Jensen v Jensen [2014] VSC 432 (9 September 2014)


BRADLEY PAUL JENSEN and STUART ANTHONY JENSEN	Plaintiffs

- and -

PAUL JENSEN and CHERYL BROWN (who are sued as the Executors of the Will of DOROTHY ETHEL GILMORE deceased)	Defendants

JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2014
DATE OF JUDGMENT:	9 September 2014
CASE MAY BE CITED AS:	Jensen v Jensen
MEDIUM NEUTRAL CITATION:	[2014] VSC 432

ADMINISTRATION AND PROBATE — Testator’s family maintenance — Deceased a widow with no children or dependants — Claims by testator’s great nephews — Whether deceased had responsibility to make provision — Whether claims for further provision have no real prospects of success — Whether appropriate for summary dismissal — Whether dispute is of such a nature that only a full hearing on the merits is appropriate and it is not in the interests of justice to dismiss the application without a full hearing — Application refused — Administration and Probate Act 1958 (Vic), s 91 — Civil Procedure Act 2010 (Vic), Part 4.4.

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms AS Bartfeld	Russo Pellicano Carlei Lawyers

For the Defendants	Mr Graham A Devries	Mahons, with Yuncken & Yuncken Lawyers

1 The plaintiffs are the great-nephews of Dorothy Ethel Gilmore (‘Dorothy’). They apply under Part IV of the Administration and Probate Act 1959 (Vic) (‘the Act’) for further provision to be made for their proper maintenance and support out of Dorothy’s estate.

2 The defendants are the executors of the estate. They apply in two proceedings for summary judgment against the plaintiffs. In this proceeding, the plaintiffs are Bradley Paul Jensen and Stuart Anthony Jensen. In the other proceeding, which is proceeding number S CI 2014 753 (‘the Keating Proceeding’), the plaintiffs are Terence James Keating and Terrence John Keating (‘the Keating plaintiffs’).

3 The defendants are, of course, common to the two proceedings, and their applications in both proceedings were heard one after the other – that is, effectively at the same time. The defendants’ written outline of submissions related to both applications. In the result, the plaintiffs in this proceeding benefited, without objection, from the evidence and submissions of the Keating plaintiffs.

4 Dorothy died on 10 July 2013, leaving a Will executed on 21 February 2005. Probate of the Will was granted to the defendants on 3 September 2013. The net value of the estate is about $1,925,000.00. Dorothy married Patrick Gilmore (Patrick) in 1948. He died on 2 July 2003. Dorothy and Patrick had no children, but she was survived by seven nieces and nephews and 11 great-nieces and nephews on her side of the family, as well as five nieces and nephews and four great-nieces and nephews on Patrick’s side of the family. There is no evidence of any surviving siblings of either Dorothy or Patrick. The first defendant, Paul Jensen, is Dorothy’s nephew. The Jensen plaintiffs are his (adult) children, being the great-nephews of Dorothy.

5 The will provides for 11 bequests of $5,000 each, a bequest of $3,000 and a bequest of $2,000. The residuary estate is to be divided between two charitable institutions: the former Williamstown Hospital (now under the auspices of Western Health) and the Anti-Cancer Council of Victoria (now known as Cancer Council Victoria).

6 For the reasons that follow, I am not satisfied that the plaintiffs have no real prospects of success in their claims. Further, this is a case to which s 64 of the Civil Procedure Act 2010 (Vic) (‘CPA’) applies. Adopting the wording of that provision, I consider that the dispute is of such a nature that only a full hearing on the merits is appropriate, and it is not in the interests of justice to dismiss the application without a full hearing.

7 In this proceeding, the plaintiffs are relying on the affidavits of Bradley Paul Jensen (‘Bradley’) and Stuart Anthony Jensen (‘Stuart’), both of which were sworn 24 January 2014. In both proceedings, the defendants have filed an affidavit of John Joseph Hanlon, the solicitor for the estate, sworn 23 April 2014.

8 I set out in the Schedule to these reasons the applicable law in relation to two matters. First, I have set out the principles to be applied in applications for summary dismissal under Part 4.4 of the CPA. Secondly, I have included an account of the principles applicable to claims under Part IV of the Act. The principles applicable in these areas of the law are well known to the practitioners. However, the litigants are unlikely to be familiar with them.

9 Bradley and Stuart (‘the plaintiffs’) are two of Dorothy’s great-nephews, and are her blood relations. Pursuant to Clause 3 of Dorothy’s Will, they are two of thirteen specific legatees, and the only family members representing Dorothy’s surviving blood line who are beneficiaries. The other specific legatees are blood relatives of Patrick, or had been friends with Dorothy.

10 The plaintiffs submit that their affidavits provide the evidentiary basis for a conclusion that Dorothy had a moral responsibility to provide for them. They argue that, in light of each of their specific needs, the provision made for them in the Will is insufficient.

11 Bradley and Stuart accept that the relationship that existed between them and Dorothy was not one akin to parent and child. However, they assert that the nature of the relationship must be examined closely in the context of this particular family, and therefore requires further exploration by the Court. The particularities of this family are such that Dorothy was widowed, she had no children of her own, nor any grandchildren. Bradley and Stuart assert that they were akin to loving and devoted grandchildren, and were recognised as such by Dorothy, albeit by way of the limited provision she made for them under her Will.

12 The plaintiffs’ evidence demonstrates a long-standing and close relationship between themselves and Dorothy, and also illustrates the financial needs of each of them. The historical aspects of the plaintiffs’ relationship with Dorothy is contained in Bradley’s affidavit, and confirmed in Stuart’s, as follows:

(a) Bradley and Stuart were taken to many family gatherings with Dorothy from the time they were babies – Bradley’s first clear recollections of Dorothy and her late husband were at the age of 11;[1]

(b) Dorothy had no children with her husband, and the two thought of Bradley and Stuart like grandchildren;[2]

(c) Patrick would entertain Bradley and Stuart with his prize-winning bird collection, and offer for them to take some of the birds home;[3]

(d) Dorothy would always want to know about Bradley and Stuart’s welfare and how they were doing at school – she would impart “life lessons” on them about attaining good marks at school and being good to their parents, explaining the hardships that she herself had endured;[4]

(e) Bradley and Stuart were invited to every significant event or celebration in Dorothy’s life and, in turn, invited her to all of their milestone occasions. They attended the funeral of Dorothy’s late husband, and were able to provide Dorothy with significant comfort;[5]

(f) Bradley and Stuart, together with their partners, visited Dorothy regularly at the nursing home and invited her to their respective engagements and weddings;[6]

(g) Dorothy valued the importance of being a member of the Jensen family, and readily conveyed this to Bradley’s partner upon learning of their engagement;[7]

(h) Bradley and Stuart were two of the few family members invited to carry Dorothy’s casket at her funeral, and were two of only several people to attend her funeral;[8]

(i) Dorothy would send birthday or Christmas cards each year containing $5 or $10, telling Bradley and Stuart that this was a significant sum of money and should be spent wisely;[9]

(j) Dorothy gave each of the plaintiffs $100 on the occasion of their engagements and marriages – such gifts considered by her to be a significant amount of money;[10]

(k) Bradley and Stuart were present and provided emotional support to Dorothy upon the loss of her husband and sister;[11] and

(l) Dorothy did not have a true appreciation of the value of her estate at the time of executing her Will in 2005, as her home was yet to be valued, her investment property was yet to be sold and she was yet to receive an inheritance from her sister, Margaret.[12]

13 Bradley and his wife Jessica own their home, which is worth $553,000.00 and has a mortgage of $290,000.00, leaving them with equity of $263,000.00. Bradley works as an electronic engineer and Jessica works part-time as a contracts co-ordinator. They have twins, Amity and Elliot. Elliot is 21 months old, and has been diagnosed with a rare auto-immune disease called Chronic Idiopathic Thrombocytopenic Purpura (ITP), which attacks his blood supply and requires ongoing tests and transfusions. As a result, Jessica has limited ability to work, and the financial pressures on the family have been increased due to extra expenses for medical and child care needs. Overall, Bradley has no assets of significance and increased financial need as a result of his child’s condition and ongoing care.[13]

14 Stuart and his wife, Sarah, own a home worth $590,000.00, which is encumbered by a mortgage of $484,000.00, leaving them with equity of $106,000.00. They have no assets of significance and limited savings. Sarah suffers from a chronic back injury, fibromyalgia, chronic fatigue and endometriosis. She has limited ability to work – both in and outside the home – and requires the assistance of her husband and parents with daily tasks. She also requires ongoing treatment and has significant medical expenses. Stuart experiences stress and a significant amount of pressure to be able to provide for his family.[14]

15 The defendants criticise the affidavits of Bradley and Stuart because, they submit, they describe a relationship that is no more than a ‘normal’ great-aunt and great-nephew relationship. It is asserted that there is nothing in each plaintiff’s material to suggest that there was anything over and above such a normal relationship. Further, the plaintiffs have not deposed to anything that sets their respective relationship apart from Dorothy’s relationship with her other 11 nieces and nephews, and 14 great-nieces and great-nephews. Each plaintiff’s involvement was by way of what counsel for the defendants described as ‘normal’ family visits.

16 The defendants then addressed the other factors in s 91(4)(f) – (p) of the Act. In summary, it was submitted that:

(a) there was no asserted obligation or responsibility of Dorothy to the plaintiffs (s 91(4)(f));

(b) the estate is modest, and it may be relevant that if this proceeding and the Keating Proceeding go beyond summary judgment, all other nieces and nephews, great-nieces and great-nephews and siblings will need to be advised and will have claims that may be no weaker than those of the plaintiffs in these proceedings (s 91(4)(g);

(c) the plaintiffs had established no particular needs that are not presently being met or not likely to be met in the foreseeable future (s 91(4)(h));

(d) there was no asserted physical, mental or intellectual disability of the plaintiffs or of any other beneficiary of the estate (s 91(4)(i));

(e) there was no asserted contribution, otherwise than for adequate consideration, by the plaintiffs to the building up of the estate or to the welfare of Dorothy or her family (s 91(4)(k));

(f) there were no asserted benefits previously given by Dorothy to the plaintiffs or to any beneficiary (s 91(4)(l));

(g) there was no assertion that the plaintiffs had been maintained by Dorothy before her death (s 91(4)(m));

(h) there was no asserted liability of any other person to maintain the plaintiffs (s 91(4)(n)); and

(i) save that each of the plaintiffs’ conduct was that of a loving nephew or great-nephew, there is nothing in the character and conduct of the plaintiffs or any other person relevantly asserted.

17 The defendants made extensive reference to cases in which the courts have considered claims by nephews and nieces, as set out in the following paragraphs.

18 A search of decisions reveals only one decided case in which a niece or nephew has been successful in the Supreme Court of Victoria. In Iwasivka v State Trustees Ltd [15] Hansen J, as His Honour then was, held that the plaintiff, a niece of the Testatrix, was more than a niece to her and that, in effect, their relationship was akin to that of a mother and daughter. He found that there was much more to their relationship than a good, close aunt-and-niece relationship. This decision has been referred to in at least 18 other Supreme Court decisions – and one Country Court decision – but in none of those cases was there a successful claim by a niece or nephew.

19 There are three decisions in which nieces have succeeded in obtaining an extension of time. The first two are Jotkowitz v Keating [16] and Keil v Cook & Anor,[17] in both of which the Judge appeared to believe the cases were arguable but not particularly strong. The third is McLeod v Troy,[18] in which Beach J merely held that the applicants had an arguable case and the decision went no further than that. In Re Will and Codicil of Griffiths (Dec’d),[19] a niece was successful in resisting a strike-out application. It was held that she had more than “a fanciful case”, as a number of previous Wills had made provision for her.

20 On the other hand, there are at least three cases in which nieces or nephews, or those akin to nieces and nephews, were unsuccessful: two upon a summary judgment application,[20] and one on an extension of time application.[21] In Napolitano, Mukhtar AsJ observed that:

21 The defendants submitted that there are no such strong facts in this case, especially given that the parents of the plaintiffs were all present to undertake that role, and are still around to do that.[23]

22 In Erlich, Lansdowne AsJ distinguished Iwasivka on the basis that the applicant in the proceeding before her had a primary relationship with his own parents, in contrast to Iwasivka where the plaintiff had no contact with her own parents and lived with the deceased during her childhood. The defendants submitted that Erlich was apposite in respect to each plaintiff in these proceedings.

23 Leaving aside claims by spouses, domestic partners, children and step-children of the respective deceased, all of the successful claimants in Part IV cases in this Court since 1997 appear to have established that they had a relationship to the deceased akin to that of a partner or child, that they were carers of the deceased, or that they had contributed to the deceased’s estate in a measurable way – whether directly or indirectly. Even those few claims by grandchildren that were successful required significantly more than just the relationship itself, even where there was a very good relationship between the deceased and the claimant.[24]

24 In Corbett v State Trustees Ltd,[25] the claimant failed in an application for an extension of time. She asserted a relationship akin to that of niece and uncle with the deceased. In those circumstances, Kyrou J held that it was “relevant for the Court to consider ... whether the nature of the relationship between the deceased and the applicant was akin to a close blood relationship”.[26] His Honour also observed, “To my knowledge, there is no case in which an applicant who had a relationship with the deceased which was akin to that of a niece has succeeded ...”[27] It was submitted that this observation was of particular relevance in these proceedings.

25 In this case, the defendants argued that there is nothing more established than conduct of the kind previously found to be insufficient to ground a successful claim. In Whitehead v State Trustees Ltd, Bell J noted that:

26 The plaintiffs’ submissions canvassed the applicable principles under Part IV of the Act and the application of those principles to the facts of the case. The principles were referred to only briefly, and the relevant law focused on the cases particularly material to the specific relationship of great-aunt and great-nephew. They referred to the substance of the defendants’ argument as amounting to the proposition that a great-aunt is not ordinarily under an obligation, or moral duty, to provide for her great-nephews unless something more is shown.[29]

27 The plaintiffs submitted that the ‘something more’ must be considered in light of the context of the particular family the subject of the application. The personality and predilections of Dorothy must be examined. Perhaps she was a very private woman, or someone who did not seek to rely on others for her welfare and support. They submitted that these factors must be investigated by the Court at final hearing in order to appropriately assess her moral responsibility towards the plaintiffs, and that to do so at an interlocutory stage would be premature.

28 It was the plaintiffs’ submission that there were two factors that affected the consideration by the Court of what this wise and just testatrix should have done:

(a) First, it was submitted that, in order to dispose freely of one’s assets, one must have a true appreciation of the value of those assets. In the circumstances of this case, the plaintiffs argued that Dorothy did not have such an understanding. At the time of making her last Will in 2005, she did not appreciate the true value of her Newport home, nor did she appreciate the value of a nearby investment property, which was sold following her entry into an Altona North Nursing Home in 2006 for a sum in excess of $750,000.00. In 2005, she had also not yet received the entirety of her sister’s estate, which amounted to approximately $150,000.00.[30]

(b) Secondly, the plaintiffs submitted that the Court should consider the prevailing community standards. In this respect, it was argued that a wise and just testator would not leave the bulk of his or her estate to charities to whom he or she had only a fleeting connection. Rather, he or she would leave provision greater than $5,000.00 to lineal family members who have a demonstrable financial need.

29 Insofar as the application of those principles is concerned, the plaintiffs submitted that:

(a) the primary focus must be on the relationship between the plaintiffs and Dorothy (s 91(4)(e)), and whether that relationship gave rise to a moral obligation;

(b) the relationship must be considered in the context of this particular family. It was argued that, despite having several other family members of equivalent lineal standing, Dorothy chose to make modest provision for the plaintiffs. Although that provision did not go far enough in the circumstances, there were numerous blood relatives she chose to exclude all together;

(c) the plaintiffs considered Dorothy and her late husband – who were themselves childless – akin to a close uncle and aunt rather than great-uncle and great-aunt. The relationship endured for in excess of 30 years. The plaintiffs dispute the suggestion made by the defendants that the modest legacy given to each of them was sufficiently reflective of their relationship with Dorothy;

(d) an estate worth almost $2 million is substantial. In Erlich v Fleiszig, the estate was approximately $2.2 million and was described as “substantial”[31] (s 91(4)(g));

(f) the plaintiffs’ contributions to Dorothy’s welfare (s 91(4)(k)) and their character and conduct (s 91(4)(o)) over an extremely long period of time include significant emotional support provided upon the deaths of Dorothy’s husband and sister, but also extended to the period when Dorothy resided in a nursing home. At this point, they continued to include and involve Dorothy in their lives and those of their wives and Bradley’s children in a meaningful and effective way, in circumstances where many other family members chose not to; and

(g) after payment of the specific legacies ($60,000.00), the balance of the estate is payable to The Williamstown Hospital and The Cancer Council of Victoria. Each stand to receive a substantial sum (approximately $900,000). There is no evidence of any obligation or responsibility of Dorothy towards those institutions. Moreover, neither organisation has demonstrated, or is likely to be able to demonstrate, a competing need greater than that asserted by the plaintiffs (s 91(4)(f) and (h)).

30 For these reasons, the plaintiffs submitted, a preliminary synthesis of the factors required to be brought to account leads to the following conclusions:

(a) There is an arguable case for relief, because the plaintiffs have shown a longstanding and loving relationship giving rise to a moral responsibility owed to them by Dorothy. The plaintiffs are beneficiaries towards whom Dorothy turned her mind; however, her provision for them did not go far enough, particularly in light of their specific needs;

(b) The summary dismissal of applications under Part IV of the Act is rare, as there is a requirement to undertake a close examination of relationships and exercise a value judgment that is best left to trial. Only a full hearing of the case on its merits is appropriate;

(d) The decision to summarily dismiss in Jackson v Newns is distinguishable given that the plaintiff in that case had significant resources and was already the beneficiary of a substantial bequest pursuant to the deceased’s Will. The plaintiffs here do not have significant resources and received only a miniscule share in a sizeable estate;

(e) The decision in Corbett v State Trustees Ltd [33] is also distinguishable, as that estate was valued at $600,000 (considerably less than the current estate). Furthermore, the plaintiff in that case was an equal beneficiary with a next door neighbour, she herself being a longstanding friend of the deceased;

(f) The defendants rely on the proposition that the plaintiffs’ relationship with Dorothy was unremarkable. However, this can only be truly accepted once all evidence is presented. The plaintiffs’ relationships with Dorothy may only be fully considered in contrast to other relationships that she experienced, and no evidence of such has been provided. Dorothy herself identified the plaintiffs as rightful recipients of legacies, selecting them above a number of other family members of the same standing who did not receive any provision. This is an indication that she recognised the special nature of their relationship;

(g) In this case, prevailing community standards would insist that a childless great-aunt provide for those family members with whom she enjoyed a close and loving relationship, especially in circumstances where those family members demonstrate a significant financial need, such as the plaintiffs in this case. In Petrucci v Fields,[34] Mandie J stated that grandchildren cannot be ruled out or in until all the facts have been examined.[35] The same considerations apply in this case – all facts must be examined;

(h) The defendants refer to Whitehead v State Trustees Ltd,[36] a case in which it is said that determining what is adequate and proper must be approached on a case by case basis. That assessment can only occur at final hearing;

(i) It is of significance in this case that the claims are brought by two close family members of Dorothy, who not only had a close relationship with her, but also have a demonstrable need. The residuary beneficiaries, the Williamstown Hospital and the Cancer Council of Victoria, are unable to demonstrate a competing need at all, let alone one greater than the plaintiffs;

(j) Dorothy was neither wise nor just in making the Will in the way that she did, particularly if she had been aware of the specific needs of her great-nephews;

(k) If she had had a full appreciation of her testamentary bounty at the time of making her Will, her dispositions would have been different from those contained in paragraph 3 of her Will;

(l) Upon an examination of the facts as presently before the Court, the plaintiffs have at least a reasonable, if not greater, prospect of success;

(m) The discretion to summarily dismiss a proceeding of this kind should be exercised with caution. Further, this is a case to which s 64 of the CPA clearly applies. That is, the dispute is of such a nature that only a full hearing on the merits is appropriate, and it is not in the interests of justice to dismiss the application without a full hearing.

31 The defendants argue that the plaintiffs do not now – and, if there were a trial, would not on the material filed – have a real prospect of satisfying the jurisdictional threshold, being the first of the three stages to which I refer in my summary of the law in the Schedule. They also contend that, on the material filed, the plaintiffs cannot establish that they have been left without proper maintenance and support.

32 The responsibility of Dorothy to make provision for the plaintiffs refers to a legal or moral responsibility, and is to be judged by reference to whether and, if so, what provision a wise and just testator would have thought it his moral duty to make in their interests. To that end, the Court must place itself in the position of Dorothy and consider what she ought to have done in all the circumstances of the case, treating her for that purpose as wise and just, rather than fond and foolish.

33 Importantly for the present application, the absence of a list of eligible applicants makes a consideration of all of the factors listed in s 91(4) of the Act particularly difficult; especially given the summary nature of the application.

34 The cases that have been referred to by the defendants in their submission show the great difficulty that nephews and nieces have in establishing that a particular testator had a responsibility to them. However, all of the authorities in this area turn on their own facts. Moreover, Parliament’s decision not to specify a list of eligible applicants means that the Court must look at each individual case, consider and assess the evidence of each witness, and form a view on whether the deceased had a moral duty to make provision for the plaintiffs. This involves a value judgment based on the evidence of the witnesses as to the nature of the relationship and the application of all the factors specified in s 91(4)(e)-(p) of the Act.

35 The power to make an order under Part IV covers a wide range of circumstances. The submissions of the defendants attempt to categorise the relationship of great-nephew and great-aunt by reference to decisions that use the analogue of the relationship of parent and child. However, when reading other cases, it must be recalled that this is merely a shorthand for a relationship that is identified as giving rise to a testator’s responsibility and moral duty to the claimant. Determining whether the jurisdictional threshold has been established must be approached on a case by case basis. No two cases are exactly alike.[37]

36 There is considerable force in the defendants’ submissions that the relationship of great-aunt and great-nephew are unlikely, without more, to give rise to the responsibility required by the Act. It is quite plain that the claims sit at the margin of valid claims for further provision. The two particular cases to which the defendants refer in which the claims of nephews have failed – that is, Jackson v Newns [38] and Napolitano v State Trustees Ltd[39] – are, however, distinguishable. The first, for the reasons advanced by the plaintiffs referred to above;[40] the second, simply, because the facts were quite distinct and, in particular, the relationship disclosed was vicarious - through the deceased’s wife.

37 There is another important distinction between this case and Jackson v Newns and Napolitano v State Trustees Ltd. In those cases, Mukhtar AsJ proceeded on the footing that all the evidence that could be called by the plaintiff was before him. He said:[41]

38 In this case, after the application for summary judgment was made,[43] the plaintiffs were given the opportunity of filing any further affidavits in support of their application.[44] The affidavits subsequently filed were largely repetitive of the affidavits that had been filed in February 2014. As can be seen from my account of the plaintiffs’ evidence, it was mainly limited to their relationships with the deceased and her late husband and their own financial circumstances.

39 In my view, this case is different from Newns and Napolitano in relation to the evidence that may yet be available to the plaintiffs. In those cases, the competition, as it were, was with other family members. It seems that the view taken was that no other evidence could affect the prospects of the plaintiff’s success vis-a-vis the other members of the wider family, who were beneficiaries under the Wills in question.

40 In substance, the competition here is between the plaintiffs in this proceeding and the Keating plaintiffs, on the one part, and the two residuary beneficiaries, which are charitable institutions. It is not within the power of the plaintiffs to call the evidence that might be material to the claims that these charities have on the bounty of Dorothy. The evidence on applications for summary judgment is limited to evidence on affidavit and cross-examination is usually not allowed. There is thus at least one lacuna in the evidence.

41 The evidence that may be available to the plaintiffs in an interlocutory application of this kind is more limited than the evidence that is available to them at trial. Putting aside any evidence that might be adduced by the defendants, or on their behalf, there is the prospect that persons may be subpoenaed or other persons may come forward to give evidence at a trial where they are unwilling to participate by providing affidavit evidence in an application of this kind.

42 Outlined below are the matters that lead me to conclude that this is a case in which the dispute is of such a nature that only a full hearing on the merits is appropriate, and that it is not in the interests of justice to dismiss the application without a full hearing.[45]

43 The defendants’ submissions about what constitutes a ‘normal’ relationship between a great-aunt and a great-nephew fails to persuade me that it is possible to conclude that there is no real prospect of the plaintiffs being successful in their claims. When asked what is such a normal relationship, the best that could be said was that the relationship described by the plaintiffs was the norm. What lies behind this submission are the authorities equating a relationship giving rise to the requisite moral obligation with that of a parent and child. An example of this is Iwasivka v State Trustees Ltd,[46] in which Hansen J found the relationship between an aunt and her niece to be of the nature of that between a mother and daughter.[47]

44 The authorities to which the defendants referred may be seen to establish a pattern in which, for convenience, the relationship giving rise to the requisite responsibility and moral duty is described as one more akin to that of parent and child. Such a relationship is said to be closer than that described by the plaintiffs in their affidavits. However, the authorities also reveal a wide and varied range of circumstances and each case has been, necessarily, decided on its own facts.

45 There are several factors in this proceeding, as in the Keating Proceeding, that affect my consideration of whether the wise and just testatrix in the position of Dorothy had a responsibility to make further provision for the proper maintenance and support of the plaintiffs.

46 As was submitted, in order to dispose of one’s assets freely, it is necessary to have a proper appreciation of the value of those assets. It is open for the plaintiffs to contend, as they did, that Dorothy did not have such an appreciation. The contention that Dorothy did not appreciate the true size of her estate is more than mere assertion.

47 A wise and just testatrix is deemed to be aware of the relevant circumstances prevailing at the time of death.[48] However, when she made her Will in 2005, Dorothy could not have appreciated the value of her Newport home or the value of the nearby investment property, which was sold following her entry into a nursing home in 2006. That latter property realised over $750,000. Also, after the making of that Will, Dorothy received about $150,000 from her sister Margaret’s estate. These facts are adduced in the affidavits of Bradley Jensen in this proceeding.

48 During her life, Dorothy gave what she apparently considered to be generous gifts of money to her nieces and nephews and great-nieces and great-nephews. By any modern standard they were small indeed. The legacies that she left her nieces and nephews are, in the context of the size of her estate, small. For these reasons, it is a fair inference that she did not appreciate the value of her assets – and thus the size of her estate – when she made her will.

49 The parties approached the issue of the size of the estate differently. The defendants said that it was modest, whereas the plaintiffs contended that it was substantial. In my view, the estate is more than modest. In managing the directions hearings for testators’ family maintenance applications, I see many estates of modest proportions, and they tend to be between $500,000 and $800,000. Dorothy’s estate is not, by today’s standards, large; however, it is of sufficient value when compared with the station in life of Dorothy and the plaintiffs to have significance in the assessment of the plaintiffs’ prospect of success. This is particularly so where the legacies are definitely small, and the residuary estate is to be divided between two charities about which there is no information of relevance.

50 Dorothy left what turns out to be a very large proportion of her estate to two charities. Little or nothing is known of the claims that those charities had upon her bounty. Neither the plaintiffs nor the Keating plaintiffs can say very much about that. The defendants have said nothing. The only evidence possibly relevant was given by Terrence James Keating, who refers to Patrick having suffered from skin cancer on his pate for about five to ten years, which in later years grew aggressively.

51 The combination of Dorothy’s lack of appreciation of the value of her estate and the very large proportion of the estate that now must go to the charities under the Will, leads me to conclude that there is a matter to be investigated at a trial, or a question to be tried. That is, whether Dorothy had a responsibility or moral duty to make further provision for the proper maintenance and support of the plaintiffs.

52 At this point, it is true to say that the plaintiffs’ case is weak, and may even fail. However, the authorities to which I have referred in the Schedule show that the power to dismiss summarily must be exercised with caution and in accordance with the overarching purpose under the CPA, taking into account the fact that, if granted, the plaintiffs will be deprived of the chance to pursue their claim.

53 The defendants’ contention that the plaintiffs have established no particular needs that are not presently being met, or are not likely to be met in the foreseeable future, is not a fair characterisation of the evidence to which I have referred. I need not repeat the short description of the evidence given above. Suffice it to say that both plaintiffs’ financial position discloses an arguable case for need. It is neither necessary nor appropriate to make any further remark on that score.

54 I am not satisfied that the plaintiffs have no real prospects of success in their claims. Further, for the reasons I have given, this is a case to which s 64 of the CPA clearly applies – that is, the dispute is of such a nature that only a full hearing on the merits is appropriate, and it is not in the interests of justice to dismiss the application without a full hearing. As such, the defendants’ application for summary dismissal of the plaintiffs’ claims is refused.

1 The defendants’ applications are made pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Cth) (‘the CPA’), and Order 23 of the Supreme Court (General Civil Procedures) Rules 2005 (‘the Rules’). It is common ground that the test for summary judgment under s 63 of the CPA was authoritatively expressed by the Court of Appeal comprising Warren CJ and Nettle JA in Lysaght v Building Solutions Pty Ltd v Blanalko Pty Ltd.[49]

2 Part 4.4 of the CPA sets out the test for summary judgment: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim – or part of the claim, defence or counterclaim – has no real prospect of success.[50]

3 This liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success. The ‘real chance of success’ test is to some degree more liberal than the 'hopeless' or ‘bound to fail’ test, and acknowledges that there may be cases in which it appears that, although the respondent's case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[51]

4 The test must be applied according to its own terms and not according to considerations of whether the proceeding is ‘hopeless’ or ‘bound to fail’. To adopt “an unduly constrained, historical approach to the construction of s 63” would “subvert the purpose of the provision”.[52]

5 Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[53] Courts should, therefore, only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that:

(a) the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or

6 If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a) it is not in the interests of justice to summarily dispose of the proceeding (s 64(a)); or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).

7 Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[55]

8 It has been observed on a number of occasions that summary dismissal of claims under Part IV of the Act are rare.[56] That arises in many such cases because the facts are commonly disputed, and there is, as mentioned below, a considerable field in which the Court must exercise its discretion. The claims, when disputed, always involve an assessment of human relationships, interpersonal affairs, family stories, beliefs, perceptions, expectations, people’s station in life and impalpabilities in life. The Court’s evaluation of the testator’s moral duty and the exercise of a discretion that involves some value judgment means that, ordinarily, family claims are best left to trial to determine their sustainability.[57]

9 Section 91(1) of the Act, which was inserted by s 55 of the Wills Act 1997 (Vic) and commenced to operate in July 1998, empowers the Court to “order that provision be made out of the estate of the deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision”.

10 This empowering provision does not include a list of eligible applicants for testators’ family maintenance, instead leaving it to the Court to determine on a case-by-case basis whether provision should be made for a particular applicant.

11 Section 91(3) of the Act prohibits the Court from doing so unless it is of the opinion that the distribution of the estate of the testator (or testatrix) effected by his (or her) Will does not make adequate provision for the proper maintenance and support of the plaintiffs.

12 Section 91(4) of the Act sets out 12 matters or factors to which the Court must have regard in determining:

(a) whether the testator had responsibility to make provision for a person, that is the eligibility of the applicant to obtain further provision;

(b) whether the distribution of the estate of the testator as effected by his Will makes adequate provision for the proper maintenance and support of the person;

(c) the amount of provision (if any) that the Court may order for that person; and

(d) any other matter related to an application for an order under sub-s 91(1).

13 The 12 matters in s 91(4) of the Act to which the Court must have regard are:

(a) any family or other relationship between the deceased and the applicant, including the nature of the relationship and, where relevant, the length of the relationship (91(4)(e));

(b) any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate (91(4)(f));

(d) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and in the foreseeable future (91(4)(h));

(e) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate (91(4)(i));

(g) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased (91(4)(k));

(h) Any benefits previously given by the deceased to any applicant or beneficiary (91(4)(l));

(i) whether the applicant was being either wholly or partly maintained by the deceased person before that person's death and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility (91(4)(m));

(k) the character and conduct of the applicant or any other person (91(4)(o)); and

14 Section 91(4) of the Act is to be viewed as codifying established principles relevant to a Part IV application.[58] The post-amendment case law has made it clear that:

(a) The operation of the provisions must be considered in the light of the previous law;[59]

(b) The common law moral duty or obligation to provide still permeates the codification; and

(c) The significant changes introduced have been, first, the possibility of application by a wider class of persons and, secondly, the application by the Court of criteria in making its determinations.[60]

15 In assessing applications under Part IV of the Act, and under corresponding family provision legislation in other States, the courts have distinguished two stages:

(a) The first is whether the claimant falls within that class of persons for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support.[62] This is itself a jurisdictional question.

(b) Secondly, the usual jurisdictional stage determines whether the applicant, if an eligible applicant, has been left without proper maintenance and support.[63]

(c) The third stage – the discretionary stage – determines whether the Court will, in fact, make an order for provision in the particular circumstances and, if so, precisely what that order should be.[64]

17 The first of the jurisdictional stages, whether the deceased had a responsibility to make provision for the plaintiff, refers to a legal or moral responsibility.[65] As Chernov JA expressed it in Blair v Blair,[66] it is clear enough that the ‘responsibility’ of which s 94(1) of the Act speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, s 94(3) of the Act is essentially concerned with whether the deceased – as a wise and just testator – has fulfilled his or her moral obligation to make adequate provision for the claimant’s proper maintenance and support. Given, however, that the Court is now directed by the legislation to have regard to the matters specified in sub-ss 91(4)(e)-(p) of the Act when determining the jurisdictional issues, characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the amendments to Part IV of the Act.

18 However, it should be noted that, while the criterion in each of sub-ss 91(4)(e)-(o) is concerned with a specific matter, sub-s (p) is open ended. It enables the Court to consider “any other matter [it] considers relevant” and gives it a wide discretion to look beyond the specific statutory matters set out in the immediately preceding sub-sections for the purpose of determining whether the jurisdictional requirement has been satisfied. Where relevant, it also brings into consideration the testator’s moral obligation to the claimant.[67]

19 Nettle and Hansen JJA agreed with the reasons of Chernov JA in Blair v Blair.[68] However, Nettle JA added further support for the continuing relevance of moral duty to the jurisdictional questions posed by sub-ss 91(1) and (3), saying that to reason from the matters mentioned in s 91(4)(e)-(p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.[69]

20 Notwithstanding these statements of applicable principle, it must always be borne in mind that the Court is not entitled to rewrite the Will in accordance with its own ideas of fairness or justice. Rather, it must place itself in the position of the testator and consider what the testator ought to have done in all the circumstances of the case, treating him for that purpose as a wise and just, rather than a fond and foolish, testator.[70] This principle has application to each of the three stages. At each stage, the “wise and just” testator test is the norm, or the point of reference, subject to the stipulations of s 91.[71]

21 The second stage – the assessment of the adequacy of provision for proper maintenance and support – involves the following elements and considerations:

(a) the court must place itself in the position of the testator, treating the testator “as a wise and just, rather than a fond and foolish, husband and father”;[72]

(b) the wisdom and justice of the deceased is to be judged on the basis of the moral duty of such person to make provision for those for whom they had responsibility to make provision;[73]

(c) the expression ‘moral duty’ remains a simple and convenient way of referring to the obligation resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances. It is apt to describe what is generally considered, according to accepted community standards, to be the obligation of the testator to do what is right and proper for those members of his family (or for those for whom he is “responsible to make provision”) whom one would expect to be entitled to share in the distribution of his estate;[74]

(d) subject to the impact of s 91(4)(h) of the Act, the time for assessing the propriety of provision (that is, what a wise and just testator would have done) is the date of death, the intervening events between the date of death and the date of the hearing only being taken into account to the extent to which they are reasonably foreseeable;

(e) the question of what order should be made is answered by reference to the facts existing at the time of hearing by the Court.[75]

(f) the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the Court must determine whether the applicant has been left without adequate provision for her or his proper maintenance and support;[76]

(g) an assessment of whether the provision in fact made was inadequate for what, in all the circumstances, was the proper level of maintenance and support appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty;[77]

(h) the words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards;[78]

(i) the courts do not disregard or discount the non-financial contributions made to the property and finances of the deceased that are not directly productive of a monetary return.[79] This is reflected in sub-s 91(4)(k) of the Act;

(j) in assessing the adequacy of provision, the Court considers the needs of the applicant and balances those needs against the propriety of provision in each case.[80] In Blair v Blair,[81] the Court of Appeal approved the observations of Ormiston J in Collicoat v McMillan[82] that ‘need’ must be demonstrated by the claimant before the jurisdiction is exercised;[83]

(k) the needs of the applicant are measured by considering the ability of the applicant to meet his or her financial responsibilities. The criteria of need must be looked at in a relative sense. Need is not simply to be measured by what is necessary for maintenance or survival, but must also be measured against such things as the size of the estate and any other competing claims upon the testator.[84] Where the estate is large, the range of matters that might be considered appropriate to the applicant’s proper provision is broad;[85]

(l) notions of what is adequate or proper are relative and, where demands other than the plaintiffs’ are made upon the estate, they must be taken into account;[86] and

(m) current community standards are relevant to the assessment of adequacy of provision for the applicant.[87] The “wise and just spouse and parent” is “that fair and reasonable man in the community, the spokesman of which is and must be the court itself”.[88]

22 It is not necessary in this application to consider the third stage further than observing that its determination involves considerations similar to those of the second stage. Indeed, in the second stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the third stage of the process, that assessment will largely determine the order that should be made in favour of the applicant.[89]

^[23] See also Webb & Ors v Ryan & Anor [2012] VSC 377, [23], [35]–[37] (Whelan J); Morris v Smoel [2014] 32, [75]–[76] (McMillan J).

^[24] See, eg, Harris v Bennett (No 1) [2002] VSC 139; [2002] 8 VR 411 (McDonald J) – a successful appeal against a strike-out decision (his Honour applied the test of whether the case “...is so untenable that it cannot possibly succeed” [81]); Petrucci v Fields [2004] VSC 425 (Mandie J); Story v Semmens [2011] VSC 305 (Zammit AsJ) – summary judgment application unsuccessful; Scarlett v Scarlett [21012] VSC 515 (Vickey J).

^[51] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, [29] (Warren CJ and Nettle JA, with whom Neave JA agreed).

^[62] Schmidt v Watkins [2002] VSC 273, [12] (Harper J); op cit Dodds-Streeton J in MacEwan Shaw at [43].

^[88] Kearns v Ellis (unreported, CA(NSW), CA363 of 1983, 5 December 1984), 8 (Mahoney J). See also White v Barron [1980] HCA 14; (1980) 144 CLR 431, 440 (Stephen J), 445 (Mason J); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, [25] (Gleeson CJ); MacEwan Shaw at [215].