meadowvale Village. That went to her niece Lorraine Lee Box (the sister and only sibling of her other niece Heather) and to Lorraine’s children namely Steven Box (the third defendant) and his brother Ian Box. But the Meadowvale unit was sold in 1998 or 1999 before Dorothy’s death, so nothing comes of it ― there was an ademption of the bequest.[2] Thus after payment of the usual expenses, the residue was in effect the whole of her estate. According to the inventory of assets and liabilities, Dorothy had no liabilities and the value of her estate was almost $415,000.[3] That was in the year 2000.
[2]The evidence, which is not certain, is based on a ‘Statement of Sale’ dated 12 August 1998 which states an estimated balance to vendor of $38,384: see exhibit AJ-1 to the affidavit of Alison Jeffrey sworn 2 April 2013.
[3]Throughout the judgment, unless otherwise necessary I shall use round or nearest figures.

Under clause 3(b) of Dorothy’s will the entirety of the residual estate, after payment of the usual expenses, was given to Heather. However, clause 5 of her will made this declaration −

5.I DECLARE that I have made arrangements for my son Robert in my lifetime and he has a pension. My Executrix has agreed to provide such care and benefit as he may reasonably require, he has also shown that he cannot handle money and would not retain any money given to him for his future welfare therefore my arrangements should properly provide for him without wastage. Should any beneficiary hereof or any person alleging an entitlement to share in my estate challenge my Will I DECLARE that person or persons shall not take any share of my estate.

The reference to ‘arrangements for my son Robert in my lifetime’ was not explored in evidence. The reference to Robert’s inability to handle money is explicable naturally by his intellectual disabilities and psychiatric condition. There was certainly no evidence of problems such as gambling or alcohol abuse or any other profligate ways.

As the executrices contended, there are in clause 3(b) no words of limitation or conditions attached to the absolute bequest of the residuary estate to Heather. Neither is clause 5 expressed to reveal an intention that the bequest to Heather was conditional upon her compliance with that clause. So, legally it is right to say the estate was hers absolutely. Accordingly, the executrices say that, adhering to the words of the will, the Court should not conclude that Dorothy left her estate to Heather pursuant to some legally binding agreement that she would use the inheritance to provide care and benefit to Robert. The inheritance is all hers, they say. They assert that Heather ‘…agreed to provide care and benefit to Robert because she is a good person and that was her choice’[4] and was trusted by Dorothy to do the right thing.
[4]Written submissions, 2 March 2014, para 22.

That leads into the major and opening issue in the case. It can be accepted, as the defendants emphasised, that a cousin is not ordinarily regarded as being under any moral responsibility to make provision to another cousin in a will. Were it not for the inheritance from Dorothy there appears to be nothing in the facts or circumstances to impose a moral responsibility on Heather to provide for Robert. But in the peculiar situation here, the issue was whether there was a transmission to Heather of the moral responsibility owed originally by Dorothy to Robert and if so, whether Heather has fulfilled that in her will. The executrices adamantly resist the proposition that Heather was such a transferee. But, as a distinction, they concede Heather had a moral responsibility to Robert by reason of her inheritance. They say this falls into the category of ‘any other matter the Court considers relevant’ in s 91(4)(p) of the Act as one of the factors to which the Court must have regard in seeing whether a responsibility exists and assessing the adequacy of the provision. To the body of that concession, I would add a fortiori that the concomitant words in clause 5 ― ‘My Executrix has agreed to provide such care and benefit as he may reasonably require’ ― certainly resonate to sound a moral obligation.

The executrices’ distinction appears semantic. But I can see it as a contention that, in principle, Heather (a cousin) should not now be visited with a parental type responsibility to Robert (a cousin) just because she inherited all from someone who plainly did. Or, put in practical terms: just because Heather inherited all of Dorothy’s estate does not mean it was therefore morally unjust for Heather not have left her estate, or what remains of it, or its present value, to Robert. It all depends, the defendants say, on his proven needs for maintenance and support, no more and no less. Subject to that, they say that what must prevail at law is Heather’s freedom of testamentary disposition.

For Robert’s case, the inheritance of Heather was characterised analogically as Robert being bypassed by his mother. That is, Dorothy’s only son who had special needs was bypassed in order that Heather, one of her two nieces was adequately provided for, maintained and supported. Yet, there was no apparent need to maintain and support Heather. Robert says he was not aware he could have brought a claim in 2000 to seek provision from his mother’s will. That is believable. The theme of his case, certainly forensically, was that on Heather’s death it became her responsibility to make good the provision of which he was earlier deprived. For the sake of his deceased mother, I will say her son was apparently not truly bypassed or denied because clause 5 of Dorothy’s will shows in some rudimentary way that she entrusted Heather to provide for Robert’s care and welfare over and above that which his disability pension provided.

Eleven years later after Dorothy’s death, Heather died of cancer at the age of 58 in the year 2011. She was not married and had no children. A de-facto relationship with a William Carlin had ended in 2010 with a court settlement of their financial entitlements. At the time of her death the gross value of the estate was almost $1.3 million. With additional details I shall come to later, Heather’s will gave Robert $250,000 on trust from which he could seek payments of income or capital. The will stipulates that upon Robert’s death any unused money in that fund was to form part of Heather’s her residuary estate. Hence it was a life fund. There were a lot of other beneficiaries. With details I shall come to later her residuary estate was divided into 40 equal parts, 10 parts of which went to the executrices and the rest to other friends and some care or welfare organisations The benefit given to the third defendant, Steven Box (Heather’s nephew) stands out for separate treatment. He was given a bequest of $100,000 and the right to trust distributions from a trust estate known as the Harvey Estate which originated from Dorothy and passed to Heather under her inheritance. That is worth $270,000. Steven Box was separately represented in this case.

In this case, Robert makes a claim against the estate of his cousin Heather under the family provisions of the Administration and Probate Act. He looks to view Heather’s moral responsibility as having been incurred, and her financial position as having been derived, from her inheritance from Dorothy. Ultimately, in the way the case evolved the issue of moral responsibility seemed to give way. As I have said, the executrices conceded a (non-parental) moral responsibility because Heather’s inheritance was statutorily a relevant matter, and for them, the challenge was based on the sufficiency of evidence concerning Robert’s needs.

The need for proper maintenance and support implies something more than dollars and cents. But, after a court’s appraisal of human and financial affairs and matters statutory, these cases have to come down bluntly to money. After testing at trial, the case for Robert ultimately was to seek, as a minimum, an additional $350,000 for living expenses to be added to the $250,000 life fund or ‘nest egg’ as it was characterised, and then an additional $150,000 to assist him to buy a unit in the Croydon area near where he now lives with Pamela McCredden, or some other accommodation in a retirement village or care accommodation. That makes for an accretion of $500,000 to make for a total fund of $750,000. As I will show, the net residue of the estate, that is after already deducting the $250,000 fund, is about $800,000. An additional provision of $500,000 is about 63 per cent of the residue. Robert’s case contends that in doing the sums, the Court ought to disregard his annualised disability pension of $21,000. He asks for the further provision of $350,000 to come from the residuary estate to be divided equally amongst the residuary beneficiaries, and suggests that the $150,000 for accommodation come out of the specific bequest to the third defendant, Steven Box either as a bequest to him instead or as an accretion to the life fund. It must be kept in mind that any unused part of the life fund reverts to the residuary estate on Robert’s death. So that which is taken away from the residuary beneficiaries may come back in some measure to them after Robert’s death. He has no apparent responsibility for the proper maintenance of anyone.

The defendants say the $250,000 fund in Heather’s will made adequate provision, on top of the pension which they say should not be ignored. They say that Robert has been able to sustain himself on the pension and requests for money from Heather in her lifetime; and the executrices will do the same by applying any income (or capital) from the $250,000. That, they say, will be an adequate source of any additional money he may need. The executrices contend beyond that, Robert’s case has simply failed to prove in court that his needs now and in the future are any greater. They oppose the award of money to purchase a flat or unit because the evidence shows he is incapable of living independently. Thus they say the Court has no proven grounds to interfere with Heather’s freedom of testamentary disposition. If the Court is disposed to give him something on top of the life fund, the executrices say it should be a modest amount; no more than $75,000.

The third defendant supports the executrices’ position. His interest lies in saying whatever the court gives, it should come out of the residuary estate and not from his bequest because of all beneficiaries (apart from Robert) he is the only family member and therefore has a naturally better entitlement to be left undisturbed.

This was not the only claim on Heather’s estate. Probate of Heather’s will was granted on 4 April 2012. This proceeding was commenced on 4 April 2013.[5] By that time, there was already pending two other testator’s family maintenance (‘TFM’) applications in this court for further provision. The first was commenced on 21 May 2012 by Heather’s mother Gwenneth Robinson. Relations between mother and daughter seemed to have soured. The material shows Gwenneth saying that she had helped Heather financially and emotionally all her life, and had left all her residual estate to Heather ‘…as I was very close to her and my other children are financially secure’.[6] She then altered her will because, she said, Heather broke a promise to leave all her estate to Gwenneth so that it remain in the family for Gwenneth to pass on, instead of leaving it largely to ‘people who are not related to her but are service providers who have already been paid for their services’. Gwenneth said she was in need of specialist 24 hour care, and had hefty medical and care costs.
[5]This was outside the statutory time limit of 6 months. An extension of time was granted by the Court, by consent, under s 99 of the Administration and Probate Act on 28 May 2013.
[6]See her affidavit sworn in SCI 2012 02895, para 23ff.

The second TFM proceeding was brought jointly on 3 October 2012 by Lorraine Box (Heather’s only sister) and Ian Box (nephew of Heather). They received nothing under Heather’s’ will. As I say, Steven Box was the only family member that did, for reasons I shall expose later which concern disputations within that family.

The three proceedings were managed by the Court so as to be fixed for hearing concurrently, or successively.[7] The first two TFM proceedings settled on 24 February 2014 for $85,000. But this case did not. The only information the Court has concerning these settlements comes from Mr Phillips, counsel for the executrices, who explains that the estate made a ‘commercial assessment, based upon nuisance value’ that these claims were weak and the figure of $85,000 was a small sum compared to the size of the estate.[8] I made orders in each of the other proceedings on 5 March 2014 dismissing those proceedings. When looking at the net value of Heather’s estate for the purposes of this proceeding, the estate’s accounts show that on 20 November 2013 a final settlement amount of $85,000 was paid to Gwenneth Robinson, Lorraine Box and Ian Box.[9]
[7]Orders made 28 May 2013.
[8]T68-9.
[9]See exhibit VS-2, affidavit of the executrices, sworn 18 February 2014.

The parties are a long way apart in financial terms. The desideratum in these cases is that they settle outside the clinical conditions of Court proceedings, to avoid further conflict and the lamentable reduction of the estate by the legal costs of litigation. To that end I pre- arranged for a judicial mediation before opening addresses, but there was no consensual desire to mediate. The resolution of this family dispute is now a matter of the Court’s wide discretion to be exercised in accordance with the statutory commandments in s 91(4) of the Act and the unavoidable application of value judgments when it comes to assessments of moral duty or responsibility. That discretion is to be exercised in a principled way was explained by Callaway JA in Grey v Harrison:[10]

… 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 properties from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the widest 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.

[10](1997) 2 VR 359 at 336-7.

‘Moral duty’ is not a statutory term. It is a convenient way of referring to the obligation resting on a testator to make a wise and just assessment. In this context, ‘moral’ means accepted community standards to what is right and proper in the interests of members of a testator’s family.[11]The object of TFM legislation is to remedy breach of the moral duty. The breach is to be determined objectively by a consideration of the facts and circumstances existing, or which might reasonably have been foreseen, or unknown to the testator. The question of what order should be made is decided by reference to the facts at the time of trial.[12]
[11]See review of authorities in Jackson v Newns [2011] VSC 32 [41] ff.
[12]See Grey v Harrison [1997] 2 VR 359, 364-5 (C.A.); and Litchfield v Smith and Others [2010] VSC 466 [24].

In these cases there are two steps under the statute as a precursor to any intervention by the Court. The first is a determination under s 91(4) of the Act whether the deceased had a responsibility to make provision for the applicant. That is conceded here ― with the fervent rider that it was not a transmission of the same responsibility as was owed by Robert’s mother to him. The second question is whether the will made adequate provision for his proper maintenance and support. In determining those questions the Court must have regard to the 12 matters in s 91(4)(e) to (o) of the Act. Ultimately, the Court must consider what provision a wise and just testator would have thought it was her moral duty to make for the applicant.

As is typical, the trial of this proceeding was conducted by affidavit. The facts are dispersed. The Court received into evidence 18 affidavits on behalf of the plaintiff; 16 from the executrices; and two from the third defendant. There was no cross-examination of any deponent. As the transcript will show I made three rulings in the course of the trial. The first concerned the admissibility of various parts of the plaintiff’s affidavits. The second concerned the admissibility of an affidavit of David Heath an actuary. His affidavit was put forward to support a case that a present value figure for Robert’s care (ignoring pension) was $852,556. Much of the basis of that affidavit was based on facts not proved by admissible evidence. Mr Heath was made to work on assumptions of future care and expenses lifted from a psychiatric report which itself disclaimed expertise of medical (non-psychiatric) needs.

I mention this to show that much energy in this case was spent by the Court in dealing with evidentiary matters and pressing for clarity on the evidentiary basis for judicial determination. It was always the executrices’ case that Robert’s case suffered from a lack of evidence on the fundamental question of his financial situation and his needs.[13] It was fortunate that an affidavit filed by Pamela McCredden near the end of the trial gave some information on Robert’s living and household expenses,[14] and a last minute affidavit from Robert gave a short account of his financial assets.[15] I made a third ruling, refusing the plaintiff’s application in closing submissions for an adjournment to adduce more, unspecified, evidence.
[13]See their written submissions dated 2 March 2014 at p 13.
[14]Affidavit sworn 3 March 2014 (exhibit P14).
[15]See affidavit sworn 3 March 2014 (exhibit P15).

What follows is a digest of the facts. It is designed to cover the necessary factors in s 91(4) without copious attribution. There is no doubting Robert’s disabilities for the purposes of s 91(4)(i). There was no issue about: (i) any contribution by Robert to Heather’s estate under s 91(4)(k); (ii) any disentitling conduct under s 91(4)(n); and (iii) any liability of any other person to maintain Robert under s 91(4)(o). With the exception of the third defendant, who was not a residuary beneficiary, it was not contended Heather has a moral obligation to the residuary beneficiaries for the purposes of s 91(4)(h). The dispute seemed to essentially concern the significance of Heather’s inheritance; the significance of Robert’s pension; proof of his needs and the adequacy of the provision.

For convenience, I have attached an abridged family tree to aid comprehension of facts. The first step is to consider Dorothy’s estate. It is a relevant matter under s 91(4)(p).

Dorothy Wardsley’s estate (the year 2000)

According to the inventory of assets and liabilities, the total assets in Dorothy’s deceased estate were $414,667. Dorothy’s only real estate was her sole and unencumbered proprietorship of the family farm at 600 McDonald’s Drain Road in Pakenham South. That was valued at $310,000 for probate purposes.[16] Her personal estate was approximately $105,000 made up of credit balances in two bank accounts with the ANZ Bank and debenture stock certificates with Esanda Finance. Her estate had no liabilities.
[16]See exhibit RWW-5 to the plaintiff’s affidavit sworn 2 April 2013.

Dorothy also had an interest as beneficiary in what the documents refer to as ‘the Harvey Estates’, even though that interest is not listed in her inventory of assets. The significance of the interest in the Harvey estates is that Heather inherited all of Dorothy’s interest in the Harvey Estates. Something more needs to be said about that now as it affects distinctly the interests of the third defendant, Steven Michael Box.

Dorothy’s father was Cecil Harvey. He had nine siblings. Dorothy had an interest under the wills of her uncle Theodore John Thomas Harvey; her aunty Kate Alice Amelia Harvey and her uncle Percy Reginald Harvey.[17] The trustee of those testamentary trusts states that the assets in those three Harvey estates are a relatively small amount of cash. But each of those estates also has an interest in the estate of Edward Alfred James Harvey. Apart from some cash, the other assets of the estate of Edward Alfred James Harvey are three lots of land at Indented Heads in the Bellarine Peninsula which are to be sold. From the net proceeds of sale, the developer of the land is entitled to 38 per cent and the remaining 62 per cent goes to the estate. According to the evidence, Dorothy had these interests in the Harvey estates: a one-sixteenth interest in the estate of Theodore Harvey; a one-tenth interest in the estate of Kate Harvey; and a one-tenth interest in the estate of Percy Harvey. The point is: the entitlements that Dorothy had from the Harvey estates were not a bottomless pit. They will soon come to be exhausted once the remaining lots of land at Indented Heads were sold and the fractional shares distributed.
[17]See the affidavit of Ian Maxwell McAlister sworn 18 February 2014, in particular exhibit IMM‑1.

The land at Indented Heads was a 30 lot subdivision. As at August 2012, only four allotments remain to be sold. According to the evidence, there have been income and capital distributions in 2012 and 2013 to Heather’s deceased estate. As at 13 February 2014, Heather’s estate held $107,120 in a controlled money account said to have been received from the Harvey estates.[18] Under clause 11 of Heather’s will, she gave any benefit or interest to be received from the Harvey estate to her nephew Steven Box, the third defendant. Steven Box has been advised that that the total amount receivable from the Harvey estates is about $270,000 of which $107,000 has already been paid and remains in the controlled account.[19] Hence the question: if there is to be further provision, should it come partially from Steven’s gift of the Harvey estates as well as from the residuary estate?
[18]See the executrices’ affidavit sworn 18 February 2014.
[19]See affidavit sworn 17 February 2014, para 3.

Dorothy’s will records that Heather agreed to provide such care and benefit as Robert may reasonably require. That is a beneficent promise. Eleven years elapsed from the time Heather inherited Dorothy’s estate until she died. Did she provide the care and benefit to Robert as she agreed? Throughout that time it appears he went on living a frugal life, being able to live off his pension and requests for money as and when needed from Heather. It is no part of his case that Heather did not provide money as he needed it. There were snippets in the affidavits, mostly inadmissible, suggesting inattentive conduct by Heather to which I have not attached any significance. The executrices, who were close to Heather, swear that she was ‘committed’ to the health and care of her cousin Robert. Because of the peculiar connection between the circumstances and relationships under the two estates, I need to return to his life before his mother’s death to paint a better picture.

Robert’s life, and the relationship between Robert and Heather

Robert was working on his parents’ farm up until about 1973. After signs of abnormal behaviour following the death of his father and a workmate, his mother did not have the skills, or access to the skills, to help Robert. Following some unsuccessful interventions at local clinics, Robert was admitted to Larundel Psychiatric Hospital. Dorothy’s sister Gwenneth and niece Heather were involved in Dorothy’s life perhaps because she lived such an isolated life on the farm. Lorraine Box in particular seems to have spent time with Robert, at least in teenage years. Dorothy referred all of her financial matters to Gwenneth, for her attention. There is enough to conclude I think that Heather was eventually given control or some sort of responsibility in the control or management of Dorothy’s banking or financial affairs. I will assume that Dorothy reposed trust and confidence in Heather.

Robert was institutionalised in 1973 in the Larundel Hospital. He was then 23 years old. He underwent electric shock treatment (electroconvulsive therapy), and also attended the Mont Park Psychiatric Hospital for more treatment. He remained at Larundel up until 1976. In 1976 he was released into the care of his cousin Lorraine Box and her husband, Alan and lived with them between 1977 and 1983. During their care was able to be rehabilitated to the point where he was able to drive a car and had some measure of independence. It is not clear but I think even throughout this time when he was in the care of Lorraine and Alan, he stayed with his mother on the farm much of the time. I take it that was where he was happiest.

In 1984 he experienced psychiatric problems again and was admitted to Dandenong Psychiatric Hospital. In 1985, when he was 35 years old, his aunt Gwenneth arranged to move him to an assisted accommodation home in Healesville, ‘Bethany’, where he stayed for about five years. After that, arrangements were made to relocate him to Marna House, another assisted accommodation home in Healesville where he stayed for about five years.

In the early 1990s his mother moved to the Meadowvale Retirement Village in Packenham and his aunt Gwen and Heather arranged to rent the farm to lessees. Until his mother’s death in March 2000, Robert stayed with his mother at her unit for short periods. Heather would also arrange to have him stay at her home two or three times a year, up to a week at a time. There was a room set aside for him.

In 2000 (the year of his mother’s death), at the age of 50, he moved to Scholfield Lodge, an assisted accommodation house in Healesville. He remained there until the age of 60. Scholfield Lodge closed in February 2009 following the Black Saturday bushfires. He then moved to accommodation at Lilydale Lodge, paying $365 a week for a shared room. The other residents were elderly people with dementia or various forms of mental illness. Robert’s pension was able to support his accommodation requirements but he was in the position where he had to ask Heather for additional money when he needed it or wanted to purchase things. He says:

Heather used to pay me money whenever I wanted it. She would usually send $200. I am unable to be precise as to how often she sent money, but it was whenever I asked her. She paid it to the managers [of Lilydale Lodge] who paid it to me as I required it.[20]

[20]Plaintiff’s affidavit sworn 2 April 2013 at paragraph 54.

One of the owners of the Scholfield Supported Residential Services, Claire Bell, confirms in an affidavit that as manager, she received Robert’s fortnightly pension and after deducting his rent and paying for his medication and any other expenses, he was given the change. That is the standard practice in supported residential services to help manage the residents’ money. She confirms that Robert would make requests for money to Heather and usually received $200 from her every three months or so. After the 2009 bushfires, he asked Heather for more money which was sent. In 2009, Heather increased the frequency of sending money from $200 every three months or so to $200 every four to six weeks. Claire Bell reveals a side of him that shows him to have been charitable with his money. He would donate all his money and buy items for bushfire relief in 2009 and gave substantial amounts to the Salvation Army relief centre. She comments that Robert was not literate or numerate enough to manage his own affairs but he cared enough to want to understand things clearly, unlike other residents who were apathetic.

It may not matter, but I cannot say how or from where Heather was drawing the money to pay for Robert’s requests. There are documents to show that a source of money became available to Heather from a distribution coming from the deceased estate of Robert’s paternal grandfather, Thomas Wadsley. He was a farmer at Koo Wee Rup who died in March 1962. Under his will, one-quarter of his residuary estate was left to Robert’s father, Colin. When Colin died on 27 February 1968 his interest in Thomas Wadsley’s estate passed to Dorothy. Under Dorothy’s will, the residue of her estate was bequeathed to Heather. The evidence is that lawyers acting for Thomas Wadsley’s deceased estate produced financial statements in 2006 showing that the total amount available for distribution from Thomas’ residuary estate was approximately $60,000. Of that, Heather received $15,030.08.[21] It appears those moneys were placed in a cash management account in Robert’s name at the Bendigo Bank on 6 November 2006.[22] That money was there for Robert’s use. It is put to me as evidence of an instance where Heather was willing to ‘pass on’ money to Robert that belonged to her by inheritance.
[21]See affidavit of Alison Jeffery sworn 28 June 2013, exhibit AJ-2.
[22]See affidavit of Vicki Sutherland sworn 25 July 2013 para2, and, exhibit VS-1. See also transcript 151-2.

Amidst the many affidavits filed in this case, there is engagement on the question of how much apparent care and attention was given by Heather to Robert’s financial needs and personal welfare. The affidavits filed by the executrices aim to dispel any view that Heather was anything but caring and responsive to Robert’s needs. Heather was working herself and therefore was not always able to see him throughout the week. She had her own affairs and activities over the weekend, and a life with her de facto husband Will Carlin who she met in 1987. And it must be remembered that she was diagnosed with terminal breast cancer in 2003 and therefore had her own major personal problems.

There are differences, here and there about how frequent visitations were at the accommodation houses, or descriptions of the duration of stays that Robert had at Heather’s place. To my mind, these were not matters of great calibre, and in any event there was no challenge to any of the statements made in any of the affidavits. But a number of things are common. Robert lived a frugal life. Heather sent him money as and when he requested. He would ring and ask her for $200. Sometimes Heather would ask him if he needed more money. If he did, he would get the money in the post. He also stayed at Heather’s property, the mild dispute being how often. After his mother’s death, he would stay for about a week on each visit, during which time he worked on Heather’s property without payment. He says he did that on average not more than twice a year. When he stayed at Heather’s place he would, out of a love of gardening, ‘trim every bush in sight’. On one occasion, when Heather was overseas, he stayed at Heather’s property for eight weeks and managed her farm. The minor complaint seems to be that Heather did not visit him, or visit him frequently at the accommodation houses except when Heather or her domestic partner had to attend to pick him up. It seems his greatest visitor was his cousin Pam McCredden.

Money was not needed from Heather to help pay for his accommodation at the various care houses. He was able to pay accommodation expenses from his disability pension. At Lilydale Lodge he was paying $365 a week for a shared room. His request for extra money from Heather was when he needed or wanted to purchase things for himself. He was content to stay at Lilydale Lodge because his main support network was still at the Healesville Community Health Network.

The evidence is unclear but, as I read between the lines, by about 2010 (not long before Heather’s death) a question likely arose about whether Robert’s welfare was best served by him leaving Lilydale Lodge and being given by Heather and maybe others such as Gwenneth the means or assistance to purchase care accommodation with a room to himself or to buy a unit for himself and pay for domestic support. The attraction of a unit in the Healesville area was that he had many friends in that area. The executrices say Heather would have supported such a decision if he had chosen to purchase a unit, but say there was doubt whether Robert himself wished to do that. The best I can say is that the question was up in the air. Perhaps he was better off at Pamela McCreddin’s place with her care. Living alone with care might have been inimical to his wellbeing as he seemed to have enjoyed interaction with others.

There is one statement from the executor Anna Connolly which I feel has a credible content to it:[23]

It is possible that Robert was also sent a greeting card with $200 from Heather every three months to top up his pocket money – that would be typical of her, generous and thoughtful.
It is highly likely Robert bought tools but I would expect he also bought some items for personal needs. I am aware that there are many bags and containers of Robert’s tools all in pristine condition. Many tools have never been used and are still in original packages. Heather would have paid for clothes or big ticket items but also supported him making his own purchase decisions, e.g. buying shoes.
… Heather was always responsible to Robert’s needs and provided for him. It is most likely that Heather increased the amount of money she sent Robert at his request.
… Robert often stayed with Heather although he also had other first cousins that live in substantial properties in Victoria whom he admired.

Robert enjoyed living in Supported Accommodation Residence and the friendship of people in these communities. He enjoyed living in Lilydale. His lifestyle was organised, it was located close to services and shops and he liked to visit friends that were all local. He could happily and safely walk to venues and chat to people in his neighbourhood without fear. It had been raised with Robert in the past if he would like to have a room to himself however he has always maintained he prefers having company.

[23]See affidavit of Anna Collette Connolly sworn 25 July 2013.

Later in another affidavit,[24] she says:

Heather would send Bob cash whenever he asked for it. In the short time he was at Lilydale Lodge this amounted to about $4,000. Dorothy said that Bob was unable to handle money and would fritter it away if left in sole control. This is why Heather sent him small amounts as requested.

[24]Affidavit of Vicki Sutherland sworn 2 August 2013.

In another affidavit,[25] this is said:

Heather often told me in recent years that Bob had a well-rounded life at Lilydale Lodge. It is situated within walking distance of a bank, pharmacy, medical clinic, Bob’s local MP, bus and train transport, Bob’s favourite menswear store and a supermarket. Many outings are organised for Bob and others by the Eastern Ranges Community Health Team. Bob lived with like‑minded people and has a strong community of supporters who understand his needs.

[25]Affidavit of Anna Colette Connolly sworn 2 August 2013.

There is one affidavit filed on behalf of the plaintiff that attracts attention. It is sworn by Lorraine Lee Box, a first cousin of Robert and the sister and only sibling of Heather. It is apparent that Lorraine harbours unfavourable views about the situation obtained by Heather. And that must be taken into account. She challenges the statements made that Robert was happy or content with conditions at Lilydale Lodge and it is apparent that she now very much supports the view that Robert’s accommodation with his cousin Pamela McCredden is a temporary measure until he has sufficient funds to obtain his own accommodation. In her affidavit she says this:[26]

Late in 2010, Heather often discussed with me whilst I was driving her to appointments that she knew she had to make another Will, as she had broken up with her long term partner William Carlin. I took this opportunity to encourage Heather to ensure that her revised Will returned Robert’s mother’s funds to him. I explained to Heather that Robert needed to have funds available to him in later life so that he could purchase a room in a Nursing Home and support himself. Whilst Heather agreed that she needed to provide for Robert, she always refused to acknowledge that Robert would need much more than his pension in the way of assets for his future. She said that, ‘His pension had supported him for most of his life so there is no need to suspect he would need anything more than an occasional ‘top-up of funds’, or words to that effect. I had these conversations with her on several occasions late in 2010 when I was driving her to appointments and I was in her house.

[26]Sworn 18 February 2014 at para 20.

Heather’s relationship with Will Carlin ended in February 2010 and there were proceedings under family law for concerning their financial affairs. The plaintiff drew attention to the sworn materials filed by her in Family Law Act property proceedings in 2010 materials in which Heather disclosed her inheritance under Dorothy’s will but said (with counsel’s emphasis): ‘Pursuant to paragraph 5 of Dorothy’s will I am required to provide such care and benefit as my cousin, Robert Wadsley may reasonably require. Therefore the inheritance was not for my sole use.’ Not too much should be made of this. I think it was a statement faithful to clause 5 of Dorothy’s will and made in the context of adversarial family law proceedings to ensure that any adjustment of her financial assets took into account her responsibility to Robert which her executrices accept she has, and which they say has been satisfied.

On the facts then, the following can be found up until Heather’s death. Robert lived a very frugal life, surviving on his disability pension, donations of clothing and the like from charity, and cash from Heather when he needed it. It was no part of his case that Heather did not respond to his requests for money or that she denied him care and benefit. He was a disabled man, living such a simple life and did not ask Heather for much.

Heather made her will in April 2011. She died on 1 September 2011. In April 2013 Robert left Lilydale Lodge and went to live with Pamela McCredden. He says he is now in comfortable accommodation at Pamela’s place ‘in my very own room’. As he puts it, ‘I feel I have moved on to a different stage in my life.’ He does not want to go back to live in Lilydale Lodge and is quite happy living in a dwelling at the back of Pamela’s property in Croydon He likes to keep busy, he says, and looks to join mainstream local activities where he hopes to develop new friendships. ‘I feel my health has improved markedly’ he says.[27] I cannot be sure, but there may not be much of an age difference between them, or she may be a little older. She says they have discussed the idea of Robert living at the back of her place in a unit, which would have to be built.
[27]For these matters, see has affidavit sworn 3 September 2013 (exhibit P6).

His Aunt Lorraine Box gives a stronger account for the reasons for Robert leaving Lilydale Lodge. She says that during all the periods that he was living in assisted care, he was kept in isolation from most of his family. He told his Aunt Lorraine that he did not like the other residents at Lilydale Lodge as they were alcoholics or drug affected. Others would ask him for money or worse still, remove his possessions during the night. He suffered frequent episodes of ill-health. Her own assessment of Lilydale Lodge was that it was a terrible place with what seemed to be sub‑standard accommodation and people who appeared to be mentally ill or drug dependent hanging around and begging. She confirms that improvement came into his life when he moved to Pamela McCredden’s place and received one on one care from her. But, she explains, he always expressed concern about living away or on his own.

I pause there. That is the happy status quo, but it cannot be expected, realistically, that he a disabled man can definitely stay with Pam for the rest of his life, or for hers. It may be Pam will want to have her own life soon or as she gets older. She may sell or move out or cease to be able to attend to Robert’s care needs. It is expectable that as he gets older he will need more medical or a degree of personal care and support that Pam cannot provide and which may only be available in an aged care facility.

As for the life of Heather, the adulatory affidavits portray her in her lifetime as being social, considerate to others; and as having a close circle of loved and trusted friends and kindred spirits.[28] She was well known in the district. The affidavits from her adoring friends say she was known to have money, success in business, a lively social life and regular interstate and overseas holidays. She lived an alternative lifestyle. She had a shared interest in horses, show riding and animals and the making of horse rugs. She conducted a successful horse rug and saddlery business known as ‘Double J Ranch’ from her property, but which collapsed after 2000. Those connections intensified with the support and sympathy that comes naturally from caring friends after she was diagnosed with cancer. She found comfort from other worshippers at a church, the Drouin Christian Fellowship. Members of the congregation helped her with household tasks and meals. Other friends helped with domestic matters. As she ceased consulting doctors or seeking conventional or western medicinal therapy and became ‘alternative’ in her outlook, some of the organisations benefitting under her will were Foundations or Retreats where she attended for lectures and seminars and supportive therapies as her suffering continued. As her cancer progressed her friends were her support and consolation because her relationship with a partner Will Carlin had ended; she was estranged from her sister Lorraine Box and relations with her mother Gwenneth Box were not much better. It is poignant that one supporter and beneficiary said ‘Heather still wanted to live very, very much and had felt her family and partner were just waiting for her to die and be out of their hair’.[29]
[28]See affidavit of Anna Connolly sworn 10 August 2012.
[29]Letter from Dr Portia Reading, exhibit VS-1 to the affidavit of Vicki Sutherland sworn 18 February 2014.

As was emphasised by the defendants, the affidavits show Heather truly valued her friendships and found great comfort with the Church and other organisations as her illness progressed and her health declined. Thus it is not surprising that the deceased regarded these persons and organisations dearly and worthy of gratitude. I am asked not to ignore the important role that the first and second defendants played in Heather’s life and see it as commendable that they, and the other friends and organisations, were there to support Heather during her time of great need.

I turn now to Heather’s will.

Heather’s will

Under her will, she appointed two of her closest friends as executrices. In summary, she made specific bequests of goods to numerous friends including the executrices. She made a bequest of $100,000 to her nephew Steven Box and also gifted him her benefits from ‘the Harvey Estate’. She established what was described as a protective trust of $250,000 for Robert[30] for his life from which payments of income or capital could be made for his welfare. After his death the remaining fund was to revert to the residuary estate. As for her residuary estate, it was divided into 40 equal parts going to the executrices, other friends and some charitable or welfare organisations.
[30]See s 39 of the Trustee Act.

The relevant parts of Heather’s will state:

… EXECUTRICES

1. I APPOINT my friends VICKI SUTHERLAND of 202 Stolls Road, Buln Buln East, and ANNA COLETTE CONNOLLY of 9/7 Hedgeley Avenue, East Malvern, Executrices of my Will and Trustees of my estate (hereinafter referred to as my ‘Trustees’). I DIRECT that the expression ‘my Trustees’ where used in this will shall include the trustee or trustees for the time being of my estate whether original additional or substituted.

BEQUESTS

2.        I GIVE my Nissan Patrol motor vehicle and my horse float to my friend VICKI SUTHERLAND.
3.        I GIVE my Toyota Corolla motor vehicle to my friend PHILLIPA MEALINGS.
4.        I GIVE my three year old Anglo Arabian filly, registered as ‘Chardae’ (or otherwise known as ‘Dolly’) to my friend, ELIZABETH CARLISLE.
5.        I GIVE my five year old Anglo Arabian gelding, registered as ‘Southern Storm’ (or otherwise known as ‘Cheeky Boy’) to my friend, MARGOT McDOUGALL.
6.        I GIVE my household items and items of jewellery to my friends, VICKI SUTHERLAND, ANNA COLLETTE CONNOLLY, DEBBIE ALLAN, MARGARET McDOUGALL, PHILLIPA MEALINGS, and ELIZABETH CARLISLE to be divided as they so choose, save that I GIVE my red glass necklace to ELIZABETH CARLISLE.
7.        I GIVE the 132K6 machine, one roll of blue 32.411 canvas, one roll of white 10.370 canvas, and one roll of stripe heavy wool rug lining to my friend MARGOT McDOUGALL.
8.        I GIVE the sum of one hundred thousand dollars ($100,000.00) to my nephew STEVEN MICHAEL BOX.
TRUST FOR ROBERT WADSLEY

9. I GIVE the sum of two hundred and fifty thousand dollars ($250,000.00) to my Trustees to hold UPON TRUST the actual net income derived therefrom on protective trust for my cousin ROBERT WADSLEY (hereinafter referred to as ‘the Robert Wadsley funds’) for life and to pay or apply all or any part of the net income derived therefrom and all or any part of the capital of the trust to or for the benefit of my cousin ROBERT WADSLEY in such amounts and at such times as my Trustees shall think fir and without any obligation to make any payments. I DIRECT my Trustees however when exercising the discretion as to payments that the welfare of my cousin ROBERT WADSLEY shall be the paramount consideration. I also authorise and encourage my Trustees to make payments to ROBERT WADSLEY for his medical support, and also his holidays, hobbies, and any other personal requests that he may have now and in the future.

10. IF my cousin ROBERT WADSLEY dies and any ‘Robert Wadsley funds’ remain in trust, then such amounts are to form part of my residuary estate.

THE HARVEY ESTATE

11. I GIVE any benefit or interest I may receive from the Harvey Estate to my nephew STEVEN MICHAEL BOX.

RESIDUARY ESTATE

12. I GIVE the rest of my real and personal property to my Trustees UPON TRUST for private sale, not by auction, with power to postpone the sale of the whole or any part of the said property (including property of a wasting nature) and from the proceeds of sale I DIRECT my Trustees to pay all my judge debts, funeral and testamentary expenses and all taxes and duties charged on my estate or occasioned by my death and the balance remaining is herein called ‘my residuary estate’.

13. I DIRECT my Trustees to divide my residuary estate into forty (40) equal parts and to stand possessed of those parts as follows:-

a) to PAY OR TRANSFER six (6) parts to my friend VICKI SUTHERLAND of 202 Stolls Road, Buln Buln East;

b) to PAY OR TRANSFER four (4) parts to my friend ANNA COLETTE CONNOLLY of 9/7 Hedgeley Avenue, East Malvern;

c) to PAY OR TRANSFER four (4) parts to THE GAWLER FOUNDATION, currently of PO Box 77 Yarra Junction, Victoria;

d) to PAY OR TRANSFER four (4) parts to LIVING VALLEY SPRINGS HEALTH RETREAT, currently at 15 Shepperson’s Lane, Kin Kin, Queensland;

e) to PAY OR TRANSFER four (4) parts to DROUIN CHRISTIAN FELLOWSHIP currently care of Paster Keith Gillam, of Norman Road, Drouin;

f) to PAY OR TRANSFER four (4) parts to my friends PETER ALLAN and DEBBIE ALLAN of Yarragon;

g) to PAY OR TRANSFER two (2) parts to my friend MARGOT McDOUGAL of Pound Road, Bunyip;

h) to PAY OR TRANSFER two (2) parts to my friend PHILLIPA MEALINGS of C/: 45 Kennedy Street, Longwarry;

i) to PAY OR TRANSFER two (2) parts to THE FRED HOLLOWS FOUNDATION, currently of Locked Bag 5021, Alexandra, NSW;

j) to PAY OR TRANSFER two (2) parts to my friend ELIZABETH CARLISLE of Old Princes Highway, Longwarry;

k) to PAY OR TRANSFER two (2) parts to HIGHWOOD HEALTH RETREAT, currently of 291 Maroondah Highway, Narbethong, Victoria;

l) to PAY OR TRANSFER two (2) parts to my friend PORTIA READING of 30 Downey Road, Dewhurst as shall survive me;

m) to PAY OR TRANSFER one (1) part to my friend CHRISTINE MILLER care of ‘Emerald Park’, Licola Road, Jamieson; and

n) to PAY OR TRANSFER the remaining one (1) part to my friend MARION McCROSTIE care of ‘Emerald Park’, Locola Road, Jamieson.

…

REASONS

15. I HAVE purposely not made any provision for my sister LORRAINE LEE BOX and my nephew IAN KENNETH BOX in this Will after serious consideration as I consider that they have already been provided for when they received gifts from my father NORMAN ARTHUR ROBINSON and they will benefit from my mother’s GWENNETH LORNA ROBINSON Estate at such time as she should pass away. I have also purposely not made any provision for my mother GWENNETH LORNA ROBINSON as I consider that she has sufficient assets for her needs. I acknowledge being informed of the existence of Part IV of the Administration and Probate Act 1958.

16. I HAVE not made any provision at all for my former defacto partner WILLIAM CARLIN as we separated on 11 February 2010 and he obtained a fair portion of our property in Orders made by the Federal Magistrates Court dated 18^th November, 2010.

Clause 9 shows that Heather recognised a responsibility to make some provision for Robert in her will. That was an unavoidable moral responsibility, and a powerful one at that. She had no spouse or children. Indeed her only ‘dependant’ of sorts was Robert. She had inherited from Dorothy to the exclusion of Robert in a will which recorded as a concomitant of inheritance that Heather ‘…agreed to provide such care and attention as he [Robert ] may reasonably require’.

Who are these friends and organisations in Heather’s will? Not all of them have filed affidavits to disclose their connection with Heather and state their financial position or needs. A beneficiary is entitled elect to remain silent about his or her financial resources and needs, and look to the Court giving due regard to the freedom of testamentary disposition and the testator’s preferable dispositions regardless of that beneficiary’s financial position or needs. However, where no material is filed by the beneficiary the court ‘is fairly entitled to assume that the beneficiary has no special claim other than relationship, and that, in particular he or she has adequate resources upon which to live’ or does not wish to advance a competing financial claim on the bounty of the deceased: see Anderson v Teboneras[31] and Sammut v Kleeman.[32]
[31][1990] VR 527, 535 (Ormiston J).
[32][2012] NSWSC 1030 [134] to [137].

Those that have filed affidavits are −

(a) Vicki Sutherland (the first defendant). She was very good friend of the deceased’s for 40 years since school; and obviously trusted. She does not depose to her financial circumstances. She seeks to speak for two other beneficiaries who did not swear an affidavit, namely, Portia Reading and Highwood Health Retreat. Portia Reading was a naturopath who treated Heather, but there is no evidence of her financial circumstances beyond saying she is working part time and receiving a disability pension. The Highwood Health Retreat gave support to Heather.

(b) Anna Colette Connolly (the second defendant). She was a very good friend for 33 years. Heather once was a retinal photographer at the Royal Victorian Eye and Ear Hospital, Ophthalmology Department where she met Colette Connolly. She does not disclose any competing financial needs. She also describes Heather’s connection with these other beneficiaries who did not swear an affidavit: Heather went to the Gawler Foundation in Warburton to assist in cancer management; she went the Living Valley Springs Health Retreat on several occasions for seminars and vegetarian food and making friends; and she had a friend in Margot McDougal with whom she shared a deep interest in horses and would drive her to appointments at Peter MacCallum clinic. There is no evidence about the financial circumstances of Margot McDougal.

(c) Debbie Jo-Anne Allen, of Yarragon. She and Heather were friends for 35 years, and her husband Peter Allan for 14 years. She works three days a week. He is 67 years of age, unemployed and receives no pension because of her income. They have modest savings and superannuation. They have a $150,000 mortgage. They say they are ‘rebuilding their finances’.

(d) Philippa Mealings, of Cranbourne North. She knew the deceased for five years from the Drouin Christian Fellowship. They ‘hit it off’ as friends. They shared a common interest in horses and alternative medicine. She does not own a home, has no dependants, and has a modest annual income.

(e) Marion McRostie, of Jamieson. She knew Heather from her teenage years and at university. ‘We did a lot of things together’. She and her husband are farmers. They have an annual income of $54,000 after expenses. They own their land (a rather small mortgage of $28,000) and farming equipment. She also speaks for another beneficiary, her sister Christine Cameron, who was ‘a long-time friend’. Christine is married; is working earning $30,000 per year; no children; and paying off a $300,000 home.

(f) Keith Gillam, of Drouin. He is the Pastor of the Drouin Christian Fellowship. He says Heather was a regular church goer, until her illness worsened. She obtained hope and comfort from the church. He says the Church would honour her wishes to pay any benefit under her will to charities that supported children.

(g) Elizabeth Jane Carlile, of Longwarry. She knew Heather for about 20 years. ‘Heather was essentially part of my family’. She was closely involved in caring for Heather in illness, as she did not want doctors or western medicine. She is married with two children. She and her husband own a $800,000 house burdened with a $400,000 mortgage. She states her part time income ($22,000) but does not disclose her husband’s income.

(h) Brian Andrew Doolan, the Chief Executive Officer of the Fred Hollows Foundation. He says this Foundation is not-for–profit and registered as a charity for fund raising purposes. Most of its income is derived from donations and gifts. He does not disclose any prior relationship between Heather and the Foundation.

These beneficiaries supported Heather one way or another during her time of great need. Her chosen friends were highly valued. But, as was conceded on behalf of the executrices, Heather did not owe any of those beneficiaries a moral obligation or responsibility to provide for them, as those concepts are understood in this area of the law. Nor is it contended that she owed a moral responsibility to the beneficiary Steven Box.

The situation of the beneficiary Steven Box

The third defendant, Steven Box, is a nephew of the deceased. He is 35 years old. He married Amanda Bulloch in 2005 and they have two children aged eight and six. He is a mechanic by trade and runs a family business, Box Mechanical Services Pty Ltd.

A complete understanding of his position requires me to start by referring to Dorothy’s will, clause 2 of which made a bequest to him, his brother Ian Box and their mother Lorraine Box an interest as tenants in common in equal shares of Dorothy’s interest in her Meadowvale unit. As it happened, Dorothy’s interest was sold in her lifetime in 1999 so that gift was adeemed, so there was nothing obtained by Steven Box under Dorothy’s will.

Under clause 8 of Heather’s will, Steven was given a legacy of $100,000. That legacy is not challenged as part of the plaintiff’s claim for further provision. In addition, under clause 11 of the will, Steven was also given the deceased’s benefit or interest in the ‘Harvey Estates’. That was an interest which Heather originally inherited from Dorothy. Hence it comes under the plaintiff’s spotlight as something which derivatively ought to be redirected to him. The question is whether any or some of any further provision ought to come from that gift to Steven.

It is not possible to quantify the amount due under the Harvey Estates with precision as all expectancies have yet to accrue. Steven Box says, on advice, that his total entitlement is approximately $270,000. As at February last year, Heather’s deceased estate had received $107,120 in distributions from the trustees of the Harvey Estates. That money is presently held in a controlled moneys account. The evidence from one of the trustees is that most of the properties at Indented Heads held in the trusts have been sold and what is left as assets are a small amount of cash and three lots of land in the 30 lot subdivision on the Bellarine Peninsula to be sold by the trustees in cooperation with a developer, entitled to a project fee as joint venturer. [33] From the evidence the parties were content to proceed on the basis that Steven’s entitlements under the Harvey Estates is not a bottomless pit, but is around $270,000, of which $107,000 has already been distributed and is preserved in Heather’s estate. Thus he stands to gain a total of $370,000.
[33]See affidavit of Ian McAlister sworn 18 February 2014 (exhibit P11).

There is sufficient in the evidence to show that Heather had decided to single Steven out for preferential treatment. She saw fit to state her reasons for excluding her sister Lorraine Box and her other nephew Ian Box in her will under clause 15. Affidavit evidence in Gwenneth’s TFM case shows that as at late 2012 she owned a property in Brandy Creek then valued at $580,000 and held cash of $587,000.

Steven contends that his entitlements under the will to distributions from the Harvey Estates ought to be seen as being in a different category to the residuary beneficiaries. He supports the executrices’ contention that there was adequate provision made for Robert under Heather’s will. But, he has seen fit to be separately represented not only because of the possible conflict of interests that he has with the residuary interests, but has stated that he has no confidence that the executrices would protect his interests.

He seeks to distinguish himself from the residuary beneficiaries by saying first of all he is family. Secondly, it appears that Heather singled him out for deserving special treatment because she regarded Steven as having been compromised or disadvantaged in some disputations and financial affairs in the family. Thus, he says, he had a special entitlement in Heather’s mind and the Court should not on principle interfere with her freedom of testamentary disposition. Thirdly, he points to clause 3(c) of Dorothy’s will under which he and his brother Ian were also potential beneficiaries. That clause provided that if either of Heather Robinson or Lorraine Box predeceased Dorothy, then Steven Box and his brother Ian Box would take their share in equal shares absolutely. Thus, even Dorothy had his interests in mind, and if the plaintiff’s case is to somehow ‘reclaim’ that which Heather got from Dorothy, then Steven stands in good stead. Fourthly, he says he has needs. He contends all of those factors comprise a good reason for making an order that the burden of any additional provision to Robert should come from the residuary estate and not part of the estate that was left specifically to him.[34]
[34]See s 97(2) of the Administration and Probate Act.

The affidavit of Steven Box was unchallenged. He states that around 2002 a dispute arose within his family over a farming property at Labertouche in Victoria. The dispute occurred after the death of his grandfather, Norman Arthur Robinson, his maternal grandfather, (husband of Gwenneth Robinson.) He says that as a result of the dispute, a deed of family arrangement was made by his grandmother Gwenneth, his mother Lorraine, his brother Ian and himself. Heather was also a party to the deed. She was also appointed as an executor with Gwenneth to Norman Robinson’s estate. Under that will, Norman Robinson left the whole of his estate to his wife Gwenneth. His daughter Lorraine, and grandsons Steven and Ian Box threatened to bring a testator’s family maintenance proceeding. As at the date of his death, Norman Robinson and his daughter Lorraine owned an equal half share of the Labertouche property which had been purchased in October 1988 for about $800,000 and was paid for (apart from the stamp duty) by Norman Robinson. The deed has its complications, and I need not rehearse its contents verbatim. I will adopt his description when he says he was left with a half share in the farming property which comprised of two blocks as known as ‘the back block’ and ‘the river block’. In April 2005, estate agents valued the river block in the range of $650,000 to $715,000. It is apparent there were family tensions between Steven Box, his mother Lorraine Box and his brother Ian Box when he became engaged to Amanda Bulloch, including a requirement by them that he enter into a pre-nuptial agreement to prevent Amanda from making any claim on the river block. This helps explain subsequent events when Steven was, he says pressured into relinquishing his half share of the river block in exchange for a payout of $100,000 which he felt was necessary as his mother and brother were making it virtually impossible to continue his relationship with his wife to be, Amanda.

It did not stop there. In 2006, another deed was drawn up under which he says he was required to relinquish a half share in the back block, which was valued at $650,000. He says he was not paid out a single dollar. The way Steven puts it, he relinquished his entitlements in the farming properties for $100,000, well below the value of his half share saying, ‘Significant pressure was placed on me to the extent that my marriage to Amanda was prejudiced if I did not agree’. His evidence is that in the following years after the making of these deeds, he spoke with Heather about those events and she accepted he had been wrongly treated. There is enough to show I think that Heather was looking for some way to financially assist him for the financial detriment he has suffered, particularly as he was struggling financially in the year of her death.

He points to some other evidence to show that Heather was out to look after his interests. I received into evidence some of the affidavits filed in the TFM proceeding brought by Steven’s grandmother Gwenneth against Heather. The material includes Gwenneth’s will dated 19 February 2010. Under that will, she directed her trustees to hold $100,000 upon protected trust for Robert and to hold the balance of the residuary estate upon trust for Heather, and after her death to pay the balance of the fund to Lorraine, Steven and Ian Box in equal shares. One piece of evidence is a copy of Gwenneth’s will on which Heather has written by hand:

This will was done by my mother [Gwenneth] with your co (sic) & my sister [Lorraine] last year. There is talk of this will being changed by my mother – I suspect removal of Steven Box – due to matrimonial problems & mischief making by Lorraine & her other son IAN. The Gossip is That their property at Mt Martha [Steven Box’s property] is valued at 3 mil – which is an absolute load of rubbish.

This is said to be another example of why Heather was minded to make a specific provision for Steven. The purpose is to demonstrate that Heather became an ally of Steven’s, believing that he was dealt a financial blow by the effect of the two deeds under both of which he disclaimed any right to bring a TFM proceeding yet he ended up being the financial loser. Further, there is some evidence to show that Heather was sympathetic to Steven and the family problems which looked like showing that his grandmother Gwenneth was going to cut him out completely of her will. This case certainly has its complications.

Steven’s financial position is as follows. His taxable income is $80,000 per annum and his wife’s taxable income is $18,000. He and his wife presently are joint proprietors of their home in Amberley Drive in Mt Martha which they purchased for $620,000; they own a caravan valued at $15,000; a boat valued at $3,000; and two motor vehicles valued at $35,000 and $19,000. He says they have cash in bank of $20,000 and trade debtors of $15,000. Their liabilities are a mortgage of $405,000, leases of $39,000 and creditors of $18,000. As to personal health, he is suffering a bulging disc which as at February last year had restricted him for eight weeks. He has been diagnosed with diabetes and is required to lose 30 kilograms for which he may have to undergo lap band surgery.

The question of any further provision depends on the size of the estate to which I now turn.

Heather’s estate – s 91(4)(g)

The single biggest asset inherited by Heather from Dorothy was the family farm at 600 McDonald’s Drain Road, in Pakenham South. The inventory of assets and liabilities (the executor was Heather) as at June 2000 values that land at $310,000. The property was unencumbered and was held solely by Dorothy. This property was not used by her for any residential purposes.

From her inheritance, she and her domestic partner Will Carlin purchased land at 10 North Road in Warrigal for $130,000. That was used as an investment property.

In 2004, the Pakenham South land that she inherited was used as mortgage security by her to purchase land at Neerim South, through her company Hillsley Enterprises Pty Ltd in a business venture with others for $630,000. The land was subdivided into 12 residential blocks of land. The property at Pakenham South had an area of 100 acres. It was sold on 28 July 2007 for $850,000 an increase of over $500,000 on the face of it.[35] She invested the proceeds of sale except for about $250,000 to repay an outstanding loan concerning her property investments. She was involved, with her domestic partner, in some other property investments which are not relevant for present purposes but which have been described in materials in evidence concerning her family law property settlement or disputation with her domestic partner Will Carlin.
[35]See exhibit AJ-3, affidavit of Alison Jeffrey sworn 2 April 2013.

According to the executrices, as at 18 February 2014, Heather’s estate consisted of two pieces of land. The first was vacant land at Old Sale Road, Brandy Creek valued at $250,000. That was a vacant piece of land. The second property was at 703 Old Sale Road, in Brandy Creek which is 11 acres and has a higher valuation of $675,000 as it contains a residence. The parties and the Court have worked on the basis that the real estate is worth $925,000 in total.

But what must be taken into account is the liability for capital gains tax when these properties are sold. Both sides accept that any exemption under the capital gains tax provisions for a principal residence, will not apply unless the property is sold within two years of death. As more than two years has now elapsed since Heather died, there will be a capital gains tax liability between the value of the land as at the date of death and as at the date of sale.

The Court can only work on indicative figures as the gain cannot be ascertained until the properties are sold. It is unnecessary for the Court to look into the complications of the capital gains tax law. Counsel for the executrices has given a reckoning of a tax liability to the estate of between $15,000 and $40,000. I think it prudent to work on the higher figure

As can be seen from the affidavit of financial position sworn by the executrices[36] the real estate is valued at $925,000 and the personal estate is valued at $595,000 giving a total of about $1,520,000. That is the position as at 18 February 2014 and, importantly, that is the figure after payment of all costs and expenses up to that date. The costs and expenses to the estate include the costs of defending this proceeding in the other two TFM proceedings. To that figure, an estimate must also be made for the expected legal costs of the executrices from 18 February 2014 onwards, and, the prospect (dependant on the outcome of this case), that the plaintiffs and third defendant’s costs may be payable out of the deceased estate. Counsel for the executrices has conducted the case on the basis of a reduced total figure of $1,300,000 allowing for those costs and expenses. That figure is accepted by counsel for the plaintiff. From that figure, the executrices say, and the plaintiff does not dispute, that the following further deductions have to be made –
[36]18 February 2014.

(a) $100,000 legacy payable to the third defendant, Steven Box in the bequest under clause 8;

(b) $107,120.64 presently identified as ‘Wakefield & Vogrig Lawyers – Controlled Monies Investment Account (Harvey Estate)’, which is to go to the third defendant under clause 11;

(c) $250,000 that has been set aside for Robert to be held on protective trust for his benefit under clause 9; and

(d) the expected capital gains tax liability of $40,000.

Counsel for the plaintiff identified some more expenses that are expectable in this sort of case to reduce the net value of the residuary estate. He suggests allowing $10,000 as a buffer to allow for the possibility of disputations with the Australian Tax Office concerning capital gains tax. He also suggests that there is a real prospect of a claim for executrices’ commission given the pain and troubles that have been experienced so far in this estate. Working on a commission rate of approximately 3 per cent, it is expectable that a claim for commission will be sought in the range of $30,000 to $45,000.

As the Court had to spend much time getting consensus on these figures, and not without some confusion, in the interests of certainty it is best that I set out in tabular form the agreed position between the parties concerning the net value of the residuary estate:

Real and personal assets
(taking into account the payment under the two other TFM claims, and the estate’s costs and expenses up to 18 February 2014) $1,520,000

LESS

Contingent or prospective liabilities for the estate: capital gains tax (CGT)
The plaintiff’s legal costs of trial:

The plaintiff’s liability for legal costs of plaintiff and third defendant for entirety of proceeding:

$40,000

$40,000

$140,000

SUBTOTAL: $1,300,000

LESS

Legacy to third defendant:
Plaintiff’s protective trust fund:
Payment to third defendant from ‘Harvey Estates’:

SUBTOTAL:

$100,000
$250,000
$107,000

$843,000

LESS

Expected claim for executrices’ commission:
Prospect of legal costs for CGT assessment:

TOTAL:

$45,000
$10,000

$788,000

But say, (allowing for sale of land at higher price,) or lower than expected costs)

$800,000

On an estimated net residue of $800,000 the division of the residuary estate into 40 equal parts as stated in clause 13 of the will means that each part is worth $20,000. In that case the distribution of the deceased’s residuary estate would be as follows –

(a)       Vicki Sutherland (6 parts) - $120,000.00
(b)       Anna Colette Connolly (4) - $80,000.00
(c)       The Gawler Foundation (4) - $80,000.00
(d)      Living Valley Springs Health Retreat (4) - $80,000.00
(e)       Drouin Christian Fellowship (4) - $80,000.00
(f)       Peter Allan and Debbie Allan (4) - $80,000.00
(g)       Margot McDougal (2) - $40,000.00
(h)      Phillipa Mealings (2) - $40,000.00
(i)        Fred Hollows Foundation (2) - $40,000.00
(j)        Elizabeth Carlisle (2) - $40,000.00
(k)       Highwood Health Retreat (2) - $40,000.00
(l)        Portia Reading (2) - $40,000.00
(m)     Christine Miller (1) - $20,000.00
(n)      Marion McCrostie (1) - $20,000.00

The residuary estate is substantial. The amount distributable to individual residuary beneficiaries, especially in the $80,000 to $120,000 range puts sharply into financial context the adequacy of the $250,000 given to the disabled Robert, the only one to whom Heather had a moral responsibility.

Robert’s physical, mental and or intellectual capacity - s 91(4)(i)

The Court had before it two expert reports concerning Robert’s psychiatric condition. The first was by Dr Peter Drysdale, a consultant psychiatrist. He is the Director of Aged Psychiatry at Delmont Private Hospital in Glen Iris, Victoria. His report dated 1 July 2013 is not elaborate. He assessed Robert on 24 June 2013 to assess Robert’s ability to instruct his solicitors to decide whether a litigation guardian ought be appointed. Dr Drysdale states (with my emphasis):

… It seems more reasonable that he had a psychotic illness, which may also have had depressive symptoms. The lifelong history of disability is more suggestive of schizophrenia. …
…His chances of change are now remote and it is likely that he will need to remain in a supported environment long term.

In an earlier report dated 24 June 2013, Dr Drysdale stated:

Mental state examination reveals Robert to be alert, very pleasant, cooperative and very attentive throughout the interview. He is easily able to describe his current situation, was able to give a reasonable presenting complaint and personal history. He was quite aware of dates and places that he lived. Mini Mental Status Examination scored 26/30, which scores in the lower end of a normal range of the population.

The figure of $760 per month for food exceeded the figure as given by Pam McCredden. Her figure was $140 per week or $606 per month. The current figure of $100 per month for pharmaceutical expenses (present value $18,634) displaces, in effect, the present value figure of $75,019 in Mr Heath’s calculation of medication costs elsewhere which were not verified. I think it safe to work on the basis of the $100 a month figure for pharmaceuticals.

Assuming accommodation with Pam at the current rent, if I were to make a downward adjustment of the food item to correspond with the figure given by Pam, that annual figure reduces from $141,615 to $112,934 to give a total living and household figure of $351,482. The rounded figure of $350,000 was the figure on which Robert’s counsel made his ultimate submission. He submitted that was the minimum the Court should provide, and that figure should be added to the $250,000 already in the protective trust. Even then, the figure of $350,000 is subject to some predictable, maybe inevitable facts of life. The most obvious is that Pamela cannot be expected to keep Robert interminably. She has her own life, which may change. She will reach the point, one would think, where she will want to be relieved of the care of a disabled man. Or, she may wish to move and sell her home, in which case Robert has to find his own accommodation. Before then, she may reach the point that she cannot cope physically and Robert will need to have a degree of care and support that Pam cannot provide him and which may only be available in an aged care facility. Her remarkable generosity has incurred quit a burden already. She would now be entitled to think that the Court ought relieve her of some of the burden by recognising that it was Heather who should have thought about these things about Robert and made proper financial allowance.

The issue of the cost of accommodation was problematic. Mr Heath’s calculations for rent are based on a figure of $476 per month, which is based on the rent paid by Robert to Pam and which has probably been struck by Pam according to what Robert can afford on his pension. It is certainly is a lot less than the expected cost of accommodation at a care facility. I have no direct evidence of expected cost for a single man at a retirement or care facility with the level of support that Robert needs. To give myself some idea of cost, the fact is that Robert was paying $365 per week at Lilydale Lodge but that was for a shared room and not salubrious accommodation.[40] It is somewhere Robert would not wish to return. He deserves better if he is to improve. But working on that cost as an indicative base at least, and using Mr Heath’s annual multiplier of 15.53 the exact present value figure of that accommodation at $365 per week is $294,760. On my calculation that enlarges the aggregate living and expenses figure to $557,423 on exact figures (that is, after deleting the rent figure of $88,819 and reducing the food figure to $112,934).
[40]See his affidavit sworn 2 April 2013, para 45.

On top of the living and expenses recurrent, the approach of Robert’s counsel was initially to assert that the Court should make provision for $175,000 for accommodation in a retirement village, either as a bequest or as an accretion to the life fund, or to settle on trust for him.[41] There was no direct evidence about such a cost, whether it be a bond or some other means of securing accommodation in a retirement village or care facility. When pressed, counsel contended as an alternative that provision for accommodation be based on internet advertisements for the sale of one bedroom units in Croydon for $180,000 to $200,000.[42] The suggestion was that he could live close by to Pam and she could visit him to make sure he was alright.[43] But he needs, or will need, more attentive care and support than that. Ultimately, it was submitted the Court should provide an additional $150,000 for accommodation together with $350,000 for living expenses, a total of $500,000 to add to the $250,000 life fund. That makes for a total fund of $750,000. On Robert’s death, anything unused from the fund would revert to the residuary estate.
[41]T 261 ln 24.
[42]Affidavit of Pam McCredden sworn 4 March 2014 (exhibit P18).
[43]T 264.

As a part of that case, the Court was asked to disregard the pension in an estate of this size and to view the $250,000 fund as being in a separate category, one which classifies it as a ‘nest egg’ and not intended to be used as a source of the payment of Robert’s day to day living expenses. Clause 9 of Heather’s will directs the trustees to exercise their discretion as to payments by giving ‘paramount consideration’ to ‘the welfare of my cousin’, and encouraged them to make payments ‘…for his medical support, and also his holidays, and any other personal requests that he may have now or in the future’. By those words I was asked to see that Heather intended that fund to be a nest egg or buffer or top up or security. So characterised, it was submitted the Court should treat and preserve the $250,000 fund discretely and make further and separate provision of at least $350,000 for his living expenses and an extra provision of $150,000 for his own place.[44]
[44]See for example, Worladge v Doddridge (1957) 97 CLR 1, 13.

I am not persuaded it is apt to characterise the $250,000 fund as a nest egg. Some forced support for that characterisation comes from Dorothy’s will and Heather’s attitude in her lifetime that Robert was getting by in life by meeting living expenses from his pension, and asking for extra money ($200 at a time in cash) only when needed for tools, clothing and the like. Maybe Heather saw the $250,000 fund as a source to enable the continuation of such extra ‘at call’ cash payments after her death. But by ordinary conceptions, a ‘nest egg’ is money put away for a rainy day for unexpected financial burdens, or something just in case of future needs or adversities. The broad language of clause 9 is not couched that way. I will accept that a wise and just testator ought, depending on the size of the estate and the needs of other dependants, provide a nest egg for a disabled or needy person, but that was not, I think the purpose of the $250,000 fund.

The task then, is to see what Robert has in hand ― an income earning corpus of $250,000 ― and see if that makes adequate provision for his proper maintenance and support. In that regard I apply the following discretionary considerations from the authorities in this field.

First, I am looking for adequate provision for Robert’s proper maintenance and support. The word proper is important. It connotes something different from adequate. Moral obligation brings with it providing for something more than the necessities for existence, or keeping the wolf from the door.[45] It has regard to a person’s station in life. It looks to free someone from fear of insufficiency as age increases and health and strength gradually fail. If a person in need has had to live a frugal life with a low grade of support, then moral obligation may call for a testator ‘…to assist the facilitation of every residential option that might ultimately be available … and should make further provision for the plaintiff in order that [his] lifestyle and living environment can be as comfortable and pleasant as possible for the remainder of [his] life’.[46] That would be particularly so where a plaintiff is disabled, and has an unrivalled moral claim.
[45]King v White [1992]2VR 418; Hizak v Henjack [1999] VSC 78, [19]; Greely v Greely [2011] VSC 416; and Thompson v Macdonald [2013] VSC 150.
[46]Hizak v Henjack [1999] VSC 78, [19].

Secondly, depending on the circumstances, a wise and just testator would make provision out of his or her estate for a person in need without regard to a pension. Authorities have been clear in the view that it cannot be assumed that a pension amounts to proper maintenance and that

[T]he moral obligation of testator’s to make adequate provision for the proper maintenance and support of those with claims on their bounty should not be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator’s duties.[47]

This view is based on public policy and, I would think, a view that a moral responsibility means positively providing for someone and not finding absolution by leaving the needy person to a dependence on public welfare. The position might be different if the estate is small of if there are competing claims that put strains on the capacity to provide to all who have moral claims. But that was not the case here.

[47]See King v White [1992] 2 VR 417, 424. See also Hizak v Henjak [1999] VSC 78 [19].

Thirdly, it cannot be stated as a general principle that the provenance of a deceased’s estate lends itself to be a factor to be considered in every case. The question has arisen in cases involving a TFM claim by stepchildren for provision out of the estate of a stepfather where the child or children of the first marriage stood aside so that their natural parent might make adequate provision for the widow or widower of the second marriage. The case that is usually referred to, as in this trial, is the decision of Nettle J in McKenzie v Topp.[48]It was argued in that case that if a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make good some or all of the provisions of which the stepchildren were earlier deprived. McKenzie v Topp stands for the modest proposition that in such a situation the amount left by the children’s father to the widow may be relevant to the question of whether the widow was responsible to provide for them.[49] That is how subsequent cases have seen it.[50]
[48][2004] VSC 90 [56].
[49]At [60].
[50]See the review of authorities by Digby J in Busuttil v Degabriele [2013] VSC 215 [61] ff.

It was not clear to me how or in what way Robert’s case sought to rely especially on McKenzie v Topp. It was said to be analogical. Robert is not asking for the whole of Heather’s estate. But, he says a good part of Heather’s estate was derived from Dorothy but not to contend, as I followed the case, there was a transmission to Heather of Dorothy’s parental responsibility so as to attract now an equivalent moral responsibility from Heather and expectation of provision. The application of McKenzie v Topp appeared to me to be uncalled for because the executrices conceded from the outset that Heather’s inheritance was a relevant factor under the Act and that she had an obligation to provide for Robert. The executrices’ case is that Heather met that moral responsibility by taking into account his pension and giving a fund of $250,000 because his proven needs are no greater.

I think what has merit without the necessity to resort analogically to McKenzie v Topp is to say that a measure of Heather’s moral obligation for present purposes is that which Dorothy gave to her in the year 2000. And as corollary, the foundation of the moral responsibility goes further than the mere fact of Heather’s inheritance. What has been understated I think in this case is the moral induction of the words in clause 5 of Dorothy’s will: ‘My Executor has agreed to provide such care and responsibility as he may reasonably require’. I think that a moral die was then cast which comes to shape the judgment of this case.

Once the moral responsibility is a given, the judgment in this case advances on this essential consideration: if I am to disregard the pension as the authorities say a court is entitled to do especially when there are no competing moral claims and the estate is substantial, has there been proper provision for Robert’s adequate maintenance and support?

For that exercise, there are no rigid analytical rules. The Court must place itself in the position of Heather and consider what she ought to have done in all the circumstances of the case, treating her for that purpose as wise and just. It is a position in which at best the Court can very imperfectly place itself ― to appreciate the motives that swayed her or the justification for what the plaintiff says is an unfair will. Reasonable minds may differ. It is hard to extirpate value judgments. Returning to the judgment of Callaway JA in Grey v Harrison:[51]

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 of the relevant factors and gives them due weight.

[51](1997) 2 VR 359 at 366-367.

I think the factor that attracts the greatest weight is Robert’s condition and his station in life. He is disabled. He has always needed care. He has done nothing to disentitle him to be viewed favourably. I need not repeat the contents of the medical evidence, but it is plain that after a lifetime of psychiatric illness and psychiatric hospitalisation he is afflicted with many limitations in the activities of daily living and management of his own personal and domestic affairs. He will spend the rest of his life living with mental health and associated problems. Yet despite that, there is I detect in the evidence to show he is not without the desire or faculty of some social interaction and a desire to be with others, and make an effort to improve his life in his own way. If his disability, as noted by the psychiatrists, has been exacerbated and compounded by chronic institutional care and life circumstances that have limited his education, then his only way forward is to take him out of the chronic institutional care and give him opportunities for improvement. In short, to give him the opportunity to learn some life skills for which he has not previously had an opportunity.

Whilst it is not likely he will be able to achieve a degree of rehabilitation at his age, in my opinion, a wise and just testator would have looked to ensure that provision was made for him to facilitate the financial means to not only look after himself, but to better himself or to make life better for himself. It was thought provoking for his counsel to look to the Disability Act 2000 (Vic) as a reminder of prevailing community attitudes about the care or recognition to be given to disabled people, namely: to empower them to exercise rights and responsibilities as may be enjoyed by others in the community; to advance their inclusion and participation in the community; to exercise control over their lives; to realise their individual capacity for physical, social, emotional and intellectual development; and to support their quality of life.

The Court casts no aspersions on Heather’s integrity or moral virtues. But I do accept the plaintiff’s submission that Heather has misunderstood, or the suffering in her own lifetime with cancer led her to misunderstand, her moral obligations as a testator to Robert and become overly concerned to requite the care and support given by friends and organisations in circumstances where Robert played such an undemanding part in her life. I venture to say genuine friends and supporters do these things without the expectation of financial gratitude. I am afraid to say, as I surveyed the evidence and the objective state of affairs, I think she allowed herself to be content with Robert’s ability to manage a very basic life on a pension without having proper regard to her obligation to his future needs and the betterment of his life. In particular, I think there was no foresight given to his future care and living arrangements.

The sums given to the residuary beneficiaries are substantial. She owed no moral responsibility to any of her friends or the organisations of which she was a patron. As friends and supporters they will need to understand that what is being taken away is not truly to their detriment or at their expense. It is for the betterment of someone who had a prior and prevailing moral claim to the money, especially as it originated in part from an inheritance that should have been his, but for his disabilities. The greater injustice lies in depriving him. Even then, depending on his needs, the residue of any provision returns to the residuary estate on Robert’s death. Many of her friends will receive bequests goods and chattels.

What then of the adequate provision? The consensus at trial was that any further provision ought to be by way of augmentation to the life fund under clause 9 of Heather’s will. I agree. As I have rejected the characterisation of the $250,000 fund was a nest egg, that amount then becomes the base or starting point for the amount to be on trust for Robert under clause 9 of the will from which payments of capital and income may be made by the trustees.

The next step is to see that on the present state of affairs of living at a low rent with free care, comfort and support from Pam, the lowest possible calculation of needs is $350,000. But this is inadequate on two fronts.

First, it does not properly provide for his greater future and expectable accommodation needs. Surely Pamela McCredden cannot be expected to house him and take care of him indefinitely. Life may change for her soon enough. Ideally, he ought to be given his own accommodation; to be free of ‘institutionalisation.’ He is not asking for a lot ― $150,000 ― and any property bought will revert anyway to the residuary estate as an asset on his death. But the evidence is that he cannot live alone. He needs care. I think it likely, even if he bought his own place, it would only be a matter of time before he is put in care. Therefore I think there is a moral imperative to make provision having regard to the likely cost of care accommodation elsewhere in the future. And it has to be something more salubrious than the conditions as described at the Lilydale Lodge, but still preferably somewhere in that eastern region as Robert seems to have his familiarities there.

I will now work on round figures. If I remove the rent figure of $88,819 from Mr Heath’s table, and make the correction for the food expense, the value of living expenses is about $263,000. Now, to be added to that is the cost of alternative care accommodation about which I have no direct evidence. But I have evidence of the cost of shared accommodation at Lilydale Lodge as a guide. That was $365 per week which I will round up to $20,000 per annum in 2011. At an annual actuarial multiplier of 15.53 that comes to $310,600 which I will round down to $310,000. That would have to be a minimum amount as I think he is entitled to more than a lower grade of support and accommodation. And the estate can afford it. Thus, in the aggregate, the revised figure for living and household expenses would start at about $573,000 which I will round to $575,000. That means adding $325,000 to the existing $250,000 fund.

Secondly, that figure makes no allowance for higher costs of sole, not shared, accommodation; or provision for future needs; or the need for a security or buffer fund for adversities or burdens in life ranging from health problems to increased care and accommodation needs over time ― those sorts of vicissitudes. In my view the wise and just testator could not but have regard to that. I would make provision for another $100,000 to add to the life fund to meet the additional expense that I think will inevitably be incurred for better care and accommodation at something better than he experienced at Lilydale Lodge and, if not, then as a buffer or security for adversities or unexpected expenses in life.

That means in conclusion that in my view extra provision of $425,000 should be added to the $250,000 fund to give a trust estate of $675,000. The additional amount of $425,000 is 53 per cent of the net residuary estate. The Court’s determination means on an estimated net residue of $800,000 the value of each of the 40 units in the residuary estate is reduced from $20,000 per unit to $9,375 per unit.

From where should this extra provision come? For the purposes of section 97 of the Act, that is a matter of wide discretion. Weight may be given to what the testatrix would have wished, otherwise authorities put it no higher than saying the discretion depends on reason and justice having regard to all the circumstances.[52] There are two elements to this determination.
[52]See Hoobin v Hoobin [2004] NSWSC 705, [139].

First, in my view the further provision should come entirely from the residuary estate and not from any part of the provision to Stephen Box from the Harvey estates under clause 11. The conspicuous fact remains that unlike any one of the residuary beneficiaries, he was a member of the family. True it is, the evidence does not show Heather had a moral responsibility to him. Rather, she was looking to redress what she saw as a wrong in financial dealings within the family which had worked very much to his detriment. She omitted all other members of the family except him. Steven was also favoured elsewhere. He was potentially a beneficiary under Dorothy’s will for the Meadowvale unit which was adeemed. Moreover, he was entitled to be the alternative beneficiary under Dorothy’s will if Heather predeceased Dorothy.

I accept his contention that Heather demonstrated he had a special claim in Heather’s mind and the Court ought give her the benefit of her freedom of testamentary disposition in that regard. Moreover, the size of this residuary estate, a most important factor, is sufficiently large for the burden to be borne by the residuary estate. In that regard, I think it would I think be unfair to take money due to Steven Box from the Harvey Estate if on Robert’s death the life fund reverts to residue in which Steven obtains no entitlement.

Secondly, there is the question of the allocation of the burden amongst the residuary beneficiaries inter se. It was not submitted by any party that the Court should do anything but spread the burden equally amongst all the residuary beneficiaries. One alternative is to segregate collectively the charities and welfare bodies or businesses from Heather’s personal friends on the discrimen that a moral obligation is not owed to a charity.[53] That would increase the unit value to her friends. But neither was there a moral obligation to her friends. I think if Heather’s common denominator was to show gratitude to those that had helped her in illness, then it would be oppugnant to her apparent wishes to make any distinction.
[53]See Vigolo v Bostin (2005) 221 CLR 191, [13].

Finally, there comes the question of the means by which now this further provision is to be administered. Although the plaintiff’s submissions contemplated the possibility of trustees being appointed from different parts of the family, I am firmly of the view that, given the history and the differences, I ought adhere to the suggestion of Mr Phillips based on the instructions of the executrices that the life fund on trust for Robert should be lodged with the Funds In Court of this Court, under the authority of the Senior Master, under s 69 of the Trustee Act to enable the funds to be administered for the purpose of the trust and to have proper regard to Robert’s interests. Thus, if Robert has to go into a nursing home or purchase some other form of accommodation bond, or even purchase his own accommodation, then it will be something to be considered in his interests under the protective aegis of the Senior Master’s office.

After the parties have had an opportunity to absorb these reasons, the Court will convene to make final orders on a suitable date. Before then, I would ask the parties to confer and come to some agreement on the precise terms of the order.

* * * *

ESTATE OF HEATHER ROBINSON

Real and personal assets (taking into account the payment under the two other TFM claims, and the estate’s costs and expenses up to 18 February 2014)	$1,520,000
LESS Contingent or prospective liabilities for the estate: capital gains tax (CGT) The plaintiff’s legal costs of trial: The plaintiff’s liability for legal costs of plaintiff and third defendant for entirety of proceeding:	$40,000 $40,000 $140,000
SUBTOTAL:	$1,300,000
LESS Legacy to third defendant: Plaintiff’s protective trust fund: Payment to third defendant from ‘Harvey Estates’: SUBTOTAL:	$100,000 $250,000 $107,000 $843,000
LESS Expected claim for executrices’ commission: Prospect of legal costs for CGT assessment: TOTAL:	$45,000 $10,000 $788,000
But say, (allowing for sale of land at higher price,) or lower than expected costs)	$800,000

[2015] VSC 344

22 July 2015