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Spruyt v McLachlan & Ors [2023] VCC 2038 (15 December 2023)

Last Updated: 18 December 2023

FAMILY PROPERTY LIST

Case No. CI-23-00366

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REASONS FOR JUDGMENT
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Subject: SUCCESSION LAW

Catchwords: Where deceased made no provision for adult daughter – where deceased left a letter setting out reasons for her testamentary dispositions – Estrangement – Quantum – Moral duty – Where defendants in need – Order made for provision of plaintiff – Burden of order – Administration and Probate Act 1958 (Vic) ss 90, 91, 91A and 97.

Legislation Cited: Administration and Probate Act 1958 (Vic), Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic)

Cases Cited: Re Christu; Christu v Christu [2021] VSC 162, Brimelow v Alampi  [2016] VSC 135 , Walsh v Walsh [2013] NSWSC 1065, Davison v Kempson (as administrator of the estate of Davison, (dec’d)) [2018] VSCA 51, Re Marsella; Marsella v Wareham [2018] VSC 312

Judgment: Application granted

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HER HONOUR:

1. The applicant, Jeanette Spruyt, commenced this proceeding against the respondents (her three siblings) as executors of the estate of their mother, Patricia Paula McLachlan (‘the deceased’), who died on 22 July 2022.^[1] Ms Spruyt seeks proper maintenance and support from the estate pursuant to part IV of the Administration and Probate Act 1958 (‘the Act’), in the sum of $100,000. The applicant does not challenge the dispositions made by the deceased to the defendants. The applicant was legally represented. The defendants represented themselves.
2. The deceased’s will, dated 28 March 2019, provided for the sum of $20,000 to be given to her son, Stephen, if he survived her, which he did not. The deceased’s will provided for the sum of $140,000 to be given to her son Gregory (one of the defendants), and for the residue of her estate to be divided equally between two of her daughters (the remaining defendants) – Charmaine Patricia McLachlan and Taryne Louise McLachlan. Paragraph 5 of the deceased’s will was in the following terms: ^[2]

I have omitted my daughter Jeanette Marie Sprutt (sic) from benefit under this Will after serious consideration and after being informed of the existence of the provisions of the Administration and Probate Act 1958 for the reason that she decided not to be part of my family over 15 years ago and I have no idea where she is. Further information regarding my decision to omit my said daughter is set out in a letter written by me, addressed to my Trustee and kept with my Will.

3. The letter referred to in the deceased’s will, also dated 28 March 2019, was in the following terms:^[3]

I Patricia McLachlan do hereby declare that I have made no provision and have omitted my daughter Jeanette McLachlan from all assets in this will, dated 28/03/2019, to reflect the fact Jeanette has not acted as a daughter to me because of her lack of concern or contact with myself over a long period of time. Our relationship became estranged around 15 years ago and she chose to exclude me to be part of her life. There has been no effort on her behalf to maintain a relationship, and I have had no idea of where she is. It has become quite clear that my daughter does not wish to have any contact with myself and her family.

Jeanette has shown me throughout the years a lack of care and had threatened me that if I did not sign paperwork and remove my name from a shareholding in my name, that she and her father would take me to court and sue me over the shareholding.

I explained to Jeanette I will not sign anything to do with her father as I don’t trust him as he has swindled me in the past. I also explained I did not want the shares or even know the shares existed in my name. This conversation and numerous with Jeanette have caused me a great deal of pain in how she conducted herself with her unacceptable behaviour towards me. Even though this occurred I still kept an open relationship with her.

Given the length of time since our last contact through Jeanette’s own choosing and having her no longer connected to my life. I have decided to divide my assets to my four children who have provided me with love, support and assisted in taking care of me. I am leaving the right of the title to my daughters Charmaine and Taryne as I wish to provide security for them to always be able to reside in the house. In lieu of not receiving the right to the title my son Gregory will receive a cash settlement of $140,000 which was an equal share of the home price of me entering into a nursing home facility.

In lieu of not receiving the right to the title my son Stephen will receive a cash settlement of $20,000 due to residing in a nursing home facility and his significant health problem. I have appointed Charmaine and Taryne to provide additional monies to Stephen as required.

In closing, I trust that if you are being petitioned to alter the wishes set down in my last will and testament that you will take this statement into account when making a decision.

4. Taryne McLachlan said at the hearing that the deceased executed her will and letter in the presence of her solicitor. None of the deceased’s children were present on that occasion.
5. Probate of the will was granted to the defendants on 13 October 2022.^[4] At that time, the deceased’s estate was estimated to have a total value of $719,760.05, comprising: a property at Glenmore Court, Seaford (‘the Seaford property’), with a value said to be $710,000; a bank account containing $8,260.05; household items and personal effects valued by the executors at $1,500.^[5]
6. The applicant seeks provision from the deceased’s estate as outlined above. The defendants oppose the application on the basis of: the deceased’s stated wishes (in her will and in the letter) that the applicant not receive provision from her estate; their own observations of the estrangement between the applicant and the deceased and the applicant’s lack of involvement with and care and attention for the deceased; and on the basis of the deleterious impact such provision would have on their own financial circumstances. The defendants did not make any submissions in the alternative, should their primary case regarding the deceased’s moral duty not succeed.
7. For the following reasons, the Court has determined that the deceased owed a moral duty to the applicant at the time of her death, and will order that the applicant be paid a pecuniary legacy of $50,000 from the estate of the deceased.

Applicable principles

8. Before the Court can make provision for the applicant, she must satisfy the Court that at the time of her death, the deceased had a moral duty to provide for her proper maintenance and support; and that the distribution of the deceased’s estate fails to make adequate provision for her proper maintenance and support.^[6]
9. When considering the question of moral duty, the Court places itself in the position of the wise and just testator, judged according to current community standards, and asks whether that testator would have considered it his or her or their moral duty to provide for the applicant,^[7] and, if so, what amount is the minimum necessary provision to discharge that moral obligation.
10. Although the evidence of the deceased’s testamentary intentions must be considered by the Court, that evidence must be considered in the light of all of the circumstances in the case.^[8] As was the approach prior to the Amending Act introduced in 2014,^[9] the weight to be attached to the deceased’s testamentary intentions will depend upon the specific circumstances of the case. Reasons given by a testator for not making provision to an adult child can be shown to be “incorrect or misconceived, enhancing or boosting the strength or defence of a claim”.^[10]
11. Estrangement between a parent and child, on its own, does not ordinarily prevent a child from entitlement to provision. However, in certain circumstances, such as where the child treats her parent callously by withholding, without proper justification, support and love in the parent’s declining years, or does so with hostility, the deceased is entitled to make no provision for the child.^[11]
12. Specifically, in relation to an adult child applicant who is not dependent on the deceased but who has fallen on hard times financially and is in ill-health and unable to earn an income, and, where there are assets available, the community may expect a parent to provide a buffer against contingencies.^[12] In addition, where a child has been unable to accumulate superannuation or make other provision for their retirement, the community may expect a parent to provide something to assist in retirement, where otherwise, they would be left destitute.
13. The amount of family provision that is adequate and proper for the applicant’s maintenance is to be determined with reference to the parties’ circumstances at the time of trial. The Court must have regard to: the degree to which the deceased had a moral duty toward the applicant;^[13] the degree to which the will failed to make adequate and proper provision; the degree to which the applicant is not capable, by reasonable means, of providing for her own proper maintenance and support;^[14] the degree to which the deceased had previously given benefits to the applicant;^[15] the causes of the distance that developed between the applicant and the deceased; the competing moral obligation owed to the defendants;^[16] the size and nature of the estate;^[17] and the deceased’s own preference, as evidenced by her will and the letter, that the defendants inherit her estate.^[18] What is required is an ‘instinctive synthesis’^[19], taking account of all the relevant factors at the time of the trial. The discretion is to be exercised carefully and conservatively, consistent with prevailing community perceptions of the provision to be made by a wise and just testator.
14. It is not the Court’s function to ensure a fair distribution of the deceased’s estate or to achieve equality amongst various claimants, but only to make adequate provision for the proper maintenance and support of an applicant, bearing in mind the size of the estate and the defendants’ competing claims.^[20]

The hearing

15. The applicant relied on her sworn oral evidence and a number of documents tendered during the hearing, along with the oral submissions made by her counsel. Each of the defendants gave sworn oral evidence, tendered a number of documents and made brief final oral submissions. From the evidence at the hearing, it became clear that the Disclosure Statement filed by the applicant failed to include reference to the greyhound training activities undertaken by her and her husband and the income and expenditure associated with that undertaking. I ordered the applicant to file and serve a statutory declaration in relation to those matters for the years 2018-2023, and on 29 November 2019 the applicant declared and filed a statutory declaration prepared by an accountant detailing the profits and losses of her greyhound training business for the calendar years 2018-2023.^[21]

I have considered all of the oral evidence, documents tendered, and oral submissions made during the hearing, as well as the material provided to me by the parties after the conclusion of the hearing.

The parties

16. The deceased had five children: Gregory (now 58 years old), Stephen (who predeceased her), Jeanette (now 56 years old), Charmaine (now 53 years old), and Taryne (now 49 years old).
17. I note that the applicant took no issue with the evidence of the defendants concerning the contributions they each made to the care and welfare of the deceased.
18. Gregory McLachlan said that his sisters paid all the deceased’s bills, that he rang and saw the deceased weekly, chatted to her, mowed her lawns and did her gardening.
19. Taryne McLachlan said that she and Charmaine McLachlan provided the deceased, who did not drive and had limited mobility due to arthritis and only a home phone number, with care and support and regular contact with her grandchildren. They paid her bills and bought her what she needed or wanted.
20. Charmaine McLachlan said she initially moved into the Seaford property four to five years ago to provide additional care and support for her mother and for her brother Stephen who suffered from type 2 diabetes and renal failure. She said that she was always very close to the deceased, lived with her without paying rent, but paid the deceased’s phone bills and, along with Taryne McLachlan, took care of all the deceased’s needs, and took her shopping and to appointments. When the deceased was in a nursing home and bedridden with arthritis, Charmaine paid the additional daily nursing home fees and she and Taryne tended to all the deceased’s needs. Together, Charmaine and Taryne McLachlan loaned the deceased $69,708.92.^[22]

The relationship between the applicant and the deceased

21. The deceased’s perception of the relationship, and her reasons for not making provision for the applicant, were set out expressly in her will and the letter referred to above.
22. Gregory McLachlan said at the hearing that all of the siblings had the deceased’s home phone number, and all of them, including the applicant knew where she lived, so the applicant had no excuses for not being involved in the deceased’s life.
23. Taryne McLachlan said at the hearing that the deceased always remained open to a relationship with the applicant; that the applicant knew where the deceased lived but chose to estrange herself. She said that the deceased was distressed at the lack of contact from the applicant. She said that the applicant never returned to Seaford to see the deceased, and that the applicant’s children had no contact with the deceased at all until the deceased was in a nursing home. She said that the applicant did not provide any care or support for the deceased when she needed it. She said that the applicant and her husband were greyhound trainers who appeared to travel regularly long distances to race their dogs, and so distance to the deceased’s residence was no excuse for the applicant’s failure to visit her.
24. Charmaine McLachlan said at the hearing that, over the years, she observed no contact between the applicant and the deceased.
25. The applicant’s evidence was to the following effect. Her parents separated in about 1975, when she was around eight years old. Her father was strict and sometimes disciplined the children physically. The deceased disapproved of this conduct. The applicant had a good relationship with the deceased. After her parents separated, the girls and the deceased lived with their grandmother. The boys lived with their father and would come to visit with him. The visits were disruptive. The deceased expected the applicant to take her side against her father. The visits continued when the girls and the deceased moved to temporary housing. When the applicant was around 12 years old, the five children and the deceased moved to housing commission accommodation in Ashwood. One of the siblings, Stephen, became a dominating figure in the household. He was unpredictable and the deceased could not control him. At that time, the applicant felt that the deceased was not protecting her from Stephen’s bad behaviour, such as when he threw a cup at her head, or placed her doll up in a tree. She felt that the deceased was short-tempered with her.
26. When she was 17 years old, the applicant moved out of home. She was working and socialising and felt that her relationship with the deceased was good. She obtained her driver’s licence and assisted the deceased and Stephen (who were both unlicensed) with shopping. When she was 21, she had a boyfriend and stepson and lived in Oakleigh, and the deceased expressed frustration that the applicant was not close by to drive her around. At around that time, the applicant told the deceased not to denigrate her father. Her contact with the deceased became less frequent, around twice per week, usually by phone. Stephen continued to live with the deceased.
27. The applicant’s father divorced from his second wife and died in late March 1996. He had had little contact with Stephen and Charmaine, but retained a relationship with the remaining three children. The applicant was the executor of his will, although she did not seek that role. The estate was distributed with 4% to Stephen, and the remaining 96% divided equally between the remaining four children.
28. Stephen’s unpredictability and occasional violence interfered with the applicant’s contact with the deceased. On one occasion when she visited, he put the applicant’s head through a wall, but the deceased did not want her to report him to police.
29. In the early 2000’s the applicant moved to Gippsland, married Alfred (‘Fred’) Spruyt, and had a son and then twins in quick succession. Fred worked in abattoirs, and they also started a lawnmowing business. Then the applicant started a delivery service for disposable nappies and other continence products. The business became successful. In the late 1990’s, when the applicant had pancreatitis and was in hospital, the deceased visited her. Between 2000 and 2010 with three young children and a business to run, the applicant did not see the deceased much, nor have much contact, and kept away because she felt she was “on the outer”.
30. When the deceased moved to Seaford with Stephen, the applicant tried to visit with her children, but no one answered the door. She tried contacting the deceased by phone. The applicant conceded that the deceased may have thought that she could not be contacted. She said that between 2014 and 2018 she could not reach the deceased by phone. She believed that the deceased had her business number.
31. She saw the deceased twice in the nursing home in 2018. It took her five hours to drive there. On one of the visits she apologised for something she had said to her years before, and talked about how she felt as a girl, and about Stephen. The applicant said she and the deceased got on well during those visits. On one of them she took her 21 year old son, Liam. She introduced the deceased over the phone to one of the twins. The applicant obtained the deceased’s telephone number at the nursing home and phoned her at least six times after those visits. At some point the nursing home told her not to return to visit.
32. In relation to the letter of the deceased, the applicant denied making any threats to the deceased in relation to the signing of paperwork but conceded she may have said something to the deceased about shares in relation to her father’s will, although she could not recall anything specific. The applicant insisted that “this letter has been influenced”.
33. In relation to her greyhound training activities, the applicant said that she and her husband were amateur trainers who often did not attend the races where the dogs they trained were running, but sometimes attended race meetings in Horsham, Ballarat and Warrnambool, which were locations not far from their home. She said they did not receive any income from training but sometimes received prize money from wins.

Value of the deceased’s estate

34. Apart from the value of the deceased’s property at Glenmore Court, Seaford, there was no issue about the remaining assets and liabilities set out in the Inventory of Assets and Liabilities submitted by the defendants in their application for the grant of probate. The deceased’s personal estate totalled $9,760.05, comprising the contents of a bank account ($8,260.05) and household items and personal effects (valued at $1,500.00). The liabilities of the estate totalled $72,309.36, comprising: a loan from Charmaine and Taryne McLachlan of $69,708.92; nursing home fees of $2,420.22; and a pharmacy account in the sum of $180.22.

Value of the Seaford property

35. The defendants’ evidence was that, at the time of applying for probate, they were grieving for the deceased, did not have legal representation but had the advice of a probate consultant, and did not obtain a certified valuation of the deceased’s property; rather, they relied on the council’s rate notice, which then valued the Seaford property at $710,000. The applicant relied on this valuation and also referred to a more recent rate notice dated 25 August 2023 which cited a capital improved value of $650,000.^[23] In preparation for the hearing, the applicant obtained three appraisals from real estate agents Ray White Chelsea, Mitchell Torre and Harcourts^[24] which were based on recent sales and current market conditions, but not on inspections of the Seaford property. Those appraisals valued the property at $680,000- $720,000; $645,000-$690,000; and $630,000-$680,000 respectively.
36. Taryne McLachlan said at the hearing that the rates notice does not take into account the state of the property or the repairs which need to be carried out. She said that in preparation for this hearing, the defendants had recently obtained three certified valuations, which involved detailed personal inspections of the property and took into account the repairs needed.
37. The first valuation, from Craig Whitten of WPVA Whitten Property Valuations and Advocacy, dated 23 April 2023, assessed the value of the property at $600,000.^[25] The second valuation, by Luke Howard of Ray White Chelsea, dated 28 September 2023 assessed the value of the property as $550,000 – $595,000.^[26] The third valuation, from Thomas Larkin of Barry Plant, was a market value of $580,000 – $600,000.^[27]
38. I note the defendants’ evidence that the Seaford property needs new fencing, guttering and windows.^[28] The roof tiles need to be resealed. The bathroom floor has mould and needs replacing. The house needs a new heater and air-conditioner, as well as repairs to the kitchen, bathroom and laundry.
39. I consider it inappropriate to fix on a value for the property based on a council’s rate notice, as such a notice is based only on unimproved land value and does not involve inspection of the property and assessment of the state of the property and the costs of any repairs. I prefer the recent valuations obtained by the defendants over the appraisals proffered by the applicant as they involved physical inspection and assessment of the state of the property. I consider it appropriate to accept the mid-range of the valuations obtained by the defendants. Accordingly, I will proceed on the basis that the Seaford property is presently worth approximately $575,000.00.

Conclusion

40. Doing the best I can on the material before me, I consider that I ought to assess the net value of the estate at $512,450.69.

The parties’ financial circumstances

41. The applicant is married to Alfred Spruyt, aged 64. She has superannuation worth $3,848.74; and a car (not valued). Together with her husband, she owns an 8-acre property in Glenorchy (‘the Glenorchy property’) which, as at a rates notice dated 2 October 2023, had a capital improved valued of $163,000. She has outstanding student fees of $13,560.91, although this sum will not be repayable unless she reaches the appropriate income threshold. She is unemployed and receives Jobseeker Payments of $637.40 per fortnight.^[29]
42. As at 16 October 2023, Mr Spruyt has superannuation to the value of $177,723.38.^[30] As at 30 June 2022 this figure was $165,967.05,^[31] and a car worth $8,000. He is unemployed and receives Jobseeker payments of $637.40 per fortnight.^[32] He undertakes voluntary work two days per week with the Australian Mens’ Shed Association.
43. Together, the applicant and her husband have home loans totalling $60,720.04^[33] (on which they repay a total of $429.00 per calendar month). Jointly, the applicant and her husband have assets totalling $352,572.12.^[34] Net of their debt, their assets total $291,852.08. They receive together a total of $1,274.80 per fortnight from Jobseeker. They also receive $160 per fortnight from their adult disabled son, Liam, who lives with them, as payment for board, utilities and food.
44. As it became clearer throughout the course of the hearing, the applicant did not provide full disclosure of her income. As such, after the hearing, the applicant was ordered to provide a statutory declaration disclosing her and her husband’s income regarding greyhound racing. In the statutory declaration provided to the court after the hearing, the applicant deposed to income and expenditure from greyhound training activities undertaken with her husband for the calendar years 2018-2023. She disclosed greyhound training incomes (including prize money) for 2018 of $4,946 ($1,575.63 of which was prize money); 2019: $3,570 ($200 of which was prize money); 2020: $5,201 ($2,300.63 of which was prize money); 2021: $14,455 ($7,355.47 of which was prize money); 2022: $12,968 ($5,390 of which was prize money); and 2023: $3,120 ($1,150 of which was prize money). The total income for those five years was $44,260 (including prize money). In each of these five years, the applicant made a loss, with losses totalling $16,977.
45. In her disclosure form, the applicant relied on a “main” financial need of a sum of money to: pay down the mortgage over the Glenorchy property; perform repairs on the property to render it “habitable”; purchase a mower and ride-on mower, as well as a tractor.
46. In addition, the applicant relied on her need for a sum of money for a number of purposes. Firstly, to substitute for her inability to earn income because of her chronic health issues (including chronic pancreatitis, duodenitis, anxiety, depression and lung cancer)^[35] and her husband’s inability to work since 2018 due to arthritis and back pain. Secondly, to pay for the costs of her chiropractic, physiotherapy, dental, podiatry and counselling treatment. Thirdly, to support and care for their son, Liam, aged 21 who receives the disability support pension. He lives with them.
47. Gregory McLachlan has assets comprising: $133,656.94 in superannuation; $5,111.13 in the bank; a property worth $712,000; and two cars worth a total of around $32,000. These assets total $882,768.07. He has a mortgage in the sum of $47,570.54. His net assets total (after deducting the mortgage) $835,197.53.^[36] He earns $1,980.00 per fortnight and his wages are topped up by WorkCover payments.^[37] His wife receives a disability allowance of between $280–$310 per fortnight.
48. Taryne McLachlan has superannuation in the sum of $67,934.52.^[38] She is unable to work due to a psychiatric condition. She receives fortnightly benefits (Family Tax benefit of $195.00 and Jobseeker Allowance of $810.64) totalling $1,005.64. She owns a 2003 BMW with 220,000km which requires replacing. She says she has a limited capacity to better her financial position, and would never be in a position to own a home.
49. Taryne McLachlan noted that the applicant lives on 8 acres of land which has considerable value and that she will not have to repay her student debt if she becomes a disability pensioner. She also noted that the applicant and her husband train greyhounds and have received income by way of prize money from this activity. Overall, she stated that the applicant was in a much better position than her. She said that she and Charmaine would be greatly adversely impacted if the deceased’s home had to be sold, as they would not have a roof over their heads, and it was the clear intention of the deceased that they live together in the deceased’s property. She said that in order for the estate to pay the gift of $140,000 to Greg McLachlan, she and Charmaine would transfer the title into their names and take out a loan.
50. Charmaine McLachlan does not own a car or any real estate and has lived at the Seaford property for 4 to 5 years.^[39] She has superannuation worth $49,542.58, savings in the bank of $635.25 and earns $2,400.00 per fortnight in customer service. However, the company she works for is restructuring, with a number of employees being made redundant. She is uncertain about her future level of income.

The parties’ personal circumstances

51. The applicant suffers from chronic pancreatitis and duodenitis. Both cause her pain which can be treated with painkillers unless the pain is unmanageable, in which case she attends the Emergency Department of a hospital. She has been to hospital about twice a year in this regard. She also takes blood thinners. She suffers from Type 2 Diabetes and takes insulin for this condition, which has caused blood dots to form in her eyes. For the past 18 years she has suffered from anxiety and panic attacks. In August 2023 she was diagnosed with malignant lung cancer which has spread to the lymph nodes in her neck. She has been given a two-year treatment plan involving chemotherapy and immunotherapy.
52. Gregory McLachlan suffered a work injury which has left him unable to straighten his arm and with permanent damage to some of the fingers in his right hand. In addition, he has a number of medical conditions, including: high blood pressure; irregular heartbeat; and blood clots in the right leg which have required him to have multiple surgeries to insert stents into the leg. He must take blood thinning medication for the rest of his life.^[40] Although he is currently working about 10- 30 hours per week or so, he struggles due to his injuries and is likely to cease work within the next 12 months.
53. Taryne McLachlan is a 49 year old single mother with a 10 year old daughter and a 21 year-old son who lives with her and is completing an apprenticeship. She receives a Jobseeker allowance but has no prospect of ever owning a home. She plans to eventually move into the Seaford property with her children and Charmaine. She suffers from severe anxiety, panic attacks and depression and currently has a mental health plan in place. She has a financial need for ongoing psychological treatment for her mental health issues, some of which arose due to caring for and grieving for her deceased brother and mother.
54. Charmaine McLachlan is living in the Seaford property and has done so for the past four or five years in order to support the deceased and her deceased brother Stephen who had renal failure. She has not paid rent. She does not own a car and relies on colleagues or on borrowing a car to get to work. She is awaiting mammogram results for a lump detected on her right breast and requires dental treatment to address receding gums and replace lost teeth. She needs grief counselling to address depression and periods of distress. The Seaford property needs funds to repair the oven, vanity, bathroom taps and toilet.

Moral duty

55. I consider that the evidence does not establish a total absence of a relationship or permanent estrangement. While the applicant’s conduct over the 15 years prior to the death of the deceased may lessen any moral duty that the deceased owed her, it was not so callous or hostile that it eliminated it entirely.
56. At the time of death, the deceased would have known that her estate largely comprised the Seaford property. She is likely to have known that Charmaine and Taryne McLachlan loaned her the sum of $69,708.92. She may have known that the applicant was married and living in a house she owned with her husband, along with an adult son with a disability. She may have been aware that the applicant and her husband were receiving Newstart allowances. There is no evidence that she was aware of the applicant’s chronic health conditions. She was clearly aware, as is evident from her will and from the evidence of Taryne and Charmaine McLachlan, that both Taryne and Charmaine did not own homes, were of very limited financial means, and needed a secure, permanent roof over their heads. The will gives effect to the deceased’s intentions to provide them with that security. She was aware that her son Stephen, who lived with her, would have some financial needs, and provided $20,000 for him in her will. There is no evidence before me of what the deceased knew of Gregory McLachlan’s financial circumstances.
57. The applicant conceded that she was estranged from the deceased for a number of years. The unchallenged evidence was that there was little contact between them and no contribution by the applicant to the deceased’s care or daily needs for around 15 years prior to the death of the deceased. However, there was some limited contact between them in the form of phone calls and two visits to the nursing home prior to the death of the deceased. There was no allegation by the defendants of hostile conduct by the applicant. However, I accept the defendant’s evidence, which is reflected in the deceased’s will and letter, and confirmed by Taryne and Charmaine McLachlan, that the lack of contact, care and attention from the applicant upset the deceased.
58. I understand the applicant’s reasons for the estrangement to be that she lived far away, was busy with her family, and business, did not like being exposed to her brother Stephen, did not know the deceased’s phone number and that her telephone calls, when made, were not answered. She also went to the Seaford property on one or two occasions, but no-one answered the door. I accept that some of these matters may have complicated her attempts to visit the deceased and provide her with direct attention and care, but do not fully accept her evidence as to the reasons for the lack of telephone contact by her and the lack of other positive measures of assistance/care for the deceased.
59. In all the circumstances, whilst I accept that the applicant’s estrangement from the deceased lessened the moral obligation of the deceased towards her, I do not consider that, in all the circumstances, it totally negated the moral duty owed by a wise and just testator to make some provision to provide an adult child in her particular circumstances with a buffer against the vicissitudes of life. I acknowledge however, even in the absence of provision, she would not be left destitute.
60. However, on the material before me, given the small size of the estate, the very poor financial positions of Taryne and Charmaine McLachlan and the certainty that they will never be in a position to own a home, I consider that the moral obligation of the deceased, to provide for them, which is reflected in the deceased’s will and the letter, far exceeds any moral obligation owed to the applicant. I note that in spite of the applicant’s assertions concerning her financial need, her financial position (when combined with that of her husband) is, relatively speaking, much more secure than the financial positions of Taryne and Charmaine McLachlan. It is clear that the applicant and her husband are using some funds to pay for their greyhound training activities. Whilst there is no issue that they are entitled to do so, that expenditure is discretionary and adds modestly to the assessment of the funds at their disposal.
61. Any provision to the applicant must take into account the deceased’s wishes that Taryne and Charmaine McLachlan be left in a position to reside in the Seaford property together. I accept the evidence of the applicant and Taryne McLachlan that they are unable to work. I also accept the evidence of Gregory McLachlan that he is unlikely to work beyond the next 12 months. I accept Charmaine McLachlan’s evidence to the effect that her employment is not secure.
62. It is clear from the evidence that Gregory McLachlan is in the best financial position of all of the siblings, and would be the least affected in the event of provision being made.

Conclusion

63. In all the circumstances, having weighed all the relevant factors, I propose that provision be made to the applicant in the sum of $50,000. Given the competing financial pressures on Taryne and Charmaine McLachlan, and the specific concern of the deceased that they remain in the deceased’s home, I consider it appropriate to reduce the sum to be provided to Gregory McLachlan from $140,000 to $90,000.
64. I reserve the question of costs.

^[1] Joint Court Book (‘JCB’) 19.

^[2] Ibid 133.

^[3] Ibid 135.

^[4] Ibid 130.

^[5] Ibid 84.

^[6] Administration and Probate Act 1958 (Vic) ss 90A, 91(2) (‘the Act’).

^[7] Re Christu; Christu v Christu [2021] VSC 162 [10] (McMillan J) (‘Re Christu’).

^[8] Ibid [11] (McMillan J).

^[9] Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic).

^[10] Re Christu (above n 7) [11] (McMillan J). See also Brimelow v Alampi  [2016] VSC 135  [15] (McMillan J).

^[11] Re Christu (above n 7) [14] (McMillan J).

^[12] Walsh v Walsh [2013] NSWSC 1065 [121](c) (Hallen J); Davison v Kempson (as administrator of the estate of Davison, (dec’d)) [2018] VSCA 51 [40] (Tate, Santamaria and Beach JJA).

^[13] The Act (above n 6) s 91(4)(a).

^[14] Ibid ss 91(4)(c), 91A(2)(d).

^[15] Ibid s 91A(2)(h).

^[16] Ibid s 91A(2)(b).

^[17] Ibid s 91A(2)(c).

^[18] Ibid s 91A(1).

^[19] Re Christu (above n 7) [20] (McMillan J).

^[20] Re Marsella; Marsella v Wareham [2018] VSC 312 [82] (McMillan J).

^[21] This has been added to the applicant’s exhibits as Exhibit K.

^[22] JCB 105.

^[23] Ibid 152.

^[24] Ibid 106–108.

^[25] Ibid 138.

^[26] Ibid 150.

^[27] Ibid 151.

^[28] Ibid 79.

^[29] Ibid 6–44.

^[30] Ibid 90.

^[31] Ibid 16.

^[32] Ibid 86–89.

^[33] Ibid 23.

^[34] Taking the 2022 figure for Mr Spruyt’s superannuation.

^[35] JCB 102, 188-189.

^[36] Ibid 55–67.

^[37] Ibid 56, 193–194.

^[38] Ibid 45–54, 160.

^[39] Ibid 68–75.

^[40] Ibid 56, 193–194.