Re Carn; Moerth v Moerth & Anor; Moerth v MacBean [2011] VSC 176 (4 March 2011)

Supreme Court of Victoria

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Re Carn; Moerth v Moerth & Anor; Moerth v MacBean [2011] VSC 176 (4 March 2011)

Last Updated: 2 May 2011

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

In the Matter of Part IV of the Administration and Probate Act 1958

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In the Matter of the Estate of Margaret Eileen Carn, deceased

S CI 2009 5569

PETER CHARLES MOERTH	Plaintiff
v
PAUL AUGUSTUS MOERTH AND ANNE MARGARET MacBEAN (who are sued as the Executors of the Estate of Margaret Eileen Carn, deceased)	Defendants

S CI 2010 4323

PAUL AUGUSTUS MOERTH	Plaintiff
v
ANNE M MacBEAN (Who is sued as one of the executor of the Estate of Margaret Eileen Carn, deceased)	Defendant

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JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 and 8 September 2010
DATE OF JUDGMENT:	4 March 2011 (Revised on 28 March 2011)
CASE MAY BE CITED AS:	Estate of Margaret Eileen Carn
MEDIUM NEUTRAL CITATION:	[2011] VSC 176

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ADMINISTRATION AND PROBATE – TESTATOR’S FAMIILY MAINTENANCE –- Application pursuant to section 91 of the Administration and Probate Act 1958 by adult son for provision refused – need for further provision not made out – application pursuant to section 91 of the Administration and Probate Act 1958 by adult son for provision granted – award of modest legacy as a “nest egg” – application pursuant to section 99 of the Administration and Probate Act 1958 for extension of time in which to bring application for further provision – application granted.

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APPEARANCES:	Counsel	Solicitors
In S CI 2009 5569
For the Plaintiff	Mr R Phillips	Callea Pearce Lawyers
For the Defendants	Mr P Barton	Buller Mcleod Lawyers
In S CI 2010 4323
For the Plaintiff	Ms C Sparke	Slater & Gordon
For the Defendant	Mr P Barton	Buller Mcleod Lawyers

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HIS HONOUR:

1 These proceedings involve applications by the sons of Margaret Eileen Carn (“Mrs Carn”), Peter and Paul Moerth, for provision out of Mrs Carn’s estate for maintenance and support under Part IV of the Administration and Probate Act 1958 (“the Act”). For reasons of convenience only, I refer to the respective plaintiffs by their first names.
2 Peter’s proceedings were commenced by originating motion filed on 19 March 2009. Paul’s proceeding was commenced on 10 August 2010.
3 Because probate of Mrs Carn’s will was granted on 26 November 2008, the six month period prescribed by s 99 of the Act expired on 26 May 2009. Paul’s application has accordingly been brought some 15 months out of time and he makes application for an extension of time in which to bring this application to 10 August 2010 under s 99 of the Act.
4 Mrs Carn died on 28 August 2008. She was survived by her two sons: Peter, born in April 1958 and Paul, born in June 1959. Mrs Carn was also survived by Peter’s children, Kirby, Kyle and Kasey Moerth (“the grandchildren”). The grandchildren are all aged in their twenties. Counsel representing the executors of the estate, Mr Philip Barton, indicated to the Court that the grandchildren had, in compliance with orders of this court, been given notice of their father’s application for provision from their grandmother’s estate and they supported his claim. This is significant, as the terms of Mrs Carn’s last will provided that their uncle, Paul, be awarded a life interest in a property at 36 Buckingham Street, North Richmond and upon his death that property is to be sold and the proceeds divided equally between them. It is the only significant asset of the estate and any award for further provision would potentially be detrimental to their interests.
5 Mrs Carn’s last will was made on 20 August 2008. It appointed Paul and Mrs Anne MacBean as executors and trustees. She left her jewellery and items of personal use to Paul to be distributed as he saw fit. Mrs Carn left her residuary estate to Peter, but, for practical purposes, there is no residue.
6 On 31 August 2010, Efthim AsJ made orders that the affidavits in Peter’s proceeding stand as evidence in Paul’s proceeding and vice versa. The two proceedings were heard together over a period of three days. The same set of orders directed that Paul’s application for an extension of time take place immediately prior to the hearing of Peter’s application.
7 Paul has no domestic partner or dependants. He lived with Mrs Carn at the Buckingham Street property until her death, and now resides there alone under the terms of the life interest given to him under the will. Although there has been no formal valuation of the property, counsel for the parties agreed that it is valued at approximately $750,000.
8 It will not be possible for the Buckingham Street property to be retained, which I regard as most unfortunate. Aside from the Buckingham Street property, the estate has no assets or funds to pay the costs of the proceeding and it will need to be sold to pay the estate’s costs. I asked counsel to provide me an estimate of the costs of all parties and I was dismayed to be told that they would total approximately $150,000 up to and including the trial of the proceeding.

The evidence

9 In Peter’s application the following affidavits have been filed:

(a) Peter Moerth sworn 8 July 2009;

(b) Lois Marie Birch sworn 24 July 2009;

(c) Paul Augustus Moerth sworn 2 November 2009;

(d) Peter Moerth (in reply) sworn 26 November 2009;

(e) Peter William Buller sworn 12 May 2010;

(f) Jill Spargo sworn 8 August 2010;

(g) David Osborne sworn 9 August 2010;

(h) Gwen Barnes sworn 13 August 2010;

(i) Tracey Francis sworn 3 September 2010; and

(j) Anne Margaret MacBean sworn 2 September 2010.

10 As mentioned below in paragraph 86, several of those affidavits were filed on behalf of the estate but they have little relevance to the application as it was run at trial.
11 In addition to the above affidavits, the following affidavits were filed in Paul’s application:

(a) Paul Augustus Moerth sworn 10 August 2010; and
(b) Peter Charles Moerth sworn 30 August 2010

12 Despite the amount expended in legal costs and the fact that the proceedings, being commenced by originating motion, were required to be conducted by affidavit, a significant proportion of the time taken by the trial was occupied by counsel for the respective plaintiffs adducing viva voce evidence in chief.

Factual background

13 Peter’s account of his and his brother’s involvement in family life prior to Mrs Carn’s death differs in certain respects from Paul’s version as revealed in his affidavit material. Nonetheless, much is not controversial and the differences in their accounts of the events and circumstances are, in the final result of peripheral relevance to my consideration of these matters, in particular the application of the statutory criteria prescribed by s 91(4) of the Act.
14 Mrs Carn was born in January 1931 and married Otto Moerth in 1957. Peter and Paul Moerth were born shortly afterwards.
15 In 1970 Otto Moerth deserted the family. Peter was 12 years of age at that time and Paul was 11. Each day, Mrs Carn worked at three cleaning jobs at AWA, Siemens Industries and Lufthansa to sustain the family. Otto Moerth did not pay maintenance. By the time that Mrs Carn and Otto Moerth separated, the property at 36 Buckingham Street had been purchased but there was a substantial mortgage securing a housing loan over the property.
16 In 1972, when Peter Moerth was 14 years of age, he left school and commenced employment at Rosella Foods in Richmond. Two years later, he undertook an apprenticeship as a butcher which he completed in 1978. From the time he obtained employment, he paid his mother board and assisted in paying household expenses as well as purchasing his own clothing and personal requirements.
17 In his affidavit of 8 July 2009, Peter details the difficult circumstances that Mrs Carn endured during this period trying to make ends meet. She led a humble and hardworking existence, was devoted to her family to the exclusion of all else and “did it hard”. All deponents agree that she loved both her sons equally.
18 The evidence reveals that Paul and Peter are very different personalities indeed. They have followed very different paths in life. Despite Peter stating that he loved his brother, it was evident that there is considerable animosity between them which has smouldered since they were young.
19 In September 1976 Mrs Carn remarried. Her second husband was Douglas Carn, a foreman at Rosella Foods who had been introduced by Mrs Carn’s sister, Catherine Lodge, referred to in the affidavits as “Auntie Cath”. The marriage was apparently a happy one and they remained together until Douglas Carn’s death. Peter said that he had a good relationship with Douglas Carn. Douglas Carn had three children from a previous marriage who moved into the home at Buckingham Street. The house was not large enough to accommodate everyone and Mr Carn's children moved out some months later.
20 In December 1976, Peter met Tracey Francis (“Tracey”). In 1979, Tracey moved into the house at Buckingham Street with Douglas Carn, Mrs Carn and Peter and Paul. Tracey worked in a secretarial position at Rosella Foods. Peter and Tracey lived in a bungalow at the rear of the house.
21 Peter states that while he and Douglas Carn were at work on Saturdays, Tracey and Mrs Carn would do the shopping and, on their return, clean the house and do the laundry. He states that at that time, Paul was either at the football or the cricket and that Douglas Carn was irritated by his lack of contribution to the household.
22 At some time in the late seventies or early eighties, Paul moved out to a flat in Burnley, taking out a six month lease. However, he moved back to the Buckingham Street house shortly afterwards as, according to Peter, he could not cope with living independently.
23 In 1983, Peter and Tracey bought a house at 33 Leslie Street, Richmond for $50,000, of which $35,000 was borrowed by way of a mortgage loan on the house. The grandchildren were born in 1984, 1987 and 1989.
24 Peter states that the grandchildren were very close to Mrs Carn, Douglas Carn and their great aunt, Catherine Lodge. They would often stay at Buckingham Street and Peter says that they were a source of great joy to Mr and Mrs Carn and Catherine Lodge.
25 Peter describes a close family life. The family would often gather for Sunday lunch at Buckingham Street, although Peter says that his brother Paul would simply collect his meal, retreat to his room and not participate.
26 Peter states that Christmas was a special time and, over a period of 20 years, a certain ritual would be followed, consisting of the opening of presents followed by Christmas lunch. On family occasions such as birthdays, Mother’s Day and Easter, similar celebrations would take place. However, Peter states that Paul would not participate, citing what Peter considered to be feeble excuses in order to avoid taking part.
27 Peter states that Mrs Carn became concerned about Paul’s state of health as he had become obese, but Paul rejected Mrs Carn’s attempts to address this issue.
28 Douglas Carn was made redundant at Rosella Foods when the factory was relocated and Mrs Carn was also laid off by Siemens. In 1991, they started their own cleaning business which they ran for several years.
29 The condition of the Buckingham Street house deteriorated over time and required significant maintenance which was beyond Mr and Mrs Carn’s means. In 1995, Peter sought to address this situation by arranging for the subdivision of the property at Buckingham Street and erecting two town houses, one of which would be kept by Mrs Carn, and the other going to Peter. During the construction period, Mr and Mrs Carn moved in with Peter and his family at their property at Leslie Street, Richmond and Paul resided at Catherine Lodge’s home.
30 Because there were seven people living at the Leslie Street home, relationships became strained and after two months it was decided that Mr and Mrs Carn should rent a home for the remainder of the construction period. Peter arranged a rental property across the road from them in Leslie Street and paid the $1,250 monthly rental until they could move into the new unit.
31 The construction of the two town houses was completed in 1996 at a cost of approximately $180,000. Peter undertook the liability of the costs of construction of the units. There was an objection to the granting of the permit for the development by an adjoining neighbour and this was the subject of a costly application in VCAT. Peter states that Paul made no monetary or practical contribution at all to the construction of the town houses.
32 When the construction of the units was complete, Paul moved back in with Mr and Mrs Carn to their unit. Peter deposed that Mr Carn was not pleased with this arrangement, as he continued to be frustrated with Paul’s lack of contribution around the home.
33 At about this time, Douglas Carn developed pancreatic cancer and was no longer able to work. Peter stated that Tracey stepped in and assisted Mrs Carn in the cleaning business, often undertaking work by herself as Mrs Carn had to attend to Douglas Carn during his illness. She was not paid for this. Peter says that during this period Paul found excuses not to assist. Rather, when he was not at work, he occupied himself with cricket, football and other recreational activities.
34 Mr Carn passed away in 1997. Mrs Carn was not able to cope financially without the joint pension which they had previously received. Some financial assistance was obtained by looking after a dog belonging to Mrs Helen Croll, for which she was paid $200 a week.
35 In March 2004, Catherine Lodge died, leaving a will which provided that her estate be divided between Paul, Tracey and Peter in equal shares. The major asset of the estate was a flat at 151 Buckingham Street, Richmond. Tracey and Peter bought out Paul’s interest for $58,000 and took over ownership of the property. They still own that property today.
36 Peter states that he counselled Paul to use the money to invest in a property but this advice was ignored. Instead he purchased a new car for $18,000 and went on an overseas holiday to Canada and Alaska. He states that on his return from overseas, Paul had little money remaining from his share of his aunt’s estate. For his part, Paul says that this was not the case and a significant amount of that inheritance remained.
37 Peter says that during this period, Paul was in full time paid employment but made no significant contribution to the expenses of running the home. He states that Paul has not been able to accumulate any significant assets or savings which he regarded as surprising in light of the fact that he had no financial obligations or responsibilities during this time. Peter is not able to state how Paul has spent the money that he has earned, although he says that Paul has a large collection of CDs and DVDs.
38 Paul continued to live at the home in Buckingham Street throughout the period leading up to his mother’s death. His mother would cook, clean and care for him. Peter states that Paul’s failure to contribute to the household was the source of tension but Paul takes issue with this and details his contribution in his evidence.
39 Peter says that when his mother was in financial difficulties she would approach him for assistance. On one occasion he purchased a new dishwasher for her although Paul, who knew of her problem, declined to contribute, stating that he had no money. He also states that Paul, despite living with his mother, never offered to drive her to medical appointments or to the supermarket. Again, Paul takes issue with that allegation.
40 In April 2008, Mrs Carn had a fall and she was admitted into the Epworth Hospital. Tests conducted on her in the course of her treatment revealed that she had secondary cancer in her bones, with the primary site of the cancer being her lungs.
41 In July 2008, Mrs Carn travelled to Sydney to celebrate the 50th birthday of her stepdaughter. The flight to Sydney was paid for by the stepdaughter and her husband. While on that trip she suffered a decline and had to be admitted to Westmead Hospital. Because she had been taking incorrect dosages of her medication that had been prescribed, she was apparently incoherent. The doctors treating her in Sydney advised her that she would have to stay in hospital for approximately three months. Peter says that he stated to his brother that he was prepared to travel to Sydney every weekend to visit his mother but Paul declined to join him, stating that he was not able to afford to do this. Peter states that he offered to pay for Paul to fly to Sydney but Paul responded that he was too busy on weekends with his other obligations to make this commitment.
42 In late August 2008, Mrs Carn’s doctors advised that she could be released and allowed to return to Melbourne. Peter flew to Sydney to assist his mother to return. He states that Paul again declined to also attend, despite an offer by Peter to pay his fare, stating that he had commitments to perform at the football club. Peter states that upon their return to Melbourne, he requested Paul to pick them up at the airport, however, he declined to do so, again stating that he was busy at the football club. Peter’s daughter Kirby collected them and drove them home. Peter says that by that stage, Mrs Carn was very disoriented and distressed.
43 After she came back from Sydney, Mrs Carn was only able to stay at home for a further three days before she was hospitalised again. She died on 28 August 2008. Peter states that Paul was not able to pay for the funeral and he paid for it.
44 Peter states it was only after Mrs Carn’s death that he was informed by Paul that his mother had made a will which provided that Paul receive a life interest in the Buckingham Street property. Her previous will had provided that all her property go to Paul and Peter as tenants in common in equal shares.

Peter’s financial position

45 Peter is 52 years of age and currently works as a builder’s labourer. He and Tracey own 33 Leslie Street, Richmond, which is valued at approximately $1,000,000. The property is heavily encumbered by mortgages which secure loan obligations to the Rock Building Society Limited and Westpac. In addition, they own the flat at 151 Buckingham Street which is valued at $400,000 and is subject to a mortgage of $210,000.
46 No doubt because the evidence in regard to Peter’s financial position was so scant in his principal affidavit, a good deal of extra evidence in this regard was adduced by oral examination in chief. In that evidence, Peter deposed that Tracey works at Middletons Lawyers and presently grosses $58,433 per year, for which she pays income tax of $12,280. In the course of her cross-examination, Tracey gave evidence that she had superannuation of approximately $10,000. She also has a loan with Westpac for $30,000 which she took out in order to get painting and other work done around the house.
47 For the financial year ended 30 June 2010, Peter grossed $56,569. Of that sum, he earned net rental after deduction of expenses of $1,482 from the unit at 151 Buckingham Street on a gross rental of $17,600 per year. He has superannuation of approximately $91,000 with CBus, the superannuation fund for the construction and building industry . He also controls a discretionary trust known as the Triple K Family Trust administered by a corporate trustee, Opmit Pty Ltd. The trust owns a property at 81 Gold Street, Collingwood valued at approximately $500,000 for which it derived net rental of $20,614 on a gross rental of $22,700 per annum. The most recent financial statements available for the trust state that it has assets of $677,000 and liabilities of $697,000.
48 The development of the Gold Street property did not proceed as planned. It was opposed and hearings took place at VCAT over two years. The builder engaged in respect of the construction became insolvent. To compound the situation, the property was damaged by fire, apparently caused by improperly installed insulation. Peter retains Gold Street which is, as I have said, rented out. In addition, other properties were purchased but they were not developed successfully. A property at 160 Noone Street, Clifton Hill was sold as was a property at Alexander Street, in Collingwood. It would be fair to say that Peter’s involvement in property development ventures has not been very successful.
49 The unit which Peter obtained as a result of the subdivision at Buckingham Street was sold for $481,000 in May 2005. The mortgage statements for Opmit Pty Ltd with the Rock Building Society Ltd state that, as at March 2010, there were several interest only loans totalling approximately $490,000. In addition, there are loans with Westpac of $630,000. The Westpac and Rock Building Society loans were taken out because of Peter’s involvement in property development. Those liabilities are guaranteed by him. The ventures ran into difficulties. For various reasons, the properties were not able to be let for two years and remained vacant. Litigation took place in VCAT in relation to the polished concrete floors at that development.
50 The total indebtedness of Peter, Tracey and Opmit Pty Ltd is presently in the order of $1,150,000. They have monthly interest liabilities of $7,100, approximately $86,000 per year. Approximately half this sum is tax deductible. While having significant assets, they have very substantial liabilities, especially when one has regard to their income.
51 In cross-examination by Ms Sparke, who appeared for Paul, Peter agreed that his and Tracey’s combined income is $155,000 a year and that his net asset position would be of the order of $800,000 to $900,000. He says that he never told his mother of his financial liabilities. He drives a 2006 Jeep and Tracey drives a 2002 Volvo. The Volvo has apparently recently been vandalised and is not expected to have any net value after payout of the finance contract on it. The vehicles are registered in the name of Opmit Pty Ltd.
52 Peter stated that he has held on to the investment properties and continued servicing the loans so as to be able to leave those properties to his three children. He stated that he would sell everything else in order to retain the property at 36 Buckingham Street and that he would find his way through to do this somehow. Peter agreed that his desired outcome from this litigation is to get either property or money to enable him to continue servicing the loans on his property portfolio in order that he will ultimately be able to leave them to his children. He stated that his family has been in Richmond for 80 years, that his grandfather was the local blacksmith and that there was a strong connection with the suburb. He says that the difficulty which the award of the life interest to his brother presents is that he cannot use that property as security.
53 Further, he says that because of the absence in the will of any provision for him, he considers that there has been no recognition by his mother for his contribution to her welfare. He says that this is not fair.
54 He agreed that the primary reason for bringing his proceeding was to redress this unfairness. He considers that Paul does not need to have a three bedroom house in Richmond, rather he could have an apartment or a one bedroom unit. As to his brother’s involvement in local sporting activities, he did not accept that Paul needed to continue to live in Richmond to maintain this. He stated that he passes by the Buckingham Street property very regularly. By reason of noticing which lights are burning, he says he is able to say that his brother stays in the same room of the house every night.
55 It is obvious that Peter is greatly aggrieved by the operation of his mother’s will. He considers that his financial needs have not been met, nor has his contribution been recognised.
56 He was cross-examined on the development of the property at Buckingham Street. He stated that he paid his mother nothing for the land, rather he undertook the liability for the development of the property, leaving her title free of encumbrances.
57 When asked to detail his grievance, Peter stated that Paul was being rewarded under the will for having done nothing all his life while he has been penalised for getting married, buying a house and raising three children. In addition, he states that Paul did very little for his late mother.
58 The cross-examination then moved on to exploration of supposed tensions between members of the family including those between Tracey and Mrs Carn. I do not consider that anything which emerged in respect of those matters has anything but the most incidental relevance to this application.
59 Peter Moerth presented to me as an honest and truthful witness who was genuinely aggrieved by the terms of his mother’s will.
60 In her affidavit, Tracey essentially confirms the matters deposed to by her husband. She describes her involvement in family life at Buckingham Street, including the Saturday routine of market shopping and cleaning. She describes a close relationship with Mrs Carn. After her children were born they would typically be looked after by Catherine Lodge in the morning and by Mrs Carn in the afternoon. She states that her children maintained close contact with Mrs Carn prior to her illness. Tracey then describes a fall off in contact which arose because of the involvement of a Mrs Helen Croll in Mrs Carn’s day to day life. She states that she asked Mrs Carn why Mrs Croll had differences with Catherine Lodge and Mrs Carn responded that she was reluctant to get involved in such differences as Mrs Croll was paying her $200 per week to look after her dog and she did not want to jeopardise that source of income. Tracey decided not to visit Mrs Carn if Helen Croll’s car was parked out the front of the Buckingham Street house.
61 Tracey states that after Douglas Carn’s death, Mrs Carn would celebrate Christmas Day by visiting her sister-in-law, Helen Croll and Peter’s family. Mrs Carn would still come to the house on Christmas morning to exchange gifts even if she did not have Christmas dinner with Peter’s family. She said that, before Mrs Carn became ill, Peter would visit his mother every two to three weeks but, after her illness was diagnosed, he would visit her three or four times a week. When Mrs Carn was in hospital, Tracey states that Peter would visit her every day. Tracey denies that she was not prepared to assist Mrs Carn. Rather, it was the case that after Mrs Croll came on the scene, she came to rely on her more and did not seek Tracey’s assistance. Tracey states that she was always happy to assist her mother in law if she needed her, as she had done in the 30 years prior to Mrs Croll becoming involved.
62 Tracey was cross-examined by counsel for Paul. I do not consider that Tracey’s evidence in regard to her relationship with her mother-in-law revealed anything other than an unremarkable but close one which was subject to the tensions and the ordinary ebb and flow of relationships that are typical within a family.

Paul’s Application

63 Paul swore an affidavit in opposition to Peter’s application and an affidavit in support of his own application. His affidavit of 2 November 2009 is in response to Peter’s affidavit in support of his application of 8 July 2009. The affidavit reads something like a pleading, referring to matters raised in Peter’s affidavit with which Paul takes issue.
64 While the affidavit paints a different picture of family life in some respects to that depicted by Peter and his wife, the issues raised are, in the final result, of somewhat little moment in the application by me of the statutory criteria imposed by section 91 of the Administration and Probate Act.
65 As to the allegation that Paul had made no contribution to the construction costs when the property was subdivided, Paul said that he considered that this was a financial arrangement between Peter, Mrs Carn and Douglas Carn and he had no knowledge of it. He says that he was not asked to contribute nor did anyone voice any concerns about his failure to do so. In response to the allegation that his failure to assist around the home was a source of tension for Mr Carn, he states that Mr Carn never asked him to contribute to the general maintenance around the property but they “spent time together building boxes to store equipment for the cricket club”. Paul states that he did assist in the running of the cleaning business and all members of the family took turns to prepare dinner with the load being evenly shared.
66 In response to Peter’s evidence in his affidavit concerning the birth of his children, Paul makes what I consider to be the mischievous and irrelevant revelation of Tracey’s prosecution for welfare fraud over 20 years ago, which reflects no credit on him. I consider that it betrays malevolence on his part. It can only have the effect of inflaming family tensions and opening up matters which are long in the past.
67 Paul says that when he was retrenched at Siemens, he advanced three years rent to Mrs Carn, presumably from the retrenchment payment. Paul states that from his share in Catherine Lodge’s estate, he purchased a new car and travelled to Canada. When he returned from Canada, he still had approximately $20,000 in his bank account which he used to purchase various household items including a leather couch, carpets and other items. He details the various appliances and furniture which he says that he purchased for the household over the years.
68 Paul’s employment since leaving school has been in clerical administration. His first position was with Siemens from June 1978 to September 1987, then part time work for a short time at the Titles Office in March 1988 and, from September 1988, he worked full time with the Federated Clerks Union. The Federated Clerks Union became the Australian Services Union in the early 1990s. He says he elected to leave that employment in August 2008 to provide full time care for his mother because of her ill health. He stated that Peter took the view that unless a job involved manual labour, it could not be tiring and stressful and he never understood that he worked hard and was entitled to relax at home when he had free time.
69 He criticises his brother Peter for only visiting his mother every four or five weeks in the last several years of her life. His evidence as to the frequency of those visits is at variance with Peter and Tracey’s testimony in that regard. He states that on the occasions that he called by, his mother was upset afterwards and indicated that she wished that Peter would not visit.
70 Paul agrees that Peter purchased a new dishwasher for his mother but he was not consulted or asked to contribute. He states that he contributed cash to cover the costs of everyday living or for special occasions but it was difficult because finances were always a struggle. He describes various expenses that he met, including those relating to his mother’s dogs. He describes, in much the same way that Mrs MacBean later did, the visits by his mother to Victoria Gardens shopping centre. Paul states that his mother was continually upset by Peter’s disinterest in visiting her or in contacting her in the last four years of her life. He states that Peter did not visit his mother for her birthday, Mother’s Day, Easter or other significant holidays. When Peter did visit it would only be briefly.
71 In his affidavit, he details the numerous matters with which he takes issue with in Peter’s evidence in regard to Paul’s contribution to his mother’s welfare but it is not possible or useful in my view to resolve whose version of events and matters is closer to the truth.

Paul’s financial position

72 In conclusion, Paul outlines his financial position. He is on a New Start allowance of $225 a week. He owns a 2000 Ford Laser valued at approximately $5,000. He has savings of approximately $3,000 left over from his leave and redundancy payout. He states that he has little savings as he always paid for everything his mother wanted. He does have a large DVD collection but he states that this is his one passion in life and he rarely pays full price for them in any event. He states that since leaving the Australian Services Union he has been actively looking for work but has not been successful.

Paul’s application for an extension of time to bring the application

73 In his affidavit of 10 August 2010, which he has sworn in support of his own application for further provision, he states that his reason for not making the claim within the prescribed period is that he had hoped that in the course of his brother’s proceeding that an agreement could be reached between them which would deal with the position of his claim and his own future. Paul states that he hoped that it would be possible to avoid the extra cost of issuing his own proceeding. He contends that there is no prejudice suffered by any party by reason of the making of his application outside of the time prescribed by the Act. This is because the estate essentially consists of the property at Buckingham Street which is still retained by it.
74 In Peter’s affidavit of 30 August 2010, he details the procedural events which have taken place in his application, seeking to highlight the failure by Paul to bring his application earlier, despite an apparent awareness of the progress of Peter’s application to trial.
75 The only reason given in Paul’s evidence for not bringing the application earlier was to avoid the costs of doing so until after it was apparent that the matter would not settle at mediation.
76 Mr Barton, counsel for the estate, did not, other than faintly, take any position against the application being made out of time. In cross-examination of Paul, Mr Phillips first dealt with that issue. While Mr Phillips cross-examined on this subject, the zenith of what he adduced seemed to amount to Paul only making the application after the failure of the mediation and in reaction to his brother’s claim.
77 The remainder of Paul’s affidavit of 10 August 2010 for the large part repeats matters previously raised, provides further detail or deals with uncontroversial or inconsequential matters. What is clear is that the two brothers have very different personalities and outlooks indeed. I shall return to this subject below as it is of relevance to my consideration of this matter.
78 Peter filed an affidavit sworn 26 November 2009 in reply to Paul’s affidavit of 2 November 2009. It is a continuation of the belligerent and acrimonious exchange contained in the earlier material. Peter’s antipathy to Paul is palpable. He vehemently takes issue with much of Paul’s version of events, in particular Paul’s evidence in regard to his own contribution to the household.
79 Oral evidence was adduced from Paul in chief and he was cross-examined. He described his attempts to obtain new employment but it seemed clear to me that a person of his age and qualifications will find it very difficult to obtain a new position. He has superannuation as of December 2009 of approximately $152,000, which he is not able to access until he turns 55 in several years’ time. As of 16 November 2009, he had savings of approximately $7,000. He has no liabilities, other than the usual recurring ones for utilities and rates. He discharged certain expenses of the estate for which he has not yet been reimbursed.
80 As to his health, he states that he suffers from asthma but he does not use an inhaler. He states that he has no particular health issues but he has been on blood pressure medication for several years. From my observations of him in the witness box, he is clearly carrying too much weight and would be subject to all the medical risks associated with that condition. He was asked about his dog and he confirms that it is a small active dog which requires a yard.
81 I observed to the parties that it was clear that the house in Buckingham Street would have to be sold but I had no evidence as to the cost of alternative accommodation for Paul. It seems that there is agreement that with the gentrification of the area, no houses will be found in Richmond for less than $600,000. One bedroom apartments appear to cost between $300,000 and $400,000. The position is not greatly different in nearby suburbs such as Clifton Hill, Fitzroy and Collingwood.
82 Paul said that he required a two-bedroom residence, one being used for sleeping quarters. He says that he required the other bedroom for use as a study where he can carry out his work in connection with his responsibilities as historian of the cricket club. He also stated that he needed somewhere to store his music and DVD collection. He has approximately 400 vinyl records, 300 CDs and some 300 DVDs.
83 Paul stated that he had very limited knowledge of Peter’s affairs. He said that he had worked for 32 years and, apart from superannuation, a motor car and some money in the bank he had accumulated no assets and had spent everything he had earned.
84 Paul was cross-examined as to the circumstances of his leaving the Australian Services Union. He stated that at or about the time he left, an allegation had been made against him of an invasion of privacy and he was told to take a month’s leave and was given a date when he was told to return to work. Before that date, his mother had become incapacitated as a result of her fall and he decided to look after her. He states that he was not asked at any stage to resign from his employment.
85 Mr Phillips then moved on to the subject of the need for Paul to continue to live in Richmond. In response to this line of questioning, Paul stated that his entire life had been spent in Richmond and all his social and sporting connections were with that suburb. He agreed that he is able to drive a vehicle and could travel to the suburb. He stated that he is involved in the Burnley Senior Citizens Cricket Club where he is occupied three days a week. He says that he is responsible for the compilation of statistics and is the historian of the club. He also follows the Richmond Football Club on a weekly basis and goes to every game. Finally, he agreed with Mr Phillips that despite the difference in their personalities, their mother loved both of them.

The Executors’ Evidence

86 Mr Barton of counsel, who appeared on behalf of the executors, made very brief submissions at the conclusion of the second day of hearing and withdrew in order to save costs. His client had filed several affidavits being:

(a) Lois Birch sworn 24 July 2009;

(b) Anne MacBean sworn 2 November 2009;

(c) Peter Buller sworn 12 May 2010;

(d) Gwen Barnes sworn 13 August 2010;

(e) David Osborne sworn 9 August 2010; and

(f) Jill Spargo sworn 8 August 2010.

Save for Mrs MacBean's affidavit, those affidavits dealt with matters which were of peripheral relevance to the issues which ultimately emerged at trial. It included medical evidence as to Mrs Carn’s capacity and the circumstances of the making of the final will, which matters were not pursued at trial. Mr Barton made no submissions in regard to the merits of the respective claims. He confirmed, as I have said, that the grandchildren had indicated to him personally that they supported their father’s claim. He indicated that there was nothing remarkable about the grandchildren’s health or circumstances.
87 In her written and oral evidence, it was evident that Mrs MacBean was much more favourably inclined to Paul’s interests than his brother Peter’s. Mrs MacBean lived at 27 Buckingham Street, near to Mr and Mrs Carn at 36 Buckingham Street. They became close friends. She states that Mrs Carn loved both her sons and her grandchildren. She states that in the last few years of her life, her grandchildren did not visit her very often. Mrs MacBean deposed that in her conversations with Mrs Carn, Mrs Carn described her sadness arising from the deterioration in the relationship between her, Peter’s family and her sister Catherine Lodge. She put down the reason for this deterioration as being the underlying tension between her and her sister Catherine Lodge. She says that in latter years, while some major events throughout the year were still celebrated such as Christmas and the grandchildren’s birthdays, Peter did not acknowledge Mother’s Day and on occasion forgot Mrs Carn’s birthday. After a time, Mrs Carn made up excuses to avoid attending such events and fabricated excuses so that she could celebrate such events with friends and other relatives instead. She states that in the last two years of Mrs Carn’s life, Peter only visited her every four to six weeks and Tracey did not visit her at all. She described a somewhat different scenario to that deposed to by Peter and Tracey in respect of the shopping. That is perhaps explicable in terms of it referring to a different timeframe. She speaks of Paul assisting in this regard in that he would drive Catherine Lodge and Mrs Carn to and from the market.
88 Mrs MacBean states that Paul always paid board and that he made mortgage payments. She described Paul as being very generous. He bought capital household items such as lounge suites, drapes for the loungeroom and a new washing machine. He contributed to the cost of the weekly cleaner and would pay off his mother’s lay-by accounts. On occasion, he would pay for her to take trips and attend the cinema with a friend. She describes Paul attending to such tasks as putting out the rubbish bins and bringing in the washing.
89 Mrs MacBean states that before Mrs Carn died, they talked at length about her death. She states that Mrs Carn had great concerns for Paul’s welfare and the need to provide for him until his death. She said that Peter had received his inheritance from being given half of No. 36 and selling it for a significant capital sum.
90 Ms Sparke cross-examined Mrs MacBean. In that exercise, she had the advantage that Mrs MacBean clearly was more favourably disposed to her client. She described occasions where she witnessed acts of generosity on the part of Paul to his mother such as the purchase of theatre tickets, paying for items which she had put on lay-buy and occasions where she saw him physically handing over money to his mother. She confirmed that Paul purchased capital items for the house such as drapes, electrical appliances and a lounge suite.
91 Mrs MacBean described the close relationship that Paul has with the small dog. She stated that she did not think that Paul could survive without the dog because of the emotional attachment to it, as it was Mrs Carn’s dog. In addition, the dog gave Paul something else to look after apart from himself. It was an active dog which would run around the house and in the small yard at the back of the house.
92 Paul would seek advice from her after he had an approach from Peter to discuss matters. She stated that Mrs Carn would do her main shopping at Victoria Gardens shopping centre in Richmond and he would drop her off in the morning. Mrs Carn would have lunch at the shopping centre and had a number of acquaintances there. For her it was a social outing.
93 Mrs MacBean was asked about Peter’s relationship with his mother and as to whether they had a “pleasant and friendly” relationship, and she responded that they did not. She confirmed the matters referred to in her affidavit concerning Mrs Carn’s reluctance to become involved in Christmas celebrations with Peter’s family. Ultimately, Mrs MacBean says Mrs Carn concocted elaborate schemes and spent Christmases with friends rather than involve herself in family celebrations.
94 Mr Phillips also cross-examined Mrs MacBean. She stated that Mrs Carn would have been aware of Peter’s difficulties in relation to the property developments he was involved in. She agreed with the suggestion that the tensions between Mrs Carn and her sister Catherine Lodge affected relationships between Mrs Carn and Peter. She also agreed that the involvement of Mrs Croll with Mrs Carn caused problems between Mrs Carn and her sister. Before Catherine Lodge died, Tracey would visit Mrs Carn at least weekly. After Mrs Lodge’s death, those visits petered out. While she agreed that she did not observe the comings and goings of the household 24 hours a day, she said that Mrs Carn would discuss Peter and Tracey’s visits with her after they had occurred.

Summary of submissions made on behalf of Peter

95 Mr Phillips contends that a wise and just mother in Mrs Carn’s position, viewing everything at the date of her death, would have provided for her two sons. He submitted, and I do not consider that it is in issue, that she loved her sons equally and unconditionally. He submitted that while Paul has a financial need and there is a requirement to provide him with a roof over his head, Mrs Carn should not have ignored Peter. Mr Phillips described Peter as having a “very compelling financial need”. He submits that Mrs Carn should have provided Peter with a legacy of $300,000 which would have left sufficient to provide Paul with a life interest in a sufficient sum to find alternative accommodation.
96 Mr Phillips submitted that parents who love their children equally ought not to discriminate between them when it comes to making their will. He put the position as high as that it was immoral for them to do so. Mr Phillips said that while Mrs Carn was entitled to consider that Paul was deserving of better than equal treatment, this could not be completely at the expense of Peter. He says that as difficult as it was for Mrs Carn, as it is for the Court, Mrs Carn as a just and wise mother had an obligation to provide for Peter. He says that the fact that in the event of Paul’s death the remainder interest in the property passes to Peter’s children indicates that she has not properly considered her testamentary obligations in a just and wise way. He posited the question “if Paul Moerth died a short time after Mrs Carn, why should Peter miss out on an inheritance?” Mr Phillips says that after the legacy of $300,000 is paid to Peter, this would enable Mrs Carn to achieve her wishes, as a life interest in the remainder of the estate of approximately $350,000 would provide Paul with accommodation for the rest of his life.
97 I disagree with Mr Phillips’ submissions. In my view they ignore the scheme, case law and underlying policy of the family provision legislation. I consider that the need to make provision for Paul with a roof over his head and a small legacy overwhelms Peter’s claim. There is just not enough “room to move”; the estate will be consumed by the need to make provision for Paul, which I consider was Mrs Carn’s primary duty and responsibility as testator. Moreover, I consider that Peter has not in any event demonstrated that he has a need in the context of passing the jurisdictional threshold of the Act.

Summary of submissions made on behalf of Paul Moerth

98 As to the application for an extension to bring Paul Moerth’s application out of time, Ms Sparke referred to the recent authorities on this issue, including the decisions of Gillard J in Groser v Equity Trustees[1] and Robson J in Sheppard v Heathcote (No. 3).[2]
99 Section 99 of the Administration and Probate Act 1958 provides:

No application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be): provided that the time for making an application may be extended for a further period by the Court after hearing such of the parties affected as the Court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon.

100 It is common ground that the only asset of the estate for practical purposes is the house at Buckingham Street which is presently retained by the estate. As such, Paul’s application for extension has been made before the final distribution of the estate as the section requires.
101 In Sheppard v Heathcote (No. 3), Robson J summarised the relevant criteria to be brought to bear in considering applications under s 99. He stated at [15] (citations omitted):

The authorities on s 99 and its predecessor make several points clear:

(a) The Court has the discretion of s 99 to extend the time in which the plaintiff may make a TFM application.
(b) There are no statutory criteria that must be taken into account.
(c) The plaintiff is seeking an indulgence from the statutory time limit and thus the onus is on the plaintiff to show the reason for the exercise of the discretion to extend time.
(d) The plaintiff should satisfy the Court that it would be unjust to penalise the plaintiff for being out of time.
(e) The discretion to extend time will not be exercised if the plaintiff’s TFM case is hopeless. The strength of [the applicant’s] case is a relevant consideration.
(f) The reason for any delay in making the application is relevant consideration.
(g) Prejudice to other interested parties is a weighty factor.
(h) Justice is the guiding factor.

In my view, if the plaintiff has a prima facie case, it is relevant to consider whether or not the prejudice caused to others by the delay in making the application or where other actions and omissions no longer make it unjust for her to be penalised for being out of time. In Re Guskett, Herring CJ said:
Every case will have to be dealt with on its own facts, but it would seem necessary for the application to satisfy the Court that the circumstances are such to make it unjust for him to be penalised for being out of time.

102 At the end of the day, applications for extensions of time under s 99 are to be determined on what the authorities describe as the justice of the case. This involves a consideration of the consequences of Paul being prevented from bringing his claim as against the prejudice which would flow to other persons interested in the administration of the estate. Ms Sparke submitted that Paul has a good prima facie case to make and he should be allowed as a matter of justice to make it.
103 The bases of his arguable claim are said to be his longstanding residence in his mother’s home, his longstanding mutual financial dependence on Mrs Carn by the paying of board and the paying of bills, his payment of her expenses from time to time, his inability to have provided or in the future to provide a home of his own and his inability to have built up a nest egg of his own for the future.
104 Ms Sparke, describing her client colloquially, says that the “wise and just testatrix, looking at her ‘lame duck’ son ought to have provided not just the roof over his head, but some option to release capital for contingencies such as the replacement of a car, provision for health care or even some of the modest niceties of life.”
105 Ms Sparke submitted that neither the estate nor Peter is in any way prejudiced by the late bringing of the application and that the late bringing of the application has “in a sense liberated the Court to do what it likes”.
106 In response, Mr Phillips submitted that Paul had sat on his rights in respect to bringing the application but he was not able to point to any prejudice to the estate or his client. When asked what prejudice there was, Mr Phillips stated that the Court has now got two claims to deal with instead of one. I do consider that to be relevant prejudice in this context. Mr Phillips was not able to contend that his client had been taken by surprise in the bringing of the application and the application by Paul was relatively seamlessly incorporated into the running of Peter’s application.
107 Applying the criteria summarised by Robson J, a consideration of the relevant factors in these circumstances results in my view in there being an exercise of the discretion in favour of allowing Paul to bring his claim. The reason proffered for not bringing the claim was an expectation that the dispute which had arisen in respect of his mother’s estate would be resolved at mediation, obviating the necessity for him to bring a separate claim. It was said that it was expected that, in negotiating a resolution at the mediation, that would include consideration and provision for his own circumstances which would have made a separate application unnecessary. The primary reason stated for not bringing the application earlier was to save costs and I would assume that he was acting on legal advice in that regard.
108 I do not consider Paul’s claim to be hopeless. The assessment of this element is, of course, the very subject of the substantive application itself and as will be seen, I consider he has a claim for further provision. There is, as I have said, no prejudice to other interested parties of the relevant kind.
109 In my view, it is appropriate to make an order under s 99 of the Administration and Probate Act extending time so as to allow Paul to bring his application on 10 August 2010.

Summary of Paul’s submissions in relation to Peter’s claim

110 In resisting Peter’s claim, Ms Sparke submitted first, that the claim was not one based primarily on Peter’s needs, rather it is driven by a sense of grievance, injustice, unfairness and a desire for Peter to benefit his children. Secondly, Ms Sparke contended there was a real question as to whether Peter has a financial need by which I understood her as contending that he had not passed the so called jurisdictional threshold. Peter’s net asset position of approximately $900,000 is greater, she submitted, than the value of the estate itself and his mother did not have the relevant obligation to make provision for him when he was already wealthier than her in net terms. This was in the context of the competing claim of her other son Paul, who had nothing in terms of accommodation and very little assets. She pressed for an award of a nest egg to Paul and retention of the life interest in a home.

Legislation and legal principles

111 Section 91 of the Act 1958 provides:

91. Power of the Court to make maintenance order

(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

(2) The Court must not make an order under subsection (1) in favour of a person unless-
(a) that person has applied for the order; or
(b) another person has applied for the order on behalf of that person.
(3) The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by-
(a) his or her will (if any); or
(b) the operation of the provisions of Part I, Division 6; or
(c) both the will and the operation of the provisions-

does not make adequate provision for the proper maintenance and support of the person.

(4) The Court in determining-
(a) whether or not the deceased had responsibility to make provision for a person; and
(b) whether or not the distribution of the estate of the deceased person as effected by-
(i) the deceased's will; or
(ii) the operation of the provisions of Part I, Division 6; or
(iii) both the will and the operation of the provisions- makes adequate provision for the proper maintenance and support of the person; and
(c) the amount of provision (if any) which the Court may order for the person; and
(d) any other matter related to an application for an order under subsection (1)-

must have regard to-

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant.

112 In McKenzie v Topp,[3] Nettle J (as he then was) described the approach to be taken in applications under Part IV of the Act. He stated at [15]:

Jurisdiction to make an order under Part IV of the Administration and Probate Act 1958 is dependent upon being satisfied that the deceased had responsibility to make provision for the plaintiff[4] and also upon being satisfied that the will does not make adequate provision for the proper maintenance and support of the plaintiff[5]. Each condition invokes consideration of the question of what is the provision that a wise and just [mother] would have thought it her moral duty to make in the interests of her [son] had she been fully aware of all the relevant circumstances[6]. That question is to be answered as at the date of death[7] according to the standards of a wise and just testatrix – or, in other words, according to the standards of a fair and reasonable woman in the community[8] - and in answering the question the court is bound to have regard to the factors adumbrated in s. 91(4)(e) to (o), as well as to any other matter that the court considers relevant...
And at [63]...
Section 91 of the Act confers wide power to make such order as is thought fit in all the circumstances of the case. It is plain, however, that the discretion is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the testatrix’s freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just testatrix[9].

113 In Singer v Berghouse (no 2)[10] ,Mason CJ, Deane and McHugh JJ stated (citation omitted):

The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate" and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

114 In considering these types of applications, there may be beneficiaries with needs greater than the applicant. The court’s assessment of what is adequate and proper is governed by the value of the estate and the needs of the competing beneficiaries. The court’s jurisdiction is determined by the need of the applicant. If need in the relevant sense is not shown, the court has no jurisdiction to make an order. In MacEwan Shaw v Shaw[11] Dodds - Streeton J (as she then was) explained at [212] to [214]:

[212] The amended legislation, while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off.
[213] Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the court has no jurisdiction to make an order, no matter how large the testator’s estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept.
[214] Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and just testator would have applied. There must be an abuse of the freedom of testation.

115 Palmer J of the Supreme Court of New South Wales in Carey v Robson and anor; Nichols v Robson and anor.[12] at [57] and following, stated:

57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator’s children.

58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation. It is useful to remind oneself of the parable of the labourers in the vineyard. Those who worked the whole day complained, not because their agreed wage was inadequate, but because those who worked only part of the day received the same wage and were therefore treated more generously. The moral of the parable is: what is fair and adequate to start with does not become unfair and inadequate just because someone else has been treated differently.

116 In D’Angelis v D’Angelis,[13] Dodds-Streeton J (as she then was) collected and considered the authorities interpreting s 91 and its precursors. At [18] and following she stated (citation omitted):

[18] Under Pt IV, in its current form, the question of eligibility overlaps with the substantive determination of the application.
[19] A substantial body of precedent decided under the previous legislation indicated that the correct approach in the context of maintenance applications was to apply a two stage test. The first stage of the applicable test involved a determination of whether the deceased’s will (or intestacy) was such as to provide adequate provision for the proper maintenance and support of the applicant.
[20] In resolving that question, the court was required to place itself in the testator’s shoes and determine what testamentary dispositions ought to have been made by a just and wise testator in all the circumstances of the particular case.
[21] In Bosch v Perpetual Trustee Co Ltd, Lord Romer stated —
Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband and father.
[22] In several cases, the concepts of moral duty or moral claim and the wise and just testator have been criticised, as constituting a judicial gloss without statutory justification. That criticism culminated in Singer v Berghouse [No 2] where Mason CJ, Deane and McHugh JJ doubted whether the just and wise testator provided useful assistance in elucidating the statutory provisions.
[23] Despite those observations of the High Court in Singer v Berghouse (No 2), and their subsequent endorsement by the New South Wales Court of Appeal, Victorian authority has adhered to the tests of moral duty and the wise and just testator. In Collicoat v McMillan5. Ormiston J declined to endorse the criticism of the Mason CJ, Deane and McHugh JJ observing that it was obiter dicta only. His Honour there observed that much of the criticism of the moral obligation misconceived its nature. In Ormiston J’s view, the test did not require an applicant to demonstrate entitlement by reference to the merits of his character or conduct. Rather, it focused on the obligation of the testator to make such testamentary dispositions as were right and proper, according to accepted community standards, having made a wise and just assessment of the entitlements.
[24] Ormiston J in Collicoat v McMillan also observed:
“the expression ‘moral duty’ remains a simple and convenient way of referring to the obligation ... resting on a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances ... It is sufficient to say that the word ‘moral’ used in connexion with the legislation is apt to describe what is generally considered according to accepted community standards to do what is right and proper for those members of his family whom one would expect to be entitled to a share in the distribution of his or her estate on death.”
[25] In Grey v Harrison, the Court of Appeal confirmed Ormiston J’s reaffirmation of the wise and just testator. Callaway JA, with whom Tadgell and Charles JJA concurred, noted that —
The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years. It supplies the norm that the legislature left unexpressed. See and compare Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 46 per Sheller JA. It is the way in which the courts, for almost the whole of this century, have construed the legislation. As Ormiston J explained in Collicoat v McMillan (unreported, 30 October 1995) at 63–76, it is in large measure exegetical of the ‘proper’ in the phrase ‘proper maintenance and support’. It also reflects the view that there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purposes of remedying such a breach.

117 Dodds-Streeton J analysed whether the amendments to Part IV of the Administration and Probate Act gave rise to a different approach from that followed in the existing case law. At [33] and [34] she stated (citation omitted):

33. The retention of the traditional words “proper maintenance and support”, the express reference to the responsibility of the testator in the legislation and the acknowledgment in the Second Reading Speech that the remedial legislation was directed at facilitating applications by those who have “moral claims”, reinforced rather than attenuate the application of the traditional concept of moral duty and the wise and just testator.
34. That approach was confirmed by Warren J in Lee v Hearn where her Honour observed:
“The post amendment case law has made it clear that the common moral duty or obligation to provide still permeates codification and that the significant changes have been first the possibility of application by a wider class of persons and secondly the application by the court of criteria in making its determination whether or not a claimant should have been provided for or should have been more generously provided for.”

And at paragraph 38 and following (citation omitted):

38. First, the Court must as its initial focus of enquiry, decide whether or not the claimant falls within that class of persons for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support. It is a jurisdictional question, as the Court has no power to make an order in favour of an applicant who does not fall within the category.
39. Secondly, the Court must decide whether the claimant has been left without proper maintenance and support.
40. Thirdly, if the deceased has failed in the duty to make such provision, the Court has power to exercise the discretion to make an order granting such provision as would have been made by a wise and just testator.
41. At each stage of the three stage process, the wise and just testator is a governing point of reference.
42. In Harper J’s view all 12 factors set out in s 91(4)(e) to (p) are relevant to each of three questions. That is, whether the deceased had a responsibility to provide for the claimant; whether the duty was breached, in that adequate provision for proper maintenance was not made; and thirdly, if a breach if established, the amount of the provision to be ordered.
43. Harper J also observed in Blair v Blair[14] that the legislation remains concerned with only the adequate provision of proper maintenance and support. Adequate provision may go well beyond mere subsistence and may involve careful assessment of what is fair between competing claimants. On the other hand, the legislation does not authorise a general curial redistribution of the deceased’s property, according to notions of fairness.
44. In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ observed that the notions of what is adequate or proper are relative. They necessarily involve consideration of the “nature, extent and character of the estate, the other demands upon it, and what the testator regarded as superior claims or preferable dispositions.
45. Victorian authorities held that although need is a relative concept, it must be shown in order to establish claim. A moral claim alone will not suffice, in my opinion, that authority is unaffected by the amendments.

118 Dodds-Streeton J then moved on to the consideration of the particular situation regarding applicants who were adult sons. She stated at [46]:

The amended legislation requires a less restrictive approach to claims by adult sons. Authorities decided under the previous legislation indicated that prima facie an adult son would be treated as able to maintain and support himself. As such, he would not be entitled to further provision pursuant to Part IV of the Act in the absence of a “special claim” or “special need”.

119 Dodds-Streeton J cited the decision of Blair v Blair where Harper J said:

... recognised that under the amended legislation, the sex of the applicant is irrelevant, unless included in ‘any other [relevant matters]’. [A reference to s 91(4)(p) of the Act.]

120 Dodds-Streeton J concluded at [73]:

Therefore, it was unnecessary henceforth to approach the claim of an adult son on the basis that he was prima facie able to maintain and support himself and would be excluded from further consideration unless he could show some special need or claim.

121 As to life estates and the provision of an accompanying nest egg, her Honour observed the following (citation omitted):

77. The limitations of a life estate, particularly when unaccompanied by a fund to support the life tenant’s duties to maintain the property, were recognised by Hedigan J in King v White [2992] 2 VR 417. In that case, the beneficiary of the life tenancy was the testator’s widow.
78. The widow had no assets and was dependent on an old age pension. Hedigan J observed “that the plaintiff’s asset position, known to the testator was such that by failing to provide her with any capital sum at all, and only an equitable life interest in the house, he left her in a position of pecuniary anxiety and difficulty with no proper provision against the erosion of her pitifully small capital and unable to cope with unforeseen contingencies.”
79. Hedigan J concluded that ownership in fee simple of the residence was necessary to give the plaintiff “that degree of protection which will provide an adequate bulwark against inflation, future vicissitudes and undercertainties. Moreover, since the plaintiff will have to maintain the house, I think it appropriate that some provision from residue to enable her to do that should be made.

122 In her final address, Ms Sparke conceded that there will be part of this estate which is held on a life interest and that Peter’s side of the family, whether it be he or his children, should be the beneficiaries of the remainder.

Factors under s 91(4)(e) – (p)

123 Against the background of the above discussion and case law, I now turn to a consideration of the statutory criteria set out in s 91. In doing so, I shall consider the factors relevant to both Peter and Paul’s claim at the same time, as it enables the application of the statutory criteria to be weighed in relation to each other’s claims.

Section 91(4)(e)

Any family or other relationship between the deceased person and the applicants including the nature of the relationship and, where relevant, the length of the relationship.

124 Both Peter and Paul are sons of Mrs Carn. As has been detailed, the nature of their respective relationships with their mother was starkly different. This was in my view due to a number of factors including their respective personalities and circumstances. Efforts were made to cast Peter as a distant son who had little care for his mother’s welfare. This contention was based on such things as the number of visits by Peter and Tracey to Mrs Carn and the intimacy of their communication on those visits. Peter, unlike his brother, had made his own way in the world by marrying, having children, purchasing a home and investing in property. He is a risk taker by disposition and this has not always worked well for him; he has had economic set-backs. His motivation for taking such risks was to provide for his family. My assessment of him in the witness box was that he was not a person who was materialistic for the mere sake of accumulating assets. Rather he was motivated by a strong desire to improve the financial position of his family. He is a busy man with more responsibilities than his brother Paul, who his own counsel described as something of a “lame duck”, who lived with his mother and has limited outside interests and responsibilities, save those of a recreational nature. Paul had much more opportunity to develop and maintain intimacy with his mother. Both Peter and Paul loved their mother and that was reciprocated. Each demonstrated this love in their own way.

Section 91(4)(f)

The obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.

125 While Peter and Paul were both Mrs Carn’s sons, a central consideration in this case is Mrs Carn’s obligation and responsibility to Paul which is reflected in her will by the award of the life interest. Paul’s situation was such that she regarded her primary obligation and responsibility as being to provide him with a roof over his head. To her, the most obvious way of doing this was to grant him a life interest in the house which they both occupied. Peter was economically self reliant from an early age. Because of the size and nature of the estate, there was no means for her to make any provision she might have considered appropriate to give Peter for his “cheese and jam”, as the High Court described it in Blore v Lange.[15] The remaindermen under the will, the grandchildren of Mrs Carn, are one step removed in my view from Mrs Carn’s central obligation and responsibility. As Dodds-Streeton J observed in MacEwan Shaw and anor v Shaw:[16]

According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents.[17]

Section 91(4)(g)

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

126 As detailed above, the estate is valued at approximately $750,000 and is subject to very minor charges and liabilities. This is subject, of course, as to what order for costs is made in this proceeding. As I have noted above, once Mrs Carn made the decision to provide a roof over Paul’s head in the form of the house at Buckingham Street, her options to make provision to those others to whom she may have had a duty were limited to a provision such as a remainder interest.

Section 91(4)(h)

The financial resources (including earning capacity) and the financial needs of the applicant, or any other applicant and any beneficiary of the estate at the time of the hearing and for the foreseeable future

127 Peter and Paul’s financial position is detailed above. Peter, through his and Tracey’s hard work and industrious nature, together with a willingness to take commercial risks, has quite significant net assets by community standards. Peter also has very considerable liabilities which he has chosen to voluntarily contract, apparently partially in order to provide a house for each of his children and also as a result of his misfortunes in his excursions into property development. Those liabilities are very significant when one has regard to his household’s income. Peter is in his fifties and apparently of good health but is engaged in heavy physical work, which he will not be able to engage in indefinitely. I can only assess the position by reference to the evidence before me. If he was to have to cease work or interest rates increased to any degree, he would be placed in a difficult financial predicament and perhaps need to sell one or more of the properties he holds. He has contracted those liabilities voluntarily for what some would regard as the admirable motive of providing for his children; one could be concerned with how realistic his desire to provide for them in the way he envisages is.
128 His position is to be contrasted with Paul’s financial position. Paul has very little in the way of assets and his only income is from social security payments. He would practically be destitute if it were not for the fact that he presently has the house in Buckingham Street to live in. He has some $150,000 in superannuation which he will be able to access in several years’ time.
129 As to the beneficiaries who will take the Buckingham Street property in the event of Paul’s death, very little is known of their financial position, despite the opportunity being afforded to them to put material before the Court in that regard.

Section 91(4)(i)

Any physical, mental or intellectual instability within the applicant or any beneficiary of the estate

130 Peter enjoys good health and has no disabilities. Paul says that, while he suffers from mild asthma, he enjoys good health. It is obvious however that Peter is much more active, physically fit and industrious, and has greater intellectual capability to deal with life than Paul who is relatively sedentary and, aside from pursuing his involvement with the local cricket and football clubs, is not inclined or well equipped to venture out into the world. But he does not suffer from a mental or intellectual disability.

Section 91(4)(j)

The age of the applicant

131 Peter and Paul are both in their early fifties.

Section 91(4)(k)

Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased

132 As has been detailed, Peter undertook the development of the Buckingham Street property in which Paul now lives. In practical terms, it is the only asset of the estate and it was developed through his initiative and efforts. While he did undertake the financial liability for the development, he did receive half the subdivision upon which a property was constructed. He gained a benefit of a significant capital gain on the property when it was sold. In that sense, he received “adequate consideration” for that contribution. As to his contribution to the welfare of Mrs Carn and the family generally, it has been said by Paul and those supporting him that Peter was wanting in this regard. As I have said above however, I find that he was a loving and dutiful son who, unlike Paul, had significant family responsibilities and he made what contribution he could. In addition, I am satisfied that in his mother’s last years, particularly during her final illness, that he had her welfare at the forefront of his considerations.
133 Paul’s contribution to Mrs Carn and the household at Buckingham Street was of the level that would be expected of him having regard to the fact that he was living in his mother’s house. In my view, his acquisition of household appliances and the like would not, particularly having regard to the fact that he was living at Buckingham Street and having the benefit of those items, be regarded as going beyond what was expected of him. Nonetheless, he in his own way, contributed to the degree he was capable of, to his mother’s welfare. I accept the accounts which he gives of the assistance he gave to his mother in her final years. He apparently made some payments toward the mortgage, paid board and other household expenses but I see this as him doing no more than meeting his obligation to his mother in return for being provided with a roof over his head.

Section 91(4)(l)

Any benefits previously given by the deceased person to any applicant or any beneficiary

134 Peter, as has been observed above, received half of the sub-divided block at Buckingham Street for which he subsequently enjoyed a significant capital gain, but he did undertake the risk and liability for construction of the unit which his mother and Paul then lived in. Paul enjoyed the benefit of living in his mother’s house but did contribute to the expenses of the household. Mrs MacBean recounted in her evidence a conversation that she had with Mrs Carn whereby Mrs Carn is alleged to have said that Peter had received his inheritance from her when receiving half of No. 36 and selling it for a significant capital sum. Section 94(c) allows me to accept any evidence of Mrs Carn’s reasons for making the dispositions that she did in her will and that evidence need not be in writing. I have no reason not to accept Mrs MacBean’s evidence as to her account of that conversation.

Section 91(4)(m)

Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

135 Peter had been self-reliant for many years at the time of Mrs Carn’s death. He was not in any sense being maintained by Mrs Carn before her death nor had she assumed any responsibility in that regard. He had made his own way in the world. On the other hand, she had clearly assumed a responsibility in respect of Paul and that is reflected in the terms of her last will. The evidence is that she had indicated to others that Paul would need a roof over his head and this appears to have been accepted by Peter.

Section 91(4)(n)

The liability of any other person to maintain the applicant

136 Neither Peter or Paul can look to any other persons to maintain them in this context. Paul has no support other than his social security benefit although he can look forward to a relatively sizeable superannuation benefit in several years’ time.

Section 91(4)(o)

The character and conduct of the applicant or any other person

137 In McKenzie v Topp,[18] Nettle J observed at [39] (citation omitted):

It appears that the requirement to have regard to character and conduct in s 91(o) of the Act now stands in place of the former provisions of s 96(1) (which provided that if the character and conduct of the plaintiff was such as to disentitle that person to relief the court might refuse to grant an order). I take it therefore that the sort of character and conduct to which one is to have regard for the purposes of s 91(o) is limited, as it was under the former s 96(1), to misconduct towards the testatrix or which shows that the plaintiff’s need is the result of his own default. ... Now that the Court is directed to have regard to the subject in determining if there is jurisdiction to make an order, it would seem to follow that the onus of proof lies upon the plaintiff. ...

138 In this case, aspersions as to character and conduct were cast by Peter and Paul against each other and they are detailed above. In particular, Paul criticises Peter for his alleged indifference to his mother, exemplified by his conduct when he visited her. On the other hand, Peter accused Paul of being indolent and failing to make appropriate contribution around the household. I am not persuaded that the conduct alleged against each other is of a degree which would amount to conduct which should influence the exercise of my discretion under this ground.
139 As has perhaps been laboured, Peter is something of a self-made man and has successfully raised a family and worked hard all his adult life. The evidence is that he was a loving son. Paul has a very different temperament and personality to his brother as has been detailed above. I am satisfied that like his brother, he is of good character but he was not blessed with the drive and industriousness of his brother. It is clear that Mrs Carn had great concerns as to his future welfare, which she did not have in respect of Peter because of his achievements and his energetic nature.

Any other matter the Court considers relevant

140 In McKenzie v Topp, Nettle J observed at [46] (citation omitted):

Authorities suggest that the sorts of factors to which regard might be had including the ability of the plaintiff to meet his financial responsibilities, the amount which is necessary for maintenance and survival, the size of the estate and of competing claims upon the testatrix, the standard of living of the plaintiff during the deceased’s lifetime, the extent of contact between the plaintiff and the testatrix, the manner in which the plaintiff conducted himself in relation to the testatrix during her life, and the testatrix’s wishes, in the sense of statements made by the deceased during her life as to provision that she has or has not made for the plaintiff.

141 I consider that these factors have already been considered in my assessment of the discretionary factors mentioned in s 91(4)(e) – (p) above.

Conclusion

142 The factual scenario in this case is reminiscent of the Biblical parable of the labourers in the vineyard to which Palmer J refers in Carey v Robson[19]. As his Honour observes, the moral of the parable is what is fair and adequate to start with does not become unfair and inadequate just because someone else has been treated differently. As has been constantly emphasised, these applications are not concerned with addressing unfairness, however well one could understand the sense of grievance of Peter which arises from not being provided for under the will.
143 I consider that if one applies the statutory criteria set out in s 91(4) then Peter has not established a need in the relevant sense and for that reason his claim fails.
144 As to Paul Moerth, the award of a life interest in the property without the provision for a modest nest egg is not, having regard to his circumstances, adequate provision.
145 In her will, Mrs Carn provided that, upon Paul’s death, her grandchildren should as remaindermen equally share the house at Buckingham Street. In my view, so far as it is possible, this wish should be honoured. It is not for me to award Peter the remainder interest in that property as some type of consolation prize if I do not consider that he has a need on an application of the relevant criteria in this application. As Pulling J observed in Riches v Holdman:[20]

Proper respect must be paid to the right of testamentary disposition, which is the fundamental premise upon which the provisions of the Act are based. The premise requires that the Court, out of respect for the continuing right of testamentary disposition, should limit its disturbance of the testator’s Will for that which is necessary to achieve the purposes of the Act, and not more.

146 The legislation is not designed to provide an award of provision to adults who have become as self-reliant as Peter has. In my view, when Mrs Carn came to compose her will, she did her best as a wise and just testator having regard to the starkly different talents and circumstances of her two sons. When she made her will, it was clear that foremost amongst her considerations was what would become of Paul. Peter had established himself but it was obvious that Paul would always need to be provided with a roof over his head. While Peter says that he was not recognised under the will, Mrs Carn to my mind perhaps considered that by the award of the remainder interest to his children, she was making provision as justly as she could. She was aware of the tensions between Peter and Paul and needed to make sure that Paul’s welfare was secured. She would not have fulfilled her moral duty by dividing the estate in half, as she did in a previous will.
147 It is in my view appropriate to give Paul a modest legacy to provide for contingencies. He has a modest sum in superannuation which he will be entitled to access in several years and I consider that he should be given a legacy of $25,000 to meet the contingencies he may meet in the mean time.
148 I will hear the parties on the question of costs after they have had an opportunity to consider these reasons. Although Peter has not been successful in this application, Mrs Carn’s will would in all likelihood been the subject of an application by Paul in any event. The applications, as I have said, merged seamlessly in the running and subject to the submissions of the parties, I consider that the costs of this unfortunate proceeding should be paid by the estate.
149 When Buckingham Street is sold, the net funds available after payment of the costs and expenses of the estate and the legacy to Paul should be applied in the purchase of a home for Paul and he should hold the life interest. The remainder interest in that property is to be granted to the grandchildren.
150 After the issue of costs of these proceedings have been determined, I will ask the parties to submit orders which reflect and implement these reasons. Clause 2 of the will provides for a mechanism in the event that Paul is unable or unwilling to live in the home at Buckingham Street. I consider that the orders submitted should also contain a provision in very similar terms in the event that he is unable or unwilling to live at the property which is purchased after the sale of Buckingham street.
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[1] [2007] VSC 27; (2007) 16 VR 101.

[2] [2010] VSC 190.

[3] [2004] VSC 90.

[4] Administration and Probate Act 1958, s. 91(1)

[5] Administration and Probate Act 1958, s. 91(3); White v Barron [1980] HCA 14; (1980) 144 CLR 431 at p. 456

[6] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at p. 478; Grey v Harrison [1997] VR 359 at 365; Collicoat v Mc Millan [1999] 3 VR 803 at p. 815; cf Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at p. 209

[7] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at p 505-8.

[8] White v Barron, supra at p 440.

[9] Hughes v National Trustees, supra at p 146.

[10] [1994] HCA 40; (1994) 181 CLR 201 at 209-10.

[11] [2003] VSC 318; (2003) 11 VR 95 at 120.

[12] [2009] NSWSC 1142.

[13] [2003] VSC 432.

[14] [2002] VSC 95.

[15] [1960] HCA 73; (1960) 104 CLR 124 at [135].

[16] [2003] VSC 318; (2003) 11 VR 95.

[17] Ibid, [216].

[18] [2004] VSC 90.

[19] [2009] NSWSC 1142 at [58].

[20] [2001] WASC 321 at [14].