[2025] SASC 92

First and Second Applicants: CR AND MR BY THEIR LITIGATION GUARDIAN DR Counsel: MR A LAZAREVICH - Solicitor: TRELOAR & TRELOAR Third and Fourth Applicants: IM AND MM BY THEIR LITIGATION GUARDIAN VM Counsel: MR E GUTHRIE - Solicitor: JOHNSTON WITHERS First, Third and Fourth Respondents: RF, AC AND MB AS EXECUTORS OF THE ESTATE OF DR Counsel: MR S OWER KC - Solicitor: DW FOX TUCKER Second Respondent: FR AS EXECUTOR OF THE ESTATE OF DR In Person Fifth, Seventh and Eighth Respondents: RF, AC AND MB AS BENEFICIARIES OF THE ESTATE OF DR Counsel: MR S OWER KC - Solicitor: DW FOX TUCKER Sixth Respondent: FR AS BENEFICIARY OF THE ESTATE OF DR In Person Hearing Date/s: 21/10/2024 to 30/10/2024, 20/11/2024 File No/s: CIV-23-002389 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) 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. In the Estate of R (DECEASED) R & ORS v F & ORS [2025] SASC 92 Judgment of the Honourable Justice McIntyre 23 May 2025 SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION SUCCESSION - FAMILY PROVISION - ELIGIBLE APPLICANTS - GRANDCHILD SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - OTHER APPLICANTS All four applicants are grandchildren of the deceased. The applicants are, or allege to be, related to the deceased by way of their father, who predeceased his mother (‘the deceased’) by five years. He died bankrupt and without leaving an estate. The first and second applicant are children of their father’s marriage. The third and fourth applicant are children of their father’s relationship with their mother. The applicants were beneficiaries of the deceased’s penultimate will but were removed by way of the final will. The deceased’s daughters are the sole beneficiaries of the final will. The value of the deceased’s estate was approximately $8.5 million. In 2022 there was a partial distribution of the estate to the beneficiaries. Approximately $1.39 million remains in the estate. The applicants seek an order for provision to be made out of the deceased’s estate for their maintenance, education and advancement pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (‘IFP Act’). The third and fourth applicants seek a further order in relation to their paternity, a declaration that they are children of the deceased’s son, pursuant to s 9 of the Family Relationships Act 1975 (SA) (‘FR Act’). -- 1 of 32 -- In relation to s 7 of the IFP Act, the applicants submit that, given the size of the estate, their relationship with the deceased and their financial circumstances, a wise and just testator would have considered it their moral duty to make provision for the applicants in their will. They submit that the penultimate will is reflective of that moral duty. The respondents are the deceased’s children, in their capacity as executors and beneficiaries of the final will. The respondents contend that the deceased’s final will reflects what she considered to be her moral duty. They contend that the deceased did not have an ongoing relationship with the applicants, did not assume responsibility for their care or maintenance and that the applicants are maintained by their respective mothers. Held: 1. Pursuant s 9 of the FR Act, the third and fourth applicants are children of the deceased’s son. 2. The applicants are the deceased’s grandchildren and are eligible applicants under s 6(h) of the IFP Act. 3. The applicants have been left without adequate provision for their proper maintenance, education and advancement. 4. The applicants are each entitled to a sum of $125,000, inclusive of interest. Inheritance (Family Provision) Act 1972 (SA) ss 6, 7 ; Family Relationships Act 1975 (SA) s 9; The Succession Act 2023 (SA) s 115, sch 4 s 2, referred to. De Jonge v Soar & Ors [2024] SASC 88; Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; Wall v Crane [2009] SASC 382; Piper v Fraser [2020] SASC 239; Briginshaw v Briginshaw (1938) 60 CLR 336; H, AM v L, L (2013) 121 SASR 1; Parker & Ors v Australia Executor Trustees Ltd [2016] SASC 64; Bramwell v Bramwell & Ors [2023] SASCA 94; Singer v Berghouse (1994) 181 CLR 201; Bowyer v Wood (2007) 99 SASR 190; Vigolo v Bostin (2005) 221 CLR 191; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; In the Estate of Puckridge (1978) 20 SASR 72; Eckert v Starick [1994] SASC 4584; Columbus v Efstathis & Ors [2019] SASC 149; Bain & Anor v Ingham & Anor [2025] SASC 22; Bowditch v NSW Trustee and Guardian [2012] NSWCA 275; Burke v Burke [2015] NSWCA 195; In re Allen (Deceased), Allen v Manchester & Anor [1922] NZLR 218; Grey v Harrison [1997] 2 VR 359, considered. -- 2 of 32 -- In the Estate of R (DECEASED) R & ORS v F & ORS [2025] SASC 92 Civil: Trial 1 McINTYRE J: This matter relates to applications under the Inheritance (Family Provision) Act 1972 (SA) (‘IFP Act’), in respect of the estate of the deceased who died on 24 July 2022. 2 I refer, in these reasons, to the family members by their first names. I do this for clarity without intending any disrespect. 3 The deceased and her late husband, RR, had five children. FR, RF, AC, MB and JR. RR died on 14 September 2010. JR died in August 2017. The deceased left her estate to be divided equally between her four daughters. 4 CR and MR are the children of JR’s marriage to DR. They are the deceased’s grandchildren. DR is acting as the litigation guardian for her daughters. On their behalf she seeks provision from the deceased’s estate for their maintenance, education and advancement in life under the IFP Act. 5 IM and MM through their litigation guardian and mother VM seek a declaration under s 9 of the Family Relationships Act 1975 (SA) (‘FR Act’) that JR is their father. They further seek orders for provision in relation to their maintenance, education and advancement in life to be made out of the deceased’s estate under the IFP Act. 6 The claims are resisted by the deceased’s daughters, both in their capacity as executors of her estate and their personal capacity as beneficiaries. 7 For the reasons that I now deliver I find that: 1. It is appropriate to make a declaration under s 9 of the FR Act that JR is the father of both IM and MM. 2. CR, MR, IM and MM, as Deceased’s grandchildren, are eligible applicants under s 6(h) of the IFP Act. 3. CR, MR, IM and MM have been left without adequate provision for their proper maintenance, education and advancement in life; and 4. CR, MR, IM and MM are entitled to the sum of $125,000 each, inclusive of interest. Background 8 The deceased was born in San Procopio, Reggio Calabria Italy, on 2 July 1935. The deceased came to Australia in the early 1960s and met RR. They -- 3 of 32 -- [2025] SASC 92 McIntyre J 2 married in 1963. Prior to their marriage, RR had acquired a large parcel of land at Athelstone, South Australia. This land included a house. 9 RR and the deceased had five children: RF born on 25 April 1964, FR born on 19 September 1965, AC born on 25 December 1969, MB born on 17 November 1971 and JR born on 4 January 1973. They brought their children up in the original house on the Athelstone block until about 1973, when they moved into a new house that they had built on the other side of the block. The original house was demolished, but they retained the land on which it was situated on the same title as the new house. The block was used for growing fruit, vegetables, goats and chickens for the family. 10 The deceased did not work in paid employment. Her English was limited. Her main language was the Calabrese dialect of Italian. RR spoke English very well and was employed for many years at the Adelaide Railway Station. Unfortunately, he was diagnosed with tuberculosis in the early 1970s and could not continue to work. He remained in poor health and in receipt of a pension until his death in 2010. The deceased inherited her husband’s estate including the Athelstone land. 11 The deceased and RR’s children lived at home with their parents until they married and had children of their own. RF married in 1988. She has two adult children. FR married in 1988 and has four adult children. AC married in 1990 and has four adult children. MB married in 1995 and has two adult children. JR remained at home until he married DR on 13 April 2002. JR and DR have two children. CR born on 30 July 2007 and MR born on 9 November 2012. DR and JR eventually separated. The precise date and circumstances are controversial, but there is no dispute that they were separated from at least 2013. Proceedings were instituted in the Federal Circuit Court of Australia (“Family Court”) in relation to property and custody matters. They did not divorce. 12 VM met JR through a mutual friend in around January 2010. VM was at the time single with a daughter who is now an adult and financially independent. VM wished to have another child but was not in a relationship. She discussed that with JR who was willing to father a child with her. VM and JR saw each other approximately four or five times over a three-month period from January to March 2010. During the course of that relationship, VM became pregnant. VM gave birth to twin daughters, IM and MM, on 7 December 2010. JR was informed of the birth of his daughters and expressed a wish to see them one day. He did not meet the girls in person but received updates from VM by text and telephone. He did not contribute to their maintenance. VM was the sole carer for the girls and supported them from her income. JR did not tell the deceased about IM and MM. the deceased only became aware of their existence after JR’s death. 13 JR died on 20 August 2017. He was 44 years of age. At the time of JR’s death, DR had sole care of the children and supported them without financial -- 4 of 32 -- [2025] SASC 92 McIntyre J 3 assistance from JR. JR’s business had failed, and he was made bankrupt on 2 May 2017. None of JR’s daughters received any inheritance from his estate. 14 On 8 November 2019, the Family Court finalised the proceedings between JR and DR by noting JR’s bankruptcy and death and making orders relating to the disputed property. As a consequence of the Family Court orders, DR received money from the couples’ joint ANZ account in the sum of $323,000, less $12,500 paid to the trustee in bankruptcy. There were no other joint assets. The deceased’s will 15 The deceased died in South Australia on 24 July 2022, at the age of 87, leaving an estate worth about $8.5 million. The will, which is dated 25 January 2018, makes no provision for JR’s children. Her estate is left to JR’s four adult siblings, RF, FR, AC and MB, with a substitution clause leaving their share in the estate to their children in the event that they predeceased the deceased. 16 Probate of the will was granted to the respondents on 13 September 2022. A further partial distribution was made to each of the four beneficiaries in the sum of $25,000 on 23 September 2022. The main asset of the estate was the Athelstone property. The land was subdivided and partly sold in about November 2022 for the sum of approximately $7.2 million. On 29 November 2022, there was a partial distribution of the estate to three of the four beneficiaries, RF, FR and AC, in the sum of $1.7 million each. $1.7 million was distributed to MB on 8 December 2022. 17 On 13 January 2023, a notice of intended claim was lodged on behalf of CR and MR and proceedings were subsequently issued on 2 March 2023.1 A similar notice was lodged on behalf of IM and MM and proceedings were issued on 18 April 2024.2 18 On 1 October 2024, the deceased’s house at Maryvale Road, now held by her four daughters, was valued at $1.39 million. Witnesses 19 The trial of this matter proceeded over six days. The only witnesses called on the applicants’ cases were DR and VM. Both impressed me as hardworking mothers trying to do the best for their children. The respondents all gave evidence as did DC, AC’s son. The respondents were clearly women who place great importance on family and, in particular, loved, valued and respected their mother. Each witness did their best to assist the court, although there were some differences of perspective resulting in factual disagreements which I will deal with in context. I am not critical of any witness concerning this conflict. Plainly, each had a different experience of, and a different emotional response to, the somewhat difficult circumstances that arose in this matter. Apart from the uncontroversial 1 FDN 1. 2 FDN 16. -- 5 of 32 -- [2025] SASC 92 McIntyre J 4 background summarised above, the evidence dealt with two key topics; the children’s relationship with the deceased and the personal circumstances of the various parties. 20 In addition to the oral evidence, a large number of documents were tendered including an affidavit of LL made on 15 April 2024.3 LL is a daughter of FR. It was agreed that this represents the evidence that she would have given had she been called to give evidence. The other parties did not require her to be available for cross examination, but the applicants contend that this evidence is largely irrelevant. De bene esse ruling 21 There are six documents in the trial exhibit list that were received de bene esse. Of those documents, four concern the deceased's penultimate will and her decision to amend that will to create the will that is the subject of these proceedings.4 All four applicants press the admission of those documents. The other two documents are pressed by the first and second applicants and they concern JR.5 The respondents object to the tender of all six documents. Penultimate Will & File notes 22 The first and second applicant, supported by the third and fourth applicant, seek to tender the deceased’s penultimate will and three file notes of her solicitors. Under clause 6 of the penultimate will,6 all of JR's children were entitled to a portion of Deceased's estate. The file notes of the deceased’s solicitor indicate what instructions were provided at various times. One file note dated 9 November 2017 refers to instructions taken for the penultimate will,7 the second dated 21 November 2017 relates to the execution of the penultimate will8 and the third dated 25 January 2018 deals with the instructions for the current will.9 23 The applicants submit that the penultimate will relevantly indicates what the deceased considered to be her moral duty at that point in time and that the file notes indicate what the deceased’s intentions were at the time she altered her penultimate will to the present will. They rely on the penultimate will to make the submission that a wise and just testator would have made a will in the same or similar terms, in light of the children's circumstances. 24 The respondents argue that the penultimate will is not relevant. They submit that because moral duty is an objective question, the deceased's considerations at the time of making the final will are of little relevance and further, that her considerations in making an earlier will are of no relevance. The respondents 3 Exhibit RR 84. 4 Exhibit DBE AR 5; Exhibit DBE AR 6; Exhibit DBE AR 7; Exhibit DBE AR 9. 5 Exhibit DBE AR 24; Exhibit DBE AR 30. 6 Exhibit DBE AR 5. 7 Exhibit DBE AR 6. 8 Exhibit DBE AR 7. 9 Exhibit DBE AR 9. -- 6 of 32 -- [2025] SASC 92 McIntyre J 5 further submit that the earlier will should not be admitted, as the applicants seek, to support a contention that clause 6 in the penultimate will was an adequate provision for the applicants. 25 The respondents rely on De Jonge v Soar & Ors10 (‘De Jonge’) for the propositions that they advance. That case involved an application for discovery of the deceased’s prior wills. The applicant in De Jonge contended that, in determining whether the deceased had a moral duty to leave estate property to her, the court was entitled to take into account evidence of what the deceased considered his moral duty at the time of the penultimate will and to compare that will with the final will. In rejecting the applicant’s application for discovery of prior wills Bochner AsJ said:11 The applicant has not relied on any authority or evidence which says that the deceased’s own idea of his moral duty can be ascertained by the dispositions in his penultimate (or indeed, last) will. The deceased may have determined to be more generous than his moral duty required, or less. In the absence of any evidence other than the penultimate will, it is hard to form any conclusion about what the deceased considered his moral duty to be in 2011. I do not consider that the deceased’s penultimate will, or any will other than his last will, is a discoverable document in this action. It will not tend to prove or disprove any matter in issue between the parties. It will not determine whether the applicant has been left without adequate provision or, if she has been so left, what adequate provision would amount to. This is not to say that the previous will or wills of a testator will not be relevant in other cases. Whether previous wills are discoverable will depend on the circumstances of each case. 26 De Jonge is not authority for the proposition that a previous will of a deceased person will never be relevant. This will always depend on the circumstances of the case. In this case, unlike the situation in De Jonge, there is evidence about the deceased’s intentions beyond those contained in the will in the form of the file notes. The reasons of a deceased person for making certain provisions in her will are admissible. In Hughes v National Trustees, Executors and Agency Company of Australasia Ltd. Barwick CJ said: 12 Evidence of the reasons given by a testator or testatrix for making or not making a provision by will are, in my opinion, admissible as evidence of those reasons. Such statements are not evidence of the facts they assert: they provide evidence only of the subjective attitude or beliefs of the testator or testatrix. 27 Later, Barwick CJ went on to say:13 When attempting to decide what a particular testator or testatrix ought as a just and wise father or mother to have done, those reasons which that testator or testatrix actually entertained for his or her decision cannot, it seems to me, justly be ignored. Of course, if 10 [2024] SASC 88. 11 Ibid at [32] – [33]. 12 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd. (1979) 143 CLR 134 at 138. 13 Ibid. -- 7 of 32 -- [2025] SASC 92 McIntyre J 6 the evidence in the matter does not support such reasons, they cannot be acted upon simply because the deceased asserted or entertained them. 28 In the same case Gibbs J said:14 Nevertheless, in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true. 29 These statements have been quoted with approval and applied in South Australia.15 Whilst I accept the respondents’ submission that the question of moral duty is an objective one to be determined by reference to current community standards, the deceased’s stated reasons for excluding the applicants from the current will are nonetheless relevant considerations. These documents provide relevant evidence on that topic and will be admitted for that purpose and to provide the context in which the final will was made. I do, however, accept the submission that clause 6 of the penultimate will ought not to be admitted to establish what constitutes adequate provision. Forensic Science SA reports 30 The first and second applicants seek the admission of a report prepared by Forensic Science SA dated 28 October 2014, detailing the results of hair follicle testing of JR’s hair,16 on the basis that it relates to the breakdown of the relationship between JR and DR. It is submitted that the report will assist to corroborate the oral evidence given by DR and counter any suggestion that JR was not a user of methylamphetamine. It is also said to be relevant to orders made relating to JR’s contact with his children, which in turn is relevant to the question of why there was a reduction of the contact between the deceased, CR and MR over time. 31 The first and second applicant also seek to tender a bundle of documents relating to postmortem toxicology testing and the autopsy performed on JR by Forensic Science SA.17 These reports are dated 19 September 2017 and 6 February 2018 respectively. The reasons are similar to those advanced in relation to the hair follicle testing. In particular, it is said that the documents are relevant to corroborate DR’s evidence that JR was likely using illicit drugs at the time of his death. 14 Ibid at 150. 15 Wall v Crane [2009] SASC 382 at [119]; Piper v Fraser [2020] SASC 239 at [74]. 16 Exhibit DBE AR 24. 17 Exhibit DBE AR 30. -- 8 of 32 -- [2025] SASC 92 McIntyre J 7 32 The respondents object to the evidence primarily on the ground of relevance. It is contended that the evidence has no bearing or relevance to the questions raised by the application - namely whether there was a moral duty owed by the deceased to the first and second applicant. They further submit that the applicants have not complied with the UCR relating to expert reports in seeking to tender this material and that, if it is to be allowed, the authors of the reports ought to be made available for cross examination. 33 I have considered the material and the submissions. It is my view that the material is not relevant to the facts in issue. As will be seen, there is little controversy about the fact that JR was a user of methylamphetamine albeit there is a dispute as to the extent of this use. Further, there is no dispute as to the court orders made in respect of JR’s access to CR and MR. I therefore decline to admit these exhibits. Paternity 34 Section 9 of the FR Act provides as follows: 9—Declaration of parentage (1) Where— (a) a female person alleges that a particular person is the father or co-parent of her child; or (b) a person alleges that the relationship of father or co-parent and child exists between that person and another person; or (c) a person whose pecuniary interests, or whose rights or obligations at law or in equity, are affected according to whether the relationship of father or co-parent and child exists between two persons desires the court to determine whether such relationship exists between those persons, that person may apply to the Court for a declaration of parentage, and if it is proved to the satisfaction of the Court that the relationship exists, the Court may make such a declaration. (2) A declaration may be made under this section whether or not one or both of the persons in relation to whom the declaration is sought are dead. (3) The Court should not proceed to make a declaration under this section unless it is satisfied, as far as reasonably practicable, that all living persons whose interests are affected by the declaration have had the opportunity to make representations to the Court in relation to the subject matter of the proceedings. (4) Where a person claims that the relationship of father or co-parent and child exists between two persons, and one or both of those persons are dead at the time of the proceedings, a declaration shall not be made under this section unless the claim is supported by credible corroborative evidence. 35 An application under s 9(1) of the FR Act is to be determined in accordance with the ordinary civil standard of proof without reference to, or application of, the -- 9 of 32 -- [2025] SASC 92 McIntyre J 8 considerations in Briginshaw v Briginshaw.18 It is therefore necessary to prove facts from which a conclusion could be reached in the sense of an actual persuasion on the balance of probabilities that JR was the biological father of IM and MM.19 Given that JR is deceased, s 9(4) of the FR Act requires that there be credible corroborative evidence to support their claim. Corroboration as required under s 9(4) was considered in H, AM v L, L where Nicholson J stated as follows: Corroboration does not mean the same thing as independent proof of the material fact in controversy. Corroboration need not be independent evidence of everything which the corroborated witness says. Otherwise, the evidence of the latter (in this case Mrs H) would be unnecessary. What is capable of amounting to corroboration is a question of law. Whether in a particular case it is to be accepted as such is a question of fact for the tribunal of fact. Counsel for the plaintiff argued that the evidence of Mrs H, itself, satisfied the requirement for credible corroborative evidence. This cannot be so. Her evidence is the primary evidence in support of the plaintiff’s “claim”; it cannot also be the corroborating evidence. As Isaacs J observed in Ridley v Whipp, corroboration must be by independent testimony and must be such as by its own force to support the contention in question. [citations omitted] 36 In this case, what is required is corroboration of VM’s evidence that she was in a sexual relationship with JR that resulted in the birth of IM and MM. That corroboration is supplied by the DNA evidence20 which establishes that both IM and MM are JR’s biological daughters with a conservative probability greater than 99.999995% and by evidence that JR considered himself to be the father of the children.21 37 I am satisfied that it is appropriate to make a declaration under s 9 of the FR Act that JR is the father of both IM and MM. JR and DR’s marriage and separation 38 The differences in the evidence between DR and the sisters are relatively minor and often a result of a different perspective on emotionally fraught matters. This includes matters such as the separation of JR and DR, the family issues that followed that separation and the circumstances of JR’s death. Not all of those differences need to be resolved. JR’s death is a fact and the circumstances of it are largely irrelevant. However, the circumstances of DR and JR’s marriage and separation are relevant to their children’s relationship to their grandmother and to the evidence given on that topic. 39 DR gave evidence about difficulties arising in her marriage owing to JR’s use of illicit drugs and his infidelity. She observed changes in JR’s personality and routine in around 2010. He started coming home late at night, he was more agitated 18 (1938) 60 CLR 336. 19 H, AM v L, L (2013) 121 SASR 1. 20 Exhibit AM 85. 21 Exhibit AM 89; T407-408. -- 10 of 32 -- [2025] SASC 92 McIntyre J 9 and, as she described it, “easily set off.”22 His business was adversely affected. DR, who did the books for the business, noted problems with the finances and large unexplained withdrawals of cash. She described an incident, in 2010, where she observed her husband taking drugs following which she called her sister in law AC and her husband. They arranged counselling for JR and DR at a private rehabilitation centre but, according to DR, this did not go well when AC took exception to something that the counsellor said. Ultimately, this led to an estrangement between DR and JR’s sisters. 40 DR said that she and JR separated in 2013 when DR took the children and moved in with her parents. DR said that this was because of JR’s continuing drug use and the fact that he had a girlfriend. DR says that she did not see JR’s family much after this as they were quite hostile towards her. 41 AC gave oral evidence that her understanding was that JR and DR were separated but living in the matrimonial home from around 2009 until JR’s death. AC’s affidavit, sworn on 19 June 2023,23 however, deposes to DR moving out of the matrimonial home on 15 September 2013. This inconsistency was not put to her and I assume that the oral evidence was the result of a misunderstanding of the question. AC denied that she was called to the home by DR following her finding JR using drugs. AC said she was called because JR and DR were arguing. AC accepted that DR had told her about her concern that JR was using drugs. She also accepted that JR was a “recreational” user of methylamphetamine but denied he was a regular user.24 AC said that this was why counselling was arranged at a private rehabilitation centre. AC agreed that she attended that centre but denied DR’s evidence that she took umbrage at comments made by the counsellor, saying that the counsellor did not speak to her. 42 RF said that JR and DR separated in 2013 because there was a lot of arguing. DR told her that JR was using drugs, but RF never saw JR use drugs and she never discussed that topic with him. RF said that DR and the children left the matrimonial home in about September 2013. After their separation RF was nominated as a supervisor for JR’s contact visits with his daughters under the Family Court orders. She gave evidence about her role as it changed under the various court orders. RF agreed that her relationship with DR changed (I infer for the worse) after the separation. 43 MB did not give evidence about the separation other than to note that it had occurred. She accepted that JR had problems with methylamphetamine use but denied he was an addict. DR had a different view and this caused a rift between her and JR’s sisters, including her. 22 T61. 23 FDN 18. 24 T355. -- 11 of 32 -- [2025] SASC 92 McIntyre J 10 44 FR’s evidence in chief comprised two affidavits sworn by her; the first on 20 June 202325 and the second on 15 April 2024.26 Her evidence did not deal with the matrimonial issues between DR and JR. FR did however maintain a cordial relationship with DR after the separation and continued to see the girls. 45 I find that DR and JR ceased living together in September 2013 when DR and the children moved out. Whilst I accept that their relationship was problematic, I do not accept AC’s evidence that DR and JR were separated but living under the same roof from 2009. No other witness, including DR, said that this was the case. I accept DR’s evidence that JR was, from at least 2010, a user of methylamphetamine. I note that, whilst the extent of use was disputed, AC, MB and RF did not dispute that JR was a user of that illicit drug. The fact that he was is relevant to his separation to DR, his subsequent contact with CR and MR and to the deterioration of the relationship between DR and JR’s sisters. I do not consider it necessary to make a finding about the extent of his drug use. I further find that the relationship between DR and JR’s sisters was adversely affected by the separation. It is clear from the evidence that the sisters, to a greater or lesser extent, aligned themselves with JR in his dispute with DR. The parties’ relationship with Deceased CR and MR 46 It is uncontroversial that the deceased loved CR and MR, but the nature and extent of their relationship is in dispute. DR gave evidence that CR and MR visited their grandmother regularly prior to her separation from JR. CR and MR were respectively six years and 10 months of age when JR and DR separated. The evidence that DR gave about contact between the deceased and her daughters prior to separation, therefore, largely related to CR rather than MR. DR said that they saw her at least once a week, more if there was a family function such as a birthday, anniversary or dinner. She, JR and the children had Sunday breakfast with RF and RF’s husband weekly. Often RF or JR would take the children to see the deceased. It seems from her evidence that DR rarely, if ever, took the children herself. 47 RF on the other hand said that she worked most Sundays and recalled only an occasional breakfast. RF denied that she took the children to visit the deceased after these breakfasts. The other respondents’ evidence concerning contact between the deceased and the children prior to the separation of their parents acknowledges varying degrees of contact. The tenor of the evidence is that the contact was not as extensive as asserted by DR. 48 The parties’ evidence was coloured by mutual animosity. The sisters appeared keen to minimise the extent of contact. DR on the other hand was eager to paint a picture of very regular contact. I do not accept that the contact was as frequent as DR suggests, that is weekly and sometimes more often, but 25 Exhibit RR 128. 26 Exhibit RR 129. -- 12 of 32 -- [2025] SASC 92 McIntyre J 11 nonetheless, I accept that prior to separation, there was regular contact between CR, and latterly MR, and the deceased which included family events such as Christmas, Easter and birthdays. 49 There is some dispute about the contact between the deceased, CR and MR following the separation. It is common ground that the only opportunity for contact was during JR’s contact visits. DR did not take the children to see the deceased. 50 DR says that initially there were Family Court orders for weekly visits between the girls and their father involving overnight access.27 DR and JR were not on speaking terms following the separation and accordingly, other than comments made to her by CR, DR did not know whether the children saw the deceased on these occasions. DR said CR would report having seen the deceased after every visit. RF however gave evidence that, whilst JR on occasions took the children to see the deceased during visits, he did not do so on every occasion. I prefer RF’s evidence on that topic. 51 The weekly visits ceased after a court ordered drug test showed drugs in JR’s system. Family Court orders dated 22 December 2014 provided for JR to have access every three weeks, supervised by RF and MB, with handovers to take place at a shopping centre pending acceptance into a supervised program at the Campbelltown Children’s Contact Service.28 It appears that the handovers were tense with animosity on both sides. JR did not comply with the requirements to enrol and be assessed for the Campbelltown Children’s Contact Service.29 The Family Court made orders granting DR sole parental responsibility for CR and MR on 21 April 2015,30 noting in the preamble that JR had not spent time with the children since 8 March 2015. Subsequent contact with the children was to be arranged on an ad hoc basis. It does not appear on the evidence that there was any such arrangement. The reasons for this are not clear on the evidence. Accordingly, the last contact between the girls and their father took place on 8 March 2015. In those circumstances, the deceased did not see CR or MR after that date. 52 After JR’s death, the deceased engaged a lawyer to request access to CR and MR.31 DR did not consent.32 She says that she was concerned about the children being uncomfortable in an unfamiliar environment and that the last drop off had been “a disaster” due to animosity with JR’s sisters, other than FR.33 There is no evidence of any communication between the deceased and CR and MR beyond this correspondence. 27 Exhibit AR 23. 28 Exhibit AR 25. 29 Exhibit AR 79. 30 Exhibit AR 27. 31 Exhibit AR 49. 32 FDN 31 at [20]; T460. 33 Exhibit AR 50. -- 13 of 32 -- [2025] SASC 92 McIntyre J 12 53 Each of the respondents gave evidence that the deceased was greatly saddened at being unable to see CR and MR and that she continued to love her grandchildren. The respondents are critical of DR for this decision and contend that she did not give a plausible explanation for the refusal. It is not necessary for me to comment upon that submission other than to note that the deceased wished to see her grandchildren but was unable to see CR and MR for the last seven years of her life. This is not the fault of CR, MR or Deceased. It is, to put it neutrally, a consequence of the breakdown of DR and JR’s marriage and the surrounding circumstances. The respondents contend and I accept that, whilst the deceased continued to have care and affection for CR and MR, there was no relationship between the deceased, CR and MR after March 2018 other than one of blood. IM and MM 54 The respondents say that the deceased loved all of her grandchildren equally and that she was affectionate towards IM and MM. However, the respondents contend that there was nothing that could be properly described as a “relationship” between IM and MM and the deceased. They point to the brevity of the contact between the twins and the deceased and the unusual relationship between VM and JR. It is said that there is nothing in VM’s evidence that suggested there was to be an ongoing relationship with the children’s father. I do not accept this submission. The relationship between JR and VM was not limited to his fathering the twins. I accept VM’s evidence that JR liked the idea of having another child but that he was not in a position to financially look after, or raise, a child. VM said that she wanted a child and was content to be solely responsible for the child’s upbringing. JR did however indicate that he would want some interaction with the child in the future and VM was happy to accommodate this.34 I accept VM’s evidence that JR was happy with the news that she was pregnant and also that he was informed of the birth of the twins. I further accept her evidence that they spoke sporadically by phone or text message and that JR would contact her for milestones such as when the girl’s started kindy or school. JR maintained that he wished to meet them when he had sorted his life out. This latter evidence was corroborated by AC.35 JR’s interest in the twins is further demonstrated by the fact that he told his sisters, AC, RF and MB about MM and IM. 55 It is common ground that the deceased did not know about IM and MM until after JR’s death on 20 August 2017. VM heard of his death through the news. She contacted AC on Facebook around October 2017. They then met at a café in Norwood. Shortly after this initial contact, VM arranged to meet Deceased, AC, MB and RF with IM and MM. This occurred in late October 2017. At the first meeting, the deceased told IM and MM to call her ‘Nonna’. She gave each of them a panda stuffed toy which they have kept to this day. VM described this as a very loving meeting between Deceased and the girls. The evidence of AC, MB and RF supports this assessment. 34 T224. 35 T228; T374. -- 14 of 32 -- [2025] SASC 92 McIntyre J 13 56 After the first meeting in around late October 2017, VM gave evidence that she, IM and MM regularly saw the deceased, AC, AC’s son DC, MB and RF. Initially they saw the deceased on approximately a weekly basis visiting on most Sundays with, on occasion, additional visits during the week before the visits became less frequent.36 There are photographs of some of these visits.37 57 VM arranged the meetings through AC, MB or RF. She said that the sisters requested her not to do so directly with Deceased. VM said that her friendly relationship with the deceased’s daughters changed when IM and MM were not included in family gatherings that took place at Christmas 2017, nor were they included in a family gathering held in January 2018 to mark JR’s first birthday since his death. VM expressed disappointment to AC that the girls were sometimes welcomed as granddaughters but at other times they were not. VM’s understanding was that it was because some of the family still did not know about the girls. VM did not want that for her daughters. It was confusing and upsetting for them. At a meeting in early 2018, VM told AC, RF and MB that it was “all or nothing”. She told them that she would never stop the deceased having a relationship with her daughters because she saw the bond that the deceased had with them, but she was concerned about the lack of consistency of contact upon the girls. 58 AC agreed that not all the family knew about IM and MM and that the sisters were unsure how to deal with that. She, MB and RF were still very distressed about the death of their brother and the circumstances surrounding it. They said that they needed space and time to deal with the issue of introducing the girls to the family, but VM wanted all or nothing and would not wait. 59 VM messaged AC on 4 March 2018 asking to organise a time to see the deceased with the girls. She did not receive a response. VM did not communicate with the respondents seeking to arrange for IM and MM to see the deceased after this date. There is a conflict between the evidence of VM and the respondents as to whether VM was told that the girls could not see the deceased without one of the sisters being present. The respondents deny that this was the case. VM gave evidence that this is what she recalls being told but, in any event, she did not feel welcome to see the deceased with the girls due to the fact that the sisters did not accept them fully. 60 There is a lack of clarity about the last time IM and MM saw the deceased. VM thought it was late December 2017 or possibly early January 2018. AC believed that the contact with the deceased ended in approximately February 2018. She thought that there were only five or six visits in total. RF said that the last time the deceased saw IM and MM was 18 February 2018. She was able to ascertain that date from photographs and messages.38 RF also said that the 36 T282; T238. 37 Exhibit AM 91. 38 T408 – 409. -- 15 of 32 -- [2025] SASC 92 McIntyre J 14 deceased only saw them five times at most. MB thought that the last time the deceased saw the girls was April 2018 and that there were about five meetings. On balance I find that the last meeting was in February 2018. 61 VM maintained contact with AC’s son, DC, which enabled her to maintain a line of communication with the deceased. She spoke to and messaged DC about wanting to see Deceased. She asked him to make sure that the deceased knew that she was always welcome to see the girls and invited him to bring her to visit. DC confirmed in his evidence that he passed messages of love and affection to the deceased from VM and the girls. He said that the deceased was appreciative of them. DC also gave the following evidence:39 Q Now, you've given evidence that you regularly see VM and the girls. When your grandmother was still alive did VM indicate to you that she wanted to see your grandmother. A Any time she would ask about seeing the girls I would always inform her to get in touch with my mother or my aunties to arrange a time to visit. Q And she told you that she didn't feel welcome at your grandmother's house with your mother and aunties. A She was under the belief that she wasn't allowed to be there, which I told her 'If you speak to my mum and aunties they can arrange a time'. Q But she continued to say she didn't feel that she could go there without your mother and aunties. A Yes. 62 DC said that whilst this was VM’s view, it was not true. 63 I find that, regardless of what VM was told, she understood that she was not welcome to see the deceased with IM and MM unless one of the sisters was present. This is consistent with DC’s evidence and her text messages to DC on 14 June 2022.40 It is unnecessary for me to make a finding as to whether VM’s belief was well founded – the consequence is that the deceased only met IM and MM over a five-month period, from October 2017 to February 2018. Even if VM’s evidence that there were more than five visits as contended by the respondents is accepted, on her evidence these more frequent visits only occurred between late October and mid-December when issues arose over IM and MM being excluded from family gatherings over Christmas 2017. Accordingly, it can be inferred that at most the deceased saw IM and MM no more than a dozen times. I do, however, note the evidence of both VM and DC that he saw the twins regularly which enabled VM to maintain a line of communication with the deceased. 39 T390 – 391. 40 Exhibit AM 93. -- 16 of 32 -- [2025] SASC 92 McIntyre J 15 The respondents 64 I accept the uncontroverted evidence that AC, MB, FR and RF gave about their relationship with their mother. They each spoke about growing up in a close and loving family where each child was required to perform chores in the home and garden. Each of them continued to maintain a close relationship with, and to provide support to, their parents throughout their lives. The sisters supported their mother’s decision to remain at home towards the end of her life and provided the practical assistance that she needed to achieve that. The extent of the deceased’s reliance on her daughters is corroborated by the instructions that she provided to her solicitors at the time she made this and the penultimate will.41 Circumstances of the parties DR, CR and MR 65 DR was born in 1974. She and JR married in 2002. When she met JR, she was working as a beauty therapist and JR worked as a delivery driver with his own vehicle. In 2000, DR did a TAFE administration course following which she worked as a receptionist for about three years before going to work at Myers. She worked full time at Myers until CR was born. After a period of maternity leave, she commenced working two days per week until she became pregnant with MR. She became unwell during that pregnancy and had to resign from Myers. Subsequently, DR did a medical receptionist course with TAFE and, in 2017, commenced working part time as a medical receptionist. She is presently working four days a week having recently increased from three days. 66 In 2017, DR suffered two strokes and was hospitalised for five days. Her speech was impaired and her right side very weak for some months after the stroke. She undertook rehabilitation with an occupational therapist, physiotherapy and speech pathology. Her condition has improved but she is left with residual deficits. 67 DR, in addition to her earnings, receives income support from Centrelink for parenting payments (sometimes called Jobseeker) and Family Tax Benefit A&B. The Centrelink payments for MR (parenting support) will stop when MR turns 14, the Family Tax Benefit will reduce when CR turns 18 and cease when MR turns 18. Her tax returns for the last four years show limited income from all sources not exceeding $55,000 per annum. Given DR’s health and employment history, it is unlikely that she will be able to substantially increase her income. 68 DR has some superannuation of about $70,000, shares to the value of about $500 and money in various bank accounts totalling about $160,000. The latter is mostly comprised of what remains from the Family Court orders. She does not own a motor vehicle but has the use of her parent’s vehicle. 69 She does not own any real estate. She and her children live at a house owned by her brother. DR does not pay rent because she contributed $109,000 to the 41 Exhibit DBE AR 6; Exhibit DBE AR 9. -- 17 of 32 -- [2025] SASC 92 McIntyre J 16 mortgage and has done some renovations to the kitchen, bathrooms and laundry. The funds for this came from her property settlement. DR is unable to buy a house given her limited income and the difficulty of obtaining a mortgage. 70 DR’s evidence concerning her income and expenditure was not led in a particularly helpful way. It did her evidence a disservice. Ultimately a document was tendered which represented DR’s efforts to demonstrate her expenses on a month to month basis but did not cover a full year, only a period from 1 January 2024 to 30 September 2024. It showed total expenses of $34,596.18 but DR said that this did not include medical expenses for MR and CR which were tendered separately.42 The schedule contains expenditure for extra curricular activities, including dance lessons for MR which DR conceded were paid by FR and her husband. In view of this, and the limited time period of the schedule, I approach this information with caution. 71 CR is about 17 years old and attends High School. She does well at school and would like to study at university. She has ambitions to be a teacher or a psychologist. CR has a number of health conditions: scoliosis, anxiety and coeliac disease. The scoliosis causes pain and a requirement for physiotherapy and anti- inflammatory medication. Surgery has been suggested in the past, but it now seems unlikely that this will be necessary. She is a regular gym goer which helps with this condition. Her anxiety condition is treated by a psychologist and requires some medication. The coeliac disease required an endoscopy on 2 October 2024 and a restrictive diet. CR is not able to eat anything containing wheat and barley and accordingly there is an associated additional cost for gluten free food. CR’s medical expenses for the period from 23 November 2020 to 23 September 2024 are $8,190.00.43 These expenses also include significant sums for the removal of teeth and fitting of braces, as well as ongoing costs for orthodontist visits. 72 CR has two bank accounts. One was initially set up by DR’s mother, but DR has also contributed to that. The evidence as to who made various contributions is unclear, but the balance at trial was $47,964.15. The other is an everyday account with a nominal amount for day to day expenses ($80 as at 22 September 2024). 73 MR is 12 years old and has a number of health issues. She has a nut allergy and carries an EpiPen. MR has had problems with her hearing and was diagnosed with an auditory processing disorder in October 2023.44 This results in significant difficulties with decoding, tolerance, fading memory and integration abilities. MR has undertaken 14 auditory training sessions. An audiologist report dated 2 August 202445 suggested she continue further therapy and trial a device. MR is to undertake another 12 sessions of auditory training (at a cost of about $2,000) before a decision is made about the recommended device. 42 Exhibit AR 68; T101–102. 43 Exhibit AR 34. 44 Exhibit AR 38. 45 Exhibit AR 40. -- 18 of 32 -- [2025] SASC 92 McIntyre J 17 74 DR found it hard to get MR to focus and complete tasks. Accordingly, she arranged for MR to visit a psychologist where she has received psychological help for anxiety and possible ADHD. The psychological report46 suggests MR meets the criteria for a diagnosis of Specific Learning Disorder Dyslexia. MR has also been recommended to undergo orthodontic treatment in the form of braces to straighten teeth as well as dental surgery. Between March 2021 and August 2024, total medical expenses for MR were $7,259.46.47 75 At the time of trial, MR was a student at St Francis of Assisi primary school. The out of pocket amount for DR after payment of a school card rebate is $1,940.48 St Francis does not have a secondary school and DR wishes to send MR to St Mary’s College. She believes that this school will better suit MR and her health issues than a state school, because of the smaller class sizes. The tuition rates are $5,700 to $10,000 per annum as the age levels climb.49 It is too early to assess what MR will do on completion of school. MR also does singing lessons, roller- skating and dance classes. 76 MR has a bank account originally set up by DR’s mother but contributed to by DR; again the contributions by each are unclear. The balance at trial was $48,878.36. 77 The respondents are critical of DR’s evidence concerning her financial position.50 Much of this criticism is warranted, however, I do not consider that the fault lies with DR. Rather DR’s evidence was not led in a particularly helpful manner making it more difficult to assess than might otherwise have been the case. For example, no proper schedule of assets and liabilities was produced prior to or at trial. Likewise, DR redacted her address and employer details on the tax returns that were initially tendered. This was unhelpful but ultimately did not affect the veracity of the documents or DR’s evidence. When the unredacted documents were provided they were consistent with her evidence. 78 DR did not concede that she had made a full recovery from her health conditions but accepted that they have not affected her earning capacity since 2018. She expects to work at least until the end of CR’s time at university.51 The various health conditions suffered by MR and CR do cause additional expense and I accept that the decision to send MR to a private school is an appropriate one in the light of her health issues. 79 The schedule tendered of DR’s living expenses and the schedules of medical and other expenses tendered for each of CR and MR52 are helpful but, given the limitations of these documents, it is challenging to ascertain whether these 46 Exhibit AR 38. 47 Exhibit AR 44. 48 T78; Exhibit AR 51. 49 Exhibit AR 52. 50 FDN 79 at [70] – [71]. 51 T141 – 142. 52 Exhibit AR 34; Exhibit AR 44. -- 19 of 32 -- [2025] SASC 92 McIntyre J 18 expenses exceed DR’s annual income. Noting the substantial savings that DR has maintained since her separation from JR, even accepting contributions by her parents, it seems likely that they do not. 80 DR’s financial circumstances could best be characterised as modest. Clearly, she manages her slender resources carefully in order to provide for MR and CR. She is fortunate to have assistance from her family; her parents have assisted her financially from time to time and her brother has provided accommodation. There is no dispute that JR died bankrupt and did not assist DR with financial support for the children following their separation. The money DR received as a result of the Family Court orders has enabled her to maintain accommodation and has supplemented her limited earnings. 81 The respondents contend that the Court should be suspicious of the arrangement between DR and her brother and whether the true nature of the arrangement has been disclosed. I do not consider it possible or necessary to resolve this issue. Their mother’s arrangement with her brother, whatever that may be, ensures that CR and MR have no need or expense arising from accommodation for the foreseeable future. VM, IM and MM 82 IM and MM are solely financially dependent on VM. Her main assets are her home which is valued at $660,000, but subject to a mortgage of $405,000, and her superannuation of just under $28,000. In addition to the mortgage, she has loans arising from her tertiary education in the order of $72,000. Her only income is her employment and family tax benefits. VM prepares and maintains a careful budget daily to monitor her spending.53 Whilst it is plain that VM is very careful with her expenditure, she generally spends more than she earns thus reducing her savings. 83 VM was diagnosed two years ago with Hashimoto’s disease as well as depression and anxiety. Hashimoto disease requires regular monitoring and blood testing to get the medication levels correct. VM has a number of debilitating symptoms. She requires testing and further assessment. She has not been able to do this yet due to the expense. 84 VM obtained a science degree with honours from university. She worked part time whilst caring for her daughters until 2020 when she obtained fulltime employment. The majority of this fulltime work has been in the NDIS sector. VM now works for T-shirt Ventures as a NDIS Plan Manager. She is able to work from home. She needs to take regular days off when she cannot work because she is having a flare-up of her medical condition. Currently VM earns $70,000 per annum (gross) or $2,128.77 per fortnight. Her previous income has been considerably less. VM is concerned about changes in the NDIS industry and what role plan managers and support coordinators will have in the future. If her position 53 Exhibit AM 111. -- 20 of 32 -- [2025] SASC 92 McIntyre J 19 was to become redundant, she is not sure what she would do, as this is the only full time position she has ever had. VM also receives family tax benefits of $644.98 per fortnight. This amount is currently being reduced by $70 for a lump sum advance payment VM received. Her total income per fortnight is currently $2,703.75 and will be $2,773.75 once she has repaid the advance she received. 85 IM attends Seaview High School and is in year 8. At school, she studies Japanese and has expressed interest in travelling to Japan in mid-2026 for a school trip. The cost of such a trip is likely to exceed $5,000. VM says it is unlikely that she will be able to fund this trip. IM plays netball for two clubs which costs approximately $1,200 per year. 86 MM also attends Seaview High School and is in year 8. Both at school and in her personal time, MM takes dance classes. She trains through Jess Dance Academy. This costs approximately $589.50 a term. MM would like to become a dance teacher. MM was unable to undertake her ballet exams last year as the costs exceeded $1,100 and VM could not afford it. MM has also been diagnosed with scoliosis and requires biannual reviews by a physiotherapist. 87 It is clear that VM watches her budget very carefully and has limited discretionary spending money. She, unlike DR, does not have any resources beyond those she is able to provide herself. I note her evidence indicates that she feels she is unable to give IM and MM all of the things she should be able to give them due to financial constraints.54 There are very detailed financial records relating to VM’s finances. I accept her evidence as to those expenses. It appears clear from that material that VM has only nominal assets and limited funds for contingency. There are a number of contingencies that might affect her financial position. In particular, her health and possible changes in the NDIS industry in which she presently works. It is further clear from her financial records that she ordinarily spends more than she receives in income and that her savings have been diminishing over time. Accordingly, I accept that she struggles to pay for the girl’s needs. AC and MB 88 MB and AC gave evidence. Neither claim to be in financial difficulty. In those circumstances, they have not made full disclosure of their income, assets and outgoings. I am satisfied that both have substantial assets and sufficient income to meet their needs. RF 89 RF is separated from her husband with whom she reached an informal property settlement. She is employed and had a taxable income in the order of $51,000 last financial year. She has assets, superannuation and property of approximately $1.748 million, not including her interest in the Maryvale Road 54 T270. -- 21 of 32 -- [2025] SASC 92 McIntyre J 20 property. Her assets are principally due to the inheritance she has received from the deceased’s estate. I find, however, that she is relatively financially secure and no longer has dependents to care for. FR 90 FR is married and her husband is in employment but approaching retirement age. He was on a limited income for some two years following an injury. FR does not work owing to long term health issues. She has expenses associated with those issues. FR says that she had no savings until she received her inheritance. Her affidavit sets out the manner in which she has spent her inheritance. Principally it was spent purchasing two properties. The house she and her husband were living in and another for her daughter LL, a single mother, to live in rent free. In addition, they have undertaken some renovations and purchased a new car. FR has also gifted amounts of money to her children to assist with their financial circumstances. Of the cash inheritance FR has about $35,000 remaining. She says she has assets in the order of $1.414 million, not including her interest in the Maryvale Road property. The applicants dispute this assessment saying that the two properties that she owns are valued in the order of $1.575 million. FR has supplied details of her income and expenditure. She gave evidence that she was not able to afford legal assistance for this matter and was forced to be self- represented. FR’s assets are due to the inheritance she received from the deceased. I accept that her financial circumstances are modest, but she is nonetheless in a relatively secure financial position. Legal Principles 91 The applications made on behalf of CR, MR, IM and MM for provision from Deceased’s estate are governed by s 7 of the IFP Act which provides as follows: 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 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. 92 At the time these proceedings were instituted, in South Australia, a grandchild was an eligible applicant without the need to satisfy any pre- -- 22 of 32 -- [2025] SASC 92 McIntyre J 21 conditions.55 The situation is different interstate and is now different in this State. The Succession Act 2023 (SA) repealed the IFP Act and now provides preconditions for claims by grandchildren in s 115(5) as follows: A grandchild of a deceased person is only entitled to claim the benefit of this Part if the grandchild satisfies the Court that— (a) the grandchild's parent, being a child of the deceased person, died before the deceased person; or (b) the grandchild was maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased person immediately before the deceased person's death 93 It is clear that all four applicants would satisfy the pre-condition in s 115(5)(a) of the Succession Act given that JR predeceased the deceased by nearly five years. However, s 2 of Schedule 4 of the Succession Act provides that any proceedings commenced prior to the designated day56 that have not been finally determined may be continued and completed as if the Succession Act had not been enacted. Accordingly, these claims are to be determined under the IFP Act. 94 In Parker & Ors v Australia Executor Trustees Ltd57 Lovell J described the general purpose of the IFP Act as follows:58 The purpose of the Act is to permit a court in certain circumstances to displace a testator’s dispositions. It does not impose any limitation on a testator’s power of disposition but if the statutory conditions are satisfied a court is empowered to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. The legislation is remedial in character and has been construed to give the most complete remedy which the phraseology will permit. [citations omitted] 95 It is well settled that an inquiry under s 7 of the IFP Act involves a two-stage process.59 First, a determination whether an applicant has been left without adequate provision for her proper maintenance, education and advancement in life and second, if the first determination is made in favour of an applicant, the court must consider what provision ought to be made from the deceased estate for the applicant. These tasks are similar and there is some degree of overlap. 96 The first stage of the inquiry is a question of fact which requires an evaluative judgment.60 It is often referred to as the “jurisdictional question”.61 It involves an objective assessment of all the circumstances in the case and a determination of whether, in fact, adequate provision has been made for an applicant. “Adequate” 55 IFP Act s 6(h). 56 1 January 2025. 57 [2016] SASC 64. 58 Ibid at [17]. 59 Bramwell v Bramwell & Ors [2023] SASCA 94 at [75] (‘Bramwell’); Ibid at [18] – [21]. 60 Singer v Berghouse (1994) 181 CLR 201 at [210] – [211] Mason CJ, Deane and McHugh JJ (‘Singer’). 61 Ibid at [208] – [209]. -- 23 of 32 -- [2025] SASC 92 McIntyre J 22 and “proper” are relative concepts. “Proper” connotes something different to “adequate” and the meaning of the words will vary according to the circumstances. Adequate provision is not limited to “basic subsistence or satisfying the mere needs” of a child.62 97 In Vigolo v Bostin63 the High Court stated that considerations of moral claims and moral duty have a proper place in the exposition of the legislative purpose and in the understanding an application of the statutory text. They are not, however, meant to be a substitute for the text. Community standards give the text of the statute practical meaning; these standards may change and develop over time. The question must be determined as at the date of the death of the deceased having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, together with all material eventualities that might, at that date, reasonably have been foreseen by a deceased who knew those facts.64 It requires consideration of the size and nature of the deceased's estate, the totality of the relationship between a claimant and the deceased, and the relationship between the deceased and other people who have legitimate claims upon his or her bounty.65 98 The second stage requires a court to decide “what provision ought to be made from the deceased’s estate for an applicant having regard to the factors set out in s 7 of the IFP Act.”66 The relevant factors must be assessed as they exist at the time of making the order. The process involves the exercise of judicial discretion taking into account similar considerations relevant to the first stage including the financial needs of the claimant, the size of the estate and the competing claims of other beneficiaries. In undertaking the relevant inquiry, the Court must consider the provision which a just and wise testator would have thought his or her moral duty to make, had he or she been fully aware of all the relevant circumstances,67 and must make due allowance for current social mores and community standards. 99 The respondents contend that, properly analysed, the claims are for “advancement” as distinct from “maintenance and education”. It is said that the applicants have been maintained by their respective mothers and that the evidence establishes that their education costs have been met and will continue to be met. The respondents further contend that successful claims for advancement by grandchildren are “rare and exceptional”.68 I do not accept the premise of this further contention. As indicated above, the question is not whether “mere needs” have been satisfied but whether adequate provision has been made for the proper maintenance and education in all of the circumstances. 62 Bowyer v Wood (2007) 99 SASR 190 at [39] – [42]. 63 (2005) 221 CLR 191 (‘Vigolo’). 64 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494. 65 Vigolo; ibid at [122]. 66 Bramwell at [79]. 67 Parker & Ors v Australian Executor Trustees Ltd [2016] SASC 64 at [31] – [33]. 68 FDN 79 at [7]. -- 24 of 32 -- [2025] SASC 92 McIntyre J 23 100 There have been relatively few decisions in South Australia concerning claims by grandchildren. The cases referred to by the parties are: In the Estate of Puckridge69; Eckert v Starick70; Wall v Crane & Ors71 and Columbus v Efstathis & Ors72. These are summarised in a recent decision by Flourentzou AAsJ in Bain & Anor v Ingham & Anor.73 Each of the parties has made detailed submissions concerning the principles to be extracted from those cases. In general terms these are as follows: • Whilst the Court must assess the matter as a “wise and just” testator, there is no “broad authority” to remake the will. The guiding principle is justice within the confines of the statute rather than generosity.74 • There is no general rule limiting claims of grandchildren where they fall within the purpose of the legislation.75 • A blood relationship may of itself give rise to a sufficient moral claim even in the absence of a developed relationship.76 101 All parties referred to the NSW decision of Bowditch v NSW Trustee and Guardian77 and, in particular, the guidelines suggested for grandchildren’s claims.78 These were summarised by Stanley J in Columbus v Efstathis and Ors79 as follows: A claimant for the benefit of the Act must establish, inter alia, that he or she has been left without adequate provision for his or her proper maintenance, education or advancement by reason of the testamentary dispositions or the operation of the laws of intestacy in respect of the estate against which the claim is brought. Whether a claimant can satisfy the Court of this matter depends on the Court’s satisfaction that the testator was under a moral obligation to make such adequate provision for the claimant from his or her estate. In Bowditch v NSW Trustee and Guardian, Hallen AsJ (as his Honour then was) suggested guidelines for claims made by grandchildren in the following terms: In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered: (a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. 69 (1978) 20 SASR 72 (‘Puckridge’). 70 [1994] SASC 4584 (‘Eckert’). 71 [2009] SASC 382 (‘Wall v Crane’). 72 [2019] SASC 149. 73 [2025] SASC 22 at [23] – [54]. 74 Eckert at [153]. 75 Ibid at [154]. 76 Puckridge at 77; Wall v Crane at [135]. 77 [2012] NSWCA 275. 78 At [113]. 79 Ibid at [21] – [23]. -- 25 of 32 -- [2025] SASC 92 McIntyre J 24 (b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. (f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. In Chapple v Wilcox Barrett JA approved the guidelines identified in Bowditch as providing a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply “the feeling and judgment of fair and reasonable members of the community” in such cases. With minor qualifications those guidelines were also approved by Basten JA and Gleeson JA. This statement of principle was followed by the Court of Appeal of the Northern Territory in Simonetto & Anor v Dick. [citations omitted]. 102 The Court is required to make a finding of moral duty in this case. The respondents say that the guidance in Bowditch is relevant as a summation of the cases across Australia which have considered community expectations in relation to provision by a grandparent to grandchildren. The respondents further contend that Stanley J adopted Bowditch as the prevailing standard in Columbus v Efstathis when he said:80 In accordance with Bowditch, as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition. That obligation rests on the parent of the child. Nor is a grandchild normally regarded as a natural object 80 At [40]. -- 26 of 32 -- [2025] SASC 92 McIntyre J 25 of the deceased’s testamentary recognition. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. While a moral obligation may be created in a particular case by reason of the care and affection provided by a grandchild to her grandparent, there is no evidence of that in this case. 103 I note that Stanley J was considering Bowditch in the context of a procedural decision on the question of joinder where an extension of time was required by an adult grandchild whose evidence was contested. Stanley J did not disapprove decisions such as Puckridge and Wall v Crane. Indeed, he cited White J’s comments in Wall v Crane saying:81 However, White J recognised that in particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased. That moral claim may be less than that of the deceased’s own children but may nevertheless be a valid moral claim. 104 I consider that the guidelines suggested in Bowditch are of assistance in considering claims such as the present, but I also consider that they should be applied with circumspection particularly given the South Australian authorities to which I was referred and the different legislation applicable. The first stage: has there been adequate provision for the applicants? 105 the deceased’s will makes no provision for the applicants. The question is whether in all of the circumstances a wise and just testator in the deceased’s position ought to have made provision for them in her will. The parties’ submissions 106 In the written closing submission for CR and MR, in reference to the penultimate will, it is said that:82 The ultimate submission of the applicants will be that a wise and just testator, in the position of the deceased would, having regard to all the circumstances including the facts that JR had died without leaving an estate, that his children were left without a father, and their mothers were not in a strong financial position, and noting the needs of JR’s children to which further mention will be made but including health and learning issues for MR and CR, have recognised a moral duty to provide for JR’s children, and would, having regard to the size of the estate, have made provision in similar terms to the ones that appear in this will as regards leaving one equal part to be divided equally between the grandchildren. 107 The factors that are said to be relevant to a consideration of CR and MR’s applications were set out as follows:83 The first and second applicants point to the following factors as being relevant: 20.1. JR’s death whilst the grandchildren were at a relatively young age. 81 Ibid at [26]. 82 FDN 77 at [26]. 83 FDN 77 at [20]. -- 27 of 32 -- [2025] SASC 92 McIntyre J 26 20.2. JR’s bankruptcy and lack of assets at the time of his death. 20.3. JR’s assets accordingly would not provide for the grandchildren. 20.4. DR is in a relatively modest financial position. With her age, health and experience that is unlikely to change. 20.5. The health issues of MR and CR. 20.6. The large size of the estate. 20.7. The extremely good financial position of the deceased’s four daughters, including that any order for provision still leaves each of them in an extremely good financial position – the estate is large enough to make provision for the first and second applicants as well. 108 Similar submissions are made on behalf of IM and MM concluding with the submission that:84 Having regarding to accepted contemporary community standards, the deceased undoubtedly owed a moral duty to IM and MM, which was breached in the failure to make any provision to them. 109 Three principal reasons are advanced for this submission. First, it is said that the blood relationship of grandparent/grandchild together with the significant size of the estate alone gives rise to a moral claim. It is said that the estate is large enough to meet the claims of IM and MM (together with CR and MR) whilst still adequately meeting the needs of the respondents. 110 Second, it is contended that there was more than a mere blood relationship between the deceased, IM and MM because, despite the limited physical contact, there was a loving and affectionate relationship between them. To the extent that the respondents rely on the suggestion that the relationship between JR and VM was that of a ‘mere sperm donor’ or bare paternity, it is said that there is no evidence that the deceased had any knowledge of the circumstances of the twin’s conception but further:85 In any event, this was not a case of a ‘mere sperm donor’, or even ‘bare paternity’. VM’s unchallenged evidence was that JR said he wanted to meet the girls and have interaction in their lives when he sorted out matters in his life. And AC, RF and MB all gave evidence that JR told them that he wanted to meet IM and MM. 111 Finally, it is contended that the moral claim asserted by IM and MM is that they have no expectation of financial support or inheritance from JR and further it is said that:86 Overlapping with the submission in the preceding paragraph is that IM and MM are clearly in need, when viewed against the financial means of VM (as described in detail above). IM and MM have no capital fund or income, and would not expect to receive substantial 84 FDN 76 at [120]. 85 FDN 76 at [124]. 86 FDN 76 at [126]. -- 28 of 32 -- [2025] SASC 92 McIntyre J 27 financial support from VM in the future, whose ability to provide is largely limited (but only just) to the “basics for food, clothing and accommodation”. She would have difficulties in meeting any further expenses, such as the potential trip for IM to Japan, or the purchase of laptops required once the girls go into year 10. 112 The submissions made on behalf of AC, MB and RF contend that JR’s death did not leave the applicants without adequate or proper maintenance. It is said that all four children are being adequately provided for by their mothers. The deceased did not assume responsibility for the care or maintenance of any of the applicants nor did she have any ongoing relationship with any of the children beyond the blood relationship. The respondents on the other hand had an ongoing, caring and loving relationship with their mother. Further, whilst the size of the estate is a relevant consideration, and it is conceded that the deceased’s estate may be characterised as “large”, the respondents refer to the warnings in the case law against rewriting a will simply because the estate is able to accommodate such an order.87 113 FR prepared her own written submissions supporting the submissions made on behalf of her sisters but adding some observations of her own. In particular, she noted the daily emotional and physical support that she and her three sisters provided to their mother from 2010 when their father was placed in palliative care. This need for support intensified following JR’s death and involved around the clock support in the time leading up to their mother’s death. FR contrasts this with the limited contact the deceased had with the applicants. The deceased wanted a relationship with CR and MR but did not get that opportunity. In relation to IM and MM, FR contends that:88 The generosity shown by my mother in regard to a loving relationship for a few months does not then create an obligation upon death to then fund and support their life which is already adequately provided for by their mother. 114 FR submits that her mother’s final will “clearly reflected her carefully considered inherent ability to bestow her financial legacy to the people who played a large role in her life”.89 FR points to the file notes that establish that her mother carefully considered the legal advice that she was given and says:90 To disturb the wishes of a wise and just woman such as my mother, seems to step too far outside the fundamental intrinsic rights of an individual to bestow their legacy to those they hold most dearly in life. Consideration 115 All four applicants are dependent upon their respective mothers in view of JR’s financial circumstances and early death. At no point did the deceased provide care or financial assistance to any of the applicants. Both mothers continue to 87 Coates v National Trustees Executors & Agency Co. Ltd. (1956) 95 CLR 494 at 514. 88 Written submissions [23]. 89 Written submissions [18]. 90 Written submissions [27]. -- 29 of 32 -- [2025] SASC 92 McIntyre J 28 maintain and educate their children to the best of their ability. I accept that the applicants are being housed, fed and educated and that their various health needs are also attended to. However, I also accept that there is not much, if any, room for discretionary spending. Both DR and VM are in modest financial circumstances as set out above. Their ability to meet the basic needs of their children is a credit to them and their ability to manage their limited finances. These circumstances are unlikely to change for the better. There is some prospect of adverse contingencies given the health conditions suffered by both. 116 The sisters are at least as well off as VM or DR. AC and MB are significantly more financially secure than either VM or DR. The estate is large. Provision for the grandchildren could be accommodated from the estate without great difficulty or hardship to the respondents. 117 On the other hand, it is clear that the deceased thought very carefully about what, if anything, she should leave to JR’s children before deciding to make her final will. The solicitor’s notes indicate that the deceased wished to recognise the help and support provided by her daughters. The decision not to make provision for the applicants was not a capricious decision. The notes for both the penultimate will and the current will indicate that the deceased placed some value on the blood relationship. Whilst the deceased had some doubts about the parentage of IM and MM, her penultimate will dealt with that issue by requiring proof that JR was their father prior to any entitlement. The notes also highlight that the deceased was concerned about her lack of contact with CR, MR, IM and MM. 118 Lack of contact or estrangement does not of itself mean that a claimant cannot satisfy the jurisdictional question. It is necessary to consider all of the circumstances relevant to that lack of contact.91 The lack of relationship was not the fault of the children,. Equally, the deceased was not at fault and it is plain that this was a source of considerable sadness in her final years. 119 Prior to the separation of their parents, CR and MR had what I would characterise as a normal grandparent/grandchild relationship with the deceased in that they had regular contact with her on visits and family occasions. Following the separation, the deceased’s relationship with the girls was significantly curtailed. It effectively ended some seven years prior to the deceased’s death. In relation to IM and MM, I accept that the relationship between JR and VM was more significant than that of an informal sperm donor arrangement. It had the potential for JR to have a future connection with his children had it not been for his untimely death. However, it is clear that VM at no stage had any expectation of financial assistance from JR. The deceased did not know about the twins until after JR’s death, her physical contact with them was extremely limited. After February 2018, her only contact with them comprised DC relaying VM’s messages. 91 Burke v Burke [2015] NSWCA 195. -- 30 of 32 -- [2025] SASC 92 McIntyre J 29 120 On balance, I consider that CR and MR and IM and MM have been left without “adequate” provision for their “proper” maintenance, education or advancement in life and that the deceased did owe a moral duty to these grandchildren, despite the lack of contact and the other factors I have mentioned, given the unusual combination of factors of which she was aware. 121 For CR and MR the relevant factors are the early death of their father and his lack of assets at the time, their dependence upon their mother who has relatively slender means, the costs associated with their various health issues, including the need for MR to attend private school. This combination of factors taken in the context of the size of the estate mean that they do not have adequate provision for proper maintenance, education and advancement in life. For IM and MM, similar factors apply. Although there is not the same expenditure required in relation to health issues, their mother does not have family support such as that enjoyed by DR and has less ability to cope with any adverse circumstances that may arise. 122 Whilst the children are far from destitute, it is clear that finances for both sets of applicants are tight. Their immediate needs are met but the financial circumstances of their mothers do not allow for discretionary spending of any magnitude, nor do they allow for foreseeable adverse contingencies such as the inability of VM and DR to continue working. This is not unusual for single mothers. The deceased was aware that her son was no longer able to provide for his children. It is my view that contemporary public opinion would expect a testator in these circumstances, particularly when regard is had to the size of the estate and the relative financial security of the respondents, to make some provision for these children. The second stage: what provision ought to be made from the estate having regard to the factors set out in s 7 of the IFP Act. 123 Turning now to what provision ought to be made in the circumstances of this case. There is necessarily some overlap with the consideration of the previous question about the adequacy of the current provision. Lovell J set out the relevant principles in Parker as follows:92 Determination of the second stage of the enquiry, should it arise, involves similar considerations to that under the first. As the Court needs to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, this assessment will largely influence the order which should be made. The basic principle the Court should consider is that explained by Salmond J in the case of In re Allen (Deceased), Allen v Manchester & Anor: The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. 92 Ibid at [31] – [34]. -- 31 of 32 -- [2025] SASC 92 McIntyre J 30 This test has been followed and applied many times by the High Court. The exercise of the discretion has been compared with “assessing damages” in personal injury matters and the “instinctive synthesis” approach to sentencing in the criminal courts. What is required is that a court take into account all relevant circumstances and give them due weight. [citations omitted] 124 The applicants press for a similar provision to that outlined in the penultimate will; that is an amount of $429,000 each. As indicated in my ruling on the de bene esse documents, I do not consider that the penultimate will provides guidance on that topic. What the deceased was prepared to do in that will does not necessarily reflect the considerations to be taken into account under s 7. The applicants’ contention is to, in effect, rewrite the deceased’s will to reincorporate clause 6 notwithstanding the considered and valid reasons she had for removing that provision. This is, as set out above, not the role of the court. It is my view that whilst contemporary society might expect some provision be made for CR, MR, IM and MM, the expectation would be for a more modest provision to achieve the purposes of the IFP Act. 125 The circumstances of each of the children, CR, MR, IM and MM, are so similar that I do not see any basis upon which it would be proper to differentiate in terms of their respective moral claims. Without repeating the matters set out above, it is clear that all of the children’s basic needs are being met by their mothers but no more. They all live a modest lifestyle. Further, there is no additional spending buffer allowing for adverse contingencies such as ill health or for advancement, such as the potential for IM to go to Japan or for MR to go to a private school to accommodate her learning difficulties. On the other hand, there is the lack of relationship with the deceased and the lack of prior reliance on funds from the deceased together with the circumstances surrounding the deceased’s decision to make the bequests to her daughters. Taking all of these matters into account, it is my view that the sum of $125,000 each, inclusive of interest, represents a proper reflection of the issues in this matter and provides adequate provision for each of the children without significantly affecting the entitlement of the respondents. 126 I will hear the parties on the form and manner of that provision given that the children are all minors and on the question of costs. -- 32 of 32 --