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Re Monument; Monument v Monument [2022] VSC 205 (29 April 2022)

Last Updated: 5 May 2022

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2020 00328

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

- and –

IN THE MATTER of the Will and Estate of MARGARET DIANNE MONUMENT, deceased

BETWEEN:

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FAMILY PROVISION — Where deceased made no provision for adult daughter — Whether deceased owed a moral duty to the plaintiff — Quantum of any provision in dispute — Provision of a legacy ordered — Administration and Probate Act 1958 (Vic) ss 90, 90A, 91 and 91A.

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TABLE OF CONTENTS

HER HONOUR:

Introduction

1 Margaret Dianne Monument (‘the deceased’) was born on 14 September 1935 and died on 24 September 2018. The deceased was survived by her four children, Robyn, Jannene, Laurel and Nicole. Robyn, who is the eldest sibling, is the plaintiff in this proceeding. Jannene and Laurel are the first and second defendants respectively, whereas Nicole was the second plaintiff but has since discontinued her claim and, as such, is no longer involved in this proceeding. Originally, Laurel was the third plaintiff but she also discontinued her claim.^[1] To avoid confusion, I will refer to the members of the Monument family by their first names. In taking this course, I intend no disrespect to the parties.
2 This proceeding concerns a claim by Robyn for a family provision order pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’). By originating motion filed 22 January 2020 (‘Application’), Robyn seeks an order for an extension of time to commence this proceeding pursuant to s 99 of the Act; and an order pursuant to Part IV of the Act for proper provision from the estate of the deceased.^[2]
3 For the reasons that follow, I consider it appropriate to grant an extension of time in respect of the Application and for an order to be made pursuant to Part IV of the Act for provision from the deceased’s estate in favour of Robyn.

The deceased’s will and statement of reasons

4 The deceased left a last will and testament dated 18 September 2012 (‘the Will’), which appointed Jannene and Laurel as executors. The Will gifted the family home in Stawell (‘the Property’) and two specific items of personal property to Jannene, leaving the rest and residue of the estate to the deceased’s four children, gifted equally. The terms of the Will relevantly provide:

3. I GIVE AND DEVISE [the Property] to my daughter JANNENE MARGARET MONUMENT for her own use and benefit absolutely.
4. I GIVE AND BEQUEATH my 2 Mary Gregory vases to my daughter JANNENE MARGARET MONUMENT for her own benefit absolutely.
5. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate to my Trustees to sell call in and convert into money all such parts thereof as shall not consist of money with power to postpone conversion in their absolute discretion and to hold the net proceeds of such sale calling in and conversion together with any assets remaining unconverted and any ready money belonging to me at the date of my death TO HOLD the same upon the following trusts:-

(i) To pay thereout all my just debts funeral and testamentary expenses and any death duties which may be payable on my estate; and

(ii) To distribute the balance then remaining equally between such of my children ROBYN LEONIE MONUMENT, LAUREL JOY MONUMENT, JANNENE MARGARET MONUMENT and NICOLE CECILIA MONUMENT as survive me.

...
8. IT IS MY WISH that my daughters will each take back anything that they have given to me as presents over the years and they will divide the rest of my household contents and personal effects between themselves. It is my wish that Jannene be responsible for dividing my jewellery between all my daughters so that each receives items they would like as keepsakes.

5 There is no residue available for distribution and the Property is the sole remaining asset of the deceased’s estate, apart from some small items of personal property of nominal value. The Property remains vacant and registered in the name of the deceased.
6 Paragraph 7 of the Will contains a statement of reasons for the disposition of the Property to Jannene. That paragraph states:

7. I DECLARE that I have left [the Property] to my daughter JANNENE as my late husband before his death asked me to promise to leave the home to Jannene in appreciation for the care and time she devoted to her father throughout his long illness including moving into the home for several years to help care for her father and also the care she took of me while I battled cancer and her understanding of the home which her father built. I share my late husband’s wish that Jannene receive our home and express my wish that Jannene’s sisters respect our wishes and bear Jannene no ill will for this bequest and know that I love all my daughters.

7 In addition to paragraph 7 of the Will, the deceased left three handwritten letters that were said to have been contained in an envelope accompanying the Will (‘Accompanying Letters’). Only one of the letters bears a date, being 6 May 2012, with the remaining two undated. The letters echo the provisions of the Will, and shed light on the deceased’s rationale and testamentary intentions. Relevantly, the letter dated 6 May 2012 states in part:

8 In one of the two remaining undated letters, the deceased relevantly states in part:

The trial of this proceeding and Jannene’s failure to appear on 28 March 2022

9 At the outset, I wish to make some comments regarding the unfortunate manner in which the trial of this proceeding unfolded.
10 Pursuant to the orders of Keith JR dated 27 October 2021, this proceeding was listed for trial before me on 30 November 2021, initially on an estimate of one day.
11 The evening before the hearing, at 7.57pm, my Associate received an email from Jannene in which she requested an adjournment. In support of her request Jannene referred to a number of factors, including that she was without legal representation, had experienced difficulties in retaining a lawyer due to the COVID-19 pandemic and the concomitant restrictions on movement and travel in effect in Victoria in recent times, and suffered from health issues. My Associate informed Jannene by reply email that any application for an adjournment could be ventilated by her at the commencement of the hearing. The following day, Jannene appeared at the hearing by telephone, which was then conducted by way of audiovisual link, and made an oral application for an adjournment of the trial. This application was opposed by the other parties.
12 I denied Jannene’s application for an adjournment and, following my oral ruling, the trial commenced. Shortly after the parties made their opening submissions and Robyn gave evidence, I adjourned the hearing adjournment for lunch. Upon resumption of the hearing, Jannene became discernibly agitated and distressed and said she was suffering from an anxiety attack. It soon became apparent that Jannene was no longer able to participate in the proceeding at that time. In light of the circumstances, I determined that it was inappropriate to continue the hearing that day and made orders adjourning the trial part heard to 9 March 2022 (‘November 2021 Orders’). The November 2021 Orders also invited Jannene to file and serve an affidavit by 1 March 2022, and provided that, if filed, any affidavit could stand as her evidence-in-chief. In the event Jannene chose not to file an affidavit, the November 2021 Orders provided that Jannene was to give her evidence-in-chief orally at the adjourned hearing.
13 Jannene did not file an affidavit in the time stipulated in the November 2021 Orders or at any time prior to the resumption of the trial.
14 The trial resumed by way of audiovisual link on the morning of 9 March 2022, and Jannene joined via telephone. As a preliminary matter, Counsel for Robyn and Laurel each submitted that it was their preference that Jannene be visible on screen for the purposes of giving evidence-in-chief and cross-examination. Jannene responded that her telephone was incapable of supporting video conferencing technology, insisting:^[3]

MS MONUMENT: I’ve tried it many a times and it doesn’t work. That’s why I was wanting it to be an in-person court hearing now that COVID’s over, not done by - not done by Zoom.
...
MS MONUMENT: Well, I’m happy to have the whole court proceedings done in person, if that be the case. Which I have stressed before, plenty of times before. I said last time that I felt that it was an impersonal thing done by phone and Zoom and all the rest of it. I thought all court proceedings, especially in the Supreme Court, I thought they all would done - been done in person.

15 Jannene further indicated that she was unable to attend the Court’s premises that day to access technology capable of supporting a videolink as she was located in Stawell.^[4] After I temporarily stood the matter down, my Associate made enquiries with the Stawell Magistrates’ Court to establish whether Jannene could attend and avail herself of the court’s facilities. However, the court was not open that day and was therefore unable to accommodate Jannene. When the hearing resumed, Counsel for Laurel indicated that her instructors made a telephone call to the Stawell Library in central Stawell, which I was informed had a private room available with the technology to support a videolink and free access to the internet. While I considered the situation to be highly unsatisfactory, particularly due to the parties’ failure to make arrangements in advance of the hearing, I acceded to this arrangement and asked Jannene to attend the library in central Stawell, to which she begrudgingly agreed. I proceeded to stand the matter down for a period of time so as to allow her an opportunity to commute to the library.
16 After the hearing resumed, Jannene failed to reconnect to the hearing. I then instructed my Associate to contact her by telephone. After several attempts to contact her, Jannene answered her telephone and informed my Associate that she attended the library and was unhappy with the facilities there, primarily due to what Jannene said was the absence of toilets at the venue. Jannene indicated that she had left the library and abruptly ended the call, following which she remained uncontactable. The hearing was subsequently adjourned to 2pm the same day, and Jannene again failed to appear. As a result, I adjourned the trial part heard to 28 March 2022, setting the proceeding down for an in-person hearing.
17 The trial recommenced at 10.30am on 28 March 2022, and Jannene did not appear. Shortly after the hearing began, the Court received the following email from Jannene:

To the Associate of Associate Judge Matthews,
I am writing to you because I would like to apologize for failing to attend court this morning due to testing positive to Covid.
I am waiting for the Doctor report to send to the courts..
Regards
Jannene Monument

18 Although this email was received at 10.40am, it came to the Court’s attention some time later, while Laurel was giving evidence.
19 At the conclusion of Laurel’s evidence, I raised Jannene’s initial email with the parties, who submitted that the Court ought to disregard Jannene’s email and proceed with the hearing. I determined that the trial was to proceed irrespective of Jannene’s failure to attend Court. In doing so, I had regard to Jannene’s persistently obfuscating behaviour, her repeated failure to properly engage in this proceeding despite being given every possible opportunity to do so, the parties’ and the Court’s obligations under the Civil Procedure Act 2010 (Vic), the absence of any compelling evidence in support of Jannene’s claim to have contracted COVID-19, and the fact that Jannene had not asked for another adjournment or to participate by electronic means.
20 Jannene later supplemented her correspondence with an email to my Associate received at 12.08pm, which enclosed a copy of a medical certificate. The certificate stated:

Ms Jannene Monument declares that she has tested positive for Covid-19 on home RAT testing and is symptomatic. DHS notification is pending. She is unable to attend her court case today, 28/03/2022 due to Covid-19.

21 This second email arrived after Robyn’s Counsel had concluded her closing address and Laurel’s Counsel had just about completed her closing address. It only served to fortify the conclusion I had already reached and I continued with the hearing until its conclusion a short time later.

Extension of time

Principles

22 Section 99 of the Act provides the timeframe within which an application to the Court for a family provision order is to be made:

(1) An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be.

(2) Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired.

(3) An application for extension under subsection (2) must be made before the final distribution of the estate.

(4) The making of an application for extension under subsection (2) and any order of the Court in relation to the application for extension does not disturb or affect the distribution of any part of the estate made prior to the making of that application.

Naturally, the discretion must be exercised in accordance with the subject matter, scope and purpose of s 91 itself. But the discretion is not confined by any rigid rules.
On the other hand, some matters will ordinarily be relevant. They include the length of the delay, the reasons for the delay, whether prejudice to other interested parties would result from making an order (other than the prejudice inherent in disturbing the terms of a distribution which would have been in their favour), and the strength of the case. Other considerations may also be relevant, depending on the nature of the case.
The fact that these factors are relevant does not mean that an applicant is required to satisfy the Court as to each of them individually. For example, it has been noted that an extension may be granted where delay has not been satisfactorily explained. Rather, a balancing exercise is involved in which the Court addresses the question whether an extension of time is in the interests of justice, having regard to the purpose of s 91 to enable proper provision to be made for those eligible to make applications.
In particular, while the strength of an applicant’s claim for relief is a relevant factor to be considered, along with other factors, that consideration is not determinative except in cases where the prospects are hopeless, so that extending time would be futile. Conversely, the fact that a case is arguable does not, of itself, mean that time must be extended.

24 The burden of proof rests with the plaintiff, who must establish that is in the interests of justice to grant the extension of time sought.^[8]

Evidence

25 Probate was granted to Jannene on 28 May 2019, with leave reserved to Laurel, such that the time for filing an application expired six months later on 28 November 2019.^[9] As the Application was filed on 22 January 2020, it was out of time by approximately 55 days.
26 Prior to the Application being made, there was correspondence between the then legal representatives for the parties.
27 The correspondence is summarised as follows:

(a) The first letter relied on is dated 12 December 2018, and sent by Mr Frank Frawley (then the solicitor for Robyn, Laurel and Nicole), addressed to Ms Carmel Prowse, Jannene’s first former solicitor. The letter foreshadowed that Robyn, Nicole and Laurel would be contesting the Will on the basis that the deceased had not complied with her obligations under the Act. The letter further notes:

Our clients wish to minimise legal costs. To that end they propose that there be a mediation with a barrister appointed as a mediator and for the mediation to occur in Ballarat. They propose that the mediation take place without the need to issue proceedings on the basis that our three clients agree to such a mediation and seek the co-operation of the co‑Executor [Jannene] to participate in such a mediation.

(b) By reply letter dated 14 December 2018, Ms Prowse confirmed that she had been engaged to handle the deceased’s estate on behalf of Jannene, but that she was ‘not in a position to handle the Estate given that the Will is to be contested so I have forwarded your letter to [Jannene] and recommended that she consult another solicitor to respond’.
(c) The letters dated 12 and 14 December 2018 were then sent directly to Jannene by Mr Frawley as enclosures to a letter dated 19 December 2018.
(d) Another letter was then sent by Mr Frawley to Ms Prowse on 19 December 2018, requesting that she hold on to the Will and not forward it to anyone else without the prior written consent of his clients.
(e) On 14 February 2019, Mr David Gonzalez, the new solicitor then acting for Jannene, wrote to Mr Frawley confirming, inter alia, that ‘[y]ou have ... foreshadowed in correspondence that your clients will be contesting their late mothers [sic] Will’. Moreover, on 22 February 2019 Mr Frawley wrote to Mr Gonzalez seeking an undertaking not to distribute or deal with the assets of the deceased’s estate ‘until we have a round table conference or the matter has resolved by way of agreement or a Court Order’.
(f) Mr Frawley sent an email to Mr Gonzalez on 18 November 2019. In the email, Mr Frawley referred to a previous telephone conversation with Mr Gonzalez, in which Mr Fawley suggested:

the parties have an informal telephone mediation to try and resolve this Estate. This is especially important given the very small asset pool.
Unless we receive it in writing within 7 days that your client will agree to such an informal telephone mediation then we will seek our client’s instructions to issue.

Submissions

28 In respect of Robyn’s application for an extension of time, Robyn’s Counsel submitted that the Court’s discretion under s 99(2) of the Act is not confined to any rigid set of rules. Further, it was submitted that in this case there were a number of communications between Robyn, Laurel and Nicole’s solicitors and Jannene’s former solicitors, which correspondence it is said illustrates that Robyn had indicated that she intended to contest the Will, and that Jannene was on notice of this application, as early as 12 December 2018. It was further submitted that the parties made a genuine attempt to settle this proceeding by way of informal medication as a means of reducing costs.
29 In a similar vein, Counsel for Laurel submitted that there is no proper basis for the estate to object to Robyn’s out-of-time application in circumstances where there were negotiations on foot at the time that the claim was brought, the delay was short (with Christmas intervening over the two month timeframe), the merits of the claim are strong, the estate has not been distributed and there is no prejudice to any party.

Consideration – should an extension of time be granted?

30 Although the time under s 99(1) of the Act expired some 10 days after the email referred to in paragraph 27(f) above, the correspondence summarised in the whole of paragraph 27 makes ineluctably clear that Jannene knew, or ought to have known, that the Will was contested as early as 12 December 2018, merely months after the deceased’s death. That Mr Frawley’s letter dated 12 December 2018 was forwarded to Jannene is confirmed by Ms Prowse’s letter dated 14 December. The correspondence was also mailed directly to Jannene. In circumstances where Jannene would have had notice of the possibility that proceedings would be filed merely months after the deceased’s death, it cannot be said that Jannene will suffer any prejudice if an extension of time is granted.
31 It is clear from the correspondence that the reasons for the delay are that the parties were stiving to negotiate a settlement without needing to resort to litigation. The parties were evidently seeking to bring about a timely and cost-effective resolution to the dispute, which is entirely appropriate given the diminutive size of the estate. Further, it is worth noting that the Christmas vacation also intervened during the period of delay.^[10] Jannene complained in her opening submissions that Robyn had delayed in making the Application, and that the delay was significant. I do not accept this submission, as the delay was not lengthy and the reasons for it have been adequately explained. Further, there is no evidence of any prejudice arising as a result of the delay, either to Jannene or to the estate, and there has been no distribution of the estate.
32 Notwithstanding that the strength of a plaintiff’s claim for relief is a relevant, albeit not determinative, factor to be considered in assessing whether an extension of time ought to be granted,^[11] I consider Robyn’s claim to be a strong one, for the reasons which are set out later in this judgment.
33 For all of these reasons, I consider that the interests of justice favour the granting of an extension of time to Robyn to bring the Application. As such, I will order that pursuant to s 99 of the Act the time within which the Application is to be extended to 22 January 2020.

Legal Principles

Matters to be satisfied before an order for family provision can be made

34 Section 90A of the Act provides an ‘eligible person’ may apply to the Court for a family provision order under Part IV. It was common ground that Robyn is an eligible person by virtue of the fact that she is a child of the deceased.^[12] Any application made is subject to s 90A(2).
35 Section 91 states that an eligible person, on application under s 90A, may apply to the Court for a family provision order from the estate of a deceased person.^[13] Upon the making of an application, s 91(2) provides that a Court must not make an order for family provision unless satisfied of the following matters:

(a) that the person is an eligible person; and
...

(c) that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and

(d) that the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—

(i) the deceased’s will (if any); or
(ii) the operation of Part IA; or
(iii) both the will and the operation of Part IA.

36 The Court’s discretionary jurisdiction to award provision will only be enlivened upon satisfaction of the requirements in s 91(2).^[14]
37 With regard to s 91(2)(c) of the Act, the term ‘moral duty’ is a clarification of the longstanding general law principle that a Court will only interfere with a testator’s freedom to dispose of their assets when the testator has breached a moral duty to provide for a plaintiff.^[15] McMillan J recently considered the content of moral duty in Re Christu, where her Honour observed:^[16]

In accordance with its established legal meaning, when considering the question of ‘moral duty’ the Court places itself in the position of the wise and just testator, judged according to current community standards, and asks whether she or he would have thought it her or his moral duty to provide for the claimant. The concept concerns:

The community’s expectation that a testator should materially support another, given their relationship, personal circumstances and competing claims on resources. It is not, fundamentally, an examination of the personal honesty, probity, uprightness, virtue, integrity, general goodwill or reputation of the testator.

38 It has been recognised that the mandatory and discretionary factors set out in s 91A are relevant when determining the jurisdictional questions in s 91(2). While evidence of a deceased’s testamentary intentions are a mandatory consideration, evidence of such intentions are not to be elevated to some higher status.^[17] A plaintiff’s conduct may be such that he or she is disentitled from a claim on the moral duty of the testator, albeit any such conduct is not to be viewed in isolation of other aspects of that plaintiff’s claim.^[18]
39 When determining whether the deceased has fulfilled his or her moral duty (and the extent of any provision to be made from the deceased’s will), the Court must also consider the relative concepts of ‘adequate’ and ‘proper’ maintenance and support.^[19] The phrase ‘adequate provision for the proper maintenance and support’ was also considered by McMillan J in Re Christu, where her Honour stated:^[20]

The concept of need is relevant in considering whether the testator ‘made adequate provision for the proper maintenance and support of any claimant’. It is a relative concept, to be considered in all of the circumstances of the case. It is not confined to financial need, and if circumstances permit ‘a testator should go beyond merely providing for the bare necessities of life’.
Whether the provision is adequate for the plaintiff’s proper maintenance is to be determined with reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of death.
In Davison v Kempson, the Court of Appeal identified a number of factors to be considered when determining whether adequate provision had been made for an adult child’s proper maintenance and support:

If an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. Where a child falls on hard times, and where assets are available, the community may expect a parent to provide a buffer against contingencies. Other relevant factors, in the case of an adult child, include (a) a lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years; (b) the need for financial security and a fund to protect against the ordinary vicissitudes of life; and (c) an inability on the part of the applicant to earn an income, or where the claimant has a limited means of earning an income.

40 The term ‘proper maintenance and support’ encapsulates the vicissitudes of life of the plaintiff, and the Court, in determining whether proper maintenance and support has been achieved, will have regard to the mandatory and discretionary factors under the Act.^[21] The nature and content of what can be said to constitute adequate provision is flexible, and it is the Court’s task to apply a broad evaluative judgment unconstrained by preconception and predispositions.^[22]
41 Further, the plaintiff bears the onus of establishing, on the balance of probabilities, that the deceased did not make provision for her or his proper maintenance and support.^[23]
42 When determining the amount of any provision to be made, the Court must have regard to the considerations set out in s 91(4) of the Act:

In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—

(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and

(b) the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person; and

(c) in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person’s proper maintenance and support; and

43 Section 91(5)(a) of the Act states that a family provision order must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support.
44 Regarding the extent of any provision to be made by way of a family provision order, the quantum is to be determined by reference to a party’s circumstances at the time of the trial.^[24]
45 In relation to the extent of any provision to be made for an adult child, the relevant principles were considered by the Court of Appeal in Davison v Kempson.^[25] In that case, it was observed^[26]:

A parent need not treat his or her children equally. Equality may set a limit to the order to be made, such as where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. At all events, in determining the provision that should be made, the Court is to have regard to the factors set out in s 91(4)(e)–(p) of the Act.
If beneficiaries do not give evidence as to their final position or other claims on the testator’s bounty, the Court is entitled fairly to assume that they have no special claim other than relationship and, in particular, that they have adequate resources upon which to live.
The applicant bears the onus of proving, on the balance of probabilities, that the testator did not make adequate provision for the applicant’s proper maintenance and support.
If an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. Where a child falls on hard times, and where assets are available, the community may expect a parent to provide a buffer against contingencies. Other relevant factors, in the case of an adult child, include (a) a lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years; (b) the need for financial security and a fund to protect against the ordinary vicissitudes of life; and (c) an inability on the part of the applicant to earn an income, or where the claimant has a limited means of earning an income.

Section 91A factors

46 Section 91A(1) of the Act enumerates certain mandatory and discretionary factors for the Court to consider in making a family provision order. These considerations are relevant both to the jurisdictional question of whether the Court may make an order under s 91(1) and the Court’s discretion to make such an order.^[27]
47 The factors in s 91A are:

(1) In making a family provision order, the Court must have regard to—

(a) the deceased’s will, if any; and

(b) any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any); and

(c) any other evidence of the deceased’s intentions in relation to providing for the eligible person.

(2) In making a family provision order, the Court may have regard to the following criteria—

(a) any family or other relationship between the deceased and the eligible person, including—

(i) the nature of the relationship; and
(ii) if relevant, the length of the relationship;
(b) any obligations or responsibilities of the deceased to—
(i) the eligible person; and
(ii) any other eligible person; and
(iii) the beneficiaries of the estate;

(c) the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

(d) the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—

(i) the eligible person; and
(ii) any other eligible person; and
(iii) any beneficiary of the estate;

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

(f) the age of the eligible person;

(g) any contribution (not for adequate consideration) of the eligible person to—

(i) building up the estate; or
(ii) the welfare of the deceased or the deceased’s family;

(h) any benefits previously given by the deceased to any eligible person or to any beneficiary;

(i) whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

(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 effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;

(m) any other matter the Court considers relevant.

The evidence

Overview

48 Owing to the diminutive size of the deceased’s estate and the parties’ overarching obligations to ensure that costs are reasonable and proportionate, Robyn and Laurel gave their evidence-in-chief at trial viva voce. Similarly, the parties did not provide written submissions but instead relied on the oral submissions made by their Counsel at the hearing. The parties also relied upon a number of other documents tendered during the course of trial.
49 In support of the Application, Robyn has filed the affidavit of Tyler James Neville affirmed 17 November 2021 (‘Neville Affidavit’), the affidavit of service of Jaimee Jade Tuckett sworn 24 November 2021 and the affidavit of Dr Niresh Madhanpall sworn 25 November 2021 (‘Madhanpall Affidavit’), and the exhibits to those affidavits.
50 The second defendant has filed the affidavit of Alexander David Baird sworn 17 November 2021, the affidavit of Benjamin Jeffrey McLean sworn 3 March 2022, and the affidavits of Laurel Joy Monument sworn 11 March 2022 and 25 March 2022.
51 For the reasons outlined in the previous section, Jannene did not avail herself of the numerous opportunities afforded to her to give oral evidence at the hearing. Nor did Jannene file an affidavit in accordance with the November 2021 Orders. While Jannene gave a short opening submission at the commencement of the trial and cross‑examined Robyn during the first day of the hearing, much of Jannene’s cross‑examination was of marginal (if any) relevance to the issues in dispute. That said, during the hearing on 28 March 2022 I informed the parties that I intended to take into account material filed by Jannene in the proceeding, being a position statement filed by Jannene on 16 July 2020, on the basis that Jannene has been self‑represented since at 25 September 2020 and that to do so would not cause any prejudice to the parties given that the parties had notice of the matters raised in Jannene’s material. Counsel for Robyn and Laurel were agreeable to this approach. I will also take into account the matters raised by Jannene in her opening submission. Given the way in which the trial was conducted, I consider it fair to Jannene to do so and do not consider that it causes any prejudice to the other parties.

Observations on Robyn and Laurel’s oral evidence

52 The evidence shows that Robyn and Laurel had a difficult and somewhat tragic upbringing. The pair were subjected to ridicule, torment and neglect at the hands of the deceased.
53 In spite of the troubled subject matter into which their examinations delved, however, I consider that both Robyn and Laurel gave their evidence in a forthright manner. While Laurel’s Counsel did not cross-examine Robyn and Robyn’s Counsel’s cross‑examination of Laurel was by no means robust, the evidence given by the pair was internally consistent, frank and coherent. Both witnesses gave consistent evidence pertaining to their childhood, with Laurel supporting many of the matters referred to by Robyn. To take one example, Laurel agreed with Robyn’s evidence concerning to the deceased’s alcoholism, such as the time of day at which the deceased commenced drinking, the frequency of the deceased’s drinking and the volume of alcohol consumed by the deceased. Although neither witness delved into an especially granular level of detail when recalling events from their upbringing, I consider this to be entirely understandable given the effluxion of time and the difficult subject matter for Robyn and Laurel.
54 With regard to Robyn’s evidence, Robyn was candid about the state of her relationship with her mother, which was tumultuous and characterised by intermittent periods of separation throughout almost all of her adult life. I also consider that Robyn made appropriate concessions when required. For example, when asked during examination whether she saw the deceased after she drove her to an oncology appointment in Ballarat in 2017, Robyn readily conceded that it was the final time she drove her mother anywhere. In an unprompted remark, she then went on to state that it was the final time she ever saw the deceased prior to her visiting the deceased in palliative care in Werribee the day before her death in September 2018. To take another example, Robyn was willing to concede that it was Jannene who took on the larger share of responsibility for housing the deceased after she relocated to Melbourne in 2015. At no point did I get the impression that Robyn had embellished or exaggerated her answers when recalling the frequency with which she spoke to the deceased over the telephone or otherwise interacted with the deceased, and the substance of those interactions.
55 Similarly, I found Laurel’s oral evidence to be balanced and truthful. Laurel became emotional during her evidence when recalling certain events, but was able to convincingly recount the difficulties of Robyn’s and her upbringing, and the deceased’s verbally and physically abusive behaviour. Although Laurel’s evidence was generally consistent throughout, on occasion she struggled to recall particular events and required prompting by Robyn’s Counsel during cross-examination. In this regard, during evidence Laurel attributed this to a brain injury which she suffers, the existence of which was not contested and that I have no reason to doubt. There were other instances in which Laurel’s answers were possibly affected by resentment or other negative sentiment towards Jannene. For instance, when asked why she thought that the deceased had purchased a car as a gift for Jannene, Laurel stated that ‘Mum paid for everything for Jannene’. Notwithstanding this, such occasions were few and far between, and on the whole I consider that Laurel proved to be a reliable witness.
56 Accordingly, having regard to the totality of Robyn and Laurel’s evidence, the Court accepts them as witnesses of truth.

Family background

57 The following information on the Monument family’s background is drawn from the evidence given by Robyn and Laurel at trial and, to a lesser extent, the list of agreed facts. While many of these matters are uncontradicted, Jannene’s position statement and her opening submission make several sweeping assertions which are in conflict with Robyn and Laurel’s evidence. Where Jannene has objected to a matter, I have attempted to make this as clear as possible, and return to deal with Jannene’s position when I consider the parties’ evidence in full.
58 As discussed, the deceased was survived by four children. Robyn, who was born in 1961, is the deceased’s eldest child. Robyn was eight days old when she was adopted by both the deceased and her husband, Cecil Monument (‘Cecil’).
59 Laurel, who was born in 1966, is the deceased’s second eldest child, followed by Jannene, who was born in 1973. Nicole, who was born in 1974, is the youngest of the siblings.
60 After marrying Cecil in 1957, the deceased did not participate in the paid workforce. Cecil worked as a bricklayer five days per week and often on weekends.
61 Robyn’s childhood was traumatic. The evidence is that the deceased was an alcoholic and regularly subjected her family members to verbal and physical abuse, with much of the abuse meted out by the deceased directed at Cecil and Robyn. The deceased drank a large quantity of alcohol each day, and often began drinking early in the day while Cecil was at work. When asked what the deceased’s attitude towards her was like after she had consumed alcohol, Robyn replied that the deceased became nasty, humiliated her and behaved violently. Robyn described a number of instances of such behaviour, which I do not need to set out in detail here. Robyn was approximately four years old when the deceased informed her that she was adopted, and her evidence was that she was made to feel ostracised and unloved by her mother.
62 Robyn’s evidence is that Cecil was also regularly subjected to violence by the deceased. Although Robyn was often a target of the deceased’s abusive behaviour prior to Cecil returning from work, it was Cecil who was in the firing line upon his return from work in the evenings. When Robyn attempted to intervene on the side of her father, the deceased would verbally and physically assault Robyn. The deceased would tell Robyn that she hated her, and that adopting her was a mistake.
63 These alcohol-fuelled outbursts would prompt Robyn and Laurel to seek refuge in their parents’ closet. Robyn recalled one particular episode when she was approximately 15 years of age, in which the deceased launched into an abusive tirade which prompted Robyn to leave the Property for a period of three or four days. Robyn’s evidence was that these violent episodes occurred on a regular basis, and ‘maybe four times a week’.^[28] In her position statement Jannene says that she never witnessed any violent episodes occur between the deceased and Robyn, and denies their occurrence.
64 When asked whether she had responsibilities around the family home, Robyn replied that she used to carry out various tasks, such as picking up items from the grocer’s and preparing her father’s lunch for him to take to work. Robyn also assisted Cecil by maintaining his books when he became self-employed.
65 In 1978, Robyn left home at the age of 17. Robyn states that she was kicked out of home after questioning her mother about an extramarital affair her mother was having with a man who is Jannene’s and Nicole’s biological father. Robyn had uncovered this affair by the time she was 17 years of age. The unchallenged evidence suggests that the deceased was upset that Robyn had found out about the affair, which the deceased did not want to be revealed to Cecil. Robyn states that the deceased gave her $100 and dropped her off at the train station, telling her not to come back.
66 Robyn travelled to Melbourne, where she found accommodation in a boarding house in St Kilda and obtained employment at a supermarket in Elsternwick.
67 Following her move to Melbourne, Robyn returned to Stawell to visit on weekends from time to time. When asked how regularly she would visit Stawell during this period, Robyn replied that she visited a few times shortly after moving to Melbourne because she had friends in Stawell and did not know anyone in Melbourne. Robyn would catch a train to Stawell on Friday night, and return to Melbourne on Sunday. Robyn stated that she continued to communicate with Cecil by telephone during this period, and occasionally with the deceased. It was not until some time after the deceased had kicked her out that Cecil found out that Robyn had left for that reason.
68 Robyn’s relationship with her mother during her adult years was shaped by her turbulent childhood and upbringing. The evidence is that Robyn’s relationship with the deceased improved after Robyn gave birth to her first child, Liam, some years after relocating to Melbourne, with the deceased visiting Robyn in hospital the day after she gave birth. The deceased bonded with Liam and began visiting Robyn roughly once every two months. Around this time, Robyn also visited Stawell for a period of approximately three weeks. When the deceased and Cecil visited Melbourne they tended to stay for the weekend, and Robyn otherwise remained in contact with them by telephone. Robyn’s evidence is also that she telephoned her parents every Sunday during this period, at which time she would also speak with the deceased.
69 In around 1987, Robyn returned to Stawell and enrolled her eldest son in Stawell Primarily School. However, this arrangement was short-lived as the deceased again told Robyn to leave the Property following a disagreement between Robyn and the deceased. Robyn’s evidence is that the disagreement occurred when the deceased was ‘blind drunk one night’ and told her ‘to fuck off’. Following this incident Robyn did not speak with the deceased for a period of approximately eight months. Robyn then began speaking with the deceased over the phone once every few weeks.
70 Robyn was asked about whether the family would spend Christmas together during this period, to which she responded that the family spent lots of Christmases together. The families would sometimes gather at the deceased and Cecil’s house, and the deceased and Cecil would occasionally commute to Melbourne to spend Christmas at her house. When asked whether there were any incidents at Christmas time, Robyn responded by recounting an episode in 1994, at which time Robyn was heavily pregnant with her third child, where the deceased had an argument with Robyn’s then partner, Ray. The deceased, who was intoxicated at the time, attempted to stab Ray in the chest with a pair of knitting needles, causing the knitting needles to snap in half. The deceased then pushed Ray off of the verandah of the Property. Following the incident, Robyn and Ray left Stawell and Robyn did not speak to the deceased for approximately two months, until she gave birth to her third child. However, Robyn commenced speaking with the deceased following the birth of her third child.
71 In around 2006, Jannene moved into Robyn’s property in Bacchus Marsh, Melbourne, where the two lived together for a period of time. Robyn stated that during this period she was on good terms with the deceased, who visited Robyn once every two or three months. Cecil would could not travel to Melbourne during this period due to his ill health. Robyn recalled that when the deceased visited, Robyn, Jannene and the deceased would go out for dinner together. Around this time, Robyn, her sisters and the deceased also attended a Robbie Williams concert together in Melbourne.
72 It is Jannene’s position that she resided at the Property intermittently until approximately 2010, when she returned to the Property to assist the deceased in caring for Cecil after he fell ill.
73 Cecil died in 2011. Under the terms of Cecil’s last will dated 6 July 2006, his entire estate, including his interest as the sole proprietor of the Property, passed to the deceased. The deceased became the sole registered proprietor of the Property. However, clause 3 of Cecil’s will also provided:

... that in the event of my said wife predeceasing me or having survived me but dying within thirty days from the date of my death then I leave the whole of my estate equally between my children ROBYN LEONIE MONUMENT and LAUREL JOY MONUMENT and my stepchildren JANNENE MARGARET MONUMENT and NICOLE CECELIA MONUMENT absolutely provided ...

74 Robyn and Jannene were appointed as the executors of Cecil’s will.
75 Even after Cecil’s death, the family continued to spend Christmases together. For example, Robyn saw the deceased for Christmas in 2011 and the following Mother’s Day, where Robyn, Laurel and the deceased attended a lunch at Crown Casino in Melbourne. Jannene was living with the deceased in Stawell during this time.
76 In 2015, the deceased moved to Melbourne where she commenced living with Jannene in Kurunjang, who herself had recently relocated to Melbourne. The Property was left vacant, and has remained so to the present day. The deceased had recently been diagnosed with cancer for a second time. Following the recurrence of the deceased’s cancer and her relocation to Melbourne, Jannene cared for the deceased by providing housing and accompanying the deceased to appointments with medical specialists.
77 Robyn recalled that in 2015 the deceased stayed with her for a period of roughly three weeks when Robyn was living in West Melton. The deceased again stayed with Robyn in 2016, shortly after Robyn had lost her job, when she was residing in Brookfield. Regarding the deceased’s stay with Robyn in 2016, which again was for a period of three weeks, Robyn’s evidence was that:^[29]

ROBYN: [the deceased] came and stayed again because - um, Jannene was being evicted from her property and Jannene needed a break from her and - yeah. Mum loved staying there because I was actually cooking for her and I took her to get her hair cut. She hadn’t had her hair cut for about two years. It looked terrible. And I took her to buy some new clothes. Um, yeah. ‘Cause she said that at Jannene’s, she was left at home by herself all the time, because Jannene’s always over at Werribee at her boyfriend’s, and when she does come home, she sleeps till 5 o’clock at night. That’s too late to go to the shops.

78 Robyn also took the deceased to an oncology appointment in Ballarat in 2017. When Robyn was asked whether this was the last time she drove the deceased anywhere, Robyn replied that it was the final time she saw the deceased prior to her visiting the deceased in palliative care the day before her death. Robyn also recounted that while the deceased was staying with her in 2017 the pair had a falling out following an incident in which Robyn took issue to Jannene accessing the deceased’s bank account. Jannene appeared to take objection to Robyn’s recollection of this incident during her cross-examination of Robyn, but ultimately did not articulate the basis of this objection.
79 In any event, Robyn next spoke to the deceased over the phone when the latter was in St Vincent’s Hospital. Robyn stated that the deceased did not want Robyn to attend the hospital for fear that it would upset Jannene, and so the next time Robyn saw the deceased was at the palliative care ward at a hospital in Werribee, where Robyn and Jannene slept overnight. The deceased passed away the following morning.
80 Robyn arranged the deceased’s funeral with the assistance of Jannene. All of the deceased’s daughters attended the funeral.

Submissions

Robyn’s submissions

81 Counsel for Robyn submits that Robyn’s childhood was one marred by neglect and abuse, both emotional physical, at the hands of the deceased. Robyn’s testimony regarding this abuse and neglect, it is said, is corroborated by the evidence of Laurel, who of the deceased’s children is the closest in age with Robyn.
82 Regarding Jannene’s position statement, Counsel for Robyn submits that Jannene’s account is not correct and, in any event, that Jannene was a mere child or not born when the abuse perpetrated by the deceased against Robyn commenced.
83 A number of submissions were also made in respect of Robyn’s relationship with the deceased, and the nature and duration of any periods of estrangement between the two. In this respect, Robyn’s Counsel submitted that despite Robyn’s difficult childhood, she maintained a relationship with her mother by spending Christmases with the family, visiting Stawell on occasion, and often speaking to both of her parents on weekends over the telephone. Despite the ongoing turmoil in the family, it is submitted that there were no lengthy periods of estrangement between Robyn and the deceased. While Counsel for Robyn concedes that upon moving to Melbourne in 2015 the deceased primarily resided with Jannene, it is submitted that the deceased continued to stay with Robyn from time to time, and that Robyn visited the deceased while she was in palliative care and was involved in the deceased’s funeral arrangements.
84 On these bases, Robyn’s Counsel contended that rather than this case being one involving estrangement, the facts demonstrate that it is one of perseverance of a mother-daughter relationship in the face of trying circumstances.
85 Counsel for Robyn contends that the Court ought to make provision for Robyn from the deceased’s estate for her proper maintenance and support under s 91 of the Act.
86 After summarising the applicable principles, Counsel for Robyn, in observing that 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, contended that the deceased has completely failed in her moral duty owed to Robyn. Turning to the Will itself, Counsel for Robyn refers to paragraph 7, in which the deceased states that she ‘love[s] all [of her] daughters’, and in regards to the Accompanying Letters it was submitted that the letters do not evidence the truth of matters, but simply disclose the reasoning of the deceased.
87 It was further submitted that, if satisfied that the deceased had a moral duty to make provision to Robyn, then it is incumbent on the Court to look at what a wise and just testator would do, in full knowledge of all of the relevant circumstances. Having regard to the discretionary factors in s 91A(2) of the Act, it was submitted that Robyn’s difficult childhood and subjection to abuse by the deceased is borne out by the evidence, and that despite this Robyn and the deceased maintained a mother‑daughter relationship. This is said to be exemplified by the statement in the Will regarding the deceased’s love for all of the daughters, and the fact Robyn helped to care for the deceased during her later years of life.
88 On this basis, Counsel for Robyn submits that the facts do not evince conduct that really enhances or diminishes the moral obligation owed by the deceased to Robyn, observing that this is not a case involving estrangement.
89 Concerning whether there are any obligations or responsibilities of the deceased to Robyn and other beneficiaries, Counsel for Robyn stated that in this case it is accepted that the deceased owes a moral duty to Jannene, in addition to Robyn.
90 As for the size and nature of the estate, Counsel for Robyn submits that the estate is modest in size. It was further submitted that Robyn has significant financial need, as she is a 60-year-old woman, has nil earning capacity and is of extremely limited means.^[30] In respect of Jannene being the other beneficiary in this case, Counsel for Robyn submitted that the assertions made by Jannene in her position statement, which are summarised above, should be given little to no weight insofar as they concern her financial position and ability to work. Further, it was submitted that, even if Jannene’s statements were to be taken at face value, Jannene does not say in her position statement that she lacks capacity to work part time or on a casual basis.
91 In terms of any contribution of Robyn to building up the estate or the welfare of the deceased, Counsel for Robyn submits that the evidence demonstrates that, in the deceased’s later years in life, Robyn did care for the deceased, who stayed with her from time to time, and took her to appointments.
92 Counsel for Robyn also submitted that, as for any benefits previously given by the deceased to any eligible person or beneficiary, Laurel’s evidence regarding the deceased having purchased a motor vehicle for Jannene ought to be taken into account.
93 It was conceded that, for the purposes of s 91A(2)(l) of the Act, the obvious effect of a family provision order in favour of Robyn would be to reduce Jannene’s entitlement to the estate.
94 With regard to any other matters to which the Court should have regard, Counsel for Robyn relied on the terms of Cecil’s will, submitting that the terms of Cecil’s will are a relevant discretionary consideration.
95 Counsel for Robyn submitted that, taking into account all of the evidence, at the time of the deceased’s death the deceased had a moral duty to provide for Robyn’s proper maintenance and support, but failed her duty. It is pointed out that one of the executors, being Laurel, accepts that the deceased had a moral duty to provide for Robyn’s proper maintenance and support.
96 As for the quantum of any provision made, Counsel for Robyn submitted that if beneficiaries do not give evidence as to their financial position or other claims on the testator’s bounty then the Court is entitled to presume that they have no special claim, other than the relationship, and in particular that they have adequate resources on which to live. Robyn’s Counsel also submitted that the following factors should be taken into account when ascertaining the amount of provision to be made to Robyn: a lack of reserves to meet demands, because of ill-health, which becomes more likely with advancing years; the need for financial security and the funds to protect against the ordinary vicissitudes of life; Robyn’s age and inability to join the workforce; her limited means and ill-health.

Laurel’s submissions

97 Counsel for Laurel observed that although it is the role of an executor to uphold the terms of a will, such a duty is not unfettered. That is because an executor also has an obligation to consider proper claims against the estate and compromise them where appropriate, and not fight a proper claim at the cost of the estate. It was submitted that, in light of these principles, this proceeding is one which ought not have been fought.
98 In terms of the moral duty owed, it was submitted that there is a prima facie moral duty owed by a parent to a child, even an adult child, which is well established. It was also said that there are circumstances where that moral duty can evaporate, which include instances where there is violence against the deceased by a plaintiff or where the plaintiff has no financial need, neither of which can be said to apply in this case. Further, Counsel for Laurel submitted that while estrangement can attenuate the moral obligation owed, there was no estrangement in this case and that even if there was, the case law demonstrates that where there is abuse or neglect by the parent that caused the estrangement, it is ordinarily the case that the estrangement will not reduce the obligation.
99 Laurel’s Counsel submitted that Laurel does not contest the evidence given by Robyn in regards to her family history, of which Laurel has firsthand knowledge, and that, moreover, Laurel’s own evidence positively supports that of Robyn. Furthermore, it was submitted that Laurel does not contest Robyn’s evidence of her financial or health position, which evidence is consistent with Laurel’s knowledge of Robyn from their ongoing relationship.
100 For these reasons, it is said that Laurel accepts that there was a strong moral duty owed by the deceased to Robyn, and that the deceased failed to meet this obligation by effectively making no provision for Robyn in the Will.
101 As for the quantum of any provision made from the deceased’s estate, it was submitted that the Court has a wide discretion and that the most important issues for the Court to consider are the deceased’s wishes, Robyn’s financial and health needs and the deceased’s treatment of the Robyn. Laurel accepts Robyn’s claim as a proper claim against the estate and leaves the question of quantum in the hands of the Court.

Analysis

Mandatory considerations

The Will

102 Turning to the mandatory matters which I am required to consider under s 91A(2) of the Act, the terms of the Will are such that the Property is gifted to Jannene for her own use and benefit absolutely. The Property is the sole remaining asset of the estate, and Robyn stands to receive nothing. The explanation provided at clause 7 of the Will is that Jannene devoted time and care to Cecil while he was ill, moved in with the deceased to take care of her while she battled cancer, has a unique understanding of the home, and ought to receive the Property as it was Cecil’s wish that this occur. The deceased further noted her wish that Jannene’s sisters bear her no ill-will for the bequest, noting that she ‘love[s] all [of her] daughters’.
103 The Will is clear that the deceased intended that the Property be gifted to Jannene. At this point, however, I note that the Will was signed in September 2012, six years prior to the deceased’s death. While the terms of the Will evidence that Jannene was the intended recipient of the Property, it is arguable that the Will did not reflect the state of Robyn’s relationship with her mother at the time of the deceased’s death. On the one hand, Robyn gave unchallenged evidence that the deceased stayed with her for a period of weeks in both 2015 and 2016, and that she drove the deceased to an oncology appointment in Ballarat in 2017. On the other, the evidence also suggests that the dynamics of Robyn’s relationship with the deceased may not have shifted in the six‑year period between the execution of the Will and the deceased’s death. For example, this is demonstrated by Robyn’s evidence that the deceased did not want her to visit her at St Vincent’s Hospital in 2018 for fear of upsetting Jannene.^[31] Robyn and the deceased also had a falling out in 2017, which culminated in Robyn not seeing the deceased until she visited her in palliative care in September 2018, the day before the deceased’s death.
104 On balance, it is more likely than not that, despite being prepared approximately six years prior to the deceased’s death, the Will did accurately capture Robyn’s relationship with the deceased, which followed much the same pattern post-2012 as it did pre-2012. That said, it is noteworthy that despite the preferential treatment made by the deceased in favour of Jannene, in the Will the deceased claims to love all of her daughters, and in this sense it can be said that the terms of the Will fail to adequately capture the complexity of Robyn’s relationship with the deceased.

Evidence of the deceased’s reasons for making the dispositions in the Will

105 Section 91A(1) of the Act also requires the Court to consider any evidence of the deceased’s reasons for making the dispositions in the Will. It is well established that this express legislative requirement does not elevate such evidence, and that the weight to be attached to such statements will depend on the specific circumstances of the case.^[32] Further, reasons can be shown to be incorrect or misconceived, which may enhance or boost the strength or defence of a claim made in respect of an estate.^[33]
106 The Accompanying Letters echo and complement the terms of the Will. It is safe to assume that they were prepared some time in or immediately prior to 2012, because they were each said to be found in the same envelope, were evidently intended to be read in conjunction with the Will, and each letter is of a similar format and style.^[34] The Accompanying Letters state the deceased’s wish to gift the Property to Jannene, which she justifies by reference to the time Jannene devoted to her and Cecil while the pair were ill.
107 The letter dated 6 May 2012 also states that the deceased’s ANZ investment is to be divided equally between the deceased’s daughters, though as I have stated previously, by the time of the deceased’s death this investment was no longer in existence.
108 It follows that for reasons analogous to those stated with respect to the Will, I consider it likely that the Accompanying Letters are an accurate representation of the deceased’s testamentary intentions as at the date of her death.

Any other evidence of the deceased’s intentions in relation to providing for the eligible person

109 No additional evidence of the deceased’s testamentary intentions was canvassed by either Robyn or Laurel. Jannene’s position statement simply asserts that the Will was clear, and that it was the deceased’s intention that the Will be upheld.

Discretionary considerations

The relationship between Robyn and the deceased

110 The evidence establishes that the relationship between Robyn and the deceased was often hostile, tempestuous and marred by conflict. The evidence details at length Robyn’s traumatic upbringing and incidents involving the deceased’s verbally and physically abusive behaviour.
111 Robyn’s childhood and teenage years were rife with discord. After suffering years of abuse at the hands of the deceased, Robyn was kicked out of home at the age of 17, whereupon she travelled to Melbourne alone. Robyn’s relationship with her mother continued to oscillate throughout Robyn’s adult life, and was punctuated by temporary periods of separation in which the pair communicated sparsely, if at all. For example, following an improvement in her relationship with the deceased upon the birth of Liam, in 1987 Robyn briefly relocated to Stawell, and even enrolled Liam in Stawell Primary School. This arrangement was only short-lived, however, with Robyn soon moving back to Melbourne following an argument with the deceased. This dispute led to Robyn and the deceased not speaking for a period of eight months.^[35] The evidence also contains similar occurrences, such as the dispute between the deceased and Robyn’s then partner at Christmas in 1994, in which the deceased and Robyn’s partner became embroiled in a violent confrontation.^[36] Robyn and the deceased also had a falling out in 2017, which led to the deceased and Robyn not seeing one another until the deceased was on her deathbed.^[37]
112 That said, the evidence also establishes that, despite these setbacks, the mother‑daughter relationship endured throughout Robyn’s adult life. For example, Robyn managed to mend her relationship, or at least reach a common understanding, with the deceased some time after she relocated to Melbourne, where Robyn and the deceased maintained contact over the telephone and saw each another in person.^[38] As discussed, Robyn’s uncontradicted evidence is that her relationship with the deceased improved following the birth of Liam, with the deceased visiting Robyn in hospital following Liam’s birth and Robyn visiting Stawell every two or three months. In the period after Cecil’s death in 2011, while it was accepted by Robyn that Jannene housed the deceased after she was diagnosed with cancer for the second time, Robyn’s evidence was that she both continued to maintain contact with the deceased by telephone, allowed the deceased to stay with her in 2015 and 2016, and drove her to an oncology appointment in Ballarat in 2017.^[39] Robyn’s evidence in this respect was corroborated by Laurel.^[40]
113 Jannene did not respond directly to this evidence, but claimed in her position statement that after Cecil’s death in 2011 her sisters did not maintain a relationship with the deceased and that, prior to the deceased’s death, her sisters had been estranged from the deceased for years. Jannene also asserts that she did not observe any violent or abusive behaviour on the part of the deceased during her childhood.
114 For reasons discussed earlier, Jannene did not give evidence at trial, and given her position statement is uncorroborated by documentary or other evidence, it should be treated with caution. I do not accept Jannene’s claim that the deceased was nonviolent and not abusive. It is particularly relevant that the behaviour complained of by Robyn, whose account was supported by Laurel, occurred at a time in which Jannene was unborn, or very young.^[41] Indeed, Jannene was between two to three years old when Robyn left home. On this basis alone, Jannene’s evidence regarding the deceased’s behaviour towards Robyn during Robyn’s childhood and teenage years is of negligible probative value. Further, it is not even inconsistent with Robyn and Laurel’s evidence since she was so young at the time it occurred. It is not particularly surprising that Jannene says she did not witness it or recall it.
115 As for Jannene’s evidence concerning any estrangement between Robyn and the deceased after Cecil’s death in 2011, I consider that the evidence does not establish a total absence of a relationship or permanent estrangement. On the contrary, it is a testament to the resilience of Robyn and the deceased’s mother-daughter relationship that it managed to survive as long as it did.
116 If I were to accept Jannene’s position that Robyn failed to maintain contact with the deceased after Cecil’s death, which I do not, it is necessary to place this in the context of Robyn’s and Laurel’s evidence regarding Robyn’s traumatic upbringing and deceased’s propensity to subject Robyn to verbal and physical abuse, which evidence I accept. In this regard, Counsel for Robyn relied on Valentini v Valentini^[42] which, it is said, supports the position that any absence of contact between Robyn and the deceased should not attenuate the force of Robyn’s moral claim on the basis that the deceased completely failed in her parenthood duty. In Valentini, three of the testator’s four children brought a claim against the testator’s estate under Part IV of the Act, each having been left nothing under the impugned will. While the relationship between the applicants and the deceased in that case was characterised by significant periods of estrangement, Vickery J embraced the applicants’ description of the deceased as a ‘violent man who was prone to cruelty, had a violent temper and was constantly critical of his children’,^[43] and concluded that a ‘profoundly troubled and discordant relationship existed’ between the applicants and the deceased.^[44] In these circumstances, his Honour referred to and relied on Harper J’s decision in Baird v National Mutual Trustees Ltd,^[45] an analogous case in which the testator, a heavy drinker and abusive father, failed to make provision for his children, with whom he had no contact for a period of 25 years. His Honour relied on the following passage by Harper J in Baird:^[46]

• One must conclude on the basis of this evidence that the deceased failed in his parental duty. His children were the victims of that failure. He had a moral duty to make amends by leaving his estate, or at least a large part of it, to them. This duty however, was simply another obligation which the deceased failed to fulfil ...
• The court must therefore ascertain both whether ‘adequate’ provision has been made and what in the circumstances would have amounted to ‘proper’ maintenance and support: Collicoat v McMillan (unreported, 30 October 1995 per Ormiston J at 65). These are two sides of the same coin, so that it is but a single enquiry having regard to both aspects of the test. A principal determinant of proper maintenance and support ‘is what the testator in all conscience should have felt bound to provide’ (ibid, at 66). Thus, a testator who has neglected or abused his parental responsibilities might nevertheless not feel in conscience bound to provide for a child for whom very comfortable, or perhaps even merely comfortable, provision already exists: The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9. On the other hand, the conscience of a testator who has actively mistreated his children should react rather differently where those children, although not living in poverty at the date of his death, are by no means wealthy.

The deceased’s obligations or responsibilities to Robyn, any other eligible persons and the beneficiaries of the estate

120 The deceased’s moral obligation owed to Jannene is not in contest. Rather, at issue in this proceeding is the deceased’s moral obligation to Robyn.

The size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject

121 As mentioned earlier, there is no residue available for distribution and the Property remains the sole remaining asset of the deceased’s estate. The evidence is that the Property remains vacant and registered in the name of the deceased. The Property was valued at $270,000 by Preston Rowe Paterson, who were engaged on behalf of Robyn and Laurel to provide a valuation report for the Court in a Residential Valuation Report dated 8 November 2021.^[49] At the hearing on 30 November 2021 Jannene asserted that this valuation was erroneous, and questioned the basis on which the valuation was conducted in 2021 as opposed to the date of the deceased’s death. Jannene subsequently appeared to drop her objection, indicating that she did not wish to cross-examine the valuer. In any event, even if Jannene did wish to press her objection to the expert report, I consider the objection to be misplaced on the grounds that the value of the Property is to be determined at the date of trial, and not at the time of the deceased’s death.
122 The estate’s liabilities are calculated to be $28,935.20,^[50] with estimated amount of approximately $213,000 is likely to be available for distribution from the estate.

The financial resources, including earning capacity, and the financial needs of Robyn and Jannene at the time of the hearing and for the foreseeable future

123 The evidence demonstrates that Robyn is in financial need. Robyn receives an amount of $948.22 from Centrelink on a fortnightly basis. This amount is comprised of the disability support pension and rent assistance. In addition to these payments, Robyn receives $994.34 per month from an income protection claim, which is set to expire on 16 August 2028 when she will be 67 years of age. Robyn currently pays $590 in rent per fortnight. Aside from a superannuation balance of $10,575.71, Robyn owns a 2007 model Mini Cooper vehicle which she purchased for approximately $20,000 a decade ago, and has personal effects and furnishings valued at approximately $6,000. Robyn’s evidence was that she has no savings to her name. Robyn’s liabilities include a bank loan of $22,527.79, in respect of which steps have been taken by the lender for recovery, rent of $590 per fortnight, and living expenses.
124 The evidence is that Robyn’s earning capacity is essentially now non-existent. Robyn’s evidence was that due to the state of her mental health she will never be medically fit to return to work. Around the time she lost her job in 2016, Robyn attempted to gain work, yet was unable to hold down a job. When asked in oral evidence about her mental health during this period, Robyn stated that it was very bad, and recalled that she suffered terrible nightmares and panic attacks. Robyn said that saw a psychologist and psychiatrist, and continues to undergo counselling and psychological treatment.^[51]
125 Robyn’s testimony is supported by the expert report of Dr Naresh Madhanpall, exhibited to the Madhanpall Affidavit, which confirms that Robyn’s medical conditions preclude her from returning to the workforce. Dr Madhanpall further states that ‘[w]hile it is hoped that a partial recovery will occur for [Robyn’s] mental health, I am doubtful whether this will occur. As [sic] her level of function is greatly impacted by flare ups of her mental health and by social interactions’.^[52]
126 By her position statement, Jannene states she has been unemployed since about 2015 and received a $550.00 per week by way of a disability pension. Jannene also states that she has minimal funds in her bank account and does not own any significant assets. Further, Jannene states the she is currently renting accommodation, for which she pays $416.00 on a weekly basis.
127 Regarding Jannene’s earning capacity, her position statement says that she is not able to work due to her having a titanium resin cage fused in her neck, which is said to prevent her from standing for long periods and causes her constant pain. Additionally, Jannene says that she suffers from anxiety and depression for which she takes medication.
128 Counsel for Robyn urged the Court to disregard Jannene’s assertions regarding her capacity to work, her mental health condition and the state of her finances on the basis that these do not extend beyond bare assertion. While Jannene’s failure to put on material during the course of this proceeding warrants criticism, the stance taken by Robyn’s Counsel overlooks the fact that prior to the judicial mediation for which the position statement was prepared Jannene was not required to provide documentary evidence in support of the claims made in her statement. Of course, this defect in evidence could have been cured by Jannene availing herself of the opportunity to put on an affidavit or give oral evidence. At the hearing on 30 November 2021, I explained to Jannene that, amongst other things, she would need to provide sworn evidence to support the claims made in her position statement, such as those made in respect of her financial circumstances. As I have made clear, however, Jannene has not done so, despite ample opportunity being afforded to her.
129 Nonetheless, I accept the alternative submission that Jannene’s position statement fails to elucidate whether her lack of capacity to work also extends to work on a part-time or a casual basis. In any case, even if I were to take Jannene’s evidence at its highest, it does not negate the fact that Robyn is also a person in need, for whom the Will has made no provision.

Any physical, mental or intellectual disability of Robyn and Jannene

130 Robyn has been diagnosed with depression, anxiety, post-traumatic stress disorder, hyperlipidaemia and agoraphobia. Robyn continues to consult a psychiatrist in respect of these issues.^[53] The evidence indicates that there has been no recent deterioration in her mental health, which remains stable. In terms of her physical health, Robyn suffers from a chronic bowel issue, though this also appears to be stable at present.^[54]
131 As stated above, Jannene’s position statement states that she has a titanium resin cage fused in her neck which is a source of discomfort for her. Jannene also suffers from depression and anxiety, and said that she is taking medication in connection with these issues. Jannene did not provide any expert evidence or other documentation in support of these assertions.

Robyn’s age

132 Robyn is 60 years old.

Any contribution of Robyn to the building up of the estate or the welfare of the deceased or the deceased’s family

133 Robyn’s evidence is that she did care for the deceased during her later years of life, and that the deceased stayed with her from time to time following Cecil’s death. Robyn also gave evidence that she drove the deceased to an oncology appointment in Ballarat in 2017. Robyn’s account was corroborated by Laurel’s evidence.^[55] As discussed, Jannene’s position statement asserts that her sisters were estranged from the deceased after Cecil’s death, although this evidence was not tested and, as such, must be treated with caution. There was no evidence that Robyn contributed to the building up of the estate. Nevertheless, I do not consider Robyn’s contribution to the welfare of the deceased to be a significant factor.

Any benefits previously given by the deceased to Robyn or Jannene

134 There are two matters raised in evidence which warrant consideration under this heading.
135 First, during oral evidence Laurel asserted that the deceased purchased a car for Jannene, which was said to be a ‘brand new 2014 or [20]15 hybrid Toyota. I think a Celica or Prius’. When asked how much the vehicle cost, Laurel stated that Jannene informed her at the time that it was worth $35,000.^[56] Robyn’s Counsel then asked Laurel how she knew that the deceased had paid for the vehicle on Jannene’s behalf, to which Laurel responded:^[57]

LAUREL: Jannene was on a disability pension and had no savings. Um, it was the only way that she could - could’ve purchased the car.
MS SINGH: And are you aware if ... your mother purchased any car, or a house, or anything like that for Robyn?
LAUREL: Oh, no.
MS SINGH: And you said that very quickly. Why is that?
LAUREL: No, we never got anything.
MS SINGH: It was only Jannene that got a car for her?
LAUREL: Yes.

136 I am not persuaded by this evidence regarding the deceased’s buying a car for Jannene. Laurel’s evidence is speculative at best, and does not go beyond a mere hunch. Further, Laurel’s belief that the car constituted a gift from the deceased to Jannene appears to be predicated on the assumption that Jannene, a recipient of Centrelink payments, would not be able to afford a vehicle of this type. However, there is no evidence as to how the deceased, who herself was unemployed, could have afforded the car.
137 Second, during the course of Robyn’s cross-examination by Jannene on the first day of the trial Robyn was asked whether the deceased and Cecil used the Property as a surety for the purposes of obtaining bail for a former partner of Robyn.^[58] In her position statement, Jannene stated that this favour bothered Cecil greatly, and as a result of this episode the Property’s title deed is missing. Robyn conceded that a surety had been granted in respect of this former partner’s bail, but confirmed that the surety was eventually released in full after a period of five to six months.^[59]
138 On the basis of the limited evidence available, it cannot be said that the surety was a gift given to Robyn per se, as, from what I can gather, the surety was granted in favour of her former partner. In any case, Robyn’s evidence that the surety was released to Cecil in full is unchallenged.
139 As such, I consider these two issues to be of negligible impact on the exercise of my discretion.

Whether Robyn was being maintained by the deceased before the deceased’s death

140 Robyn was not being maintained by the deceased prior to the deceased’s death.

The liability of any other person to maintain the eligible person

141 No other person is liable to maintain Robyn.

The character and conduct of the eligible person or any other person

142 Much of the limited material put on by Jannene was directed to Robyn’s, and by extension her siblings’, alleged estrangement from and mistreatment of the deceased. Jannene also asserted that her siblings remained estranged from the deceased following Cecil’s death in 2011.
143 Jannene also made specific allegations concerning Robyn’s conduct toward the deceased. For example, Jannene asserted in her position statement that in or around September 2018, Robyn told Jannene that she hated the deceased, thought the deceased was a ‘drunken old cunt’ and hoped the deceased died. This is said to be the last time Robyn and Jannene spoke to each other. In a similar vein, during Jannene’s cross-examination of Robyn it was put to Robyn that during a telephone call between the pair while Jannene was visiting the deceased while she was in hospital, Robyn said to Jannene to tell the deceased that she is a ‘stinking fucking old c-u-n-t I hope she dies...I hope she suffers’.^[60] Robyn responded that it was the deceased who informed her that she was in hospital, and that her son, Liam, had separately spoken to the deceased. Robyn said that Jannene’s account of the telephone conversation between them was a ‘complete fabrication’.^[61]
144 Jannene referred to two persons who she said overheard the conversation and were purportedly willing to give evidence and stated that she had the deceased’s telephone which would support her view of events.^[62] Suffice to say that nothing in this regard was tendered by Jannene. Even if Jannene had tendered evidence of the metadata pertaining to Jannene’s call with Robyn, this would not add colour to her recollection of the conversation because it would likely only show who called whom and the duration of the call, not the content of the conversation.
145 Conversely, it was Robyn’s evidence that she continued to maintain a relationship with the deceased after she left home in 1987 by returning to Stawell on weekends and maintaining contact with the deceased over the telephone. It was also Robyn’s evidence that prior to Cecil’s death her relationship with the deceased improved following the birth of her first child, which precipitated her move to Stawell in 1987, and that she continued to visit the deceased and the family over the holiday season. From around 2006, during a period in which Cecil was too sick to travel to Melbourne, Robyn saw the deceased once every two or three months, and, aside from a period from 2016 to the deceased’s death in 2018, remained in contact with the deceased on an intermittent basis. As Robyn’s evidence makes clear, however, these periods were marred by outbreaks of turmoil and conflict, as demonstrated by the episode at Christmas in 1994. Consistent with what I have said above, I have no reason to doubt Robyn’s evidence, and I accept it.
146 In circumstances where Jannene’s material does not go beyond bare assertion, Jannene was not subjected to cross-examination, and Jannene’s version of events is denied by Robyn, I reject Jannene’s account. However, in the event I were to accept Jannene’s version of events as evidence of disentitling conduct on the part of Robyn towards the deceased, it remains the case that Robyn’s conduct ought to be seen through the lens of the evidence regarding the abuse she sustained during her childhood and formative years.
147 As I mentioned earlier, I do not consider this case to be one involving estrangement, as the weight of the evidence suggests that Robyn and the deceased’s relationship endured to the date of her death. However, if I were to accept Jannene’s evidence concerning Robyn’s estrangement from the deceased from 2011 onward, the existence of any disentitling conduct on the part of Robyn is nullified by the deceased’s failure in her parental duty owed to Robyn.^[63]

The effects a family provision order would have on the amounts received from the deceased’s estate by Jannene

148 Any provision made to Robyn will reduce the amount received by Jannene upon the sale of the Property.

Other matters

149 In terms of any other matters to which I should have regard, Cecil’s will is a relevant consideration which may weigh in favour of the making of an order for Robyn’s provision. Cecil, being Robyn’s father and the initial registered proprietor of the Property prior to his death, stated in his will that that if the deceased did not survive him, then the children were to receive the Property in equal shares. The will was drafted in 2006, being a time well after the turbulence of Robyn’s formative years and her relocation to Melbourne. Weighing against this is the content of the deceased’s Will and the Accompanying Letters, which suggest that Cecil later came to the view that the Property should be left to Jannene. This material expresses the deceased’s views and it is clearly hearsay insofar as Cecil’s wishes are concerned. Further, Cecil did not change his will before his death.
150 On balance, therefore, I do not consider Cecil’s will to be a factor telling one way or the other.

Did the deceased have a moral duty to provide for Robyn’s proper maintenance and support?

151 In determining whether the deceased had a moral duty to provide for Robyn’s proper maintenance and support, the task of the Court is to place itself in the position of the deceased and ask whether the wise and just testator, judged according to community standards, would have thought that it was her or his moral duty to provide for Robyn. This inquiry requires the Court to determine whether a fair and reasonable member of the community would have considered it her or his moral duty to provide for Robyn.^[64]
152 The facts in this case are tragic. The evidence establishes that Robyn endured a tumultuous upbringing at the hands of the deceased, an alcoholic who regularly subjected her and other members of the family to verbal and physical abuse. As can be expected, this childhood and the deceased’s conduct leading up to, and following, Robyn’s relocation to Melbourne at the age of 17 led to a significant straining of their mother-daughter relationship. While Robyn and the deceased’s relationship was punctuated by periods during which the two did not communicate with each other, the weight of the evidence supports the view that the facts of this case do not involve estrangement. Further, any disentitling conduct is negated by the deceased’s abject failure in her parental duty owed to Robyn, and the fact that Robyn was a victim of the deceased’s behaviour. For these reasons, it cannot be said that Robyn’s conduct has had the effect of attenuating any moral duty owed to Robyn by the deceased.
153 At the time of the deceased’s death in 2018, the evidence demonstrates that Robyn is a person in need. Despite working for a short period at the beginning of 2017 and again in late 2017, Robyn has mainly been unemployed since 2016. However, this is not the result of an absence of desire on Robyn’s part, but is a consequence of the mental health issues that afflict her.
154 The evidence also establishes that, relevantly, the deceased knew that Robyn had lost her job as a receptionist, where she worked for six years, in 2016.^[65] Robyn is also reliant on government income support, including the disability support pension, struggles with a suite of health issues, and is of extremely limited means, all of which the deceased would no doubt have been aware. Robyn began receiving the disability support pension in 2016, while the deceased was alive and while Robyn and the deceased remained in contact. Therefore, I consider that the deceased would have known, or ought to have known, that Robyn was unemployed from 2016 and reliant upon government income support.
155 It follows that, as an adult child, Robyn had a need for a grant of money to protect against the ordinary vicissitudes of life. Of course, Jannene’s needs also need to be counterbalanced against those of Robyn. Jannene’s material is that she is also of limited means, and that she does not have the capacity to work. In the absence of any documentary or other evidence to substantiate Jannene’s claims, it is difficult to ascertain the extent of her financial need. Nonetheless, Jannene’s uncontradicted evidence is that she also cared for the deceased, and bore the brunt of housing the deceased after she was re-diagnosed with cancer and moved to Melbourne in 2015. Further, I also consider that it is more likely than not that Jannene is also in need, owing to the circumstances of her being unrepresented and the nature of her evidence. As much was accepted by Robyn and Laurel. However, there is no reason why the deceased’s estate, which is estimated to be valued at $270,000, could not have accommodated both Robyn and Jannene.
156 In weighing up all of the relevant factors, a wise and just testator in the position of the deceased would have viewed it as her moral duty to make provision for the proper maintenance and support of Robyn. While Robyn’s relationship with the deceased was at times disharmonious and beset with conflict, this must be viewed through the prism of the deceased’s abusive conduct and parental failure. In circumstances where the Will leaves nothing of the estate for Robyn, it cannot be said that Robyn’s moral claim is outweighed by Jannene’s competing claim. As such, at the time of her death the deceased owed a moral duty to provide for Robyn.

Does the Will fail to make adequate provision for the proper maintenance and support of Robyn?

157 As the Property is the sole asset in the deceased’s estate, the Will fails to provide Robyn anything at all. Although the Will at the time of its making made provision for Robyn, by the time of the deceased’s death it did not because the only asset of the estate was the Property. The terms of the Will gifted the Property to Jannene, and there was no residue available to be divided between the four daughters. For reasons already outlined, including Robyn’s impecuniosity, health issues and non-existent prospects of employment, Robyn experiences economic insecurity and is very much a person in need. By failing to provide for Robyn, the Will fails to make adequate provision for the proper maintenance and support of Robyn.

What provision would provide for the proper maintenance and support of Robyn?

158 Counsel for Robyn has submitted that an order for provision of 50 percent of the net estate, being a figure of around $106,931.52, would be sufficient to provide Robyn with financial security. Laurel, an executor of the Will, considers that Robyn’s claim against the estate is a proper one, and is content to leave the question of quantum in the Court’s hands. Jannene did not make any submissions in this regard.
159 As outlined earlier, when deciding the amount of provision to be made by a family provision order, the Court must have regard to the factors set out in s 91(4) of the Act, as well as those in s 91A. Other relevant factors in the case of an adult child include a lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years; the need for financial security and a fund to protect against the ordinary vicissitudes of life; and an inability on the part of the applicant to earn an income, or where the claimant has a limited means of earning an income.^[66]
160 In terms of the degree to which a moral duty was owed by the deceased to provide for Robyn, Robyn’s scarce contact with the deceased in the years immediately prior to her death, and the sporadic nature of their contact through most of Robyn’s adult years, do not have the effect of nullifying the deceased’s moral duty to provide for Robyn. Further, the evidence is that Robyn is in a state of significant financial hardship, of which the deceased was aware at the time of her death, and that due to Robyn’s ongoing health issues she is unable to re-enter the workforce. Robyn has very little by way of financial reserves, with only a superannuation of $10,575 and a car that is roughly 15 years old to her name.
161 Having regard to all of the circumstances, I agree with Robyn’s Counsel that half of the net estate is appropriate. This figure will be sufficient to cater for any future and further ongoing ill-health issues, cover the shortfall in Robyn’s living expenses when her income insurance payment ends in 2028, and enable her to satisfy the $22,527.79 debt owed in respect of the bank loan. This sum will also provide Robyn with a small financial buffer by which she can meet any unexpected financial difficulties in the short term, and takes into account Jannene’s competing moral claim.

Conclusion

162 For the preceding reasons, it is in the interests of justice to grant an extension of time to Robyn to bring her claim be extended to 22 January 2020. It follows from the foregoing that, at the time of death, the deceased had a moral duty to provide for Robyn’s proper maintenance and support. The Will does not make adequate provision for Robyn’s proper maintenance and support. Therefore, the Court orders that provision be made for Robyn out of the estate of the deceased by the payment of 50 percent of the net proceeds of the estate pursuant to s 91 of the Act.
163 I will list this proceeding for 13 May 2022 for the purpose of making orders to give effect to this judgment, including as to costs. If the parties are able to reach an agreed position in respect of the orders to be made, then proposed consent orders can be submitted to my Chambers prior to that date for my consideration.

SCHEDULE OF PARTIES

^[1] Laurel became the second defendant after discontinuing her claim.

^[2] McMillan J made an order pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 on 27 October 2021 referring the Application to me for hearing and determination.

^[3] Transcript of Proceedings, Re Monument; Monument v Monument (Supreme Court of Victoria) S ECI 2020 00328, Matthews AsJ, 9 March 2022, (‘9 March Transcript’), T4.7-5.4.

^[4] 9 March Transcript, T5.23-24.

^[5] Re Winter-Cooke [2020] VSC 588 (‘Re Winter-Cooke’), [93].

^[6] [2019] VSCA 161 (‘Maher’).

^[7] Ibid, [63]-[66] (citations omitted).

^[8] Re Winter-Cooke, [94]; Re Winter-Cooke (No 2) [2021] VSC 806 (‘Re Winter-Cooke (No 2)’), [12]; McCann v Ward [2010] VSC 452, [11].

^[9] Laurel subsequently applied for a grant of probate, which was granted on 10 June 2021: Courtbook page 15.

^[10] For example, see Ansett v Moss [2007] VSCA 161, [13] (Buchanan and Redlich JJA, Cavanough AJA agreeing), where Buchanan JA took into account the Christmas vacation as a consideration in the context of the applicant’s explanation for the delay.

^[11] Maher, [64].

^[12] Section 90(f) of the Act contemplates that an application may be brought by a child (or stepchild) not referred to in s 90(b) or (c).

^[13] The Act, s 91(1).

^[14] Re Christu [2021] VSC 162 (‘Re Christu’), [6].

^[15] James v Rost; Lanagan v Rost [2022] VSC 98, [110].

^[16] Re Christu, [10] (citations omitted); see also Re Williams; Smith v Thwaites [2017] VSC 365 (‘Re Williams’), [15].

^[17] Re Christu, [11]; Re McKenzie [2017] VSC 792, [50]; Brimelow v Alampi  [2016] VSC 135 ; (2016) 50 VR 219 (‘Brimelow’), [15]; Katakouzinos v Katakouzinos [2019] VSC 3, [26]; Firth v Reeves [2019] VSC 357, [56]; Re Marsella; Marsella v Wareham [2018] VSC 312, [77].

^[18] Re Christu, [13]; Gabriele v Gabriele [2015] VSC 115, [56].

^[19] Re Janson; Gash v Ruzicka [2020] VSC 449 (‘Re Janson’), [11].

^[20] Re Christu, [17]-[19] (citations omitted).

^[21] Re Dodson; Dodson v Dodson [2019] VSC 833 (‘Re Dodson’), [19].

^[22] Ibid, [20]; Re Williams, [24]-[26].

^[23] Re Christu, at [15].

^[24] Ibid, [20]; Re Dodson, [15].

^[25] [2018] VSCA 51 (‘Davison’).

^[26] Ibid, [37]-[40] (Tate, Santamaria and Beach JJA).

^[27] Re Janson, [13].

^[28] Transcript of Proceedings, Re Monument; Monument v Monument (Supreme Court of Victoria) S ECI 2020 00328, Matthews AsJ, 30 November 2022 (‘November Transcript’), T32.13-14.

^[29] November Transcript, T43.5-15 (Robyn XN).

^[30] These matters are dealt with more fully later in this judgment.

^[31] November Transcript, T45.23-29 (Robyn XN).

^[32] Firth v Reeves [2019] VSC 357, [56].

^[33] Brimelow, [15].

^[34] Transcript of Proceedings, Re Monument; Monument v Monument (Supreme Court of Victoria) S ECI 2020 00328, Matthews AsJ, 28 March 2022 (‘28 March Transcript’), T27.30.

^[35] November Transcript, T37.7-27 (Robyn XN).

^[36] November Transcript, T38.13-27 (Robyn XN).

^[37] November Transcript, T44.13-21 (Robyn XN).

^[38] November Transcript, T42.20-25 (Robyn XN).

^[39] November Transcript, T42.20-28 and T44.3-17 (Robyn XN).

^[40] 28 March Transcript, T9.22-29 (Laurel XXN).

^[41] For example, see 28 March Transcript, T8.25-31 (Laurel XXN).

^[42] [2014] VSC 91 (‘Valentini’).

^[43] Ibid, [43].

^[44] Ibid, [48].

^[45] Unreported, Supreme Court of Victoria 22 November 1995 (‘Baird’).

^[46] Ibid, [10], [12].

^[47] Valentini, [51].

^[48] Ibid, [51].

^[49] Neville Affidavit, Exhibit TJN-1, p 7.

^[50] Affidavit of Laurel Joy Monument sworn 11 March 2022.

^[51] November Transcript, T46.18-25 (Robyn XN).

^[52] Madhanpall Affidavit, Exhibit NM-1, p 6.

^[53] Madhanpall Affidavit, Exhibit NM-1, p 5.

^[54] Madhanpall Affidavit, Exhibit NM-1, p 5.

^[55] For example, see 28 March Transcript, T9-26-27 (Laurel XXN).

^[56] 28 March Transcript, T12.11-20 (Laurel XXN).

^[57] 28 March Transcript, T12.25-13.3 (Laurel XXN).

^[58] November Transcript, T52.20-53.15 (Robyn XXN).

^[59] November Transcript, T57.29-58.3 (Robyn Re-XN).

^[60] November Transcript, T55.31-56.5 (Robyn XXN).

^[61] November Transcript, T56.5-57.3 (Robyn XXN).

^[62] November Transcript, T56.20-27; T57.4-10 (Robyn XXN).

^[63] Valentini, [51].

^[64] Re Christu, [143].

^[65] November Transcript, T43.26-44.6 (Robyn XXN).

^[66] Davison, [37]-[40] (Tate, Santamaria and Beach JJA).