Armalis v Kasselouris - [2006] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
In the Estate of ELIAS GEORGE PAPAROIDAMIS
ARMALIS v KASSELOURIS & ORS
[2006] SASC 198
Judgment of The Honourable Justice Duggan
4 July 2006
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Application by adult daughter for provision out of estate of testator pursuant to s 7 Inheritance (Family Provision) Act 1972 - estate valued at $390,000 - legacy totalling $40,000 to the plaintiff - balance of estate divided equally between the testatror's other daughter and her three children - plaintiff diagnosed as suffering from multiple sclerosis in mid-1970s - plaintiff was severely disabled at time of testator's death - plaintiff lived with mother and testator who provided her with daily care until 1991 - plaintiff commenced relationship with her husband in 1990 - testator strongly disapproved of relationship - plaintiff left testator's home in 1991 to live with her husband - whether plaintiff left without adequate provision for her maintenance, education and advancement in life - where plaintiff and her husband unable to earn income and require financial assistance - where plaintiff's house requires substantial repairs and modifications to cater for plaintiff's condition - where testator’s other daughter and her three children have income and assets adequate for their needs.
Held: plaintiff left without adequate provision for her maintenance, education and advancement in life - order that plaintiff receive a one-half share of the net estate.
Inheritance (Family Provision) Act 1972 s 7, referred to.
McCosker v McCosker (1957) 97 CLR 566; Singer v Berghouse (1994) 181 CLR 201, applied.
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Russell v Scott (1936) 55 CLR 440; Julia Johnston as Executor of the Will of Elsie Birks v Rita Marsh & Ors [1999] WASC 1055, discussed.

In the Estate of ELIAS GEORGE PAPAROIDAMIS
ARMALIS v KASSELOURIS & ORS
[2006] SASC 198
Civil

DUGGAN J. The plaintiff is the daughter of Ilias Paparoidamis (“the testator”). She has applied under s 7 of the Inheritance (Family Provision) Act 1972 “(“the Act”) for an order which would make further provision for her out of the testator’s estate. The defendants are the other beneficiaries of the estate.
The testator died on 15 December 2002. His wife predeceased him on 14 August 1991.
The plaintiff and her sister Fotini Kasselouris (“Fotini”) are the only children of the testator and his wife.
In his will, the testator left a legacy of $40,000 to the plaintiff and directed that the balance of the estate be divided equally between Fotini and her children. Fotini has three children: Ioannis Kasselouris (“John”), Sofia Ntafillis (“Sofia”) and Vassiliki Koussiandas (“Vicki”).
According to the statement of assets and liabilities exhibited to the affidavit of the executor dated 27 January 2004, the net value of the estate at that time was $338,045. The principal asset is the testator’s house, then valued at $350,000. According to the evidence, the present value of the house is approximately $390,000.
The testator was 78 years of age at the time of his death. The plaintiff is now 50 years of age and Fotini is 53 years of age. Fontini’s three children are married.
The testator, his wife, and their children migrated to Australia from Greece. The testator arrived here in 1967 and his wife and children joined him in 1968. Fotini married on 7 September 1969. The plaintiff went to school in Adelaide and then obtained work at Mutual Community. She lived at home until 1990.
In the mid-1970s, the plaintiff was diagnosed as suffering from multiple sclerosis. Her earlier medical records are not available, but it is clear that her condition soon worsened to the point where she could no longer work. She became dependent upon her parents for her everyday care.
The plaintiff attended the Neurology Clinic at the Royal Adelaide Hospital from 1997 onwards. Professor Thompson, Director of Neurology at the hospital, saw her in 2001. He gave evidence that, by that time, she was severely incapacitated by secondary progressive multiple sclerosis, which had evolved over the previous ten years. He explained that multiple sclerosis is an inflammatory disorder of the central nervous system, which occurs in a number of parts of the body. He said that the patient presents with multiple episodes of neurological disturbance and the disabilities slowly escalate. Her condition deteriorated considerably during an admission to hospital in April 2003, when she received treatment for a urinary tract infection.
In a report dated 14 October 2005, Professor Thompson described the plaintiff’s condition:
According to her husband she communicates meaningfully to him and her carers. She may say a few words at times.
On examination she responded appropriately but slowly. She was able to communicate meaningfully by nodding and shaking her head. She was able to open her mouth and smile to command. She could move her eyes to either side on command with evidence of a bilateral internuclear ophthalmoplegia (present when she was first seen in 1997). She made a few breathy unintelligible sounds to command. She was unable to protrude or move her tongue and there was marked neck weakness so that the head flopped forward when not held up by a strap around her forehead attached to the wheelchair. There was a spastic quadriplegia with greater increase in tone on the right.
She has deteriorated significantly since I last reviewed her in 2001. It appears a significant part if not all the recent deterioration occurred in the setting of a febrile illness. She has always displayed thermal liability (a feature of multiple sclerosis) but on this occasion there was a marked deterioration in bulbar function and only limited recovery. She was left with dysphagia, anarthria and a loss of the ability to control head and neck posture all due to bulbar muscle weakness.
It is difficult to explore her cognitive state in detail because of the severe motor incapacity limiting her motor or verbal responses. However it is my impression that basic cognition is intact and that the major source of her handicap is due to loss of the neural control of her bulbar and limb muscles. I think her difficulty speaking is anarthria due to weakness rather than dysphasia. All her responses today were appropriate indicating that she can understand and is aware of what is happening around her and what is said to her. Given time to respond I think she should be able to make her wishes known using her limited head control.
He said in evidence that it was too difficult to express an opinion as to the plaintiff’s life expectancy. Dr Hallpike, who was called by the defendants, also acknowledged the difficulty of providing an opinion on this issue.
The plaintiff married in August 1991. Her husband, George Armalis, said he met the plaintiff in 1990. However, the plaintiff told him they had met earlier through family circles. Mr Armalis was a television technician. He went to the testator’s home in 1990 to repair a television set. From that time onwards, he formed a relationship with the plaintiff and she left her parents’ home to live with him on 9 June 1991.
The testator was strongly opposed to the relationship between the plaintiff and Mr Armalis. According to Mr Armalis, the testator locked the doors of his house to prevent the plaintiff from leaving. Eventually, the police were called on 9 June 1991 and they stood by to prevent a breach of the peace as the plaintiff left the house.
The plaintiff and Mr Armalis went to live at 15 Rowell Crescent, West Croydon in a house owned by the plaintiff. She had purchased this property from her own funds. In December 1991, the title to the house was placed in the joint names of the plaintiff and her husband.
In due course, there was a reconciliation between the testator on the one hand and the plaintiff and her husband on the other. The testator went to the plaintiff’s wedding and became a frequent visitor at her house.
Legal principles
Section 7(1) of the Act provides as follows:
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.
Section 7(3) provides that the Court may refuse to make an order in favour of an applicant on the ground that his or her character or conduct, in the opinion of the Court, is such as to disentitle him or her to the benefit of the Act.
The approach to be undertaken by the Court in determining an application of this nature was summarised by Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201 at 208:
It is clear that, under these provisions, the court is required to carry out a two-stage process. This first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provisions ought to be made out of the deceased’s estate for the applicant.
After observing that the first question, although it involves the making of value judgments, is a question of fact, their Honours continued at 209:
The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc. were explained in Bosch v Perpetual Trustee Co. Ltd. [1938] AC at p 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
Further guidance is provided in the joint judgment of Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566 at 571:
The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476 the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
According to the case presented on behalf of the plaintiff, her father’s will left her without adequate provision for her proper maintenance. In particular, it was argued that the testator did not give sufficient consideration to the plaintiff’s disability, which necessitates twenty-four hour care. It was further argued that a wise and just father would have made greater provision for his daughter bearing in mind her circumstances.
The features of the plaintiff’s circumstances which are most relevant for present purposes are her physical condition and her financial position. The threshold question as to whether the plaintiff has been left without adequate provision for proper maintenance is to be determined by reference to the circumstances as they existed at the time of the death of the testator in December 2002. However, reference may be made to events which were reasonably foreseeable at the time of the death of the testator. In Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508, Dixon CJ said:
But the very question what is proper maintenance and support involves the future of the widow or children to be maintained or supported. It is, however, the future stretching forward from the date of the testator’s death and therefore considered as from that date. It involves what is necessary or appropriate prospectively from that time. To determine that question contingent events must be taken into account as well as what may be considered certain or exceedingly likely to happen. When a court is called upon to consider such a question many years after the date as at which the court must take its stand, all the advantage is available of knowing the events that have occurred. The intervening events may be taken into consideration because they suggest or tend to show what antecedently might have been expected. But they must not be outside the range of reasonable foresight. If all contingencies that might reasonably have been anticipated have been taken into account, it would be difficult to say that the actual occurrence of some event which antecedently no one could reasonably have foreseen shows that the maintenance or support was not proper or the provision therefore was not adequate. It is therefore impossible to treat actual intermediate occurrences as more than evidentiary facts. The ultimate question must remain one of adequate provision for proper maintenance and support as at the date of the testator’s death.
I have said that the diagnosis that the plaintiff was suffering from multiple sclerosis took place in the mid 1970s. It is clear that the testator was well aware of the diagnosis and that he would have been aware of the progressive nature of the condition. He had observed the deterioration in the plaintiff’s health while she was living at home. The plaintiff had also paid for him and her mother to accompany her on a trip to Greece in 1986 in search of a remedy.
The plaintiff’s mobility was severely restricted before she left the home of her parents. She had been forced to give up her employment and she was in receipt of an invalid pension.
During 1992, the plaintiff became unable to walk and she could not move around the house except by crawling. She has been confined to a wheelchair since 1993. All this was apparent to the testator. After she left home, the testator visited the plaintiff regularly. The plaintiff was profoundly disabled at the time of the testator’s death. He was aware that she required constant care and that this was being provided by Mr Armalis. It was also apparent that Mr Armalis was the only person available to provide that care in the future, unless the plaintiff was admitted to institutional care. In other words, the plaintiff’s present condition and circumstances were reasonably foreseeable by the testator at the time of his death.
Modifications to the house
When the plaintiff commenced living with Mr Armalis, she was able to support her back and neck whilst sitting. Her meals were served to her by Mr Armalis and she was able to eat them with the aid of specially designed knives and forks.
However, the plaintiff’s condition deteriorated to the point where she could control only a limited amount of movement in her upper limbs. Her head had to be strapped to the back of the wheelchair. Her ability to speak was reduced to the stage where it became almost non-existent. She is now unable to attend to any of her personal needs, including bathing and toileting. Bathing her is a particularly complex operation and considerable care has to be taken because of the sensitivity of her skin, which is a symptom of the disease from which she suffers.
Some modifications to the house have been made to assist in the plaintiff’s care, but there are limitations in the use of the premises to accommodate her needs and the work of her carers.
I accept the evidence of Mr Inkley, the plaintiff’s building expert, that further modifications would be appropriate. The laundry is in a poor state of repair and there is some difficulty in transporting the plaintiff with comfort through some of the doorways in the house and through the arch over the front gate. I accept that some areas on the premises are in need of ramping.
Furthermore, I accept Mr Inkley’s evidence that the house is in a poor state of repair and that much needs to be done by way of maintenance, including painting, to restore it to a satisfactory state.
I have had regard to the evidence of defendants’ building expert, Mr Short, but it has not altered my firm view that some modifications are needed and, in particular, extensive maintenance work is required. It is important to have regard to the fact that the difficult and delicate task of caring for the plaintiff must take place within the confines of the house and this includes the activities of care workers who are required to use the premises as a work place.
The financial position of the plaintiff
The plaintiff’s disability allowance is now $800.20 per fortnight. Mr Armalis receives a carer’s allowance of $74.70 per fortnight. They have no other source of income.
When the plaintiff and Mr Armalis moved into the house at Rowell Crescent, it became necessary to renovate the bathroom and kitchen so as to make it suitable for the plaintiff’s care. An application for government assistance for this purpose was rejected and it was necessary to raise a loan for the renovations.
The plaintiff and Mr Armalis borrowed an amount of approximately $20,000. This was spent on renovations. However, Mr Armalis said that it was becoming very difficult to live on the two pensions and they faced a need to refinance. An amount of $25,000 was borrowed in March 2003. This enabled the outstanding loan to be paid off.
Mr Milazzo, for the defendants, has pointed out that $15,000 of the second loan was spent within the twelve months following its grant. He suggested that this expenditure reveals extravagance on the part of Mr Armalis and that Mr Armalis was using the money for his own benefit.
I do not accept this criticism. I have no hesitation in finding that Mr Armalis is devoted to his wife and that the majority of his waking hours are spent in attending to her needs. He is the plaintiff’s primary carer. He has had no holiday for over 15 years. The only occasion on which he receives any respite is when carers, funded by Social Security, provide assistance. This outside care is provided for 19 hours per week.

It is clear from the evidence that if Mr Armalis did not care for his wife in this manner, there would be no option but to place her in an aged care facility. The life which they lead together is confined mainly to the activities which take place in their house. There was evidence that the plaintiff watches television. I do not regard the television set and sound system which Mr Armalis purchased as being for his exclusive use or that it was an extravagance. It seems to be one of the few sources of entertainment available to the plaintiff and her husband; nor would I criticise Mr Armalis for purchasing a computer.
Furthermore, in view of the time and effort required of Mr Armalis in looking after his wife, I reject the submission that he could have done more by way of maintenance to the house by carrying out some of the work, such as painting, himself.
The credibility of Mr Armalis
Mr Armalis said in evidence that the testator accused him of coveting the plaintiff’s house and property. The testator told Mr Armalis that, if he wanted to continue the relationship, he had to relinquish any right to the plaintiff’s property. Mr Armalis said in evidence that he told the testator he was interested in the plaintiff and not her money. However, he said that the testator became more irate and asked Mr Armalis to leave.
The extent of the testator’s reaction to the prospect of his daughter marrying Mr Armalis can be gauged by the fact that he executed a new will ten days after the plaintiff left home, in which he left only $15,000 to her in the event that his wife predeceased him. However, reconciliation followed, at least to some extent, and the testator visited the plaintiff and her husband frequently after the plaintiff moved out of her parents’ home.
Mr Milazzo took up this implication of motive. He said a very important dimension to the relationship between Mr Armalis and the plaintiff was that it provided Mr Armalis with financial support. He pointed out that some years before the relationship commenced, Mr Armalis had been declared bankrupt, being that he was discharged from bankruptcy at the time the relationship commenced. However, Mr Milazzo pointed to the fact that some months after the marriage, the plaintiff signed over a half interest in her house to Mr Armalis. He also referred to the fact that the plaintiff had some savings, which were drawn upon by the plaintiff and her husband after the marriage. According to the evidence of Mr Armalis, the savings totalled between $9,000 and $12,000.
Mr Armalis denied that he was motivated in this way. I accept his evidence. I found him to be an honest and straightforward witness, whose devotion to his wife was readily apparent. As I have said, the testator was obviously upset about the relationship and appears to have altered his will as a consequence. However, it is conceded that there was no disentitling conduct on the part of the plaintiff.
Counsel for the defendants also drew attention to some meetings which some of the defendants had with the plaintiff and her carers while they were out shopping. I accept that there was no ulterior motive on the part of the defendants when they approached the plaintiff and spoke to her. However, Mr Armalis said that these approaches distressed the plaintiff considerably. He said she displayed her distress when she returned home.
Mr Armalis advised the carers that meetings with relatives upset the plaintiff and, after proceedings were commenced, the plaintiff’s solicitor wrote to the defendants’ solicitors advising that the plaintiff did not wish to be approached by any of her family members while the current proceedings were in existence.
In my view this evidence is of very little relevance. In so far as it is an attempt to discredit Mr Armalis in some way, I reject it. I accept that he was genuinely concerned that approaches by family members, however well intentioned, had the potential to upset his wife, particularly in the aftermath of the will and the subsequent litigation.
The joint account
It is appropriate at this stage to deal with three issues which were the subject of evidence. The first relates to a joint account which, at the time of the testator’s death, was held in the names of the testator and John Kasselouris. There was approximately $22,000 in the account. An issue has arisen as to whether the proceeds in the account should be considered as part of the estate for the purposes of any order I might make under the Act.
John Kasselouris gave evidence that the account was opened in September 1991. By that time, the testator’s wife had died. According to Mr Kasselouris, the testator told him that he wanted to open an account in the joint names of himself and Mr Kasselouris, so that Mr Kasselouris could operate the account if the testator fell ill.
The testator deposited amounts from his pension into the account and Mr Kasselouris paid money into the account on a fortnightly basis. The deposits made by Mr Kasselouris were in the range of $30.00 to $50.00 per fortnight. He said he gifted these amounts to the testator. He added that he considered the funds in the account belonged to the testator.
Shortly before his death, the testator said to Mr Kasselouris “Do not worry. You will be looked after, after my death”. However, this appears to have been a general comment and not specifically related to the funds in the account.
In the case of a joint account such as this, the holders of the account are jointly entitled at common law to a chose in action: Russell v Scott (1936) 55 CLR 440 at 450. As the court in that case pointed out, at common law the chose in action passes to the survivor.
However, it is apparent from the evidence that a trust arose in favour of the testator in relation to the monies which were deposited in the account. The deposits which the testator made were intended for his benefit and the deposits made by Mr Kasselouris were intended as gifts to the testator. Furthermore, there was no evidence of an intention that Mr Kasselouris would retain beneficial ownership of the money on the death of the testator: cf. Julia Johnston as Executor of the Will of Elsie Birks v Rita Marsh & Ors [1999] WASC 1055.
In my view, the monies in the joint account at the time of the testator’s death form part of his estate.
Cash in the possession of the testator at the time of his death
According to the evidence, the testator had money in his clothing at the time of his death in the Queen Elizabeth Hospital. The nursing staff counted the money which was comprised of American dollars, Australian dollars and Eurodollars. The total amount was approximately AUD8 000.
I accept the evidence of the nursing staff that they placed the money, along with other personal property belonging to the testator, in four envelopes. The envelopes were sealed and forwarded to the cashier’s office. The contents of each envelope were not noted on the envelope or in any record kept by the hospital.
Fotini Kasselouris said that she went to the hospital on the day that her father died and was given some of his possessions together with a receipt for further property held by the cashier. She said she returned to the hospital on the following day and went to the cashier’s office where she was given three envelopes.
The witness said she took the envelopes to her car and opened them. She saw that they contained keys, a pocket knife and her father’s glasses. She realised this was not all the property he had with him, because his pension card was not there. She said she went back to the cashier’s office and was given a further envelope which contained the testator’s wallet, pension card and bank book. The wallet contained $2,000 in Australian currency. She denied receiving any further amounts of money from the cashier. Her daughter Parthena supported this part of Mrs Kasselouris’ evidence.
Mr John Kasselouris reported the matter to the hospital when he heard of the amount of money forwarded to the cashier’s office.
Evidence was called concerning the hospital procedure for the custody of the personal property of patients.
After giving the matter some consideration, I do not think it is necessary to make a finding as to what happened to the money taken from the testator’s clothing. Mr Stevens, for the plaintiff, did not suggest that I should make a finding for the purpose of reducing Mrs Kasselouris’ share by any specific amount, but submitted that a finding that she received the money might provide additional support for an order that the plaintiff should receive a percentage share in the estate in lieu of the legacy left to her.
In my view a finding for this purpose is unnecessary.
Sale of property in Greece
The third matter relates to the sale of land by the testator in Greece. According to the evidence, the testator travelled to Greece in 1990. Whilst there he sent for a Power of Attorney from the plaintiff and Fotini to enable him to sell some land which had been bequeathed to them. The evidence as to the transaction is vague, but it would appear that the plaintiff should have received approximately $3,000 from the sale of her interest in the land. She did not receive any of the proceeds. The evidence is only marginally relevant to this application.
Financial positions of the defendants
In considering whether the plaintiff has been left without adequate provision for her maintenance, it is necessary to take into account competing claims upon the bounty of the testator: McCosker v McCosker at 571. This consideration is also relevant to the order which is to be made if the threshold test is satisfied. It is appropriate, therefore, to briefly summarise the financial position of the defendants who are also beneficiaries under the testator’s will.
Fotini
Fotini’s husband, Jim, worked in various occupations before becoming employed by the Post-Master Generals Department in 1973. He worked for this department and the entities which succeeded it until December 1996. He is in receipt of a Centrelink pension of $299.03 per fortnight, plus Commonwealth Super Scheme Pension of $681.91 per fortnight.
Fotini worked as a cleaner, first for the National Bank and then at the Queen Elizabeth Hospital. She was employed at the hospital for 23 years after commencing work there in 1977. Her husband’s taxable income for the year ending 30 June 2005 was $20,617. She is also in receipt of a Centrelink pension of $299.03 per fortnight. She and her husband own their own home at 46 Aroona Road, West Croydon. There is a mortgage to St George Bank Ltd on this property. The property is valued at $245,000.
John
John is 36 years of age. He and his wife Nicki married on 14 February 1998. They have no children. He works as a public servant attached to South Australia Police. According to his most recent tax assessment, he earned $45,648 for the financial year. He said there will be a significant reduction in that amount in the current year because he no longer does shift-work. His wife does not work.
Nicki owns a unit at Windsor Gardens valued at $105,000. There is no mortgage on the property and she receives $145 per week rent. She also owns a homette at Greenacres. The property is not mortgaged and is valued at $152,500. It returns a weekly rental of $185.
John and Nicki own their own home at 44 Aroona Road, West Croydon. The property is valued at $316,000. There is a mortgage to St George Bank Ltd on this property.
Sofia
Sofia Ntafillis is 34 years of age. She married her husband, Peter, on 11 January 1997. They have two children aged three years and one year and nine months. She resumed work as an assessor with Mutual Community on 29 May 2006. This will be a part-time position and she expects to earn approximately $4,000 per year. Her husband is a senior consultant with the State Department of Treasury and Finance. In the year ending 30 June 2005, he earned $63,991 before tax.
Sofia and her husband live in their own house at Panorama. The outstanding amount on their loan is $140,000. The house is valued at $355,000. They also own a unit at Bedford Park. There is no mortgage on this property, which is valued at $165,000. They own a half-share in a taxi plate from which they receive $300 per fortnight. The half-share is valued at approximately $105,000.
Vicki
Vicki Koussiandas is 31 years of age. She married her husband, Jim, on 12 February 2000. They have one child aged two years. Vicki works as a kindergarten teacher and her husband is an engineer employed by Electrolux Limited. He earns approximately $57,000 per year. Vicki earns approximately $32,000. Their house at Fulham Gardens is valued at $600,000. There is a loan of $52,000 on the property.
The jurisdictional issue
An order under s 7 of the Act cannot be made unless it is established that the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life.
After considering all of the relevant circumstances, I am satisfied that the plaintiff has been left without adequate provision. What is proper maintenance must take into account the consequences of her disability. She is unable to earn an income and, if her husband is to continue caring for her, he cannot undertake regular employment. Their household requirements are funded by their pensions and this is proving inadequate for their current needs. These are matters which were known to the testator or were reasonably foreseeable at the time of his death.
It is not without significance that the testator wrote out a homemade will which predated the will executed on 9 July 1993. The document is undated, but it seems to have been written at a time when the home owned by the testator and his wife was mortgaged. In any event, it was obviously written before his wife died. The following translation of the document was tendered in evidence:
The house I have is with my wife Vasiliki. In the event anything happens to one of us the other has the right without the signature of the other, to sell the house. In the event that something happens to both then it is entitled to my daughter Sofia. Sofia has the right when it suits her, to give a third to her sister Fotini. Whether it is a fixed asset or cash in the bank these they will be entitled to after the death of the old ones. These they will be entitled to wherever they may be whether here or in Greece. If Fotini does not go to Greece she will use them for a deposit on a fixed asset. Similarly in the event of an accident they will be entitled to by the closest relative in Greece. If it is found the house is mortgaged, Sofia will have the right to sell it so the bank gets its share and from ~~the rest~~ what will be remaining will give one third to her sister Fotini.
This is a recognition by the testator that the plaintiff has special needs. It appears that her marriage caused him to change his attitude.
In my view, a wise and just testator would have made far better provision for his daughter in these circumstances. The legacy of $40,000 was quite inadequate. It was appropriate that he make some provision for Fotini and it is understandable that provision was made for his grandchildren. However, this should not have been at the expense of proper provision for the plaintiff. There is nothing in her character or conduct which would disentitle her to an order under the Act and, in my view, it is appropriate to make such an order.
Conclusion
It is apparent that the incomes and assets of Fotini and her children are adequate for their needs. The same cannot be said of the plaintiff. After taking into account her circumstances, I propose to order that provision be made for her out of the estate of the testator by deleting the provision in the will by which the plaintiff is to receive the sum of $40,000 and substituting therefore a provision that she is to receive a one-half share of the net estate.
I will hear the parties as to costs and the terms of the formal orders.