In Abakis v Abakis  VSC 437, the Supreme Court (Macaulay J) was considering a Testator’s Family Maintenance claim by a daughter of the deceased’s second marriage, where the deceased was survived by his second wife, her daughter, three children from his first marriage, and two stepchildren. The plaintiff was the only child to receive nothing under the Will (though she had earlier received a substantial land gift).
Macaulay J adopted the principles set out by Hargrave J in McCann v Ward & Burgess  VSC 63:
- Section 91 of the Administration and Probate Act 1958 (Vic)gives the court power to make an order for provision out of the estate where:
- the deceased had responsibility to make provision for the proper maintenance and support of the applicant; and
- the court is of the opinion that the will of the deceased does not make adequate provision for the proper maintenance and support of the applicant for the order.
- Whether the will makes adequate provision for the proper maintenance and support of the applicant is to be assessed by “‘by a consideration of the facts existing and the eventualities which might reasonably have been foreseen at the date of the testator’s death”.
- The court is to consider the matters set out in Section 91(4) (e)-(p) in considering the jurisdictional questions and the amount of any order.
- In determining the questions, the court must consider: “what provision a wise and just testator would have thought it was his or her moral duty to make for the applicant”.
- The testator is imputed to have been, at the time of death: “fully aware of all the relevant circumstances, including reasonably foreseeable eventualities existing at the date of death, whether or not actually known to the testator”.
- Should the two jurisdictional requirements be made, the court is to assess what order for further provision should be made, by reference to the state of facts as at the hearing date.
- The court should not transgress unnecessarily upon the testator’s freedom of testation but should proceed: “rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just” testator.
- However, where an order for further provision will not unduly prejudice other beneficiaries for whom the deceased had a responsibility to make provision, the court adopts a reasonably generous approach, such that any further provision: “should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and strength may gradually fail”. Further: “where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, the court may order further provision beyond the immediate and likely future needs of the applicant”, providing a “nest egg” to guard against unforseen events.
- No inflexible approach can be taken in assessing the two jurisdictional questions or the amount of any order to be made for further provision, as each case will depend on its own facts.
In this case, His Honour concluded that the deceased did have a responsibility to make provision for the plaintiff. Ultimately, taking into account the financial resources and needs of the plaintiff, the second wife, and the other children, and the size and nature of the estate, His Honour concluded that the plaintiff was entitled to a further provision of $475,000.