In Napolitano v State Trustees Ltd [2012] VSC 345, a nephew by marriage sued the executor under Part IV of the Administration and Probate Act claiming that his uncle had a responsibility to make provision under his will for his proper maintenance and support.  He asks the Court to order that provision be made for him. The executor asked for summary judgment, saying that nothing in the nephew’s affidavit is capable of showing that his uncle had a responsibility (conveniently spoken of in this field of the law as a moral responsibility on a wise and just testator) to make provision for him, and therefore the jurisdictional threshold for a Court’s intervention under the Act is not met. Mukhtar J concluded that where all the evidence is in, and (as happened here) the Court had able and extensive submissions from both counsel with reference to authorities  as would be expected at the trial, then on a summary judgment application the Court is performing the similitude of the trial function.  It is not so much assessing the prospects, but the actual merits. In this case, the evidence of the nature, quality and elements of the relationship between Antoine and the deceased is too imprecise, and falls well short of the types of relationship as between nephews or nieces and their aunts or uncles which might be recognised as giving rise to a responsibility to make provision for maintenance and support.

“Cases in this Court where successful claims have been made by, for example, a niece from an aunt have demonstrated strong facts are needed to show that the aunt or uncle were like de facto mothers or fathers or had otherwise played a part in the life of a niece of nephew so as to give rise to a responsibility.  It requires a demonstration at least that the deceased has taken, in the many ways possible in life, some responsibility for the child’s care, upbringing and development or welfare….

….The Court’s discretionary power under s 91 of the Administration and Probate Act is cast in very broad terms.  But it is important to remember that Courts do not intervene just because it would have been nice or good of a testator to give a benefit.  An uncle ought to be able to develop a relationship with a nephew without apprehending the law might impose a responsibility to provide for him.  That is why Courts have found it convenient and useful to resort to the concept of a moral duty and a moral claim in deciding whether provision should be made to a claimant….. The test is “whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant” having regard to community standards….”