Anslow v Journeaux
[2009] VSC 250
•23 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5577 of 2008
| PATRICIA ANSLOW | Plaintiff |
| v | |
| JOHN RICHARD JOURNEAUX and JOHN FRANCIS XAVIER DILLON | Defendants |
---
JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 – 17 June 2009 | |
DATE OF JUDGMENT: | 23 June 2009 | |
CASE MAY BE CITED AS: | Anslow v Journeaux & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 250 | |
---
TESTATOR’S FAMILY MAINTENANCE – De facto wife’s claim – Obligations and responsibilities of the deceased to the applicant – Obligations and responsibilities of the deceased to adult children – Contribution of the applicant to the welfare of the deceased – Financial resources of the applicant – Financial resources of adult children of the deceased – Provision of a unit and a nest egg – Inappropriateness of a life interest – Administration and Probate Act 1958, s 91.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.F. McNab | E.P. Johnson & Davies |
| For the Defendants | Mr M.C. McKenzie | Mahonys |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
The background facts........................................................................................................................ 3
The deceased’s three children......................................................................................................... 5
The plaintiff and the deceased’s three children as witnesses................................................... 6
The relationship between the plaintiff and the deceased......................................................... 6
Matters which must be had regard to.......................................................................................... 13
The prospect of the plaintiff realising any interest in 33 Pascoe Avenue............................ 14
Mr Anslow’s superannuation fund.............................................................................................. 17
The entitlements of Mr Farrington, Ms Cujko and Ms Farrington in respect of the Dennis Farrington trust................................................................................................................................. 18
The financial resources and needs of the parties....................................................................... 18
Does the Will make adequate provision for the proper maintenance and support of the plaintiff?.............................................................................................................................................................. 19
What is the amount of provision that should be ordered for the plaintiff?......................... 21
Conclusion......................................................................................................................................... 25
HIS HONOUR:
Introduction
Dennis Daniel Farrington (“the deceased”) died on 20 June 2007, leaving an estate the value of which is now agreed at $1,644,000. By his last Will,[1] the deceased left:
[1]Made 20 December 2006.
(a) the sum of $200,000 to the plaintiff;
(b) three other legacies totalling $11,000, which the plaintiff does not seek to set aside;[2] and
(c) the balance of his estate in equal shares to his three children, Wayne Edward Farrington, Dale Amanda Cujko and Tracey Anne Farrington.
[2]See T4.21.
The plaintiff has already been paid the sum of $200,000 left to her. In this proceeding, the plaintiff seeks, pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”), such provision for the plaintiff’s proper maintenance and support as the Court thinks fit to be made out of the estate of the deceased. Specifically, the plaintiff says that in substitution for the legacy of $200,000 she was left in the Will, she should receive a lump sum of $800,000 “being $500,000 to enable her to purchase a unit for her residence and a nest egg of $300,000”.[3] Alternatively, the plaintiff seeks “45% of the net estate after payment of estate liabilities and legacies other than the legacy left to her”.[4] It is to be noted that the sum of $800,000 (sought by the plaintiff) is 43.38% of the value of the estate if the plaintiff’s legacy is returned to the estate.[5]
[3]See the written opening on behalf of the plaintiff dated 15 June 2009 and T4.
[4]Ibid.
[5]In those circumstances the agreed value of the estate would be $1,844,000.
For the reasons given below, I have determined that in substitution for the legacy of $200,000 the plaintiff was left in the Will, the plaintiff should receive a legacy of $800,000.
The background facts
The plaintiff was born on 14 September 1937 and is now 71 years of age. In 1969, the plaintiff married Robert Anslow. In that same year, they had a daughter, Melinda. Prior to Melinda’s birth, the plaintiff gave birth to a son, Darren, in 1965. Mr Anslow was not the natural father of Darren.
In 1971, the plaintiff met the deceased. She describes the circumstances in which she met the deceased as follows:
“The circumstances by which I met him (the deceased) were that I was referred by my agent to be the vocalist for his band for a new year’s eve function. The function proceeded satisfactorily and, as I did not have a car at that time, Dennis offered to drive me to my home (then rented premises with my husband) and I accepted his offer.
Over the next two months, Dennis continued to give me work as a vocalist with his band and there was a mutual attraction between us to the extent that, after those two months, our relationship was more than merely professional. At the time my relationship with Dennis commenced, my husband was working shift work as a fitter and turner on the wharves and this did not facilitate the success of our marriage. Even within the first two months of meeting Dennis he was ‘courting’ me, although he was well aware that I was recently legally married. By this I mean that he was taking me to dinner and to theatre and like events on occasions quite separately from our professional commitments. We became intimate approximately two months after we first met and after we had gone out together on a number of occasions. The mutual attraction was strong and immediate. Dennis, being a professional showman, was very charismatic and I was immediately drawn to him and fascinated by him.
In the 6 – 8 months following my relationship with Dennis becoming intimate, I shared my time between his residence and the residence with my legal husband. It was also during this time that my legal husband and I moved into the Strathmore property[6] and out of the rented premises. My legal husband was the driving force behind the acquisition of the new home and it was he who located and purchased it. Knowing the situation that existed with Dennis at that time, I told (my) husband that I did not want this property purchased and that we should wait. He was by this time already aware of my relationship with Dennis but nevertheless persisted and purchased the house in joint names. My legal husband still, at that time, had hopes of preserving the marriage.”[7]
While there is a dispute between the parties concerning the nature and extent of the plaintiff’s relationship with the deceased (about which I will say more below), I accept the plaintiff’s account of the circumstances in which she met the deceased and the plaintiff’s account of the development of their relationship from a professional one to one involving both professional and personal aspects.
[6]This is a reference to 33 Pascoe Avenue, Strathmore, about which I will say more below.
[7]See paragraphs 7 to 9 of the plaintiff’s affidavit sworn 4 April 2008 (part of Exhibit A).
The plaintiff’s evidence is that from the mid 1970s she lived with the deceased. When she first met him, he lived in Blessington Street. However, her main association with him was at 40 Carlisle Street, St Kilda. The Certificate of Title in respect of 40 Carlisle Street shows the deceased became the registered proprietor of that property on 13 August 1976. This would suggest that if the plaintiff’s initial association with the deceased was mainly at 40 Carlisle Street,[8] then any serious relationship did not commence until at least the second half of 1976.
[8]See the plaintiff’s evidence at T15.29 – 16.2.
The plaintiff’s case is that she was the deceased’s domestic partner (de facto wife) for some 35 years up to the time of his death. This is disputed by the deceased’s three children. However, what is not in dispute is that in 2000 the deceased was diagnosed with bowel cancer, which led to the need for a colostomy bag for the last seven years of the deceased’s life. Further, what is not in dispute is that the plaintiff attended to the deceased’s personal needs, including the regular changing of the colostomy bag, and showering, changing and caring for the deceased. In relation to the colostomy bag, Ms Margot Korbell (the upstairs tenant of 40 Carlisle Street from March 2001 to the present) gave evidence:
“I was aware that Mr Farrington had been fitted with a colostomy bag which frequently leaked necessitating the plaintiff to change and wash Mr Farrington’s sheets often up to three and four times a day. The fact that the plaintiff was called upon to undertake this unpleasant and physically taxing task was obvious to me not only from my direct observations but also the use of washing and drying facilities in the rear garden.”[9]
Indeed counsel for the defendants stated:[10]
“We acknowledge that from the year 2000 when Dennis fell seriously ill Mrs Anslow was a mainstay. We acknowledge that she worked long and hard and was available to him in the last two years of his life. We acknowledge she was by his bedside and looking after him and caring for him and the children appreciated it and acknowledge it.”
[9]See Ms Korbell’s affidavit sworn 6 November 2008 (Exhibit E).
[10]T88.29 – 89.4.
The deceased’s three children
The deceased had three children: a son (Wayne Farrington) born to his first wife in 1941; a daughter (Dale Cujko), born in 1958 to his second wife; and a daughter (Tracey Farrington) born in 1960 to his second wife. In 1971, Wayne was 30, Dale was 13 and Tracey was 11.
The deceased separated from his first wife in 1946. When Wayne was seven years of age (1948), he moved with his mother to Queensland. While he made trips to Melbourne and visited the deceased with varying frequency over the years, from 1948 he has lived in Queensland.
The deceased separated from his second wife in 1973.[11] At that time, the deceased’s second wife took Dale and Tracey to live in Sydney. While Dale and Tracey also visited the deceased with varying frequency over the years, they, too, have lived interstate since moving from Melbourne (Dale in Sydney until 1994 and thereafter in Queensland, and Tracey in Sydney).
[11]See paragraph 3 of the affidavit of Dale Cujko (Exhibit 8) and paragraph 13 of the affidavit of Tracey Farrington (Exhibit 10) – but cf the reference to the deceased divorcing his second wife in about 1971 in paragraph 3 of Dale Cujko’s affidavit.
In essence, the deceased’s three children dispute the plaintiff’s claim that she was the deceased’s domestic partner (de facto wife). They dispute this fact because they say on the occasions they visited the deceased over the years (which visits were frequent and lasted for significant numbers of days), the plaintiff did not live with the deceased. They also rely upon the fact that, to their observation, the plaintiff appeared to live at 33 Pascoe Avenue, Strathmore (the property purchased by Mr Anslow in 1975) and the fact that the deceased had the telephone number of this property programmed into the speed dialler of his telephone under the label “Pat home”.[12] Before turning to the issue of the plaintiff’s relationship with the deceased, it is appropriate at this point to make some observations about the principal witnesses, the plaintiff and the deceased’s three children.
[12]There are other matters relied upon by the defendants (or more specifically the deceased’s three children), to which I will make reference below.
The plaintiff and the deceased’s three children as witnesses
The plaintiff, Mr Farrington, Ms Cujko and Ms Farrington, all gave their evidence in a straightforward fashion. To my observation, each of them attempted to give an honest and accurate account of events and circumstances as recollected by them. As is the nature of a case where questions are asked going back in excess of 30 years, there were discrepancies in some of the evidence. However, I did not form the view that any party or witness sought to mislead me. To the contrary, I formed the view that while there were different recollections, each witness was endeavouring to give an honest and accurate account of matters.
The difficulty for Mr Farrington, Ms Cujko and Ms Farrington is in the fact that, in giving their evidence, they were attempting to describe a relationship which existed between two other people (the deceased and the plaintiff). The plaintiff is, of course, better placed to describe the relationship – she having lived it. I have already said that I accept the plaintiff’s evidence was given honestly (as was the evidence of Mr Farrington, Ms Cujko and Ms Farrington). However, it is necessary to look now at the accuracy and reliability of the evidence of the plaintiff, Mr Farrington, Ms Cujko and Ms Farrington. I turn now to consider the whole of the evidence concerning the relationship between the plaintiff and the deceased.
The relationship between the plaintiff and the deceased
In addition to giving evidence herself, the plaintiff called evidence from a number of witnesses concerning her relationship with the deceased. First, the plaintiff called Mr Anslow. This was done to refute a suggestion in the defendants’ affidavit material that the plaintiff had cohabitated with Mr Anslow after they separated in 1971 or that she had treated his home as her place of residence at any time thereafter. Mr Anslow’s affidavit evidence was that these suggestions were “absolutely false”.[13] The suggestions arose in part (at least) because, notwithstanding the plaintiff’s evidence as to her residing with the deceased at 40 Carlisle Street, the plaintiff maintained her address for correspondence at 33 Pascoe Avenue throughout the time of her relationship with the deceased. Further, the Australian Electoral Commission database discloses the plaintiff as being registered as residing at 33 Pascoe Avenue.[14] When asked why she did not change her address, the plaintiff said:
“I don’t know. I just didn’t get around to changing it. I just sort of – Dennis had so much mail going there I just thought it was easier to go and collect my own mail out there.”[15]
[13]See Exhibit D (Mr Anslow’s affidavits sworn 17 October 2008 and 14 January 2009). While criticism of these affidavits was made on the basis of the more detailed evidence given by Mr Anslow at trial and on the basis of paragraph 9 of the plaintiff’s affidavit sworn 4 April 2008 (part of Exhibit A) and with respect to the ambiguity in the relationship between the plaintiff and Mr Anslow during the mid 70s, in my view there was no basis for this criticism. The affidavits were not an inappropriate response to the defendants’ affidavit material.
[14]See the affidavit of Andrew Meiliunas sworn 2 June 2009 (Exhibit 13).
[15]T38.4 - .7.
Secondly, the plaintiff called the upstairs tenant of 40 Carlisle Street, Ms Margot Korbell, to whom I have already referred. Her evidence covered the period from March 2001 until the death of the deceased. She gave the following evidence:
“The plaintiff was a permanent resident in the property and any suggestion that she did not reside there permanently is simply false.”[16]
“I observed her [the plaintiff] performing all the housework, gardening, cooking and shopping during the time of my residence and prior to Mr Farrington’s death.”[17]
“Based upon my observations and contemporaneous discussions with both the deceased and the plaintiff, I have no hesitation in confirming that the plaintiff was not only the deceased’s life partner but his professional associate and nurse during the entire time that I have known them both. It was also apparent to me, from the way in which Mr Farrington and the plaintiff interacted, that there was a close and loving relationship between them at all times.”[18]
[16]Paragraph 2(a) of Exhibit E.
[17]Paragraph 2(b) of Exhibit E.
[18]Paragraph 2(e) of Exhibit E.
Thirdly, the plaintiff called Barry Chambers. Mr Chambers first met the deceased some 60 years ago. He considered himself to be the deceased’s best friend.[19] Mr Chambers gave evidence that he first met the plaintiff in about the mid 1970s at a time when the plaintiff was “already in a steady relationship” with the deceased.[20] He said that at about that time he commenced to call at the deceased’s premises on a regular basis and at that time the plaintiff was “quite obviously resident at the deceased’s premises”.[21] Mr Chambers observed “a very close and loving relationship” between the plaintiff and the deceased.[22] He described a relationship which continued until the death of the deceased and during which the plaintiff was a “loyal, devoted and caring wife” to the deceased.[23]
[19]Paragraph 6 of Exhibit F.
[20]Paragraph 2 of Exhibit F.
[21]Paragraph 3 of Exhibit F.
[22]Paragraph 4 of Exhibit F.
[23]Paragraph 7 of Exhibit F.
Fourthly, the plaintiff called Mrs Nesta Kingston. Mrs Kingston gave evidence that the deceased was a friend of the Kingston family and a friend of hers since the 1940s. She met the plaintiff in the 1970s and observed that the plaintiff “became increasingly part of Dennis’ activities, both personal and professional”.[24] Mrs Kingston’s description of the relationship between the plaintiff and the deceased was that it was a “cemented and loving relationship and that Patricia was a constant companion, carer and supporter throughout Dennis’ difficulties”.[25] Mrs Kingston had difficulty in putting a timeframe to this description, but eventually said that it applied to “the 80s, 90s”.[26]
[24]Paragraph 2 of Exhibit H.
[25]Paragraph 5 of Exhibit H.
[26]T72.7.
Fifthly, the plaintiff tendered an affidavit from Mrs Jennifer Hoad.[27] Mrs Hoad now lives in Spain. In her affidavit, Mrs Hoad exhibits a statement made by her. In the statement, she describes making a trip to Australia in the early 70s where she met “Dennis’ friend”, the plaintiff. Mrs Hoad states that the plaintiff was sharing 40 Carlisle Street with the deceased. Further, Mrs Hoad describes keeping in contact with the deceased and the plaintiff over a 35 year period through correspondence and the telephone, and says “No matter what time we called, day or night, Pat and Dennis were together”. Mrs Hoad concluded her statement by saying:
“It has been suggested that Patricia Anslow was not living in the St Kilda house with Dennis. That is not true. They were partners and wonderful companions ….”
[27]Exhibit K.
Apart from calling Mr Meiliunas, who produced the evidence concerning the Australian Electoral Commission database, and apart from tendering one of the plaintiff’s bank statements[28] and a copy of the Certificate of Title in respect of 33 Pascoe Avenue,[29] the defendants’ evidence on the issue of the relationship was confined to the evidence given by the deceased’s three children, Mr Farrington, Ms Cujko and Ms Farrington. In summary, this evidence was to the effect that all three regularly visited the deceased and stayed at 40 Carlisle Street when they were in Melbourne (either visiting from Sydney or from Queensland) and the plaintiff was not there. Further, personal items and clothing which one might expect to be present if the plaintiff lived at 40 Carlisle Street were not observed by them. Additionally, the deceased had programmed into his home telephones the telephone number of 33 Pascoe Avenue. In further support of their contention that there was no close domestic relationship between the plaintiff and the deceased, Mr Farrington, Ms Cujko and Ms Farrington gave evidence of conversations with the plaintiff to the effect that 33 Pascoe Avenue was her home. These conversations included conversations about dogs it was said she said she owned and her love of the garden at 33 Pascoe Avenue. Additionally, evidence was given of visiting the plaintiff from time to time at 33 Pascoe Avenue (sometimes when the deceased was driving the relevant visitor back to the airport).
[28]Exhibit 2.
[29]Exhibit 3.
It was put to the plaintiff that 33 Pascoe Avenue was and remained her home, and that this was demonstrated by the fact that she never changed her address. Further, it was suggested that she had a very significant connection to the house in that she dealt with her own children there. The plaintiff’s answer to this was that while she visited 33 Pascoe Avenue in connection with the need to look after her children when they were of school age, the bulk of the responsibility for looking after her children was borne by the plaintiff’s mother (at the plaintiff’s mother’s home in Rob Street, Essendon). Further, while the plaintiff gave evidence that over the last 20 years she would probably have stayed one night “every couple of months” at Pascoe Avenue, she maintained that this did not mean Pascoe Avenue was her home rather than 40 Carlisle Street.[30]
[30]While there were other matters raised by the deceased’s children in an attempt to show that the plaintiff was not the deceased’s “lifetime partner”, each matter that was put to the plaintiff was (in my view) satisfactorily answered by the plaintiff (see for example not only the plaintiff’s evidence in respect of contact with the Kingstons and the Sicilianos – but also paragraphs 3 and 6 of the affidavit of Mrs Kingston (Exhibit H)).
Not all of the evidence is easy to reconcile. In part, some of the evidence called on behalf of the defendants (from the deceased’s children) can be reconciled by the fact that the plaintiff says she used to leave Carlisle Street when the deceased’s daughters were younger and when they came to visit, so that the deceased could have “quality time” with his daughters. However, this does not explain observed absences in later years or absences when Mr Farrington visited. The answer may lie in the different perceptions created in the minds of the parties by the perspective from which they viewed matters as they unfolded. It may be that the observed absences of the plaintiff in earlier years has coloured the perceptions of the defendants’ witnesses. Further, there may indeed have been absences in later years for one reason or another (perhaps again to give “quality time” between the deceased and his children or perhaps, in more later years, to give the plaintiff a break from what was undoubtedly onerous work in caring for the deceased and managing his colostomy bag).
In making findings as to the true nature and extent of the relationship between the plaintiff and the deceased, I have been much assisted by the evidence of Ms Korbell, Mr Chambers, Mrs Kingston and Mrs Hoad.[31] I accept their evidence. This evidence discloses a loving domestic partnership between the plaintiff and the deceased and that the plaintiff was the deceased’s de facto wife from at least the early 1980s, if not the late 1970s. Similarly, in broad terms, I accept the plaintiff’s evidence as to her relationship with the deceased. While there are some unusual features (most notably the plaintiff passing on the major burden of the care of her own children to her mother, the maintenance of the plaintiff’s address as 33 Pascoe Avenue and her continued contact with the Strathmore/Essendon area[32]), I am satisfied that the plaintiff was the deceased’s de facto wife for a period of the order of 30 years at the time of his death. In the end, where there is a conflict between the evidence of the plaintiff on the one hand and the evidence of Mr Farrington, Ms Cujko and Ms Farrington on the other hand, I prefer the evidence of the plaintiff: it is supported by the evidence of Mr Anslow, Ms Korbell, Mr Chambers, Mrs Kingston and Mrs Hoad. I have not overlooked that it is also supported (to some extent) by Exhibit C – the wedding invitation addressed to the deceased and the plaintiff in May 1973. The evidence of Mr Farrington, Ms Cujko and Ms Farrington was not of the same quality as that given by and on behalf of the plaintiff. Their observations from time to time when they visited Melbourne do not compare with the more detailed picture that was able to be given by those witnesses who resided in Melbourne throughout the period. To this end, I note Mr Chambers’ evidence that he “rarely met the deceased’s children as they resided interstate” – although he noted “that the children attend[ed] upon the deceased more regularly during the last 12 months of his life”.[33]
[31]Although Mrs Hoad did not give oral evidence.
[32]As disclosed by her evidence and Exhibit 2 (the Westpac Bank statement).
[33]See paragraph 12 of Exhibit F.
During the course of his final submissions, counsel for the defendants submitted that the issue was the “nature of the relationship and the duration”.[34] Further, he submitted that “one can never look at the relationship between the plaintiff and Dennis Farrington without having a significant aspect of that being what was her relationship with Robert Anslow. The nature of the relationship with Dennis Farrington is influenced by in fact the three way position here”.[35] It is true that there was a significant connection between the plaintiff and 33 Pascoe Avenue during the mid to late 70s, and probably into the early 80s. However, I accept the evidence of the plaintiff and Mr Anslow that there was not any cohabitation between them as man and wife. Further, the fact that the plaintiff had a significant connection with 33 Pascoe Avenue because of her parental responsibilities with respect to Darren and Melinda does not detract from or diminish the relationship between the plaintiff and the deceased. The carrying out by the plaintiff of her parental duties (i.e. looking after her own children) does not cause me to conclude that there was not a caring and committed relationship between the plaintiff and the deceased. Similarly, the fact that the plaintiff has maintained an ongoing connection with 33 Pascoe Avenue does not qualify or diminish the nature and extent of the relationship between the plaintiff and the deceased as I have found it existed over the 30 years prior to the death of the deceased. All that this evidence discloses is that (perhaps unusually) the deceased, the plaintiff and Mr Anslow enjoyed relations that were more cordial than might have been expected.[36]
[34]T156.21.
[35]T157.4 - .9.
[36]See for example the evidence concerning the trip to the Gold Coast referred to in paragraph 20 of the affidavit of Dale Cujko (Exhibit 8) as answered in paragraph 7(t) of the plaintiff’s affidavit sworn 9 January 2009 and paragraph 2(b)(iii) of the affidavit of Mr Anslow sworn 14 January 2009 (Parts of Exhibit A and Exhibit D respectively).
The plaintiff’s evidence and the evidence of the witnesses called on behalf of the plaintiff leads me to conclude that the plaintiff was the deceased’s domestic partner (de facto wife) for some 30 years prior to his death. That relationship was a close and loving relationship and involved a considerable amount of care and work performed by the plaintiff for the benefit of the deceased. Section 91(1) of the Act provides:
“Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had a responsibility to make provision.”
In the course of his final address, counsel for the defendants conceded a responsibility on the part of the deceased to make provision for the plaintiff.[37] This concession was rightly made. The evidence to which I have referred and the evidence to which I will refer on the issue of whether or not the deceased’s Will makes adequate provision for the proper maintenance and support of the plaintiff demonstrates the correctness of the defendants’ concession. I turn now to consider the matters which must be had regard to in determining whether or not the Will makes adequate provision for the proper maintenance and support of the plaintiff and the amount of provision (if any) which the Court may order for the plaintiff.
[37]Cf s 91(4)(a) of the Act. See T155.23 - .25.
Matters which must be had regard to
Section 91(4) of the Act provides that the Court, in determining whether or not the Will makes adequate provision for the proper maintenance and support of a person and the amount of provision (if any) which the Court may order for that person, must have regard to:
“(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant.”
While having regard to the 12 matters referred to above, I do not propose to burden this judgment by dealing with each of them in turn.[38] There are a number of specific matters which need to be addressed separately, namely:
[38]Cf Gigliotti v Gigliotti [2002] VSC 279 at paragraph [6].
(a) the prospect of the plaintiff realising any interest in 33 Pascoe Avenue;
(b) the prospect of the plaintiff sharing in or receiving any benefit from Mr Anslow’s superannuation fund;
(c) the entitlements of Mr Farrington, Ms Cujko and Ms Farrington in respect of the Dennis Farrington Trust; and
(d) the financial resources (including earning capacity) and the financial needs of the plaintiff, Mr Farrington, Ms Cujko and Ms Farrington at the present time and for the foreseeable future.[39]
[39]Cf s 91(4)(h) of the Act.
After considering these matters, I propose to consider the plaintiff’s application, having regard to the 12 matters referred to in s 91(4) – and noting that the 12th matter is “any other matter the Court considers relevant”.
The prospect of the plaintiff realising any interest in 33 Pascoe Avenue
The Certificate of Title in respect of 33 Pascoe Avenue[40] discloses that Mr Anslow and the plaintiff became registered as joint proprietors of 33 Pascoe Avenue[41] on 27 August 1975. The property was purchased by Mr Anslow. The plaintiff gave evidence as follows:
“I remain legally married to Robert Anslow but have been separated from him for 36 years. He continues to reside at 33 Pascoe Avenue, Strathmore. He is aged 69 years and is, I believe, semi-retired. That property is in joint names and no property settlement has ever been sought by either of us. Given that I made virtually no contribution to the acquisition or maintenance of that property, I am advised that I would have little or no claim to it if my legal husband chose to seek a property settlement under Part VIII of the Family Law Act. My marriage to Robert Anslow was unsuccessful and separation occurred after only approximately two years of marriage. Separation occurred very shortly after the acquisition of the Strathmore property and I have never resided there for any significant period.”
[40]Exhibit 3.
[41]Referred to in the Certificate of Title by its former postal address of 351 Pascoe Vale Road.
Two issues arise with respect to the property: First, whether the plaintiff might have any claim on it under the Family Law Act; and secondly, whether the plaintiff might become entitled to be registered as the sole proprietor in the event of Mr Anslow’s death. Mr Anslow was cross-examined about what might occur upon his death. He was asked and answered the following questions:
“As far as you are concerned, if something were to happen to you would you want to be looking after Pat and Melinda and Darren?---Yes. My side of the house is left to the kids. My money was left to the kids. I had a bit of money left for Pat which was underlined – not a great deal but it was underlined, ‘thanks for the good time’ but I have torn that one up on account of Pat’s going to get a bit of money, I think, from what’s been bartered around so I’m going to make out a new Will and leave it all to the kids. What’s left of my super will go to the kids.
If Pat gets adequately provided for by the Farrington estate you don’t intend to provide for her?---In the Will?
Yes?---No, not really, because it wasn’t going to be much.
If she doesn’t get properly provided for will you review that?---Yes, I might reimburse (sic reinstate) the one I have torn up.
When you say something about your half of the property do you only refer to dealing with your half and Pat has still got her half?---I daresay because when you buy a house and two names are on it automatically half is hers.
You are not unhappy at the prospect that she take a half interest in that house?---No, not really. You come in with nothing, you go out with nothing. That’s my motto.”
While Mr Anslow may not appreciate the effect of a joint tenancy, the defendants relied upon this evidence to show that there was a real prospect that at some time in the foreseeable future[42] Mr Anslow might enter into a settlement with the plaintiff giving her a sum equivalent to half the value of the property. While Mr Anslow thought the value of 33 Pascoe Avenue was $600,000,[43] there was agreement between the parties that its value was $750,000 to $800,000.[44]
[42]Cf s 91(4)(h) of the Act.
[43]T47.13.
[44]T142.19 - .30.
Both parties called evidence from expert family lawyers as to the plaintiff’s prospects of obtaining a share of the net value of the property in an application for the adjustment of property rights under s 79 of the Family Law Act. The defendants called, and tendered a report from, William Randall Bradshaw – a member of the firm of Tolhurst Druce & Emmerson, who practices predominantly in the field of family law and has 35 years of experience. In reply,[45] the plaintiff called, and tendered a report from, Peter Daniel Sweeney – a barrister who has specialised in family law and de facto property law for approximately 35 years.[46] Mr Bradshaw, in his report, noted the lack of some relevant matters of detail. He said:
“Without more precise details, it is difficult to estimate the entitlements of Patricia against Robert if proceedings were to be brought in the Family Court of Australia. Given that the parties have been married for some 40 years and the fact that Patricia remains a joint registered proprietor of the Strathmore property, it would not be unrealistic for her to receive 25% of the net value of the Strathmore property, let alone any other assets acquired by Robert during the period of the marriage, including his superannuation entitlements.
…
Without more precise detail as to the relationship of the parties referred to above, it is difficult to put a precise figure on the percentage of the asset pool which would be awarded to Patricia. However, in view of the information provided to date, it could not be said that Patricia does not have a substantial claim against Robert which she could pursue if she so chose.”
[45]His evidence was given second in time, but his report was in reply to the report of Mr Bradshaw.
[46]In addition, Mr Sweeney has a Masters of Law which was solely in respect of family law subjects, as was his thesis (see paragraph 3 of his affidavit sworn 11 June 2009, part of Exhibit G).
Mr Sweeney, in his report, expresses what he describes as his “fundamental disagreement” with Mr Bradshaw’s assessment. Mr Sweeney gives a carefully reasoned opinion to a conclusion that if the plaintiff was to issue proceedings in the Family Court, then the likely result would be that she would be ordered to transfer to Mr Anslow the whole of her title and interest in the property.[47] The report of Mr Sweeney is, as I have said, carefully reasoned. It is considerably more detailed than the report of Mr Bradshaw. While I make no criticism of Mr Bradshaw, I was more impressed by the oral evidence of Mr Sweeney than the oral evidence of Mr Bradshaw. Mr Sweeney appeared to me to give very measured and well thought out answers to the questions asked of him. Further, he was able to explain his conclusions and the reasons underlying them in greater detail and more compellingly than Mr Bradshaw. Additionally, having looked at the authorities referred to by Mr Sweeney,[48] I am of the view that his analysis is more likely to be correct than Mr Bradshaw’s analysis[49] – although I note that Mr Bradshaw’s conclusions are couched in qualified terms (“it would not be unrealistic” and “it could not be said that Patricia does not have a substantial claim”). In the end, my conclusion is that the plaintiff’s prospects of obtaining any significant part of the net value of 33 Pascoe Avenue is highly speculative. Having effectively left the marriage 35 years ago and not contributed to the purchase of the property (in circumstances where Mr Anslow contributed to the raising of the plaintiff’s son), I think it is very likely that the plaintiff would not receive any part of the net value of the property.
[47]See paragraph 16 of Mr Sweeney’s report.
[48]In particular, In the Marriage of G and DJ Robb (1999) 18 FamLR 489, In the Marriage Bushby (1988) FLC 91-919, In the Marriage of Dabrowski (1988) 94 FLR 448, Findlay v Besley [2003] VSC 247 at paragraph [90], In the Marriage of CK and IW Kennon (1997) 22 FamLR 1 and Zschokke v Zschokke (unreported Family Court of Western Australia, Holden CJ, delivered 22 July 1997).
[49]I should note for the sake of completeness that no issue as to the admissibility of the evidence of Mr Sweeney or Mr Bradshaw was taken. It might be said that the Court is “well placed” to determine the possible outcomes of Family Court proceedings – remembering that any such proceeding must be determined in accordance with law (see generally Midland Bank Trust Co Limited v Hett, Stubbs & Kemp (A firm) [1979] 1 Ch 384 at 402 and Yates v Boland (1998) 157 ALR 30 at 56 (although note the substantial criticism that decision received in the High Court in respect of other issues in Boland v Yates (1999) 167 CLR 575, and in particular, the judgment of Gummow J at paragraph [114])). Nevertheless, I was assisted by the evidence of Mr Sweeney and Mr Bradshaw in exposing the relevant issues and referring me to relevant principles and authority.
In my view, the only realistic prospect of the plaintiff receiving a benefit in respect of 33 Pascoe Avenue is if Mr Anslow predeceases her – without himself taking proceedings under the Family Law Act. Mr Anslow is 70 years of age. There is no reason to suspect that he will not live a normal or average lifespan (another 16 years or so). All that can really be said is that there is some prospect that the plaintiff might become the sole registered proprietor of 33 Pascoe Avenue at some time in the future. However, it is at least as likely that the plaintiff will not receive any benefit from this property (either because Mr Anslow does not predecease her or because Mr Anslow takes steps under the Family Law Act).
Mr Anslow’s superannuation fund
Mr Anslow gave evidence that he has a superannuation fund. As at approximately December 2008, he thought the amount in this fund stood at approximately $400,000. Mr Anslow’s evidence was that he might leave some money to the plaintiff if she was not properly provided for out of the estate of the deceased. In my view, this would be a very flimsy foundation upon which to base a judgment. For the reasons I have already given, in my view any application under the Family Law Act in respect of Mr Anslow’s superannuation (or indeed any of his other assets) would be speculative and not likely to produce a significant result in the plaintiff’s favour. Nevertheless, the prospect of some settlement or distribution should be given some weight in performing the synthesis required by s 91 of the Act.
The entitlements of Mr Farrington, Ms Cujko and Ms Farrington in respect of the Dennis Farrington trust
The affidavits[50] of Mr Dillon, the second defendant, disclose the existence of the Dennis Farrington Trust – which has assets in addition to, but separate from, the deceased’s estate. The beneficiaries of this Trust are the deceased’s children, Mr Farrington, Ms Cujko and Ms Farrington. It is agreed between the parties that the assets of the Trust stand at $466,839. Thus, there is available for distribution to each of the deceased’s children the sum of $155,613. This is a matter that falls to be taken into account under s 91(4)(h). Even if that was not so, it is a matter that I consider relevant.[51]
[50]Exhibit 1.
[51]See s 91(4)(p).
The financial resources and needs of the parties
The financial resources of the plaintiff are limited, notwithstanding any prospects she might have of obtaining support from Mr Anslow or some or all of the equity in 33 Pascoe Avenue. In her affidavit of 4 April 2008, the plaintiff deposed to assets totalling only a few thousand dollars and an income from occasional singing (less than $1,000 in 2007). In her evidence, she deposed to needing the sum of $234 per week as a “minimum expenditure” on such matters as groceries, chemist, mobile telephone, petrol, clothing, car registration, insurance and incidentals. The amounts claimed are not extravagant.
So far as the deceased’s children are concerned, each gave evidence of their assets and liabilities and various calls upon their resources (for example, Ms Cujko’s husband[52] and Ms Farrington’s care of her mother[53]). In his evidence, Mr Farrington disclosed net assets of $136,000. He owns a house and land in Queensland, an adjoining block, a motor vehicle, three horses and plant and equipment – but has a bank loan and a loan from the estate. He conducts his own business (and has for some years). While Mr Farrington did not go into specifics in relation to his earnings, he was prepared to say that the business turned over “a couple of hundred thousand”[54] (I infer) per annum. When asked the question: “You say that the business turns over several hundred thousand dollars, what do you make out of it?”, he said: “I make a living”. However, he qualified this by saying that he now owes $200,000 which he did not owe 15 years ago.[55]
[52]See paragraph 30 of Exhibit 8.
[53]See paragraph 46 of Exhibit 10.
[54]T110.31.
[55]See T111.
Ms Cujko gave evidence of a net asset position of her and her husband in an amount of $30,088. Assets were said to include a home, household items, jewellery, a Honda Accord and a Honda Civic. Liabilities were said to include a number of loans from various credit providers. Ms Cujko gave evidence that her husband was an accountant earning $80,000 per annum.
Ms Farrington gave evidence that she was self-employed. While the business she described sounded successful (with regular trips to Melbourne and clients including Myer and David Jones), her evidence was that her liabilities exceed her assets and she has been served with a bankruptcy notice by the Deputy Commissioner of Taxation. In her asset and liability statement,[56] she disclosed a home valued at $1,200,000, a St George Bank home loan of $960,000 and a liability to the Deputy Commissioner of Taxation in the sum of $252,674.13.
[56]Exhibit 11.
Does the Will make adequate provision for the proper maintenance and support of the plaintiff?
As has been said on many occasions, the Court is not entitled to re-write a Will merely in accordance with its own ideas of fairness and justice. The Court is required to place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case – treating him for that purpose as a wise and just testator.[57] Further, in answering the question whether the Will makes adequate provision for the proper maintenance and support of the plaintiff (and then, the question of what (if any) amount of provision should be ordered), the Court is bound to have regard to the matters mentioned in s 91(4). However, as was said by Nettle JA in Blair v Blair:[58]
“Self evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in s 91(4)(e) – (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of 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.”[59]
[57]See generally Petrucci v Fields [2004] VSC 425 at paragraph [58] and the authorities referred to therein. See further Lee v Hearn (2005) 11 VR 270.
[58](2004) 10 VR 69 at 84 [41].
[59]As to the use of the expression “moral duty”, cf Vigolo v Bostin (2005) 221 CLR 191 per Gummow and Hayne JJ at 218 [73]. But see also the judgment of Gleeson CJ at paragraph [21] and the joint judgment of Callinan and Heydon JJ at paragraph [121]. See further Lee v Hearn (2005) 11 VR 270, per Callaway JA at paragraphs [5]-[9] and per Batt JA at paragraphs [51]-[55].
I have already described the significant relationship between the plaintiff and the deceased. I have had regard to each of the matters s 91(4) requires me to have regard to in determining whether the Will makes adequate provision for the proper maintenance and support of the plaintiff. In my view, it does not. Having been effectively the deceased’s life partner for some 30 years and involved in providing him with significant and onerous care and assistance in the last seven years of his life, a legacy of $200,000 to the plaintiff, in circumstances where she has no other significant assets, is inadequate. In my view, the Will should have made provision for a residence for the plaintiff and a nest egg on which she could live. In reaching this conclusion, I have looked carefully at, and had regard to, the obligations and responsibilities of the deceased to his children, the financial resources and needs of the deceased’s children and the other matters required to be had regard to by s 91(4). Specifically, I reject the notion that there is any real liability on Mr Anslow to maintain the plaintiff.[60] The question that now arises is the amount of provision which should be ordered for the plaintiff.
[60]Cf s 91(4)(n).
What is the amount of provision that should be ordered for the plaintiff?
For the reasons given above, in my view the amount of provision that should have been provided for the proper maintenance and support of the plaintiff was an amount that would give her a residence and a nest egg on which to live. Both sides were agreed that an appropriate residence (should I come to the conclusions I have come to) would be a unit purchased for the sum of $500,000 (inclusive of purchasing costs, stamp duty and the like).[61] In this regard, both parties accepted the evidence of David Matler[62] as to the purchasing costs of an appropriate unit. The difference between the parties on this issue was that the defendants submitted that the plaintiff should only have what they described as a “flexible life interest” – whereas the plaintiff submitted that she should be the mistress of her own home and be provided with a sum sufficient to purchase the unit absolutely. It is possible that the resolution of this issue one way or the other might impact upon the amount of any nest egg that should be provided. In the circumstances, it is appropriate to resolve this issue first.
[61]See T164.17 - .26.
[62]Exhibit J.
In Re Will and Estate of Downing (Deceased); Downing v Downing,[63] Osborn J set out the authorities and propositions dealing with the issue of whether a Will should provide an interest greater than a life interest as follows:
[63][2003] VSC 28.
“44. The positions put by the parties present a fundamental division of views as to whether the will should provide an interest greater than a life interest in any of the major capital assets of the estate. I have come to the conclusion that some such provision should be made although the resolution of precisely what provision is not without difficulty. The following general principles can be discerned in the relevant authorities:
1. The provision of a capital asset to the plaintiff may be appropriate as part of a package of measures intended to provide accommodation, income and a nest egg (Luciano v Rosenblum[64]).
[64](1985) 2 NSWR 65 at 69.
2. The whole circumstances of each case must necessarily be addressed and may lead to different conclusions in different cases despite the presence of particular factors common to different cases. (Bosch v Perpetual Trustee Company Pty Ltd[65]; Re Duncan[66]).
3. Concern as to the capacity of a plaintiff to meet the vicissitudes and uncertainties of life may favour the provision of a capital asset to the plaintiff (King v White[67]).
4. Concern as to the capacity of the plaintiff to maintain her or himself independently and autonomously may also bear upon the notion of what is a proper provision (Richard v AXA[68]).
5. The fact that the provision of a capital asset to a plaintiff may incidentally enable a plaintiff in due course to pass that asset on to children or family contrary to the deceased's wishes is not determinative of the propriety of such a provision (Worladge v Doddridge[69]).
45. In White v Barron[70] Mason J said:
‘Nor do I subscribe to the proposition that an order in favour of a widow should necessarily be confined to an income provision. Circumstances are infinite in their variety and orders must be moulded to the circumstances of a particular case in order to ensure that the provision which is made is adequate for the proper maintenance of the widow, where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.’”[71]
[65][1938] AC 463 at 477.
[66][1939] VLR 355.
[67](1992) 2 VR 417.
[68][2000] VSC 341.
[69](1957) 97 CLR 1 at 19.
[70](1980) 144 CLR 431 at 444.
[71]Footnotes in original.
Having considered the circumstances of the relationship between the plaintiff and the deceased and the matters referred to in s 91(4), to which regard must be had, I have come to the conclusion that the appropriate order involves the provision of a unit to the plaintiff absolutely. While there is force in the submission that the provision of a life interest might only engender further litigation involving the parties, this is not the determinative factor. When looking at the matters referred to in s 91(4), the conclusion one arrives at is that adequate provision for the proper maintenance and support of the plaintiff in this case necessitates the provision of a unit absolutely. A capital provision in this case would give the plaintiff an appropriate capacity to meet the vicissitudes and uncertainties of life. The circumstances of this case make that provision appropriate. Further, having regard to the circumstances of the plaintiff, her relationship with the deceased and the contribution she made to his welfare, the plaintiff ought to have the capacity to maintain herself independently and autonomously (or more specifically, with such independence and autonomy as the provision of a unit absolutely would provide). These conclusions do not stem merely from any notions of fairness or justice – rather, this is what ought to have been done by the deceased as a wise and just testator.
The next question is the amount of a nest egg for the plaintiff. The Will made provision for a legacy of $200,000. The plaintiff seeks an additional $100,000, to make an amount of $300,000. If one assumed an interest rate of 3%,[72] then, as a matter of arithmetic, a sum of $300,000 would, over the next 16 years,[73] yield a weekly sum available to the plaintiff of $474 (with both income and capital being exhausted at the end of the period). This sum, in the circumstances of this case, is, in my view, modest. Further, it is to be remembered that, as the plaintiff ages, there may well arise the need for money to be spent in respect of necessary care, illnesses that might develop or other emergencies and vicissitudes. In my view, the amount sought by the plaintiff is both reasonable and appropriate and should be allowed so as adequate provision for her proper maintenance and support is made. This conclusion is not changed by the material in the schedule to the outline of submissions on behalf of the plaintiff.[74] While no evidence was led as to the details in the schedule, no issue appeared to be taken by the defendant as to the truth of its contents. In any event, to the extent that the schedule discloses that the plaintiff may have available to her additional income by way of an old age pension (paid by the Commonwealth), these facts do not cause me to change my view that an appropriate nest egg is an amount of $300,000. Again, this conclusion does not stem merely from notions of fairness or justice. What I have concluded is what the deceased ought to have done (again, treating him as a wise and just testator).
[72]Cf Todorovic v Waller (1981) 150 CLR 402.
[73]Being the plaintiff’s agreed life expectancy (see T151.20 - .22 – but cf the Australian Bureau of Statistics figures which suggest a life expectancy of 17 years for a 72 year old woman).
[74]Dated 16 June 2009.
It follows from what I have said above that I would substitute for the legacy to the plaintiff of $200,000 in the Will, a legacy of $800,000. This is 43.38% of the value of the estate.[75] Subject to any costs issue,[76] this would leave a little over $1 million to be distributed amongst the deceased’s children. If one assumed that they each received $340,000 from the estate, together with the amount available to be distributed from the Dennis Farrington Trust, then each child of the deceased will ultimately receive an amount of approximately $495,000. Having regard to the matters I have referred to, I conclude that the amount of provision needed to make adequate provision for the proper maintenance and support of the plaintiff is $800,000. While this is the figure I have arrived at on the basis of my conclusions in respect of the prospects of the plaintiff being supported by Mr Anslow or receiving some percentage of the net value of Pascoe Avenue, looking at the matter afresh (and having regard to the matters referred to in s 91(4) of the Act), even if the plaintiff was (at some time down the track) to become the sole registered proprietor of 33 Pascoe Avenue, in my view it is still appropriate to conclude that the amount of provision needed to make adequate provision for the proper maintenance and support of the plaintiff in all of the circumstances is $800,000. In this regard I am particularly influenced by the length and strength of the relationship between the plaintiff and the deceased and the very substantial contribution the plaintiff made to the welfare of the deceased (particularly in the last seven years of his life).
[75]While each case falls to be determined on its own facts, cf Sinclair v Forsyth [2008] VSC 250 where Harper J ordered that provision of one half of an estate valued at approximately $791,000 be provided to a person with whom the testator had a lengthy social and personal relationship, but where financial independence was largely preserved, and separate residential headquarters were maintained (although, without getting too much further into the detail of that case, note the different (and competing facts) in that case where the relationship was only of 15 years’ duration, but the competing beneficiary was a brother).
[76]And I was informed that the agreed value of the estate took into account the issue of costs (see paragraph 5 of the outline of submissions on behalf of the plaintiff dated 16 June 2009 and T159.17 - .23).
Conclusion
For the reasons given above, and subject to any submissions counsel may make as to form, I will make orders that further provision for the plaintiff be made out of the estate of Dennis Daniel Farrington, deceased, as if the Will is amended by substituting for the amount of $200,000 in clause 3(b), the amount of $800,000.
I will hear counsel as to the appropriate form of order and as to any issue of costs.
6
0