SWEENEY v PUTRIC & ORS [2026] SASC 73

Applicant: COLLEEN MARY SWEENEY In Person Counsel: MR A HURREN - Solicitor: DEBRA SPIZZO & ASSOCIATES First Respondent: CATHERINE ANNE PUTRIC (AS EXECUTOR OF THE ESTATE OF RODNEY WILLIAM SWEENEY) In Person Counsel: MR K JACKSON - Solicitor: DBH LAWYERS Second Respondent: CATHERINE ANNE PUTRIC In Person Counsel: MR K JACKSON - Solicitor: DBH LAWYERS Third Respondent: DENISE CAROLINE SALVEMINI In Person Counsel: MR K JACKSON - Solicitor: DBH LAWYERS Fourth Respondent: SHANE PAUL MCCAULEY No Attendance Counsel: MR K JACKSON - Solicitor: DBH LAWYERS Hearing Date/s: 28/04/2026 File No/s: CIV-24-012291 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SWEENEY v PUTRIC & ORS [2026] SASC 73 Judgment of the Honourable Auxiliary Associate Justice Costello 5 May 2026 SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - CIRCUMSTANCES TO BE CONSIDERED Claim by applicant sibling for further provision from her brother's estate - applicant received a bequest of $100,000 in an estate of some $1.6 million - claim opposed by the beneficiaries who are the step children and an adopted child of the deceased - consideration of applicant's eligibility within the meaning of s6 of the Inheritance (Family Provision) Act 1972 - meanings of "cared for" and "maintenance" in s6 - deceased made adequate provision - claim dismissed Illman v Sterry & Ors [2023] SASC 50; Karbowiak & Ors v Mitolo & Anor (2023) SASC 168; Scott & Anor v Scott [2021] SASC 96; Vigolo v Bostin (2005) 221 CLR 191; McCosker v McCosker (1957) 97 CLR 566; Singer v Berghouse (No 2) (1994) 181 CLR 201, considered. -- 1 of 20 -- -- 2 of 20 -- SWEENEY v PUTRIC & ORS [2026] SASC 73 Introduction 1 This is an application pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”). Colleen Mary Sweeney (“Colleen”) seeks an order that further provision be made for her, out of the estate of her brother Rodney William Sweeney (“the deceased”), for her maintenance, education and advancement in life. 2 Catherine Anne Putric (“Catherine”)1 is a stepdaughter of the deceased. Denise Caroline Salvemini (“Denise”) is an adopted daughter of the deceased. Shane Paul McCauley (“Shane”) is a stepson of the deceased. 3 All three respondents (being the children of the deceased’s former wife) are the residuary beneficiaries in the estate. They oppose the application. Background 4 In October 2025 Catherine, Denise and Shane filed an application (FDN 16) seeking orders “that the applicant’s originating application be dismissed on the ground that no reasonable basis for the application is capable of being disclosed or that summary judgment be granted for the respondents on the basis that there is no reasonable basis for prosecuting the cause of action”. 5 Subsequent to the filing of FDN 16, on 27 January 2026, the parties consented to an order that the trial of the action proceed by way of summary determination under the Rules. 6 To that end UCR 254(15) provides: 254.15—Summary determination (1) The Court may order that the trial of the action proceed by summary determination under this rule if— (a) there are reasonable grounds to believe that the net value of the estate that will be available for distribution (after meeting all liabilities) will be less than $750,000; or (b) all parties consent to proceeding under this rule. (2) The primary object of a trial by summary determination is to minimise costs and achieve an expeditious but just determination of the action. (3) At a trial by summary determination— 1 She is also, as the first respondent, the executor of the deceased’s estate. -- 3 of 20 -- [2026] SASC 73 Judgment Author 2 (a) the trial is to proceed in accordance with such directions as are given by the Court; and (b) the Court is not bound by the rules of evidence and may inform itself in such manner as it thinks fit. 7 By his will the deceased left legacies totalling $180,000. He also bequeathed his motor vehicles to Shane. Certain of these legacies, totalling $80,000, comprised gifts to a number of friends and relatives. 8 Another of those legacies was a gift of $100,000 to Colleen. The legacies (aside from the $100,000 to Colleen) have been paid. There have also been interim distributions made to the residuary beneficiaries prior to this application being filed. 9 In paragraph 3 of her affidavit filed recently, Catherine set out the current position of the estate as follows:2 Current Estate Accounts Asset Value DBH Trust Account $335,615.39 Term Deposit (proceeds of house sale plus interest) $592,599.25 Sub-total $928,214.64 Distributions Legacies in 4.3-4.6 of the will $80,000 Interim Distributions to residuary beneficiaries $916,550.70 BMW Motor Vehicle (clause 4.1 of the will) $37,000 (sold) Sub-total $1,961,765.30 Unpaid Liabilities Legacy to the Applicant (clause 4.2 of the will) $100,000 Income tax Unknown – may be up to $100,00 - $110,000 2 Exhibit R2 at paragraphs [3]-[7]. -- 4 of 20 -- [2026] SASC 73 Judgment Author 3 Further legal fees Unknown – estimate around $5,000 for estate administration 4. Since my last affidavit I sold the deceased’s house property for $600,000 and the estate received $583,174.59 net of sale costs. Those funds are currently in a term deposit. 5. I also sold the shares owned by the deceased. I did so because I was advised there would be no capital tax (sic) on a sale at this point. The estate received $154,912.33 on 6 March 2026. Those funds are currently in the lawyers’ trust account. 6. We have paid an interim invoice to DBH Lawyers of $27,847.71 from estate funds. 7. I have submitted Rodney’s tax papers but not heard back from the ATO yet. The accountant said there may be a tax liability of up to $110,000 but I have not had this confirmed yet. 10 She also said that the house referred to in paragraph 3 above was owned by their mother and passed to the deceased under the terms of her will. The evidence at trial Colleen 11 Colleen filed two affidavits (Exhibit A2 and A3). 12 In Exhibit A2 (sworn on 19 December 2024) she said that she was then 75 years of age and in receipt of an aged pension. She lived in community housing and had few assets apart from a motor vehicle purchased for her by the deceased which she estimated to be worth less than $10,000. 13 She has adult sons, grandchildren and great grandchildren. I was not told anything about her interactions with her extended family. 14 She suffers from emphysema and osteoporosis. 15 She said that she cared for her brother as they were growing up because their parents were both alcoholics. As a result, her parents did little in the way of parenting. 16 Towards the end of his life she said she took him to medical appointments and assisted with cooking some of his meals when he was dying from lung cancer. 17 She said that, given her very poor financial situation, the bequest of $100,000 did not represent adequate provision for her. 18 In her second affidavit (Exhibit A3) she gave further details about her father’s alcoholic and violent behaviour. She also said that, after she married, at age 18, and left home, the deceased (who was a couple of years younger than her) often lived with her and her then husband. -- 5 of 20 -- [2026] SASC 73 Judgment Author 4 19 She related an incident (some years later after her divorce and after the sale of her home was completed) where the proceeds of that sale (being some $10,000 in cash) were handed to her in an envelope by the deceased’s then fiancée who had bought this home. 20 As she did so, the deceased snatched the money from her saying that he needed it to pay off gambling debts. 21 She said that even though the deceased never repaid the money to her she didn’t pursue payments from him. 22 In cross-examination she acknowledged that, during the last year of the deceased’s life, either Catherine or Denise lived with and cared for the deceased on a daily basis. 23 She said that in his last years, the deceased bought her a car because he “would have need of me.” I took her to mean that she could then take him to things like medical appointments. 24 She said that during his last years she did take him to medical appointments but on less than 10 occasions. She said that she also cooked frozen meals for him every two to three weeks. 25 She said that she did ask him to repay the $10,000 on a few occasions but after each occasion he subsequently forgot about it because of his alcohol consumption. 26 She said that he said that he wanted to take financial responsibility for her and “have things with his accountant” but that she refused. She said “I am my own person. I do not need you to do that.” 27 She said that she had been independent all her life and didn’t need anyone to look after her. 28 As part of her case I permitted her to tender a series of diary entries she had composed in the latter years of the deceased’s life. 29 These diary entries served to confirm what she said she had done in those years, namely limited cooking, some visitations to his home and limited driving him to medical appointments. 30 Finally, as part of her case, she relied upon a report from an actuary, Mr Crump, which was part of “tab” 32 of Exhibit A1. 31 In Mr Crump’s opinion, in order for Colleen to achieve a modest lifestyle for the rest of her life she would need an amount of $253,000. In order for her to achieve a comfortable lifestyle that figure would rise to $513,000. -- 6 of 20 -- [2026] SASC 73 Judgment Author 5 32 Although, given the basis under the Rules on which this hearing was conducted, I determined to receive this information as general evidence of the amount needed to fund a particular lifestyle, I do not place any particular weight on it. 33 The exercise that a court is asked to undertake is quite different from that conducted by an actuary. 34 It is inappropriate to simply extrapolate from the actuary’s figures and (as the applicant invited me to do in her final submissions) conclude that a just and wise testator here would, in order to provide her with adequate provision, make a bequest to her of some $250,000. 35 To approach the task in this way would require me to (at least initially) ignore the competing interests of his children to whom a not insignificant moral obligation lies. 36 Moreover, to do so would be to adopt an approach contrary to the views expressed by the Privy Council in Bosch v Perpetual Trustee Co Ltd3 namely that an economic approach to the interpretation of the section was not the correct approach. Assessment of Colleen 37 Colleen was an honest and open witness. She made appropriate concessions and did not seek to embellish her role in the deceased’s life. 38 Subject to what I will say later, I accept much of her evidence and in particular as to the circumstances of the deceased taking the $10,000 which she then did not try, other than on a few sporadic occasions, to get back. The respondents (second to fourth) Catherine 39 In her affidavit, Exhibit R3, she described the close and loving nature of her relationship with the deceased. 40 She is now in her late 50’s and said that the deceased had been “her father” for some 45 years and a grandfather to her children who are now aged in their 30’s. She said that she has two adult daughters, one adult stepdaughter and five step- grandchildren. 41 She said that the deceased “walked her down the aisle” at her wedding. 42 She said that she had worked in the deceased’s business for about 5 years and had helped grow it into the successful business it subsequently became. 3 (1938) AC 463 at 478. -- 7 of 20 -- [2026] SASC 73 Judgment Author 6 43 She said that the deceased had “fall outs” with Colleen and went years without speaking to her. 44 She said that, over the last 20 years or more, they seldom saw Colleen. 45 She said that she suffers from back and neck injuries which limit her ability to work full-time. 46 Her income, in the main, comes from an Airbnb rental, together with her partner’s casual work. Together their income is approximately $65,000 per annum. 47 She has a vacant block of land at Port Hughes worth around $160,000 and superannuation of $540,000. 48 She has a mortgage of some $320,000, with $170,000 in an offset account. 49 In cross-examination Catherine said she made reference to the house as being owned by her mother, in her executor’s affidavit, because it was purchased, prior to her relationship with the deceased, by her mother. 50 She said that after expenses there is generally nothing leftover each week. She liked to travel when permissible, but they didn’t lead a lavish lifestyle. 51 She said that the estate’s tax liability is estimated by the accountant to be approximately $110,000. 52 She agreed that she said that the deceased wanted “to look after” Colleen in the event of his death. 53 She did not accept that, in so saying, she meant that the deceased intended to look after Colleen in the sense of caring for all her needs for the rest of her life. 54 She said that the deceased wanted to provide for the people he cared about and that he thought his bequest of $100,000 to her was a significant amount. Assessment of Catherine 55 She was an impressive witness. She gave her evidence honestly and with appropriate candour. 56 I accept her evidence generally and in particular that when she used the words “look after Colleen” she did not mean anything more than the deceased making a contribution to make her life easier. Denise 57 In Exhibit R4 Denise said that the deceased had raised her as his child but in 2022 (when her mother was nearing the end of her life) he came to her and said that she had been his daughter all through the years and that he wanted to make it official and legally adopt her, which he did in June 2022. -- 8 of 20 -- [2026] SASC 73 Judgment Author 7 58 She said he was her dad in “every sense of the word”. 59 From around the time he developed bladder cancer in March 2023 she became his full-time carer, leaving her family and job to care full-time for him until his death some 15 months later. 60 She is in her early 50’s and, with her partner, has nine children aged from 13 to 34. Two children are at home full-time and one part-time. Two of her children are dependants and one partially dependant. She has fifteen grandchildren. 61 She works part-time in a local bakery. 62 In terms of her health, she suffers from arthritis in her neck and associated migraines. 63 In terms of income, she and her partner earn a little over $100,000 per annum. They also receive a family tax benefit of approximately $3,000 per annum. 64 They have approximately $115,000 in superannuation. 65 They own a home at Tarlee which has a mortgage of $240,000 against which there is $100,000 in an offset account. 66 Their motor vehicle and a boat are worth around $60,000 in total. 67 She worked in the deceased’s business for about 8 years. To her knowledge, Colleen had no involvement in the business. 68 She said that the deceased said that he would do something to “look after his sister” and that “$100,000 was more than enough to see her out”. 69 She said that Colleen rarely visited the deceased when he was in hospital. She said that she hardly knew her. 70 In cross-examination she said that from week to week they didn’t have much left over after expenses. 71 She said that she couldn’t now say exactly what she meant by the phrase “see her out” in her affidavit. 72 She agreed that the amount of such a bequest could encompass Colleen being able to buy things such as a car, furniture and/or white goods. 73 She said in re-examination that the words “see her out” were not his exact words, but only the gist of what he said. 74 She also said that towards the end of his life he discussed with her figures for Colleen beginning at about $50,000, then $75,000 before arriving at $100,000. -- 9 of 20 -- [2026] SASC 73 Judgment Author 8 Assessment of Denise 75 She too was an impressive witness. In my view she came across as a loving daughter who cared deeply for the deceased. I have no reason to doubt her evidence generally. I accept that she and her partner are frugal people who enjoy a modest lifestyle. Shane 76 In his affidavit (Exhibit R6) Shane, who is currently in his early 60’s, said that he earns approximately $30,000 per annum from his own newsagency business. He also receives approximately $6,000 per annum in rent from a tenant. 77 His home is valued at approximately $200,000 (with no mortgage). He has savings of approximately $200,000 and superannuation of about $80,000. 78 He has three cars with a total value of approximately $75,000 – $80,000 and shares worth about $13,500. 79 He was unable to attend the trial in person due to being hospitalised in Queensland with apparent diabetes. 80 He is single. His domestic parter died in 2022. 81 He spoke of having had a close relationship with the deceased whom he described as his “mentor and best mate”. 82 When his partner died, he says the deceased helped him through “the hardest time of his life”. 83 Apart from these matters, he also worked with the deceased on various jobs and he was the person to give the deceased the idea of starting his own successful forklift business. 84 He described the relationship between the deceased and Colleen as “rocky” and that they “would often not talk for years at a time”. 85 He said that the deceased asked all of his children to “look after Colleen”. 86 He said that the deceased also told him that he had left provision in the will to, in his words, “see her right for the rest of her days”. 87 He said that in his latter days it was Denise, primarily, but also Catherine who looked after the deceased. Assessment of Shane 88 He was not cross-examined. I have no reason to doubt his evidence. 89 On the issues of the relationship between the deceased and Colleen, I accept his evidence. -- 10 of 20 -- [2026] SASC 73 Judgment Author 9 90 His description, of a relationship as “rocky” and one where they didn’t talk for extended periods of time, accords with the evidence of his siblings and is not obviously at odds with Colleen’s evidence. 91 Colleen’s evidence on this issue, taken as a whole, does not portray a particularly close relationship but rather one where each may have been concerned for the other but where they largely led their own lives. 92 So much is borne out by Shane’s memory that she rarely visited the deceased and vice versa. The statutory scheme 93 The Act in question relevantly provides: 6—Persons entitled to claim under this Act The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act: (a) the spouse of the deceased person; (b) a person who has been divorced from the deceased person; (ba) the domestic partner of the deceased person; (c) a child of the deceased person; (g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death; (h) a child of the child of the deceased person; (i) a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime; (j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime. (my underlining) 7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person (1) Where— (a) a person has died domiciled in the State or owning real or personal property in the State; and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left -- 11 of 20 -- [2026] SASC 73 Judgment Author 10 without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. (2) Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct. (3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient. (4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit. (5) If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit. (6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments. Relevant legal principles and approach 94 Whilst in its original form this legislation focussed on further provision for spouses and children, it has subsequently been expanded to permit siblings to make a claim.4 95 In Illman v Sterry & Ors5 Judge Dart (as he then was) noted that: … Unlike a spouse or child, a sibling needs an additional factor to be entitled to bring a claim. That is, that he cared for or contributed to the maintenance of the deceased during her lifetime.6 96 Judge Dart’s observations with respect to siblings were approved of by Stanley J in Karbowiak & Ors v Mitolo & Anor7 where his Honour said: In my view, as a general rule, a sibling is not under a moral duty to make provision for a brother or sister. 8 … 4 S6(j). 5 [2023] SASC 50. 6 Ibid, at [10] 7 (2023) SASC 168. 8 Ibid, at [47]. -- 12 of 20 -- [2026] SASC 73 Judgment Author 11 97 However, his Honour did acknowledge that this rule was not absolute and that there may be circumstances in a particular case that create a moral duty. 98 In circumstances where an applicant is able to satisfy the provisions of s6(j) of the Act, there remains an additional jurisdictional matter to be satisfied by reason of s7 of the Act. An applicant must show that she has been left without adequate provision for her proper maintenance, education and advancement in life. 99 On this issue, in Illman, Judge Dart said: There is now more than 100 years of authority in relation to family provisions matters. The principles to be applied in determining a claim are well established and beyond any reasonable dispute. They may be stated as follows: 1. The statute requires the Court to carry out a two-staged process. The first stage requires a determination of whether the applicant has been left without adequate provision. If that is decided in the affirmative, the Court is then required to determine what would be an appropriate provision. 2. The legislation is remedial in character and is to be construed to give the most complete remedy which the phraseology will permit. 3. The words “adequate” and “proper” are relative. The word “proper” connotes something different from the word “adequate”. It connotes an ethical position as to what allowance should be made. Adequate provision for proper maintenance is not limited to providing what is sufficient for basic subsistence. 4. The time for considering whether the applicant has been left without adequate provision is the date of the death of the testator. 5. Consideration of moral claims and moral duty are useful as a guide to the meaning of the statute and they connect the general value-laden language of the statute to community standards which give it practical meaning. 6. The provision which the Court may properly make is that which a just and wise testator would have thought it his or her moral duty to make had he or she been fully aware of all the relevant circumstances. At first blush it might be thought that s 7(1) of the Act is setting out an economic test by which it is determined whether an applicant has adequate provision for her proper maintenance, education or advancement in life. However, ultimately it was the moral or ethical approach that has been accepted as the correct approach. That approach arises from the use of the word “proper” in the statute. In Bosch v Perpetual Trustee Co Ltd the Privy Council made clear that an economic approach to the interpretation of the section was not the correct approach. It found that a judgment as to the maintenance which is “proper” for a particular applicant in the circumstances of a case is necessarily a judgment as to what maintenance the applicant ought to have in the circumstances and not what he or she needs. The moral approach was approved by the High Court in Worladge & Anor v Doddridge & Ors where Kitto J said: What is proper is to be tested by reference to the provision which in all the circumstances of a case satisfies but does not exceed the requirements of moral justice in regard to those particular purposes. -- 13 of 20 -- [2026] SASC 73 Judgment Author 12 The purposes, of course, were provision for the proper maintenance, education and advancement in life. As mentioned, there is a two-stage process. The first stage is the conventional jurisdictional question. That is, has the Court’s jurisdiction to make an award of provision been enlivened. In Singer v Berghouse (No 2), in the decision of Mason CJ, Deane J and McHugh J, their Honour’s said: Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of the value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. In Tiburzi v Butler in the principal judgment Doyle J noted: There is no doubt that the second stage of the process of determining an application under s 7 of the Act, being an exercise of judicial discretion, is subject to the principles concerning appellate review of a discretionary decision in House v The King. Further, it is now settled that an appeal against a trial judge’s determination of the first stage, or jurisdictional question, is also governed by these principles of appellate restraint. This is so despite the first stage sometimes being described as the application of the facts to a legal standard, and involving an evaluative judgement rather than a discretion. A similar explanation was provided in Kozlowski v Kozlowski where Sulan J wrote the principal judgment. His Honour said: The first stage of the inquiry involves an objective assessment of all the circumstances in the case and determining whether, in fact, adequate provision has been made for the applicant. Where the first stage of the inquiry is answered in the affirmative, the second stage involves the exercise of judicial discretion in determining what provision ought to be made having regard to the factors identified by the legislation. The issue before the Court on each of the two jurisdictional questions is one of fact. There is no exercise of discretion in answering either question. A discretion arises only in respect of the second step which is determining what an adequate provision will be if the two jurisdictional questions have been answered in the affirmative. (footnotes omitted) Discussion 100 Applying these principles to this application, two issues arise for consideration and determination. Eligible claimant 101 The first issue is whether or not Colleen is an eligible claimant. 102 As a sibling, in order to satisfy this requirement, she needs to show that she cared for or contributed to the maintenance of the deceased during his lifetime. -- 14 of 20 -- [2026] SASC 73 Judgment Author 13 Cared for 103 Colleen addressed this issue in her affidavit (Exhibit A2) in the following way: 21. I cared for, and contributed to the maintenance of, Rodney during his lifetime. 22. I had protected my younger brother Rodney during his younger years from our father, who was an alcoholic, and who created a very violent household for us. 23. I cared for Rodney when his fiancé (sic) died. 24. I gave money to Rodney many, many times throughout his life when he needed it, and even though I could rarely afford it. He then reciprocated in our latter years. 25. I was in effect half mother and half sister to Rodney, as our own mother was (like our father) also an alcoholic. Unlike our father, our mother was not a violent person. 26. I kept many, many secrets for Rodney. 27. I took him to frequent medical appointments for which he needed my support 28. I assisted and advised him with his business activities, for not pay. 29. In recent years, I would cook for Rodney and provide him with frozen meals. 104 In her second affidavit (Exhibit A3) she deposed to the following: 6. As stated at paragraph 25 of My First Affidavit, I preformed the role of Rodney’s mother, as well as being his sister, because our parents were alcoholics. 7. In particular, our father (William, or Bill) was drunk almost every day, apart from Sunday mornings, when the pubs and bottle shops were closed, which was the only time we would get any respite. Even then, our father would often find “sly-groggers”, which would enable him to drink even on Sunday mornings. 8. When drunk, our father was violent, to the point of being sadistic. He physically assaulted our mater (Verna) on an almost daily basis. 9. Our father would regularly strike me across the head and once, when I attempted to stand up for our mother, he whipped me to the point where my injuries kept me away form school for a week. He once knocked Rodney unconscious just because Rodney came home 3 minutes late. 10. I had to perform the role of Rodney’s parent because our father was extremely possessive and would always keep my mother with him, which was, most days, down at the pub. Our father wouldn’t let our mater out of his sight. When not at the pub, they were both drunk to the point of being incapable of looking after me and Rodney. 11. Whilst I was only 18 months older than Rodney, he was a relatively immature person, and very much needed my help with life. 12. This dreadful situation of me having to act as Rodney’s parent persisted form when I was a young child, right through until the time when I got married and left home. -- 15 of 20 -- [2026] SASC 73 Judgment Author 14 13. In particular, I got engaged to Roderick Miles McGill (Roderick) in 1966, when I was 17 years old and still living at home. Roderick and I then got married on 9 February 1968, at which time we moved into a rental property at Tranmere. 14. I recall that, when I left home, Rodney told me that he felt that I had abandoned him, so he myself often came to live with me and Roderick in our flat. 105 In her oral evidence she confirmed these matters, albeit in a very general way. 106 A threshold question arises as to what is meant by “cared for” in s6 of the Act. I doubt that it means shows affection for. It clearly means something akin to the provision of either moral support or the physical provision of things such as food, clothing, lodging, transport and the like. 107 It is difficult to be any more precise. It is a term capable of application to a wide variety of situations. 108 The care must also be at a level which is in some respect beyond the care that a normal sibling would provide. If not, it is difficult to understand why Parliament would have chosen to add these words knowing that almost all siblings, at some time in their lives, would provide a level of care for their brother or sister. 109 I am confirmed in this view by Judge Dart’s observations on this issue in Illman where his Honour said: I am not satisfied that the applicant has established that he cared for or contributed to the maintenance of the deceased in the relevant sense. What the section requires is something beyond conduct that you would ordinarily expect in the relationship between two caring siblings. If that was not so, the additional words in the subsection would not be necessary.9 110 So understood, I am satisfied that the manner of her “protection” of the deceased, during their early years (albeit being evidence at a very general level), is sufficient to satisfy the eligibility test. 111 As a result, it is strictly speaking, unnecessary, to consider whether the actions of Colleen in allowing the deceased to take and keep the $10,000 could constitute “maintenance” within the meaning of the section. In deference to the arguments presented on this issue, I will do so. Contributed to maintenance 112 I would not regard a mere forbearance from insisting on repayment of the money which was taken by her brother as constituting “maintenance” within the meaning of the section. 113 I would regard “maintenance” in this context as meaning, something in the nature of the gratuitous provision of money or like support, on occasions to a person during a part of their life, to enable them to survive and/or prosper. 9 [2023] SASC 50 at [35]-[36]. -- 16 of 20 -- [2026] SASC 73 Judgment Author 15 114 The taking of Colleen’s money in this way and the failure to pay her back may have permitted her to make a claim against the estate but that is not a matter I need to consider further in these proceedings. 115 I am nevertheless satisfied that Colleen has established that she has a moral claim on the deceased’s estate. Adequate provision 116 The second issue which arises is whether the deceased has made adequate provision for her or whether she is entitled to further provision. 117 In addressing this issue I bear in mind the observations of Judge Dart in Scott & Anor v Scott.10 His Honour said: In undertaking the assessment task, it is also necessary to have regard to the conflict between the statutory scheme allowing the Court to award further provision by way of an amendment to the will of the deceased and the entitlement of a person to freely make a testamentary distribution as they see fit. There is an obvious and unavoidable tension. In Andrew v Andrew Hallen AsJ said: In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were given in the context of the former Act, they are equally apt in a claim such as this one. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a “fair” disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant. In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding “against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant”. The court's 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 deceased's freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. The task before the Court is limited to the making of an adequate provision for a claimant who satisfies the jurisdiction requirement. No interfering with the terms of the will beyond that is authorised by the Act.11 10 [2021] SASC 96. 11 Ibid, at [13]-[14]. -- 17 of 20 -- [2026] SASC 73 Judgment Author 16 118 The determination of whether a testator has made adequate provision in favour of an applicant cannot be considered in a vacuum. 119 Matters such as the size of the estate in question and the needs and claims of others (in this case the deceased’s three children) need to be considered. Ultimately however it is primarily a matter of estimating need and moral claim.12 Size of the Estate 120 The parties are agreed that the size of the estate (after income tax, legacies to others, the legacy to Colleen and legal costs are taken into account) is approximately $1,600,000. Competing claims 121 The competing claims are those of his children. 122 Each of them has established to my satisfaction that they had a particularly close and loving relationship with the deceased. 123 In the case of Denise, so much is evidenced by the deceased’s decision to legally adopt her. 124 For their part, both Denise and Catherine reciprocated in the last years of his life by moving in to live with him and in Denise’s case, giving up her job to become his full-time carer in the last year of his life. 125 In terms of their respective financial circumstances, each of them is comfortable without being “well to do”. 126 Catherine receives an income which is largely met by her expenses. She has a reasonable level of assets but both she and her spouse are coming towards the end of their working lives. 127 Denise is working only in a part-time capacity. While she too has assets and savings, the ‘calls’ on her financially are, and will likely continue to be, not insignificant, bearing in mind the number of children and grandchildren both she and her partner have. 128 Shane has a modest business income and savings but there are legitimate health concerns in his case which need to be factored into his long-term future employment prospects. 129 In summary, in my view, a just and wise testator in the position of the deceased would have considered it his moral duty to make significant provision for each of his three children given their respective circumstances. 12 See Vigolo v Bostin (2005) 221 CLR 191 at [27]. -- 18 of 20 -- [2026] SASC 73 Judgment Author 17 130 In Colleen’s case it cannot be doubted that her financial situation is relatively poor. She is in receipt of an aged pension. She lives in community housing. She has few assets and some identified health issues. 131 Nevertheless, she is a woman of modest tastes who is leading a relatively simple lifestyle. Beyond the obvious need, for money for medical treatment to address her physical disabilities, she impressed me as a fiercely independent woman who did not want for anything in particular. 132 Further, as I have noted, there was nothing particularly noteworthy about her relationship with the deceased after she left home over 50 years ago. 133 I accept the respondents’ evidence, in this respect, which suggests that Colleen and the deceased were not overly close and that their physical contacts were sporadic and limited. 134 Regardless, in my view, the deceased clearly wanted to provide for her. He said as much to his children. He wanted to “look after” her and provide for her in her latter days, in much the same way as he had done over the years by helping her out by buying her a car and giving her small gifts. 135 I do not regard what he said to his children as meaning that he wanted to fund her retirement or become permanently financially responsible for her, something that she would have resisted in any event. 136 As I said earlier, in speaking as he did to his children he meant that he wanted to provide for her and to do so in a way which made her life a little easier. 137 In considering this issue, in general terms, I have had regard to the observations of Kitto J in McCosker v McCosker13 where his Honour said: This is the kind of case in which it would be much more pleasant to be open-handed with the testator's estate than to confine oneself to the jurisdiction under the Act. But even if I felt sure that I understood the whole situation so well that I could deal with the estate more justly than the testator dealt with it, I should still not feel justified in asserting that when he decided to give the respondent no more than he had already given him, and to leave his estate to members of the family who had been closer to him and to whom he had his own reasons for being generous, he failed to recognise a moral duty which lay upon him.14 138 I acknowledge that when making these observations Kitto J (albeit in dissent) was considering a situation where in his will the testator left nothing to the applicant upon the basis that he had made adequate provision for him during his lifetime. Nevertheless, his observations are apposite to the present case. 139 Taking all these matters into account, I am satisfied that the deceased, in making the bequest to Colleen of $100,000, has made adequate provision for her. 13 (1957) 97 CLR 566. 14 Ibid, at [580] – Approved of by Gleeson CJ in Vigolo v Bostin [2005] HCA 11 at [24]. -- 19 of 20 -- [2026] SASC 73 Judgment Author 18 140 She has not therefore satisfied the jurisdictional question identified in Singer v Berghouse (No 2).15As such, the court’s jurisdiction is not enlivened. 141 The applicant’s claim for further provision from the deceased’s estate is dismissed. 15 (1994) 181 CLR 201 at 211. -- 20 of 20 --