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Re Finnie; Petrovska v Morrison (No 2) [2021] VSC 153 (30 March 2021)

Last Updated: 1 November 2021

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2018 00174

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FAMILY PROVISION —Where domestic partner of deceased seeks provision from estate — Where sole issue is quantum of provision — Where residuary beneficiaries have competing needs — Further provision provided by plaintiff receiving percentage of estate — Administration and Probate Act 1958 (Vic) ss 91, 91A.

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HER HONOUR:

Introduction

1 James Finlay Finnie (‘the deceased’) died on 12 September 2017 aged 65 years. He was survived by his partner of almost 20 years (‘the plaintiff’) and three of his four adult children from an earlier marriage. His fourth child predeceased him.
2 The deceased’s will was made prior to the commencement of the domestic relationship between the plaintiff and the deceased. Pursuant to the will, the deceased left his estate equally between his four children, with a gift over if any of the children predeceased him. The child who predeceased the deceased left two children and his share of the estate passes equally between them, upon attaining the age of 21 years.
3 The will makes no provision for the plaintiff.
4 Probate of the deceased’s will dated 25 June 1992 was granted to the defendant on 8 January 2018, with leave reserved to the other named executor. The inventory filed with the application for probate valued the estate at $96,512.10 comprising assets of $965,729.35 and liabilities of $217.25.

Plaintiff’s application

5 By originating motion filed 3 July 2018, the plaintiff seeks provision amounting to approximately $670,500 from the estate of the deceased pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) comprising an in species transfer of the property located at 1/69 Darriwill Street, Bell Post Hill (‘the Darriwill Street unit’), valued at $385,000; a cash payment of $182,500 to pay the plaintiff’s current debt; and payment of her costs of the proceeding, estimated at $103,000.^[1]
6 The defendant accepts that the deceased owed a moral duty to provide for the plaintiff and the deceased failed to make adequate provision for her proper maintenance and support. At trial the defendant contended that provision of the fee simple in the Darriwill Street unit alone from the estate constituted adequate provision to the plaintiff. In closing submissions, the defendant submitted that provision of an interest less than an absolute interest in the Darriwill Street unit, such as a life interest, would constitute adequate provision for the plaintiff. The reasons given for the change were based on the plaintiff’s evidence in cross-examination, which the defendant asserted showed the plaintiff’s earnings and earning capacity were ‘more substantial’ than had previously been revealed.
7 At trial, the parties were in relative agreement as to the value of the assets of the estate. The difference between them was $43,640 with plaintiff’s figure being $1,076,649 and the defendant’s figure being $1,033,009. The difference was $5,000 for the value of the deceased’s property located at 13 Wolsley Court, Corio (‘the Wolsley Court property’) and $38,640 for unpaid rent over 161 weeks which related to the deceased’s son living at the Wolsley Court property.
8 The parties were apart on the liabilities of the estate. They agreed on liabilities of $17,150 but disagreed on $77,000 as an allowance for capital gains tax on the sale of two properties and an allowance for executor’s commission of $15,000, being approximately 1.5 per cent of the gross estate. The defendant contends these allowances are proper liabilities of the estate in the future while the plaintiff disputes them. The plaintiff also considers that the $5,000 cost of repairs to the Wolsley Court property should be a liability of the estate.
9 All of this means that the range of the net value of the estate is between the defendant’s position of $923,859 and the plaintiff’s position of $1,054,499. In calculating the value of the estate that will actually be available for distribution, it is necessary to take into account the costs of the proceeding. The plaintiff’s costs are estimated at $103,835 and the defendant’s costs at $94,000 with total estimated legal costs at $197,835.
10 If all estimated costs were paid out of the estate then the net value of the estate would range between $726,024 (being the defendant’s position) and $856,664 (being plaintiff’s position).

The evidence

Family history of the deceased

11 The deceased was born in Scotland in 1952. In 1974, the deceased married Doreen Mathieson (‘Doreen’), with whom he had four children: Kenneth Finnie (‘Kenneth’), aged 42 years at the date of the deceased’s death;^[2] James Finnie (‘James’), aged 39 years at the date of the deceased’s death;^[3] Veronica Finnie (‘Veronica’), aged 37 years at the date of the deceased’s death;^[4] and Neil Finnie (‘Neil’), who predeceased the deceased.^[5]
12 The deceased and Doreen divorced in 1989. After his divorce, the deceased came to Australia for a trial period working in the textile industry in Geelong. The deceased returned to Scotland in May 1990 but then in September 1990 he moved to Australia permanently with Kenneth, James and Neil. Veronica remained in Scotland with Doreen.
13 In 1992, the deceased purchased the Wolsley Court property where he lived with Kenneth, James and Neil.
14 Around 2002, the deceased paid for Kenneth to return to Scotland to live there permanently.
15 Doreen died in 2004.
16 Neil died on 6 June 2008, leaving three children, grandchildren of the deceased: Olivia Finnie (‘Olivia’);^[6] Georgia Finnie (‘Georgia’);^[7] and Hamish Finnie (‘Hamish’).^[8]

Family history of the plaintiff

17 The plaintiff was born on 15 March 1963. The plaintiff has two daughters from a previous relationship, Elena Keane (‘Elena’)^[9] and Katerina Petrovska (‘Katerina’).^[10]

The relationship between the plaintiff and the deceased

18 The plaintiff and deceased’s romantic relationship commenced in or about March 1998. At the time of the commencement of the relationship between the plaintiff and the deceased, the deceased was living at the Wolsley Court property with Kenneth, James and Neil. There was a small mortgage over the Wolsley Court property that the deceased was paying. The deceased was working as a manager for Filigree Textiles where he had been employed since he moved back to Australia.
19 The plaintiff at that time was living in a rented property with Elena and Katerina. She worked as a planning analyst for Target Australia.
20 In 1999, the plaintiff purchased a property at 84 Darriwill Street, Bell Post Hill (‘the Darriwill Street property’). The Darriwill Street property was registered solely in the plaintiff’s name. Following settlement, she moved into that property with her daughters.
21 In March 1999, the deceased purchased a property at 137 Goldsworthy Road, Corio (‘the Goldsworthy Road property’) as an investment, using both the Wolsley Court property and the Goldsworthy Road property as security. The Goldsworthy Road property was in the deceased’s name and was tenanted with the rent covering mortgage payments and expenses.
22 In 1999 the deceased was diagnosed with cancer. In or around June 2000, the deceased commenced living with the plaintiff at the Darriwill Street property. The plaintiff cared for the deceased during his illness and treatment. He occasionally stayed at the Wolsley Court property where James and Kenneth remained, but ceased doing so when Kenneth left to return to Scotland in 2002.
23 Between 1999 until 2003 the deceased received chemotherapy treatment, but was able to continue his employment during this time. In or around November 2003, the deceased received a bone marrow transplant. Following the transplant he was unable to work for 12 months and required significant care. The plaintiff took a few months off work to care for the deceased, and otherwise worked only a limited amount in order to be able to care for him.
24 On or about 20 December 2003, the deceased and the plaintiff became engaged to be married, but did not ultimately get married before the deceased’s death.
25 In July 2004, the plaintiff and the deceased purchased the Darriwill Street unit. The Darriwill Street unit was registered in the name of the deceased, as the plaintiff and deceased considered there were tax benefits in doing so when the deceased was not working due to illness. The Darriwill Street unit was tenanted and the repayments on the mortgage were covered by rent from both the Darriwill Street unit and from the Goldsworthy Road property.
26 In or about 2007, a 2007 Bug Agility Scooter was purchased and registered in the deceased’s name primarily for use by the deceased.
27 In 2009, a 2004 Nissan Pathfinder was purchased in order to tow a caravan for camping holidays that the plaintiff and deceased intended to undertake.
28 In early 2009, the deceased was hospitalised with pneumonia. This had a significant impact on his health, to the extent that he was unable to work for the rest of 2009.
29 In 2010, the deceased was made redundant. The deceased’s redundancy pay, together with a payout from income protection insurance, was used to make a large payment reduction in the mortgage on the Darriwill Street unit. The plaintiff continued to work during this period.
30 In 2010, a 1996 Jayco caravan was purchased to be used on camping holidays that the plaintiff and deceased intended to undertake. The 2004 Nissan Pathfinder and the 1996 Jayco caravan were registered in the name of the deceased, but it is accepted that both items were considered by the deceased and the plaintiff to be their joint property.
31 In 2013, the plaintiff and the deceased moved into the Darriwill Street unit. At that time, the mortgage on the property was nearly paid off. Also in 2013, the plaintiff took a redundancy from Target Australia. The redundancy payment was used by the plaintiff and the deceased to travel to Scotland to visit the deceased’s family. Renovations to the Darriwill Street unit were also financed by the plaintiff’s redundancy payment.
32 In 2014, the plaintiff completed qualifications as a personal care assistant and commenced work as a personal care assistant with an aged care service through which she continues to work.
33 On or around 1 September 2017, which was just before the deceased’s death, the Darriwill Street property was placed on the market for sale.
34 The deceased and the plaintiff lived together as romantic and domestic partners in a loving and caring relationship of mutual support and friendship for almost 20 years. This relationship included many holidays together between 2001 and 2016, including to visit each of the plaintiff’s and deceased’s respective families overseas. The deceased was a strong and loving father figure to the plaintiff’s daughters and treated them as his own.
35 During the time the plaintiff and deceased lived together, they shared all living expenses, and while they did not have a joint bank account, they did have a joint Medicare card.

Events after the deceased’s death

36 The Darriwill Street property, which had been in the plaintiff’s sole name, sold in late 2017 for $430,000.
37 The defendant sold the Goldsworthy Road property in mid-2019 for $300,000, receiving $289,826 into the estate as net proceeds of sale.
38 In December 2019, the plaintiff purchased a three bedroom, one and a half bathroom, double garage property for $550,000 (‘the new property’).

The plaintiff’s current personal and financial circumstances

39 At the date of trial the plaintiff was aged 57 years. Since the death of the deceased, she has remained single and continues to work as a personal care assistant. Her daughters are independent and not reliant on the plaintiff. The plaintiff has a heart condition, which requires annual check-ups and ultrasounds. She is also a type-two diabetic and requires constant blood tests and oral medication.
40 In May 2019 the parties filed a joint trial document which, inter alia, set out the plaintiff’s financial position. In September 2020, prior to the commencement of the trial, the plaintiff filed a supplementary affidavit providing an updated financial position, including assets, liabilities, income and expenses.
41 The plaintiff’s current assets consist of:

(a) the new property purchased for $550,000;
(b) cash savings in the bank in the approximate sum of $23,000;
(c) a Nissan X-Trail motor vehicle valued at approximately $30,000;
(d) shares valued at approximately $5,523; and
(e) superannuation of approximately $130,000.

42 The plaintiff’s current liabilities consist of:

(a) a mortgage over the new property in the approximate sum of $178,915; and
(b) credit card debt of approximately $3,500.

43 The plaintiff deposes to monthly net income of around $3,086, consisting of:

(a) $2,649 from part-time employment;
(b) $427 from a UK pension to which she became entitled following the deceased’s death; and
(c) $10 from dividends.

44 The plaintiff deposes to having monthly expenses of approximately $3,919, including mortgage repayments, insurances, medication, rates, utilities and the like.
45 During cross-examination, counsel elicited from the plaintiff that while the plaintiff’s most recent affidavit provided that she worked five days per fortnight, her shifts had recently increased to six days per fortnight, and that in the preceding several months, the plaintiff had, at times, worked up to 10 shifts per fortnight. Counsel also elicited evidence that the plaintiff intends to continue working so long as she is able, even past the age of 65, and would continue working up to 10 shifts per fortnight if those shifts were available. The plaintiff said she is hardworking and worked through the COVID-19 pandemic, despite the fact that she is in a high-risk category.
46 In her oral evidence the plaintiff clarified that the $2,649 amount deposed to in her affidavit was not a set amount that she received each month from her employment, but rather an average of her annual income as reported in her 2019/20 financial year tax return. That average amount included additional shifts, public holiday rates and the like and the amount the plaintiff receives per month varies.

The beneficiaries’ current personal and financial circumstances

47 The beneficiaries under the will do not need to justify their inheritance by reference to their own personal and financial circumstances.^[11] However, the Court’s task is to determine the appropriate amount of provision for the plaintiff by assessing the competing needs of the plaintiff and the beneficiaries in the context of the size of the deceased’s estate,^[12] which means the personal and financial circumstances of the beneficiaries are relevant. In this case, the circumstances of the beneficiaries weigh unusually heavily as they are all affected by adversity.

Kenneth’s current personal and financial circumstances

48 At the time of trial Kenneth was 45 years old. He lived with the deceased at the Wolsley Court property from 1990 until he returned to Scotland in 2002. Kenneth is single and has no children. He is unemployed, has no savings, owns no property and lives in social housing. He has no retirement pension. Kenneth has no liabilities. His expenses total his fortnightly government allowance. Kenneth has a number of medical issues, including depression, chronic back pain, dry eye syndrome and has also suffered from a burst stomach ulcer. The medication Kenneth was prescribed after his stomach ulcer should be taken in conjunction with a low fat diet, however, due to his financial constraints Kenneth is unable to be selective with his food options to improve his condition. He is also on a number of other medications. As a result of his health issues, his prospects for employment are extremely limited. Up until December 2015, the deceased periodically sent money to Kenneth.

James’ current personal and financial circumstances

49 At the time of trial James was 42 years old and single. He has lived at the Wolsley Court property since 1990. There was a suggestion in evidence that he has a child. He owns no property, and has no savings or assets. He does not appear to be employed. There was evidence that he is not physically well, having health issues concerning his pancreas and liver which at times has resulted in him being hospitalised. He described his situation as ‘about to become homeless’.

Veronica’s current personal and financial circumstances

50 At the time of trial Veronica was 40 years old. She has lived in Scotland all her life. She is single, owns no property, has no savings, and lives alone in rented accommodation. She is a disability pensioner and is awaiting a hip replacement operation. She is reliant on crutches and requires assistance for most daily tasks. Although she has health conditions, she currently has no medical expenses as all her treatments and medication are covered by the Scottish National Health Service. Veronica has no liabilities. Her pension is moderately in excess of her expenses. She has a 12 year old daughter, Aleesha, who lives with her grandmother. Up until December 2015, the deceased periodically sent money to Veronica and Aleesha in Scotland. Veronica wishes to improve her accommodation situation which does not currently meet her needs, and to gain security to improve her health position and potentially be able to provide for her daughter.

The current personal and financial circumstances of Neil’s children

51 The deceased’s youngest child, Neil, predeceased him on 6 June 2008. The deceased had regular contact with Neil prior to his death, visiting Neil’s home each weekend. Neil had no assets at the time of his death, and the deceased paid for Neil’s funeral. Neil has three children. At the time of trial, Olivia was aged 21 years, Georgia was aged 18 years and Hamish was aged 12 years. The mother of the children is Sarah.
52 Since 2014, Georgia and Hamish have lived with and been cared for by Suzi Iskra, who is the partner of Sarah’s father, Brendan. Suzi has made a number of significant sacrifices in order to care for Georgia and Hamish, including purchasing a larger house and returning to work. Suzi and Brendan have taken financial responsibility for all of Georgia and Hamish’s needs, including clothing, groceries, school expenses, computers and tutoring. Suzi receives a government family allowance, which is insufficient to cover expenses associated with raising Georgia and Hamish.
53 Olivia lives in Queensland with her partner and a child who was born in August 2018. Neither she nor her partner own any real property, and although her partner possesses a Nissan vehicle valued at approximately $16,000, the evidence suggests the amount owing on the Nissan exceeds its value. Olivia’s affidavit refers to personal debts of approximately $28,200. She has a certificate III in Personal Care Assisting, is unemployed, and receives approximately $600 per fortnight in Centrelink payments. Olivia states that her partner is unemployed due to medical reasons. Olivia, her partner and their son are reliant on the generosity of her partner’s mother who provides them with free accommodation. They are struggling to meet the repayments on their various debts. Olivia also refers to suffering health issues in her affidavit, including anxiety and depression, which have associated costs. Olivia indicates she and her partner wish to move to Victoria and rent a house there.

Applicable principles

54 Pursuant to s 91(2) of the Act, the Court must not make a family provision order under s 91(1) unless it is satisfied that:

(a) an applicant is an eligible person;
(b) in the case of certain types of ‘eligible persons’, that the person was wholly or partly dependent on the deceased for their proper maintenance and support;
(c) at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(d) the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person.

55 In making a family provision order, s 91A(1) provides that the Court must have regard to:

(a) the deceased’s will, if any;
(b) any evidence of the deceased’s reasons for making the dispositions in the will; and
(c) any other evidence of the deceased’s intentions in relation to providing for the eligible person.

56 Section 91A(2) of the Act provides that the Court may also take into account:

(a) the nature of the relationship between the deceased and the eligible person, including, if relevant, the nature and length of the relationship;
(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible persons, and the estate’s beneficiaries;
(c) the size and nature of the estate;
(d) the current and foreseeable future financial resources, including earning capacity and financial needs, of the eligible person, any other eligible persons and any beneficiary;
(e) any physical, mental or intellectual disability of any eligible person or any beneficiary;
(f) the age of the eligible person;
(g) any contribution of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased’s family;
(h) any previous benefits provided to the eligible person or any beneficiary;
(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;
(j) the liability of any other person to maintain the eligible person;
(k) the character and conduct of the eligible person or any other person;
(l) the effect that a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries; and
(m) any other matter the Court considers relevant.

57 In Re Papaioannou,^[13] the Court set out the principles relevant to a spouse’s claim for further provision at [16]–[22]:

[16] Pursuant to ss 91(4)(a) and (b) of the Act, in determining the quantum of any provision, the Court must take into account the degree to which, at the time of death, the deceased had a moral duty to provide for an applicant, and the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of an applicant.
[17] In relation to all claims, pursuant to s 91(5)(a) of the Act, the amount of provision must not provide for an amount greater than is necessary for an applicant’s proper maintenance and support.
[18] The moral duty of a deceased to provide for their spouse’s proper maintenance and support, expressed as a broad general rule, is to provide the security of an appropriate home in which to live, a secure income and a fund to meet unforeseen contingencies, with an entitlement to independence, self-respect and autonomy.^[14] As with all general rules, each proceeding ultimately rests upon statutory inquiry of the facts and circumstances, and involves consideration of the applicant’s station in life, age, sex, health and financial resources, the size and nature of the estate, the totality of the relationship between the applicant and the testator, and the relationship between the testator and other persons who have legitimate claims upon his or her bounty.
[19] The determination of what provision should be made for the plaintiff, in light of all the relevant circumstances, must be answered by reference to a wise and just testator. The Court must place itself in the position of such a testator and consider what he or she ought to have done in the circumstances of the case.^[15] The Court must be mindful to interfere with the terms of a will only where a testator has failed in his or her moral duty.^[16]
[20] In determining the extent of any provision, the Court must have regard to the relative concepts of ‘adequate’ and ‘proper’, which are assessed by reference to the Court’s inherent knowledge and inquiry into current social conditions and standards.^[17] In this context, it is paramount that an applicant demonstrate need in order to be successful in his or her claim; mere proof of a moral claim is not in itself adequate.^[18] However, an applicant is not required to show that his or her circumstances are destitute and, as such, need is ‘not restricted to the requirements of basic necessity or sustenance’.^[19] The Court must not allow an amount that is greater than is necessary for an applicant’s proper maintenance and support. The nature and content of what is adequate provision is a flexible concept, adapted to conform to acceptable community standards, and involves a broad evaluative judgment not constrained by preconceptions and predispositions.^[20] Other relevant constraints or limiting factors may be that further provision should be made only if, and to the extent that, it is necessary to alter the will to make adequate provision for an applicant’s proper maintenance and support,^[21] or that any further provision must be limited by balancing the needs of the applicant against the proper claims that a testator recognised needed to be satisfied out of his or her testamentary bounty.
[21] Where there are competing claims, the Court’s enquiry necessarily involves a balancing exercise between the claims of other beneficiaries, the needs of an applicant and the size of the estate.^[22] The appropriateness of proposed solutions, and indeed whether there is in fact an obligation to provide a home for an applicant, depends on all the facts and circumstances of the case, including the moral obligation owed by the testator to an applicant for provision. It is often said that the obligation of a deceased is to ensure a surviving spouse has a roof over his or her head. That roof has been provided either by matrimonial homes being awarded absolutely, sufficient funds to purchase another suitable residence, a life interest in a property, or even a mere right of occupancy.^[23]
[22] The assessment as to whether the testator failed to make adequate provision for an applicant’s maintenance and support is determined by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of his or her death.^[24] The assessment as to what provision the Court should make is determined at the date of trial, taking into account the plaintiff’s circumstances at that time.^[25] The plaintiff bears the onus of proving the extent of any provision that should be granted.^[26]

58 In Poole v Barrow,^[27] the Court stated:

It must be remembered in applications such as this claim that ... it is not for ... beneficiaries to establish a moral obligation on the part of the deceased for their provision. The [beneficiary] received provision and has no case to establish. In this case, it is for the plaintiff to establish the deceased’s moral obligation to her and the need for further provision.^[28]

Consideration

59 Of the specific matters that the Court is either required to consider under s 91A(1) or may consider under s 91A(2) of the Act, many of them are generally agreed between the parties. The principal issues are any evidence going to the deceased’s intention to benefit the plaintiff, the plaintiff’s financial need and capacity to independently provide for herself, and the financial needs of the beneficiaries.

Factors that must be taken into account in making a family provision order: s 91A(1) of the Act

60 Pursuant to s 91A(1) of the Act, the Court must have regard to the deceased’s will, any evidence of the deceased’s reasons for making the dispositions in the will, and any other evidence of the deceased’s intentions in relation to providing for the plaintiff.
61 The provisions of the deceased’s will clearly indicate that the deceased wanted to benefit his children and intended at the time of making his will to provide his entire estate to them. The will was made in June 1992 which was a number of years before the plaintiff and the deceased commenced their relationship. At that time, the deceased was single, the father of four minor children, three of whom lived with him in Australia separate from their mother, and was about to purchase the Wolsley Court property. In those circumstances, the intentions expressed in the will are understandable and unremarkable.
62 In contrast, at the time of the deceased’s death, he was in a committed and long-lasting relationship with the plaintiff, had adult children for whom he had ceased providing financial support, save for allowing James to reside in the Wolsley Court property, and had intertwined his financial affairs with that of the plaintiff, including by jointly funding the purchase of the Darriwill Street unit.
63 The plaintiff gave evidence as to what she considered to be the deceased’s intentions to provide for her, and also as to how the deceased was to provide for his children. Much attention was given in closing submissions to arguments concerning whether the deceased believed his will was no longer effective, whether the deceased intended to make a new will, and if so, what the terms of that will would have been, and whether the evidence given by the plaintiff was better characterised as going to ‘retirement plans’ rather than ‘testamentary intentions’.
64 On balance, it is sufficient to conclude that, although the deceased failed to make an updated will, this was not because he had considered and decided that the plaintiff was not a person for whom he had responsibility to make testamentary provision or because he considered that the plaintiff had adequate financial resources.
65 In Re Marsella; Marsella v Wareham,^[29] the Court noted that:

While s 91A(1) of the Act mandates that the Court must take into account what a testator provided in his or her will and whether he or she gave any reasons or made his or her intentions known in relation to the provision made for an eligible person, it has always been the case that courts have taken into account the terms of any expressions of the deceased in admissible form.^[30] An express legislative requirement that the Court take such expressions into account, when determining an application, does not mean that such evidence, whether by will or in another form, suddenly takes on some higher status.^[31] The weight to be attached to such statements will depend on the specific circumstances of the particular case.^[32]

66 In this case, only minimal weight is to be afforded to the plaintiff’s evidence of the deceased’s intentions. The defendant conceded that the deceased should have made provision for the plaintiff. Accordingly whether or not the deceased intended to provide for the plaintiff is not relevant. The relevance of the statement for which the plaintiff contends is, in reality, a matter that goes to the content of the provision. However, while the Court is required to consider any evidence of the deceased’s intentions in relation to providing for the plaintiff, it is also the Court’s statutory task to provide, if making a family provision order, an amount not greater than is necessary for the plaintiff’s proper maintenance and support.^[33] Therefore while the Court may accept that the plaintiff believes that the deceased intended to provide for her in a certain fashion, where he did not in fact do so it is not the Court’s role to enforce the plaintiff’s belief, but rather to redress the failing of the deceased to provide for her, by providing an amount not greater than is necessary for her proper maintenance and support.

Factors that may be taken into account in making a family provision order: s 91A(2) of the Act

(a) the nature of the relationship, including the length of the relationship

67 The plaintiff is the domestic partner of the deceased. She had a loving, committed and exclusive relationship with the deceased which lasted nearly two decades.

(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries

68 The deceased had the usual obligations and responsibilities that arise as a result of being a parent and from being in a domestic relationship.

(c) the size and nature of the estate

69 The size, nature and value of the estate are set out above. Three issues affect the size of the estate, namely, whether unpaid rent for James’ occupation of the Wolsley Court property since the deceased’s death should be taken into account; whether the estate liabilities should include an allowance for capital gains tax for the sales of the Goldsworthy Road property and the Wolsley Court property and whether an allowance should be made for an executor’s commission.

Rent for occupation of Wolsley Court

70 In a statement provided to the Court signed 2 November 2018, the deceased’s son James claimed that he had paid rent of $240 per week to his father throughout the 17 years he has resided at the Wolsley Court property. According to the defendant, while the deceased had told him that James was supposed to be paying rent while living at the Wolsley Court property, this did not occur very often because James was out of work. Instead, the deceased would get James to help with chores such as gardening, painting and maintenance. The defendant was unaware until he saw the statement that James was claiming that he had paid rent for his entire period of residency.
71 Whatever may have been the case when the deceased was alive, it is clear that James has not paid any rent since the deceased’s death. The defendant has not taken any steps to evict James from the property for a failure to pay rent, and the estate has continued to incur expenses on account of the Wolsley Court property, such as rates and insurance.
72 Although James’ statement does not use the term ‘agreement’, the plaintiff’s submissions inherently assert that the statement is evidence of an agreement to pay rent at $240 per week to reside at the Wolsley Court property and, accordingly, an asset of $38,640 (being 161 weeks of rent at $240 per week) should be recognised as an asset of the estate, whether or not the defendant actually collects it from James.
73 The defendant appeared to accept in his reply submissions that an adjustment in favour of the estate was required, stating ‘upon adjustment being made for the benefit to James of occupation of [the Wolsley Court property], no shortfall to the estate will accrue’. However, the adjustment to which the defendant apparently refers is an offset against James’ entitlement against the estate in due course, hence the submissions propose a net valuation of the estate which does not take into account the asset of $38,640 as contended by the plaintiff.
74 In order to be classified as an asset of the estate, the plaintiff should establish that there was an agreement to pay rent which could have been enforced. There is insufficient evidence to reach this conclusion: James’ statement refers to no such agreement and even though he claims to have paid rent weekly, it is likely that was not the case. The evidence before the Court from the defendant suggests that there was, at best, an informal agreement between father and son where rent was paid when James could afford to do so, and otherwise, contribution was made by way of chores. However, James’ rent-free occupation of the Wolsley Court property since the death of the deceased is relevant as it constitutes a previous benefit received by James from the deceased. Whether the amount of $38,640 is included as an asset of the estate from the start or whether it is treated as a sum to be offset from James’ entitlement from the estate in due course, makes no real practical or significant difference. The amount of $38,640 will not be included as an asset of the estate.

Capital gains tax allowance

75 The defendant contends that $77,000 is properly characterised as a liability of the estate as an allowance for capital gains tax on both the past sale of the Goldsworthy Road property and the future sale of the Wolsley Court property. The plaintiff’s position is that no allowance should be made for the payment of capital gains tax as a liability of the estate.
76 In closing submissions, the plaintiff emphasised that in the defendant’s oral evidence, he was unable to explain the breakdown of the allowance as he had no accounting qualifications and no knowledge of how capital gains tax is calculated. Further, the defendant had not sought advice on the amount of capital gains tax that would be payable. In those circumstances, the plaintiff submitted that the Court cannot rely on the defendant’s estimated allowance.
77 The plaintiff also submits that the fact that the amount of capital gains tax to be paid on the Goldsworthy Road property is uncertain is due to the failure of the defendant to execute his role as executor properly. The Goldsworthy Road property was apparently sold and the proceeds received in the 2019 financial year, however, the defendant has not yet lodged a tax return for that year, hence the amount of capital gains tax outstanding is uncertain and has not yet been paid.
78 The defendant submits that in circumstances where he left the issue of capital gains tax to his lawyers, it is not proper to exclude the allowance set aside for capital gains tax. The defendant submits that it is proper to include the $77,000 allowance, contingent on the exercise of discretion by the tax office to grant an exemption.
79 The issue of the capital gains tax is unsatisfactory. The defendant should file tax returns on behalf of the estate and seek advice on capital gains tax payable. No attempt was made to assist the Court in determining if the plaintiff is disadvantaged by the exercise of making provision for her on the basis that the quantum of the estate is smaller, or how any exemption should be factored back in to the estate if such an exemption is granted.
80 In the circumstances, it seems proper that the capital gains tax figure be excluded from the value of the estate for the purpose of determining what provision is adequate for the plaintiff, given as a percentage value of the estate.
81 Notwithstanding this, the amount of capital gains tax to be offset against the past sale of the Goldsworthy Road property and the future sale of the Wolsley Court property is not inconsequential and will have an impact the size of the estate available for distribution. The parties are to provide further information in relation to their positions on capital gains tax payable before final orders are made.

Executor’s commission

82 The defendant included an allowance for executor’s commission of $15,000 in the liabilities of the estate even though the will makes no provision for executor’s commission, he does not know whether the beneficiaries will consent to commission being paid and it is premature for the defendant to make an application to the Court.
83 The plaintiff submits that the Court should not assume that the beneficiaries would consent to the payment of commission or the defendant would be successful in any application and, therefore, no allowance should be made for commission in the calculation of the value of the estate.
84 The plaintiff also identifies the following matters which she says militate against an allowance being made for any commission:

(a) the defendant brought no particular expertise to the role of executor;
(b) the estate is already bearing the cost of the defendant paying his solicitors, Coulter Roache Lawyers, to administer the estate and to allow payment of an executor’s commission would amount to ‘double-dipping’;
(c) the defendant’s alleged unsatisfactory administration of the estate, including a failure to: collect rent from James in relation to the Wolsley Court property, realise the value of motor vehicles owned by the estate and instead continuing to incur related registration and insurance costs and prepare and lodge tax returns on behalf of the estate.

85 The defendant rejects the assertion that the estate’s administration has been unsatisfactory, noting that he took steps in relation to rent and possession of the Wolsley Court property, although such action did not extend to formal legal action. In any event, the defendant submits that the circumstances do not justify disallowance of a sum referrable to a commission.
86 At this stage of the administration of the estate, consideration of a claim for executor’s commission is premature. In any event, such an application may be difficult in circumstances where the defendant accepted that he left the day-to-day administration of the estate to his solicitors. As with the capital gains tax allowance, no attempt has been made to address whether the plaintiff is disadvantaged by the exercise of making provision for her from a smaller estate pool than might actually be the case. In those circumstances, an allowance for executor’s commission should be excluded in calculating the net value of the estate.
87 In calculating the net value of the estate, the Court adopts the defendant’s position generally on the value of the estate’s assets, that is, $1,033,009, and the plaintiff’s position generally on the value of the estate’s liabilities, not including the $5,000 cost of repairs to the Wolsley Court property which were taken into account in the defendant’s valuation of that property, providing an estimate of estate liabilities of $17,150. On this basis, the value of the estate is $1,015,859. Taking into account the estimated costs of the proceeding, the value of the estate likely to be available for distribution is $818,024.

(d) the current and future financial resources, earning capacity and financial needs of the eligible person and any beneficiary

88 The plaintiff’s financial position is set out at [39]–[46] above. The beneficiaries’ financial positions are set out at [48]–[53] above.
89 The defendant made a number of submissions directed to the plaintiff’s financial position, in relation to the need required to be demonstrated by her and the relevance of her capacity to maintain herself independently. Insofar as those submissions relate to the plaintiff’s favourable asset position, current earnings and stated desire to continue working, there is some force in the defendant’s position. However, any submission that the plaintiff has the capacity to, or should act to, increase her earning potential, for example, by reference to a management position such as the one she held over 15 years ago, is rejected. Such a submission is divorced from the practical reality faced by the plaintiff who is now aged 57 years and has worked in an entirely different field for the last six years.
90 The plaintiff’s favourable asset position is notable. She has a net positive asset position of $556,000 which, in the context of the size of the estate likely to be available for distribution — being approximately $818,024 — is significant. However, it should be noted that the bulk of the asset value she possesses comes from the new property, over which a mortgage of approximately $178,915 remains. It appears that the plaintiff’s monthly expenses, including mortgage payments of $818, exceed her monthly income by approximately $830. For so long as her monthly expenses continue to exceed her monthly income, the plaintiff will be required to take on debt and will be prevented from accruing further savings.
91 Further, although the plaintiff expresses a desire to continue to work past retirement age, such an expressed desire should be weighed in the balance with the common sense understanding that, as she advances in years, her health is likely to decline, and circumstances may be such that she cannot work as intended.
92 On the plaintiff’s current income, and approaching retirement within realistically the next 10 years, it is likely that she will have real difficulty in discharging her current mortgage and in accruing sufficient income to meet her ongoing living expenses and to have a nest egg to meet unforeseen contingencies.
93 Turning to the beneficiaries under the will, due to their age, various health conditions and lack of employment history, the deceased’s children have no earning capacity, and no real possibility of ever developing one in the future. Their current and future financial resources are limited to pensions and government support, and any amount they will receive from the deceased’s estate. Their financial needs are likely to increase, with the increased cost of living that comes with aging and worsening health.
94 Olivia, the deceased’s eldest grandchild, has obvious financial need. She has a significant amount of personal debt for a person of her age. While she has a qualification, and therefore some earning capacity, she is also the mother of a young child which may limit her ability to obtain employment in the short term. Georgia and Hamish’s current financial needs are being met by government allowances, and by the generosity of Suzi and Brendan. Georgia was in Year 11 in 2019 when Suzi’s affidavit was sworn. There was no contemporaneous evidence as to Georgia’s future study or employment plans from when she, presumably, was to complete her secondary schooling at the conclusion of 2020. There was no other evidence from which conclusions could be drawn as to Georgia and Hamish’s future financial resources, save for very general conclusions based on their current young ages and significant future years of possible employment and earning capacity.

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary

95 The plaintiff does not have a physical, mental or intellectual disability, but does suffer from some health conditions, set out at [39] above. A number of the beneficiaries have physical disabilities of some degree, as well as adverse health and mental health conditions, as set out at [48]–[53] above.

(f) the age of the eligible person

96 The plaintiff at the time of trial was 57 years old.

(g) any contributions of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased’s family

97 The defendant concedes that the plaintiff contributed to the welfare of the deceased, in that the relationship between the deceased and plaintiff was one of mutual personal care and affection for many years, during which the plaintiff devotedly supported the deceased through his significant health battles.
98 However, the defendant submits that this is not a case where the plaintiff has substantially contributed to the building up of the deceased’s estate. The defendant notes that the Wolsley Court property was purchased by the deceased prior to the relationship commencing between the plaintiff and the deceased, and the Goldsworthy Road property was purchased solely by the deceased a year into their relationship. The Darriwill Street unit was purchased using money borrowed jointly by the plaintiff and the deceased approximately six years into their relationship, and while the plaintiff paid for renovations of the Darriwill Street unit from her redundancy payout, repayments of the mortgage were covered by rent from both the Darriwill Street unit and the Goldsworthy Road property. The deceased’s redundancy pay and income protection payout were used in 2010 to significantly reduce the mortgage.
99 The defendant submits that the relationship of the plaintiff and the deceased was marked by a significant measure of financial independence and is to be contrasted with cases where there is substantial intermingling of financial and property assets throughout the course of a relationship.
100 The plaintiff accepts that the Wolsley Court property can be put to one side in terms of contributions, but otherwise submits it is not appropriate to scrutinise too closely the source of, for example, mortgage payments for individual properties, in circumstances where the plaintiff gave evidence that the plaintiff and deceased considered those properties to be jointly owned.
101 In considering the totality of the relationship between the plaintiff and the deceased, and the specific circumstances which characterised it, it is clear that the plaintiff did contribute to the building up of the deceased’s estate. Regardless of the fact that the properties were in the deceased’s sole name, it is apparent that the deceased’s ability to conserve those properties to form a modest asset pool was due to the joint enterprise of the plaintiff and the deceased, and the plaintiff’s support and care for the deceased, over many years. To mention only a few matters, the deceased lived in a house owned by the plaintiff for 13 years, and for many years of their relationship, the plaintiff provided financial support when the deceased was unwell and working only part-time or not at all.

(h) any previous benefits to the eligible person or beneficiary

102 The deceased periodically provided financial support to Kenneth and Veronica as adults, and Veronica’s daughter, Aleesha, by sending money to Scotland. The deceased stopped sending money to Kenneth and Veronica in 2015. The deceased occasionally gave money to his grandchildren’s mother, Sarah, to buy Christmas and birthday presents for them. Otherwise, no material benefits were received by Kenneth, Veronica, Olivia, Georgia and Hamish from the deceased.
103 James has received a substantial benefit from the deceased by reason of his occupation of the Wolsley Court property. Although the evidence is not entirely clear, it seems likely that while James was meant to pay rent while the deceased was alive, rent was in fact paid sporadically, often being replaced by James doing chores. This provision of a home for a flexible return no doubt flowed from the supportive relationship between father and son while the father was alive. Since the deceased’s death, however, no rent has been paid to the estate by James in a benefit estimated by the plaintiff, on the basis of a rental amount claimed by James, to be in the order of $38,640.

(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent or basis of such maintenance

104 There was no evidence that the plaintiff was being wholly or partly maintained by the deceased, rather their expenses were shared between them. Even if individual items of expenses were not split equally, the contributions of the parties to their joint expenses on average evened out over the course of their relationship, as is common in long-term, committed relationships.

(j) the liability of any other person to maintain the eligible person

105 There is no other person liable to maintain the plaintiff.

(k) the character and conduct of the eligible person or any other person

106 The character and conduct of the plaintiff was not, and nor could it be, impugned. The plaintiff has worked hard, contributed both financially and personally to the life enjoyed by the deceased, and was a significant source of assistance and support to the deceased throughout his ongoing health issues. She intends to keep working to support herself in addition to any order for provision that is made for her.
107 There was evidence suggesting the relationship between the deceased and his children was, at least, distant. This may or may not have been because of certain conduct of the children. However, no allegation was seriously pressed that the conduct of the children was such as to disentitle them in any way, and as beneficiaries of the deceased’s will, the children are not required to justify their inheritance.

(l) the effect that a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries

108 Any provision made to the plaintiff will affect the amounts received by the beneficiaries from the deceased’s estate. Pursuant to the will, the deceased’s children and grandchildren are to receive all of the deceased’s estate per stirpes. The plaintiff seeks that provision be made for her that — assuming the parties’ costs of the proceeding will also be taken out of the estate — equates to approximately 69 per cent of the estate available for distribution.

(m) any other relevant matter

109 There are no other relevant matters.

Consideration

110 At the time of his death, the deceased had a moral duty to provide for the plaintiff’s proper maintenance and support. The disputed issue is what is the appropriate amount of such provision.
111 The plaintiff’s position appears to be simply that provision should be made for her on the basis that there are sufficient assets in the estate to provide a secure home, income and nest egg for her with a not insignificant amount left over for the beneficiaries. However, this approach fails to give adequate consideration and weight to the particular circumstances of this case and how it differs from the usual facts of a case where the relevant competing claims are that of a domestic partner and adult children beneficiaries. As noted in Re Marsella,^[34] in determining the amount of provision to be made, relevant limiting factors include that the amount of provision should not be greater than is necessary for an applicant’s proper maintenance and support, and that provision must be limited by balancing an applicant’s needs against the proper claims of others that require satisfaction out of a testator’s estate.^[35]
112 The plaintiff cited a passage by Powell J in Luciano v Rosenblum,^[36] where his Honour said:

It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.^[37]

113 However, as noted by Bryson JA in Bladwell v Davis,^[38] the case of Luciano v Rosenblum did not involve a competing claim or proven need by any other person, and the statement was ‘introduced by a guarded reference to a general rule and the absence of special circumstances’.^[39] As with all general rules, the ultimate conclusion in any proceeding depends on the circumstances of that case. In Bladwell v Davis,^[40] Ipp JA, stated:

I agree with Bryson JA, for the reasons his Honour has stated, that ‘it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances...’.
I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.^[41]

114 It is also to be noted that the three elements identified by Powell J in Luciano v Rosenblum,^[42] namely a secure home, an income and a fund for unforeseen contingencies, are not necessarily mutually independent.^[43]
115 This is not a proceeding where competing factors are more or less equal, and it is apparent that the facts do not sit neatly within the circumstances described by Ipp JA. Here, while the plaintiff as well as each of the beneficiaries have financial needs, it is not the case that the plaintiff is elderly and unable to earn an income. The plaintiff is only approximately eleven years older than the eldest beneficiary and is gainfully employed. Further, her net asset position is materially greater than that of the beneficiaries, who do not have any assets at all. While the plaintiff has some health conditions, these have not prevented her from working and her evidence strongly suggests she does not anticipate that they will prevent her from working for some years yet. The deceased’s children are not able bodied with good earning capacity. There was evidence that the various health conditions from which they suffer are significant and have had a likely deleterious impact on their current and future ability to earn an income. They have no real possibility of improving their situation, both in terms of their economic position and health conditions, which are only likely to further deteriorate. They have significant financial need and a lack of security particularly, for example, in respect of their housing situations. They have no prospect of materially improving their position save for what they may achieve through their inheritance under the will. On those facts, there is no requirement for the plaintiff’s needs to be given primacy solely by reason of her position as the deceased’s domestic partner.
116 In considering the deceased’s moral duty to provide for the plaintiff and in determining what provision is adequate and proper, the fact that the plaintiff has assets and income of her own may moderate the duty of the deceased to provide for her in circumstances where there are significant competing claims to his estate.^[44]
117 Adequate provision for the plaintiff does not require that she should receive both the fee simple of the Darriwill Street unit and a cash payment of $182,500 to eliminate her debt position. Such provision fails to give sufficient weight to the legitimate claims of the beneficiaries having regard to the size of the estate and the plaintiff’s own financial resources.
118 In this regard, two matters may be noted. First, in respect of the Darriwill Street unit, while it was jointly purchased, it was not the matrimonial home of the deceased and the plaintiff, and therefore the plaintiff has no paramount claim to it. Having purchased the new property in which to reside, the value of the Darriwill Street unit to the plaintiff is not as a home, but as a source of income and, potentially, capital in the future. However, the provision of the fee simple of the Darriwill Street unit to the plaintiff would result in the beneficiaries bearing the burden of a provision for the plaintiff which would, in time, presumably, operate to benefit the plaintiff’s two independent adult daughters.
119 The defendant proposes that the plaintiff be given a life interest in the Darriwill Street unit. The plaintiff opposes this suggestion, arguing that as the plaintiff is not seeking the Darriwill Street unit as a place of residence, the provision of a life interest is not appropriate.
120 While there is some merit in an arrangement whereby the plaintiff receives an income during her lifetime from rental payments on the Darriwill Street unit with the fee simple ultimately passing to the beneficiaries, provision of a life interest would not be appropriate as the plaintiff is not significantly older than the deceased’s children, and, by all accounts, is in better health. In those circumstances, deference to her position over that of the beneficiaries is not appropriate. Further, it would beholden the plaintiff to the beneficiaries in circumstances where they do not have a good relationship, and it would not provide the autonomy and independence a provision order should give to the plaintiff.^[45]
121 As it is not appropriate to provide the plaintiff with either the fee simple or a life interest in the Darriwill Street Unit, it should be sold.
122 Further, while a spouse’s legitimate expectation as to their future lifestyle may be relevant to a consideration of the moral duty of the deceased and what constitutes proper provision,^[46] a spouse who is to be provided with accommodation cannot always assume that they will be entitled to the accommodation that they had previously lived in, or that they will be entitled to replicate the way they anticipated living with the deceased, had the deceased lived.^[47] It may need to be factored in that what was proper accommodation for both the deceased and the spouse may be greater than is necessary for the proper maintenance and support for the spouse alone.
123 The plaintiff submits that she has in fact already made such an allowance, by not purchasing a property that required all the net proceeds of both the Darriwill Street property and the Goldsworthy Road property (approximately $730,000) and instead purchasing the new property for $550,000. The plaintiff also sought to bolster her case on the basis that if the deceased had acted on his alleged intention to make a new will and establish a trust for his children with the net proceeds of sale of the Wolsley Court property, and left the balance of the estate to the plaintiff, the beneficiaries would have no basis upon which to make an application for further provision.
124 As noted in Poole v Barrow,^[48] that is not to the point. Where the relevant jurisdiction is a limited one directed to correcting abuses of testamentary freedom and not to rewriting the will as a whole, an argument premised on what the current beneficiaries could or could not succeed in receiving in a claim against the estate is misconceived.^[49]
125 The plaintiff gave evidence that she and the deceased planned to purchase a home to retire in together that had three bedrooms, two bathrooms, and a double garage with an open living room and outdoor entertainment area for the grandchildren. While it is true that the purchase price of the new property did not equal the combined sale proceeds of the Darriwill Street property and the Goldsworthy Road property, the features of the new property purchased by the plaintiff are very similar to the features of the house the plaintiff and deceased intended to retire in together with room for (presumably) the deceased’s grandchildren to visit. No doubt the plaintiff desires space in her home to accommodate additional persons from time to time, presumably her daughters and their families, however it is apparent that the plaintiff has no ongoing relationship with any of the beneficiaries. Given the size of the estate, and the legitimate competing claims of the beneficiaries, the question for the Court is to what extent the burden should fall on the beneficiaries to enable the plaintiff to have a similar sized and appointed home as she intended to share with the deceased unencumbered to herself. This is not a judgment on whether the plaintiff’s decision to purchase the new property was in all respects excessive or unwarranted taking into account that the plaintiff provided much of the necessary capital herself from the sale of the Darriwill Street property. The question is to what extent the estate should be required to contribute so that she can enjoy accommodation to that level unencumbered.
126 When the competing considerations in this case are properly recognised and balanced, adequate provision will be made for the plaintiff if she receives 40 per cent of the estate available for distribution.
127 The estate of $818,024 available for distribution will be reduced somewhat by the costs of sale of the Darriwill Street unit. Neither party proposed selling the Darriwill Street unit, so there was no firm evidence before the Court as to the estimated sale costs. However, the defendant estimated the future sale costs of the Wolsley Court property at $11,000. Therefore, the estate will total approximately $807,024 and 40 per cent of that amount is $322,809.
128 Provision of this sum to the plaintiff will enable her to discharge her current debts of $182,500, with a substantial fund of approximately $140,309 remaining. Once her mortgage is discharged, the plaintiff’s income and expenses as claimed will be relatively even, and any deficit can be covered through additional employment income, by drawing on that remaining fund or her own cash savings, or by reducing her expenses marginally. While there may not be an ongoing surplus of income over expenses, the plaintiff will have substantial financial resources to draw on, including an unencumbered house valued now at $550,000, cash of approximately $163,000, together with her own shares and superannuation. The plaintiff will be in a position to take full advantage of any appreciation in the market value of the new property, and her superannuation contributions will increase for so long as she continues to work. Whether the plaintiff decides to downsize in the future and realise some of the value of her new property in order to increase or preserve her fund for vicissitudes or for income is a decision to be made by her at the relevant time.
129 There is also the issue of whether James should be required to offset the benefit he has already received in the sum of $38,640 from his entitlement from the estate. It is clear that the deceased intended to benefit his children equally. There is no doubt that James has already received a significant benefit from his father’s estate, in the form of the provision of free, secure and comfortable accommodation, the equivalent of which the other children have not received. Accordingly, James should be required to offset the sum of $38,640 from his share of the estate.
130 The final issue concerns the actual value of the estate for the purposes of making final orders. As noted, an estimated net value of the estate was used in these reasons. The main unknown variables that may affect that value are the costs of the parties estimated at approximately $198,000 and the provision for capital gains tax estimated at $77,000. The parties are to provide further details of the estimated costs and the position in regard to any capital gains tax by 13 April 2021. In respect of the costs, the practitioners are reminded that costs must be reasonable and proportionate to the issues in dispute.

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^[1] The plaintiff’s costs estimate was updated in her closing submissions to $103,835.

^[2] Born 22 December 1974.

^[3] Born 23 February 1978.

^[4] Born 14 February 1980.

^[5] Born 8 February 1981.

^[6] Born 7 November 1998.

^[7] Born 9 July 2002.

^[8] Born 11 April 2008.

^[9] Born 22 September 1986.

^[10] Born 10 August 1987.

^[11] See, eg, Re Saric; Saric v Vukasovic [2017] VSC 759, [53] (McMillan J).

^[12] See, eg, Re Papaioannou; Papaioannou v Kronemann [2019] VSC 844, [48] (McMillan J) (‘Re Papaioannou’).

^[13] Ibid.

^[14] Thompson v Thompson [2015] VSC 706, [63] (McMillan J). See also Downing v Downing [2003] VSC 28, [44] (Osborn J); Montague v Montague [2002] NSWSC 328, [62]–[65] (Austin J); Smith v Barker [2005] NSWSC 14, [44] (Master McLaughlin); Moore v Moore [2005] VSC 95, [28]–[33] (Mandie J); Abrego v Simpson [2008] NSWSC 215, [23] (Windeyer J).

^[15] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478–9 (Lord Romer), citing Re Allardice [1911] UKLawRpAC 52; [1911] AC 730, and cited in Grey v Harrison [1996] VSC 74; [1997] 2 VR 359, 364–5 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 818–19 [43]–[45] (Ormiston J).

^[16] Forsyth v Sinclair [2010] VSCA 147, [60] (Neave JA); [2005] VSCA 127; (2005) 11 VR 270, 273–4 [6] (Callaway JA); Grey v Harrison (n 15) 365 (Callaway JA, with whom Tadgell and Charles JJA agreed).

^[17] See, eg, Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 501–2 (Gibbs J); Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ). See generally GE Dal Pont and KF Mackie, Law of Succession, (LexisNexis Butterworths, 2^nd ed, 2017) 607 [17.86].

^[18] MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, 104 [50] (Dodds-Streeton J).

^[19] Ball v Newey (1988) 13 NSWLR 489, 492 (Samuels JA).

^[20] See, eg, Camernik v Reholc [2012] NSWSC 1537, [154] (Hallen J); Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 284 [125]–[126] (White J), interpreting the similar legislative regime in New South Wales under s 59 of the Succession Act 2006 (NSW).

^[21] Grey v Harrison (n 15) 366 (Callaway JA, with whom Tadgell and Charles JJA agreed).

^[22] Ibid 366–7 (Callaway JA, with whom Tadgell and Charles JJA agreed); Friend v Brien [2014] NSWSC 613, [59] (White J).

^[23] See, eg, Montague v Montague (n 14); Smith v Barker (n 14); Moore v Moore (n 14); Abrego v Simpson (n 14).

^[24] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507 (Dixon CJ).

^[25] See, eg, Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Slack v Rogan (n 20) 285 [127] (White J).

^[26] Ibid.

^[27] [2014] VSC 576.

^[28] Ibid [80] (McMillan J).

^[29] [2018] VSC 312 (‘Re Marsella’).

^[30] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 149–50, 152 (Gibbs J).

^[31] Brimelow v Alampi  [2016] VSC 135 ; (2016) 50 VR 219, 223 [15] (McMillan J).

^[32] Re Marsella (n 29) [77] (McMillan J).

^[33] Administration and Probate Act 1958 (Vic) s 91(5)(a).

^[34] Re Marsella (n 29).

^[35] Ibid [83]–[84] (McMillan J).

^[36] (1985) 2 NSWLR 65.

^[37] Ibid 69–70 (Powell J).

^[38] [2004] NSWCA 170.

^[39] Ibid [13] (Bryson JA).

^[40] See generally ibid.

^[41] Ibid [1]–[2] (Ipp JA).

^[42] Luciano v Rosenblum (n 36) 69–70 (Powell J)

^[43] See, eg, Nagy v Marton [2014] NSWSC 540, [146] (Hallen J).

^[44] See Steinmetz v Shannon [2019] NSWCA 114; (2019) 99 NSWLR 687, [115] (Brereton JA), cited in Spiteri v Vassallo [2020] NSWSC 890, [39] (Williams J).

^[45] See, eg, Sarant v Sarant [2020] NSWSC 1686, [241], [360] (Hallen J).

^[46] See, eg, Steinmetz v Shannon (n 44) [112] (Brereton JA).

^[47] See, eg, Poole v Barrow (n 27) [71] (McMillan J); Nagy v Marton (n 43) [146] (Hallen J).

^[48] Poole v Barrow (n 27).

^[49] Ibid [81] (McMillan J).